Diaz v. American Tel. & Tel.

• Decision Date: 29 January 1985
• Docket Number: No. 83-2652,83-2652
• Citation: 752 F.2d 1356
• Parties: 36 Fair Empl.Prac.Cas. 1742, 36 Empl. Prac. Dec. P 34,960, 40 Fed.R.Serv.2d 1428 Paul Silvestre DIAZ, Plaintiff-Appellant, v. AMERICAN TELEPHONE & TELEGRAPH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1356

752 F.2d 1356

36 Fair Empl.Prac.Cas. 1742,

36 Empl. Prac. Dec. P 34,960, 40 Fed.R.Serv.2d 1428

Paul Silvestre DIAZ, Plaintiff-Appellant, v. AMERICAN TELEPHONE & TELEGRAPH, Defendant-Appellee.

No. 83-2652.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 3, 1984.

Decided Jan. 29, 1985.

Kathleen C. Roberts, P.C., Tucson, Ariz., for plaintiff-appellant.

Ruth V. McGregor, Anne L. Tiffen, Fennemore, Craig von Ammon, Udall & Powers, Phoenix, Ariz., for defendant-appellee.

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

Before BROWNING, ANDERSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge.

Paul Silvestre Diaz, a Mexican-American, brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), alleging that the failure by his employer, American Telephone & Telegraph Company (AT & T), to promote him to the position of Operations Supervisor resulted from discrimination on the basis of race or national origin. During discovery, AT & T refused to provide certain employment statistics. Without ruling on Diaz's motion to compel discovery of these statistics, the district court granted AT & T's motion for summary judgment, ruling that, as a matter of law, the promotion of another Mexican-American, Rebecca Gonzales, to the challenged position precluded Diaz from establishing a prima facie case of discrimination. We hold that the summary judgment order was based on an erroneous legal premise. However, we do not review the record to see if we could affirm that order on any other ground because Diaz did not receive, and the record does not contain, all the material to which he was entitled in framing his opposition to the summary judgment motion. The requested statistical material was properly subject to discovery.

I. BACKGROUND

Paul Diaz has been employed since 1969 at the Tucson facility of AT & T, Long Lines Division, as a Communications Technician. At various times during his employment Diaz filled in temporarily as an Operations Supervisor. In March 1980, a permanent opening for Operations Supervisor at the Tucson facility became available. Again, Diaz filled in, this time for a period of three and one-half months, from mid-February to June 1, 1980.

As a policy, AT & T does not disseminate information about promotional opportunities directly to the potentially eligible employees. When the Operations Supervisor position at the Tucson facility became available, in accordance with AT & T's general hiring and promotion procedures the Tucson facility Operation Manager notified the Western Region personnel office of the job opening. Shortly afterwards, the personnel office compiled a list of all current job openings in the Western Region and sent the list to all Western Region supervisors. The supervisors then submitted lists of candidates they thought were qualified for the positions. The names of five candidates were submitted for the Tucson Operations Supervisor position, among them Rebecca Gonzales. The Operation Manager in Tucson, who was responsible for the ultimate promotion decision, was also responsible for selecting qualified candidates from the Tucson facility. He did not consider Diaz for the position although Diaz was deemed "promotable."

Because it became apparent to Diaz that, although he was serving temporarily as the Tucson Operations Supervisor, he was not going to be promoted to the position on a permanent basis, he filed a discrimination charge with the Arizona Civil Rights Division. His charge was filed on April 15, 1980. Thereafter, in late April or May, AT & T decided to promote Gonzales to the Operations Supervisor position. Gonzales's promotion, effective in early June 1980, was apparently AT & T's first promotion of a Mexican-American to that position at the Tucson facility. ¹ Gonzales was subsequently replaced by Peter Todd, a white male, in October 1981, only a year after her appointment.

