Barbara Davis v. Joseph A. Califano

DAVIS, Appellant, v. Barbara

Joseph et al. A. CALIFANO 78-1398.

No. Appeals,

United States Circuit.

District of Columbia April

Argued Nov.

Decided 14, 1980. Feb.

As Amended ROBINSON, Jr.*,

E. United States District Judge, United States District Court for the District of Columbia.

Opinion by for the Court filed District ROBINSON, Judge AUBREY E. Jr. Dissenting opinion by Judge filed Circuit MacKINNON. Jr., ROBINSON,

AUBREY E. District Judge: Davis,

Appellant, Dr. Barbara is a white Heart, female the National Lung (NHLBI), and Blood Institute Nation- (NIH), al Institutes of Health of the United Health, Department States Education (HEW). and Welfare alleged She unlawful against sex, her based on her hiring, promotions, and other conditions employment, in violation of Title VII of Rights the Civil Act by as amended Equal Opportunity Act of 2000e, seq.1 Appellant’s U.S.C. et § Com- plaint sought damages, pay, back overtime pay, promotion position, to level GS-13 declaratory, injunctive, and other relief. Following novo,2 a trial de the district court Appellant’s dismissed Complaint and en- judgment tered Appellee pursuant for Rules, 52(a) Rule of the Federal of Civil Procedure. Gwendolyn Jo Carlberg, Alexandria, M.

Va., appellant. I. FACTS Page, Paula J. Atty., Asst. U. Wash- S. Appellant received a Bachelor of Science C., ington, Silbert, D. with whom Earl J. U. Degree prior in 1968 to beginning work at Atty., S. Terry John A. and Peter E. NIH.3 She was hired as a GS-5 chemist George, Asst. U. Attys., Washington, S. D. March, thereafter, Shortly 1968.4 Appel- C., brief, were on appellee. lant was transferred to the intramural re- WRIGHT, Before Judge, Chief Although search division of NHLBI.5 most MacKINNON, Judge, Circuit and AUBREY of the GS-5 chemists NHLBI intramural * Sitting by designation pursuant herein, agency. to 28 U.S.C. as he is the head of the 292(a). § 2000e-16(c). U.S.C. § Law, 1. The trial court in its first Conclusion of 28, 1977, through 2. Trial was held November properly dismissed Fifth Amend- December claims, process holding ment due that her ex- remedy provided by clusive was Title VII of the Transcript, 30, 1977, 3. Trial November at 247. Rights GSA, Civil Act of 1964. Brown v. (1976); 48 L.Ed.2d 402 Wiley, 30, 1977, U.S.App.D.C. Transcript, Richardson v. 4. Trial November at 247. (D.C. 1977). Moreover, 569 F.2d 140 properly court below dismissed this action as Transcript, 5. Trial November at 246- Secretary the individual federal defendants. 47, 254-55. only appropriate Califano is the defendant Generally, promotions after GS-7 research GS-7 service,6 pro- supervi- was not were initiated year GS-9 one June, until 1970.7 sors. Their recommendations would re- moted to the level GS-7 chief, and, delay ap- court found that viewed the branch if The district proved, due to an admin- would then be to an Davis’ submitted inde- Dr. that, oversight, pendent promotion panel. procedure when the over- This istrative noticed, Appellant promoted designed was was sight process grade was to advance a of recompense underway. made to then and an effort was de-escalation No criteria chiefs, purchasing guide supervisors, tuition and existed to by paying all of her branch many promotion panels determining of her books for her work on her or in whether Degree.8 promotion justified. a was Master’s Nor were there criteria specified promotion for selection of Appellant Degree received her Master’s Rather, panels. promotion panels were 1973,9 early chemistry and a in in Ph.D.. on an ad hoe basis of composed professional Appellant promoted was February, 1977.10 scientific staff members.15 As will be dis- November, 1975, re to GS-9 level later, professional cussed scientific staff today.11 a male chem mains GS-9 Several predominantly was male.16 promoted were level with less ists GS-9 grade Appellant.12 qualifications time in Dr. Davis for a senior scientific position independent is in the 13-20 Series for Chemists.13 research staff in- vestigator, position sought Davis, court found that this series had a by district Dr. through a capability perceiving specific normal career ladder from GS-5 are the problem level.14 above the research developing hypothe- GS-9 Positions GS-9 protocol level were filled sis and for determining Senior Scientific its truth or falsity.17 independent investigator Research Staff. An posi- 1, 1977, Transcript, ing super- 6. Trial December 447. at one of NIH’s scientists act as thesis visor, employees primarily since those 30, 1977, Transcript, 7. Trial November at working Findings for themselves. of Fact Nos. 275-76. Most of the chemists at NHLBI intra- excep- 27 and 88. The Court also found that Transcript, mural research were women. Trial policy. Findings tions were made to this 1, 1977, December at 447. Although Fact No. 29. this has serious questions regarding alleged poli- unwritten Findings 8. of Fact Nos. 16. It was NHLBI’s cy, we need not now determine whether Find- policy per normal one course semes- ings clearly of Fact Nos. 27 and 88 are errone- supported, pur- ter be no books be ous. 7, 1977, Transcript, chased. Trial December at alleged Dr. Davis also numerous other dis- 855. criminatory reprisal acts and acts of for her having complaint. filed a discrimination It is 1, 1977, Transcript, 9. Trial at December 450. unnecessary allegations to detail these herein. 62, Appellant’s Ap- 10. Plaintiffs Exhibit No. pendix 6, 1977, Transcript, at 297. 13. Trial at December 781. 1, 1977, Transcript, Trial 11. December at 376. 5, 1977, Transcript, 14. Trial December at 562. That career ladder has been in effect for 28, 1977, 85; Transcript, 12. Trial November at Chemists in Intramural Research at NIH for 29; 1977, .106-08, Transcript, Trial November trial, years. At 10-12 there was conflict- also 118-20. ing ranged evidence that the career ladder Appellant also introduced evidence that she Transcript, GS-5 to GS-12 GS-15. Trial passed over for on several occa- 29, 149; Transcript, November Trial See, g., sions. e. Defendant’s Exhibit No. 5, 1977, December at 511. 533; Appellant’s Appendix at Plaintiffs Exhibit 53, Appellant’s Appendix No. at 292. 7, 1977, Transcript, 15. Trial December at 888- evidence, Although conflicting there was pro- trial court found that was not moted sooner of an NIH because unwritten - page See 198 U.S.App.D.C., page policy that an not be F.2d, 960 of 613 grade pursuing graduate degree, using infra. when laboratory study purposes, NIH facilities for week, being permitted Transcript, a flexible work and hav- 17. Trial December at 882. rated Approximately 39.2% of all GS always, held although not usually, tion September of 1975 employees at NIH in degree.18 an M.D. Ph.D. or with a person men; 60.8% were women. fellowship pro- a staff created NIH had ' Ph.Ds., permit them gram for new male year of all For fiscal 46.2% develop prove their opportunity both at or employees positions held NHLBI innovative to function capabilities level, only 7.3% of above the GS-13 while indepen- required manner creative positions NHLBI held female inexperienced An investigators.19 dent period same levels23 For this grade those indepen- as án never hired is almost Ph.D. time, employees holding 68.4%of NHLBI participating investigator without first dent positions were male and 31.6% level GS-13 fellowship program.20 in the staff em- rated were female.24 40.5% GS time, NHLBI were males at ployees at were females. and 59.5% APPELLANT’S STATISTICAL II.

