808 F.2d 1192 (6th Cir. 1987), 86-5052, Haskins v. United States Dept. of Army

Docket Nº:86-5052.
Citation:808 F.2d 1192
Party Name:Janie L. HASKINS, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF the ARMY, Defendant-Appellee.
Case Date:January 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1192

808 F.2d 1192 (6th Cir. 1987)

Janie L. HASKINS, Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF the ARMY, Defendant-Appellee.

No. 86-5052.

United States Court of Appeals, Sixth Circuit

January 8, 1987

Argued Nov. 11, 1986.

Page 1193

Carol L. McCoy, Nashville, Tenn., Robert Belton (argued), Cambridge, Mass., for plaintiff-appellant.

Joe B. Brown, U.S. Atty., Nashville, Tenn., James C. Thomason, III (argued), for defendant-appellee.

Before KENNEDY and NORRIS, Circuit Judges and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Janie Haskins appeals from the judgment of the district court denying her request for retroactive promotion, back pay, front pay and attorney's fees in this Title VII sex discrimination suit. Appellant claims that the district court committed legal error by considering the issue of "but for" causation--i.e., whether appellant would have been promoted in the absence of discrimination--in the remedial stage of the proceedings. For the reasons which follow, we reject appellant's arguments and affirm the district court.

I

Appellant was first employed by the United States Army as a Military Pay Clerk, a GS-4 civilian position, at Fort Campbell, Kentucky. She entered the Career Intern Budget Analyst Program in 1972, and was promoted to Budget Analyst in the Management Information Systems Office, a GS-9 position, in 1975. In September 1979, a GS-11 permanent position entitled Supervisory Budget Analyst became available and appellant applied for the position.

The Personnel Office initially advertised the vacancy only among Fort Campbell personnel for two weeks. During that time four individuals, all women, applied for the position. Thereafter a selection panel reviewed the applicants as required by the Merit Placement and Promotion Plan (the Plan). On October 18, 1979, the selection panel concluded that appellant was "Highly Qualified" for the position and two of the other candidates were "Best Qualified." Under the Plan, only candidates who were ranked Best Qualified could be considered in the final selection process. The panel then submitted the names of the Best Qualified candidates to Major Wiese, the individual responsible for making the final selection decision.

Before Major Wiese made his decision, however, it was determined that the vacancy could be made available to off-post applicants as well. Major Wiese chose one of the Best Qualified female candidates to temporarily fill the position until a final selection had been made. As a result of expanding the applicant pool, two more people applied for the position, both of whom were men.

In December 1979, the candidates' applications were again submitted to the identical

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selection panel, and again appellant was only ranked as Highly Qualified. The two women who were previously selected by the panel as well as both men were ranked as Best Qualified, and their names were submitted to Major Wiese. Major Wiese selected one of the men, Mr. Beisel, to fill the GS-11 vacancy.

Appellant filed a formal complaint with the Fort Campbell Equal Employment Opportunity Office on February 15, 1980, claiming that she had been denied the promotion on the basis of her sex. The complaint was investigated by the United States Army Civilian Appellate Review Agency (USACARA); based upon USACARA's recommendations, the Army proposed a finding of no discrimination on July 15, 1980. Thereafter, appellant requested a hearing before the Equal Employment Opportunity Commission (EEOC), and a hearing was held before a Complaints Examiner on November 25, 1980.

The appellant argued before the Complaints Examiner that Mr. Beisel had been preselected for the position and that it had been predetermined that a woman would not fill the vacancy. She also maintained that her qualifications were superior to those of the other candidates, and that had the selection process not been tainted, she would have been selected to fill the vacancy.

