Fragante v. City and County of Honolulu

• Citation: 888 F.2d 591
• Decision Date: 23 October 1989
• Docket Number: No. 87-2921,87-2921
• Parties: 49 Fair Empl.Prac.Cas. 437, 51 Fair Empl.Prac.Cas. 190, 104 A.L.R.Fed. 801, 49 Empl. Prac. Dec. P 38,783, 52 Empl. Prac. Dec. P 39,472, 57 USLW 2557 Manuel T. FRAGANTE, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Eileen Anderson; Peter Leong; Dennis Kamimura; George Kuwahara; Kalani McCandless, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 591

888 F.2d 591

49 Fair Empl.Prac.Cas. 437,

51 Fair Empl.Prac.Cas. 190,

104 A.L.R.Fed. 801, 49 Empl. Prac. Dec. P 38,783,

52 Empl. Prac. Dec. P 39,472, 57 USLW 2557

Manuel T. FRAGANTE, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Eileen Anderson; Peter Leong Dennis Kamimura; George Kuwahara; Kalani McCandless, Defendants-Appellees.

No. 87-2921.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 17, 1988.

Decided March 6, 1989.

Amended Oct. 23, 1989.

William D. Hushijo and Mari J. Matsuda, Honolulu, Hawaii for plaintiff/appellant.

Gilbert C. Doles, Deputy Corporate Counsel, City & County of Honolulu, Hawaii, for defendants/appellees.

Susan Buckingham Reilly, Asst. Gen. Counsel, Equal Opportunity Com'n, Washington, D.C., and Jose Roberto Juarez, Jr., Mexican American Legal Defense and Educational Fund, for amici.

Appeal from the United States District Court for the District of Hawaii.

Before O'SCANNLAIN and TROTT, Circuit Judges, and KAY ^*, District Judge.

TROTT, Circuit Judge:

Manuel Fragante applied for a clerk's job with the City and County of Honolulu (Defendants). Although he placed high enough on a civil service eligible list to be chosen for the position, he was not selected because of a perceived deficiency in relevant oral communication skills caused by his "heavy Filipino accent." Fragante brought suit, alleging that the defendants discriminated against him on the basis of his national origin, in violation of Title VII of the Civil Rights Act. At the conclusion of a trial, the district court found that the oral ability to communicate effectively and clearly was a legitimate occupational qualification for the job in question. This finding was based on the court's understanding that an important aspect of defendant's business--for which a clerk would be responsible--involved the providing of services and assistance to the general public. The court also found that defendant's failure to hire Fragante was explained by his deficiencies in the area of oral communication, not because of his national origin. Finding no proof of a discriminatory intent or motive by the defendant, the court dismissed Fragante's complaint, 699 F.Supp. 1429, and he appeals. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I FACTS

In April 1981, at the age of sixty, Fragante emigrated from the Philippines to Hawaii. In response to a newspaper ad, he applied in November of 1981 for the job at issue in this appeal--an entry level Civil Service Clerk SR-8 job for the City of Honolulu's Division of Motor Vehicles and Licensing. The SR-8 clerk position involved such tasks as filing, processing mail, cashiering, orally providing routine information to the "sometimes contentious" public over the telephone and at an information counter, and obtaining supplies. Fragante scored the highest of 721 test takers on the written SR-8 Civil Service Examination which tested, among other things, word usage, grammar and spelling. Accordingly, he was ranked first on a certified list of eligibles for two SR-8 clerk positions, an achievement of which he is understandably quite proud.

Fragante then was interviewed in the normal course of the selection process--as were other applicants--by George Kuwahara, the assistant licensing administrator, and Kalani McCandless, the division secretary. Both Kuwahara and McCandless were personally familiar with the demands of the position at issue, and both had extensive experience interviewing applicants to the division. During the interview, Kuwahara stressed that the position involved constant public contact and that the ability to speak clearly was one of the most important skills required for the position.