EVIDENCE indicate that category The two statistics levels promotions higher at the rate of data relevant statistical The abundant employees at NIH higher much for male GS may be divided to the trial court presented employees. NHLBI than for female GS (1) categories: data indi- roughly into three 1974, of example, year in fiscal 55.8% For grade salary struc- cating disparity in professional employees NIH who GS employees female at ture between male' and Approxi- promoted were were women. NHLBI; (2) indicating data dis- NIH. male NIH mately professional 58% of the men and wom- parity rates of were at the employees, promoted who were NHLBI; (3) employees en at NIH only 12.1% of level and above while GS-13 grade and sala- indicating disparity data employees who professional female NIH employees ry of male and female structure and above.25 were were at GS-13 regard at with to their education. NHLBI 1972-1976, of the years For the 37.7% category statistics reveal The one pro- were employees male at NHLBI who grade salary structure at upper above, were at the level and moted GS-13 overwhelmingly made is NIH and NHLBI employ- compared to 4.8% of the female example, as of up employees. of male For promoted.26 who ees at NHLBI 1975, male NIH September, 36.1% of all employees positions that, at or above the held Category three statistics show level, only while 4.8% of female em- degrees, GS-13 with among employees doctorate ployees positions Ap- held at those levels. tendency for males to be em- there is a fig- these pellant’s higher grade statistics indicate levels than females. ployed at figures example, professional employees ures varied little from similar for For 1975, October, 1975, January, September, 1972.21 In 78.7% at NHLBI 81% of the holding posi- positions level with held or of NIH GS-13 males Ph.Ds. GS-14 above, only were female.22 while 41.2% of the tions were male and 21.3% females 6, 7, 1977, Appellant’s Appen- Transcript, 23. Exhibit No. 18. Trial December at 882- Plaintiff’s at 114. 83. dix 7, 1977, Transcript, 19. Trial December 882- 5, Appen- Appellant’s 24. Plaintiff’s Exhibit No. 83. dix at 103. Transcript, 20. Trial December Appen- Plaintiff’s Exhibit No. 25. dix 1, Appellant’s Appen- 21. Plaintiffs Exhibit No. 16, Appellant’s Ap- 26. Plaintiff’s Exhibit No. dix at 88. pendix at 153. 2, Appellant’s Appen- 22. Plaintiff’s Exhibit No. dix at 94. degree's positions were in of employment

Ph.D. GS-14 discrimination. Interna- tional Brotherhood of Teamsters v. above.27 United States, 431 U.S. professional male October em- (1977). L.Ed.2d 396 ployees holding degrees at NHLBI Ph.D. suggested method in McDonnell 14.22, average grade had an while the Douglas for pursuing inquiry . average grade corresponding female was never rigid, intended to be mecha- year, Ph.Ds. was 13.47.28 For that same nized, Rather, or ritualistic. it is merely average grade level for male NHLBI chem- sensible, orderly way to evaluate the ists within the division of Intramural Re- light evidence in experience common 14.28, search was and the average grade as it question bears on the critical level for female NHLBI chemists within discrimination. A facie case under that division was 13.29.29 McDonnell Douglas raises an inference of presume because we III. PRIMA FACIE CASE acts, these if unexplained, otherwise primary issue on appeal is whether more likely than not based the consid- the trial court in its erred determination eration impermissible factors. Dr. Davis failed to make out a discriminatory facie case promotion prac- A Douglas McDonnell particular Appellant challenges tices.30 In showing equivalent is not the of a factual the district court’s Conclusions of Law that finding of discrimination . . . [I]t (1) prove statistics alone simply proof of actions taken by the individual, facie case in an opposed to a employer from which we infer discrimina- action, case,31 (2) class discrimination tory experience because animus has Appellant’s statistics were irrelevant be- proved that in the absence of any other they cause included no information on the explanation it is more likely than not qualifications promo- of those available for those actions were bottomed on imper- below, tions.32 For the reasons discussed missible considerations. this Court concludes that the trial court Furnco Corp. Waters, Constr. 438 U.S. erred and that the action must be reversed 2943, 2949, 2951, 98 S.Ct. 57 L.Ed.2d and remanded. (1978). 957 After a facie case has A plaintiff Title VII carries made, the ini been the burden shifts to the employ- presenting tial burden of facie case “prov[e] er to that he based his employment 9, Appellant’s Appen- 27. Plaintiffs Exhibit No. causing Counselor the matter him to believe dix at 129. against he had been discriminated within 30 days matter, or, calendar of the date of that if 9, Appellant’s Appen- 28. Plaintiff’s Exhibit No. personnel action, days within 30 calendar dix at 131. of its effective date . Although Appellant’s hiring in the context of 10, Appellant’s Ap- 29. Plaintiff’s Exhibit No. completed case constituted an isolated and pendix at 137. act, allegations discriminatory promotion practices acts, allegations and related and her Law, 30. The trial court’s fourth Conclusion of retaliation, of harassment constitute con- holding allegations any occurring acts tinuing subject violations not to the normal prior 4, 1974, February properly, were not filing. time limitations for See Macklin v. Court, only before the is correct insofar as it Spector Inc., Freight Systems, U.S.App. 156 applies claims of discrimination (D.C. 1973); D.C. 478 F.2d 979 Cir. Loo v. hiring. thirty days prior in her That is the date Gerarge, F.Supp. (D.Hawaii 1974). 374 1338 to the date on which Dr. Davis filed an informal event, any appears has aban- complaint with her EEO counselor. 5 C.F.R. appeal. doned her claims on pertinent part: § 713.214 states in agency may accept complaint 31. Conclusions of Law No. 3. processing subpart in accordance with this only if— 32. Conclusions of Law No. 2. (i) complainant brought to the atten- Equal Employment Opportunity tion of the 962 consideration, Securities, Inc., Regional U.S.App.D.C. legitímate

