Cuello-Suarez v. Puerto Rico Electric

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1993
• Docket: 92-1989
• Status: Published

Opinion

USCA1 Opinion

March 10, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1989

                          CANDELARIA CUELLO-SUAREZ, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                    PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA),

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Stahl, Circuit Judge,
                                        _____________
                      Aldrich and Coffin, Senior Circuit Judges.
                                          _____________________

                                 ____________________

            Karen M. Loyola Peralta for appellant.
            _______________________
            A. Santiago Villalonga for appellees.
            ______________________

____________________

                                    March 10, 1993
                                 ____________________

COFFIN, Senior  Circuit Judge.   Plaintiff, a  United States
                       _____________________

          citizen who was born  in the Dominican Republic, claims  that she

          was denied  promotion on many  occasions because of  her national

          origin.  She brought  suit against her employer, the  Puerto Rico

          Electric  Power Authority (PREPA),  under Title VII  of the Civil

          Rights Act  of 1964, 42 U.S.C.    2000e-(2), and Law  100 of June

          30, 1959  of the Commonwealth of Puerto Rico, P.R. Laws Ann. tit.

          29,     146.1    After  a bench  trial,  the district  court gave

          judgment for the plaintiff and PREPA appeals.  We affirm.

               PREPA now challenges the court's holding that plaintiff made

          out a prima facie case and its allegedly improper shifting of the

          burden  of proof.  Although the trial lasted four days, appellant

          did not provide us with a transcript, as required by Fed. R. App.

          P.  10(b)(2).  We  have since obtained  it,2 have  reviewed it to

          check our  understanding of the evidence, but rely principally on

          the  facts as  set forth  by the  district court,  which in  turn

          relied on the post-trial briefs of counsel. 

                Plaintiff, a seventeen-year veteran employee of  PREPA, has

          held various positions as clerk and typist.  She possesses a B.A.

          degree in business administration with  a major in accounting and

          a minor  in management and,  shortly after  commencement of  this

          litigation,   obtained  her   license  as   a  Certified   Public

____________________

               1  She also asserted a claim under 42 U.S.C.   1981 that was
          dismissed by the district court and is not a part of this appeal.

2   The transcript, filed  in the district  court on October
          13, 1992, was sent to us at our request on February 18, 1993.

Accountant.   Over the years, she successfully had taken at least

          ten  different  tests  required  for  promotion  and  always  had

          received above average evaluations  in her performance reviews as

          a  temporary employee.  She never received a reprimand.  Prior to

          this lawsuit,  plaintiff had filed 77  applications for promotion

          to supervisory  positions, with no  success.3  Subsequent  to the

          filing of  this action in 1988,  she applied for  the position of

          Supervisor  of Consumer Services.   The position was  filled by a

          native  Puerto Rican with seven months of employment by PREPA and

          a B.S. degree in marine biology.

               Statistical data of various  kinds were introduced at trial.

          Of  some  10,700  employees  in  PREPA,  100  were  in  executive

          positions and 2,400  in managerial positions.   All employees  in

          the former group were born  in either Puerto Rico or other  parts

          of  the United  States;  in the  latter  group, there  were  five

          persons   of   Dominican   origin  occupying   what   the   court

          characterized as "highly technical" supervisory  positions in the

          field.   There were six  other CPA's in PREPA.   All were born in

____________________

               3    This figure  is used  by the  district  court.   In her
          testimony, plaintiff listed 92 separate applications between 1980
          and 1989.
               PREPA's  regulations  governing  appointment  to  managerial
          level positions state:
               The interested  supervisor selects the  one that he/she
               considers  to be  the best  candidate in  accordance to
               the effective norms and  in accordance to the following
               priority order:
               ...
               a) Regular  and temporary  managerial employees with  one or
          more      years of service with the authority.
               b) Non-Regular employees.
               c) Candidates from the Registry of Eligibles.  

                                         -3-

Puerto Rico  and held  jobs  ranging from  Executive Director  to

          Auditor.

               The  district court  began its  legal analysis  by rejecting

          PREPA's contention  that plaintiff's evidence had  to be assessed

          under  disparate  impact  principles  -- i.e.,  as  proof  that a

          facially neutral practice had a significant discriminatory impact

          on  applicants  for promotion  who  were of  Dominican  origin as

          compared with applicants of  U.S. (including Puerto Rico) origin.