Both Kuwahara and McCandless had difficulty understanding Fragante due to his pronounced Filipino accent, and they determined on the basis of the oral interview that he would be difficult to understand Under the city's civil service rules, the Department of Motor Vehicles and Licensing, as the appointing authority, is allowed discretion in selecting applicants for the clerk vacancies. City Civil Service Rule 4.2(d) allows the defendants to select any of the top five eligibles without regard to their rank order. ¹ The essence of this rule was clearly stated in the employment announcement posted for the SR-8 position:

both at the information counter and over the telephone. Accordingly, both interviewers gave Fragante a negative recommendation. They noted he had a very pronounced accent and was difficult to understand. It was their judgment that this would interfere with his performance of certain aspects of the job. As a consequence, Mr. Fragante dropped from number one to number three on the list of eligibles for the position.

The names of the "top five" qualified applicants with the highest examination grades will be referred to the employing agency in the order of their examination grade and availability for employment according to Civil Service Rules. The employing agency may select any one of the eligibles referred. Those not selected will remain on the list for at least one year for future referrals.

In accord with this process, the two other applicants who were judged more qualified than Fragante and who therefore placed higher than he on the final list got the two available jobs, and he was so notified by mail.

After exhausting administrative remedies, Fragante filed a claim under Title VII of the Civil Rights Act against the City and County of Honolulu, alleging he was discriminated against because of his accent. The district court relied on the results of the oral interview and found that Fragante's oral skills were "hampered by his accent or manner of speaking." The court found no evidence of unlawful discrimination in violation of Title VII, concluding that Fragante lacked the "bona fide occupational requirement" ² of being able to communicate effectively with the public, and dismissed his claim.

II DISCUSSION

The ultimate question of discrimination is generally considered a finding of fact subject on review to the clearly erroneous standard. United States Postal Service v. Aiken, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Alaniz v. California Processors, Inc., 785 F.2d 1412, 1416 (9th Cir.1986). However, such findings based on an erroneous application of law are reviewable as questions of law. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Alaniz, 785 F.2d at 1416.

Title VII prohibits employment discrimination on the basis of race, color, sex, religion and national origin. 42 U.S.C. Sec. 2000e-2(a)(1) (1982). A plaintiff may bring an action against an employer under a disparate treatment and/or disparate impact theory. Fragante's action was brought under the disparate treatment theory.

In disparate treatment cases, the employer is normally alleged to have "treat[ed] a person less favorably than others because of the person's race, color, religion, sex, or national origin...." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The plaintiff has the initial burden in such a case of proving by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

To establish a prima facie case of disparate treatment, the plaintiff must offer evidence that "give[s] rise to an inference of unlawful discrimination." Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir.1987) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Plaintiffs commonly prove a prima facie case by showing that the four factors set forth in McDonnell Douglas are present. To accomplish this, a plaintiff such as Fragante must show: (1) that he has an identifiable national origin; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. Id. "Title VII's nature and purpose require that the McDonnell Douglas test be flexible." Spaulding v. University of Washington, 740 F.2d 686, 700 (9th Cir.), cert. denied 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). The burden of establishing a prima facie case for disparate treatment is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. A determination of whether a plaintiff establishes a prima facie case will depend on the facts of each case. Id.

Once the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by "articulating some legitimate, nondiscriminatory reason" for the adverse action. Id. at 254, 101 S.Ct. at 1094. After the employer presents legitimate reasons for plaintiff's non-selection, the burden shifts to the plaintiff, and he must show--if he can--that the employer's purported reason for non-selection was "a pretext for invidious discrimination". Id. at 252-53, 101 S.Ct. at 1093. To succeed in carrying the ultimate burden of proving intentional discrimination, a plaintiff may establish a pretext either directly, by showing that the employer was more likely motivated by a discriminatory reason, or indirectly, by showing the employer's proffered reason is unworthy of credence. Id. at 256, 101 S.Ct. at 1095.

A. Prima Facie Case

Defendants first argue Fragante failed to meet his burden of proving a prima facie case because he failed to show he was actually qualified for the SR-8 clerk position, a position which requires the applicant to be able to communicate clearly and effectively. Fragante, on the other hand, contends he was qualified for the position. As proof he...