Fischbach v. District of Columbia Dept. of Corrections, s. 95-7154

• Decision Date: 15 July 1996
• Docket Number: 95-7167,Nos. 95-7154,s. 95-7154
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 316, 71 Fair Empl.Prac.Cas. (BNA) 448, 68 Empl. Prac. Dec. P 44,154, 318 U.S.App.D.C. 186 Ronald J. FISCHBACH, Appellee, v. DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS and Hallem H. Williams, Jr., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1180

86 F.3d 1180

71 Fair Empl.Prac.Cas. (BNA) 316,

71 Fair Empl.Prac.Cas. (BNA) 448,

68 Empl. Prac. Dec. P 44,154, 318 U.S.App.D.C. 186

Ronald J. FISCHBACH, Appellee, v. DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS and Hallem H.

Williams, Jr., Appellants.

Nos. 95-7154, 95-7167.

United States Court of Appeals, District of Columbia Circuit.

Argued March 8, 1996.

Decided March 11, 1996.

Opinion Issued July 2, 1996.

As Amended July 15, 1996.

Appeals from the United States District Court for the District of Columbia (No. 87cv00646).

Martin B. White, Assistant Corporation Counsel, Washington, DC, argued the cause for appellants, with whom Charles F. Ruff, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz A. Prager, Assistant Deputy Corporation Counsels, were on the briefs. Garland Pinkston, Jr., Principal Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel, entered appearances.

Gary H. Simpson, Bethesda, MD, argued the cause and filed the brief for appellee.

Before: EDWARDS, Chief Judge, SILBERMAN, and GINSBURG, Circuit Judges.

GINSBURG, Circuit Judge:

Ronald Fischbach, an employee of the District of Columbia Department of Corrections, claims that he was denied a promotion because he is white. After a bench trial, the district court entered judgment in his favor. In an unpublished order issued March 11, 1996, we reversed, 80 F.3d 558 (table); we now explain the basis of that disposition.

I. Background

In 1984, Dr. James Lomax retired from his position as Chief Psychologist at a Department of Corrections facility called Youth Center I, located in the Lorton prison complex. In early 1985, when the Department moved to replace Dr. Lomax, Mr. Fischbach, who had worked as a counseling psychologist at Youth Center I for sixteen years and had served as Acting Chief Psychologist when Dr. Lomax was absent, applied for the job. Mr. Fischbach, who has a master's degree in psychology, testified that during most of 1984 he performed all of the administrative, therapeutic, and counseling duties in the psychology unit at the Youth Center (he was the only psychologist there), and that he had prepared the psychology unit's budgets for every fiscal year but one from 1980 through 1985. His supervisors had rated Fischbach's performance "excellent" for six consecutive years. Nonetheless, in February 1985 the position of Chief Psychologist went to someone else.

The process through which the Department filled the job of Chief Psychologist deviated in several important respects from the process prescribed by the District's personnel rules. The Department offered unrebutted testimony, however, establishing that it was "the same process as is nominally [normally?] used by the Department ... year in, year out."

First, the D.C. Office of Personnel reviewed written applications, on the basis of which it deemed 10 applicants qualified. Next, a panel of three Department of Corrections officials interviewed each of those 10 applicants. The panel consisted of James McKenna, the Assistant Administrator of Youth Center I; Jack Miller, the Chief Psychologist at the Lorton Central Facility; and Sam Rosser, the Administrator-Designate for a planned facility at Lorton. McKenna and Miller are white; Rosser is black.

The panel asked each applicant nine questions and awarded up to ten points for each answer. Dr. Gregory Price, who is black, received the highest score (77.67). Since 1980 Dr. Price had taught psychology at Texas Southern University, and had served as either a supervising psychologist or the chief psychologist at three facilities within the Oklahoma Department of Corrections. The panel assigned Vinson Reynolds, who is white, the second highest score (76.67), and Fischbach came in third (with 70.76).

Finally, the panel forwarded these results and the scores of the other seven applicants interviewed to James Palmer, the Director of the Department of Corrections, along with its recommendation to hire Price. Palmer selected Price for the job based upon his having the highest numerical score.

In March 1987 Fischbach filed a complaint in the district court charging that the Department had denied him the promotion he sought because he is white and because he is Jewish, in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, and, in a claim dropped before trial, because he was 41 years old, a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. After a bench trial, the district court found no evidence of religious discrimination but did conclude that the Department had denied Fischbach the promotion because he is white. The District of Columbia appeals.

II. Analysis

As we have seen, the process by which Dr. Price was selected over Mr. Fischbach had three stages, involving sequentially the D.C. Office of Personnel, the interview panel convened by the Department of Corrections, and the selecting official and head of the Department, James Palmer. The district court failed to specify the stage at which it thought racial discrimination corrupted this process. The court did find, however, that Palmer selected Dr. Price solely upon the basis of the scores that the panel assigned to the applicants. That finding precludes the possibility that Palmer discriminated against Fischbach on the basis of his race. Further, because the Office of Personnel stated no preference as between Dr. Price and Mr. Fischbach, it can hardly be thought the source of the problem. Therefore, in order to make sense of the district court's memorandum opinion, we must infer that the judge thought that the interview panel, composed of two whites and one black, ranked Mr. Fischbach below Dr. Price because the former is white and the latter is black. The evidence, however, does not support this conclusion.

As a Title VII plaintiff, Fischbach bore "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated" against him. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Under the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the plaintiff must initially prove by a preponderance of the evidence that he was qualified for the position he sought but was rejected under circumstances which "permit the trier of fact to infer the ultimate fact of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993) (original emphasis).

Here the Department concedes that Fischbach has made out a prima facie case of discrimination. We therefore proceed directly to the second step under McDonnell Douglas, in which it is the employer's burden to articulate a non-discriminatory reason for its action. Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094-95. The Department says that it chose between Dr. Price and Mr. Fischbach based solely upon their answers during the interview, as reflected in the score that the interview panel assigned to each applicant. Being both reasonable and non-discriminatory, that is enough to take us to the third step under McDonnell Douglas: Fischbach must prove that the employer's proffered explanation is a pretext. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.

At this point, the district court seems to have lost its compass. Even if a court suspects that a job applicant "was victimized by [ ] poor selection procedures" it may not "second-guess an employer's personnel decision absent demonstrably discriminatory motive." Milton v. Weinberger, 696 F.2d 94, 100 (D.C.Cir.1982). Once the employer has articulated a non-discriminatory explanation for its action, as did the District here, the issue is not "the correctness or desirability of [the] reasons offered ... [but] whether the employer honestly believes in the reasons it offers." McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992). See also Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.1994) ("It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a phony reason").

Evidence indicating that an employer misjudged an employee's performance or qualifications is, of course, relevant to the question whether its stated reason is a pretext masking prohibited discrimination, see Parker v. HUD, 891 F.2d 316, 322 (D.C.Cir.1989); if the employer made an error too obvious to be unintentional, perhaps it had an unlawful motive for doing so. Short of finding that the employer's stated reason was indeed a pretext, however--and here one must beware of using 20/20 hindsight--the court must respect the employer's unfettered discretion to choose among qualified candidates. Ramey v. Bowsher, 915 F.2d 731, 735 (D.C.Cir.1990). See also Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986) (district judge does not sit as "super-personnel department that reexamines an entity's business decisions"). Here the district court...