Hagans v. Andrus

• Decision Date: 09 April 1981
• Docket Number: No. 79-4424,79-4424
• Citation: Hagans v. Andrus, 651 F.2d 622 (9th Cir. 1981)
• Parties: 25 Fair Empl.Prac.Cas. 502, 25 Empl. Prac. Dec. P 31,585 Joan A. HAGANS, Plaintiff-Appellant, v. Cecil ANDRUS, Secretary of the Department of the Interior, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 622

651 F.2d 622

25 Fair Empl.Prac.Cas. 502,

25 Empl. Prac. Dec. P 31,585

Joan A. HAGANS, Plaintiff-Appellant, v. Cecil ANDRUS, Secretary of the Department of the Interior Defendant-Appellee.

No. 79-4424.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1980.

Decided Feb. 5, 1981.

Rehearing and Rehearing En Banc Denied April 9, 1981.

Sanford M. Gibbs, Anchorage, Alaska, argued, for plaintiff-appellant; Linda M. O'Bannon, Sanford M. Gibbs, Hagans, Smith, Brown, Erwin & Gibbs, Anchorage, Alaska, on brief.

Susan A. Ehrlich, Atty., Dept. of Justice, Washington, D. C., for defendant-appellee.

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

Before WALLACE, HUG and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

Joan Hagans brought suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Her complaint alleged that the Secretary of the Interior, by his agents and employees (the government), unlawfully discriminated against her on the basis of sex by hiring a male for a position for which she alleges to have been more qualified. At the conclusion of Hagans' case, the district court granted the government's motion for an involuntary dismissal, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The court held that Hagans had failed to establish a prima facie case of discrimination. Hagans appeals from the judgment for the government and from the district judge's failure to grant her motion that he recuse himself. We affirm in part, and reverse and remand in part.

I

Hagans began her government service in 1955 when she had a GS-4 position with the Bureau of Land Management (BLM). In 1957, she received her first supervisory position. By 1970, she had moved up to a GS-12 position as a chief adjudicator, with a staff of 35 to 40 persons. In 1974, she became Chief of Operations of the Alaska Outer Continental Shelf (OCS) Office, a GS-13 position. Throughout her government service, Hagans received several awards for superior performance and special achievement.

Edward Hoffmann, the manager of the Alaska OCS Office, selected Hagans for the OCS job. Hoffmann was the immediate supervisor of Hagans and Donald Henninger, the chief of the Environmental Assessment Division. Hagans and Henninger alternated as acting manager whenever Hoffmann was absent. Several conflicts arose between Hagans and Henninger. Some of the conflicts arose out of disputes over the proper division of responsibility between their two offices. Some of the conflicts, however, occurred because of Henninger's apparent hostility towards women in the work place and, more specifically, his hostility towards women in supervisory positions. Hoffmann recognized that Henninger's attitude was a problem. Hoffmann counseled Henninger about it, and at one point tried to have Henninger transferred. Hoffmann, however, never took any formal action to reprimand Henninger, and the conflict was never resolved. Although Hoffmann and Hagans enjoyed a good, close working relationship throughout this period, Hoffmann testified that he thought that having a woman supervisor would cause Henninger a great deal of stress.

In 1977, a new GS-14 level position of assistant manager was created for the OCS Office. Hagans applied for the position. A promotion panel in Washington, D. C. did an initial screening that apparently weeded out candidates that lacked the basic qualifications for the job. Hoffmann was then to select the top three candidates from the 11 candidates submitted to him, and the final choice would be made in Washington. Hoffmann made Robert Brock, a staff assistant to the Assistant Secretary of the Interior for the OCS program nationwide, his first choice; Hagans was his second choice. The Washington office selected Brock for the job. Hoffmann gave several reasons for making Brock his first choice. He emphasized that Brock's "Washington perspective" gave him an advantage over Hagans who, in Hoffmann's view, had a narrow, provincial outlook. Other reasons included Brock's ability to analyze environmental impact statements; the need for fresh outlooks and outside experience; Hoffmann's plans to retire and his desire to select an "heir apparent"; and the inter-divisional conflicts between Hagans and Henninger.

