Casillas v. U.S. Navy

• Decision Date: 18 May 1984
• Docket Number: No. 83-5808,83-5808
• Parties: 34 Fair Empl.Prac.Cas. 1493, 34 Empl. Prac. Dec. P 34,394 Joe D. CASILLAS, Plaintiff-Appellant, v. UNITED STATES NAVY; Edward Hidalgo, Secretary of the Navy, Captain John J. Kirkpatric, Commanding Officer Naval Air Rework Facility, San Diego, Calif., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 338

735 F.2d 338

34 Fair Empl.Prac.Cas. 1493,

34 Empl. Prac. Dec. P 34,394

Joe D. CASILLAS, Plaintiff-Appellant, v. UNITED STATES NAVY; Edward Hidalgo, Secretary of the Navy Captain John J. Kirkpatric, Commanding Officer Naval Air Rework Facility, San Diego Calif., Defendants-Appellees.

No. 83-5808.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1984.

Decided May 18, 1984.

Sergio Luis Lopez, San Diego, Cal., for plaintiff-appellant.

Michael E. Quinton, Asst. U.S. Atty., San Diego, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE and ALARCON, Circuit Judges, and MARQUEZ, ^* District Judge.

WALLACE, Circuit Judge:

Casillas sued the United States Navy, and others, for refusing to promote him because of his national origin (Hispanic or Mexican). In a pretrial stipulation, Casillas dismissed all defendants from the complaint except for the Secretary of the Navy (Secretary). The parties agreed to try the case before a magistrate. The magistrate found the Secretary not liable under Title VII, as amended, 42 U.S.C. Sec. 2000e et seq. We have jurisdiction over Casillas's timely appeal under 28 U.S.C. Sec. 1291, and affirm.

I

Casillas has a Bachelor of Science degree in Industrial Management and is a registered industrial engineer in California. He works at the Naval Air Rework Facility (NARF) at North Island in San Diego, a large military-industrial complex owned and operated by the United States Navy. In 1948, with three years in the Air Force behind him, Casillas started at NARF as an electrician's helper. Moving out of direct production activities by 1952, Casillas progressed through various NARF jobs until 1956, when he resigned, having risen to the GS-7 level. After a brief stint at an aerospace firm, Casillas returned to NARF late in 1956 to do production support and industrial engineering type activities. He again left NARF, at the GS-11 level in September 1964, to work for the Office of Economic Opportunity (OEO), for San Diego's Mayor, and again for the OEO, where he had achieved a GS-16 job as Deputy Regional Director by February 1973. Casillas joined NARF, for the third time, in 1974, as a Spanish-Speaking Coordinator (GS-9) and became a Deputy Equal Employment Opportunity Officer (GS-12) by August 1975.

Casillas applied for promotion to Production Superintendent (GS-13), the job at issue here, in February 1976, responding to a job announcement posted that January. He submitted form SF-171, including a supervisory experience statement along with 20 additional pages of information. Although initially found ineligible to apply, Casillas was eventually placed on a list of eligible candidates.

NARF's three-step promotion procedure for supervisory positions graded GS-9 or higher is governed by a merit promotion instructions system called "NASNI/NAVAIREWORKFACINST 12340.3G." The system is composed of: (1) a ratings panel; (2) an advisory panel; and (3) a selecting official. The ratings panel chooses "highly qualified" applicants from the pool of eligibles and the advisory panel then recommends at least two of those to the Selecting Official.

Omelina, the Selecting Official, designated the two-person rating panel which subsequently ranked Casillas only "qualified," thus not available for the next stage of consideration. Casillas applied for rerating and was ultimately ranked "highly qualified" by a new ratings panel with one of the persons changed. Ratings panels grade the applications pursuant to a job element crediting plan, evaluating each applicant and his experience vis-a-vis the job's requirements. The new person on the second panel testified that he personally viewed certain aspects of Casillas's experience to be more valuable than the previous panel member had.

