Arnold v. U.S. Postal Service

• Decision Date: 20 December 1988
• Docket Number: 87-5362,Nos. 87-5361,s. 87-5361
• Citation: 863 F.2d 994
• Parties: 48 Fair Empl.Prac.Cas. 930, 48 Empl. Prac. Dec. P 38,507, 274 U.S.App.D.C. 305, 57 USLW 2419 Clyde J. ARNOLD, Jr., et al. v. UNITED STATES POSTAL SERVICE, Appellant. Charles Ray NETHERTON, as class agent v. UNITED STATES POSTAL SERVICE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 994

863 F.2d 994

48 Fair Empl.Prac.Cas. 930,

48 Empl. Prac. Dec. P 38,507, 274 U.S.App.D.C. 305,

57 USLW 2419

Clyde J. ARNOLD, Jr., et al. v. UNITED STATES POSTAL SERVICE, Appellant.

Charles Ray NETHERTON, as class agent v. UNITED STATES POSTAL SERVICE, Appellant.

Nos. 87-5361, 87-5362.

United States Court of Appeals, District of Columbia Circuit.

Argued May 17, 1988.

Decided Dec. 20, 1988.

Wilma A. Lewis, Asst. U.S. Atty., Washington, D.C., with whom William Bradford Reynolds, Asst. Atty. Gen., New York City, Jay B. Stephens, U.S. Atty., Stephen E. Alpern, Associate Gen. Counsel, U.S. Postal Service, John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., and Anthony W. DuComb, Atty., U.S. Postal Service, Philadelphia, Pa., were on the brief, for appellant.

Joseph E. Kolick, Jr., with whom Cyril V. Smith and Clay Warner, Washington, D.C., were on the brief, for appellees.

Before BUCKLEY and D.H. GINSBURG, Circuit Judges, and LEONARD I. GARTH, ^* U.S. Senior Circuit Judge for the Third Circuit.

Opinion for the court filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Senior Circuit Judge GARTH.

BUCKLEY, Circuit Judge:

The United States Postal Inspection Service appeals from a decision of the district court holding that it discriminated against a class of older postal inspectors in violation of the Age Discrimination in Employment Act. The district court ruled that a single element of the Postal Service's Career Path Policy constituted illegal age discrimination by mandating that the most senior postal inspectors transfer to any of fourteen chronically understaffed offices across the country. Arnold v. Postmaster General, 667 F.Supp. 6 (D.D.C.1987). We reverse.

I. BACKGROUND

A. Legal Framework

The Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 (1982) ("ADEA"), "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978). Specifically, it provides:

It shall be unlawful for an employer--

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age.

29 U.S.C. Sec. 623(a) (1982).

In applying the terms of the statute to particular cases, courts have drawn upon Supreme Court decisions detailing the twin methods of proof in race or gender discrimination cases under Title VII of the Civil Rights Act of 1964. Under traditional Title VII analysis, a plaintiff may establish that he was the victim of disparate treatment by introducing sufficient evidence to establish a prima facie case of discrimination. The defendant must then come forward and articulate some legitimate, non-discriminatory reason for his actions. Provided the defendant does so, the plaintiff must establish that the defendant's proffered reason is a mere pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Throughout the entire process, the burden of persuasion remains with the plaintiff and proof of discriminatory intent is critical. Burdine, 450 U.S. at 248, 101 S.Ct. at 1089.

Alternatively, a Title VII plaintiff may recover by establishing that a particular employment practice, while neutral on its face, has a disparate impact on the protected class. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (Title VII directed to "consequences of employment practices, not simply the motivation") (emphasis original). Proof of discriminatory intent is not necessary to prevail on a disparate impact claim. The plaintiff must simply establish, generally through the use of statistical evidence, that the challenged practice has a disparate impact on the protected class. Once this is accomplished, the burden shifts to the defendant to supply evidence that the practice is a "business necessity." Id. at 432, 91 S.Ct. at 854. The plaintiff may still prevail if he can prove that a non-discriminatory alternative was available.

In Johnson v. Lehman, 679 F.2d 918, 921-22 (D.C.Cir.1982), one of our early forays into ADEA litigation, we expressly held that the disparate treatment mode of analysis is applicable to an age discrimination claim under ADEA. See also Stacey v. Allied Stores Corp., 768 F.2d 402, 407 (D.C.Cir.1985). We have never determined whether a plaintiff bringing suit under ADEA may prevail on a disparate impact theory.

