Stout v. Potter

• Decision Date: 10 January 2002
• Docket Number: PLAINTIFFS-APPELLANTS,No. 00-15882,DEFENDANT-APPELLEE,00-15882
• Citation: 276 F.3d 1118
• Parties: (9th Cir. 2002) JANET STOUT; JULIANA NEDD; SHEILA WRIGHT; LEE HARRISON,, v. JOHN E. POTTER, POSTMASTER GENERAL,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1118

276 F.3d 1118 (9th Cir. 2002)

JANET STOUT; JULIANA NEDD; SHEILA WRIGHT; LEE HARRISON, PLAINTIFFS-APPELLANTS, v. JOHN E. POTTER, POSTMASTER GENERAL, DEFENDANT-APPELLEE.

No. 00-15882

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 19, 2001

Filed January 10, 2002

[Copyrighted Material Omitted] Counsel Michael S. Sorgen and Andrea Adam Brott, Law Offices of Michael S. Sorgen, San Francisco, California; Kathleen M. Lucas, The Lucas Law Firm, San Francisco, California, for the plaintiffs-appellants.

David Pinchas, Assistant United States Attorney, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding D.C. No. CV-98-03031-CW

Before: Robert R. Beezer, Stephen S. Trott and Richard C. Tallman, Circuit Judges.

Beezer, Circuit Judge.

Janet Stout, Juliana Nedd, Sheila Wright and Lee Harrison (collectively, the "postal inspectors") appeal the district court's summary judgment in favor of the Postmaster General in their employment discrimination action alleging denial of promotion on the basis of sex. We have jurisdiction, 28 U.S.C. §§ 1291, and we affirm.

I.

Appellants are female postal inspector team leaders in the Postal Inspection Service ("the Service"), the law enforcement branch of the United States Postal Service. They, along with 34 other postal inspectors, applied for promotion to Assistant Inspector in Charge ("AIC"), the highest nonexecutive managerial level in the Service. There were five open AIC positions, one each in San Francisco, Los Angeles, Houston, Milwaukee and Washington, D.C. Six of the 38 applicants who vied for these positions were women.

A review panel initially screened all applicants on the strength of their supervisor evaluations and applications. The panel identified the most qualified candidates and forwarded their names as potential interviewees to a separate selection committee that made the final hiring decisions. From the original pool of 38, the screening panel identified 10 applicants as the most qualified. None of the six female applicants was named to this list and none was initially interviewed by the selection committee.

Two female applicants were granted interviews in a second screening round which arose from unexpected circumstances. The selected candidate from the first round of interviews for the San Francisco position declined an offer. The Inspector in Charge of that office was not satisfied with the remaining candidates who were first interviewed and asked the screening panel to select additional names from the original pool of applicants. Two of the additional five applicants chosen to be interviewed were female applicants. One of these female applicants ultimately was promoted to the San Francisco AIC opening.

The postal inspectors commenced this action alleging that the Service caused them to suffer both disparate treatment and disparate impact on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§§§ 2000e to e-17. The district court granted the Service's motion for summary judgment on both claims of discrimination. The postal inspectors now appeal, contesting only the dismissal of their disparate impact claim.

II.

We review a district court's grant of summary judgment de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

III.

A claim of disparate impact challenges"employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Int'l Brotherhood 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); see also 42 U.S.C. §§ 2000e-2(k)(1)(A)(i). A plaintiff establishes a prima facie case of disparate impact by showing a significant disparate impact on a protected class caused by a specific, identified, employment practice or selection criterion. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656-57, 109 S. Ct. 2115, 2124-25, 104 L. Ed. 2d 733 (1989); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-96, 108 S. Ct. 2777, 2788-90, 101 L. Ed. 2d 827 (1988)). It is not sufficient to present evidence raising an inference of discrimination on a disparate impact claim. The plaintiff "must actually prove the discriminatory impact at issue." Rose, 902 F.2d at 1421.

