771 F.2d 772
39 Fair Empl.Prac.Cas. 559,
38 Empl. Prac. Dec. P 35,562
ROBINSON, C. Bernard, Individually and On Behalf of Other
Individuals Similarly Situated
v.
LEHMAN, John J., Individually, His Predecessors and
Successors And As Secretary of the Navy and Ruehlin, John,
Commodore, Individually, His Predecessors and Successors and
as United States Navy Commanding Officer Aviation Supply Office.
Appeal of C. Bernard ROBINSON.
No. 84-1638.
United States Court of Appeals,
Third Circuit.
Argued June 12, 1985.
Decided Aug. 29, 1985.
Francis X. Nolan (argued), Harry C.J. Himes, Jennifer R. Miller, Himes, Sanders & Nolan, P.C., Philadelphia, Pa., for appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Asst. U.S. Atty., Chief of Appeals, Alexander Ewing, Jr., Chief, Civ. Div., Joseph M. Masiuk, Asst. U.S. Atty., Philadelphia, Pa., Joseph G. Lynch, Associate Chief Trial Atty., Susan D. Warshaw (argued), Trial Atty., Litigation Office, Dept. of Navy, Washington, D.C., for appellees.
Before HIGGINBOTHAM and BECKER Circuit Judges, and LACEY, District Judge.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Plaintiff-appellant Collien Bernard Robinson, a civilian employee of the United States Navy, initiated this racial discrimination action on behalf of himself and other individuals similarly situated, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), against defendant-appellees the Secretary of the United States Navy and the Commanding Officer of the United States Navy's Aviation Supply Office, Philadelphia, Pennsylvania.
Robinson submitted a motion for class certification on June 16, 1983, which was denied on August 30, 1983 for failure to establish compliance with Fed.R.Civ.P. 23, with leave to file a supplemental motion. A supplemental motion for class certification was filed on September 4, 1983. This motion was denied on January 6, 1984. Prior to trial, Robinson petitioned for issuance of a temporary restraining order seeking, inter alia, to enjoin the Navy's counsel from contacting, interviewing, or communicating with employees of the Aviation Supply Office, particularly black employees, with reference to any aspect of the action. Robinson alleged that the Navy was attempting to coerce and intimidate the witnesses to prevent them from testifying. After oral argument, the district court denied this motion also.
A non-jury trial on the individual action commenced on July 2, 1984, after which the district court found that the evidence did not support Robinson's assertion that his non-selection for promotion had been the result of prohibited discrimination. The district court determined that although under Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), Robinson had presented a prima facie case of discrimination, the Navy had articulated legitimate reasons for its failure to promote him and had rebutted Robinson's prima facie case. The district court concluded that Robinson failed to "carry his burden of proof under Burdine of showing that [the] articulated reason was pretextual and that 'but for' the plaintiff's race he would have been promoted." Appendix ("App.") at 1417.
This appeal followed entry of final judgment in favor of the defendants. For the following reasons, we affirm.
I.
Collien Bernard Robinson ("Robinson") is a black male citizen of the United States and a resident of the Commonwealth of Pennsylvania. He earned his Bachelor of Science degree in accounting from Temple University in 1958. On April 25, 1960 he started civilian employment in the entry level Grade Schedule Five ("GS-5") position of Supply Commodity Management Assistant with the United States Navy's Aviation Supply Office ("ASO") located in Philadelphia. Robinson received a series of competitive and non-competitive promotions in rapid succession from GS-5 to GS-7, to GS-9, to GS-11, and then to the GS-12 Supply Systems Analyst position in the Systems Development Division, Systems Development Branch I of ASO, in December of 1968. App. at 32.