decision on a 1977). (D.C. Cir. one such as race.” 557 F.2d illegitimate Furnco, at 2950. also supra, S.Ct. See is in an individual action as This so Co., Liberty Mutual Insurance Wetzel v. previous We have well as in a class action. 1972). 239, 259 (3rd The burden of F.2d hold, indicated,34 explicitly ly and now plaintiff, back to the persuasion then shifts may evidence establish a statistical given opportunity to in who “must be employment case of discrimination facie justifi prof erred troduce evidence that The trial court’s conclu an individual case. discrimina merely pretext cation is probative less sion that such evidence has Furnco, at 2950. surpa, tion.” in a in an individual action than class value action is in error.35 Evidence In An Individual A. Statistical Case Employment Discrimination typically is uti evidence Statistical prima facie merely a form lized in class actions to establish evidence Statistical demonstrating pattern-or-practice circumstantial evidence from which an case Teamsters, may be drawn. unlawful discrimination. See inference of 336-40, supra, data works no 97 S.Ct. 1843. The invocation of statistical U.S. any As with circum An claimant in a class action magical incantation. evidence, additionally usefulness of statisti need establish that he or stantial “depends cal on all of the sur she is a member of the class and has been evidence employment rounding facts and circumstances.” Team denied a or other sters, during period of the class supra, 431 U.S. S.Ct. benefit dis used, particu alone to recover for proof crimination order Statistical specific injuries.36 employer may instances of larized An defeat presentation without its, discrimination, right recovery by sustaining establish a bur employment proving plaintiff’s discrimination.33 Ha den of either that States, proof v. United statistical of class discrimination is zelwood School District 299, 307-08, insignificant, 53 inaccurate or or that the indi Teamsters, (1977); supra, employment L.Ed.2d 768 431 vidual claimant was denied an 1843; Kinsey v. First U.S. at benefit for lawful reasons.37 However, presented language 33. Dr. to the trial Davis also court to the extent that in those specific suggests proof might evidence of numerous crimination, instances of dis- decisions that statistical Defendant-Appellee and the prima intro- establish a facie case in a class action opposing only, duced evidence. This need not be reject position. we detailed in view of this court’s determinations herein. 36. Dr. Davis established these ele- pages-- ments before the trial court. See Roudebush, Hackley U.S.App.D.C. 34. v. 171 - U.S.App.D.C., pages 958-959 of of 198 (D.C. 1975); 520 F.2d 158 Cir. F.2d, supra. 613 Kinsey, supra, U.S.App.D.C. 557 F.2d at 839. plaintiffs] initial burden [The is to demon- strate that unlawful discrimination has been Kaplan 35. See v. International Alliance of The- regular procedure policy a or Employees followed Stage atrical and Motion Pic- and employer group employers Operators, or of ... At ture 525 F.2d Machine initial, “liability” stage pattern (9th 1975); the of a or Muller v. United States Steel Cir. (10th 1975). practice [plaintiff] required Corporation, suit the is not 509 F.2d 923 Cir. person offer evidence that each for whom it Eighth cases relied In each of the Circuit ultimately court, will seek relief was a victim of the upon by Appellee and the trial there was employer’s discriminatory policy. Its burden nondiscriminatory legitimate, ba- a evidence of action, is to establish a facie case that such a employment or that the sta- sis for the policy unreliable, suggesting existed. The burden then shifts to the proof was tistical employer showing employ- to defeat the facie holding was that the the in those cases pattern practice demonstrating of a or of rebuttal. See Har- er had carried its burden Airlines, Inc., [plaintiff’s] proof per that the either is inaccurate Trans World F.2d v. ' 1975); King Freight System, insignificant. (8th or . Yellow Cir. Inc., 1975); (8th employer Cir. Terrell v. If an fails to rebut the inference 523 F.2d Co., (5th 1972). [plaintiff’s] prima facie Feldstein 468 F.2d 910 that arises from the employer’s appli- of a the evaluation of the proof “broad-based Just as statistical [pro- company’s discrimination cant’s the rec- employment qualifications, of policy indi- grounds infer that reasonable were the relevant items of ords most vides] in [employment] decisions were made vidual If the to hire proof. refusal based was discriminatory and policy the factors, of pursuit and employer agents the its other employer to come requirefs] . the what factors and knew best those were dispelling that infer- forth evidence they extent to which influenced the the action,38 too the so should in a class ence” decisionmaking process. equal have force of statistical evidence use reasoning applies This same in an individual effect an individual action. in the Teamsters Supreme case. of Evidence Proba- Nature Statistical B. permitting a explained its rationale of and to Prove a Prima tive Sufficient case in a present a plaintiff of Re- Facie Case Discrimination with through statistical evidence:39 action class gard to Promotions did not Although the facie case the conclusively that all of demonstrate included in statistical data part of employer’s decisions designated previously has been cate- what discriminatory pattern prac- proved gory compares number one sexual com- tice, greater it did create a likelihood upper position grade salary posi- of the single any' component decision was with the tions at NIH NHLBI overall pattern. Moreover, find- the overall composition organizations. those sexual ing pattern practice changed or probative evidence from which This data employer of a position discriminatory may a court infer animus. Finally, employer proved wrongdoer. proper comparison is between position why any was in the best to show composition of the relevant work force individual an em- denied qualified population relevant ployment opportunity. Insofar as the promo- reasons to available or market.40 In the context related vacancies labor case, unsuccessfully ap- a trial then that a individual discriminatee court conclude job potential plied violation has occurred and determined the for a therefore was appropriate remedy. any proved Without further finding As victim of discrimination. [plaintiff], Co., evidence from Transportation court’s v. Bowman [Franks pattern practice justifies of a prospective an award 47 L.Ed.2d 444 might relief. Such relief take the employ- (1976)], rests on the the burden then against injunctive form of an order continua- appli- the individual er to demonstrate that discriminatory practice tion employment opportunity cant was denied an [plaintiff] When seeks relief for lawful reasons. discriminatory practice, for the victims of the Teamsters, 361-62, supra, 1867- usually a district addi- court must conduct liability phase proceedings tional the of after scope trial to the determine the of individual Teamsters, 359, supra, 97 S.Ct. at 1866. at 38. question . . relief. of individual [T]he proved relief does it has not arise until been n.45, Teamsters, supra, 97 at at 359 S.Ct. 39. employ- employer that the has followed an 1867 n.45. policy The ment unlawful discrimination. of proof dissipate not at the force of that does District, supra, 433 U.S. School Hazelwood 40. employer stage remedial cannot, therefore, the trial. The of . case, states: S.Ct. a 97 rea- that there is no claim comparison proper was between the ra- [A] employment son to individual believe that its teaching composition of Hazelwood’s cial discriminatorily based; has decisions it were quali- composition of the the racial staff and already been to have maintained shown population public teacher in school fied decisionmaking. policy discriminatory of labor market. relevant sup- proof pattern practice of the Kinsey, supra, U.S.App.D.C. in Court This any particular ports em- an inference applied a F.2d at similar test: decision, ployment during period in further held that statistical dis- force, been It has discriminatory policy was in which the proportion parity of in between the blacks policy. The pursuit was made of that in employer’s proportion work force alleged [plaintiff] only an show that need employment a relevant factor in presently haps as is before the case such

