*1 1133 question, yet discrimination tory silence on the central we claim thus must be returned that robs the to the avoid construction District Court.75 the exercise of statutory right Appel- discretion, sue its value. to informed the court must first Coles, lant, like was un- appointment determine whether an of coun procedural important right be- made,76 aware of an appellant sel for be should and if so responsible agency informing cause proceed any event, to accordingly. No more here than him of it did not do so. reopened receipt record must be ap pay price to in Coles should he have pellant’s live,77 testimony and for such fur legal sophistication. dismissal for his lack proceedings ther be in order. introduced, new be Should evidence Bell, any resolve statutory As in we must court must then de reconsider novo the appellant.73 ambiguity in In the favor proofs ends, as a judg whole. To these statute, remedial highly context of a we appealed from is vacated and the case congressional impreci assume that cannot is remanded to the Court. District congressional sion indicates indifference. sight of the “everyday Nor should we lose So ordered. litigation,”74 realities of Title VII one of many which —as this case attests —is that
lay claimants unaware of will remain authority appoint to
district courts’ counsel they by
for them are so unless informed Rather,
agency involved. we can rest se knowledge Congress cure in the cer PETER, Virginia Appellant, M. ST. tainly discourage did to intend civil v. by complainants, actions such or to handi cap them in the conduct thereof. SECRETARY OF ARMY. hold, then, requires We No. 79-2066. agencies conducting proceedings federal Appeals, United States Court administratively thereunder to inform un- District of Columbia Circuit. complainants successful that in the event of power suit discretionary the court has to Argued Dec. 1980. appoint We counsel for them. further hold July Decided 1981. who, litigant that a for unawareness of the power, request court’s to fails counsel penalized
should not agency be duty. Appellant’s
has been remiss in supra 73. See text at note 70. 76. Aside from the statement that counsel appointed should be “in such circumstances as supra 74. See text at note just,” the court deem U.S.C. 2000e- 5(f)(1) (1976), prescribe Title VII does not today duty While we hold to inform criteria which courts should evaluate re- agency’s, pointless is the be it would to remand quests for counsel. We never done so purpose. to the Federal Reserve Board for that either, and we will not undertake to do so here. Appellant now that he could knows have re- Instead, we leave the matter the informed quested counsel, and seeks a fresh start in the discretion of the Court in the District first in- doing course, District Court so. Of the fact Sears, v. stance. But see Caston Roebuck & agency responsibility that forming unrepresented in- has Co., 1977) (setting 556 F.2d right individuals of the relevant). forth factors Fifth deems request counsel does not mean that the trial Obviously, courts a hand. need never lend stands, 77. As the record now it was his wish as easily very usefully court could ask of the testify, right well as his and both were lost lay plaintiff court-appointed whether counsel is understanding and failure of communica- say requires desired. We that the Act do not supra tion. See text notes 11-13 and *2 C., Billig, Washington, D.
Ronda L. appellant. Sendor,
Benjamin Atty., B. Asst. U. S. C., Washington, D. with whom F. Charles C. Ruff, Terry, Atty., U. John A. and John S. Fisher, Attys., Washington, R. Asst. U. S. C., brief, appellee. D. Nabrit, III, City M. New James York Ralston, Stephen City, New York Charles were on the brief for amicus curiae NAACP Fund, Inc., Legal Defense and Education urging reversal. MIKVA, TAMM and Circuit
Before NICHOLS, Jr.,* Judges, and PHILIP Judge, United Court of Claims. States Opinion by Judge TAMM. filed Circuit concurring Separate opinion in the result filed Circuit MIKVA. Dissenting opinion by Judge filed NICH- OLS.
* Sitting designation to 28 U.S.C. pursuant 293(a) (1976).
H35 interviewed a two-member commit then TAMM, Judge: was made The final selection decision tee. Pe- Virginia M. St. this case Vespia, a member of the inter by Lt. Col. VII of the of Title alleges the violation ter viewing and assistant to Col. committee by Army officials Rights Act of Civil Hornish, supervisor. Vespia male, rather than promotion of a in their tentatively selected Thomas position in plaintiff, to a civilian GS-12 *3 USMAS; in Staples was never Chief of Military Personnel Cen- the United States Instead, formed, however, of that decision. Alexandria, Virginia. (MILPERCEN) in ter irregularities, procedural of several because a tried before United States The case was perhaps Peter filed a and because St. judgment for Magistrate who recommended discrimination, charge the entire defendants; recommendation was this was voided.1 at- court. Plaintiff adopted by the district voluntary equal employment opportu- A grounds. Be- several tacks this decision on officer, investigated Berger, nity Michael prejudicial error in the we find no cause charge. Vespia told Ber- Peter’s initial St. proceedings, we affirm looking ger that he for someone had the defendants. image fit his of a West Point who would cadet, Berger concluded that either and I. BACKGROUND preferred a man for the Vespia or OMPD A. The Process Selection investigation, Ber- job. At the close of his 1976, of Chief August Burnette, ger recommended to Carol Military Academy Sec- of the United States personnel civilian officer in- MILPERCEN USMAS), (Chief, Officer selection, or Chief volved in this Branch, Personnel Accessions of the Officer changed be and that Peter be reconsid- (OPMD), va- Management Directorate ered. responsible
cant. The Chief USMAS
filling
posi
procedure for
The second
process for the
directing the nomination
ranking
began
rating
with a
and
tion also
Academy
Military
at West
United States
panel.
