Sengupta v. Morrison-Knudsen Co., Inc.

• Decision Date: 03 October 1986
• Docket Number: MORRISON-KNUDSEN,No. 85-4183,85-4183
• Citation: 804 F.2d 1072
• Parties: 42 Fair Empl.Prac.Cas. 535, 42 Empl. Prac. Dec. P 36,711, 55 USLW 2327 Mrintunjoy SENGUPTA, Plaintiff-Appellant, v.COMPANY, INC., Defendant-Appellee. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1072

804 F.2d 1072

42 Fair Empl.Prac.Cas. 535,

42 Empl. Prac. Dec. P 36,711, 55 USLW 2327

Mrintunjoy SENGUPTA, Plaintiff-Appellant, v. MORRISON-KNUDSEN COMPANY, INC., Defendant-Appellee.

No. 85-4183.

United States Court of Appeals, Ninth Circuit.

Submitted ^* Oct. 3, 1986.

Decided Nov. 18, 1986.

Donald W. Lojek, Lojek & Hall, Ctd., Boise, Idaho, for plaintiff-appellant.

Linda L. Holdeman, Hawley, Troxell, Ennis & Hawley, Boise, Idaho, for defendant-appellee.

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

Before SNEED, KENNEDY, and BEEZER, Circuit Judges.

SNEED, Circuit Judge:

Mrintunjoy Sengupta, an East Indian whose skin pigment is black, was employed as a senior engineer by the Morrison-Knudsen Co. (M-K). In early 1982, M-K experienced economic difficulties that necessitated significant reductions in its work force. Sengupta was discharged. Thereafter he brought suit, claiming that his discharge violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq.; 42 U.S.C. Sec. 1981; the Idaho Human Rights Act; and Idaho contract law. The district court granted summary judgment for M-K on all of Sengupta's claims. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Sengupta worked for M-K as a junior engineer from 1975 to 1977. He voluntarily left M-K in 1977 to obtain a master's degree in industrial management engineering. In 1981, Sengupta was rehired as a senior engineer and assigned to the Underground Team of the Chevron Shale Oil Project. Sengupta's immediate supervisor was Ian Dorling, the Underground Team leader. The project engineer and project manager were Brent Hurst and Dick Grass, respectively. Dorling, who was most familiar with Sengupta's work performance, was responsible for preparing Sengupta's job evaluation at the conclusion of the Chevron project. Hurst and Grass, who also had contact with Sengupta, participated in reviewing Sengupta's work.

Sengupta worked on the Chevron project from February through August, 1981. Dorling and the other two supervisors were displeased with Sengupta's work during this time, and Dorling prepared a highly critical evaluation of Sengupta. The evaluation form used by Dorling identified eleven areas of job performance for evaluation and directed the evaluator to rate the employee with a score of one to six in each area. This form was used for all Mining Group employees, of which Sengupta was one, and, at the time of his evaluation, it was used exclusively for determining salary increases. Some of the areas in which Sengupta received low marks were creativity, leadership and verbal communication.

In early 1982, the shale oil industry collapsed, forcing M-K to make layoffs. The Mining Group is one of several groups within M-K operating independently of each other; it is divided into districts that, in turn, are subdivided into departments. The Mining Group Personnel Department, which reports directly to Group level management, devised the layoff procedures that were implemented in January, 1982. Sengupta's department, Department 222, had no involvement in the development of this procedure. Department 222's participation in the layoff process was limited to preparing the performance evaluations and selecting the number of employees to be terminated.

Pursuant to the layoff plan, all Mining Group employees were ranked according to their most recent performance evaluation.

Sengupta's ranking was based on Dorling's evaluation. The employees with the lowest scores were discharged, according to the needs of each department. The head of Department 222 decided five people should be laid off.

