705 F.2d 1364 (D.C. Cir. 1983), 81-2235, Toney v. Block

Docket Nº:81-2235.
Citation:705 F.2d 1364
Party Name:Robert J. TONEY, Appellant v. John R. BLOCK, Secretary of Agriculture, U.S. Department of Agriculture.
Case Date:April 29, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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705 F.2d 1364 (D.C. Cir. 1983)

Robert J. TONEY, Appellant


John R. BLOCK, Secretary of Agriculture, U.S. Department of Agriculture.

No. 81-2235.

United States Court of Appeals, District of Columbia Circuit.

April 29, 1983

Argued Oct. 1, 1982.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 78-1007).

Paul A. Kiefer, Washington, D.C., for appellant.

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

Before TAMM and SCALIA, Circuit Judges, and OLIVER GASCH, [*] Senior District Judge for the District of Columbia.

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SCALIA, Circuit Judge.

This case is before us for the second time. A full description of the underlying facts is set forth in our first opinion, Toney v. Bergland, 645 F.2d 1063 (D.C.Cir.1981) (per curiam), and we repeat only those elements necessary to explain our disposition of the present appeal.

Appellant Toney, an employee of the Office of Personnel ("OP") of the United States Department of Agriculture, applied for a vacancy in the Department at the next highest grade level (GS-14). When the job was ultimately awarded to a white employee, Toney, a black man, filed a formal complaint with the Department, alleging racial discrimination in violation of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(a) (Supp. IV 1980). After an investigation and a hearing, an EEO Complaints Examiner found that while the initial ranking criteria for the selection were "inherently unreasonable, and the resulting selections tainted thereby, ... the basis for these actions was not the race of the applicants as white applicants were equally disadvantaged in competing for the position." In re Toney at 3 (Jan. 28, 1979), Jt.App. at 8. She further found that the ultimate ranking process (employed after appellant protested the initial selection) inevitably placed appellant at a disadvantage vis-a-vis the individual who had been chosen the first time around; but that this disadvantage also applied to white applicants as well, and constituted "no disparate treatment." Id. On the basis, however, of statistical evidence of hirings and promotions within OP; of evidence that Mr. Toney's supervisor did not personally observe his work (and thus responded "Don't Know" in many categories of ranking evaluation) whereas the successful white applicant suffered no such disability; and of the fact that the successful white applicant and the two next best qualified white applicants had been accorded work assignments which gave them a better background than Mr. Toney; the Examiner found "that the presumption of institutional or systemic discrimination within OP has been created and that the evidence of record is not such as to overcome that presumption." Id. at 4, Jt.App. at 9. She recommended "a decision finding discrimination but no reprisal on the issues considered." Id. With regard to corrective action, she recommended as follows:

In view of the fact that the record reflects that there were available applicants who were as well qualified as the complainant, I do not find that but for the discrimination he would have been selected for the position at issue. Accordingly, I recommend that he be given priority consideration for the next GS-14 level vacancy within the agency for which he qualifies and for which he wishes to be considered, and that he be reassigned or detailed as soon as possible to give him the broader personnel experience which will enhance his chances for promotion.

Id. at 4-5, Jt.App. at 9-10. As provided in the applicable regulations, the Examiner's recommended decision became a "final decision binding on the agency" when the Department failed to issue a final decision of its own within 30 days after submission of the recommended decision. See 5 C.F.R. § 713.220(d) (1977) (current version at 29 C.F.R. § 1613.220(d) (1982)).

Appellant subsequently filed a Title VII suit in the District Court, pursuant to 42 U.S.C. § 2000e-16(c) (1976), seeking back pay and retroactive promotion. On cross-motions for summary judgment, the District Court entered judgment for the Department, on the ground that the undisputed factual record established by clear and convincing evidence that Toney would not have been selected for the position in question even absent discrimination. Toney v. Bergland, Civ.Action No. 78-1007 (D.D.C. Sept. 14, 1979). This court reversed and remanded, finding that "[t]he administrative record ... does not foreclose any dispute" regarding that point. Toney v. Bergland, supra, 645 F.2d at 1067. On remand,

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the District Court found, after two days of testimony, that "race was not a factor in the [promotion] decision"; that although a prima facie case of discrimination had been presented, the defendant had "clearly articulated legitimate nondiscriminatory reasons for not selecting Toney"; and that "Toney ha[d] not proven discriminatory intent or pretext" as required by the three-stage test enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It further found that, "[e]ven assuming that there was discrimination, ... the defendant has demonstrated by clear and convincing evidence that Toney would not have been selected." Toney v. Bergland, Civ.Action No. 78-1007 at 6-7 (D.D.C. Oct. 9, 1981).

A preliminary issue concerns the binding effect in this proceeding of the finding of discrimination made by the EEO Complaints Examiner. That issue was not presented in the earlier appeal, since the Department had stipulated the point for purposes of the summary judgment. See 645 F.2d at 1065. Unquestionably, the Examiner's findings are not binding upon the appellant, since it is clear that he is entitled to a trial de novo. See Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Appellant asserts, however, that the agency stands in a different position, because of the regulation making the Examiner's decision a "final decision binding on the agency." We find it unnecessary to resolve this question, since even if the Examiner's discrimination finding were conclusive, it would establish no more than a prima facie case, which the District Court specifically found to have been adequately met by the defendant's evidence.

Appellant asserts that the discrimination finding triggered application of the principle enunciated by this court in Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam), whereby, once discrimination is established, the burden shifts to the employer to show, by "clear and convincing evidence," that the discrimination was not the effective cause of the adverse employment decision. The District Court rejected this argument, and rightly so.

The Examiner's opinion did not find discrimination to have been a factor in the promotion decision at issue here. To the contrary, it found that the basis for any defects in that decision-making process "was not race," and that "there was no disparate treatment." The portion of the opinion recommending "a decision finding discrimination" referred to the "institutional or systemic discrimination" identified in the immediately preceding sentence--or at most (though it would have extremely fragile support) to a finding of discrimination against Toney himself with regard to the manner in which his work in OP had been supervised and with regard to the work assignments he had been given, rather than with regard to the evaluation of his qualifications for the vacant position.

Appellant's reliance upon Day v. Mathews is therefore misplaced. That case involved a situation in which the plaintiff had established that unlawful discrimination had been applied against him in the particular employment decision for which retroactive relief was sought. We held that in such circumstances it is unreasonable and destructive of the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in his favor. We chose instead to place the burden upon the employer to show, by "clear and convincing evidence," that the unlawful factor was not the determinative one. It is fundamentally different, however, to assert that where the existence of unlawful discrimination has been established only within the employment unit at large (or perhaps against the employee in regard to some other aspect of his employment) and has not been specifically attributed to the employment decision of which the plaintiff complains, we will both find discrimination to have been a factor and find that factor to have been determinative unless the employer makes the extraordinary and difficult Day v. Mathews showing. The difference between Day and the present case is the difference between making

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the employer demonstrate (by clear and convincing evidence) that a cause established through normal processes of proof was not an efficacious one, and making him demonstrate that the cause itself did not exist.

The error of appellant's position is evident from the Supreme Court's most recent pronouncement in this field. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), described the shifting of the burden of production that occurs in the typical Title VII proceeding:

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...

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