tion that, Court, expected decisions, be absent would would not have to be promotion pro- promotion practices, discriminatory provided initially prof- for in the statistics group in each of protected portion fered to make a facie case. Similar- grade levels job classifications ly, particular years of of work if a number proportion approximate would experience a minimum were established as with the minimum neces- group protected criterion, job then that would need to be the em- promotion for in sary qualifications If, proffered reflected in the statistics. as a whole. See Team- ployer’s labor force however, only work a fac- experience n.20, sters, 1843. supra, at 339-40 decisions, promotion to be tor considered plaintiff’s criticized statistical data need not take The trial court due to the lack detailed infor that into statistics account. qualifications of those regarding mation suggesting plaintiff We are not that a However, only promotions.41 for available present not statistical evidence of fac- objective qualifications neces the minimum promotion tors relevant other than the eligible promotion for sary for one to be objective qualifications necessary minimum in the data must be considered statistical eligibility. merely saying for We are every presented initially by plaintiff; he need not do so to establish a relevant to a conceivable factor defending party, great- case. The with the in the decision must be included statistical er access to statistical evidence other to make out a presentation order factors, may relevant utilize such evidence example,

facie case.42 For if doctorate presentation.43 in its rebuttal eligi necessary The record herein reveals that there are upper grade levels position ble for a necessary objective qualifica- no minimum NHLBI, at NIH or then statistics on the tions for the research staff senior scientific market would have to relevant labor be so position independent investigator.44 A quality limited. The of education received candidates, eligible although per- necessary those doctorate is not a minimum re- íd. The Court limited the relevant of blacks in the relevant labor market consti- labor mar- teachers, require facie case of discrimination in tutes ket but did not years experience, violation of Title VII. statistics reflect of work equally upper quality training, potentially Such evidence is valid in an and other rele- case, job provided Teamsters, level supra, vant factors. See also defined, pool accurately n.23, 1843; relevant labor U.S. at 342 Rich v. Martin possessing qualifications persons to those 1975). Corp., (10th Marietta F.2d employer requires. which the 43. The trial court also criticized 129; Findings of Fact No. Conclusions of including in her statistical evidence Gener- Law No. 2. Employees, approx- al Schedule who constitute imately employees, present- of all NIH 55-60% District, supra, School See Hazelwood ing statistics failed to reflect additional n.13, U.S. at 308 & 97 S.Ct. at 2742 & n.13. degrees by employees during obtained their Hazelwood, stated: employment, basing many tables on special qualifications required When cumulative totals of men and women above comparisons particular jobs, gener- fill to the levels, particular grade failing to limit population (rather al to the smaller many of her tables and charts to group possess of individuals who the neces- Findings the scientific field. of Fact Nos. sary qualifications) may probative have little However, Appellant’s 132 and 134. statis- comparative value. statistics introduced probative Appellee tics are and relevant and Court, the Government in the District presented suggesting has no evidence how the however, properly public were limited to Appellant’s aforementioned criticisms make teachers, school and therefore that is not proof insignifi- statistical either inaccurate or Mayor Equality case like v. Educational cant. 1323, League, 415 U.S. 605 39 [94 630], racial-composition L.Ed.2d in which the - pages page U.S.App.D.C., 44. See of 198 comparisons spe- failed to take into account F.2d, supra. 959-960 of 613 qualifications position ques- cial for the in Id., S.Ct., 1333-1334], tion. at 620-21 at [94

965 similarly capabilities employ- rate situated female required and the quirement, ees. subjective, creativity are not and innovation Therefore, contrary to

