Milton v. Weinberger, 81-2200

• Decision Date: 20 December 1982
• Docket Number: No. 81-2200,81-2200
• Citation: 696 F.2d 94
• Parties: 30 Fair Empl.Prac.Cas. 1, 30 Fair Empl.Prac.Cas. 913, 30 Empl. Prac. Dec. P 33,114, 32 Empl. Prac. Dec. P 33,919, 225 U.S.App.D.C. 12 Dorothy L. MILTON, et al., Appellants, v. Casper WEINBERGER, Secretary of Defense, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 94

696 F.2d 94

30 Fair Empl.Prac.Cas. 1,

30 Fair Empl.Prac.Cas. 913,

30 Empl. Prac. Dec. P 33,114,

32 Empl. Prac. Dec. P 33,919, 225 U.S.App.D.C. 12

Dorothy L. MILTON, et al., Appellants, v. Casper WEINBERGER, Secretary of Defense, et al.

No. 81-2200.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 1982.

Decided Oct. 26, 1982.

As Modified by Memorandum Order

Denying in Part and Granting in

Part Rehearing Dec. 20, 1982.

Frances B. Aubrey, Washington, D.C., for appellants.

Regina C. McGranery, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Michael J. Ryan, and Diane M. Sullivan, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellees.

Before ROBINSON, Chief Judge, and WALD and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

We consider this Title VII ¹ promotion case for a second time on appeal from a District Court judgment for appellees, the Defense Logistics Agency ("DLA") and certain responsible agency officials. In 1978, appellants Dorothy Milton and Eleanor Whelan brought suit alleging, inter alia, that the DLA discriminated against them on the basis of gender in filling six GS-14 job openings ("JOAs"). On the first appeal, we unanimously affirmed the trial court's judgment for appellees as to five of these openings, but reversed and remanded for further determinations to be made on the existing record as to the remaining opening, JOA 275. ² On the remand, the District Court again entered judgment for appellees. We now affirm.

I. BACKGROUND

A. Facts

The relevant facts are substantially undisputed and may be stated briefly. ³ The DLA used a two-step selection procedure in filling JOA 275. Agency officials first rated applicants based on their formal credentials and their proficiency in job-related functions, and then interviewed the five top-rated applicants. ⁴ One person was selected from among the five interviewed. Milton scored 90 on the JOA 275 job selection rating, placing her fifth on the panel of five. ⁵ Whelan never actually applied for JOA 275 and thus was not rated. She was discouraged from applying because the DLA Director had previously disapproved her selection for a similar job. ⁶ Whelan did, however, apply for openings at the same grade level immediately before and immediately after JOA 275, receiving a rating of 88.5 for JOA 70, and 88.85 for JOA 22. ⁷

James Cisco, the DLA's selecting official, interviewed the five top-rated candidates for JOA 275 without knowledge of their relative selection ratings. He put to each interviewee a standard list of questions, including, "What is your concept of management?" ⁸ Milton failed to answer this "management-concept" question, while the eventual male selectee answered all of the questions satisfactorily. ⁹

B. Prior Case Proceedings and the District Court Decision on Remand

After a two-day bench trial in March 1979, the District Court found for appellees on all claims, including the JOA 275 claim. ¹⁰ The trial court's April 26, 1979 Memorandum Opinion first concluded that appellants had made out an "extremely strong" prima facie case of discrimination, and that, as a consequence, under Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), "the burden had shifted to the appellees to demonstrate 'that all the allegedly illegal employment decisions were based on legitimate nondiscriminatory considerations.' " Milton I, 645 F.2d at 1073. The opinion then noted that "the Government 'relies primarily on the proposition that, regardless of whether or not the defendants could be found to have discriminated on the basis of sex, plaintiffs are not entitled to the relief they request.' " Id. The District Court accepted this proposition and, under the evidentiary standard of Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam), required appellees to demonstrate by clear and convincing evidence that, even absent the alleged discrimination, neither appellant would have been promoted. Milton I, 645 F.2d at 1073. The trial court finally concluded that, because of their low rating scores, the evidence was clear and convincing that neither appellant was the best qualified candidate for JOA 275. Id. at 1074.

