Robinson v. Adams

PREGERSON, Circuit Judge,

dissenting

Kenneth Robinson appeals pro se from the district court’s grant of summary judgment in favor of defendants. In the summer of 1983, Robinson applied for four separate jobs with the Orange County Superior Court. As part of the job application, Robinson filled out a demographic questionnaire in which he indicated that he is black. This questionnaire is a “tear-off attachment” to the job application and *132 states at the top that the information provided on it will be used for statistical purposes only. Robinson was not hired for any of the four positions, and he brought this suit alleging that he was denied employment with the Orange County Superior Court based on his race. The magistrate who first heard the case recommended that the district court grant summary judgment for defendants on the Title VII “disparate treatment” claim but deny summary judgment on the “disparate impact” claim. The district court partially accepted this recommendation, granting summary judgment for defendants on both claims.

We review de novo district court orders granting summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). Our review is governed by the same standard used by the district court under Fed. R.Civ.P. 56(c). Id. We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

Title VII is “a remedial statute to be liberally construed in favor of the victims of discrimination.” Mahroom v. Hook, 563 F.2d 1369, 1375 (9th Cir.1977), cert. denied, 436 U.S. 904 , 98 S.Ct. 2234 , 56 L.Ed.2d 402 (1978). Particularly where, as here, a layperson brings a Title VII action pro se, a liberal construction of the statute’s technical requirements is appropriate. Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1084 (9th Cir.1983).

I. Disparate Treatment

As the majority states, under Title VII or section 1981 a plaintiff must establish intentional discrimination to show disparate treatment. I agree with the majority that, notwithstanding the literal language of McDonnell Douglas, a finding of intentional discrimination logically requires a showing that defendants knew plaintiff’s race. In this case, then, to pursue a claim of disparate treatment, Robinson must prove that Orange County Superior Court employees knew he was black when they considered his applications for employment. I would hold that the district court erred in granting summary judgment on the disparate treatment claim because there is a genuine issue of material fact whether the Orange County employees reviewing Robinson’s application actually knew he was black.

In support of its conclusion that there is no genuine factual issue on this point, the majority cites (1) the language at the top of the demographic questionnaire attached to the employment application stating that racial and other information would not be considered in the employment decision, (2) the fact that the questionnaire appeared on a detachable flap that was part of the application form, and (3) affidavit testimony by County employees who reviewed Robinson’s applications indicating that when they decided not to hire Robinson they were unaware of his race.

The majority neglects to mention the evidence Robinson provided to counter the evidence provided by the County. In his Excerpts of Record, Robinson provided copies of his employment applications received from the County via the discovery process. On the pages in the Excerpt marked 141, 150, 163, and 279, Robinson’s applications are reproduced. In each case, the demographic questionnaire, complete with Robinson’s “x” indicating that he is black, is still attached to the application. In my view, this evidence indicates that the County employees who considered Robinson’s application may have known he was black.

The evidence provided by the County does not undermine the probity of the raw fact that Robinson’s racial information was still attached to his job application. The first two items cited by the majority are of negligible value for determining what the reviewing employees actually knew. The language at the top of the questionnaire is not determinative of how applications were in fact processed. Similarly, the fact that the applicant’s racial information was provided on a detachable form indicates little about the County’s treatment of race in the job application process. If the County had *133 an entirely separate demographic questionnaire used for gathering statistics, it might demonstrate the County’s desire to ensure that employees reviewing the applications would be ignorant of each applicant’s race. But by keeping this information physically attached to other employment information, the County runs a risk that employees making employment decisions will be aware of racial and other demographic factors that might lead to discrimination.

The County employees’ affidavits indicating that they were unaware of Robinson’s race is the only viable evidence the County has provided to dispute Robinson’s allegation that the employees knew of his race. As the majority recognizes, the credibility of these employees is a matter for the trier of fact. Although the credibility issue alone probably should not defeat defendants’ summary judgment motion, the credibility question coupled with Robinson's concrete evidence that the employees may have known of his race is sufficient to allow his disparate treatment claim to withstand summary judgment.

