Robinson v. Adams

830 F.2d 128, 45 Fair Empl. Prac. Cas. (BNA) 26

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 1987
• Docket: No. 85-6533
• Status: Published

Opinions

WALLACE, Circuit Judge:

Robinson appeals pro se the district court’s summary judgment against him on his employment discrimination claims. He contends (1) that he need not prove that defendants had knowledge of his race to sustain a claim of racial discrimination under 42 U.S.C. § 1981 or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, (2) that a genuine issue exists whether the defendants were aware of his race, and (3) that he established a prima facie case of disparate impact. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

In July and August 1983, Robinson applied for four positions with the County of Orange and the Orange County Superior Court (Orange County). Orange County denied each application at the initial screening phase. Robinson filed a charge with the Equal Employment Opportunity Commission, alleging a violation of Title VII, and the Commission issued a right-to-sue letter. Robinson filed this action in district court against Orange County and several of its employees (the employees) alleging violations of section 1981 and Title VII. The district court entered summary judgment for all defendants. We review the summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). We address first Robinson’s disparate treatment claim, and then his claim of disparate impact.

II

Under Title VII or under section 1981, a plaintiff must prove intentional discrimination to make out a discrimination claim using a disparate treatment theory. Gay v. Waiters’ and Dairy Lunchmen’s Union, 694 F.2d 531, 537 (9th Cir.1982) (Gay). An employer cannot intentionally discriminate against a job applicant based on race unless the employer knows the applicant’s race. Robinson contends, however, that he may discharge his prima facie burden of production by offering proof of the four elements articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and that McDonnell Douglas merely requires proof that he belongs to a racial minority. See id. at 802, 93 S.Ct. at 1824; Gay, 694 F.2d at 538 & n. 5.

The McDonnell Douglas test, however, “was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence ... on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The McDonnell Douglas test defines one method of proving a prima facie case of discrimination — proof from which a trier of fact can reasonably infer intentional discrimination. See Gay, 694 F.2d at 538. But the McDonnell Douglas elements would not rationally create this inference if, as here, a plaintiff offers proof that he is Black, but there is no showing by direct or indirect evidence that the decision-maker knew this fact.

Even accepting this requirement, however, Robinson contends that he can survive a motion for summary judgment because some evidence in the record suggests that Orange County and the employees could have discovered he is Black. On all four of Robinson’s applications, he checked a box indicating his race. Nevertheless, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted) (Liberty Lobby). We do not believe that Robinson has produced sufficient evidence on the question of the knowledge by Orange County or the employees of his race for a jury to return a verdict in his favor.

The following paragraph appeared at the top of that portion of the application which contained racial and other demographic information.

Orange County is asking all applicants for positions to complete this form in order to comply with United States government equal employment opportunity requirements. Information you provide will not be used in any way as part of the testing process. This flap will not be duplicated or made available to hiring department, [sic] Data collected is used for statistical purposes and to measure the County’s effectiveness of recruiting efforts.

(Emphasis in original.) Furthermore, this section of the application appeared on a flap that is described in the record variously as a “tear apart attachment,” “inside detachable tab,” “tear-off form,” and “separate sheet [that was] detached for internal record keeping purposes.” The record suggests that either the flap was photocopied as part of the original application and then tom off before the application was sent to the application screener, or a copy of the application which did not show the flap was sent to the application screener, or the flap was folded so that it could not be viewed by the application screener. Since the data on the flap did not contain significant information for statistical purposes, such as the job applied for and the date of application, the employer must have retained a full copy of the application in its records. The key question here is whether the screeners knew the applicant’s race. Orange County submitted affidavits from the application screeners who had rejected Robinson’s job applications. All of these screeners declared that they were unaware of Robinson’s race when they reviewed and rejected his applications. Although the credibility of the application screeners could be a triable issue, Robinson has produced no evidence that places their credibility in doubt. “[N]either a desire to cross-examine an affiant nor an unspecified hope of undermining his or her credibility suffices to avert summary judgment.” National Union Fire Insurance Co. v. Argonaut Insurance Co., 701 F.2d 95, 97 (9th Cir.1983).

