Petition for Writ of Certiorari — Lee v. Webb

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

JIN K. LEE,

Petitioner,

VS.

JOHN LEHMAN, SECRETARY OF THE NAVY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

*HOWARD MOORE, JR.

SusAN D. KRAMER

445 Bellevue Avenue, Third Floor

Oakland, California 94610

Telephone: (415) 451-0104

Attorneys for Petitioner

*Counsel of Record

SA EL A ESP G I TS IT SE PID TEA SIT IEE EELS

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Whether the McDonnell-Douglas Corp. v. Green, 411

U.S. 792 (1973) formula applies when direct evidence

of racial animus is present in a Title VII case.

il

TABLE OF CONTENTS

Page

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RN I gains ontechsinic ale 1

JURISDICTION OF THIS COURT .........cc.ccccccscsoccseesese 2

ORT OTD TIAN isi cocsisiccacc es ee 2

STATEMENT OF THE CARE ~ oooccisccscccescecccccca 2

‘STATEMENT OP FO Oe os ie 3

REASONS FOR GRANTING THE WRIT .necsccccccccececeeeee 7

This Case Presents A Significant Question

Of Federal Law Which Has Created Conflict

Among The Circuits And Which Has Not

Been, But Should Be Decided Ry This

MAE sctasccsitinnvcCaceeng eecgnena ec ec 7

When Direct Evidence Of Racial Animus Is

Present, the McDonnell Douglas Formula

ete Tt AR oka 11

RAINE bai ccncssinccectodustsscvcrcaccinknc nese meee 15

APPENDICES

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TE isc cissicinnaseststecttallnia epee ae mne anes 7a

tala hah

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TABLE OF AUTHORITIES

CASES: Page

Bell v. Birmingham Linen Service, 715 F.2d 1552

(11th Cir. 1983), cert. denied, 467 U.S. 1204

RIE Aciidckinncsniuauohesuncudbslebsvhonssossepibereesosccsteses 10

Contreras v. Crown Zellerbach Corp., 565 P.2d 1173

I ai kaos scadcienaisinacniabpymasaacntnienentecseenes 14

Lee v. Russell County Bd. of Education, 684 F.2d

EI, BUND | casedeininseswnceccsscncnsscicncccces 10

Lindsey v. American Cast Iron Pipe Co., 772 F.2d

PU SEEEE CORE, BID | soskccccnscedssscerseccnstesccccooees 8

McDonnell Douglas Corp. v. Green, 411 U.S. 792

ETTED cnvcdaccesnocserccshsubatbcntncsncescccnsccecsesecsececseees passim

Miles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.

ads el cnaiaadeensenounsenansenieconoes 10

People v. Hall, 4 Cal. 399 (1854) on... eeeeeeseeeeeeeeeeee 13

Teamsters v. United States, 4381 U.S. 324 (1977) .. 8

Texas Dept. of Community Affairs v. Burdine, 450

Be ME HED Wiihiis cuissenedéncecsdenseconsccsdeceroensnses passim

Thompkins v. Morris Brown College, 752 F.2d 558

CR RUNEMEES AMO) sencehccevinncscsesescessnecnscccceresseeees 7,8

TWA v. Thurston, 469 U.S. 111 (1985) _ .............. 8

Wilson v. City of Aliceville, 779 F.2d 631 (11th Cir.

I ith ncukaxcobecnenbacksanseinncnonnesoceceniabdte 9,10

STATUTORY PROVISIONS:

42 United States Code

SN IE BE MUN, ses scancdssoscsnvesconecesencnenss passim

OTHER AUTHORITIES:

Delgado, Words That Wound: A Tort Action For

Racial Insults, Epithets, and Name Calling, 17

Harv. C.R.-C.L.L.Rev. 133 (1982) _................ 14

Haywakawa, Symbols, Status and Personality

aaah Sut icsidhsatecisaianentehancnscnscnepneoncens 14

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-__

JIN K. LEE,

Petitioner,

vs.

JOHN LEHMAN, Secretary of the Navy,

Respondent.

\

PETITION FOR WRIT OF CERTIORARI TO .

THE UNITED STATES COURT OF APPEALS

~ FOR THE NINTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in this action

on October 22, 1986.

