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

645 F.2d 227, 1981 U.S. App. LEXIS 14662, 25 Empl. Prac. Dec. (CCH) 31,690, 25 Fair Empl. Prac. Cas. (BNA) 593

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 2, 1981
• Docket: 78-1792
• Status: Published

Opinions

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 5. 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 to treat less favorably.” Wright, 609 F.2d at 716.

It was in this connection that the district court considered the postal authorities’ asserted failure to follow the Postal Service guidelines for composing the promotion review committees. Looking specifically to the evidence regarding the way in which the committees were composed, the court found that there was no black employee in the Richmond Post Office who was qualified to serve on the PES-17 committee, and that following the failure of the appointed black member of the PES-18 to serve, there was no reasonable replacement available at the critical time. From this the court concluded:

Though neither the first nor second Review Committee contained a minority member, “every effort” was made to obtain one for the second meeting. This lack of a minority member must be weighed against the proper questions asked the applicants, the obvious concern by the Committee members for the applicant’s ability to do the job, and the lack of bias on the part of the Committee members. Further, no law requires that there be any particular racial composition in Review Committees.

Page v. Bolger, No. CA-77-0400-R (EJD.Va. Aug. 16, 1978).

We think that this properly addressed the “pretext” inquiry and, again, we can find no reversible error of fact or law in the district court’s conclusion that the articulated reason of better relative qualification was not a mere pretext. In addition to the fact that this finding rested largely upon assessments of credibility and the resolution of conflicting permissible inferences — matters on which we are commanded by Fed.R.Civ.P. 52(a) to accord great deference to the trial judge’s superior vantage point — we think there is evidence other than the testimony of the decision-makers that supports the finding. As a result of possibly questionable conduct by one of the original PES-18 committee members, the district manager directed reconstitution of the committee to avoid any real or suggested racial bias. When no qualified black employee was available to serve on it from the local post office, one from a relatively distant post office was appointed in an effort to insure minority representation. These actions were directly relevant to the pretext inquiry — as conduct of the employer probative of likely motivation for the ultimate employment decisions. See Furnco, 438 U.S. at 580, 98 S.Ct. at 2951; McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825; Wright, 609 F.2d at 716-17.

In summary, when the district court assessed the evidence under the McDonnell Douglas formula — a mode of analysis which both parties agreed in the trial court was appropriate — it found: (1) claimant’s prima facie case established; (2) the inference of discriminatory intent thereby raised effectively dispelled by defendant’s articulation of a “legitimate nondiscriminatory reason,” i. e., better relative qualifications of others; and (3) this reason not shown to be a mere pretextual cover for discriminatory motive behind the decisions not to promote. In this process, we think the court adhered faithfully to the appropriate mode of analysis and to the issues as framed by the pleadings and addressed in proof by both parties. Bearing in mind that under the disparate treatment theory relied upon by claimant the burden of persuasion remained with him throughout to prove by a preponderance of the evidence that he was “treated less favorably than others because of [his] race,” International 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), in respect of specific “personnel actions,” 42 U.S.C. § . 2000e-16(a), we conclude that the district court’s findings of fact and conclusions of law against the claimant on this ultimate issue were neither erroneous in law nor clearly erroneous in fact.

Ill

Apparently realizing that under this mode of analysis the district court’s assessment of the evidence is probably unassailable on review, Page has urged on appeal a modification of the McDonnell Douglas formula, which it is contended will better serve the remedial purposes of Title VII in the particular factual context of this case. Briefly summarized, this modification would focus the McDonnell Douglas inquiry upon the process by which the review committees were constituted, and would make decisive in claimant’s favor the fact that— in asserted violation of the plain intent of the Postal Service’s internal guidelines⁹ —they included no minority members. The specific modification urged is that used by the panel majority, which first heard this appeal, as a basis for finding reversible error in the district court’s assessment of the evidence. Under it the claimant would establish a prima facie case by showing that (1) he belonged to a minority; (2) he qualified for the position; and (3) he was denied promotion because of an evaluation by a review committee consisting of only white males. At this point the employer would be required to articulate some nondiscriminatory reason for the absence of a minority member on the review committee. If this were done, the pretext inquiry would then focus on this reason, rather than the articulated reason for denying the promotions.