Reviewing the evidence under the burden shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), the Complaints Examiner made several findings. First, the Examiner concluded that appellant had established a prima facie case. Second, the Examiner concluded that the Army had met its production burden of articulating legitimate, non-discriminatory reasons for its selection of Mr. Beisel. Finally, the Examiner concluded that appellant had produced sufficient evidence to establish that Beisel had in fact been preselected for the position, and that the Army's articulated reasons for selecting Beisel were pretextual. Thus, the EEOC Complaints Examiner concluded that the Army had discriminated against appellant on the basis of her sex; this conclusion was reached in spite of the Army's evidence that appellant would not have been selected even in the absence of discrimination. However, relying on Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976), the Complaints Examiner concluded that the Army had established that appellant was not entitled to a hiring order or a back pay award. Specifically, the Examiner reasoned that the evidence was "clear and convincing that even absent the impermissible discrimination, the complainant would not have been selected to fill the position."

The Complaints Examiner's findings and the USACARA's recommendations were forwarded to the Office of the Assistant Secretary of the Army (the Army), which issued a decision on July 29, 1981. The Army agreed with the Examiner's finding of discrimination and its conclusion that appellant would not have been selected even in the absence of discrimination; however, the Army concluded that appellant was entitled to an award of priority promotion and attorney's fees. Retroactive promotion and back pay were not awarded.

Appellant thereafter appealed to the EEOC's Office of Review and Appeal. The EEOC issued its final decision on August 6, 1982 which stated in relevant part:

The Commission has considered the record in its entirety and the attached decision in light of the allegations. The Commission has decided to affirm the agency's final decision as it accurately states the facts and correctly applies the pertinent principles of law.

The record reveals that apellant [sic], a female, was not selected for a position for which a male was the selectee. Whatever the relative merit of the appellant and the male selectee, when appellant competed with only female applicants for the position, she was not selected, and would not have been selected, over at least one of the other competing female applicants.

Dissatisfied with her final award, appellant filed the instant complaint on September

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8, 1982 in the United States District Court for the Middle District of Tennessee pursuant to Title VII, 42 U.S.C. Secs. 2000e et seq. In her complaint, appellant specifically requested "a judicial de novo determination of the facts," and requested that she be awarded retroactive promotion, back pay, costs and attorney's fees.

On November 25, 1983, the Army filed a motion for summary judgment with the district court. In its memorandum in support of its motion, the Army stated that in a Title VII case, the issue before the court was whether the complainant had been discriminated against. The memorandum further specified that, "[t]his issue, however, was determined in her favor by the Army and upheld on appeal by the EEOC. We do not challenge that determination. There remains only the issue of the relief to which she is entitled." The Army went on to argue that summary judgment should be granted in its favor because a Title VII complainant was not entitled to retroactive promotion and back pay once it is established that the complainant would not have been hired even in the absence of discrimination.

Appellant thereafter filed a motion for partial summary judgment requesting a finding that the Army had discriminated against her on the basis of sex. She asserted that she was entitled to a favorable judgment on the "liability issue" since the Army did not challenge the administrative determination that she had been discriminated against. She further maintained that the Army's motion for summary judgment should be denied because material questions of fact remained in dispute. Specifically, appellant asserted that she would have been promoted in the absence of discrimination because the two women who were ranked Best Qualified for the position were not serious candidates for the job and that her ratings were artifically low because the selection process was tainted.

On February 3, 1984, the district court granted appellant's motion for partial summary judgment on the question of Title VII liability since the Army had "admitted discrimination against the plaintiff." Believing that material questions of fact were in dispute regarding the appropriate relief to be granted, the district court denied the Army's summary judgment motion and set the case for trial. As should be evident from our discussion of the parties' memoranda in support of their summary judgment motions, both the Army and appellant considered the issue before the district court to be whether appellant would have been promoted in the absence of discrimination. Therefore, the parties were initially in agreement that, in order to determine whether appellant was entitled to an award of back pay and retroactive promotion, the district court must make a factual finding that the Army's discrimination was a "but for" cause in appellant's being denied the promotion in question.

A trial was held on this question on March 19-20, 1985, and the district court issued its decision on October 28, 1985. The district court made extensive findings of fact regarding the entire selection process and concluded that appellant would not have been promoted even in the absence of...

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