II. PROMOTION OF A MEMBER OF PLAINTIFF'S PROTECTED CLASS

In order to prevail in a Title VII disparate treatment case, a plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment decision. If the defendant carries its burden, the plaintiff is then afforded an opportunity to demonstrate that the " 'assigned reason' was 'a pretext or discriminatory in its application.' " Lynn v. Regents of the University of California, 656 F.2d 1337, 1341 (9th Cir.1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 1827, 36 L.Ed.2d 668 (1973)), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982). In the present case, the district court did not examine AT & T's articulated nondiscriminatory reason--that Gonzales was better qualified--or consider whether Diaz's evidence sufficiently rebutted this defense ² because it determined that Diaz could not, as a matter of law, establish a prima facie case. Its reason for reaching this conclusion was that the person ultimately hired was a member of the same protected class as Diaz.

In order to establish a prima facie case, a plaintiff must offer evidence that "give[s] rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). One common way a plaintiff can establish an inference of discrimination is by demonstrating that the four requirements of the McDonnell Douglas test are met:

(1) that the plaintiff belongs to a class protected by Title VII;

(2) that the plaintiff applied and was qualified for a job for which the employer was seeking applicants;

(3) that, despite being qualified, the plaintiff was rejected; and

(4) that, after the plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons of comparable qualifications.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

Under the traditional McDonnell Douglas test, the "inference of discrimination" is not dependent upon an examination of who, if anyone, was promoted instead of the plaintiff. Ordinarily, the fourth element of McDonnell Douglas, is met whenever the employer continues to consider other applicants whose qualifications are comparable to the plaintiff's after refusing to consider or rejecting the plaintiff. Diaz was deemed promotable but the Operation Manager did not consider him for the position although he subsequently considered comparably qualified applicants. ³ Thus, Diaz satisfied the fourth element of the McDonnell Douglas test as it is ordinarily understood and applied.

The district court's determination that Diaz failed to establish a prima facie case was based on its implicit conclusion that the Supreme Court's articulation of the McDonnell Douglas test should not be read literally. The district court held that the fourth element of McDonnell Douglas cannot be met unless the challenged position is filled by someone outside the plaintiff's protected class. Thus, the district court concluded that Diaz failed to meet the McDonnell Douglas standard. AT & T asks us to affirm the summary judgment order either by endorsing the district court's construction of McDonnell Douglas or by adopting a closely related line of reasoning. AT & T's alternative argument is that even if McDonnell Douglas is read as the Supreme Court apparently meant it to be, and even if, therefore, Diaz met that test, it is not sufficient in all instances simply to satisfy the McDonnell Douglas standard. AT & T contends, rather, that whenever the person who is selected for the position is a member of the same protected class, the plaintiff is precluded from establishing a prima facie case. ⁴ We reject the reasoning both of the district court and of AT & T.

In order to preclude a plaintiff from recovery in all cases in which the challenged position is filled by a member of the same protected class, we would have to assume that Title VII protects only group rights. It is, of course, true that Title VII was designed to deter and remedy discrimination on the basis of group characteristics and to remove barriers that favor certain groups over others. See Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971); see also United Steelworkers v. Weber, 443 U.S. 193, 207-09, 99 S.Ct. 2721, 2729-30, 61 L.Ed.2d 480 (1979) (private employer's race-conscious affirmative action plan, designed to eliminate "conspicuous racial imbalance" and traditional patterns of segregation, not barred by Title VII); Johnson v. Transportation Agency, 748 F.2d 1308, 1314 (9th Cir.1984) (public agency's affirmative action plan lawful and necessary to remedy long-standing imbalances in work force); cf. Fullilove v. Klutznick, 448 U.S. 448, 482, 100 S.Ct. 2758, 2776, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.) (Congress' remedial actions need not be "color-blind"). ⁵ But, at the same time, Title VII's focus on the rights of individual members of protected classes is "unambiguous." Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 3496, 77 L.Ed.2d 1236 (1983) (quoting Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 708, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978)). "It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group." Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982); see also Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982) ("The fact that a particular screening device admits some members of a protected class into pool of job candidates does not...