had concluded their work, the personnel specialist distilled it into a "crediting plan." In its final form the crediting plan assigned maximum importance to high speed, multi-color printing experience, and the consensus within BEP among those involved in the selection process, although unfortunately never explicitly declared, was that gravure pressmen would be the most promising applicants, because gravure, as a form of intaglio printing, makes use of an etched plate and a continuous plate wiping system not characteristically found on other printing equipment.
After preparing the crediting plan, the personnel specialist assembled a panel of "raters" to score the expected applications.
Although only one of the raters was himself a BEP plate printer, all had either professional experience or academic training as pressmen, all were approved by the Civil Service Commission prior to being named to the panel, and all were thereafter given some training in rating procedures at the Civil Service Commission.
While the crediting plan was being formulated, BEP began the process of advertising the PPI vacancies. Copies of the vacancy announcements were posted throughout BEP, distributed nationwide by the Civil Service Commission, and sent to all government agencies in Washington, D.C., including the Government Printing Office. BEP also undertook to advertise the vacancies in 28 newspapers nationwide, eight of which were chosen because they were primarily addressed to black readerships.
The application season for the 1978 PPI competition ran from July 14 to October 6, 1978. BEP estimates that it received approximately 850 applications for the PPI positions of which some 350 to 400 applicants possessed basic qualifications.
At about the time the recruitment began, a major gravure printing plant in Philadelphia owned by Triangle Publications ("Triangle") ceased operations, laying off about 250 journeyman printers. The president of the printers' union local at Triangle saw BEP's ad for the PPI program in a Philadelphia newspaper and called the members' attention to it. As a result about 150 former Triangle printers applied, only one or two of whom were black.
Approximately 12 BEP employees from outside the Plate Printing Division also applied, including plaintiff Morgan (then working as a janitor), a former black co-plaintiff (a bookbinder), and approximately 10 pressmen from two other divisions, all but one of whom were white. Thus, three of 12 in-house BEP applicants were black.
Each application was rated by three different raters.
Each rater assigned a score of from one to four on each of the four elements graded, but whenever a discrepancy of two or more points would occur between the ratings given by different raters on the same element to a particular applicant, the application was returned to the raters to attempt to resolve the disparity.
Plaintiff Morgan was found basically qualified. The raters accorded him a raw rating of 78 out of a possible 100, to which was added a five-point veterans' preference bonus, giving him a total score of 83 out of a possible 110.
Morgan's application lists a variety of full or part-time positions previously held as an offset pressman prior to applying for the PPI position in 1978. The majority of plaintiff's offset experience, as reflected by his application, was acquired during a ten-year stint as an assistant pressman at the Department of the Interior from 1960 to 1970.
His only journeyman experience occurred during a three-month period in 1972 on a small single-color offset machine, and an additional eight-month span from mid-1974 to the beginning of 1975 when he divided his time between single and multi-color offset presses. For the three years immediately preceding his application while working as a janitor at BEP, Morgan had moonlighted at a private firm as a duplicating machine operator.
After all applications had been rated (excluding those screened out initially by the personnel specialist), the applications, along with the ratings, were submitted to the Civil Service Commission where they were reviewed for accuracy. The Commission then approved the ratings, issued a certificate of "eligibles" of some 80-90 names, ranked strictly in order of rating scores, and returned the certificate to BEP for the actual selections.
The selecting official was the then Superintendent of the Plate Printing Division. He arranged interviews with the people whose names appeared on the certificate, beginning with the person with the highest score and continuing down in rank order until all the available positions had been filled.
Altogether, he estimated, he interviewed about twice the number of vacancies to be filled. The initial selection of PPI's began on November 27, 1978, and continued until September 10, 1979, with 30 PPI's having been selected, and the same list was used again to select eight more PPI's in early 1980. Twelve of the first 30 PPI's selected were former Triangle printers. Another five were pressmen from elsewhere in BEP. Yet another five were offset printers employed at the time by two private Washington, D.C., area printers. All told, 22 of the first 30 PPI's selected came from only four prior employers, including BEP itself, and all 30 initial successful PPI applicants were white (although one was of Hispanic origin).
The facts found above establish a prima facie case of discrimination under Title VII. Plaintiff Morgan belongs to a racial minority. He applied for and was found qualified for the job he was seeking, but his application was rejected and non-minority applicants were hired. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The resulting presumption of discrimination must, therefore, be rebutted by defendant BEP, which it has endeavored to do by showing a legitimate, non-discriminatory reason for not selecting Morgan among its first PPI's. Since a plaintiff always retains the ultimate burden of proof in Title VII cases, however, Morgan may only overcome BEP's evidence of a proper reason to have passed him over in favor of his unprotected competitors by further proof that BEP's reason was mere pretext to conceal a clandestine prejudice against blacks as plate printers. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
BEP's ostensible reason for not taking Morgan on as a PPI in 1978-79 is, quite simply, that at least as many others as there were positions available appeared to be better qualified than Morgan and the other black applicants on the basis of the best information it was able to assemble -- which did not include the race of any applicant -- and that the law does not require it to select minority applicants over others if their qualifications are no more than equivalent. Burdine, supra, at 259. The issue is, therefore, whether Morgan's evidence is sufficient to compel the conclusion that BEP did, indeed, notwithstanding its protestations to the contrary, intend to treat black applicants differently than whites, or that it used a selection process which was so designed or administered that it would inevitably cause qualified blacks to be relegated to the bottom of the eligibles list.
