Louis H. Aikens v. United States Postal Service, Board of Governors ( 1980 )

EDWARDS, Circuit Judge:

Plaintiff-appellant, Louis H. Aikens, instituted this action under Title VII of the Civil Rights Act of 1961, 78 Stat. 241, 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., seeking redress of alleged discrimination on the basis of race in his employment with the United States Postal Service. Aikens, who is now retired from the Postal Service, requested relief in the form of retroactive promotions, commensurate retroactive pay benefits, and attorneys’ fees. The District Court found that Aikens had failed to make out a prima facie case of racial discrimination under Title VII and ordered that the action be dismissed with prejudice. Aikens now appeals from the District Court decision. For the reasons outlined below, we hereby reverse the decision of the District Court and remand the matter for further proceedings consistent with our judgment in the case.

I.

Aikens is a black man who began his employment with the Post Office in Washington, D.C. in 1937. He was promoted to his first supervisory position in 1952; subsequently, between 1952 and 1960, Aikens held various jobs at the level of foreman. From 1960 to 1966, he received six promotions that raised him from the foreman level (ranked PFS-7) to the level of Assistant Director, Operations Division for Transit Mails (PFS-15). In 1974, Aikens was upgraded twice, once by virtue of a promotion and once pursuant to a “detail” (temporary assignment). Between 1966 and 1974, however, Aikens was neither detailed nor promoted above his Assistant Director position. His failure to be promoted during this latter period forms the basis of this Title VII suit.

Under applicable Postal Service procedures, an employee who desires consideration for supervisory promotions is required to indicate his job preferences on a Form 1717. Following that procedure, during the entire period from 1966 through 1973, Aikens had on file the appropriate Form 1717 seeking consideration for promotion to any Post Office position ranked above his PFS-15 job. Between 1966 and 1973, there were only four positions in the Washington, D.C. Post Office that were ranked above PFS-15. During that period, several white employees, all with less seniority than Aikens, were promoted above him. After the Job Evaluation Program in 1973, Aikens’ job was rated at grade PES-20; however, following the implementation of the Job Evaluation Program, several additional positions were rated above Aikens’ job and several junior white employees received details or promotions above Aikens.

Aikens filed an Equal Employment Opportunity complaint with the Postal Service on January 4, 1974. An existing Civil Service Regulation, 5 C.F.R. § 713.214 (1974), required that complaints be filed within thirty days of the alleged discriminatory action. Under this statute of limitations standard, Aikens’ complaint was timely only as to four positions for which promotions or details had occurred within thirty days of the complaint; the four positions in question were Mail Processing Officer, Acting Mail Processing Representative, Director, Operations Division, and Customer Services Representative.¹ Accordingly, administrative and judicial review of Aikens’ employment discrimination claim was properly focused on Aikens’ failure to be promoted to these four positions.²

Following an administrative review, the Postal Service concluded that the evidence of record did not support Aikens’ allegation of racial discrimination. This judgment was affirmed by the Appeals Review Board of the Civil Service Commission. Aikens then filed his Title VII complaint in the District Court, which held a trial de novo on his claim of employment discrimination. Aikens here appeals a judgment rendered in favor of the Postal Service.

II.

In McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court articulated the standard that must be met in order for individual complainants to make out a prima facie case of discrimination under Title VII:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.

411 U.S. at 802, 93 S.Ct. at 1824. The Court recognized that the varying factual situations seen in Title VII cases require the application of a flexible formulation for this prima facie proof. Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In essence, McDonnell Douglas requires an individual bringing suit under Title VII to demonstrate that the alleged discrimination did not result from a lack of qualifications or the absence of a vacancy in the job sought. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). Thus, it has been held that the McDonnell Douglas test, adopted to fit the factual circumstances of the case, applies in individual actions involving charges of race discrimination in promotion decisions. President v. Vance, 627 F.2d 353 at 364 n. 78 (D.C.Cir.1980); Rich v. Martin Marietta Corp., 522 F.2d 333, 346-47 (10th Cir. 1975).

On the record in this case, it is clear that Aikens met the first, third and fourth elements of the test set forth in McDonnell Douglas: he is a black man; he sought promotion to higher level positions that became available; and white Post Office employees received the positions. Therefore, it is the second element of the test, having to do with Aikens’ qualifications to perform the jobs here in question, that must be addressed in our consideration of this appeal.³

III.

Upon review of the evidence submitted to the District Court, we are convinced that Aikens offered ample evidence, which was not contested, to demonstrate his qualifications to perform the work in issue. To begin with, we note that the District Court made no finding that Aikens was not qualified for the positions in dispute. Moreover, Aikens’ own record of accomplishments attests to his qualifications. He is highly educated, having earned a Master’s degree and completed several years of course work towards a Ph.D. Aikens had almost forty years of experience with the Post Office, during which time he held a number of different supervisory positions. Nothing indicates that his performance was ever less than satisfactory. Indeed, his work record indicates that he participated in training and development courses and seminars designed to enhance his performance on the job.

