764 F.2d 1279 (9th Cir. 1985), 83-3697, Kimbrough v. Secretary of United States Air Force

Docket Nº:83-3697.
Citation:764 F.2d 1279
Party Name:Annie Laura KIMBROUGH, Plaintiff/Appellee, v. SECRETARY OF the UNITED STATES AIR FORCE, Defendant/Appellant.
Case Date:June 28, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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764 F.2d 1279 (9th Cir. 1985)

Annie Laura KIMBROUGH, Plaintiff/Appellee,



No. 83-3697.

United States Court of Appeals, Ninth Circuit

June 28, 1985

Argued and Submitted March 4, 1985.

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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.


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

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

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.


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...

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