categories: experience, performance, education and training, and awards, and assigns a total point value. No extra credit is given for a CPA license, but that is considered equivalent to three years of general experience. Next, each candidate's application and ranking is reviewed by a Personnel Action Review Board (PARB) which determines the "best qualified" candidates. Best qualified candidates need not necessarily be those who receive the highest point values; PARB members may select best qualified candidates based on a variety of subjective factors, as well. The best qualified list is then presented to the recommending official, who is the manager at the level immediately preceding the selecting official. The recommending official, in this case Robert Goffus, conducts a preliminary screening of the candidates on the list, including interviews, and makes a recommendation for the position to the selecting official, here Mr. Gregg, the Acting Administrator.
Plaintiff was interviewed for the Deputy Director position and, according to his own testimony, believed that his interview had been fair, without any hint that the position had been pre-selected. In fact, in his pretrial deposition Sales stated that he did not know the reason he was not selected.
Plaintiff filed a discrimination complaint with the Department of Justice, May 10, 1978. An EEO Officer of the Department found discrimination in his report of July 26, 1979, but on May 29, 1980, the Justice Department Adjudication Officer concluded that no discrimination had occurred. Plaintiff appealed this decision to the Equal Employment Opportunity Commission, which, on July 16, 1981, affirmed the decision of the Justice Department. Plaintiff filed this action August 21, 1981. Plaintiff now holds the position of Acting Deputy Director of the Accounting Division and has held that position at the GS-13 salary level since June 16, 1980. The position remains vacant officially.
Plaintiff has focused on what he believes is a discrepancy in the vacancy announcements for the positions of Director and Deputy Director in the Accounting Division. Oftentimes the Deputy Director must serve as Director in the Director's absence. Accordingly, plaintiff contends that both should possess the same or at least similar knowledge and skill. However, only the announcement for the Director's position provided that candidates must meet GS-510 accounting requirements. The announcement for the Deputy's position contained no such provision. While plaintiff asserts this omission was intended to permit Smith's qualification, and as a result, the denial of plaintiff's promotion, the testimony and documents show that both positions are classified as GS-505 financial managers.
Antonia Murphy, personnel staffing specialist at LEAA from 1973 to 1978, testified that she prepared the vacancy announcement in question, consulting the position description and the X-118 Handbook. No 510 accounting requirement for the Deputy Director position appears in either source. Yet, if a selecting official felt that 510 accounting skills were needed for the job the vacancy announcement could be altered to reflect that fact. While Smith may not have met the GS-510 accounting requirements, Clark, the former Director of the Accounting Division, testified that Smith's background in accounting was sufficient in all respects expertly to perform the Deputy Director's duties.
In further support of the discrimination claim plaintiff testified that Smith was a member of a white clique in the Office of the Comptroller. Several of the individuals in this office had a common background at the U.S. Department of Agriculture and often lunched together. Nonetheless, plaintiff revealed that he did not know whether any of these people worked together at the Department of Agriculture, knew each other then, or even whether they were employed at that agency during the same period of time. Neither did he know whether they were ever joined at lunch at LEAA by anyone else, nor whether anyone else had ever been invited to join them.
Plaintiff attempted to illustrate a pattern of discrimination by the alleged discriminating officials through the testimony of five witnesses, current and former employees at LEAA. A summary of this testimony is illuminating.
Ira Mallett, a black male over age 40, formerly in the Accounting Division, had filed two complaints of discrimination in promotion on the basis of race and age prior to Sales' complaint. In one instance Smith was the candidate selected for the position available; in this sole circumstance, the EEO Officer concluded that Mallett had been discriminated against and recommended his promotion. In the second, a white male was selected. Nevertheless, despite his belief that this individual had been pre-selected, Mallett did not pursue his claim beyond the initial stages once the Justice Department's EEO Officer concluded there was no discrimination. Furthermore, the individual that Mallett believed to have been pre-selected did not ultimately get the job.
