Toney v. Block , 705 F.2d 1364 ( 1983 )

Opinion for the court filed by Circuit Judge SCALIA.

Opinion filed by Circuit Judge TAMM, concurring in the result.

SCALIA, Circuit Judge:

This case is before us for the second time. A full description of the underlying facts is set forth in our first opinion, Toney v. Bergland, 645 F.2d 1063 (D.C.Cir.1981) (per curiam), and we repeat only those elements necessary to explain our disposition of the present appeal.

Appellant Toney, an employee of the Office of Personnel (“OP”) of the United States Department of Agriculture, applied for a vacancy in the Department at the next highest grade level (GS-14). When the job was ultimately awarded to a white employee, Toney, a black man, filed a formal complaint with the. Department, alleging racial discrimination in violation of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(a) (Supp. IV 1980). After an investigation and a hearing, an EEO Complaints Examiner found that while the initial ranking criteria for the selection were “inherently unreasonable, and the resulting selections tainted thereby, ... the basis for these actions was not the race of the applicants as white applicants were equally disadvantaged in competing for the position.” In re Toney at 3 (Jan. 28, 1979), Jt.App. at 8. She further found that the ultimate ranking process (employed after appellant protested the initial selection) inevitably placed appellant at a disadvantage vis-a-vis the individual who had been chosen the first time around; but that this disadvantage also applied to white applicants as well, and constituted “no disparate treatment.” Id. On the basis, however, of statistical evidence of hirings and promotions within OP; of evidence that Mr. Toney’s supervisor did not personally observe his work (and thus responded “Don’t Know” in many categories of ranking evaluation) whereas the successful white applicant suffered no such disability; and of the fact that the successful white applicant and the two next best qualified white applicants had been accorded work assignments which gave them a better background than Mr. Toney; the Examiner found “that the presumption of institutional or systemic discrimination within OP has been created and that the evidence of record is not such as to overcome that presumption.” Id. at 4, Jt. App. at 9. She recommended “a decision finding discrimination but no reprisal on the issues considered.” Id. With regard to corrective action, she recommended as follows:

In view of the fact that the record reflects that there were available applicants who were as well qualified as the complainant, I do not find that but for the discrimination he would have been selected for the position at issue. Accordingly, I recommend that he be given priority consideration for the next GS-14 level vacancy within the agency for which he qualifies and for which he wishes to be considered, and that he be reassigned or detailed as soon as possible to give him the broader personnel experience which will enhance his chances for promotion.

Id. at 4-5, Jt.App. at 9-10. As provided in the applicable regulations, the Examiner’s recommended decision became a “final decision binding on the agency” when the Department failed to issue a final decision of its own within 30 days after submission of the recommended decision. See 5 C.F.R. § 713.220(d) (1977) (current version at 29 C.F.R. § 1613.220(d) (1982)).

Appellant subsequently filed a Title VII suit in the District Court, pursuant to 42 U.S.C. § 2000e-16(c) (1976), seeking back pay and retroactive promotion. On cross-motions for summary judgment, the District Court entered judgment for the Department, on the ground that the undisputed factual record established by clear and convincing evidence that Toney would not have been selected for the position in question even absent discrimination. Toney v. Bergland, Civ.Action No. 78-1007 (D.D.C. Sept. 14, 1979). This court reversed and remanded, finding that “[t]he administrative record ... does not foreclose any dispute” regarding that point. Toney v. Bergland, supra, 645 F.2d at 1067. On remand, the District Court found, after two days of testimony, that “race was not a factor in the [promotion] decision”; that although a prima facie case of discrimination had been presented, the defendant had “clearly articulated legitimate nondiscriminatory reasons for not selecting Toney”; and that “Toney ha[d] not proven discriminatory intent or pretext” as required by the three-stage test enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It further found that, “[e]ven assuming that there was discrimination, ... the defendant has demonstrated by clear and convincing evidence that Toney would not have been selected.” Toney v. Bergland, Civ.Action No. 78-1007 at 6-7 (D.D.C. Oct. 9, 1981).

A preliminary issue concerns the binding effect in this proceeding of the finding of discrimination made by the EEO Complaints Examiner. That issue was not presented in the earlier appeal, since the Department had stipulated the point for purposes of the summary judgment. See 645 F.2d at 1065. Unquestionably, the Examiner’s findings are not binding upon the appellant, since it is clear that he is entitled to a trial de novo. See Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Appellant asserts, however, that the agency stands in a different position, because of the regulation making the Examiner’s decision a “final decision binding on the agency.” We find it unnecessary to resolve this question, since even if the Examiner’s discrimination finding were conclusive, it would establish no more than a prima facie case, which the District Court specifically found to have been adequately met by the defendant’s evidence.

Appellant asserts that the discrimination finding triggered application of the principle enunciated by this court in Day v. Mathews, 530 F.2d 1083 (D.C.Cir.1976) (per curiam), whereby, once discrimination is established, the burden shifts to the employer to show, by “clear and convincing evidence,” that the discrimination was not the effective cause of the adverse employment decision. The District Court rejected this argument, and rightly so.

The Examiner’s opinion did not find discrimination to have been a factor in the promotion decision at issue here. To the contrary, it found that the basis for any defects in that decision-making process “was not race,” and that “there was no disparate treatment.” The portion of the opinion recommending “a decision finding discrimination” referred to the “institutional or systemic discrimination” identified in the immediately preceding sentence — or at most (though it would have extremely fragile support) to a finding of discrimination against Toney himself with regard to the manner in which his work in OP had been supervised and with regard to the work assignments he had been given, rather than with regard to the evaluation of his qualifications for the vacant position.

