Talev v. Reinhardt
| Citation | 662 F.2d 888 |
| Decision Date | 31 August 1981 |
| Docket Number | No. 79-1132,79-1132 |
| Parties | 26 Fair Empl.Prac.Cas. 1185, 26 Empl. Prac. Dec. P 32,098, 213 U.S.App.D.C. 332 Ilya V. TALEV, et al., Appellants, v. John E. REINHARDT, et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 76-301).
Alexander G. Park, Bethesda, Md., for appellants.
Alfred Mollin, Atty., Dept. of Justice, Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed, and Robert Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee. Susan M. Chalker and Leonard Schaitman, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellee.
Before ROBINSON, Chief Judge, MIKVA, Circuit Judge, and JUNE L. GREEN, District Judge. *
Opinion for the Court filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.
This appeal features a claim that the Voice of America (VOA), the broadcasting arm of the International Communication Agency, 1 discriminates against an employee because of his national origin. Perceiving no issue of fact material to the litigation, the District Court held that the evidence proffered by the employee did not make out a prima facie case, and entered summary judgment for VOA. 2 We conclude that even if a prima facie case was established, it was effectively rebutted by an uncontested evidentiary tender by appellees 3 demonstrating that the differentials protested are job-related, and thus no predicate for litigation.
Title VII of the Civil Rights Act of 1964, 4 as extended by the Equal Employment Opportunity Act of 1972, 5 prohibits federal employment practices having the purpose or effect of discriminating on the basis of race, color, religion, sex or national origin. 6 In 1974, Ilya V. Talev, a Bulgarian-born American citizen, was hired by the Bulgarian Section of VOA's European Division 7 to prepare and broadcast radio programs in his native tongue. 8 Talev initially had indicated that he was amenable to a foreign service position 9 at the grade equivalent of GS-7, and a minimum salary of $12,000. 10 Eventually, however, he was offered, and accepted, employment at a grade equal to GS-9 and salaried at $13,193. 11 Nevertheless, Talev quickly grew dissatisfied with his grade level and remuneration. 12 After unsuccessfully seeking gratification administratively, 13 he sued in District Court on behalf of himself and others purportedly similarly situated, 14 alleging discrimination on account of national origin. 15
In essence, Talev's complaint charged that employees in VOA's Worldwide English Division, 16 who primarily are American-born, are given preferential treatment in comparison with employees in VOA's European Division, who largely are foreign-born. 17 In an attempted support of this claim, Talev pointed to various facially neutral VOA employment policies and practices assertedly operating to the disadvantage of foreign-born employees. 18 Talev lost on a bid for class certification, 19 but prevailed substantially on his motion to compel discovery of statistical data on VOA employees. 20 With these data, 21 Talev proffered extensive statistical evidence, 22 and both sides moved for summary judgment. The District Court, concluding that Talev had not met his burden of establishing a prima facie case of employment discrimination, entered judgment in favor of appellees, 23 and sua sponte taxed costs against Talev. 24
In the main, Talev assails the District Court's ruling that his evidentiary tender did not make out a prima facie case. 25 In addition, he asserts that the court erred in denying his motion for class certification, 26 in restricting discovery, 27 and in assessing costs against him. 28 Appellees, in turn, argue that Talev did not present sufficient evidence to generate a claim under Title VII or, if he did, that higher grades and salaries existent in the Worldwide English Division are explained by heavier responsibilities shouldered by employees therein, as well as by superior qualifications they bring to their tasks. 29 Appellees resist all of Talev's other contentions except the last, which they say is moot in light of their decision not to seek costs. 30 In view of that position, we vacate the award of costs, and proceed to consider the remainder of Talev's challenges.
The shifting burdens of proof in Title VII "disparate impact" litigation 31 are well entrenched. The complainant has the initial burden of constructing a prima facie case by showing that facially neutral employment standards operate in a proscribed discriminatory fashion. 32 The burden then falls upon the employer to demonstrate that these standards have "a manifest relationship to the employment in question." 33 The complainant may then show that other policies or practices would "serve the employer's legitimate interest in 'efficient and trustworthy workmanship' " without a discriminatory impact. 34
This analytical approach is to be taken whether the adjudicative context is summary judgment or trial. 35 But since summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law," 36 the court must ascertain at each successive stage 37 whether any fact essential to the claim or defense is disputed and, if not, whether on the basis of the proffered evidence a summary disposition is legally demandable. 38 Our task on this appeal is to ascertain whether the District Court was obedient to these tenets.
Talev asserts that he presented a prima facie case of national-origin discrimination when he submitted statistical evidence disclosing that employees in VOA's Worldwide English Division fare better in terms of grade, salary and promotion than employees in the European Division. This contention rests on a combination of several items. 39 More journeyman positions were authorized for the Worldwide English Division than for the European Division. 40 European Division employees were primarily foreign-born, and Worldwide English Division employees mainly were American-born. 41 Foreign-born employees had lower personal grades and salaries on the average than American-born employees. 42 More foreign-born than American-born employees had personal grades below the grade of the position to which they were assigned, and more American-born than foreign-born employees had personal grades above the grade of their assigned position. 43 More American-born than foreign-born employees had personal grades established on the basis of their grasp of American foreign policy and of the cultural situation in one or more foreign countries, rather than on the basis of their journalistic training and experience. 44
Talev appears to attribute these disparities mainly to four alleged practices at VOA: 45 (1) appointing employees to positions without regard to their personal grades; 46 (2) maintaining separate promotional categories for English-language and foreign-language broadcasters; 47 (3) setting the grades of new employees on the basis of positions available rather than the employees' qualifications; 48 and (4) hiring at junior levels and promoting from within. 49
We need not ponder the question whether the District Court was correct in its holding that this evidentiary tender was insufficient to attest a prima facie case of employment discrimination under Title VII. 50 VOA offered evidence tending strongly to show that all of the variances to which Talev points are the result of substantial differences in the qualifications and job responsibilities of employees in the two divisions. 51 Not only was VOA's submission overwhelming, but it also was undisputed by countervailing evidence. That sealed Talev's fate on the cross-motions for summary judgment. 52
The Worldwide English Division, as its title implies, broadcasts to countries around the globe. 53 It does so for many more hours each day than foreign-language programs of the European Division are aired. 54 Moreover, the Worldwide English staff must be able to perform a variety of tasks not required of foreign-language broadcasters, among which are the development of original broadcast material including features, roundtable discussions and documentaries. 55 Worldwide English employees must also be able to function day-to-day as correspondents on special assignments throughout the Nation and the world. 56 On the other hand, broadcasters in the European Division, limited as they are by the amount of air time available, 57 usually present relatively brief news programs. 58 Even when time permits, they generally broadcast only translated adaptations of material developed by the Worldwide English Division. 59 Resultantly, employees in the European Division are called upon to handle far fewer and less demanding assignments than those in the Worldwide English Division.
Employees in the two divisions also vary substantially in the qualifications they bring to the job. Professional broadcasters and graduates of journalism schools provide a diverse and talented pool from which Worldwide English broadcasters are hired, 60 but practical and political realities severely curtail VOA's ability to lure equally qualified foreign-language broadcasters. Not only are there few foreign-language radio stations in the United States from which experienced foreign-language broadcasters can be sought, 61 but also most professional broadcasters in Eastern European countries are unavailable for VOA recruitment. 62 As a consequence, foreign-language broadcasters at VOA normally have had substantially less professional journalistic experience than VOA's Worldwide English broadcasters. 63
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