II

We begin by analyzing the district court's conclusions of law. These are freely reviewable on appeal. Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978).

All Title VII "disparate treatment" ¹ cases are divided into three parts. First, the plaintiff has the burden to establish a prima facie case of discrimination. Second, if the plaintiff is successful, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employee's rejection. Third, if the defendant successfully carries that burden, the plaintiff has the opportunity to demonstrate that the reasons stated by the defendant were a mere pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973) (McDonnell Douglas).

In granting the government's motion for dismissal, the court held that Hagans had failed to establish a prima facie case under McDonnell Douglas. Because we conclude that the court applied an improper legal standard, we reverse and remand for further proceedings. The district judge must then initially decide whether Hagans did establish a prima facie case under the correct legal standard.

The district court applied the four point test set forth in McDonnell Douglas that the plaintiff must meet to establish a prima facie disparate treatment case. By applying that test strictly, the district judge required Hagans to carry the burden of proving

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

Id. 411 U.S. at 802, 93 S.Ct. at 1824. The district court reasoned that because the position was filled by Brock, it did not remain open and thus Hagans had failed to satisfy the fourth prong of McDonnell Douglas.

The McDonnell Douglas test is not, however, so rigid. The Supreme Court observed, after stating the four point test, that the prima facie proof required would necessarily depend on the facts, and that the test stated would "not necessarily (apply) in every respect to differing factual situations." Id. at 802 n.13, 93 S.Ct. at 1824 n.13. The Court has reiterated the flexibility of the McDonnell Douglas test in subsequent decisions. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575-76, 98 S.Ct. 2943, 2948-2949, 57 L.Ed.2d 957 (1978); International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). See also White v. City of San Diego, 605 F.2d 455, 458 (9th Cir. 1979).

The district court improperly failed to adapt the McDonnell Douglas test to the facts of this case. In McDonnell Douglas, it was significant that the position sought by the plaintiff remained open after his rejection, and that the employer continued to seek applicants with the plaintiff's qualifications. In the instant case, several qualified people applied for one job that would necessarily be filled by one of them at a predetermined time. Hagans' rejection necessarily occurred simultaneously with Brock's hiring. Thus, the position could not possibly "remain open." To apply rigidly the McDonnell Douglas test to this situation would deny any plaintiff the opportunity to establish a prima facie case, no matter how blatant the discrimination.

It appears that Hagans satisfied the first three prongs of McDonnell Douglas. She was a member of a "minority," ² was qualified for the job, ³ and was rejected for the position. The question before us is what more a plaintiff must show in a case such as this to establish a prima facie case.

In White v. City of San Diego, supra, we recognized the need for a flexible approach to the McDonnell Douglas standard. We stated that "a proper prima facie case identifies sex as the likely reason for the denial of a job opportunity." 605 F.2d at 458. This statement in White accurately identifies the import of McDonnell Douglas and its progeny. The Supreme Court itself, noting that the test stated in McDonnell Douglas does not apply to every case, has interpreted McDonnell Douglas to require a Title VII plaintiff to offer sufficient evidence "to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act." International Bhd. of Teamsters v. United States, supra, 431 U.S. at 358, 97 S.Ct. at 1866. The Court has also stated that "(p)roof of discriminatory motive is critical ...." Id. at 335 n.15, 97 S.Ct. at 1854, n.15. See also Furnco Constr. Corp. v. Waters, supra, 438 U.S. at 575-77, 98 S.Ct. at 2948-2950; Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761-62 (9th Cir. 1980).

We do not think it necessary to adopt a new, specific fourth prong of the McDonnell Douglas test to fit this case. We recognize that the Court of Claims has adopted a modified McDonnell Douglas test for use in failure to promote cases. Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973). ⁴ We have seen in the case before us that defining a test narrowly to adapt to one set of facts creates the risk that other courts will attempt to fit a different set of facts into a test that may be inappropriate. Therefore, we think it unwise to adopt the Pettit test as the only possible test in promotion cases; we do not, however, hold that the Pettit factors cannot be considered. We do reject the test stated in Jones v. Cleland, 466 F.Supp. 34, 36-37 (N.D.Ala.1978), which Hagans would have us adopt. In Jones, a sex...