panel again selected the “best
This
requests
makes annual
Point.
Chief
candidates,
including
qualified”
by nominat-
nominations
for submission of
were
Staples, although this time there
and
eligibili-
determines the
ing authorities and
interviewing
such candidates. The
nine
nominations.
ty
applicants for certain
three
this round consisted of
committee for
nomi-
also deals with
The Chief of USMAS
previ
men,
none of whom had been
officials, including members of Con-
nating
committee,
interviewing
and included
ous
staffs,
high-level
gress,
and other
their
Hornish,
supervisor. Be
Col.
military officials.
government and
original
procedure had
cause the
charge
Carol
used to
resulted in
procedure was
A formal selection
officer,
Burnette,
wit
rating
the civilian
Initially, a
and
position.
fill
impartial
as an
ob
nessed the interviews
ranking panel selected five candidates
was made on
including
The final selection
both
server.
qualified,”
“best
considered
performance of the candi
basis of the
Staples,
K.
plaintiff and Thomas
interviews.2 Col.
selection;
during these short
were
dates
these candidates
eventual
panel
pro-
(J.A.)
each candidate a set of
Appendix
2. The
asked
at 26. Three other
1. Joint
questions,
predetermined
followed
irregularities
six
have contributed
cedural
allowing
question
candidate to
First,
catch-all
give
to void the initial selection.
the decision
panel
if he so
information
interviewed,
additional
choosing
to be
in
rating
candidates
questions were:
desired. The six
ranking panel failed to consider an
you
job description
(1)
for this
Have
read the
have been considered.
individual who should
position?
Second,
rating
ranking
of the
the members
your reading
job
(2)
upon
de-
Based
panel
in a uniform
and “rank”
did not “rate”
impor-
you
scription,
see as the most
what do
Third, Vespia
was not authorized
manner.
posi-
in this
to be carried out
tant functions
in Homish’s absence.
make the selection
tion?
had served
Peter
over
were
learned that St.
interviewers
the other
Hornish and
years
variety
twenty
selection of
in their
unanimous
and,
retiring
after
responsible positions
Chief of USMAS.
employed
had been
from the
Proceedings Below
B. The
positions.
responsible
in several
civilian
plaintiff filed a
September
On
evidence,
reviewing
After
all of the
charge
of discrimination
formal
findings of fact
entered
Army.
Department of
United States
found that
conclusions of law. She
Staples for
alleged
the selection of
She
candidates
and several
resulted from inten-
Chief of USMAS
position”
“far
better
sex.
on the basis of
discrimination
tional
Appendix (J.A.)
Staples.
Joint
On December
support
But
infra. To
see note 4
determination that
there
made a final
conclusion,
longer
pointed to St. Peter’s
she
St. Peter filed
been no discrimination.
career and
formal education as
*4
the United States District
complaint
in
dealing with
experience
high-
as her
in
well
of Columbia on Feb-
Court for the District
contrast,
ranking
she
officials.
noted
1,1978. By agreement
parties,
the
ruary
of
Staples
had started at MILPERCEN as
magistrate;
a
the trial
the
was tried to
case
high
a
clerk-typist
1964 and had
a
in
7, 8, and
May
held on
1979.
was
by Army
enhanced
school
education
trial,
magistrate heard
During the
the
magistrate also found
courses.3 456The
testimony
key
selec-
the
actors in the
inefficient
the
and
ex-
procedure. Witnesses included an
as
arbitrary,
men as well
women
and that
records
the
pert
personnel
the
used
on
disadvantaged by
it.
ranking panel,
equal employ-
the
rating and
law,
magistrate
In her
of
conclusions
jnent
investigated
who
opportunity officer
held that
had established a
charge of
St. Peter’s first
question
prima facie
the ultimate
case. On
members of the second interview-
the three
discrimination, however,
of
committee,
ing
civilian
Personnel
was arbi-
Staffing Specialist who observed those in-
trary,
impermissibly discriminatory.
but
terviews,
Staples,
and two of the
job.
magis- The
ruled in
therefore
favor of
other candidates
equal employment opportunity
(3) Why
you seeking
position?
officer for
are
you
you
(4) Why
Military
Washington.
are
do
feel
for
District of
March
position?
accepted
job
Occupa-
of
a
in the
she had
(5)
you
you
ability
have the
to deal
MILPERCEN,
Do
feel
Development
tional
Division of
explain.
high-level
officials? Please
survey question-
working
occupational
on
(6)
you
Are
available to travel? The travel
naires.