objective, criteria. Appellant’s statistical facie case is Conclusion court’s second the district by subjective bolstered and ad na hoc by Law, showing made Dr. Davis’ bare Appellee’s promotion ture decisions. No adequate.45 is category one statistics objective guide criteria were established to promotion supervisors, decisions of such as that promotion promotion chiefs and ad hoc panels, branch Court, organization in presented to predominantly who were male.49 This appro is an plaintiff which the agrees Eighth with the Circuit Court mark as the relevant labor priately utilized Rogers in Appeals Paper v. International approximately 75% et.46 At NIH Co., (8th 1975), 510 F.2d 1340 Cir. vacated filled and above are positions at GS-11 809, 19, grounds, other 423 96 U.S. than recruit within rather promotion from (1975), 46 L.Ed.2d 29 reinstated with modi Therefore, Appel without.47 ment from (8th grounds, fication on other 526 F.2d 722 category in data included lant’s statistical 1975), which stated: Cir. one, dispar indicating a substantial number possibilities Greater for abuse em percentage of female ity between the subjective inherent in are definitions of grade salary posi and ployees upper in the promotion selection and cri- employment NHLBI and the overall tions at NIH and they are teria. Yet be condemned employees in those of female percentage se, per as unlawful for in all fairness to units, is sufficient to make organizational decisions, alike, applicants employers prima facie case of discrimination. out a hiring promotion supervi- about jobs statistical data included sory managerial cannot realisti- pro- cally using objective two also constitutes be made category number standards Thus, especially important it is discriminatory from which alone. bative evidence possible courts to be sensitive to bias in might be inferred.48 Absent discrim- intent promotion process arising promo- inatory promotion practices, similar subjective definition of em- such employees in for male and female tion rates ployment criteria. grade lev- higher job classifications and objective the minimum possess els who Appellee’s promotion procedures highly necessary positions for those qualifications suspect closely must be scrutinized be- expected. Dr. Davis’ statistical capacity masking would be their unlaw- cause of employees meaningful indicated that male GS “lack of evidence ful bias.50 The stan- decision, higher grades guide promotion at NIH and NHLBI dards objec- higher whereby there is some assurance of substantially at a 258; Rich, 347; Wetzel, supra, supra, that a at 45. Even if we were to have concluded at necessary require- Corp., was a minimum 457 348 doctorate ment, Rowe v. Motors General 1972). F.2d Ap- (5th this Court would still conclude that Cir. pellant presented has facie case. category included in three statistical evidence page 49. See U.S.App.D.C., -of pages salary disparities grade male indicates F.2d, supra. 959-960 of 613 equivalent educa- and female degree qualifications. tional there were no written criteria for 50. [S]ince racially discriminatory promotion, a denial of Corp., 46. See Stewart General Motors easily pass could as one motivated 445, denied, (7th 1976) F.2d 449-50 cert. Cir. appellant greater a desire to accord train- 1105; 919, 2995, 53 L.Ed.2d U.S. 97 S.Ct. ing. Rich, 347; Wetzel, supra, supra, at 257-58. Hackley, supra, U.S.App.D.C. Kinsey, supra, F.2d at 159. See also 181 U.S. 838; Rich, supra, App.D.C. at 557 F.2d at Transcript, at 752. 47. Trial December Co., 348; Barnett v. W. T. 518 F.2d Grant Co., Paper F.2d See Watkins v. Scott Rowe, (4th 1975); supra, at 358- Cir. denied, 1976); (5th cert. 1190-92 (1976); 50 L.Ed.2d I. encouragefs] . . tivity foster[s] discrimination.” graduated Appellant in 1968 from Duke with a University Bachelor Science de- courses, gree. In her science which com- IV. CONCLUSION classes, prised seventy percent of her she above, we discussed find reasons For the C’s, D’s, Nevertheless, received and F’s. in its determina- court erred trial that the year by she hired that was the National a to out Dr. Davis failed make tion that Institute Health as a chemist with a case of discrimination. prima facie Men rating. GS-5 and women with better is reversed and- of the trial court judgment qualifications chemists, were hired as GS-7 remand, trial court must On remanded. majority and the of chemists were women. has sustained Appellee whether determine Though thereafter a acquired she Masters showing Appel- either that its burden degree, promotions and Doctorate her came insig- or proof is inaccurate lant’s statistical Frederickson, slowly. Dr. Donald one of promotion denied nificant, that she was superiors, expressed opinion trial court reasons. The shall she a for lawful was less sufficient as chemist peers. (Tr. 882) meeting some of her In a allegations of Appellant’s con- also consider held on March 1974 to obtain the inde- dating tinuing and retaliation harassment pendent professional assessment of all the with NIH. employment back initial to her concerning staff chemists labora- tory, the members of the staff who were MacKINNON, Judge (dissenting): Circuit familiar with work found that average she was as to compared other a at the Appellant, GS-9 chemist Nation- 880-81; DX-4) (Tr. chemists. Health, al Institute seeks advancement position, chance prove to a and a to GS-12 The record also that when reflects she independent investigator, working project Assman, herself as on a for Dr. one of her Ph.D. supervisors, thesis she was ground that she has been discriminated unable to usable while obtain data others in against highly posi- to skilled assaying the Heart Institute were the same I tions because of her sex. would affirm enzyme doing (Tr. so successfully. 974) judgment Appellee the trial court’s Dr. Assman did not recommend her for a First, assuming Appel- four reasons. even promotion, although he recommended two lant established facie case of indi- chemists, including (Tr. other a woman. by vidual discrimination the use sex of sta- 981-82) Appellant’s superior at the time of tistics, Appellee, the burden once shifted Pisano, trial, Dr. testified he had it clearly proved Appellant was not told her he rated her the lowest of the three she was not simply quali- because post-doctorate employees that were as- Second, fied. statistics introduced signed He to him. further stated she did Appellant sufficiently are not detailed to spend not much time in the laboratory as facie case of individual establish post-doctorate (Tr. other employees. 1007- promotions sex to these 1008) Third, highly positions. skilled even assum- evidence trial also indicates that ing appropriate the statistics are in form to Appellant was a get difficult case, they establish facie do not along This is with. indicated the fact come in substance establishing close working that when she started on her Ph.D. case of sex discrimi- thought necessary NHLBI staff statistics, Finally, apart nation. writing policy agency confirm in that a to sustain her burden failed degree achieves an chemist who advanced proving qualification pri- element of a position a senior research staff assured (independent investigator) ma facie case. when a Ph.D. is Muller, supra, at 927-28.

967 Waters, 2943, v. 438 U.S. 98 S.Ct. The under- memorandum completed. applied (1978). Further, policy Appellant to L.Ed.2d standing stated that this 957 179, 866-67, 133-34, 146-47, PX (Tr. justi- Appellee’s evidence that presented her. no had been ex- Previously policy this 95) for pretext fication was a discrimination. of verbal under- in the form pressed Thus, trial Id. at the that a but the staff considered standings, conclusion, based on the evi- court’s all of Appellant would understanding verbal dence, Appellee Appel- that did not violate addition, (Tr. 935) Dr. impossible. the rights lant’s civil under Title VII of Appellant one had informed Frederickson amended, Rights as Civil Act her she commenced Ph.D. after had month 2000e-16, clearly is not erroneous U.S.C. § guarantee was no she program that there and should be affirmed. investigator independent the would receive degree. upon completion of position II. 458; DX-11) (Tr. reason I second would affirm brought important out at Another fact judgment Appellee trial for is that court’s part Appellant that was not