In 1982, the Mining Group began with 281 employees, of which 248 were non-minority workers and 33 were minority workers. Of the former, 68 were discharged, while of the latter the number was 9. Or, expressed in percentages, 27 percent of the nonminority Mining Group employees and 27 percent of the minority Mining Group employees were laid off. However, within Department 222 the pattern was different. From a total of 28 employees, 4 of the 5 employees selected for layoff were black, including Sengupta. ¹

Sengupta made a Title VII disparate impact as well as a discriminatory treatment claim. In 1984, the district court entered summary judgment in favor of M-K on Sengupta's disparate impact claim but reserved its ruling on his discriminatory treatment claim until Sengupta had an opportunity to conduct further discovery and thoroughly brief his position. In 1985, the district court reaffirmed its ruling on Sengupta's disparate impact claim and entered summary judgment for M-K on the plaintiff's treatment and state law claims. Sengupta brought this appeal.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

III. DISCRIMINATORY TREATMENT

In order to succeed on his section 1981 claim, Sengupta must prove intentional discrimination. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). But of the two Title VII theories of liability, only his treatment claim requires proof of discriminatory intent. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). A disparate impact claim does not depend upon proof of a discriminatory motive. Id. at 336 n. 15, 97 S.Ct. at 1854 n. 15.

The structure of the pleading and proof of a discriminatory treatment claim is familiar ground. The plaintiff "has the initial burden of establishing a prima facie case that his employer discriminated against him on account of his race, color, religion, sex, or national origin." Cooper v. Federal Reserve Bank, 467 U.S. 867, 874, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984). To establish a prima facie case of racial discrimination, the plaintiff has the burden of proving by a preponderance of the evidence that he was discharged "under circumstances which give rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the Supreme Court established a framework within which a Title VII plaintiff can use circumstantial evidence to establish a prima facie case of racial discrimination in a hiring context: ²

This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants The McDonnell Douglas standards are adaptable to different factual situations. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In the discriminatory discharge context, the plaintiff must show (i) that he was within the protected class; (ii) "that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance"; and (iii) "that his employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills." Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.1979); see Potter v. Goodwill Indus., 518 F.2d 864, 865 (6th Cir.1975).

(iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

We hold that Sengupta failed to establish a prima facie case of discriminatory treatment under the McDonnell Douglas approach. M-K did not attempt to fill Sengupta's position following the layoff. McDonnell Douglas does not proscribe discharges because of an absolute or relative performance failure or a reduction in the labor force. See Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 547 (9th Cir.1982). When neither of these reasons justifies the discharge, "courts infer, in light of their experience, that the employment decision was 'more likely than not' based upon race." Id. (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978)).

Sengupta's failure to prove his claim rests on the fact that M-K no longer needed his services because of its economic difficulties. Without the demonstration of a need for the same services and skills that Sengupta possessed, the conceptual underpinnings of McDonnell Douglas crumble.

It is true, of course, that we have said that a prima facie case of disparate treatment may be established "with a combination of direct, circumstantial and statistical evidence of discrimination." Gay, 694 F.2d at 553. However, there is no direct evidence of racial discrimination in this case. Sengupta argues that the use of subjective criteria in the evaluation process and the fact that his supervisor, Dorling, gave another black person, Kendrick Lee, a negative evaluation are evidence of a discriminatory intent. This is not so. Dorling's evaluation of Lee was below average, but it was more complimentary than that of Sengupta. In addition, Lee found his evaluation to be satisfactory.

Moreover, the use of subjective employment criteria is not unlawful per se. Gay, 694 F.2d at 554. Although subjective practices may provide "ready mechanisms for discrimination," Smith v. Union Oil Co., 17 Fair Empl.Prac.Cas. (BNA) 960, 991 (N.D.Cal.1977), their relevance to proof of a discriminatory intent is weak. Honorable employers frequently use subjective criteria also. Indeed, in many situations they are indispensable to the process of selection in which employers must engage. In any event, after nearly two years of discovery Sengupta has been unable to amass any evidence indicating that Dorling, or any other M-K supervisor, used the subjective...