Cotton v. City of Alameda, 85-2812

• Citation: 812 F.2d 1245
• Decision Date: 19 March 1987
• Docket Number: No. 85-2812,85-2812
• Parties: 43 Fair Empl.Prac.Cas. 528, 42 Empl. Prac. Dec. P 36,936 Luther C. COTTON, Plaintiff-Appellant, v. The CITY OF ALAMEDA, a California State Municipality, Alameda Police Department, Robert M. Shiells, an individual, Does I through X, inclusive, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1245

812 F.2d 1245

43 Fair Empl.Prac.Cas. 528,

42 Empl. Prac. Dec. P 36,936

Luther C. COTTON, Plaintiff-Appellant, v. The CITY OF ALAMEDA, a California State Municipality Alameda Police Department, Robert M. Shiells, an individual, Does I through X, inclusive Defendants-Appellees.

No. 85-2812.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 9, 1986.

Decided March 19, 1987.

Raul V. Aguilar, San Francisco, Cal., for plaintiff-appellant.

Carter J. Stroud, Alameda, Cal., for defendants-appellees.

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

Before WALLACE, POOLE and WIGGINS, Circuit Judges.

WALLACE, Circuit Judge:

Cotton appeals the district court's order granting summary judgment in favor of the City of Alameda, its police department, and its chief of police (Alameda) on Cotton's age discrimination claim brought pursuant to the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621-634. The district court concluded that Alameda produced evidence that it had legitimate, nondiscriminatory reasons for not hiring Cotton, and that Cotton had failed to produce evidence that these reasons were a pretext for discrimination. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

Cotton is a 47 year old police officer with the Bay Area Rapid Transit (BART) police department. In the fall of 1981, he applied for a position with the Alameda police department and passed the structured oral examination with a score of 66.71%. Nevertheless, in January 1982, he signed a waiver removing his name from the eligibility list. Cotton applied again in March 1983, but failed to achieve a passing score of 60%. He applied for a third time in July 1983, this time passing with a 65% score. Alameda conducted a background investigation on Cotton. Although Alameda did not hire Cotton, it did hire seven other applicants with higher test scores. In April 1984, Cotton applied a fourth time, scored 62.50%, and was placed on the eligibility list. Again, Alameda hired four applicants with higher scores, but did not hire Cotton.

On November 1, 1984, Cotton filed a complaint in federal district court alleging age discrimination in violation of ADEA and state law. Alameda moved for summary judgment on the ground that it had stated legitimate reasons for not hiring Cotton and Cotton had not produced any evidence that the reasons were a pretext for discrimination. The district court granted this motion for summary judgment and then dismissed the pendent state law claims. We review de novo the decision to grant summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

II

Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire ... any individual [who is at least 40 years of age but less than 70] ... because of such individual's age." 29 U.S.C. Secs. 623(a), 631(a). A litigant can establish a violation of ADEA using either of two related theories: he can show disparate treatment--that he suffered intentional discrimination in employment because of his age, or he can show an adverse or disparate impact--that facially neutral employment practices in fact treated more harshly employees in the protected age group. See Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1455-56 (9th Cir.1985) (Sakellar ), cert. denied, --- U.S. ----, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986). The district court liberally construed Cotton's arguments as stating disparate treatment and disparate impact theories. We consider each theory in turn.

A.

To establish a prima facie ADEA case under the disparate impact theory, "a plaintiff must show that a neutral practice had a significant discriminatory impact upon a protected class," Sakellar, 765 F.2d at 1456, of which the plaintiff is a member. Since our focus is on the consequences of employer action, statistical evidence usually provides the only rational means of determining whether a facially neutral employment practice had a discriminatory impact.

Cotton challenges Alameda's practice of bifurcating the application process. Alameda processed applicants who were employed for a year or more by another police department as "lateral" applicants and all others as "entry level" applicants. Lateral applicants were treated in all respects like entry level applicants, except that lateral applicants were not required to pass the written test and the writing skills test, and were given a different version of the structured oral examination. Following the administration of the oral examination, Alameda prepared separate lists ranking the lateral and entry level applicants according to their test scores. The lists were effectively combined, however. Alameda first evaluated for employment those applicants with the highest test scores. A lateral applicant with a given test score was considered only after all lateral and entry level applicants with higher scores had been evaluated, but before any applicant with lower scores was considered.

Cotton contends that lateral applicants as a group must be older than entry level applicants and that Alameda did not hire lateral applicants as frequently as entry level applicants. Therefore, he argues, a genuine issue of material fact exists as to whether the bifurcated process had a disparate impact on older applicants. We conclude, however, that the evidence does not establish a prima facie case of disparate impact. First, Cotton has produced no statistical evidence with respect to applicants over age 40. The record permits us to conclude only that Alameda had at least one lateral applicant over age 40, namely Cotton. Cotton has provided no evidence with respect to the ages of other lateral and entry level applicants. We cannot draw any conclusions from a statistical base of one. Second, even if we accept Cotton's unsupported assertion that lateral applicants are older than entry level applicants, the only statistical evidence presented suggests that the bifurcated application process did not adversely impact the older group. During the relevant period, Alameda hired 8% of the lateral applicants, but only 2% of the entry level applicants.

We conclude that Cotton has not raised a genuine issue with respect to whether Alameda's bifurcated application scheme adversely impacted older applicants. Therefore, the district court properly granted summary judgment on the disparate impact theory.

B.

To prevail on a disparate treatment theory, a plaintiff must prove intentional discrimination. A plaintiff makes out a prima facie case of intentional discrimination under the ADEA if he demonstrates that he was within the protected class of individuals between forty and seventy years of age, that he applied for a position for which he was qualified, and that a younger person with similar qualifications received the position. Sakellar, 765 F.2d at 1455. Establishing a prima facie case raises an inference of discrimination which the employer can rebut by demonstrating that it had a legitimate, nondiscriminatory reason for its decision. Id. The plaintiff then must come forward with evidence that the employer's reason is a mere pretext to conceal its discriminatory motive. Id.

Alameda assumed for purposes of its summary judgment motion that Cotton could make out a prima facie case. Alameda, however, presented three reasons for not hiring Cotton: (1) Cotton had an unstable employment history, (2) candidates more promising than Cotton were available, and (3) Alameda did not receive encouraging reports from those who had worked with Cotton. No one disputes that these are legitimate, nondiscriminatory reasons. All argument has therefore focused on whether these reasons are credible or instead merely pretexts. A plaintiff can show pretext in two ways, "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Burdine). Of course, a motion for summary judgment does not require a plaintiff to prove that the employer's reasons are pretextual. Rather, he need only "tender a genuine issue of material fact as to pretext in order to avoid summary judgment." Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). To do so, he must "produce 'specific facts showing that there remains a genuine factual issue for trial' and evidence 'significantly probative as to any [material] fact claimed to be disputed.' " Id., quoting Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980).

We begin by considering the direct evidence avenue for showing pretext. Cotton's only direct evidence of discrimination relates to Alameda's past employment policies. Prior to 1979, Alameda considered age to be a job related requirement for police officers and...