JAMES DICKSON PHILLIPS, Circuit Judge:
Twice denied promotions he had sought as a federal postal employee, Carl F. Page sued the Postmaster General, claiming racial discrimination in the denials that violated his rights under § 717 of the Civil Rights Act of 1964 (Title VII), as amended by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. Following a plenary trial the district court dismissed his action on the merits and Page appealed to this court. A divided panel of the court reversed, essentially on the basis that the district court erred in failing to find discrimination violative of § 717 in the Postmaster General's use of all-white review committees, contrary to Postal Service internal regulations, in considering applicants for the position to which Page sought promotion. The panel decision remanded with directions to award specified compensatory and injunctive relief. Page v. Bolger, No. 78-1792 (4th Cir. Dec. 19, 1979). Upon petition of the Postmaster General, the appeal was then reheard by the court sitting en banc.
Concluding that the district court committed no reversible error in determining that, under the proof scheme adopted for analyzing claims of disparate treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Page had failed to establish his claim of discrimination, we affirm the judgment dismissing his action on the merits.
The relevant historical facts, as adduced in evidence before the district court, are not in significant dispute.
The district manager appointed a review committee of three white males to consider the applicants for the PES-17 position. While the committee found that Page was qualified, it also determined that two white males were better qualified. The committee recommended these three applicants to the postmaster, who selected the top-ranked white male.
In August 1976, Page sought promotion to postal operations specialist (PES-18). Again the district manager appointed three white males to the review committee. During Page's interview, one of the committee members questioned him about his EEO complaint regarding the PES-17 position. The committee found that Page was qualified for the position, but it named one white male as better qualified. It ranked another white male third. The postmaster selected the top-ranking white male. Again Page protested and filed an EEO complaint. The district manager voided the action of the review committee because of the interrogation about Page's EEO complaint with respect to the PES-17 position. He directed that a new committee be selected and that one of its members be a black employee.
In February 1977, the new committee met to reconsider the PES-18 appointment. A black employee from Philadelphia had been named to the committee, but when the committee met, his assignment to a new job prevented his serving on it. A white male was substituted. This committee, consisting of three white males, found Page to be qualified for the position, but it concluded that two white males, including the applicant previously ranked third, were better qualified. The top-ranking applicant was the employee who had been recommended in 1976. He had been detailed administratively to the position pending reconsideration by the new review committee. The postmaster accepted the recommendation of the new committee and appointed the incumbent. Page protested and filed another EEO complaint.
After exhausting his administrative remedies with respect to both the PES-17 and -18 appointments, Page filed this action.
The district court conducted a de novo hearing in accordance with Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), receiving essentially the evidence above summarized. It then analyzed this evidence under the proof scheme adopted by the Supreme Court in McDonnell Douglas as a "sensible, orderly way to evaluate the evidence," Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), where individual claims of "disparate treatment" — of intentional discrimination in making employment decisions — are put in issue by conflicting evidence as to the employer's motivation in making them.
In the first stage of this analysis, the court found, and the Postmaster General has conceded throughout, that Page's evidence established a prima facie case of discrimination in denying him the promotions he sought. As to these, the evidence showed, in summary, that (i) he belonged to a racial minority; (ii) that he applied and was qualified for the promotions he sought; (iii) that he was denied them; and (iv) the positions thereafter remained open and were in fact filled by the employer from other applicants possessing his general qualifications.
At this point, with the inference of discriminatory motive for denying the promotion raised, the burden is considered shifted to the employer to dispel the inference by coming forward with evidence that a "legitimate, nondiscriminatory reason," id. at 802, 93 S.Ct. at 1824, rather than the inferable reason of purposeful discrimination, underlay the decisions to deny promotion.
Obviously it must be possible for employers legally to make employment decisions that disfavor qualified minority employees on the basis of a comparative evaluation of their qualifications with those of other applicants. Concededly, when that evaluation is to any degree subjective and when the evaluators are themselves not members of the protected minority, the legitimacy and nondiscriminatory basis of the articulated reason for the decision may be subject to particularly close scrutiny by the trial judge. But, as the Supreme Court pointed out in McDonnell Douglas itself, the mere fact that subjective criteria are involved in the reason articulated by an employer does not prevent according it sufficient rebuttal weight to dispel the inference of discrimination raised by the prima facie case. Id. at 803, 93 S.Ct. at 1824. Here, aside from the testimony — obviously credited by the district judge — of the persons who actually made the promotion decisions that they were not racially motivated, there was objective evidence supporting the comparative evaluation they made.
