White v. City of San Diego

• Decision Date: 24 September 1979
• Docket Number: No. 77-1195,77-1195
• Citation: 605 F.2d 455
• Parties: 20 Fair Empl.Prac.Cas. 1649, 21 Empl. Prac. Dec. P 30,294 Sheryl Z. WHITE, Plaintiff-Appellant, v. CITY OF SAN DIEGO, A.A. "Bud" Bigge, Ruben Dominguez, William G. Sage, R. W. King and Fred M. Conger, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 455

605 F.2d 455

20 Fair Empl.Prac.Cas. 1649,

21 Empl. Prac. Dec. P 30,294

Sheryl Z. WHITE, Plaintiff-Appellant, v. CITY OF SAN DIEGO, A.A. "Bud" Bigge, Ruben Dominguez William G. Sage, R. W. King and Fred M. Conger Defendants-Appellees.

No. 77-1195.

United States Court of Appeals Ninth Circuit.

Sept. 24, 1979.

Sheridan Reed, Eckhardt, Reed & Reed, San Diego, Cal., argued, for plaintiff-appellant.

John W. Witt, City Atty., San Diego, Cal., on brief, for defendants-appellees; Ted Bromfield, Deputy City Atty., San Diego, Cal., argued.

Appeal from the United States District Court for the Southern District of California.

Before TRASK and WALLACE, Circuit Judges, and SOLOMON, ^* District Judge.

WALLACE, Circuit Judge:

White appeals a district court ruling that the City of San Diego (the City) and certain named defendants did not discriminate against her on the basis of sex in her attempts at promotion to higher level accounting positions with the City. We affirm.

I

Although several factual issues are disputed, the basic sequence of events is clear. City accounting positions, ranked from highest to lowest, are principal accountant (a managerial position), senior accountant, accountant, and junior accountant. Promotion to accountant is automatic after passage of an examination; promotion to senior or principal accountant requires not only passage of an examination but an oral interview as well.

To fill a vacancy, the appointing authority submits a "requisition" to hire or promote an employee to a specific position. The City's hiring rules require that three potential employees have passed the required examination before the City may select one to fill the position. On occasion, this requires the City to provide an extra administration of the required examination if three "eligibles" are not currently certified for hiring or for promotion to the particular position.

From 1967 to 1974, the City maintained a "Career Advancement" program pursuant to which the City could "fill" certain budgeted positions with personnel from lower levels. Pursuant to this program, the City could fill positions budgeted as accountant or senior accountant positions but not those budgeted as principal accountant positions by hiring persons at the junior accountant level. Thus, with the one exception, a person could be hired in a lower position than that budgeted. Those so hired could then be advanced to the budgeted position as they gained the requisite qualifications. This allowed the City great flexibility in its development of career personnel.

The City hired White as a junior accountant pursuant to the Career Advancement program in 1969. In 1970 she was promoted to accountant. She became eligible for the position of senior accountant in November 1972. In May 1974, White passed the examination for principal accountant; in November of that year she was promoted to senior accountant. ¹ Between her 1972 eligibility and 1974 promotion, the City hired a number of junior accountants and in September 1973 made two promotions to senior accountant. In the first instance, a male, a female and White were certified and, after interviews, the male was selected. A second requisition was then issued and the other female was promoted.

White filed a charge of employment discrimination with the Equal Employment Opportunity Commission and, after receiving the appropriate right to sue letter, brought this action in 1974, claiming defendants violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e Et seq. She sought back pay and other relief. ² The district court ruled in part that she had not made out a prima facie case of sex discrimination. On appeal she challenges that ruling, claiming that pursuant to either McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), she established the requisite prima facie case.

II

White first claims that she established a prima facie case of sex discrimination by satisfying the four elements set forth in McDonnell Douglas. There the Court held that a Title VII plaintiff may establish a prima facie case of discrimination by showing:

"(i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (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.

411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted).

White argues that a position remained "open" because the City had budgeted, but did not fill, senior accountant positions. ³ It is not clear that the district court ruled on this argument, but regardless of whether a position was open, other essential elements of McDonnell Douglas remain unsatisfied.

White apparently claims that she was first rejected for a senior accountant position when she was not promoted under the first September 1973 requisition. She claims the City then continued to seek senior and junior accountants after her rejection, satisfying the last element of the McDonnell Douglas standard. Viewing the budgeted positions as "open," White appears to argue that the second September requisition for senior accountant constituted the requisite search for applicants of White's qualifications. But White states that she was rejected under this requisition as well. She does not state as part of her prima facie case theory that she was not considered for the senior accountant position under the second September requisition. Thus she presents no point at which the City considered others of her credentials but did not consider her; the applicants it continued to seek included White.

We recognize, of course, that the Court has stated that the four-element McDonnell Douglas standard "was not intended to be an inflexible rule," Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), and that White need only show actions by the employer "from which one can infer, if such actions remained unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.' " Id. at 576, 98 S.Ct. at 2949 (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Thus, a proper prima facie case identifies sex as the likely reason for the denial of a job opportunity. But we think the "rejection" element of the McDonnell Douglas test operates to identify the points at which consideration of the plaintiff ends so that if further applicants are sought from persons of plaintiff's qualifications, such an action raises an inference of discrimination. In this case White has presented no point at which the City's conduct could suggest a reason for the first "rejection," for she contends neither that she was barred from consideration for promotion following that initial "rejection," nor that she was not considered when others of her qualifications were. Simply put, considering the facts on which White relies to make out a prima facie showing of sex discrimination, we cannot say that as a matter of law she was ever "rejected" as a senior accountant for purposes of McDonnell Douglas. ⁴

Nor can the subsequent hiring of junior accountants satisfy McDonnell Douglas. It is undisputed that the qualifications for a junior accountant position, by definition, differ from those required for a senior accountant position. For this reason, such hirings cannot demonstrate that White was no longer under consideration for the position of Senior accountant. Further, even if we were to assume they followed White's "rejection," these hirings do not meet the further McDonnell Douglas requirement that the City continue to seek applicants from "persons of complainant's qualifications," and thus provide no clue to the basis of that "rejection." Thus, however we view the City's subsequent junior accountant hirings, they cannot, on these facts, raise an inference of discrimination on the basis of sex.

III

We next examine White's claims based on her statistical data. White offered data showing the rates at which the City hired or promoted men and women at the junior, senior, and principal accountant levels. Relying on Griggs v. Duke Power Co., supra, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, she argues that her statistical proof made out a prima facie showing that the oral interviews required for promotion to senior and principal accountant had a discriminatory impact on women. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). She argues that her statistics show hiring disparities at the junior accountant level and that this proof, coupled with a consistent pattern at higher levels, constitutes a prima facie showing that certain aspects of the Career Advancement program had a disparate impact on women. White also claims that her statistical showing is relevant under a modified McDonnell Douglas prima facie showing, relying on Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973). She argues that she may establish a prima facie case of disparate treatment under McDonnell Douglas by showing:

"(i) that plaintiff belongs to a . . . minority, (ii) that he was qualified for promotion and might have reasonably expected selection for promotion under the defendant's on-going competitive promotion system, (iii) that he was not promoted, and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against members of the involved minority."

Id. White claims she showed discrimination in the junior accountant hiring;...