Page v. Bolger

• Decision Date: 02 April 1981
• Docket Number: No. 78-1792,78-1792
• Citation: 645 F.2d 227
• Parties: 25 Fair Empl.Prac.Cas. 593, 25 Empl. Prac. Dec. P 31,690 Carl F. PAGE, Appellant, v. William J. BOLGER, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 227

645 F.2d 227

25 Fair Empl.Prac.Cas. 593,

25 Empl. Prac. Dec. P 31,690

Carl F. PAGE, Appellant, v. William J. BOLGER, Appellee.

No. 78-1792.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 7, 1980.

Decided April 2, 1981.

Kenneth V. Farino, Richmond, Va. (Farino, Oksman, Rick & Kincannon, Richmond, Va., on brief), for appellant.

Marleigh D. Dover, Dept. of Justice, Washington, D. C. (William B. Cummings, U. S. Atty., Eliot Norman, Asst. U. S. Atty., Richmond, Va., Anthony W. DuComb, U. S. Postal Service, Labor Law Division, Washington, D. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting en banc.

JAMES DICKSON PHILLIPS, Circuit Judge:

Twice denied promotions he had sought as a federal postal employee, Carl F. Page sued the Postmaster General, claiming racial discrimination in the denials that violated his rights under § 717 of the Civil Rights Act of 1964 (Title VII), as amended by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. Following a plenary trial the district court dismissed his action on the merits and Page appealed to this court. A divided panel of the court reversed, essentially on the basis that the district court erred in failing to find discrimination violative of § 717 in the Postmaster General's use of all-white review committees, contrary to Postal Service internal regulations, in considering applicants for the position to which Page sought promotion. The panel decision remanded with directions to award specified compensatory and injunctive relief. Page v. Bolger, No. 78-1792 (4th Cir. Dec. 19, 1979). Upon petition of the Postmaster General, the appeal was then reheard by the court sitting en banc.

Concluding that the district court committed no reversible error in determining that, under the proof scheme adopted for analyzing claims of disparate treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Page had failed to establish his claim of discrimination, we affirm the judgment dismissing his action on the merits. ¹

I

The relevant historical facts, as adduced in evidence before the district court, are not in significant dispute. ² Page, a black, was a foreman in the mails section of the Richmond Post Office. In January 1976, he was one of several applicants for general foreman of mails, a supervisory position designated as postal executive salary level 17 (PES-17). The Postal Service's Personnel Handbook provides that a review committee shall be designated to screen the applicants and to recommend the "most outstanding candidates" to the appointing officer, who in this case was the postmaster. ³ The committee must consist of at least three members who are to be representatives of the district office, the installation with a vacancy, and the sectional center. ⁴ Section 544.2 of the Personnel Handbook provides:

Review committee members must be at an organizational or grade level equal to or higher than that of the vacant position. The official who designates a review committee is responsible for making every effort to select at least one woman and/or one minority group member. In the absence of available women and/or minority employees at the appropriate level, committee members must be furnished by the next-higher organizational unit, where available.

The district manager appointed a review committee of three white males to consider the applicants for the PES-17 position. While the committee found that Page was qualified, it also determined that two white males were better qualified. The committee recommended these three applicants to the postmaster, who selected the top-ranked white male. ⁵ The appointee previously had been administratively detailed to the position pending the outcome of the committee's recommendations. Page protested this appointment and filed a complaint with the Equal Employment Opportunity Commission.

In August 1976, Page sought promotion to postal operations specialist (PES-18). Again the district manager appointed three white males to the review committee. During Page's interview, one of the committee members questioned him about his EEO complaint regarding the PES-17 position. The committee found that Page was qualified for the position, but it named one white male as better qualified. It ranked another white male third. The postmaster selected the top-ranking white male. Again Page protested and filed an EEO complaint. The district manager voided the action of the review committee because of the interrogation about Page's EEO complaint with respect to the PES-17 position. He directed that a new committee be selected and that one of its members be a black employee.