trial was inadequate statistics fellowship program, In that program. staff facie case of form establish opportunity have the employees with Ph.D.s highly to the individual sex discrimination proving their increase their skills while position. princi- This is the skilled chemist capacities creativ- developing for innovative ple majority opinion. issue discussed in the agency rarely indepen- offers the ity.1 The opinion approves use of statistics investigator positions inexperi- to an dent objec- participating merely Ph.D. who is in the which reflect “minimum enced then, qualifications” positions Even not all staff fellows tive for under program. test, Edward guaranteed positions. are for this it cites support review. As Nicholas, NIH, Internationa] Director tes- of Personnel v. Brotherhood of Teamsters positions level that 75% NIH senior States, tified United U.S. agency, from

were filled within and (1977) 52 L.Ed.2d and Hazelwood School promotions exclusively almost these States, District United It program. appar- members of the from However, (1977). 53 L.Ed.2d fact Appellant’s findings of that ent from this Supreme Court nowhere establishes fellowship pro- she refused enter used, the two as the standard to be and refusing, suffering gram. By she is one distinguishable Ap- clearly cases are consequences. pellant’s. appears It the minimum qualification needed Teamsters clearly Appel- These facts indicate being con- was whether the individuals frequent personality conflicts with lant had drive a fair- sidered hire could truck —a superiors. of her As concluded various fungible Similarly, in- ly skill. Hazelwood court, her to be the trial failure public school hiring volves fact, the fact that resulted from skill, training less teachers where far qualified peers as to take she was not as experience are needed for chemists heavy responsibility high of a level on the doing medical research. Since advanced purely It is in- independent investigator. more skills both cases concerned common assume, would have credible to chemists, a occupations .than research do, she is not a us reason objec- litigant’s utilizing minimum Appellee statistics because she is a woman. GS-12 is qualifications for would be much proving tive sustained its burden of more establish a facie case legiti- decision on a reliable to was based Corp. employer’s Constr. of an discrimination. mate consideration. Furnco determining majority opinion, hypothesis protocol its trial 1. As noted at and in the 882) falsity. (Tr. independent investigators per- be able must truth specific problem develop ceive research considering employ- degrees prior cational obtained to hire is a research are here We time, the most advanced in some of a serious engaged ees waste of the Court’s the outer horizons of medical research disadvantage employers to the to whom the knowledge. qualifications for present proof is shifted. burden preeminent. If em- be work should such The trial court concluded that ability filling average are these ployees of they statistics were “irrelevant because in- quali- getting is not the public the positions regarding qualifica- clude no information expects it and needs. I that ty research tions of those males and females available statistical data intro- that the would hold promotions.” (App. Vol. I at for or prove prima Appellant does not by duced court; 23) go I as far trial would not as the great degree Because of the facie case. relevant, the statistics are but are alone job, require I for the would skill needed prima insufficient in form to establish a particulars more to proof initial to descend here facie case of discrimination because qualifications the obvious upon to touch they do not reflect more of the obvious job. the Just because the considered for qualifications jobs. for the As considered by are not written down qualities demanded testified, expert the Appellant’s own statis- they does not mean are not employer the pertinent employees’ tics do not reflect the it, by or are not obvious to the considered education, ages, quality previous work litigants opinion the Court. As the experience, degrees obtained subse- states, may the Teamster case statistics be 705, (Tr. 736) quent to hire at NHLBI.2 I they surrounding relate to considered 340, also note the statistics do not consider the facts and circumstances. U.S. Similarly, Supreme the experience acquired grad- since the various Court in Hazelwood School District noted post-graduate degrees uate and were com- that pleted. undoubtedly All of these facts are qualifications required are special employer considered the when determin-

