Harding v. Gray, 92-7211

• Decision Date: 26 November 1993
• Docket Number: No. 92-7211,92-7211
• Citation: 9 F.3d 150
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 475, 63 Empl. Prac. Dec. P 42,688, 62 USLW 2387 Casper Eugene HARDING, Appellant, v. Vincent GRAY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 150

9 F.3d 150

63 Fair Empl.Prac.Cas. (BNA) 475,

63 Empl. Prac. Dec. P 42,688, 62 USLW 2387

Casper Eugene HARDING, Appellant, v. Vincent GRAY, et al.

No. 92-7211.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 1, 1993.

Decided Nov. 26, 1993.

Appeal from the United States District Court for the District of Columbia (D.C. Civ. No. 90-1662).

Michael A. Carvin, Washington, DC, argued the cause for appellant. With him on the briefs were Michael P. McDonald and Joseph A. Shea, Jr.

Sheila Kaplan, Asst. Corp. Counsel, Washington, DC, argued the cause for appellees. With her on the brief were John Payton Corp. Counsel, Charles L. Reischel, and Janet L. Maher, Deputies Corp. Counsel.

Before: MIKVA, Chief Judge, BUCKLEY and GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

MIKVA, Chief Judge:

In this "reverse discrimination" case, we are called upon to clarify a rule that we formulated twelve years ago in Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012 (D.C.Cir.1981). In Parker, we interpreted Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. ("Title VII"), to require a plaintiff attempting to make a prima facie case of "reverse discrimination" in employment to allege "background circumstances" sufficient to raise an inference of discrimination. This case poses the question whether a plaintiff's allegation that he was better qualified than the minority candidate chosen ahead of him for promotion can constitute sufficient background circumstances to establish a prima facie case, even in the absence of any external evidence that the employer was somehow motivated or inclined to discriminate against the majority. We hold that an allegation of superior qualifications, if supported by the facts, can constitute sufficient background circumstances to establish a prima facie case. A contrary ruling would defeat the purpose of Title VII--to shield the ideal of merit-based employment from the distortions of invidious discrimination.

I. Background

Beginning in 1976, plaintiff Casper E. Harding worked as a carpenter at St. Elizabeth's Hospital in the District of Columbia ("St. Elizabeth's"), a public hospital operated by the U.S. Government. In 1986, he was promoted to "carpenter leader," a "non-supervisory position" within the Carpentry Shop of the Construction Section. Although the job was designated as non-supervisory, Mr. Harding in fact was responsible for leading a group of three or more carpenters (hence the term, "carpenter leader") on work assignments. Within the Construction Section were nine "shops," each with a separate foreman.

In 1987, the District of Columbia took over responsibility for St. Elizabeth's. The District reorganized the Construction Section, merging the Carpentry Shop and the Upholstery Shop. Robert Waid, formerly Carpentry Shop Foreman, became Carpentry/Upholstery Shop Foreman. On April 24, 1988, Mr. Waid was promoted, leaving a vacancy at the Carpentry/Upholstery Shop Foreman position. The Hospital posted a vacancy announcement on November 1, listing six qualification requirements (none physical), of which the most important was "ability to supervise." This qualification was so important as to be considered a "screen-out" requirement, meaning that any applicant without the ability to supervise would not be hired. Four candidates applied for the job: Plaintiff Casper Harding, a white man; Acquanetta Haywood-Brown, a black woman, who was employed as the Upholstery Shop Foreman; Nathaniel Cary, a black man, carpenter; and Christopher Settle, a black man, carpenter. Of these employees, only Ms. Brown held a "supervisory" position at the time of the applications.