Howard Hyatt worked at LEAA from 1969 through 1980 as a 510 auditor but not in the Office of the Comptroller. He had been a member of the all-white PARB which placed Sales and Smith on the best qualified list for the position of Deputy Director. Since he was unaware that it had been classified as a 505 financial manager, he was surprised to learn that the Deputy Director position did not call for 510 accounting requirements. From Hyatt's account of the functioning of the PARB, Sales' qualifications for the Deputy position had been evaluated fairly. Sales was one of two 510 accountants of the five persons on the best qualified list submitted to Goffus. Goffus testified that he rejected the other 510 accountant with whom Sales competed, because his background was in systems accounting. Smith became the preferred candidate because he related well to people and possessed superior management capabilities and potential. Therefore, even if the selective criteria were too general as plaintiff alleges, they did not exclude plaintiff from consideration. In fact, had the criteria been more narrowly devised, perhaps so as to exclude Smith, Sales would still have had to compete for the position. Plaintiff does not maintain that the criteria should have been drawn so narrowly so as to permit only him to be chosen.
Before Sales became Chief of the Systems Branch that position was held by a black male, Thomas Robinson, at the GS-14 salary level. Sales later served in that same position as a GS-13. While Robinson testified on plaintiff's behalf that he did not understand that he had served in that position as "incumbent only," the evidence demonstrated that Robinson occupied that higher salary grade since his duties at the time required the conception, development and implementation of a new automated accounting system. When Sales replaced him, Sales remained a GS-13 since the system was then fully operational.
Beatrice Graham, a black woman, and fellow employee at LEAA, testified that even though she had not read the job description for the Deputy position and did not know that the position was classified as a GS-505, she nonetheless believed that Smith was favored in the Accounting Division. Yet, even assuming plaintiff's supervisors did have favorites, that fact alone does not translate into discrimination against the plaintiff on the basis of his race or age.
Plaintiff's final witness, a Hispanic employment coordinator at LEAA, proved no more helpful to his cause than the others. He testified that Smith lacked the requisite experience to qualify for the Deputy Director position. However, cross-examination revealed that this witness knew nothing about Smith's qualifications or his background. Moreover, he was not in a position to evaluate Smith's performance since the two worked in different buildings and never came into contact with one another.
In sum, at the close of his case plaintiff had established only that, as in the past and at all times relevant, the vacancy announcement for the Deputy Director position did not include the 510 accounting requirements, which Sales believed it should have, that Smith, the selectee for this 505 position, did not strictly meet 510 accounting requirements, and that Sales was a disappointed applicant for a position for which he was among the five best qualified. While one can readily sympathize with the failure of one highly qualified person to achieve a desired position secured by another highly qualified person, and while another individual might, on reflection, have come to a different management conclusion,
the issue here is whether plaintiff was discriminated against, and, if so, was it because of his race or age. No discrimination has been demonstrated here.
A plaintiff in a Title VII case alleging discriminatory treatment must prove by the preponderance of the evidence a prima facie case of discrimination. He must demonstrate that, as a member of the protected class, he sought an available position for which he was qualified but was rejected under circumstances which give rise to the inference of unlawful discrimination. This burden is not onerous. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Thereafter, the burden shifts to the defendant "to articulate some legitimate non-discriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Should the defendant carry this burden, the plaintiff is then afforded the opportunity to prove by a preponderance of the evidence that the reasons asserted by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804. See also McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 71 (D.C. Cir. 1982). The ultimate burden of persuasion remains on the plaintiff throughout. See Burdine, supra, at 256; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 58 L. Ed. 2d 216, 99 S. Ct. 295 (1979) (defendant need merely articulate, not prove, absence of discriminatory motive).
The Supreme Court defined the elements of a prima facie case of racial discrimination in McDonnell Douglas, supra, at 802:
The plaintiff must show (i) that he belongs to a racial minority; (ii) that he applied for and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
This formula does not require direct proof of discrimination, but plaintiff must demonstrate at least that he was not rejected for either of two common legitimate reasons: "absolute or relative lack of qualifications or the absence of a vacancy in the job sought." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). Such a demonstration creates an inference that the employer's decision derived from racial animus. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978); Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 951 (D.C. Cir. 1981).
