Emanuel v. Marsh

• Decision Date: 02 September 1987
• Docket Number: No. 86-1282,86-1282
• Citation: 828 F.2d 438
• Parties: 45 Fair Empl.Prac.Cas. 666, 44 Empl. Prac. Dec. P 37,348, 9 Fed.R.Serv.3d 166 Alston A. EMANUEL and Leon Paige, Appellants, v. John O. MARSH, Jr., Secretary of the Army, in his official capacity; Department of the Army, HQ U.S. Army Troop Support and Aviation Material Readiness Command, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 438

828 F.2d 438

45 Fair Empl.Prac.Cas. 666,

44 Empl. Prac. Dec. P 37,348, 9 Fed.R.Serv.3d 166

Alston A. EMANUEL and Leon Paige, Appellants, v. John O. MARSH, Jr., Secretary of the Army, in his official capacity; Department of the Army, HQ U.S. Army Troop Support and Aviation Material Readiness Command, Appellees.

No. 86-1282.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1987.

Decided Sept. 2, 1987.

Edward L. Welch, Edwardsville, Ill., for appellants.

Robert H. Garfield, St. Louis, Mo., for appellees.

Before HEANEY, McMILLIAN and FAGG, Circuit Judges.

McMILLIAN, Circuit Judge.

Alston A. Emanuel and Leon Paige appeal from a final judgment entered in the District Court ¹ for the Eastern District of Missouri in favor of John O. Marsh, Jr., Secretary of the Army (Army) in an action brought under 42 U.S.C. Sec. 2000e (Title VII). Emanuel v. Marsh, 628 F.Supp. 564 (E.D.Mo.1986) (1986 Memorandum and Order). Emanuel alleged that he and other black male civilian employees at the United States Army Troop Support and Aviation Materiel Readiness Command (TSARCOM) were denied promotions or deterred from applying for promotions because of racial discrimination. During the pendency of the lawsuit, Paige was substituted as class representative with the permission of the district court. Paige appeals from the district court's order denying class certification. Emanuel v. Marsh, No. 85-55C(5) (E.D.Mo. Jan. 9, 1985) (Certification Memorandum and Order).

For reversal, Emanuel argues that (1) the Army is estopped from litigating the issue of his qualifications relative to those of John Snyder, (2) the district court erred in refusing to apply a disparate impact analysis to his Title VII claim, and (3) the district court's findings are clearly erroneous. Paige argues that the district court abused its discretion in denying class certification. For the reasons discussed below, we affirm the judgment of the district court.

Background

Emanuel, a black male, was a civilian employee of the Department of the Army, employed as a packaging specialist at TSARCOM in St. Louis, Missouri. In 1975 he sought promotion to the position of Senior Staff Packaging Specialist at a GS-12 grade. The Army initially awarded the position to Snyder, a white male, who was also a packaging specialist. Emanuel subsequently filed a complaint of racial discrimination with the United States Army Civilian Appellate Review Agency (USACARA), an independent agency with the responsibility for investigating civilian employees' complaints of employment discrimination by the Army. USACARA investigated and concluded that Mervin Edwards, Emanuel's supervisor, and John Greenwell, Edwards's supervisor, had discriminated against Emanuel because of his race in denying the promotion. The Army accepted USACARA's recommendation and awarded Emanuel a retroactive promotion with backpay. Emanuel continued to be supervised by Edwards after the promotion. Snyder retained his promotion and was transferred to another Army command in the St. Louis area where he continued to work in the packaging area.

Both Snyder and Emanuel did well in their careers after 1975. Emanuel completed several job-related training courses. He also received a certificate of achievement on February 20, 1976, for saving the federal government $3,265,000, and another certificate of achievement on January 4, 1977, for saving the government $18,500. Certificates of achievement are considered relatively minor awards.

In 1978 Snyder received a Sustained Superior Performance Award, which is considered a significant and prestigious award. He was nominated for the award by Edwards who had been, but was not then, his supervisor. Greenwell, Edwards's supervisor, approved the award.

In April 1980, Edwards, then Chief of the Packaging Branch, Distribution and Transportation Division, retired. After Edwards retired, Emanuel was temporarily assigned for 30 days to the GS-13 position.