Another indication of Aikens’ qualifications was his nomination by Post Office officials for several promotions. During the selection process that occurred before the 1973 Job Evaluation Program, the Regional Office made Aikens one of the candidates for the Postmaster position. Stipulation 35. In addition, when two other positions (including one of those at issue in this case) were filled in 1972, Aikens was the second choice of the Promotion Advisory Board. Stipulation 25-26. If both the Regional Office and the Promotion Advisory Board believed him to be qualified for these higher positions, it seems unlikely that he would not be qualified for the four positions in question here.

The promotions that Aikens received in 1974 also attest to his qualifications to perform work at higher levels of employment. Only a few days after Aikens had filed his employment discrimination complaint in January 1974, he received a promotion to Area Logistics Manager, ranked at job grade PES-21. Shortly thereafter, he was detailed to the position of Assistant Manager of Distribution, PES-24. The very fact of an employee’s ultimate promotion has been found to demonstrate that the employee is qualified for promotion. Sweeney v. Board of Trustees of Keene State College, 569 F.2d 169, 178 n. 18 (1st Cir.), vacated and remanded on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), judgment of district court affirmed following remand, 604 F.2d 106 (1st Cir. 1979).

In its factual finding number 14, the District Court focused on Aikens’ unwillingness to accept lateral transfers and noted that promotion depended in part on experience previously attained in various management positions. See also findings 10, 13. In so finding, the District Court opinion suggests both that the experience Aikens sacrificed, by declining lateral transfers, was a requirement for promotion and that the lack of that experience reflected adversely on his ability to perform the jobs at issue here. We note, however, that the Postal Service adduced no evidence to demonstrate that experience in the particular lateral positions that Aikens declined was either a qualification required for promotion or related to the positions he sought. Without such evidence of job relatedness, we cannot conclude that Aikens’ refusal to accept lateral transfers made him unqualified for promotion. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Because we find that the clear weight of the evidence indicates that Aikens was qualified to perform the jobs in question, and because the District Court did not find otherwise, we must conclude that Aikens made out a prima facie case of race discrimination pursuant to the test set forth in McDonnell Douglas, supra.⁴

IV.

Even if we were to find that the evidence with respect to Aikens’ qualifications was unclear, we would still be required to reverse and remand this case because of certain erroneous conclusions of law in the opinion of the District Court.

In conclusion of law number 8, the District Court opinion indicates that plaintiff’s claim cannot succeed because he “failed to prove that he was as qualified or more qualified than the individuals who were promoted or detailed” (emphasis added). Plainly, this is a misstatement of applicable law and counsel for appellee conceded as much during the oral arguments in this case on appeal. As noted above, the Supreme Court in McDonnell Douglas, supra, has made it clear that, in order to make out a prima facie case with respect to the qualification element, an individual complainant in a Title VII suit need only prove that he or she “was qualified for a job for which the employer was seeking applicants.” 411 U.S. at 802, 93 S.Ct. at 1825. Nothing in McDonnell Douglas, supra, requires a plaintiff seeking to make out a prima facie case to prove that he was the most qualified person for the promotion in question. See, e. g., Rich v. Martin Marietta Corp., 552 F.2d 333, 347 (10th Cir. 1975).

We know of no authority, and the District Court opinion cites none, to support the proposition that plaintiff was required to prove that “he was as qualified or more qualified than individuals who were promoted or detailed. Such a proposition is plainly at odds with the test enunciated in McDonnell Douglas, supra. Therefore; we must find that the District Court misapplied the law under Title VII when it imposed such an onerous burden with respect to the proof required of plaintiff in order to make out a prima facie case.

The second legal defect is found in conclusion of law number 7, wherein the District Court ruled that it was “critical” for plaintiff to offer “proof of discriminatory motive on the part of defendant.” The District Court opinion concludes that “plaintiff has failed to provide such proof.” Following this conclusion, the District Court opinion cites Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

The entire thrust of the District Court’s conclusion of law number 7 reflects an obvious misapplication of the law under Title VII. First, Arlington Heights, supra, was decided on a constitutional basis and the Supreme Court has never held that the constitutional standard for adjudicating racial discrimination claims is identical to the standard applicable under Title VII. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). Second, it is true that some Title VII cases do require proof of discriminatory motive, see International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854-1855, n. 15, 52 L.Ed.2d 396 (1977), and a showing of motive may constitute plaintiff’s proof that the allegedly legitimate employment consideration articulated by the defendant is merely a pretext for unlawful discrimination. However, the prima facie case in a suit alleging individual discrimination does not require a showing of discriminatory motive. McDonnell Douglas, supra, which established the elements of the prima facie case, simply does not impose that burden on the plaintiff.