At this point, though the inference of discrimination has been neutralized, the employee's claim of discrimination may yet be found established if the evidence shows that the employer's stated reason was a mere pretext — "in fact a coverup for a racially discriminatory decision." McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825. While
It was in this connection that the district court considered the postal authorities' asserted failure to follow the Postal Service guidelines for composing the promotion review committees. Looking specifically to the evidence regarding the way in which the committees were composed, the court found that there was no black employee in the Richmond Post Office who was qualified to serve on the PES-17 committee, and that following the failure of the appointed black member of the PES-18 to serve, there was no reasonable replacement available at the critical time. From this the court concluded:
Page v. Bolger, No. CA-77-0400-R (E.D.Va. Aug. 16, 1978).
We think that this properly addressed the "pretext" inquiry and, again, we can find no reversible error of fact or law in the district court's conclusion that the articulated reason of better relative qualification was not a mere pretext. In addition to the fact that this finding rested largely upon assessments of credibility and the resolution of conflicting permissible inferences — matters on which we are commanded by Fed.R.Civ.P. 52(a) to accord great deference to the trial judge's superior vantage point — we think there is evidence other than the testimony of the decision-makers that supports the finding. As a result of possibly questionable conduct by one of the original PES-18 committee members, the district manager directed reconstitution of the committee to avoid any real or suggested racial bias. When no qualified black employee was available to serve on it from the local post office, one from a relatively distant post office was appointed in an effort to insure minority representation. These actions were directly relevant to the pretext inquiry — as conduct of the employer probative of likely motivation for the ultimate employment decisions. See Furnco, 438 U.S. at 580, 98 S.Ct. at 2951; McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825; Wright, 609 F.2d at 716-17.
In summary, when the district court assessed the evidence under the McDonnell Douglas formula — a mode of analysis which both parties agreed in the trial court was appropriate — it found: (1) claimant's prima facie case established; (2) the inference of discriminatory intent thereby raised effectively dispelled by defendant's articulation of a "legitimate nondiscriminatory reason," i. e., better relative qualifications of others; and (3) this reason not shown to be a mere pretextual cover for discriminatory motive behind the decisions not to promote. In this process, we think the court adhered faithfully to the appropriate mode of analysis and to the issues as framed by the pleadings and addressed in proof by both parties. Bearing in mind that under the disparate treatment theory relied upon by claimant the burden of persuasion remained with him throughout to prove by a preponderance of the evidence that he was "treated less favorably than others because of [his] race," International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 & n.15, 97 S.Ct. 1843, 1854 & n.15, 52 L.Ed.2d 396 (1977), in respect of specific "personnel actions," 42 U.S.C. § 2000e-16(a),
Apparently realizing that under this mode of analysis the district court's assessment of the evidence is probably unassailable on review, Page has urged on appeal a modification of the McDonnell Douglas formula, which it is contended will better serve the remedial purposes of Title VII in the particular factual context of this case. Briefly summarized, this modification would focus the McDonnell Douglas inquiry upon the process by which the review committees were constituted, and would make decisive in claimant's favor the fact that — in asserted violation of the plain intent of the Postal Service's internal guidelines
This modification is claimed to be justified because the McDonnell Douglas analytical framework has been recognized as a flexible one requiring adaptation to different fact patterns, see Furnco, 438 U.S. at 575-76, 98 S.Ct. at 2948-49. It is claimed to be required by the fact that here the affirmative action guideline asserted to have been violated has the force of law as a regulation.