Appellant’s reliance upon Day v. Mathews is therefore misplaced. That case involved a situation in which the plaintiff had established that unlawful discrimination had been applied against him in the particular employment decision for which retroactive relief was sought. We held that in such circumstances it is unreasonable and destructive of the purposes of Title VII to require the plaintiff to establish in addition the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in his favor. We chose instead to place the burden upon the employer to show, by “clear and convincing evidence,” that the unlawful factor was not the determinative one. It is fundamentally different, however, to assert that where the existence of unlawful discrimination has been established only within the employment unit at large (or perhaps against the employee in regard to some other aspect of his employment) and has not been specifically attributed to the employment decision of which the plaintiff complains, we will both find discrimination to have been a factor and find that factor to have been determinative unless the employer makes the extraordinary and difficult Day v. Mathews showing. The difference between Day and the present case is the difference between making the employer demonstrate (by clear and convincing evidence) that a cause established through normal processes of proof was not an efficacious one, and making him demonstrate that the cause itself did not exist.

The error of appellant’s position is evident from the Supreme Court’s most recent pronouncement in this field. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), described the shifting of the burden of production that occurs in the typical Title VII proceeding:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

450 U.S. at 252-53, 101 S.Ct. at 1093 (citations omitted). One paragraph later, in the course of discussing the nature of the step-one prima facie case, the Court said:

The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. See Teamsters v. United States, 431 U.S. 324, 358, and n. 44 [97 S.Ct. 1843, 1866, n. 44, 52 L.Ed.2d 396] (1977).

Id. at 253-54, 101 S.Ct. at 1094. The citation of Teamsters — as a ease exemplifying the function of the prima facie case to which Burdine refers — is most significant for present purposes. For in Teamsters the prima facie case of discrimination in the individual employment decision was established, just as it was established here, by demonstration of discrimination at large within the employment unit. The Court there rejected the contention that “the only means of establishing a prima facie case of individual discrimination” was the means employed in McDonnell Douglas Corp. v. Green, supra, which focused upon the individual employment decision. See Teamsters, supra, 431 U.S. at 358, 97 S.Ct. at 1866. To the contrary, the Court said, quoting from Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 1268, 47 L.Ed.2d 444 (1976):

By “demonstrating the existence of a discriminatory hiring pattern and practice” the plaintiffs had made out a prima facie case of discrimination against the individual class members; the burden therefore shifted to the employer “to prove that individuals who reapply were not in fact victims of previous hiring discrimination.”

431 U.S. at 359,97 S.Ct. at 1866-1867. It is clear from Burdine’s citation of Teamsters (if indeed it was not already clear from the Teamsters opinion itself) that demonstration of discrimination at large constitutes, for purposes of individual relief, no more than the prima facie case that shifts the burden to the defendant to produce some nondiscriminatory justification — which, when done (as it was done here), shifts the burden back to the plaintiff “to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. The same analysis would apply to demonstrated discrimination against the individual plaintiff in a respect separate and apart from the employment decision that is the subject of the suit. The existence of generalized discrimination within the employment unit, or of discrimination against the plaintiff in other employment contexts, may of course be taken into account (just as any other elements establishing a prima facie case may be taken into account) in the factfinder’s determination of whether the proof of pretext has adequately been made. But it is the plaintiff’s task to prove it, rather than the defendant’s to prove, by “clear and convincing evidence,” the opposite.^**

Our opinions in Trout v. Lehman, 702 F.2d 1094 (D.C.Cir.1983), and McKenzie v. Sawyer, 684 F.2d 62 (D.C.Cir.1982), apply the Day v. Mathews test to the so-called remedial stage of Title VII class actions. In light of the Court’s opinion in Burdine, however, we decline to extend these holdings to the context of an individual Title VII suit.

We have reviewed the record, therefore, to determine whether there is the requisite support for the District Court’s determination that “race was not a factor in the [promotion] decision,” and that (the test of Day v. Mathews therefore not being applicable) the defendant has met the plaintiff’s prima facie case with “clearly articulated legitimate nondiscriminatory reasons for not selecting Toney’.’ and “Toney has not proven discriminatory intent or pretext.” Toney v. Bergland, supra, Civ.Action No. 78-1007 at 7 (D.D.C. Oct. 9, 1981). Although the District Court denominated the last two of these “Conclusions of Law,” they are all findings of fact which we cannot set aside “unless clearly erroneous.” Fed.R.Civ.P. 52(a). That standard cannot be met here. It suffices to note that all officials involved in the promotion decision who testified (one panel member, Mr. Krist, was not called) denied racial motivation, see Tr. at 13-14, 17 (Testimony of Sayko), 50 (Logan), 82 (Riley), 101 (Sullivan), 119 (Pranger); and that all witnesses who had reviewed the candidates’ qualifications and rated them not only agreed that the experience and background of the individual selected for the position were superior to those of Toney, see Tr. at 51 (Logan), 75 (Riley), 97 (Sullivan), 118 (Pranger); but also testified that at least two individuals had more suitable experience for the job than Toney, see Tr. at 64 (Logan), 77 (Riley), 98 (Sullivan), 118 (Pranger). While all this testimony could, of course, be disbelieved, that judgment is for the trier of fact, and we are enjoined to give “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a).

Affirmed.

** Our opinion in the earlier appeal of this case assumed that a “clear and convincing evidence” test was applicable. See Toney v. Berg-land, supra, 645 F.2d at 1066. That was necessary because it was the basis upon which the District Court had entered its summary judgment. See Toney v. Bergland, Civ.Action No. 78-1007 at 1 (D.D.C. Sept. 14, 1979). The District Court had not found (and, on the facts of this case, probably could not have found in a summary judgment context) that race was not a factor in the employment decision. As noted above, that finding has now been made after the receipt of evidence on remand.