According to Army regulations, Edwards's position, a GS-13 packaging specialist, was to be filled from a list of qualified applicants supplied by the United States Army Civilian Personnel Center (CIVPERCEN) in Alexandria, Virginia. The list of qualified applicants supplied by CIVPERCEN was compiled under a career program system in which applicants submit statements of their qualifications and their interests together with ratings of their skills, knowledge, ability, and personal characteristics (SKAP). SKAP reports are usually updated annually in July, although an employee has the right to update the SKAP report at any time. Employees were also free to forego submitting an updated SKAP for one year and to continue to use the previous year's SKAP. In preparing a SKAP, the employee and his or her immediate supervisor rate the employee's performance in key areas. Neither the employee nor the immediate supervisor may give a rating higher than a "B." A higher level supervisory officer, called a reviewing officer, may upgrade an employee's SKAP ratings to an "A." A panel convened by CIVPERCEN reviews the "SKAP packages." Applicants found to be "best qualified" for positions are automatically referred to the selecting officer for consideration for those positions.

Emanuel did not update his SKAP report in 1979, but requested that his 1978 SKAP report remain valid for the next year. He testified at trial that Edwards continued as his supervisor after the 1975 promotion controversy and he believed that Edwards would give him unfairly low ratings. Emanuel and Edwards had disagreed on Emanuel's 1978 SKAP evaluation. Emanuel filed a grievance concerning the 1978 SKAP report; as a result his rating was raised to a higher level.

On the day the Army requested an applicant register from CIVPERCEN for the GS-13 supervisory position, Snyder did not have a SKAP report on file that would have permitted him to be included in the referral list. The next day, however, Snyder completed an updated SKAP report. Snyder could not recall at trial how he had learned about the vacancy in order to update his SKAP with such dispatch. Col. Michael Pepe, Snyder's reviewing officer, upgraded several of Snyder's ratings from "B" to "A" in key areas. Pepe testified that he upgraded the ratings because of Snyder's performance; Pepe did not know Emanuel, Edwards or Greenwell.

Lt. Col. Robert Straeb was the selecting official for the GS-13 supervisory position. He received an applicant register which contained four names--Emanuel, Snyder, and two other white males. Straeb testified that he compared each candidate's SKAP ratings, awards, education, training and experience. Straeb testified that Snyder's SKAP ratings were significantly superior to those of Emanuel. Snyder had "As" in five categories; the rest were "Bs." Emanuel had ten "Bs" and one "C." Straeb also testified that he was impressed by the Sustained Superior Performance Award which Snyder had received. In the areas of training and education, Straeb found Snyder and Emanuel to be roughly equal. Both had received their college training in the 1930s and 1940s. Emanuel's training and education received in 1976 and 1977 were not considered by Straeb because Emanuel failed to update his Form 2303 to reflect this additional training and education. Straeb also testified that he gave more weight to Snyder's past experience in packaging policy areas than to Emanuel's greater experience in supervision because of the requirements of the supervisory job. Straeb awarded the promotion to Snyder.

Emanuel filed a complaint of racial discrimination with USACARA. After an investigation, USACARA concluded that Emanuel had been discriminated against on the basis of his race. Specifically, USACARA concluded that Emanuel's qualifications had been improperly evaluated by the selecting official. The Army rejected this conclusion. Emanuel then filed this suit in federal district court seeking an order directing that he be promoted to the GS-13 supervisory position and awarded backpay.

Emanuel originally brought his action as a class action. When he retired and moved out of the St. Louis area, he withdrew as class representative and Paige, another black male TSARCOM civilian employee, was substituted. Paige testified at the class certification hearing that TSARCOM employs a disproportionately small number of black males at the higher GS levels. He also testified that in his experience reviewing officers never upgrade the SKAP ratings for black male employees. He admitted that he did not know whether reviewing officers regularly upgraded SKAP scores for white employees. Paige presented TSARCOM equal employment opportunity statistics in support of his claim that there was discrimination on the basis of race at TSARCOM. Paige also argued that the subjective nature of the SKAP rating system, which is the basis for promotion decisions, enables white supervisors to discriminate against black employees in awarding promotions.

The district court denied class certification on the basis that the proposed class failed to meet the "numerosity" requirement of Fed.R.Civ. 23. Certification Memorandum and Order at 2. The district court also dismissed Paige's individual claim, finding that he had no "individual fully exhausted Title VII claim." Id. at 1. Paige appealed the denial of the class certification to this court, but the appeal was dismissed for lack of jurisdiction because there was no final order. Emanuel v. Marsh, 767 F.2d 929 (8th Cir.1985). In the present appeal, Paige only challenges that part of the district court's order denying class certification.

On Emanuel's individual Title VII claim, the district court held that a prima facie case of racial discrimination had been established but concluded that the Army had rebutted the presumption of discrimination. 1986 Memorandum and Order, 628 F.Supp. at 570. The district court determined that the Army had articulated convincing non-discriminatory reasons...