Kimbrough v. Secretary of U.S. Air Force

Citation764 F.2d 1279
Decision Date28 June 1985
Docket NumberNo. 83-3697,83-3697
Parties38 Fair Empl.Prac.Cas. 383, 37 Empl. Prac. Dec. P 35,332 Annie Laura KIMBROUGH, Plaintiff/Appellee, v. SECRETARY OF the UNITED STATES AIR FORCE, Defendant/Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Neil Hoff, Tacoma, Wash., for plaintiff/appellee.

Christopher L. Pickrell, Asst. U.S. Atty., Seattle, Wash., for defendant/appellant.

Appeal from the United States District Court for the Western District of Washington.

Before FARRIS, ALARCON and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

In January of 1980, the U.S. Air Force rejected the application of Annie Laura Kimbrough, a black woman who held a GS-4 level supply clerk position, for promotion to a GS-6 level supervisory opening. Kimbrough alleged, and the district court found after a full trial, that she was rejected because of her race in violation of Title VII, 42 U.S.C. Sec. 2000e-2(a)(1). The Air Force contends that the promotion simply went to a more qualified, white, female applicant.

I.

Annie Laura Kimbrough, a 51-year-old black woman who had been employed by the government since 1950, worked at McChord AFB in Tacoma, Washington. She had applied for, but failed to achieve, several promotions while at McChord. In 1978, Kimbrough complained that racial discrimination caused the Air Force to deny her a promotion for which she was qualified. After pursuing her administrative remedies, Kimbrough sued the Air Force under Title VII. The district court found The trial court was presented with vast amounts of conflicting evidence concerning the promotion selection process. Out of this mass of contradictory evidence, the district court found that Kimbrough proved her case of disparate treatment. The court based this finding on many factors, including: Kimbrough's qualification for the job; Col. Witt's telephone call to his subordinate, Capt. Dehler, exerting "command influence" over the selection for the job; Col. Witt's subsequent call to Kimbrough to pressure her to withdraw her application; Capt. Dehler's decision to meet with the former supply clerks only after the colonel's call; Capt. Dehler's misstatement of the former supply clerks' consensus as to the job's requirements; Capt. Dehler's disregard for the recommendation of his advisor, Master Sergeant Solomon, a black man, that Kimbrough was most qualified for the job; Capt. Dehler's comments that Kimbrough just sat there like a lump and that he had a gut feeling that she was wrong for the job; and Col. Witt's general lack of credibility, based in part on his denial of any knowledge that Kimbrough had previously filed a discrimination complaint that would have critically affected his career. The Air Force appeals.

that the Air Force intentionally discriminated against Kimbrough because she was black.

II.

The Air Force claims that Kimbrough presented insufficient evidence of discrimination to support the district court's finding of disparate treatment. After a Title VII case is fully tried, we review the decision under the clearly erroneous standard applicable to factual determinations. Anderson v. City of Bessemer, --- U.S. ----, ---- - ----, 105 S.Ct. 1504, 1510-11, 84 L.Ed.2d 518 (1985); Casillas v. United States Navy, 735 F.2d 338, 343 (9th Cir.1984). Accord U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (discrimination is an ultimate question of fact). This case was fully tried. The court found that "the reasons set forth by the defendant in this case were pretextual." Thus, the clearly erroneous standard of review applies.