Omelina then selected a seven-person advisory panel of senior managers with extensive NARF experience to consider the ten "highly qualified" applicants including Casillas. The panel's chairman was a Navy Commissioned Officer and test pilot for NARF's final product who knew NARF intimately as well as NARF's and the Navy's equal employment opportunity objectives. Advisory panel members were not provided with the ratings panel's ranking of the candidates. Although the advisory panel did not receive explicit written selection instructions, Omelina orally advised the panel to select the best qualified people, using its own judgment. The panel interviewed each applicant, then its members individually and collectively assessed the applications and supplements, until some consensus arose as to the best, in this case, three of the ten. These three persons were then recommended to Omelina for the two available Production Superintendent positions. The advisory panel kept no notes or memoranda and issued no reasons for non-promotion to the applicants.

Casillas was not among the three candidates the advisory panel recommended to Omelina. Two non-Hispanic or non-Mexican white males ultimately were promoted to the GS-13 jobs. Casillas believed he was more qualified than those men, neither of whom had as much formal school as he, and complained to NARF's Commanding Officer. His complaint asserted that, although he was better qualified, he was wrongfully not promoted because the panel failed to consider his "non-production family" experience. In December 1977, Casillas requested a hearing before the Civil Service Commission Complaints Examiner, who recommended a finding of no discrimination. The Secretary concurred in that decision and, on appeal in August 1980, the EEOC found the Navy to have articulated valid, sufficiently work-related reasons.

The Equal Employment Opportunity counselor investigating the matter had recommended a lateral transfer to a production department, where Casillas could secure the specific experience necessary to compete successfully for the Production Superintendent job. In September 1979, Casillas ultimately was promoted to a comparable position at level GS-13.

Casillas filed this Title VII suit in October 1980, for declaratory and injunctive relief and damages, claiming that the Secretary discriminated against him because of his national origin, race, and color by refusing to promote him to GS-13 in 1976. Specifically, Casillas challenges the advisory panel's role in the merit promotion system. He claims the panel utilized non-job-related, vague and subjective criteria and that the Navy's use of subjective criteria was really a pretext concealing discrimination against him, but he disputes the validity of none of the Navy's actual testing procedures.

II

Title VII cases consider whether an employer treated certain employees "less favorably than others because of their race, color, religion, sex, or national origin." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Aggrieved employees may show intentional discrimination under the disparate treatment model or may demonstrate disproportionate impact of an objective employment policy as a proxy for intent, under the disparate impact model. See, e.g., United States Postal Service Board of Governors v. Aikens, --- U.S. ----, 103 S.Ct. 1478, 1481 n. 1, 75 L.Ed.2d 403 (1983) (Aikens ). There is some confusion in the record as to whether Casillas relied on the disparate impact model because he presented some evidence which could relate to disparate impact. Although not determinative alone, admissible impact evidence can be relevant, though often weak, circumstantial evidence of discriminatory intent. See, e.g., Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 552-53 (9th Cir.1982). The present case was tried under the disparate treatment theory, and the trial court's findings went to the treatment theory. Casillas's appeal deals with whether he has established racially based disparate treatment by proving the Navy's discriminatory animus with either direct or circumstantial evidence, Aikens, 103 S.Ct. at 1481 n. 3. We therefore analyze the case under the disparate treatment model.

"The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the [Title VII] plaintiff." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (Burdine ). "[T]he district court must decide which party's explanation of the employer's motivation it believes." Aikens, 103 S.Ct. at 1482. We will reverse that factual determination only if it is clearly erroneous. See Fed.R.Civ.P. 52(a). More than mere lip service to this standard requires that we hold a finding clearly erroneous only "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed," United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); cf. Pullman-Standard v. Swint, 456 U.S. 273, 291-92, 102 S.Ct. 1781, 1791-92, 72 L.Ed.2d 66 (1982) (examining Sec. 703(h) of Title VII), and we will not ransack the record, searching for mistakes.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (McDonnell Douglas ), the Supreme Court originally "set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment," Burdine, 450 U.S. at 252, 101 S.Ct. at 1093. In Aikens, the Court recently refined the three-part analytic framework established in McDonnell Douglas and provided a simplified and common sense approach to these sensitive and difficult issues.

Plaintiffs must establish a prima facie case by a preponderance of the evidence, Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94, identifying the discriminatory criterion "as the likely reason for the denial of a job...