Because of his outstanding abilities and potential, the ASO awarded Robinson a fellowship to the master's program in management offered at Temple University. App. at 13, 33. By 1970, Robinson had completed all course work required to obtain a Masters' Degree, and returned as a full-time employee at ASO. App. at 14, 34. Upon his return, Robinson acquired the additional duty of serving as an Equal Employment Opportunity Counselor ("EEO Counselor") App. at 34-5. After Robinson fulfilled his duties and obligations as an EEO counselor at ASO, his career advancement came to an abrupt halt. App. at 14. In January of 1977, Robinson applied under Merit Promotion Vacancy Announcement ("VA") No. 76-53T for a competitive merit promotion to the GS-13 Supervisory Supply Systems Analyst position. This announcement was advertised to fill two vacancies open at that time. Robinson submitted an application to fill one of these positions and was not selected for either one. The gravamen of his complaint is that the failure of the ASO to promote him to one of the two supervisory positions he applied for was a result of disparate treatment on account of racial bias violative of Title VII. He challenges the Merit Promotion Plan itself as drafted and as applied.
The ASO Merit Promotion Plan is the local Navy program for filling positions by promotion in accordance with the Civil Service Commission's Federal Merit Promotion Program. App. at 1892-1901. The selection procedure in effect in 1977 and 1978, JOINTINST 12340.2E, involved a two-tiered screening process. The first step in filling the position advertised in VA 76-53T was to determine which of the applicants possessed the basic qualifications for the position. An employee was required to submit a written application (on a form prescribed by ASO) to the personnel office, describing the applicant's experience and answering job-related questions, including information on awards and training or education. At the close of the announced application period, a personnel management specialist would review the applications in order to determine whether the applicants possessed the basic qualifications for the position. The applications were evaluated against the standard set forth in the Office of Personnel Management's Qualifications Standard. The applications meeting these minimum requirements would then be rated and ranked. Robinson was rated "highly qualified" and thus eligible for the position under this criteria. App. at 130-52.
Second, if the applicant met the minimum qualifications, as did Robinson, the applicant's supervisor was required to provide a written appraisal evaluating the employee for the particular vacancy. In the event a supervisor had supervised the employee for less than six months, the supervisor was required to collaborate with the employee's previous supervisor in filling out the appraisal. Therefore, Captain Gerald Abbott ("Abbott"), Robinson's supervisor at the time of his job application, and Ms. Kathleen Addis (now Fitzgerald) ("Addis"), Robinson's former supervisor, jointly prepared his appraisal.
The form utilized for supervisory appraisals by the ASO included 7 job elements (technical competence, quality and timeliness, communications abilities, cooperation, stability, supervision and administration, and subject matter skills and knowledge) and 25 subelements. App. at 1502-03. Applicants could receive a maximum of 4.0 points for each of the 7 job elements under which their merit promotion applications were evaluated (4 points for "outstanding" rating, 3 for "above average", 2 for "average", and 1 for "marginal") App. at 1426, 1439. Because each job element was usually worth a total of not more than 4 points, applicants could receive a maximum of 28.0 points. "Highly qualified" applicants were those candidates whose total raw point value was at least 21.0.
On his appraisal, Robinson obtained a total point value of 27.1, receiving 15 grades of "outstanding" and 10 grades of "above average" in the various subelements. He received scores of less than 4.0 in Job Element I, Technical Competence; Job Element III, Communications Abilities; Job Element VI, Supervision and Administration; and Job Element VII, Subject Matter Skills and Knowledge. App. at 1498-99.
Robinson's application and appraisal were then forwarded to a rating schedule panel to be scored under pre-determined written criteria with all other applicants for the job. Based on his application and Abbott's and Addis's joint appraisal, Robinson received a score of 99.0 out of a possible 100 points. App. at 1498-99, 1441. Under this Merit Promotion Plan, supervisory appraisals alone could account for as much as 100 of the 100 points which an applicant could have been awarded in the rating process. App. at 1799.
This score of 99.0 placed Robinson 17th on a list of 24 applicants. The scores ranged from 100 to 89.8 and 10 people received scores of 100. After rating and ranking the candidates, the rating schedule panel prepared a list of applicants in order of their scores on the promotion certificate. The certificate, once issued, was then forwarded to a selection advisory panel to recommend employees for promotions. Eleven applicants were placed on the socalled Certificate of Eligibles. Robinson's score, however, was not high enough to place him on the Certificate of Eligibles, and only those on the Certificate of Eligibles would be considered for a promotion as a Supervisory Supply Systems Analyst. Two white males, Leonard Burk and Michael Kopcho, were selected from the list of the eleven to fill the two vacancies. App. at 40-41. Had Robinson gotten a score of 100 he would, by virtue of his other qualifications, have been at the top of the list of eligibles. App. at 1880.