B. The Career Path Policy

The United States Postal Inspection Service employs more than 1,900 postal inspectors across the United States. As the law enforcement branch of the service, it is responsible for "investigat[ing] offenses and civil matters relating to the Postal Service." 39 U.S.C. Sec. 404(a)(7) (1982). The Postal Inspection Service is directed by the Chief Postal Inspector, who in turn reports to the Postmaster General.

In response to a shortage of experienced postal inspectors in fourteen major metropolitan areas ("MMAs"), the Postal Inspection Service instituted the Career Path Policy ("CPP") on December 1, 1980. Appendix for Appellant ("App.") at 82-92. The goal of the policy was to ensure that these areas would be staffed by a constant supply of experienced postal inspectors, and "to guide inspectors along a career path which provides them experience and exposure." Id. at 88.

Generally, postal inspectors are categorized according to certain experience levels, ranging from level 17 to level 24. Postal inspectors ordinarily spend one year as a level 17 inspector, one year at level 19, and two years at level 21 before being promoted to level 23. By the time they reach level 23, postal inspectors will have had experience in each of the four basic investigation areas. Level 24 inspectors are Team Leaders, who supervise groups of inspectors from each of the other service levels. The Inspection Service is authorized by statute to transfer any postal inspector, from any level, at any time. 39 U.S.C. Sec. 1001(e)(2) (1982).

The Career Path Policy was established as a complement to this basic framework. A central objective of the CPP, made explicit in 1984, is to ensure that all level 23 inspectors spend five years in an MMA during the course of their service. App. at 88 ("It is Inspection Service policy that normally all Inspectors will serve at least 5 years in a major metropolitan area as a Level 23/24.").

The CPP establishes three methods for achieving that objective. First, level 23 postal inspectors are encouraged to apply for lateral reassignments to vacancies in an MMA. If more than one level 23 postal inspector bid for a given vacancy, the first to bid is awarded the assignment. Second, if a vacancy is not filled by a voluntary level 23 lateral assignment, the Postal Service advertises the vacancy among level 21 postal inspectors, who may volunteer for lateral reassignment as level 23 inspectors. Finally, if the vacancy is not filled through either of the first two methods, the Postal Inspection Service will refer to a list of current level 23 inspectors and choose the most senior, in terms of service, for mandatory reassignment. Certain postal inspectors are expressly exempted from this final category, including those eligible to retire within five years, those who relocated within the past two years, and those who already served for two years in an MMA. After five years in an MMA, any inspector may ask to be reassigned.

C. The Suit

In September 1982, two years after the CPP was first unveiled, a postal inspector named Charles Netherton filed a class action on behalf of himself and other similarly situated inspectors in the United States District Court for the Middle District of Florida. See generally Arnold v. Postmaster General, 667 F.Supp. 6, 12-13 (D.D.C.1987) ("Arnold II ") (outlining procedural history). Netherton claimed that the CPP's provision for the directed transfer of senior postal inspectors had a disparate impact on inspectors aged forty and over in violation of the ADEA.

In August 1985, two additional groups of postal inspectors filed suit in the District of Columbia. The cases were consolidated on September 16, 1986, after the Netherton suit had been transferred to the District of Columbia. In December 1986, the United States District Court for the District of Columbia held that the plaintiff class could proceed under a theory of disparate treatment as well as disparate impact and denied cross-motions for summary judgment. Arnold v. United States Postal Service, 649 F.Supp. 676 (D.D.C.1986) ("Arnold I "). Finally, by separate order, the district court granted the Inspection Service's motion to bifurcate the trial into separate liability and damages phases.

Following a three-day bench trial, the court issued its opinion in favor of the postal inspectors. First, the district court held that the third aspect of the CPP--which it termed the "senior-first rule"--had a disparate impact on level 23 employees over the age of forty. Arnold II, 667 F.Supp. at 19-26. It accepted appellees' statistical proof that the senior-first rule "falls more harshly" on this protected class. Id. at 19. After making this initial finding, the court concluded that appellant had failed to demonstrate that the discriminatory rule could be justified as a business necessity because it "failed to carry its burden of persuading the Court that it had no other choice but to transfer the senior and older postal inspectors...." Id. at 24 (emphasis original). Finally, the...