J.A. at 36.
trips to
Point four
consists of one-week
West
1971, Staples had
Between 1964 and
been
three-day
prep
year
trips
and
to the
times
Military
promoted
position
to the
Personnel
year.
at Fort Monmouth two times a
schools
Staffing
capacity, Staples
In this
Technician.
Appellee at 10.
Brief for
personnel
had
enlisted
identified and selected
developed
had
extension courses for
St. Peter
assignments.
training
In 1971
for
and
he had
personnel,
military and civilian
had command-
promoted Military
Manage-
Personnel
been
company,
dealt
ed
with members
a WAC
Specialist, working
programs
profi-
on
concerning
Congress
the status of individual
of
reservists,
ciency pay
reenlistment bonuses. His
and
recorded and monitored se-
and had
performing
job
tasks in
had included brief-
officers,
Army Army
the active
lections for
ing
high-level
high-ranking
and
officers
civilian
cadets,
civilians in
re-
and
ROTC
Defense,
officials
evaluat-
Military
Man-
Personnel
serve. As Chief
ing
training
assign-
personnel
and
enlisted
Zone,
agement
in the Canal
Branch
ments,
correspondence,
drafting
preparing
processing
responsible for
had been
selections
years
.regulations. During nearly eleven
preparing
of
briefings
for the Canal Zone and
military personnel management,
field
ples
Sta-
give
for her commander
to civilian
courses
several officers’
and a
taken
officials, including
Congress.
members of
As a
personnel management
supervisory
course in
civilian,
plaintiff had
NASA
worked for a
Adjutant
at the
School. J.A.
General’s
at
years
more than three
in several
contractor for
responsible positions and had
later worked
joba
plaintiff’s
employer
for which the
seeking
defendant and dismissed
that,
complaint
August 16,
applicants; (iii)
despite
July
qualifica-
on
1979. On
his
tion,
rejected;
(iv) that,
affirmed that
the district court
deci-
he was
after
rejection,
order
his
open
sion
and entered
remained
of the defendant.
and the
continued to
appli-
favor
seek
persons
complainant’s qual-
cants from
ifications.
II. DISCUSSION
St. Peter maintains that
at
1824. The facts
First,
premised
three errors.
before us
slightly
decision
are
different
from those
apply
appropri-
Douglas;
failed to
in McDonnell
this case involves
prima
promotion
standard
facie case in
ate
pool
one
from a
Second,
promotion
qualified applicants
she did not
situation.
rather than the refusal
proper
proof
place
protected
burden of
to hire a
group
member of
determining
defendant after
that a
then a
applicants
continued search for other
Third,
qualifications.
facie
had been established.
and with similar
Some courts
closely
point,
related
the de-
to the second
held that in such a
situation
required
fendant should'have
to dem- more than
quali-
selection of a male over a
See,
onstrate that
fied female
g.,
must be shown.
e.
Philco-Ford,
than St. Peter in order
rebut
Olson v.
As the components appropriate prima of a objection Plaintiff’s second concerns begin facie must with McDonnell the proof placed upon burden of the defend Douglas, Supreme leading Court case in prima ant to rebut facie case. St. Peter this area. There the Court described the maintains that once facie case is present plaintiff evidence that to established, plaintiff to entitled re hiring establish a case in a cover prove “unless the defendant can that situation: one of the position other candidates for the
(i) belongs qualified that he minority; plaintiff racial than and would (ii) applied position, that he was have been selected for the even why ratings entirely higher 4. It is not clear somewhat from his MILPERCEN eminently supervisors compare believed more than did St. J.A. at Staples. apparently performed St. Peter’s 45 with J.A. at because, formal education was irrelevant as a much better in his selection interview. Al- law, background though experi- matter of than educational St. Peter had more job-related dealing high-ranking courses not be used as a ence with officials over (1976). career, longer totally selection Staples 5 criterion. See U.S.C. 3308 her ing was not lack- job-related experience. supra. had taken more courses in such See note 3 addition, Staples than had St. Peter. 1138 understanding of this rationale advanced Ap- Brief for any discrimination.” absent Where, therefore, that the defendant.5
pellant at 14. The
Staples.
complied
trial has
qualified than
format of the
more
Peter was
however,
Douglas
concluded,
that
there had
established in McDonnell
criteria
She
cases,
failure to
later
no unlawful
been
arbitrary but not
specifically
the defendant’s articulat
process had
state
under
discriminatory.
is not critical
to an
ed rationale
of her ultimate
standing of the factual basis
pre-
resolved this
Supreme Court has
require
not
a remand.
conclusion and does
with the
in a manner consistent
cise issue
Lujan v. New Mexico Health and
g.,
E.