From December 1968 to the time of trial in July 1984, Robinson remained employed as a federal civil servant in the GS-12 Supply Systems Analyst position. On September 30, 1984, Robinson retired from federal civil service.
II.
The district court's finding that Robinson established a prima facie case of discrimination is not an issue in this appeal. Robinson, however, contests the district court's conclusion that the defendants met their lesser burden of articulating a legitimate nondiscriminatory reason for his non-promotion. Moreover, he alleges that the district court made insufficient factual findings, as a matter of law, to sustain the legal conclusion that he failed to prove that the Navy's articulated reason was pretextual. He further assails the district court's exclusion of certain documentary evidence supposedly pertaining to the treatment of comparable white employees, the district court's denial of his petition for a temporary restraining order and the district court's denial of his motion for class certification.
III.
A.
Robinson first claims that the district court misapplied the law because it failed to adhere to this court's decision in Worthy v. United States Steel Corporation, 616 F.2d 698 (3d Cir.1980) and therefore made insufficient findings of fact to justify its legal conclusion that Robinson failed to meet his burden of proving that the reasons advanced by the Navy for his non-promotion were pretextual.
In Worthy, a black employee brought an action against his employer asserting that his suspension and demotion constituted disparate treatment against him in violation of Title VII. In reviewing Worthy's assertion that he received more severe punishment for a safety incident because he was black, we held that a plaintiff in a Title VII action is entitled to demonstrate that a facially neutral decision was in fact a pretext for discriminatory treatment. In so holding, we stated that evidence that white employees with comparable records were not similarly treated is particularly relevant.
The major issue in Worthy was whether the district court's implicit finding of no pretext was legally insufficient because the district court failed to consider the employer's treatment of comparable white employees in determining that there was no discrimination. We concluded that the finding was indeed legally insufficient and we remanded the action to the district court with directions to make additional findings on the issue of pretext for discriminatory activity. Id. at 703-04. We ruled that it was insufficient, as a matter of law, for the district court to merely determine that white workers with safety records as bad as black workers' safety records were demoted; the district court was also required to consider evidence presented by the plaintiff and make a finding as to whether there were white workers whose safety records were as bad as his but were not disciplined to the extent that he was.
Thus, we stated in Worthy that before a finding of no pretext can be made, it is incumbent upon the district court to consider the evidence presented by the plaintiff purportedly showing that there are comparable whites who were not treated similarly. Moreover, we stressed the need for adequate findings of fact relevant to the pretext issue to provide an appellate court with a clear understanding of the basis of the decision. Id. at 704. With Worthy in mind, we must now consider whether the district court's findings of fact with regard to pretext in this case are sufficient as a matter of law for our review.
We remanded in Worthy because the decision did not contain any explanation for the district court's inconsistent findings and it appeared that the district court might have failed to consider evidence presented at the prima facie case stage in the pretext stage. Id. at 703. In contrast, the district judge in the present case concluded that Robinson did not present evidence establishing that the Navy's reasons for his non-selection were pretextual under the standard articulated in Burdine. App. at 1417. The ultimate burden remains with the plaintiff to prove to the trier of fact that the defendant engaged in discrimination. Duffy v. Wheeling Pittsburgh Steel Co., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984).
In this case, as the government points out, whether the Navy's articulated reasons were pretextual required the district judge's consideration of (1) whether the criteria upon which the scores of the applicants were determined were discriminatory; (2) whether other applicants received scores different from Robinson as a result of discrimination; and (3) whether the supervisory appraisals prepared for Robinson and other employees by Abbott and Addis were scored differently as a result of discrimination.
With regard to whether the criteria upon which the scores were determined was discriminatory, Robinson maintains that the Merit Promotion Plan emphasized the subjective evaluations of a promotion candidate's immediate supervisor and de-emphasized objective criteria such as education and experience. He claims that the plan ranked and screened out promotion candidates based on criteria not shown to be job related, i.e., "unvalidated." See Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983). Thus, he argues that the criteria by which the scores of the applicants were derived contained subjective elements which could be and were manipulated to discriminate. The district court, however, determined that Robinson failed to present evidence that this was done either by the rating and ranking panel or by his supervisors in preparing his appraisal.