Morgan suspects a racial animus in the treatment given his PPI application -- and those of other black applicants -- but, not surprisingly, cannot prove it directly. The circumstantial evidence he offers from which, he argues, its presence should be inferred, however, is too ambivalent, ephemeral, or both, to sustain his burden of proof. He relies, for example, on mathematical laws of chance. Working backwards from official U.S. occupational statistics which suggest that between 1970 and 1980, five to eight percent of pressmen, plate printers, or "printing machine operators" in the country were black, and from estimates of BEP's own EEO officer that 30 percent of the in-house applicants were black, he submits that the fact that all of the first 30 PPI's selected were white males tends to prove that blacks, both within and without BEP, were deliberately passed over. But if the circumstance tends to prove what Morgan says it does, it also ignores the ethnic, sexual, or physical attributes of all the other unsuccessful applicants who might with equal force contend that they were rejected because they were whatever they were. The laws of mathematical chance are probative only in the context of random selection; BEP's selection process was deliberately constructed to be rational rather than random.
Morgan also tenders anecdotal evidence: a mildly racist joke exchanged by members of the rating panel; a rumored cronyism among selecting officials and plate printing foremen who were virtually all white males; nepotism (one successful applicant was the father of a senior BEP official); a belated and unspoken predilection for gravure experience; instances of allegedly exaggerated credentials being overlooked on successful applications.
None of Morgan's evidence, taken separately or in the aggregate, is, in the Court's opinion, sufficient to refute the unequivocal assertion of each BEP official involved that race was of no consequence to him in his part in the selection process. Their testimony was forthright, plausible, unimpeached, uncontradicted, and essentially unimpaired by cross-examination.
There is, moreover, circumstantial evidence which bolsters defendant's case. The BEP personnel who conceived and implemented the PPI plan were acting on behalf of a government whose public policy (not to mention the law of the land) has been one of non-discrimination for some time. To infer that they engaged in discrimination would be to find that they knowingly acted contrary not only to the law but also to the will of their employer. Then, too, the tenure of those in authority encompassed the years of affirmative action at BEP when minority representation in the plate printing workforce was purposely enhanced, and it is unlikely that they would undertake to undo social change for which they had been in part responsible. Finally, the extraordinary degree to which responsibility was dispersed among the participants, even had racism been rampant in the mind of any one of them, militates against any finding that prejudice actually affected the results of the selection process. The possibility that the personnel specialist, a crediting expert, a rater, a Civil Service Commission trainer or certifier, or the selecting official, acting alone, could have effectively blocked the selection of blacks by exercising his prejudices at any stage of the process is improbable, and there is no evidence whatsoever of a conspiracy.
Racial discrimination is not only illegal; it is opprobrious. If it is surreptitious and, therefore difficult to prove directly, it is equally difficult to disprove, and as with any antisocial conduct, the stigma may linger long after an accusation never substantiated. Plaintiff's suspicions, however sincerely entertained, are no substitute for evidence that reputable civil servants are lying when they deny having committed or condoned such conduct.
Plaintiff also contends that the selection system itself was so designed and administered as to have had a disparate impact on black applicants. The evidence he offers to support such a conclusion, however, is, once again, the fact that no blacks were selected, although the applicant population included some, and a generalized critique of the selection process having to do mostly with the imprecision of the rating criteria, the disproportionate emphasis placed on gravure experience, and the absence of more extensive training for the rating panel.
The statistics are no more probative of a biased selection system than of biased selectors, and the criticisms of the system itself are merely that. They suggest, at most, that the system was flawed, but they do not prove that it was either designed to or had the effect of automatically placing any particular group of applicants at a competitive disadvantage.
The Court finds that the selection system, while perhaps susceptible of improvement, was fairly designed to identify and articulate the skills and abilities of people most likely to become adept as plate printers in the shortest possible time, and then to locate those people in the applicant pool and hire those who gave the best account of themselves in terms of intangible qualities such as character, maturity, ambition, and responsibility. It was, moreover, contrary to plaintiff's suggestion of covert racism, undertaken with an express "affirmative action" impetus which induced BEP to advertise the positions' availability in the minority press, and against the backdrop of BEP's historical record of having built a plate printer workforce with the highest minority representation in the nation.
The Court concludes, therefore, that plaintiff has failed to prove that BEP intentionally discriminated against blacks in its recruitment of plate printers (intermediate) in 1978-79, or that its method of selecting from among qualified applicants was so designed and implemented as to have had that unintended, although equally impermissible, result.
It is so ORDERED, that judgment be entered for defendant.