          PREPA argues that the  court erred in that ruling,  claiming that

          plaintiff challenged a specific, facially neutral practice, i.e.,

          "grooming"  allegedly  less  qualified  persons  by placing  them

          temporarily in desirable positions and then ultimately appointing

          them  permanently based  on  their temporary  experience.   PREPA

          further argues  that plaintiff  failed to sustain  this challenge

          because she relied on statistical data, compiled by herself, that

          provided no comparison  with the relevant  pool of eligibles,  as

          required by Wards Cove Packing Co.  v. Atonio, 490 U.S. 642, 650-
                      ______________________     ______

          52 (1989).  

               There is  some surface plausibility to this  argument but on

          reflection we reject it.  While a practice of hiring or promotion

          allowing considerable room for subjective judgment can be subject

          to disparate impact analysis,  Watson v. Ft. Worth Bank  & Trust,
                                         ______    _______________________

          487  U.S. 977,  990  (1988), "grooming"  was  merely one  of  the

          justifications  advanced by PREPA for  its actions.   The gist of

          plaintiff's  claim was that,  try as hard  as she  might, she was

          always turned down in  favor of U.S.-Puerto Rico born  persons --

-4-

for  varying and pretextual reasons having nothing to do with her

          performance  or  qualifications.   It  was  the  discriminatorily

          motivated  treatment of her that she sought to demonstrate by her

          data,  which did not purport  to be a  broad statistical analysis

          but  rather a  distillation and  summary of  her analysis  of the

          personnel records of all those who were chosen instead of her.4

               As  is  well  recognized,   either  a  disparate  impact  or

          disparate  treatment analysis may  be applied to  any given case.

          Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977).   This
          _________    _____________

          case seems to us, as it did to the district court, more suited to

          disparate treatment analysis, where the plaintiff must make out a

          prima  facie case of discrimination, the  employer must then come

____________________

               4    Plaintiff's  testimony   on  her  methodology  was  the
          following:

                    Q     So  you  did  not   study  the  general
                    population  of  all  the  persons  that  were
                    competing  with you in all the positions that
                    you requested in  PREPA during  the years  in
                    controversy?

                    A   No because what I did was conduct a study
                    of the persons to whom positions were awarded
                    not  the  persons  who were  competing,  that
                    would  be another study. (Trans., Vol. IV, at
                    153-154.)

                    ...

                    Q  Do you have any evidence that any of these
                    persons that are born  outside Puerto Rico or
                    that are not U.S. citizens were discriminated
                    against by PREPA?

                    A   On that  list there is only,  as far as I
                    know  I  am  the   only  one  that  has  been
                    discriminated  against  as  to  the  others I
                    don't know. (Trans., Vol. IV, at 159.)

                                         -5-

forward  with  some  non-discriminatory  justification,  and  the

          plaintiff finally is given the  opportunity to convince the trier

          of fact that the  justification was pretextual and that  the real

          reason  was discriminatory.  Texas  Dep't of Community Affairs v.
                                       _________________________________

          Burdine, 450 U.S. 248, 252-53 (1981); McDonnell  Douglas Corp. v.
          _______                               ________________________

          Green, 411  U.S. 792, 802-05  (1973).  This  being the  case, the
          _____

          sophisticated  statistical comparisons  between the  impact  on a

          victim  class  and that  on  non-victim  class  eligibles in  the

          relevant labor pool, as required by Wards Cove, are unnecessary.
                                              __________

               In reviewing  the district court's rulings in  this genre of

          case,  we give  plenary review  to its  conclusion as  to whether

          plaintiff has made out a prima facie case and "clearly erroneous"

          review to any ultimate finding of discriminatory intent.  EEOC v.
                                                                    ____

          Metal Service  Co.,  892 F.2d  341,  345  (3rd Cir.  1990).    We
          __________________

          conclude  that  the  district   court  correctly  identified  and

          executed the three-pronged inquiry required.  

               The court  first found  present the elements  constituting a

          prima  facie case.  Plaintiff's  status as a  person of Dominican

          Republic  origin was  clear.5   That she  was qualified  was well

          established.   That she repeatedly was rejected and those of U.S.

          origin promoted also was  not disputed.  The court,  referring to

          plaintiff's  77 rejections, to the status of the other six CPA's,
                              
          ____________________

               5   Although  PREPA claimed in  its brief that  there was no
          evidence that the supervisors making the decisions on plaintiff's
          applications  knew  she was  a  Dominican  national, counsel  for
          appellee represented without contradiction at oral  argument that
          such  knowledge  was  never at  issue  and  that,  in any  event,
          plaintiff's  personnel record and  the records of  others were in
          evidence and clearly showed the employees' places of birth.  