The district court also examined Robinson's allegations that education and training criteria were used to screen out black applicants and that an insufficient amount of credit was given for his formal education. App. at 1416. The district judge noted that he found credible the testimony of Abbott that the reason for these criteria was to preclude limiting applicants receiving points for education and training to only those with college or graduate educations. The criteria used were to enable individuals with on-the-job experience and government training to also get points. App. at 1416. The district judge found that this policy was reasonable and that there was no evidence presented that the policy "somehow worked against blacks." App. at 1416.
Second, in terms of whether other applicants received scores different from Robinson due to discrimination, the district court found that the ASO Merit Promotion Plan was not discriminatory in and of itself and was applied properly so that Robinson's non-selection was not the result of any prohibited discrimination. The district judge noted that "The plaintiff ... presented several witnesses who gave anecdotal testimony of instances in which they believed the merit promotion system had been rigged to promote a favorite." Id. Witnesses offered by Robinson on this point were: Martha Robinson, Fenley and Cimmino. The district judge specifically determined that the testimony of these witnesses on this point was not credible. Id. Moreover, he examined the substance of the testimony presented by these witnesses and still found that it provided no evidence that the Merit Promotion Plan had been manipulated so as to discriminate against Robinson:
Even if I found the testimony to be credible, which I do not, these histories have nothing to do with the facts of this case. They all involved promotions for different jobs, and with different supervisors giving the evaluations.
Id.
Finally, the district court considered and made findings as to whether the supervisory appraisals prepared for Robinson and other employees by Abbott and Addis were scored differently as a result of discrimination. Robinson avers that his failure to receive a sufficiently good supervisory appraisal that would place him on the Certificate of Eligibles was a result of racial discrimination. Moreover, he asserts that the plan was susceptible to manipulation by ASO supervisors, that it had, in fact, been so manipulated and that he had been affected by such manipulation. The district court concluded that this allegation was not supported by the evidence. Specifically, the district court found that Robinson "failed to present evidence that his supervisors harbored some racial animus and that it played a part in their treatment of Robinson." Id.
Thus, the district judge did examine whether Robinson's supervisors had evaluated him differently from the other applicants and whether the scores on the appraisal he received were the result of discrimination. App. at 1415. But he determined that the testimony of Robinson's supervisors, Abbott and Addis, was highly credible and that the score Robinson received was not the result of any prohibited racial discrimination. He concluded that the witnesses presented by Robinson to rebut the Navy's articulated reasons were not credible and therefore, did not establish that the Navy's articulated reasons were pretextual. Even if credible, the district court concluded that the substance of their testimony did not relate to the instant action. App. at 1416-17.
Worthy requires that the findings of the district court be adequate to understand the basis for the court's decision. Furthermore, Fed.R.Civ.P. 52(a) requires that a non-jury decision set forth sufficient findings of fact so that the appellate court, on review, can ascertain the basis for that decision.
Despite the fact that the district judge may not have addressed each point with the amount of specificity and detail we may have preferred, we cannot say that he misapplied Worthy with respect to his consideration of the evidence concerning comparable white employees. We believe he made adequate, albeit sparse, findings relevant to the pretext issue.
B.
We also hold that the district court's finding of insufficient evidence to establish pretext is not "clearly erroneous." See Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 180 (3d Cir.1985). Furthermore, we do not believe that it was error on his part to credit the testimony of Robinson's supervisors to the effect that they exercised their best judgment without allowing race to affect their decision. Whack v. Peabody, 595 F.2d 190, 194 (3d Cir.1979).
In reaching these conclusions, we are bound by the Supreme Court's most recent articulation of our scope of review. In Anderson v. City of Bessemer, N.C., --- U.S. ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985), a Title VII sex discrimination case, the Supreme Court cautioned appellate courts as to the general principles governing the exercise of an appellate court's power to overturn findings of a district court. The foremost of these principles is that "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson, 105 S.Ct. at 1512 (emphasis added). Because we must give due regard to the opportunity of the trial judge to judge the credibility of witnesses, the district court's findings in this case cannot be disturbed.