A Qualifications Review Panel ("QRP") evaluated the candidates and rated three, Mr. Harding, Ms. Brown, and Mr. Cary, "highly qualified." Of all the candidates, Ms. Brown received the highest rating, scoring 22 of 24 possible points. Mr. Harding and Mr. Cary each received 20 points. The QRP submitted its report to Vladimir Roubachewsky, a white man, the selecting official, who interviewed the three "highly qualified" candidates. Mr. Roubachewsky selected Ms. Brown for the position. That selection was approved by Mr. Roubachewsky's supervisor, Lawrence Whitney, a white man. Ms. Brown's promotion was effective February 12, 1989.

In May 1989, Mr. Harding applied for medical disability due to osteoarthritis, a degenerative joint disease. Mr. Harding had submitted a doctor's statement of his condition (dated September 7, 1988) to his employer, and his doctor had stated that Mr. Harding's condition would worsen and that he would not be able to work as a carpenter for much longer. Mr. Harding--by then unable to bend, kneel, or lift anything above his waist, and unable to climb ladders or stairways without great pain--retired on medical disability in January, 1990.

On July 18, 1990, Mr. Harding filed this action in the United States District Court for the District of Columbia, alleging that defendants had denied him the position of Carpentry/Upholstery Shop Foreman because of his race, in violation of Title VII. Upon Defendants' motion for summary judgment, the district court dismissed this suit on the ground that Mr. Harding had failed to state a prima facie case of discrimination as required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Looking to this court's precedent interpreting the McDonnell Douglas/ Burdine standard for "reverse discrimination" cases, and particularly our opinion in Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012 (D.C.Cir.1981), the district court held that Mr. Harding had failed to plead "background circumstances" showing a likelihood of reverse discrimination. Because, according to the district court, Mr. Harding had alleged only that his qualifications were "equal to" Ms. Brown's, and because he had alleged no other facts creating an inference of discrimination, the district judge held that he had failed to meet the requisite burden.

Mr. Harding appeals. He argues that the district court mischaracterized his claim as one of "equal qualifications," when in fact Mr. Harding claimed that his qualifications were superior to Ms. Brown's. Mr. Harding argues that a claim of superior qualifications raises an inference of discrimination sufficient to state a prima facie case.

II. Discussion

For Title VII disparate treatment cases, the Supreme Court has articulated the McDonnell Douglas/ Burdine test to allocate the burdens of proof. Under this standard, the plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of unlawful discrimination. If the plaintiff makes that showing, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Finally, if the employer makes its showing, then the burden returns to the plaintiff to prove that the employer's asserted reason is pretextual. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The present case ended at the first step: the district judge found that Mr. Harding had not made his prima facie case. Accordingly, she dismissed the action without requiring Mr. Harding's employer to articulate a legitimate, nondiscriminatory reason for promoting Ms. Brown instead of Mr. Harding.

In the ordinary race discrimination case, in which a minority plaintiff accuses his employer of discriminating in favor of non-minority applicants, the Supreme Court has held that the plaintiff may make a prima facie case by showing:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). These criteria are "flexible," and must be adjusted to the facts of the case at hand. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. But the general idea is always the same: "The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1094 (emphasis added). This standard is "not onerous"; it serves only to "eliminate[ ] the most common nondiscriminatory reasons for the plaintiff's rejection," thus justifying a requirement that the employer come forward with an explanation. Id. at 253-54, 101 S.Ct. at 1093-94.

Thus, in an ordinary discrimination case, in which the plaintiff is a member of a minority group, an "inference of discrimination" arises when the employer simply passes over the plaintiff for a promotion to a position for which he is qualified. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. No such inference arises when, as in this case, the plaintiff is a white man. Invidious racial discrimination against whites is relatively uncommon in our society, and so there is nothing inherently suspicious in an employer's decision to promote a qualified minority applicant instead of a qualified white applicant. Thus, in order to establish a prima facie case under Title VII, this Court requires a white plaintiff to show additional "background circumstances [that] support the suspicion that the defendant is that unusual employer who discriminates against the majority." Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C.Cir.1981). This requirement is not designed to disadvantage the white plaintiff, who is entitled to the same Title VII protection as a...