We reject this as an appropriate basis for analyzing the evidence in this case. While we recognize that the McDonnell Douglas proof scheme is not to be given a wooden application that loses sight of its essential purpose as merely a "sensible, orderly way to evaluate the evidence," Furnco, 438 U.S. at 577, 98 S.Ct. at 2949, we are satisfied that the modification here urged would amount to a complete substantive shift of focus from the appropriate object of inquiry where employment discrimination
The proper object of inquiry in a claim of disparate treatment under § 717 is whether there has been "discrimination" in respect of "personnel actions affecting [covered] employees or applicants for employment...." 42 U.S.C. § 2000e-16(a) (emphasis added). Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII, most notably § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. This is the general level of decision we think contemplated by the term "personnel actions" in § 717. It is the level focused upon in the major Supreme Court decisions establishing and refining the substantive and procedural elements of individual disparate treatment theory. See, e. g., Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 24-25 & nn.1 & 2, 99 S.Ct. 295, 295-296 & nn.1 & 2, 58 L.Ed.2d 216 (1978) (failure to promote); Furnco, 438 U.S. at 576-77 & n.8, 98 S.Ct. at 2949 & n.8 (failure to hire); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (same). See also B. Schlei & P. Grossman, Employment Discrimination Law 15 (1976). It is the level upon which the district court in the instant case — with the acquiescence there of both parties — focused the McDonnell Douglas analysis. As seems plain from the record, the court and the parties were there agreed that the "personnel actions" in issue were the decisions denying to Page and giving to others the positions that each sought and only one could be given. These were the decisions to which it was thought Page's prima facie showing of discriminatory motive was properly addressed and weighed. It was clearly these decisions for which a "legitimate, nondiscriminatory reason" was sought in defendant's rebuttal evidence. Finally, it was these decisions whose nondiscriminatory quality was considered in issue for purposes of assessing the possible "pretextual" nature of the reasons given for them by the defendant. As earlier indicated, we are satisfied that the McDonnell Douglas analysis — originally developed and applied with focus upon a hiring decision — was perfectly suited for application without significant modification to the comparable level of decisions in the instant case.
By this, we suggest no general test for defining those "ultimate employment decisions" which alone should be held directly covered by § 717 and comparable antidiscrimination provisions of Title VII. Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be so considered — for example, entry into training programs, Wright, 609 F.2d at 712 n.10. By the same token, it is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of § 717 and comparable provisions of Title VII. We hold here merely that among the latter are mediate decisions such as those concerning composition of the review committees in the instant case that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc.
To apply the modified McDonnell Douglas analysis urged by Page would do much more than merely modify a procedurally tidy proof scheme. Its practical effect would be a profound substantive one by which these mediate decisions were drawn within the coverage of those "personnel actions" directly covered by § 717.
BUTZNER, Circuit Judge, with whom WINTER and SPROUSE, Circuit Judges, join, dissenting:
This case illustrates once again the racial discrimination black employees encounter when they seek advancement to the higher echelons of the federal establishment.
Abuse of the power to select review committees, coupled with the improbability that any federal official is likely to confess that he discriminated on the basis of race in recommending a promotion, has enabled the middle ranks of the postal bureaucracy to erect an almost impregnable barrier to the goal of equal opportunity that Congress sought to achieve. This barrier should be breached by rejecting as a basis of decision the self-serving, subjective testimony of the illegally appointed committee members. Employees protesting racial discrimination with respect to promotion should prevail when, upon proper analysis of the evidence, they prove that the Postal Service has violated the regulation that was intended to abolish racially segregated review committees.
The Postal Services' Personnel Handbook
The genesis of this regulation is found in the 1972 Amendments of Title VII of the Civil Rights Act of 1964. Section 717 of Title VII as amended
In compliance with the mandate of § 717, the Civil Service Commission promulgated regulations
The regulations of the Postal Service include "[t]he Headquarters Manual, Regional Instructions, handbooks, delegations of authority, and other regulatory issuances and directives of the Postal Service or the former Post Office Department."
In United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 1470, 59 L.Ed.2d 733 (1979), which dealt with the application of the exclusionary rule to evidence obtained in violation of an agency regulation, the Court said, "A court's duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law." This principle is applicable to Page's claim. The equal protection component of the fifth amendment's due process clause bars federal agencies from discriminating against their employees because of race. Congress implemented this constitutional provision by enacting the Equal Opportunity Act of 1972.
