Obrey v. Johnson

• Decision Date: 04 March 2005
• Docket Number: No. 03-16849.,03-16849.
• Citation: 400 F.3d 691
• Parties: Ronald L. OBREY, Jr., Plaintiff-Appellant, v. Hansford T. JOHNSON, in his capacity as the Acting Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.3d 691

Ronald L. OBREY, Jr., Plaintiff-Appellant, v. Hansford T. JOHNSON, in his capacity as the Acting Secretary of the Navy, Defendant-Appellee.

No. 03-16849.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2004.

Filed March 4, 2005.

Clayton C. Ikei, Honolulu, HI, for the plaintiff-appellant.

E. Roy Hawkens, Jeffrey Clair, Appellate Staff Civil Division, Department of Justice, Washington, DC, for the defendant-appellee.

Appeal from the United States District Court for the District of Hawaii; Manuel L. Real, District Judge, Presiding. D.C. No. CV-02-00033-MLR/LEK.

Before BRUNETTI, GRABER, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

This appeal requires us to clarify and apply the harmless error test applicable to civil trials in our circuit.

I.

Appellant, Ronald L. Obrey, Jr., originally filed suit for declaratory and injunctive relief, alleging that he was twice denied a promotion to the position of Production Resource Manager at the Pearl Harbor Naval Shipyard (hereinafter, the "Shipyard") on the basis of his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2000). Obrey alleged that the defendant, the Secretary of the Navy, had engaged in a pattern or practice of discriminating against qualified candidates of Asian-Pacific ancestry in favor of Caucasian applicants for senior management positions at the Shipyard. In a pre-trial hearing, the district court issued several evidentiary rulings excluding the principal evidence supporting Obrey's pattern or practice claim. After a jury trial, judgment was entered against Obrey. The district court's evidentiary rulings form the basis for this appeal.

The Pearl Harbor Shipyard is one of four Navy shipyards operated by the Navy organizational unit, the Naval Sea Systems Command. Obrey, an Asian-Pacific Islander, has, from 1995-2002, worked as a Project Superintendent at the Shipyard. In 2002, Obrey applied for the Production Resource Manager's ("PRM") position at the Shipyard, a position which carried a promotion from his current grade level of GM-14 to a GS-15 grade. Nine other individuals also applied. Pursuant to Navy guidelines, the applicants were rated in three categories, including relevant knowledge, ability to plan and manage resources, and ability to perform supervisory management functions. On the basis of this rating, Obrey was ranked sixth out of ten applicants during the first round of hiring, and fifth out of the eight competitive applicants in the second round. The PRM position was subsequently offered to Ernest Chamberlain in the first round of hiring, and then David Reilly in the second, both of whom are Caucasian males and both of whom declined the offer. Recruitment was then cancelled.

In this appeal, Obrey claims that the district court abused its discretion in failing to admit three pieces of evidence: (1) a statistical report showing a correlation between race and promotion at the Shipyard; (2) the testimony of a Shipyard employee who recalled conversations in which Shipyard officials expressed discriminatory bias toward the local Asian-Pacific Islanders; and (3) the anecdotal testimony of three Shipyard employees who also believed they had suffered race discrimination at the Shipyard. The Navy argues that the exclusion was proper but that, even if the district court erred, the error was harmless. Addressing each evidentiary ruling in turn, we find that the district court's decision excluding this evidence was an abuse of discretion as to all. We further conclude that the error was not harmless.

A.

The district court denied Obrey's motion in limine to admit statistical evidence regarding hiring practices for senior-level positions at the Shipyard. The hiring practice evidence at issue was compiled through discovery and included the hiring history of the Pearl Harbor Shipyard for the period 1999-2002. Obrey retained James Dannemiller, a statistician with SMS Research & Marketing Services, Inc., to analyze this data and provide a statistical report and opinion. Dannemiller's report concludes that "[t]here is no statistical evidence ... that the selection process for GS13 through GS15 positions between 1999 and 2002 were unbiased with respect to race."