[w]hen jobs, comparisons to particular to ing promote fill whether a chemist. It must (rather general population than to the be stressed that this case demands more possess group smaller of individuals who particularized purpose statistics for the necessary qualifications) may have proving prima facie case of sex discrimi- probative little value. nation uniqueness because of the of the positions being considered. skills under at 308 n. 97 S.Ct. at 2742 n. 13. , fungible, and certainly examination are accept prima For the Court to as a facie objective thus disappointed case from chemists statistics minimal statistics levels, sex, only grade presented by Appellant that reflect and edu- are insufficient.3 degrees group qualifications If the do not reflect obtain- number of a have the statistics by Appellee, they schooling voting, jury subsequent ed or or It is to hire do not service. assume, Appellant’s degrees. thing another even reflect facie-wise or otherwise, that because a certain number of The Fourth discussed this issue in Circuit exist, people Wjhite] they N[egro], be or Inc., ESB, (4th Roman v. 550 F.2d 1343 Cir. any significant lawyers number of them are 1976) (en banc), plain- where it reviewed the doctors, merchants, or concrete, or or chiefs —or to be attempt proving employer’s tiffs competent plumbers or electri- wage scale favored whites over blacks. cians, carpenters. or The district court examined these conten- Co., Ry. See also Hester v. Southern 497 F.2d attempt by rejected appel- tions and (5th 1974) (“A signifi- n. 6 more disparity by average such a lants to establish comparison might perhaps cant be between the wages plantwide of whites and blacks on a percentage population of blacks consist- regard to differences in level of scale without skill, ing type wpm of those able to or better and training. agree. education We percentage Typist posi- Data hired into the Id. at 1355. Southern.”). tion Similarly, in Dobbins v. Local Interna- Workers, tional Brotherhood of Electrical possible particularized 3. The use of more sta- 1968), F.Supp. (S.D.Ohio explained by the Court tistical evidence four econo- Asher, Haworth, Haworth, Gwartney, stated: mists in assume, Statistics, thing presume It is one the Law and Title VII: An Econo- otherwise, View, (1979): significant facie-wise or that a mists 54 Notre Dame Law. 633 From the points in different directions. it III. concluded furnished it statistics agree Third, if I were even are not discriminat- group as a that women only reflect need the statistics majority women consti- against generally because ed qualifications” objective “minimum agencies at the employees most of the tute to see how I fail positions, the chemist instance, NHLBI, For 60.7% polled. establish in substance Appellant’s statistics 1972 were employees in fiscal of the GS case. figure In was 59.4% women. action in class held Courts have 30-31) I at (App. was 59.5%. Vol. in 1976 it proved by sta- cases, may be NIH professional GS 55.8% may, the statistics but tistics. Of course were wom- who were to make out adequate must be Therefore, these statistics show en. individual discrimi- facie case. In cases of women, certainly not ex- group, as a were clear. In nation, is less the use of statistics hiring promotion. and cluded party complaining where the those cases complaint is Appellant’s principal But almost group that was of a was a member repre- disproportionately women were excluded, Alliance Kaplan v. Intern. totally Because the higher grades. sented Stage Employees, and of Theatrical inconclusive, it is important are so 1975); Muller v. United statistics (9th F.2d 1354 Cir. look at them in detail to discern reasons (10th to Corporation, F.2d 923 Steel States disparity, noting this task 1975), against the discrimination normally judgment be left to the of should fairly But this is is obvious.4 as the trier of fact. Hazel- is the trial court data here case. The statistical such a States, District v. United in- wood School equivocal and inconclusive. However, be- data, 2736. but much of U.S. great a deal of troduced factors, lawyers judges are have skill racial skill differentials and seldom statistics, Since “nondiscriminatory expla- clearly potential in economics and been trained heretofore, has, appre- legal process disparity failed to between the unad- nation” of the earnings fully applicability deter- justed average earnings representation ciate or regression via mination estimates derived analysis help- and white and black techniques analysis of various or of defining ful in a class. representa- applied and to class definitions Id. 655-56. course, multiplicity questions. Of tion generally to will be relevant “skill factors” example, in the Teamsters 4. For the statistics employee. Some- the total evaluation of great disparity exemplify between ra- fully qualify impossible it will be times employed as truck drivers. cial classes times, neces- Other it will be “skill factor.” 31, 1971, shortly after of March As sary measure an indirect indicator to use alleging sys- complaint filed its Government example, impact in in- of a factor. For discrimination, company had temwide important cognitive where skills stances these, 6,472 employees. (5%) Of years schooling might job performance, Spanish-sur- Negroes (4%) were and 257 skills, cognitive as an indicator of be utilized 1,828 drivers, Americans. Of the line named however, directly avail- on the latter are not since data only Negroes (0.4%) was there Fortunately, many potentially impor- able. Spanish-surnamed persons, (0.3%) Employee quantifiable. tant skill factors are Negroes hired after the all of the had been usually available for skill factors data are excep- litigation had With one commenced. experience (a) years in relat- such as of work tion —a man who worked as a line driver at areas, training, (c) (b) years of vocational ed seniority (work experience Chicago from 1950 to 1959—the terminal em- with current predecessors employ company schooling, (e) quality' did not (d) quantity and its ployer), regular (f) per Negro schooling, typing basis a line driver minute and words of (g) (e. And, showed, dependability indicators of 1969. as the Government until rate). g., Both economic a low absenteeism were terminals in areas of even in 1971 there suggest theory that these Negro population and common sense where all of substantial company’s productive will influence the employees, skill indicators white. line drivers were turn, their and in contribution of earnings, Brotherhood of Teamsters International occupational even distribution and States, U.S. at United (cid:127) commonality typicality under the their case, (Emphasis original) In such a statis- white and black definition of a class. When tics are valid. differing possess of these amounts workers case, helpful in this The most majority’s by Ap- action chart introduced cause pellant compares average grade, GS the evidence. necessary to review service, average length average age explanations for the clearest One of the October, of NHLBI chemists for simply there are more men is that disparity 137) (App. Unfortunately, Vol. I at she higher degrees with the than women However, only introduced one such chart. promotions. from for choose figures certainly it exhibits do not show findings fact is evidenced This a clear case of sex discrimination. Of the the M.D.s in the only hold 10% of women Ph.D.s, eighteen were men and seven wom- 1049, 1050), (Tr. they United States average grade en. The men had an of 14.28 14%and 16.3%of the between received average grade the women’s while 13.29. physical in select and life Ph.D.s conferred dispositive, considering This in itself is not (Tr. 763, addition, and 1976. between 1973 the factors discussed above. In sciences the men had approximately year’s one more 764,1047; DX-24) Thus since men numeri- service than the women.6 It would be ex- the relevant work force it cally dominate ceptional figures if the for both sexes were naturally that there are male follows more holding only identical. chemists For a M.S. employed by M.D.s than female Ph.D.s and degree, women fared B.S. much better Appellee.5 Another relevant fact is the 1975, although than men. there were finding Appellant’s nearly statistics that equal almost an number of men and women separated the who two-thirds of employed degrees, with those the women in were female. Women from NHLBI 1974 higher average grade held a Civil Service therefore, acquiring group, as a less than the men. The women have a did Fi- seniority purpose for of advancement. higher average age length and of service in nally, it is that women have conceivable However, groups. those it would be no greater after the hired in numbers been more credible for a man to claim sex dis- enactment of Title VII in 1964 and the figures crimination on the basis of those concern over government’s expanded af- because, above, as is stated would be true, premise firmative action. If this is exceptional they if were identical. The disparity the then the between number of only conclusion the trial court should have upper grade men and women in the levels close, drawn is figures that the are so logically will continue for some time until obvious, any disparities reasons for so group gain as a experience more Appellant women that failed to prima establish a seniority. facie case.7 1974, professional pre-Act post-Act In NHLBI’s staff included ed because of a imbalance and male, personnel 52 Ph.D.s and 9 M.D.s who were and 14 low turnover. The Court stated this (App. “argument Ph.D.s and 3 M.D.s who were female. would be a forceful one if this were 141) who, suit, figures employer IVol. The for 1975 were 63 an at the time of had done male, virtually hiring Ph.D.s and 10 M.D.s who were and 17 no new since the effective date Ph.D.s and 3 M.D.s who were female. of Title VII.” Id. similarity length important 7. This case bears much to Roman 6. The of service is tied v. when ESB, Inc., (4th 1976) (en 550 F.2d 1343 with the enactment of Title VII in of the Civil banc) Rights average length where the held that Act of Court statistical 1964. The of prove evidence introduced at trial did not racial service for men and women chemists at NHLBI hiring promotions. years respectively. discrimination in ESB in 1975 was 15.6 and 14.9 Since, employee percentage employed had an overall non-white most of the chemists were prior layoff, prior to a which was well to the Title above enactment of VII and most 54% men, percentage population prior logical of the black to that time were it would be community. positions that there are more men these present time. Overall, whites do outnumber blacks in the higher job This situation contrasts with the Teamsters classifications and blacks outnum- case, Supreme classifications, pat- where the Court found the ber whites in the lower but any striking. tern of racial discrimination to continue in the imbalance is not employer’s hiring practices long spread through after Title VII The here of blacks the la- 341, grades was enacted. not such 431 U.S. at 97 S.Ct. 1843. bor is as would alone create employer prima argued disparities had exist- facie case of discrimination. This is

