Diane Y. WASHINGTON, Plaintiff-Appellant, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant-Appellee

DAVID R. THOMPSON, Circuit Judge,

dissenting:

I respectfully dissent from the portion of the majority opinion that reverses the Merit System Protection Board’s affirmance of the ALJ’s finding that the Navy’s “RIF action was based on a legitimate management reason.” ALJ Decision, Washington v. Navy, Docket No. SFO3518910016 filed Feb. 2, 1989, pp. 4-5 (ER 43-44). On this issue, we must apply a deferential standard of review.

It is our obligation as a reviewing court to affirm the Board’s decision if it is supported by substantial evidence. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.1990). Substantial evidence means more than a mere scintilla but less than a preponderance of the evidence. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991); see also Richardson v. Perales, 402 U.S. 389, 401 , 91 S.Ct. 1420, 1427 , 28 L.Ed.2d 842 (1971) (substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (citation omitted).

Substantial evidence need not convince us; it merely “must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 , 86 S.Ct. 1018, 1026 , 16 L.Ed.2d 131 (1966) (citation omitted). “Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be upheld.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).

By choosing not to .recognize this well-accepted role of deference in reviewing for substantial evidence, the majority improperly grants itself the privilege of weighing the evidence de novo and substituting its fact-finding from the cold record for that of the ALJ who heard the case firsthand.

The majority bases its reversal of the Board’s decision on the notion that “all the credible evidence in the record indicates that the RIF was effected for reasons personal to Washington.” In so stating, the majority disregards the ability of the ALJ to pass on the credibility of evidence. This frustrates important policies underlying the substantial evidence standard of review. The standard “frees the reviewing courts of the time-consuming task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute.” Consolo, 383 U.S. at 620 , 86 S.Ct. at 1026 .

Approaching the case as the primary fact-finder, the majority finds that the testimony of Capt. P.M. Reber, Chief of Staff of the Naval Training Center at San Diego, California, was “equivocal.” It makes this finding despite the ALJ’s express finding that Re-ber’s testimony was credible.

The majority finds Reber’s testimony “equivocal,” because although he testified he “wasn’t aware of any problems with Ms. Washington’s conduct when [h]e made the decision to abolish her position,” he also testified “that at the time he approved the RIF, he understood that Washington’s performance was ‘in question’ and ‘needed read *1439 just[ing].’ ” Returned to its proper context, however, this “equivocal” testimony is not equivocal at all. It is consistent with Reber’s overall testimony that the RIF was not in response to performance problems:

Q: Did Lieutenant Buechner discuss Ms. Washington’s performance or conduct with you?

A: * * * He ha[d] spoken with her the day before about her evaluation of her performance which was the routine time to do so, and in the course of doing so her performance evaluation was satisfactory and I don’t believe there was anything that he had found a particular fault in her evaluation, and during the time— during the counseling he told me he did have some criticism of some of the things that he wanted to add to the evaluation as part of his counseling. And he told her that there were some things that he wanted to improve or something, that her performance needed readjusting] or whatever.

Q: Was her performance ever in question?

A: Not more than any — yes, I suppose in the sense that he had some criticism of it.

S.E.R. at 72-73.

In context, it becomes clear that Reber’s “equivocal” testimony reflects that at the time he ordered the RIF, he knew Washington as an employee whose performance evaluation was satisfactory and did not reveal particular faults in her performance.

The majority also relies for its finding that Reber’s testimony was “equivocal” on his further testimony that he “conceded that had Washington not walked off the job on February 2, it was ‘possible’ that she would have retained her editing job on The Hoist.” Again, the majority chooses to quote only a portion from Reber’s testimony. In context, his testimony was:

Q: [I]f the conduct of Ms. Washington had been satisfactory and if she had not walked off the job on 2 February would she now be employed as editor of The Hoist ?

A: In the first place I have no reason to believe that her conduct was anything other than satisfactory, and at the time by the 2nd of February, and the fact that — I guess it includes that we didn’t discover that the job was done better without her stands to reason that had she stayed there it’s possible. I don’t know we might have discovered it later in some other way but that’s the way it happened. I have no idea what might have happened.

Id. at 90-91.

Reber’s testimony, therefore, fails to support the implication advanced by the majority: that Washington may have lost her job as punishment for leaving it on February 2. This is not what Reber said. He testified that Washington’s absence was a cause of the RIF only because it allowed Reber to learn that her position was not indispensable.

The majority, however, finds Reber’s testimony “inherently unbelievable.” It takes exception to the Navy’s explanation that the RIF was part of a plan to increase long term efficiency. The Navy, however, presented a plausible explanation: having found that The Hoist did not require the services of a full-time editor, it made sense to put Washington to work as a reporter.

The majority also points to the hiring of a secretary as proof that the Navy was not concerned with efficiency in changing Washington’s duties. This circumstance, however, lends no support to the majority’s factfind-ing; the addition of the secretary was not linked to the RIF that affected Washington. Moreover, it substitutes the majority’s ideas as to how the Naval Training Center’s Hoist office should be run for the ideas of the people who were charged with running it.

In sum, rather than searching the record to determine whether there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Richardson, 402 U.S. at 401 , 91 S.Ct. at 1427 (emphasis added), the majority searches the record to try to find some inconsistencies which will permit it to make findings contrary to those made by the ALJ and affirmed by the Board. This simply will not do. *1440 Even if the evidence were “susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be upheld.” Sample, 694 F.2d at 642 .

Because the record contains substantial evidence to support the Board’s determination affirming the ALJ’s findings, I would affirm the finding that the Navy based the RIF action on legitimate management reasons.

Washington’s discrimination claim, however, comes to us clothed in a different standard of review. Here, our review is de novo. I agree with the majority that Washington raised a genuine issue of material fact on the question whether the RIF action which eliminated her job was prompted by race discrimination. The ALJ and the Board decided it was not, but on this issue the question before the district court, and before us, is whether Washington raised a genuine issue of material fact. She did, and I agree this question should be remanded to the district court for further proceedings.

I do not agree, however, that Washington’s discrimination claim is advanced by the evidence of “racial tension” to which the majority refers. This is the evidence that Norrod, a white female, accused Washington in an EEO complaint of racial discrimination when Washington allegedly said to Norrod: “when you’re little and cute and white, you get your way.” Washington cannot use her own alleged racial slur toward Norrod to buttress her claim that she was the victim of discrimination.

Nor do I agree with the majority’s assertion that economic constraints and office efficiency “in the ordinary case [are] such fundamentally different justifications for an employer’s action [that relied upon together they] would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason.” In my view, we cannot characterize as “fundamentally different justifications for an employer’s action,” economic constraints and office efficiency. I do not agree that an employer’s reliance upon these factors would provide any evidence of pretext nor suggest the possibility that neither reason was the true reason, in this case or in “the ordinary case.”