McDonnell Douglas involved an employer's refusal to hire a member of a protected group and a continued search for other qualified applicants. For cases involving alleged discrimination in the promotion of one person from among a group of qualified applicants, the McDonnell Douglas test for a prima facie case must be modified slightly. Indeed, the McDonnell Douglas court recognized that facts in Title VII cases vary and that the proof necessary in one case is not necessarily applicable to another. McDonnell Douglas, supra, at 802 n.13. This jurisdiction has developed a formula in the context of gender discrimination, substantially derived from McDonnell Douglas, for cases of discriminatory refusal to promote:
To make out a prima facie case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff's request for promotion was denied.
Bundy, supra, at 957. See also Garner v. Boorstin, 690 F.2d 1034, slip op. at 3-4 (D.C. Cir. 1982) (per curiam); Freeman v. Lewis, 218 U.S. App. D.C. 379, 675 F.2d 398, 400, 402 (D.C. Cir. 1982) (referring to test as McDonnell/Bundy test); Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 63 (D.C. Cir. 1982); Parker v. Baltimore & Ohio RR, 209 U.S. App. D.C. 215, 652 F.2d 1012, 1017 (D.C. Cir. 1981).
At this point it may be noted that in this jurisdiction, the test for a prima facie case of age discrimination under the Age Discrimination Employment Act is identical to the McDonnell Douglas test for race under Title VII. Johnson v. Lehman, 220 U.S. App. D.C. 100, 679 F.2d 918, 922 (D.C. Cir. 1982); Kerwood v. Mortgage Bankers Ass'n, 494 F. Supp. 1298, 1308-09 (D.D.C. 1980); see also Loeb v. Textron, 600 F.2d 1003, 1010 (1st Cir. 1979). To carry his ultimate burden of persuasion, however, plaintiff must prove that the employer had a discriminatory motive and that plaintiff's age was a determinative factor in his non-selection. Loeb, supra, at 1019. Plaintiff has presented no evidence on the issue of age discrimination save the fact that Smith was under age 40 and he was over age 40. Although a literal application of the McDonnell/Bundy factors militates the conclusion that plaintiff has passed the first hurdle of proof,
nonetheless plaintiff has not sustained his ultimate burden. Id. The ADEA does not insulate employees over age 40 from competition with qualified younger employees.
While the Court might easily conclude that plaintiff has not proved circumstances giving rise to reasonable inference of race discrimination in his case in chief, again, a literal application of the McDonnell/Bundy criteria would shift the burden of going forward with the evidence to defendant.
Nevertheless, the defendant has clearly articulated a legitimate non-discriminatory reason for its selection of Smith over Sales. In accordance with Bundy, plaintiff was afforded an opportunity to refute defendant's explanation at trial but failed to persuade the Court, by a preponderance of the evidence, that defendant acted from an unlawful motive.
An employer has discretion to select one individual from a group of qualified candidates for a vacancy. Title VII does not require an employer to prefer a qualified minority candidate over a qualified non-minority candidate in selection for competitive promotion. Burdine, supra, at 259. See also Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971).
In this case, defendant has proffered a credible justification for its promotion decision, sufficient to at least raise a "genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, supra, 450 U.S. at 254, 101 S. Ct. at l094. Smith received the highest point value of all applicants and was on the best qualified list. His financial management skills were important for the job and reasonably deemed superior to plaintiff's. The plaintiff had his opportunity to demonstrate that the proffered reasons for his non-selection were pretextual but failed to carry his burden of persuasion that he has been the victim of discrimination on the basis of either race or age.
Judgment shall be entered for the defendant.
In consideration of the Memorandum Opinion in the above-captioned case issued this date and for the reasons stated therein, judgment shall be and it hereby is entered for defendants, Department of Justice and William French Smith, United States Attorney General, and against plaintiff, Maurice K. Sales.