Casillas v. United States Navy

735 F.2d 338, 34 Fair Empl. Prac. Cas. (BNA) 1493, 1984 U.S. App. LEXIS 22367, 34 Empl. Prac. Dec. (CCH) 34,394
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 18, 1984
DocketNo. 83-5808
StatusPublished
Cited by48 cases

This text of 735 F.2d 338 (Casillas v. United States Navy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casillas v. United States Navy, 735 F.2d 338, 34 Fair Empl. Prac. Cas. (BNA) 1493, 1984 U.S. App. LEXIS 22367, 34 Empl. Prac. Dec. (CCH) 34,394 (9th Cir. 1984).

Opinion

WALLACE, Circuit Judge:

Casillas sued the United States Navy, and others, for refusing to promote him because of his national origin (Hispanic or Mexican). In a pretrial stipulation, Casillas [341]*341dismissed all defendants from the complaint except for the Secretary of the Navy (Secretary). The parties agreed to try the case before a magistrate. The magistrate found the Secretary not liable under Title VII, as amended, 42 U.S.C. § 2000e et seq. We have jurisdiction over Casillas’s timely appeal under 28 U.S.C. § 1291, and affirm.

I

Casillas has a Bachelor of Science degree in Industrial Management and is a registered industrial engineer in California. He works at the Naval Air Rework Facility (NARF) at North Island in San Diego, a large military-industrial complex owned and operated by the United States Navy. In 1948, with three years in the Air Force behind him, Casillas started at NARF as an electrician’s helper. Moving out of direct production activities by 1952, Casillas progressed through various NARF jobs until 1956, when he resigned, having risen to the GS-7 level. After a brief stint at an aerospace firm, Casillas returned to NARF late in 1956 to do production support and industrial engineering type activities. He again left NARF, at the GS-11 level in September 1964, to work for the Office of Economic Opportunity (OEO), for San Diego’s May- or, and again for the OEO, where he had achieved a GS-16 job as Deputy Regional Director by February 1973. Casillas joined NARF, for the third time, in 1974, as a Spanish-Speaking Coordinator (GS-9) and became a Deputy Equal Employment Opportunity Officer (GS-12) by August 1975.

Casillas applied for promotion to Production Superintendent (GS-13), the job at issue here, in February 1976, responding to a job announcement posted that January. He submitted form SF-171, including a supervisory experience statement along with 20 additional pages of information. Although initially found ineligible to apply, Casillas was eventually placed on a list of eligible candidates.

NARF’s three-step promotion procedure for supervisory positions graded GS-9 or higher is governed by a merit promotion instructions system called “NASNI/NA-VAIRE W ORKFACIN ST 12340.3G.” The system is composed of: (1) a ratings panel; (2) an advisory panel; and (3) a selecting official. The ratings panel chooses “highly qualified” applicants from the pool of eligi-bles and the advisory panel then recommends at least two of those to the Selecting Official.

Omelina, the Selecting Official, designated the two-person rating panel which subsequently ranked Casillas only “qualified,” thus not available for the next stage of consideration. Casillas applied for rerating and was ultimately ranked “highly qualified” by a new ratings panel with one of the persons changed. Ratings panels grade the applications pursuant to a job element crediting plan, evaluating each applicant and his experience vis-a-vis the job’s requirements. The new person on the second panel testified that he personally viewed certain aspects of Casillas’s experience to be more valuable than the previous panel member had.

Omelina then selected a seven-person advisory panel of senior managers with extensive NARF experience to consider the ten “highly qualified” applicants including Casillas. The panel’s chairman was a Navy Commissioned Officer and test pilot for NARF’s final product who knew NARF intimately as well as NARF’s and the Navy’s equal employment opportunity objectives. Advisory panel members were not provided with the ratings panel’s ranking of the candidates. Although the advisory panel did not receive explicit written selection instructions, Omelina orally advised the panel to select the best qualified people, using its own judgment. The panel interviewed each applicant, then its members individually and collectively assessed the applications and supplements, until some consensus arose as to the best, in this case, three of the ten. These three persons were then recommended to Omelina for the two available Production Superintendent positions. The advisory panel kept no notes or memoranda and issued no reasons for non-promotion to the applicants.

[342]*342Casillas was not among the three candidates the advisory panel recommended to Omelina. Two non-Hispanic or non-Mexican white males ultimately were promoted to the GS-13 jobs. Casillas believed he was more qualified than those men, neither of whom had as much formal school as he, and complained to NARF’s Commanding Officer. His complaint asserted that, although he was better qualified, he was wrongfully not promoted because the panel failed to consider his “non-production family” experience. In December 1977, Casillas requested a hearing before the Civil Service Commission Complaints Examiner, who recommended a finding of no discrimination. The Secretary concurred in that decision and, on appeal in August 1980, the EEOC found the Navy to have articulated valid, sufficiently work-related reasons.

The Equal Employment Opportunity counselor investigating the matter had recommended a lateral transfer to a production department, where Casillas could secure the specific experience necessary to compete successfully for the Production Superintendent job. In September 1979, Casillas ultimately was promoted to a comparable position at level GS-13.

Casillas filed this Title VII suit in October 1980, for declaratory and injunctive relief and damages, claiming that the Secretary discriminated against him because of his national origin, race, and color by refusing to promote him to GS-13 in 1976. Specifically, Casillas challenges the advisory panel’s role in the merit promotion system. He claims the panel utilized non-job-related, vague and subjective criteria and that the Navy’s use of subjective criteria was really a pretext concealing discrimination against him, but he disputes the validity of none of the Navy’s actual testing procedures.

II

Title VII cases consider whether an employer treated certain employees “less favorably than others because of their race, color, religion, sex, or national origin.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). Aggrieved employees may show intentional discrimk nation under the disparate treatment model or may demonstrate disproportionate impact of an objective employment policy as a proxy for intent, under the disparate impact model. See, e.g., United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481 n. 1, 75 L.Ed.2d 403 (1983) (Aikens). There is some confusion in the record as to whether Casillas relied on the disparate impact model because he presented some evidence which could relate to disparate impact. Although not determinative alone, admissible impact evidence can be relevant, though often weak, circumstantial evidence of discriminatory intent. See, e.g., Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 552-53 (9th Cir.1982).

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735 F.2d 338, 34 Fair Empl. Prac. Cas. (BNA) 1493, 1984 U.S. App. LEXIS 22367, 34 Empl. Prac. Dec. (CCH) 34,394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casillas-v-united-states-navy-ca9-1984.