Nonetheless, in affirming the district court's judgment, we do it with a sense of disquietude. Robinson's counsel prepared this matter with unusual thoroughness and presented a very compelling case which the factfinder could have found established racial discrimination.
Certainly, there was abundant evidence in the record whereby the factfinder could have found that Robinson had as much or more education than any of the eleven white individuals placed on the Certificate of Eligibles--four of whom had only high school degrees. Surely, the factfinder could have found that Robinson had more overall experience and specialized experience in GS-13 series than any of the eleven whites placed on the Certificate of Eligibles, including the selectees Kopcho and Burke. Moreover, the factfinder could have found that it was significant that Robinson had trained James Gaynor, the third white man promoted ahead of him to GS-13, who had twice been rejected for Supervisory Supply Systems Analysts positions (due to his unfamiliarity in general with ASO systems), even if it was a re-promotion situation.
The factfinder could have also found that the subjective "criteria" used by supervisors were often masks for favoritism and manipulative devices to propel favorite employees into upper echelon positions without establishing that the persons chosen were the best qualified for the job. The factfinder could have found that it was incredible that Robinson's supervisors, after having rated him "outstanding", which in the wording of the controlling regulation means "exceptional, remarkable, eminent, rare, uncommon, unusual, singular or phenomenal" on more than half of the applicable job elements and subelements, app. at 1500, that, seven years later, at trial, when confronting a charge of racial discrimination, these same supervisors asserted that Robinson was merely "average". App. at 326-328. From our vantage point, there was much evidence by which the trial court could have found that the Merit Promotion Plan job criteria, which served to screen out Robinson for promotion selection, were "unvalidated" and not job related. But the trial court found that the testimony of the key supervisors was "highly credible."
Thus, even in light of all of the above findings that could have been made--and if they had been made, given our view of this record, they would have been appropriate--these were not the only findings that were permissible or plausible. The Anderson Court held that where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson, 105 S.Ct. at 1512 (emphasis added). Under the standard set forth in Anderson, we feel compelled to conclude that the district court's findings in the instant matter cannot be deemed to be clearly erroneous.
Our appellate review process does not always guarantee that the "truth" is found or that individual justice is done; it merely guarantees that a case is tried and reviewed "according to the rules." And when that is done, Anderson teaches us that the appellate court cannot remand or reverse simply because it may, on a de novo review, have decided the case differently.
IV.
We can more readily dispense with Robinson's remaining arguments. Less persuasively, he avers that the district court erred by failing to admit documents which purportedly demonstrated a pattern or practice of discrimination at ASO. While it is established that evidence of pretext in a Title VII case can include an employer's general policy and practice with respect to minority employment, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973), the documents in issue apparently were exhibits which were not admitted into evidence either because (a) they were withdrawn in response to opposing counsel's objection, app. at 403-404, (b) they were rejected by the district court as irrelevant under Fed.R.Evid. 402 or (c) they were rejected for lack of foundation pursuant to Fed.R.Evid. 901. We find no abuse of discretion on this record.
V.
Finally, Robinson alleges that the district court abused its discretion by denying his petition for a temporary restraining order and that it abused its discretion by denying his motions for class certification. We find these arguments equally unconvincing.
Regarding the denial of Robinson's motion for a temporary restraining order, we are of the opinion that we lack jurisdiction to review this contention. The denial of a temporary restraining order is not generally appealable unless its denial decides the merits of the case or is equivalent to a dismissal of the claim. 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2962 (1983). From our review of the record, the temporary restraining order in this action would not have decided the merits of the case nor would it have amounted to a dismissal of Robinson's discrimination claim.
Concerning the class certification issue, we believe that the district court properly determined that Robinson failed to establish the numerosity requirement of Fed.R.Civ.P. 23(a)(1) because his Supplemental Motion for Class Certification did not establish that the number of blacks that were precluded from attaining supervisory and managerial positions is so numerous that joinder of all members is impracticable. "[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigourous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). We see no impropriety in the district court's rulings.
VI.
For the foregoing reasons, the judgment of the district court will be affirmed.