Odom v. Frank
| Decision Date | 24 September 1993 |
| Docket Number | No. 92-1216,92-1216 |
| Citation | 3 F.3d 839 |
| Parties | 62 Empl. Prac. Dec. P 42,560 Elzie D. ODOM, Plaintiff-Appellee, v. Anthony M. FRANK, in his capacity as Postmaster General of the United States, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marvin Collins, U.S. Atty., Ft. Worth, TX, Suzanne H. Milton and David G. Karro, Attys., Office of Labor Law, U.S. Postal Service, Washington, DC, for defendant-appellant.
Cheryl B. Wattley, Dallas, TX, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges.
In this appeal of an employment discrimination, disparate treatment case, Defendant-Appellant Anthony M. Frank, the Postmaster General (the Service), asserts that the district court erroneously found that Plaintiff-Appellee Elzie D. Odom was discriminated against on the bases of race and age in his bid for a promotion. 1 Finding that the district court clearly erred in the factual determinations on which its conclusion of discrimination was founded, we reverse and render.
Odom began working for the Service in October 1950. He served as a postal inspector from 1967 until his retirement in 1987. In November 1983, he sought but did not receive a promotion to "level 24 Prevention Team Leader," a position which had recently been created in his home division of Fort Worth. At the time he applied, Odom was fifty-four years old and thus within the class of persons protected by the Age Discrimination in Employment Act. 2 He is also African American and thus protected against racial discrimination as well.
Postal inspectors generally serve in one of two capacities: 1) auditors, or 2) criminal violations specialists. For the most part, Odom served as an auditor throughout his tenure as a postal inspector. He did, however, perform miscellaneous criminal assignments from time to time between 1968 and 1971. He also served on a "security assignment," which was a quasi-criminal violations position, for a time during the period 1981-1982.
Unlike most of his prior experience, the position of Prevention Team Leader which Odom sought in 1983 would involve almost Odom submitted his application in September 1983. He was one of sixteen persons from several different divisions who applied for the position. Seven of the sixteen were forty years old or older; three of the sixteen were African American and one was Hispanic. Of the total number of applicants, seven including Odom were from the Fort Worth Division. Of those seven, two--Odom and Peay--were African American; a third--Herrera--was Hispanic; and the remaining four--Horton, Jennings, Nichols, and Price--were Caucasian.
entirely criminal work. The new leader would concentrate in four work areas, each projected to account for a specified percentage of his time: thirty percent in "external crimes"; thirty percent in "security"; twenty-five percent in "fraud"; and fifteen percent in "internal crimes." According to the announcement of the vacancy, the position would also require the applicant to possess "highly developed written and oral communication skills" and "well developed human relations skills." 3
The application, PS Form 991, comprised several sections, some of which were to be filled out by the applicant. When the applicant finished his sections, the form was to be forwarded to his immediate supervisor for completion of a recommendation section. When that was accomplished, the form was to be forwarded to the Inspector in Charge to fill in an additional recommendation section, thereby completing the form.
The Inspector in Charge of the Fort Worth Division was D.C. Strader, a native American. Three of the seven applicants from the Fort Worth Division--Herrera, Jennings, and Price--worked directly under Strader at the time, so none had an immediate supervisor other than Strader. Consequently, the applications for those three contained only one supervisory recommendation--Strader's.
As noted, sixteen persons applied for the subject position. 4 After all application forms were complete, they were to be forwarded to the Southern Regional Office of the Postal Under Service regulations, completed applications for a position such as the one involved in the instant case are initially screened by a review panel. The members of the panel involved in the instant case were selected by Robert N. Moore, the Regional Chief Inspector for the Southern Region, and the ultimate decisionmaker for the subject position. The panel members were "required to be at or above the rank of the position [at] issue and to have, as a group, functional knowledge of the position[ ] [at] issue." 5
Inspection Service in Memphis, Tennessee, for further processing.
The three persons selected to constitute the instant panel were Michael Gump (the designated Chairman), George Hicks, and Hubert Smith. All three were white males, "despite the fact that Postal Service Guidelines specified that 'every effort will be made to designate at least one woman or one minority group member to serve on each review committee.' " 6 And, although it is apparently contrary to Service regulations for a supervisor of a worker to sit on a review panel considering that worker's application for a promotion such as the one involved here, Hicks was selected for the review panel despite being the supervisor of R. Hurlbut, one of the applicants who is white and, like Odom, is over forty years old.