We hold that the district court's finding of discrimination was not clearly erroneous. The court found that although Capt. Dehler embarked on his task of seeking a qualified replacement for the supervisory position fairly, subsequent events rendered his decision discriminatory. The parties stipulated that Kimbrough qualified for the job. At the conclusion of the interviews, however, Col. Witt intervened in this supply clerk promotion decision. The court found that Capt. Dehler must have told Witt that Kimbrough was the leading candidate, and that Col. Witt's subsequent actions responded to that. Col. Witt's conversation with Capt. Dehler amounted to "command influence" over the promotion decision in a manner that was outside of the normal operating procedures. Col. Witt also spoke directly to Kimbrough the next morning claiming to express "Christian" concern over her health. The court, however, found that Col. Witt was really pressuring Kimbrough to withdraw her application. Capt. Dehler then disregarded the advice of Master Sergeant Solomon about choosing Kimbrough (which Capt. Dehler was free to do); succumbed to the command influence exerted by Col. Witt; changed his understanding of the job qualifications from primarily technical expertise to primarily managerial expertise; and chose a white applicant over Kimbrough for the promotion. In addition, the court found that Capt. Dehler's comments about Kimbrough "sitting like a lump" and his "gut feeling" towards her inability to do the job provided inferential evidence of discriminatory intent. The court declined to give credence to many of Col. Witt's statements; apparently the court doubted Col. Witt's credibility, in part, because of the conflicting evidence about his claim that he did not know of Kimbrough's previous discrimination charge. The court declined to give credence to some of Capt. Dehler's testimony, in part, because of the conflicting These findings on credibility, facts, and inferences to be drawn from conflicting evidence are most properly resolved by the trier of fact. City of Bessemer, --- U.S. at ---- - ----, 105 S.Ct. at 1510-15. Gay v. Waiter's and Dairy Lunchmen's Union Local No. 30, 694 F.2d 531, 545 n. 13 (9th Cir.1982). The findings are not clearly erroneous.

evidence about whether Capt. Dehler received a consensus from the former supervisors over the amount of managerial expertise necessary for the job.

III.

The Air Force also claims that the district court erred on several evidentiary rulings. We review evidentiary rulings for abuse of discretion. Keogh v. Commissioner, 713 F.2d 496, 499 (9th Cir.1983). We have reviewed the Air Force's assertions of error and we find no abuse of discretion and no impingement upon any substantial right of the Air Force.

IV.

The Air Force next contends that the district court erroneously shifted to it the ultimate burden of persuasion that it lacked discriminatory intent. Allocating the burdens and order of presentation of proof is a legal question. Aikens, 103 S.Ct. at 1482 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 at 260 n. 12, 101 S.Ct. 1089 at 1097 n. 12, 67 L.Ed.2d 207 (Tex.1981). Thus, it is reviewable de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We hold that the district court allocated the burdens of proof and persuasion correctly.

The Air Force points to no language in the district court's oral decision or written supplemental findings of fact that depicts a shifting of the burden of persuasion to defendant. Cf. White v. Washington Public Power Supply System, 692 F.2d 1286, 1288 (9th Cir.1982). The Air Force asserts, however, that the district court implicitly shifted the burden by: (1) treating subjective promotion criteria as discriminatory per se; (2) insisting that defendant show that the promotion procedure used was authorized; and (3) "an implicit shifting to defendant of the burden of proving that each of the various factors was not the reason for the promotion decision."

As to their first contention, the district court did not treat subjective criteria as per se evidence of discrimination. The district court noted only that it could not credit Col. Witt's and Capt. Dehler's proffered explanations for their hiring decision. The court also found that, contrary to the Air Force's evidence, no consensus existed among the former supply supervisors as to the degree of managerial skill needed to enter the job. It also found that Capt. Dehler's subjective attitude towards Kimbrough, as evidenced by his comments that she sat there like a lump and that he had a gut feeling about her, contradicted the actual evidence that Kimbrough had achieved recognition in her clerical position. Thus, the Air Force's factual assertion that the court treated subjective promotion criteria as discriminatory per se is incorrect. The court considered a variety of factors before concluding that discrimination existed.

The Air Force's contentions (2) and (3), above, amount to arguments that the district court impermissibly shifted to it the burden of disproving discrimination. We therefore review, briefly, the appropriate allocation of the burdens of proof and persuasion and the methods by which the ultimate task of persuasion may be accomplished.

The burden of proof in Title VII disparate treatment cases is allocated as follows:

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, nondiscriminatory reason for the employee's rejection." ... Third, should the defendant carry this burden, the plaintiff must then have an Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981) (citations omitted). Accord Aikens, 103 S.Ct. 1478; Casillas, 735 F.2d at 343.

opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

In this case, the parties stipulated that the plaintiff had proved her prima facie case. Thus, Kimbrough established a ...

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