It was error for the district court to buttress dismissal of Page's claim on its ruling that "no law requires that there be any particular racial composition in Review Committees." While it is true in a literal sense that Congress did not enact the regulation, it specifically required the promulgation of regulations to implement § 717 of Title VII. The regulation therefore has the force of law.
It is also true that the regulation is procedural, but this affords no justification for refusing to afford Page its protection in his effort to attain promotion. Procedural rights are not second class rights. Their enforcement is essential to the preservation of substantive rights. Anti-Fascist Committee v. McGrath, 341 U.S. 123, 149-74, 71 S.Ct. 624, 636-50, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
The regulation embodied in § 544.2 was promulgated to protect the substantive rights of black postal employees, secured by the fifth amendment and Title VII, to be free of racial discrimination in the selection of applicants for promotions. As Parts II and III of this dissent demonstrate, denial of Page's procedural right to be judged by a review committee that was not illegally segregated according to race, defeated his substantive right to be considered for appointment regardless of his race.
Although § 544.2 does not require every review committee to have a minority member, it places on the official designating the committee the responsibility of making "every effort" to select such a member. Moreover, in the absence of a qualified minority employee at the local level, "members must be furnished by the next-higher organizational unit, where available."
Drawing on principles explained in Furnco Construction Co. v. Waters, 438 U.S. 567, 575-78, 98 S.Ct. 2943, 2948-50, 57 L.Ed.2d 957 (1978), "a sensible, orderly way to evaluate the evidence,"
With regard to the PES-17 committee, the district court found that at the local level there was no black employee of sufficient
The designating officer's duty, however, was not discharged by simply canvassing the local level. Section 544.2 obliged him to secure a minority member from the next higher organizational unit, where available. The record does not disclose, and the Postal Service does not contend, that any effort was made to obtain a black employee from the next higher level. Since the Service has articulated no reasonable explanation for not selecting a minority member from a next higher organizational unit, it is apparent that it has not satisfied step 2 of the modified Furnco analysis. The Postal Service therefore did not comply with § 544.2 when the PES-17 committee was named.
The district court's findings and conclusions concerning the composition of the second PES-18 committee are based largely on the administrative hearing transcript and the decision of the appeals examiner which were made a part of the record of this civil action. The administrative record discloses that a black employee from Richmond and another from Norfolk were qualified to serve on review committees. The Postal Service offered an explanation for the absence of the Richmond employee, which Page did not show was a pretext. The Service satisfied the modified Furnco analysis, and we find no failure to comply with § 544.2 because the Richmond employee was not designated to serve on the committee.
The examiner noted that neither Page nor the Postal Service had offered evidence to show the availability of the Norfolk employee, who also was from the local level. The examiner ruled against Page on this point. This ruling was erroneous. It is undisputed that the PES-18 committee was composed of white males. Consequently, the burden was on the Service, not Page, to articulate some legitimate explanation why the Norfolk employee had not been selected.
Furthermore, when the black employee from the Eastern Regional Office became unable to serve on the PES-18 committee, a white employee was substituted. At the administrative hearing, the Postal Service offered no explanation for the substitution of a white employee when the designating officer specifically had requested a black employee in order to comply with § 544.2. There is no suggestion in the administrative record that another black employee from the Regional Office was not available. The examiner's ruling against Page on this point was erroneous. The substitution of a white employee for the black committee member, absent some reasonable explanation for the change in the racial composition of the committee, does not satisfy step 2 of the modified Furnco analysis. At the de novo hearing, the Postal Service did not supplement the record to remedy the deficiencies of its position at the PES-18 administrative hearing. Therefore, the district court's reliance on the administrative record and decision was misplaced.
The Postal Service did not comply with § 544.2. The review committees, which weighed the relevant qualifications of Page and the successful appointees for the PES-17 and 18 positions, were constituted improperly with respect to race.