On October 19, 1983, the review panel met to select applicants to be interviewed. At that time, all sixteen of the applications for the position had been completed, but inexplicably two applications from the Fort Worth office had failed to be forwarded to the panel. One of the two was Odom's. 7 Unaware that two applications were missing, the panel selected ten of the applicants for interviews. Five of those ten were from Fort Worth.
After the review panel made its selection of the applicants to be interviewed, Chairman Gump received Odom's application. 8 The panelists then conferred about Odom's application but decided not to add him to the group to be interviewed. 9
When Odom learned that he had not been selected for an interview, he complained to Strader, asserting the belief that the decision not to interview him was racially based (no mention of age). After hearing Odom's allegations, Strader discussed the matter with Gump who again conferred with the other panelists. As a result of Strader's intercession, the panel decided to grant Odom an interview.
All interviews, including Odom's, were held in Memphis in October 1983. Each panelist independently rated the persons interviewed and came up with his own "top five" list. Those lists were then compared and discussed, ultimately producing the review panel's consensus "top five" list. Odom was on neither the consensus list nor on any panelist's top five list. 10
The panel's top five list was then sent to Regional Chief Inspector Moore to make the actual selection. In addition to considering the applications, recommendations of supervisors, and the review panel's selections, Moore telephoned Strader and specifically After the decision on the promotion was announced, Odom filed a formal charge of age and racial discrimination with the Service. The Equal Opportunity Employment Commission (EEOC) conducted an administrative hearing on Odom's charge. The EEOC's hearing officer concluded that Odom had been discriminated against. The Service, however, disagreed with the EEOC examiner and found that Odom had not been discriminated against. After more than one hundred eighty days passed without any action being taken on his appeal from the Service's final agency decision, Odom filed the instant lawsuit.
asked for his "pick." In response Strader indicated candidly that, given a choice, he would select Price. "On November 4, 1983, Moore announced that Inspector Price had been selected for the ... position." 11
The district court held a bench trial and concluded that Odom had been discriminated against on the bases of both age and race. The court stated that it was "persuaded by the totality of the circumstances surrounding the promotion process that the offered explanation for the denial of the [subject] position is a pretext for discriminatory actions." 12 The court listed the facts which it found Odom to have established in demonstrating discrimination:
a. Plaintiff was clearly better qualified than the selectee for the Prevention Team Leader position in terms of his performance and experience;
b. The method of completion and submission of Plaintiff Odom's PS Form 991 is evidence of pre-selection due to the deliberate omission of the highlights and successes of Plaintiff's career with the agency, when similar highlights were detailed by the supervisor on the applications of other white applicants.
c. The review panel appointed to make the selection, which was made up solely of white males, was improperly constituted under the agency's own regulations. The inclusion of Mr. Hicks on the review panel in violation of internal regulations which prohibited supervisors of applicants from serving on the review panel is especially probative since Defendant excluded eligible and available minorities from serving on the review panel because they had supervised some of the applicants or came from the same division as some of the applicants.
d. Evidence was adduced that the agency had an unwritten policy discouraging promotion of persons over forty to upwardly mobile positions.
e. The statistical data introduced by Plaintiff indicates [sic]...
To continue reading
Request your trial
-
Dupont-Lauren v. Schneider (Usa), Inc.
...decision was made with discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir.1993); Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.1991). In the context of a motion for summary judgment, "[a] jur......
-
Martin v. Kroger Co.
...decision was made with discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir.1993); Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991). In the context of a motion for summary judgment, "a jury issu......
-
Lenihan v. Boeing Co.
...decision was made with discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir.1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir. 1993); Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.1991). In the context of a motion for summary judgment, "[a] ju......
-
Harvey v. Chevron U.S.A., Inc.
...was made with discriminatory motive." Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995); accord Odom v. Frank, 3 F.3d 839, 850 (5th Cir.1993); Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.1991). In the context of a motion for summary judgment, "[a] jury issue will......