In light of this record, we conclude that there was no genuine dispute as to whether the application screeners were aware of Robinson’s race. The applications stated that the demographic information would not be considered as part of the hiring process, and the information was contained on a flap purposefully designed so that it would not be seen by the application screeners. Significantly, Robinson does not point to any evidence tending to show that this procedure resulted in the disclosure of racial information to application screeners in his or any other case. The only evidence in the record, the affidavits of the application screeners, unequivocally suggests that the procedure worked. Robinson’s evidence on this issue is “merely colorable” and is not “significantly probative.” Liberty Lobby, 477 U.S. at-, 106 S.Ct. at 2511. Therefore, we hold that no genuine issue exists as to whether the application screeners were aware of his race. Summary judgment was appropriate on Robinson’s intentional discrimination theory.¹

III

A plaintiff establishes a prima facie case of employment discrimination using a disparate impact theory when he or she shows that a business practice, neutral on its face, had a substantial, adverse impact on some group protected by Title VII. Gay, 694 F.2d at 537. Such proof is usually accomplished by statistical evidence showing “that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983).

Robinson contends he established a prima facie case of discriminatory impact by citing statistics which allegedly show that the percentage of Blacks in Orange County and in surrounding counties is higher than the percentage of Blacks employed by Orange County. Nevertheless, Robinson fails to establish that these general population statistics represent a pool of prospective applicants qualified for the jobs for which he applied. We have consistently rejected the usefulness of general population statistics as a proxy for the pool of potential applicants where the employer sought applicants for positions requiring special skills. See id. at 482-83.

In any case, the most probative statistics in the record tend to show an absence of disparate impact: in 1984, although Blacks represented 1.2% of the Orange County population, 1.7% of the Superior Court work force was Black and 2.7% of both the “Professional” and “Official/Administration” positions in the County of Orange were held by Blacks. Robinson argues, however, that his disparate impact theory can survive a motion for summary judgment because he has presented evidence that the Orange County Superior Court did not have any Black male employees. Obviously, since Blacks are not statistically underrepresented in the Orange County Superior Court’s work force, Robinson cannot plausibly maintain that the Court’s hiring practices have a racially discriminatory impact on Blacks as a whole. Conceivably, the absence of any Black male employees could result from racial stereotyping or have some other link to racial discrimination. Robinson, however, has presented no evidence to suggest that this is the case here. His showing that Black males are statistically underrepresented cannot, standing alone, show a racially discriminatory impact when there is clearly no racially discriminatory impact on Blacks as a whole. The only relevant statistic concerning Blacks, the protected class of which Robinson is a member, indicates that 1.7% of the Superior Court employees were Black.

Even if we concluded that Black males constitute a disfavored group under Title VII, see Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10th Cir.1986), we would still hold that the summary judgment on this issue was properly entered. To make out a prima facie case of disparate impact on Black males, Robinson would have to “identify specific employment practices or selection criteria” and “show the causal relationship between the identified practices and the impact.” Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1482 (9th Cir.1987) (en banc). This, we conclude, he has not done to the degree necessary to survive a motion for summary judgment.

Because Robinson has not pointed to evidence creating a genuine dispute about facts material to a prima facie case of disparate impact, summary judgment was appropriate on this issue.

AFFIRMED.

1 . The dissent correctly points out that the record before us includes copies of Robinson’s four applications still containing the detachable tab on which Robinson’s race is noted. There is nothing in the record to suggest that these copies are in fact the copies of the applications that the application screeners actually saw. The form itself, as we observed above, indicates that this portion of the application would not be "duplicated" or otherwise made available to the hiring department. The most reasonable inference from this statement is that the County generally keeps the original applications on file, and sends a duplicate copy to the screeners. Robinson has presented nothing more than his conclusory assertion, which he admits is an assumption, that the copy of the application form he received through the discovery process is the same as what was sent to the application screeners. The screeners all declared that they were unaware of Robinson’s race — i.e., that they did not see the tab containing his race identification.

In the absence of some evidence that the copies of the form Robinson procured through discovery are the same as those submitted to the application screeners, we are unable to believe that a jury could decide, based on the preponderance of the evidence, that Robinson's copy of the application was the same as what the screeners saw and therefore that the screeners were aware of his race. See Liberty Lobby, 477 U.S. at-, 106 S.Ct. at 2510-12. Thus, in light of the screener’s testimony, there is not triable issue of fact.