Depart-
Texas
magistrate’s decision.
Department, 624 F.2d
Services
Social
Burdine, 450
Affairs v.
Community
1980).
Klapac v. McCor
970
Cir.
Cf.
L.Ed.2d
mick,
(D.C.Cir.1981)
640 F.2d
1363-65
that once a
(1981),
held
a unanimous Court
curiam).
(per
prima facie
plaintiff establishes a
case,
to the defendant
the burden shifts
of Persuasion
The Ultimate Burden
C.
nondiscriminatory
a believable
articulate
objec
employment action.
Plaintiff’s final and related
reason
never
simply that
the defendant
tion is
to the defendant
The burden that shifts
selecting Staples
gave
good reason for
presumption of dis-
...
is to rebut
Supreme
deci
Again,
her.
Court’s
over
by producing evidence
crimination
clear that
the de
sion in Burdine makes
rejected, or someone
plaintiff was
produce evidence that the
fendant need not
legitimate, non-
preferred,
else
qualified than
person selected was better
discriminatory reason. The defendant
Instead,
plaintiff.
the ultimate burden
persuade the court that
need not
persuasion
remains
proffered rea-
actually motivated
In Lie
establish unlawful discrimination.
satisfy
intermediate
sons ....
[T]o
Gant,
(2d
1980),
v.
F.2d 60
berman
burden,
produce
need
correctly
forecast
Second
allow
evidence which would
admissible
of Burdine.
result and rationale
rationally
fact
to conclude
the trier of
Friendly’s statement
for the court on this
employment decision had
*6
plaintiff’s
issue demonstrates the error of
discriminatory animus.
been motivated
contention.
added).
In the
(emphasis
Id. at
enough
It is
for the defendants
hand,
therefore,
case at
phase
bring
the case to
forth
second
of
placed
persua-
of
quite properly
no burden
they
evidence that
acted on a neutral
upon
defendant.
sion
They
basis.
do not have
burden
nondis-
articulation of its
Defendant’s
sound;
establishing that
their basis was
criminatory
employment
rationale for
plain-
rather the burden then falls on the
clearly
is
revealed in
action at issue here
pretextual.
it
tiff to demonstrate that
is
Thus,
not to
defendant chose
the record.
this,
course,
way
doing
would
One
backgrounds prior
applicants’
review the
neutral basis
be to show that the asserted
in the
the interviews because of a belief
arbitrary]
with error
was so ridden
[or
general equality
qualifications.
J.A.
honestly
that defendant could not
Moreover,
position to be
upon it.
relied
posi-
largely a sales
filled was considered
(footnote omitted).
I find no
at 65
tion,
88-89,
Id.
the short
interviews
J.A. at
magistrate’s
to overturn the
conclu-
reason
effective vehicle for the
were seen as an
plaintiff
carry
failed to
her ulti-
sion that
of “enthusiasm” and salesman-
evaluation
persuasion.
opinion reflects an mate burden of
ship.
employer
think that the
mis-
em-
court
I
endorse the selection
do not
judged
qualifications
applicants
magis-
ployed by
does
As the
in this case.
liability
however,
expose
observed,
aptly
him to Title VII
not in itself
we are “not
Burdine,
III. CONCLUSION reasons. be difficult to convince a trier of fact that examining mag- After the decision of the employer an less-qualified person selected a conjunction istrate in with the evidence of reason, non-discriminatory such be- record, we find no reason to disturb the case, any havior is not actionable. judgment Although for the defendants. opinion clear, Tamm’s makes the ba- process employed by finding sis for St. Peter more is certainly sophistication, agree lacked I best, tenuous at and the that the of a male ultimately convinced the evidence that over the as a result of this discriminatory no present. intent was Furthermore, did not violate Title VII. posture appeal applicable although magistrate’s opinion could law, therefore, tuned, we need not finely address either have been more I do not un- pertinence any inuring adequacy or the cover error to the detriment of find- ing plaintiff. qualifications. We therefore affirm the judgment for the defendants. NICHOLS, Judge, dissenting:
It is so ordered.
Though
the service records of St.
MIKVA,
Judge, concurring
in the
Staples, and the other candidates were
result:
available, the
panel
interview
did not even
agree
I
that there is no basis for revers-
assumed,
look at them because it
erroneous-
ing
for the defendants.
I do ly,
already
that such records had
been de-
agree
that Texas
of Com-
termined to be
weight
neutral
they
Burdine,
Affairs v.
munity
added to or subtracted from one or the
(1981),