On appeal, we held that the rating scores did not provide a legitimate nondiscriminatory reason for appellants' promotion denials because the record indicated that rating scores determine only whether an applicant makes it to the final interview. Id. at 1079. We thus reversed and remanded, instructing the District Court

to determine whether there is on the existing record a legitimate non-discriminatory reason for not promoting the appellants, and if so, whether [pursuant to Day v. Mathews ] there is clear and convincing evidence that, even absent the alleged discrimination, neither appellant would have been selected for the job under review.

Id. (emphasis in original). As will be clear from the discussion below, see Part II.A. infra, this instruction may have been confusing to the District Court in its consideration of the case on remand. On re-reading the instruction, it appears that the words "and if so" should have been "and if not." This error in wording was probably caused by the fact that on the first appeal "appellees did not seriously contest appellants' prima facie case and virtually conceded that unlawful discrimination may have been a factor in certain of the disputed employment decisions." Id. at 1077 n. 17. We therefore assumed that no legitimate nondiscriminatory reason existed, and that Day v. Mathews was the appropriate test to be applied on remand. Id.

On remand, the District Court again entered judgment for appellees. Its September 15, 1980 Memorandum Opinion ¹¹ first considered the applicability of Day v. Mathews in light of Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Burdine, decided the same day as Milton I, held that, in rebutting a prima facie case of discrimination, a Title VII defendant need only "articulate" a legitimate nondiscriminatory reason for its employment decision. The District Court held Day applicable notwithstanding Burdine, explaining that

this Circuit adhered to the standard announced in Burdine even before that case was decided; however, it is the law in this Circuit that the defendants are held to a much more stringent showing that required by Burdine if the plaintiffs have gone beyond a prima facie showing. In this instance, this Court held that plaintiffs had made an extremely strong prima facie showing. ¹²

Even under the stringent evidentiary standard of Day, however, the District Court found that appellees had borne their burden. The court found, first, that "[i]f Whelan had applied for JOA 275 she would not have been selected for the position because [based on her ratings for comparable jobs] she would not have rated high enough to be placed in the top group of applicants eligible for interview by the selecting official." Memorandum Opinion, reprinted in App. A.11. As for Milton, the District Court based its finding of a legitimate nondiscriminatory reason on her inability to answer Cisco's "management-concept" question during the selection interview. The court concluded that, because Milton "was applying for a position involving matters 'germane to program administration and management,' her ability to answer this question was obviously relevant to her capacity to function effectively in [the] position." Id. A.11-12. Pointing out that Cisco had no prior knowledge of Milton's rating score, the District Court opined that "Milton's low score in some measure corroborates the conclusion of the interviewing official that Milton was not the best qualified [candidate] ...." Id. The trial court entered judgment accordingly, and this appeal followed.

II. DISCUSSION

Appellants' sole contention is that the District Court's factual findings on remand must be reversed for lack of record evidence. Although we find that the trial judge erred in holding appellees to a "clear and convincing" burden of proof, our review of the record reveals no basis upon which to reverse the judgment of the District Court. We therefore affirm the District Court's decision.

A. The Applicable Evidentiary Standard

As we have already noted in Part I.B. supra, there remains in this case some confusion over the application of Day v. Mathews. This confusion is attributable in part to the Government's apparent concession of discrimination at the trial and on the first appeal, see Milton I, 645 F.2d at 1077 n. 17, and in part to our ambiguous instruction on the remand of this case, id. at 1079. On remand, although the Government made it clear for the first time that it never intended to concede any discrimination and that legitimate nondiscriminatory reasons existed to justify appellants' promotion denials, the District Court nevertheless read our opinion in Milton I as explicitly approving reliance on Day v. Mathews. Memorandum Opinion, reprinted in App. A. 9. We now write to clarify and to make it plain that, given the facts of this case, the District Court was in error in holding appellees to the stringent "clear and convincing" standard of proof of Day v. Mathews.

1. Allocation of Evidentiary Burdens Under Title VII: McDonnell Douglas/Burdine

The basic allocation of burdens and order of presentations of proof in a Title VII case alleging discriminatory treatment has been clearly set forth by the Supreme Court:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate,...