Once it is concluded that the Postal Service assembled racially segregated review committees in violation of anti-discrimination regulations which had the force of law, it is a simple matter to fit that conclusion into the traditional McDonnell Douglas formula. The district court found, and the Postal Service now concedes, that Page proved a prima facie case of discrimination in accordance with the familiar McDonnell Douglas analysis. In Texas Department of
The Postal Service failed to satisfy this test. Its explanation for deeming the white applicants superior to Page rested on the evaluation of the applicants by racially segregated review committees that were appointed in violation of the regulations governing their function. An employer's reliance on the subjective judgment of individuals whose power to make an employment decision exists only by virtue of a flagrant disregard for mandatory anti-discrimination regulations cannot suffice as a legitimate non-discriminatory reason for the action. Since the Postal Service seeks to justify its action only by reliance upon its own unlawful conduct, Page's prima facie case stands unrebutted. Under these circumstances, neither McDonnell Douglas nor Burdine requires Page to prove in addition that the ratings made by the illegally constituted committees were a pretext. He is entitled to prevail on the basis of his unrebutted prima facie case. See Burdine, 450 U.S. at ___, 101 S.Ct. at 1095.
It is certainly true that nothing in Title VII prohibits an employer from relying on subjective criteria in taking personnel actions. Indeed, in employment decisions regarding supervisory-level personnel in government as well as in private business, subjective factors inevitably play a major role. Where subjective judgment forms the basis of an employment decision, however, discriminatory motive, an essential element of the cause of action, is particularly difficult to unearth. In such instances safeguards designed to protect the integrity of the decision making process take on paramount significance.
It is precisely for this reason that § 544.2 of the Postal Service Personnel Handbook came into being. Through § 544.2 Congress and the Service have defined the "legitimate" procedure for subjective decision making. The court should enforce that congressional and administrative judgment by refusing to consider the subjective judgment of an unlawfully constituted review committee as a legitimate reason for a personnel action. To do anything less is to eviscerate the protection provided by Title VII to those whose abilities and aspirations have led them to the higher levels of government service. Because the evidence established that the Service failed to comply with the Handbook, the court should recognize the compelling inference that impartiality, which Congress and the agency sought to assure, has been frustrated.
The allocation of burdens of proof and the order of presentation of evidence explained in McDonnell Douglas and clarified in Burdine were not designed to jettison regulations governing promotions. On the contrary, the analysis of proof prescribed by these cases is appropriate for enforcing the substantive rights granted by Title VII through application of procedural regulations formulated to eradicate discrimination. This does not mean that a Title VII plaintiff will automatically prevail whenever an employer violates an anti-discrimination
The judgment of the district court should be reversed, and this case should be remanded with directions to grant Page appropriate relief.
In re Complaint of Carl F. Page, Dec. No. PH071380132, slip op. at 13 (July 12, 1978).
The examiner also observed "that the selection process was highly subjective," and suggested improvements to reduce "the great margin of subjective inconsistency among the panel members' evaluation of the candidates." Id. at 12.
The examiner's ultimate conclusion that on the record he reviewed there was a rough tossup in objective qualification factors tends to confirm rather than to draw into question the district court's assessment that the articulated reason was "legitimate," i. e., was not manifestly at odds with objective indicators — not pretextual on its face. See Wright, 609 F.2d at 714 n.13.
Section 717(b) of Title VII, 42 U.S.C. § 2000e-16(b), authorizes the Civil Service Commission to enforce the substantive antidiscrimination provisions of subsection (a); delegates rulemaking power for the purpose; and directs compliance by covered agency heads. Pursuant to the statutory mandate, the Civil Service Commission has promulgated regulations, 29 C.F.R. §§ 1613.201-.643 (1979), which require the head of the Postal Service, along with other agency heads, to establish "a continuing affirmative action program," 29 C.F.R. § 1613.203, and specifically to "[c]onduct a continuing campaign to eradicate ... discrimination ... from the agency's personnel policies and practices and working conditions, ...." 29 C.F.R. § 1613.203(b). The Postal Service's Personnel Handbook, is thus arguably a part of the Postal Service's regulations, which, tracing their lineage to § 717(b), has the force of law.
For purposes of this appeal we can accept this proposition. That, under United States v. Caceres, 440 U.S. 741, 749, 99 S.Ct. 1465, 1470, 59 L.Ed.2d 733 (1979), the regulation therefore would be entitled to enforcement by a federal court, does not in our view mean that, if violated, its violation must be redressed as if it constituted a direct violation of substantive provisions of Title VII. On this appeal we have no occasion to consider other means by which, if violated, it might have been enforced in Page's behalf.