971 decision, particularly IV. individualized presence justifiable otherwise statistics, Appellant from the apart Even refusing to at 805 n. reason for rehire.” Id. case because prove facie failed 19, 93 at 1826 n. 19. S.Ct. qualified she was for the prove failed she is different proposed holding This job. Subsequent Supreme approv- Court cases I, where it was in Part from discussed ing the VII use of statistics in Title cases even if she had established a assumed usually have addressed either action class case, had in turn Appellee facie “pattern practice” suits suits proving rebuttal jiurden its sustained brought by government, neither promoted for reasons other was lot she specifically which address em- sex.¡ emphasized Here it must be her ployees. See Hazelwood School District v. initially the burden carries States, 299, 2736, 433 U.S. 97 United S.Ct. qualified job proving sje (1977); L.Ed.2d Rawlin- 768 Dothard v. case. oit make first son, 321, 2720, S.Ct. 53 L.Ed.2d 1973, Supreme Court established tje (1977); International Brotherhood of ingredients proving pri States, Teamsters v. United 431 U.S. necessarj facie private, in a non-class action cas ma (1977). 52 L.Ed.2d The Su Douglas suit in McDonnell discrimiratkfi ruling in preme Corp. Court’s Furnco Const. Gren, 411 U.S. v. Corp. Waters, 438 U.S. (1973). L.Ed.id 68 (1978) L.Ed.2d 957 clarifies issue.8 coiplainant VII trial a Title post-McDonnell Douglas Furnco.is the the initial under the burden must tari} case which addresses individual discrimina ofistablishing facie case statute specifically tion. The applies This racial jiscrimination. five-part Douglas, test' of McDonnell (i) belongs that he done sowing distinguishes dealing Furnco cases (ii) miniity; applied that he racial tests, employment particularized re qualiid job for a for which the “pattern quirements, practice” applicants; (iii) employer seeking Us 7,n. cases. Id. at 575 2943. The S.Ct. despi' that,' his qualifications, he was employer the Court then noted that Furnco (iv) that, rejec- ál after his rejected; all re purposes had conceded for its that po.ion tion, the and the open remained qualified, removing spondents were thus applicants ctinued to employer seek Supreme the issue from Court review. Id. personof complainant’s qualifica- from Therefore, at 576 n. even tions. though Furnco makes clear that statistics 802, 93 (Emphasis St. at 1824 add- Id. proof, five-part a are relevant form nog After that statistics be ed). applicable. test is still plaints proving pretext in helpful a logical is that like discrimination, conclusion for suits i. after the has action Appellant’s, private, i. e. non-class primia.de a case and after proven suits, plaintiff cou- must has induced employer evidence ple optional evidence use of statistical employment decin was based on reasons race (¡ex, proof qualification to personal make the Court cautioned other generaeterminations majority opin- “may such out facie case. The controlling issue, as specifically therrves to an ion fails to address this true especially highly likely ight plained, of the skilled are “more than not based on the by t\jgher pay impermissible done grade workers work consideration factors.” tool finding by and. such U.S. at 2949. This 1353-54. equivalent Id. ultimate the Court is- not the of an finding of fact. Co Furnco also clarified on For more detail the two kinds Douglatma facie case rais- McDonnell cases, Wigmore, Wigmore see on Evi- facie J. oknmjnation “inference” because an es (3d 1940). ed. § dence at 293 presumes th;ts, if otherwise unex- instead, at 856. alone, Similarly, Id. at the statistics relying on shifting employers to these the courts qualifications” to an objective the “minimum proof because of unfair burden of prima facie liti- Appellant established hold scanty prima based gant’s ex- factual reasons all of the case. For Employers statistics? Ap- inconclusive should I, submitted that Part it is pressed in claims less unsupported resist all her burden of effi- sustained pellant has not force be ciency of our work indepen- an diminished. qualified to be proving she was investigator. dent I indicated abore respect- To the extent majority opinion.

fully dissent V. entire find on the basis

I would conclusions that

record that the trial court’s engaged in sex dis- Appellee had not Appel- refusing promote

crimination in clearly to be erro- not been shown

lant had make out to a failure to

neous. In addition statistics, basis of facie case on the DIRECTOR, OF OFFICE WORKERS’ expressed by superiors her judgments PROGRAMS, COMPENSATION UNIT coupled with the fact ability, when as to ED DEPARTMENT STATES LA OF agency employs women BOR, Petitioner, their agency as chemists excess of v. strongly supports a population ratio in the merits that sex discrimi- conclusion on the LINES, Transport INC VAN NATIONAL she failed to be nation was not the reason Indemnity Company, Eurea Van & of her promoted. Rather it was a reflection Marylal Storage Company, Casualty ability plus to conform average Rey, her failure Company, III, A. and James Re general practices. important Most spondents. this latter connection was her refusal RILEY, III, Pitioner, James A. fellowship program, enter the staff one independent to select the chief means used investigators. DIRECTOR, OFFICE OF WORKERS’ issue my presents To mind this case PROGRAMS, COMPENSATION UNIT cry great that is of national concern —is OF ED DEPARTMENT STATES LA going be used as a of discrimination al., BOR, Respondents et underqualified means for 78-1259, Nos. 78-68. positions requiring great abili- employees to Appeals, ty? Burger expressed Justice Chief United States Court (Justice very court concern for unanimous District of Columbia Circuit. Griggs participating) Brennan not 1)79. Argued June Co., Duke Power 13, 1979. Decided Nov. (1971), upholding 28 L.Ed.2d 158 Dec., employer’s job testing use which reason- As Amended ably job performance. measures 19, 1979. Rehearing Denied D Congress has not commanded preferred over the better qualified

less simply minority ori-

qualified because job qualifica-

gins. disparaging Far from such, Congress has made such

tions as factor, controlling so

qualifications the race, religion, nationality, and sex irrelevant.

become

Case Details

Case Name: Barbara Davis v. Joseph A. Califano

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 14, 1980

Citation: 613 F.2d 957

Docket Number: 78-1398

Court Abbreviation: D.C. Cir.