                                         -6-

and  to plaintiff's  final  rejection as  Supervisor of  Consumer

          Affairs  in  favor  of  someone  with  less  job  experience  and

          education,   found   the   prima   facie  case   of   intentional

          discrimination established.    At the  conclusion of  plaintiff's

          case, the court denied PREPA's motion to dismiss.

               The court then turned  to PREPA's proffered business reasons

          for  rejecting  plaintiff.   It earlier  had recognized  that the

          employer's burden was "not one of persuasion but of production of

          a legitimate reason" and that,  as to plaintiff's ultimate burden

          to   prove  pretext   and  the  more   likely  motivation   of  a

          discriminatory reason, "the issue is  one of credibility that the

          trier  of fact will determine."  PREPA advances the argument that

          "defendant   established  legitimate  business  reasons  for  not

          awarding the  management positions to plaintiff.   The plaintiffs

          did  not rebut  such  proof showing  that  those reasons  were  a

          pretext."  In arguing in this manner, PREPA completely misses the

          point that this was a bench trial and that the district court was

          not  merely passing  on  the facial  adequacy  of the  employer's

          justification but  had to make credibility judgments  and pass on

          the genuineness of PREPA's reasons and on the presence or absence

          of a discriminatory motive.

               As the Supreme  Court has said in  U.S. Postal Serv. Bd.  of
                                                  _________________________

          Governors  v.  Aikens,  460  U.S. 711,  714-15  (1983)  (footnote
          _________      ______

          omitted),

                    But  when  the  defendant  fails  to persuade  the
               district  court to  dismiss  the action  for lack  of a
               prima facie case, and responds to the plaintiff's proof
               by offering evidence of  the reason for the plaintiff's

                                         -7-

rejection, the factfinder must  then decide whether the
               rejection  was  discriminatory  within the  meaning  of
               Title  VII.    At  this  stage,  the  McDonnell-Burdine
                                                     _________________
               presumption "drops from the case," 450 U.S., at 255, n.
               10, and "the factual inquiry proceeds to a new level of
               specificity." Id., at 255.
                             __
               . . .

               The  district court has  before it all  the evidence it
               needs  to decide  whether "the  defendant intentionally
               discriminated against the  plaintiff."  Burdine, supra,
                                                       _______  _____
               at 253.

               The  district  court  proceeded  to  identify   each  reason

          advanced by the  employer, subjected it to critical analysis, and

          then evaluated their cumulative weight.   It first noted  PREPA's

          initial position  that, among  the 77  positions  applied for  by

          plaintiff, there were eight  for which she was unqualified.   But

          it observed that there was  no such claim as to the  remaining 69

          positions.    Then the court noted PREPA's argument  that she was

          turned down  for the position of Supervisor  of Consumer Services

          in Training because,  as Clerk of Consumer  Services in Training,

          she was  already performing the  tasks required of  a supervisor.

          As  to  this,  it commented,  not  unfairly  we  think, that  the

          argument was "disingenuous."  Opinion at 14.

               Another   PREPA   justification   was   that   the   limited

          availability of  managerial jobs meant that  there was inevitable

          underutilization  of certain employees.  This did not impress the

          court as a  suitable explanation for the  uninterrupted series of

          rejections  of plaintiff  in favor  of less  qualified employees.

          Another of  PREPA's positions was that  managerial positions were

          awarded  to  employees with  experience in  the  job.   The court

          reasoned:

                                         -8-

The record  does not bear this assertion.   Rather, the
               record discloses a practice of grooming individuals  by
               placing  them temporarily  in  the  position they  were
               ultimately  selected  for   as  a  means   of  facially
               satisfying the experience requirement.

          Opinion at 16.

               Still  another   PREPA  witness's  reason   for  not  acting

          favorably  on one  of plaintiff's applications,  not specifically

          cited  by the  court, was that  her acquisition of  a CPA license

          indicated that  she soon  would seek greener  pastures elsewhere.

          This  conclusion, remarkable when applied to one who for 17 years

          had  made every attempt to improve her position within the agency

          and laboriously  had qualified  in a  discipline relevant  to the

          agency's  accounting and  auditing  functions, was  based on  one

          experience  with a supervisor who, on receiving a law degree, had

          left to practice law.