A prima facie case of disparate impact is "usually accomplished by statistical evidence showing `that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants.' " Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1988) (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir. 1983)). Although statistical data alone, in a proper case, may be adequate to prove causation, Wards Cove, 490 U.S at 650, 109 S. Ct. at 2121, the"statistical disparities must be sufficiently substantial that they raise such an inference of causation." Watson, 487 U.S. at 995, 108 S. Ct. at 2789; see also Clady v. County of Los Angeles , 770 F.2d 1421, 1428-29 (9th Cir. 1985)

IV.

The district court found that no prima facie case of disparate impact was proven. Focusing on the final results of the promotion process, the district court noted that one out of six female applicants was promoted, whereas 3 out of 32 male applicants received a promotion to AIC.¹ This meant that female applicants were promoted at a rate of more than 16 percent, compared to a promotion rate for male applicants of less than 10 percent.

We do not gainsay the district court's reasoning as it pertains to the bottom line results of the promotion process. The problem, however, is that the promotion process included an intermediate stage that functioned as a pass or fail barrier to further consideration. Promotions to AIC were offered only to applicants who were interviewed by the selection committee, and interviews were granted only to those selected by the screening panel. It is at the intermediate screening stage that the postal inspectors direct their disparate impact claims. The nonadverse results of the ultimate promotion decisions cannot refute a prima facie case of disparate impact at the dispositive interview selection stage. See Connecticut v. Teal, 457 U.S. 440, 452, 102 S. Ct. 2525, 2533, 73 L. Ed. 2d 130 (1982). Whether disparate impact was shown must address the results of the interview screening decisions, not simply the bottom line promotion decisions.

The postal inspectors urge us to adopt an even finer distinction. They contend that Teal requires analytical separation of the two screening rounds as well. No female applicant was selected to be interviewed in the first round. The postal inspectors wish to isolate this zero selection rate and make it the basis of their prima facie case. We see no sound reason to accept the distinction urged upon us. We separate the results of the interview selection stage from the results of the overall promotion process because the intermediate stage functioned as a pass or fail barrier to further consideration for promotion. No such barrier existed between the two screening rounds. Applicants who were not selected in the first round were again considered in the second round of interviews. Failure to be selected in the first round did not foreclose an applicant's consideration for interview in the second round.

It is of no significance that the second round interviews were originally unplanned or limited to filling the San Francisco opening. The rationale, intent or motive underlying a challenged employment practice plays no part in a prima facie case of disparate impact. Watson, 487 U.S. at 988, 108 S. Ct. at 2785. The concern is the outcome of the practice at issue, not its underlying intent. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S. Ct. 849, 854, 28 L. Ed. 2d 158 (1971) (holding that disparate impact claims are directed at "the consequences of employment practices, not simply the motivation"). The results of the first and second screening rounds represent the outcome of the same selection practice that the postal inspectors challenge. They cannot be analytically separated for purposes of disparate impact analysis.

We now consider the statistical conclusions that can be drawn from the results of both screening rounds. We observe initially that the probative value of any statistical comparison is limited by the small available sample. See Watson, 487 U.S. at 996-97, 108 S. Ct. at 2790 (stating that statistical evidence may not be probative if it is based on a "small or incomplete data set"); Morita v. Southern Cal. Permanente Med. Group, 541 F.2d 217, 220 (9th Cir. 1976) ("[S]tatistical evidence derived from an extremely small universe . . . has little predictive value and must be disregarded.") (quoting Harper v. Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975)). A sample involving 6 female applicants in a pool of 38 applicants is likely too small to produce statistically significant results. Cf. Contreras v. County of Los Angeles, 656 F.2d 1267, 1272-73 (9th Cir. 1981) (discounting probative value of statistical sample consisting of 57 test-takers, 17 of whom belonged in the plaintiffs' protected class); Morita, 541 F.2d at 219-20 (finding 8-case sample too small). Assuming the data set here is adequately reliable, the evidence does not indicate a substantial statistical disparity.

The first step in a statistical analysis is to identify the base population for comparison. Generally,...