The government challenged the admission of Dannemiller's report on the ground that it was so incomplete that it was inadmissible as irrelevant, unfairly prejudicial, and unreliable. See Fed. R. Evid. 402, 403, 702. In the government's view, the statistical analysis was inadmissible because it failed to account for the relative qualifications of the applicants being studied. The district court denied Obrey's motion to admit Dannemiller's statistical evidence. Although the court did not specify its reasons, presumably its ruling was based on the perceived irrelevance and unreliability of the statistics. While we review evidentiary rulings for an abuse of discretion, Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1333 (9th Cir.), amended by, 773 F.2d 1049 (9th Cir.1985), neither of these reasons warrants exclusion in this case.

Obrey's claim was premised on the theory that the Navy had engaged in a pattern or practice of discriminatory hiring practices. Employment discrimination claims styled in this manner are governed by "controlling legal principles that are relatively clear." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Obrey's theory of discrimination was that the Navy regularly and purposefully treated the local Asian-Pacific Islanders less favorably than white persons by refusing to promote minority group members on an equal basis. His suit thus raised as factual issues "whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were `racially premised.'" Id. at 335, 97 S.Ct. 1843 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 n. 18, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

As the plaintiff, Obrey bore the initial burden of making out a prima facie case of discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). And, because he alleged a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, Obrey ultimately had to prove "more than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts." Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. He had to establish, by a preponderance of the evidence, that racial discrimination was the Navy's "standard operating procedure — the regular rather than the unusual practice." Id. By "demonstrating the existence of a discriminatory pattern or practice," Obrey would "establish[ ] a presumption that [he] had been discriminated against on account of race." Cooper, 467 U.S. at 875, 104 S.Ct. 2794 (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)).

In a case in which the plaintiff has alleged that his employer has engaged in a "pattern or practice" of discrimination, "[s]tatistical data is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue." Diaz v. Am. Tel. & Tel., 752 F.2d 1356, 1363 (9th Cir.1985);¹ see also McDonnell Douglas, 411 U.S. at 805 n. 19, 93 S.Ct. 1817 ("The District Court may, for example, determine, after reasonable discovery that the (racial) composition of defendant's labor force is itself reflective of restrictive or exclusionary practices.") (internal quotation marks omitted); Coral Constr. Co. v. King County, 941 F.2d 910, 918 (9th Cir.1991) ("[F]or purposes of Title VII, `[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.'") (quoting Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977)); Diaz, 752 F.2d at 1363 ("In some cases, statistical evidence alone may be sufficient to establish a prima facie case.... Even when not sufficient to establish a prima facie case, statistical evidence is helpful in showing that an employer's articulated reason for the employment decision is pretextual...." (citations omitted)).²

Obrey's statistical evidence was not rendered irrelevant under Rule 402 simply because it failed to account for the relative qualifications of the applicant pool. See Fed. R. Evid. 402 ("All relevant evidence is admissible, except as otherwise provided [by law]. Evidence which is not relevant is not admissible.") A statistical study may fall short of proving the plaintiff's case, but still remain relevant to the issues in dispute. The Dannemiller study may be relevant, and therefore admissible, even if it is not sufficient to establish Obrey's prima facie case or a claim of pretext. Thus, objections to a study's completeness generally go to "the weight, not the admissibility of the statistical evidence," Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1476 (9th Cir.1995), and should be addressed by rebuttal, not exclusion, Teamsters, 431 U.S. at 340, 97 S.Ct. 1843. As the Court has pointed out,

Statistics showing racial or ethnic imbalance are probative... because such imbalance is often a telltale sign of purposeful discrimination;.... Considerations such as small sample size may, of course, detract from the value of such evidence, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant.

Teamsters, 431 U.S. at 339-40 n. 20, 97 S.Ct. 1843 (citations omitted); see also Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam) (...