II. Disparate Impact

Robinson also brought a Title VII claim under the disparate impact theory. The district court rejected the magistrate’s recommendation that defendants’ summary judgment motion on this claim be rejected. I would reverse the district court’s grant of summary judgment on this issue.

A. Statistical Representation of Blacks and Black Males

Under a disparate impact approach, an employee must show that facially neutral employment practices have a “significantly discriminatory” impact upon a group protected by Title VII. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530 , 73 L.Ed.2d 130 (1982). The starting point for disparate impact analysis is identifying the appropriate candidate pool and its racial makeup. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983). Generally, the most appropriate statistical base is the actual pool of applicants. Id.

Robinson has shown that the Orange County Superior Court has no black male employees, and that the overall representation of blacks (all women) among its employees is 1.7%. The majority states that there is no statistical support for Robinson’s assertion that blacks are underrepresented in the court’s work force. To the contrary, I believe that Robinson has raised a genuine issue of material fact on whether blacks and particularly black males are proportionally represented in the court’s work force.

Defendants maintain that their 1.7% rate of black employment is more than sufficient, in light of the fact that blacks constitute only 1.2% of Orange County’s population. The County has proferred no justification for its reliance on general population statistics rather than on statistics concerning the actual pool of applicants for the positions for which Robinson applied. Given the startlingly low levels of black employment in the Orange County Superior Court, I would hold that the absence of statistics about the candidate pool by itself justifies reversing the grant of summary judgment for defendants.

Even assuming that general population statistics are appropriate, it is not at all clear under Hazelwood School Dist. v. United States, 433 U.S. 299, 313 , 97 S.Ct. 2736, 2744 , 53 L.Ed.2d 768 (1977), that the Orange County population is the “relevant labor market” required for statistical comparisons in disparate impact cases. Orange County is not an isolated community. Although the United States census bureau identifies Orange County as a Standard Metropolitan Statistical Area, the bureau also identifies Orange County as part of the Los Angeles-Long Beach-Anaheim standard consolidated statistical area. Being part of the greater Los Angeles metropolitan area, Orange County presumably draws its work force from a larger population pool than the County alone. The evidence adduced thus far supports this presumption. For example, Orange County advertised the positions for which Robinson applied in the Los Angeles Times and the Orange County Register, both of which are *134 widely circulated throughout the greater Los Angeles area.

I would hold, in keeping with Hazelwood, that this case should go back to the district court “for further findings as to the relevant labor market.” Id.

B. Black Males as a Protected Class

Robinson contends that even if there were factual support for defendants’ argument that blacks are proportionately represented in the court’s work force, the evidence nonetheless demonstrates disparate impact on black males. I flatly disagree with the majority’s conclusion that black males are not a protected class under Title VII. The Supreme Court stated in Connecticut v. Teal, 457 U.S. 440, 451, 455 , 102 S.Ct. 2525, 2533, 2535 , 73 L.Ed.2d 130 (1982):

Title VII strives to achieve equality of opportunity by rooting out “artificial, arbitrary, and unnecessary” employer-created barriers to professional development that have a discriminatory impact upon individuals.

It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group. We recognized in Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 [ 98 S.Ct. 1370 , 55 L.Ed.2d 657 ] (1978), that fairness to the class of women employees as a whole could not justify unfairness to the individual female employee because the “statute’s focus on the individual is unambiguous.” Id. [98 S.Ct.] at 1375.......

The stark fact is that the Orange County Superior Court does not employ a single black male. This is strong evidence that defendants have discriminated against black males by creating an artificial barrier to their professional development, thereby frustrating Title VII's goals of achieving equality of opportunity. Like the behavior in Manhart , the Orange County Superior Court’s failure to employ a single black male blatantly disregards the rights of the individual recognized and protected in Title VIL I would hold that discrimination against black males is a violation of Title VII. Cf. Jefferies v. Harris County Community Action Ass’n, 615 F.2d 1025, 1032-35 (9th Cir.1980) (black females are a protected class under Title VII). Accordingly, I dissent from the majority’s view to the contrary.