V.

Since the plaintiff made out his prima facie case, which raises an inference of discrimination, the burden now shifts to the defendant, under the standards of McDonnell Douglas, supra. The government may meet Aikens’ prima facie showing by articulating a legitimate, nondiscriminatory reason for its failure to promote Aikens to the four positions at issue here. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The government’s burden is “that of proving that [they] based [the] employment decision on a legitimate consideration, and not an illegitimate one such as race.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978).

Accordingly, the government is now to be given the opportunity to offer the required proof concerning the legitimacy of the promotion decisions here at issue. At trial, no evidence indicated that the white employees who received promotions to the four positions at issue were as, or more, qualified than Aikens for those jobs. That evidence may be offered on remand, along with other evidence that is relevant and material in rebutting Aikens’ prima facie case of discrimination.

Should the government succeed in meeting its burden, Aikens shall then have the opportunity to introduce evidence that the justifications offered by the Postal Service are merely pretexts for discrimination. Furnco Construction Corp., 438 U.S. at 578, 98 S.Ct. at 2950; McDonnell Douglas, 411 U.S. at 804-805, 93 S.Ct. at 1825-1826.

Because we find that Aikens made out his prima facie case of racial discrimination and that the District Court applied incorrect principles of law in considering plaintiff’s case, we reverse the order of the District Court and remand the case for further proceedings consistent with this opinion.

It is so ordered.

1 . Alleging that the Postal Service’s failure to promote him during the entire eight year period, from 1966 until 1974, constituted racial discrimination of a continuing nature, Aikens argues that administrative and judicial review should not have been limited to the four positions for which he filed a timely complaint. In general, plaintiffs who allege continuing violations can file charges at any time during which the continuing violation has taken place. E. g., Rich v. Martin Marietta Corp., 522 F.2d 333, 348-49 n. 15 (10th Cir. 1975). This theory is inapposite in this case, however, because there is no indication that Aikens was adversely affected by an employment policy or practice that consistently operated to hold him, or blacks as a class, in the lower echelons of employment. Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir.1973); Rich v. Martin Marietta Corp., 522 F.2d at 348. But see, Cedeck v. Hamiltonian Fed. Sav. & Loan Ass’n, 551 F.2d 1136 (8th Cir. 1977). Therefore, we consider here only the four positions for which Aikens filed a timely complaint with the Postal Service.

2 . The findings of fact in the District Court opinion also focus on Aikens’ failure to be promoted to the position of Postmaster. In 1972, Aikens was one of four candidates for the position of Postmaster. Because of the pending Job Evaluation Program and a potential postal reorganization, officials delayed sending the four names to the selection board. The new job classifications established by the Job Evaluation Program made Aikens ineligible for the Postmaster position. After a new selection procedure, a black man became Postmaster of Washington, D. C. in January 1974. In light of the arguments advanced by counsel during the oral arguments in this case, we do not consider Aikens’ claims of racial discrimination related to the Postmaster position.

3 . We should emphasize that the question here, involving Aikens’ “qualifications,” concerns only the evidence necessary to make out a prima facie case. A person may be qualified to perform a job, and thus satisfy the requirements for a prima facie case under McDonnell Douglas, supra, and still ultimately fail on his claim of discrimination under Title VII. See Section V, infra. Nothing in this opinion is intended to suggest otherwise.

4 . Two additional points require comment. Evidently relying on affidavits offered by the Postal Service, the court below found that Aikens had informed supervisors that he was interested in only two specific positions. Finding of fact number 11. This finding was offered as if to suggest that, whether or not qualified, Aikens had no interest in the disputed jobs. However, even assuming that the affidavits were properly admissible (a question which we need not address), it is clear that they were not dispositive of Aikens’ claim. Aikens had filed Form 1717 to demonstrate his interest in all Postal Service positions higher than his own, and he had done nothing to withdraw those forms. The Postal Service had articulated no policy that foreclosed an employee from promotion to a position for which a current Form 1717 was on file, merely on the strength of his expressed interest in promotion to other positions. Because Aikens was not offered any of the four positions, he never had the opportunity to demonstrate his disinterest effectively by declining the positions. Furthermore, we cannot accept the government’s contention that a plaintiff in a Title VII suit, as a part of his demonstration of qualifications, is required to describe the positions in dispute. As the Supreme Court suggested in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the burden of describing the jobs in dispute rests with the employer. The plaintiff need only prove that he is qualified for the positions the employer has described and intends to fill. We note, however, that the nature of the Postal Service jobs involved was not actually at issue here and the government did not claim that Aikens’ description of the positions was inaccurate.