This modification is claimed to be justified because the McDonnell Douglas analytical framework has been recognized as a flexible one requiring adaptation to different fact patterns, see Furnco, 438 U.S. at 575-76, 98 S.Ct. at 2948-49. It is claimed to be required by the fact that here the affirmative action guideline asserted to have been violated has the force of law as a regulation.¹⁰

We reject this as an appropriate basis for analyzing the evidence in this case. While we recognize that the McDonnell Douglas proof scheme is not to be given a wooden application that loses sight of its essential purpose as merely a “sensible, orderly way to evaluate the evidence,” Furnco, 438 U.S. at 577, 98 S.Ct. at 2949, we are satisfied that the modification here urged would amount to a complete substantive shift of focus from the appropriate object of inquiry where employment discrimination by disparate treatment is claimed. Aside from the fact that this contention in effect introduces on appeal a new and dis-positive theory neither advanced nor considered in the district court, its adoption would constitute an erroneous departure from settled and fundamental substantive principles under Title VII.

The proper object of inquiry in a claim of disparate treatment under § 717 is whether there has been “discrimination” in respect of “personnel actions affecting [covered] employees or applicants for employment ....” 42 U.S.C. § 2000e-16(a) (emphasis added). Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII, most notably § 703(a)(1), 42 U.S.C. § 2000e-2(a)(l), has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. This is the general level of decision we think contemplated by the term “personnel actions” in § 717. It is the level focused upon in the major Supreme Court decisions establishing and refining the substantive and procedural elements of individual disparate treatment theory. See, e. g., Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 24-25 & nn.1 & 2, 99 S.Ct. 295, 295-296 & nn.1 & 2, 58 L.Ed.2d 216 (1978) (failure to promote); Furnco, 438 U.S. at 576-77 & n.8, 98 S.Ct. at 2949 & n.8 (failure to hire); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (same). See also B. Schlei & P. Grossman, Employment Discrimination Law 15 (1976). It is the level upon which the district court in the instant case — with the acquiescence there of both parties — focused the McDonnell Douglas analysis. As seems plain from the record, the court and the parties were there agreed that the “personnel actions” in issue were the decisions denying to Page and giving to others the positions that each sought and only one could be given. These were the decisions to which it was thought Page’s prima facie showing of discriminatory motive was properly addressed and weighed. It was clearly these decisions for which a “legitimate, nondiscriminatory reason” was sought in defendant’s rebuttal evidence. Finally, it was these decisions whose nondiscriminatory quality was considered in issue for purposes of assessing the possible “pretextual” nature of the reasons given for them by the defendant. As earlier indicated, we are satisfied that the McDonnell Douglas analysis — originally developed and applied with focus upon a hiring decision — was perfectly suited for application without significant modification to the comparable level of decisions in the instant case.

By this, we suggest no general test for defining those “ultimate employment decisions” which alone should be held directly covered by § 717 and comparable antidis-crimination provisions of Title VII. Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be so considered— for example, entry into training programs, Wright, 609 F.2d at 712 n.10. By the same token, it is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of § 717 and comparable provisions of Title VII. We hold here merely that among the latter are mediate decisions such as those concerning composition of the review committees in the instant case that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc.

To apply the modified McDonnell Douglas analysis urged by Page would do much more than merely modify a procedurally tidy proof scheme. Its practical effect would be a profound substantive one by which these mediate decisions were drawn within the coverage of those “personnel actions” directly covered by § 717.¹¹ By this means a proven violation of the Postal Service’s statutorily mandated “affirmative program,” 29 C.F.R. § 1613.203, designed to eradicate discrimination, 29 C.F.R. § 1613.-203(b), would be made a violation of Title VII itself. Affirmative action undertakings by government employers would come in practical terms to define the standards for compliance with Title VII’s antidiscrim-ination provisions. We do not think this could accord with Congressional intent. See Wright, 609 F.2d at 718.

AFFIRMED.

1 . Page also challenged on this appeal the district court’s denial of his motion for leave to amend his complaint to allege a class action. .Citing the imminence of trial, scheduled for the next month, and the completion of discovery, the district court declined in its discretion to allow the amendment or to grant an accompanying request for continuance. The panel which first heard this appeal unanimously found no abuse of discretion in this ruling and affirmed it. We agree.

2 . The factual summary that follows is adopted, with some change, from that employed in the superseded opinion of the panel that originally heard the appeal. Page v. Bolger, No. 78-1792, slip. op. at 2-5 (4th Cir. Dec. 19, 1979).

3 . Id. § 544.3-1.