               Two  other factors are relevant to the issues of pretext and

          intentional discrimination.  One is the established fact that all
                                                                        ___

          of  plaintiff's  performance review  evaluations  had  been above

          average and  that in 17 years  there had been no  reprimands.  In

          other  words,  the  court  on  this  record  could  exclude   the

          possibility that  either quality  of  performance or  personality

          defects  legitimately  could  have   played  a  part  in  PREPA's

          decisions.   The  fact  that many  supervisors  joined  in  these

          recommendations over time, under  these circumstances, could have

          been  looked upon  as corroborative  of some  hidden, unannounced

          practice.  Cf. EEOC v. Metal Service Co., 892 F.2d at 350.
                     ___ ____    _________________

-9-

The  second factor  is  that,  although PREPA's  Affirmative

          Action Plan  requires a statement of reasons to be made a part of

          an  employee's personnel file when such  employee is rejected for

          promotion,  no such  statement  ever was  made.   We  would  have

          expected  that  at  some  point  in  this attenuated  history  of

          frustration some supervisors would have noted the bases for their

          adverse decisions.   This seems to  be an example of  the type of

          case where "courts  continue to express distrust, even  in white-

          collar  jobs, for  selection criteria  that are  unstructured and

          where the  overwhelming number of selectors or  testers are white

          or  male  [i.e.,  putative  discriminators]."   B.  Schlei  &  P.

          Grossman, Employment Discrimination Law 25 (2d ed. 1983) (1987-89
                    _____________________________

          Supp.)

               The  district court's  ultimate  finding was  that from  the

          facts  and  the inferences  drawn  from  PREPA's "silence  and/or

          fanciful explanations  is that failure to  select [plaintiff] for

          77  managerial   positions  responds   [sic]  to  a   pattern  of

          intentional discrimination  on  the basis  of  her  nationality."

          Opinion at 16-17.  We conclude, based on all the  factors we have

          cited, that this judgment was  not clearly erroneous, indeed, far

          from it. 

               In so concluding, we note that even  if the employer has met

          its burden  of articulating a nondiscriminatory  business reason,

          the trier  of fact  may consider  the prima  facie case plus  the

          cross  examination  of  defendant  and arrive  at  a  supportable

          determination  of discrimination.  Burdine, 450 U.S. at 255 n.10.
                                             _______

-10-

Our  own jurisprudence makes it  clear that there  is no absolute

          rule as  to the necessary  composition of sufficient  evidence of

          discrimination  and  that we  look to  the  evidence as  a whole.

          Goldman v. First Nat'l Bank of Boston, No. 92-1773, slip op. at 8
          _______    __________________________

          (1st  Cir. Feb. 18, 1993);  Lawrence v. Northrop  Corp., 980 F.2d
                                      ________    _______________

          66, 69-70  n.1 (1st Cir.  1992); Connell v.  Bank of  Boston, 924
                                           _______     _______________

          F.2d  1169,  1172  n.3  (1st  Cir.  1991).    More  particularly,

          depending on the facts, the making of a prima facie case together

          with   evidence   of   pretext   may  raise   an   inference   of

          discrimination.   There is no absolute rule that a plaintiff must

          adduce additional evidence.  Samuels  v. Raytheon Corp., 934 F.2d
                                       _______     ______________

          388, 392  (1st Cir. 1991);  Villanueva v. Wellesley  College, 930
                                      __________    __________________

          F.2d 124, 128 (1st Cir. 1991).6

               The  instant case fits this prescription.  Not only is there

          plaintiff's history of repeated  failed efforts rivaling those of

          Sisyphus,  but the variety of reasons offered by defendant do not

          withstand  scrutiny  and  have  nothing to  do  with  competence,

          character,  or personality.   Nor  was there  any contemporaneous

          explanation of  the rejections.    We cannot  fault the  district

          court for finding a pattern of intentional discrimination.

               We  have not overlooked PREPA's claims  that the court erred

          in excluding certain evidence and in allowing plaintiff to reopen

____________________

               6  Although a  panel in one earlier  case took the  position
          that additional evidence of  discrimination must be  forthcoming,
          see  Olivera v. Nestle  Puerto Rico, Inc.,  922 F.2d  43, 48 (1st
          ___  _______    _________________________
          Cir. 1990), a majority of that panel since has taken the position
          articulated  in  Connell and  Villanueva,  which  we believe  now
                           _______      __________
          represents the law of the circuit.

                                         -11-

her  direct examination.  We  have reviewed these  rulings in the

          context of the entire trial and do not find reversible error.

               Affirmed.
               ________

-12-