In February 1977, the new committee met to reconsider the PES-18 appointment. A black employee from Philadelphia had been named to the committee, but when the committee met, his assignment to a new job prevented his serving on it. A white male was substituted. This committee, consisting of three white males, found Page to be qualified for the position, but it concluded that two white males, including the applicant previously ranked third, were better qualified. The top-ranking applicant was the employee who had been recommended in 1976. He had been detailed administratively to the position pending reconsideration by the new review committee. The postmaster accepted the recommendation of the new committee and appointed the incumbent. Page protested and filed another EEO complaint. ⁶

After exhausting his administrative remedies with respect to both the PES-17 and -18 appointments, Page filed this action.

II

The district court conducted a de novo hearing in accordance with Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), receiving essentially the evidence above summarized. It then analyzed this evidence under the proof scheme adopted by the Supreme Court in McDonnell Douglas as a "sensible, orderly way to evaluate the evidence," Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), where individual claims of "disparate treatment" of intentional discrimination in making employment decisions are put in issue by conflicting evidence as to the employer's motivation in making them.

In the first stage of this analysis, the court found, and the Postmaster General has conceded throughout, that Page's evidence established a prima facie case of discrimination in denying him the promotions he sought. As to these, the evidence showed, in summary, that (i) he belonged to a racial minority; (ii) that he applied and was qualified for the promotions he sought; (iii) that he was denied them; and (iv) the positions thereafter remained open and were in fact filled by the employer from other applicants possessing his general qualifications. Cf. McDonnell Douglas, 411 U.S. at 802 & n.13, 93 S.Ct. at 1824 & n.13 (refusal to hire). This unchallenged conclusion is manifestly not in error.

At this point, with the inference of discriminatory motive for denying the promotion raised, the burden is considered shifted to the employer to dispel the inference by coming forward with evidence that a "legitimate, nondiscriminatory reason," id. at 802, 93 S.Ct. at 1824, rather than the inferable reason of purposeful discrimination, underlay the decisions to deny promotion. ⁷ The district court found this burden of production carried and the inference of discrimination sufficiently dispelled by the testimony of review committee members that they did not discriminate against Page because of his race but instead simply considered him relatively less qualified on a subjective and objective basis than the successful applicants. We find no error of law nor clear error of fact underlying this conclusion.

Obviously it must be possible for employers legally to make employment decisions that disfavor qualified minority employees on the basis of a comparative evaluation of their qualifications with those of other applicants. Concededly, when that evaluation is to any degree subjective and when the evaluators are themselves not members of the protected minority, the legitimacy and nondiscriminatory basis of the articulated reason for the decision may be subject to particularly close scrutiny by the trial judge. But, as the Supreme Court pointed out in McDonnell Douglas itself, the mere fact that subjective criteria are involved in the reason articulated by an employer does not prevent according it sufficient rebuttal weight to dispel the inference of discrimination raised by the prima facie case. Id. at 803, 93 S.Ct. at 1824. Here, aside from the testimony obviously credited by the district judge of the persons who actually made the promotion decisions that they were not racially motivated, there was objective evidence supporting the comparative evaluation they made. ⁸ Considering that the proof burden being assessed is at this point merely one of production rather than of persuasion, see Wright, 609 F.2d at 714 n.13, we cannot find error in the district court's conclusion that it had been carried.

At this point, though the inference of discrimination has been neutralized, the employee's claim of discrimination may yet be found established if the evidence shows that the employer's stated reason was a mere pretext "in fact a coverup for a racially discriminatory decision." McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825. While the burden of persuasion on the ultimate issue of intentional discrimination remains throughout on the claimant, at this stage in the proof analysis his "required proof of discriminatory motive has in effect been narrowed and focused upon the specific reasons advanced by the employer ..., but the underlying requirement remains to prove that the real as opposed to now specifically 'articulated' reasons was a racially inspired intent...