4 . Id. § 544.1-2.

5 . The postmaster testified that it was his practice to appoint the applicant whom the committee had ranked first, although §§ 545.1-.2 of the Personnel Handbook do not require him to accept the recommendations.

6 . Both EEO complaints were decided against Page. Page v. Bolger, No. CA-77-0400-R (E.D.Va. Aug. 16, 1978) (unpublished memorandum order).

7 . We have recently discussed the nature and basis of the inference raised by the McDonnell Douglas prima facie case and the burden thereby imposed to dispel it in Wright v. National Archives and Records Service, 609 F.2d 702 (4th Cir. 1979) (en banc).

8 . There is no gainsaying that Page’s qualifications, objectively assessed in relation to those of the successful applicants, would have justified his selection in the exercise of a rational business judgment. This is illustrated by the comments of the appeals examiner who conducted the administrative hearing on Page’s EEO complaint respecting the PES-18 position. He first compared in tabular form the relative objective qualifications of Page and the successful applicant, and then summarized:

This comparison shows that [Page] has more formal education than the [appointee] and slightly more supervisory experience than [the appointee]. On the other hand, the [appointee] has a higher performance evaluation (although both evaluations are close to outstanding in nature) and greater length of service than [Page]. Both employees appear to be highly qualified for the position; therefore, the examiner does not believe it is clear, from this comparison, that [Page] is better qualified than the [appointee] for the position in question.

In re Complaint of Carl F. Page, Dec. No. PH071380132, slip op. at 13 (July 12, 1978).

The examiner also observed “that the selection process was highly subjective,” and suggested improvements to reduce “the great margin of subjective inconsistency among the panel members’ evaluation of the candidates.” Id. at 12.

The examiner’s ultimate conclusion that on the record he reviewed there was a rough tossup in objective qualification factors tends to confirm rather than to draw into question the district court’s assessment that the articulated reason was “legitimate,” i. e., was not manifestly at odds with objective indicators — not pretextual on its face. See Wright, 609 F.2d at 714 n.13.

9 . See text at notes 2-4 supra. The Postmaster General does not concede that the guidelines have in any event been violated. On the contrary, pointing to the admonitory language which imposes only the “responsibility] for making every effort to select at least one . . . minority ... member” for review committees, Postal Service, Personnel Handbook § 544.2, he contends that the evidence shows compliance. In view of our disposition of the appeal, we have no need to address this question.

10 . The contention is that the Postal Service’s Personnel Handbook provisions enjoining “every effort” to insure minority representation on the review committee, see note 9 supra, traces its lineage to statutory mandate.

Section 717(b) of Title VII, 42 U.S.C. § 2000e-16(b), authorizes the Civil Service Commission to enforce the substantive antidiscrimination provisions of subsection (a); delegates rulemaking power for the purpose; and directs compliance by covered agency heads. Pursuant to the statutory mandate, the Civil . Service Commission has promulgated regulations, 29 C.F.R. §§ 1613.201-.643 (1979), which require the head of the Postal Service, along with other agency heads, to establish “a continuing affirmative action program,” 29 C.F.R. § 1613.203, and specifically to “[c]onduct a continuing campaign to eradicate ... discrimination .. . from the agency’s personnel policies and practices and working conditions.....” 29 C.F.R. § 1613.203(b). The Postal Service’s Personnel Handbook, is thus arguably a part of the Postal Service’s regulations, which, tracing their lineage to § 717(b), has the force of law.

For purposes of this appeal we can accept this proposition. That, under United States v. Caceres, 440 U.S. 741, 749, 99 S.Ct. 1465, 1470, 59 L.Ed.2d 733 (1979), the regulation therefore would be entitled to enforcement by a federal court, does not in our view mean that, if violated, its violation must be redressed as if it constituted a direct violation of substantive provisions of Title VII. On this appeal we have no occasion to consider other means by which, if violated, it might have been enforced in Page’s behalf.

11 . This would occur in the following way. Under the straight McDonnell Douglas analysis used by the district court, with denial of promotion taken as the focus of inquiry, the composition of the review committee is significant, perhaps highly so, but only as it relates to the pretextual nature of the reason given for the denial of promotion, as to which the claimant has the burden of proof. Under the modified analysis, the focus of inquiry would shift completely to composition of the review committee, with the burden imposed upon the employer to justify that composition at peril of being found in violation of the substantive prohibitions of § 717(a).