OPINION BELOW

The Memorandum Opinion of the Court of Appeals

for the Ninth Circuit, and the Findings of Fact, Con-

clusions of Law, Order and Judgment of the District

Court for the Northern District of California, in this

case, have not been reported. They are set forth in

the Appendix, infra.

JURISDICTION OF THIS COURT

The judgment of the Court of Appeals for the Ninth

Circuit, herein sought to be reviewed, was entered

on October 22, 1986. On January 12, 1987, Justice

O’Connor extended the time in which this petition

could be filed to February 20, 1987. Jurisdiction of

this Court to grant the writ is conferred by 28 United

States Code, Section 1254.

STATUTE INVOLVED

This case involves Title VII of the Civil Rights Act

of 1964, as amended which provides in pertinent part:

It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges

of employment, because of such individual’s

race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify his em-

ployees or applicants for employment in any

way which would deprive or tend to deprive

any individual of employment opportunities

or otherwise adversely affect his status as an

employee, because of such individual’s race,

color, religion, sex, or national origin. 42

U.S.C. Section 2000e-2(a).

STATEMENT OF THE CASE

The petitioner is JIN K. LEE, a Chinese male adult

citizen of the United States, residing in San Fran-

cisco, California.

3

On August 5, 1982, petitioner filed an employment

discrimination complaint pro se, alleging violations of

Title VII with respect to respondent’s faiiure to pro-

mote petitioner while he was employed at the Naval

Air Rework Facility (NARF), Alameda, California, by

respondent Secretary of the Navy. On November 6,

1982, petitioner, by and through his counsel, filed a

first amended complaint. ;

On April 15, 1983, the District Court entered sum-

mary judgment for respondent on the grounds that

petitioner had failed to meet the jurisdictional time

limits of Title VII because his initial filing was a

request for appointment of counsel.

Petitioner timely appealed that order to the Court

of Appeals for the Ninth Circuit on the jurisdictional

issue, and, on January 9, 1984, the Court of Appeals

remanded the case to the District Court.

On April 22, 1985, a non-jury trial was held before

the Honorable William H. Orrick, United States Dis-

trict Court Judge, Northern District of California. The

District Court made findings and conclusions adverse

to petitioner and entered judgment for respondent.

(Appendices A and B).

On May 21, 1985, petitioner filed a timely notice

of appeal from the judgment of the District Court

entered in favor of respondent, and, on October 22,

1985, the Court of Appeals for the Ninth Circuit af-

firmed the District Couri’s judgment. (Appendix C)

STATEMENT OF THE FACTS

Petitioner, JIN K. LEE, is a native of China and

a citizen of the United States who has resided in this

country since 1938. In 1946, petitioner began his ca-

reer as an employee of the Alameda Naval Air Sta-

tion, after service in World War II as an aircraft

mechanic in the Air Force. In 1959, petitioner was

promoted to Aircraft Engine Inspector (now desig-

nated Quality Assurance Specialist), a position which

he held until his retirement in 1980, at which time

he had served NARF for over thirty-four (34) years.

During the last 21 years of petitioner’s service with

respondent, he did not receive a sfngle promotion.

During his career as an inspector, petitioner applied

several times for promotions above his WG-11 grade.

Petitioner’s complaint concerned two such applica-

tions, one for an Aircraft Engine and Examiner po-

sition (““E & E”’), pursuant to promotional opportunity

announcement No. OC-12-76, the other for a position

as a Planner and-Estimator/Progressman pursuant to

announcement No. OC-76-182. The appeal to the Ninth

Circuit and this petition only concerns petitioner’s ap-

plication for announcement No. OC-12-76.

Permanent appointment to either of the two posi-

tions petitioner sought entailed success in a detailed

and formal application and screening process which

was described in the triai testimony of respondent’s

witness, Cheryl DeMong. This process involves the

use of a rating panel which is appointed to score each

application against a set of criteria known as the

crediting plan. The rating panel then refers a list of

the highest-scored candidates to the selecting officer

who makes the final ranking decision. The applicants

so rated are then drawn upon to make successive

referral lists as new vacancies arise.

In addition to these applications for promotions,

petitioner several times sought to be detailed to tem-

porary vacancies in Engine and Examination positions

by speaking directly to the E & E supervisor, Charlie

Morris. Such detailing would have enhanced

petitioner’s prospects for permanent promotion.

Petitioner was not selected for either of the two po-

sitions which he sought, although he was referred for

selection for one of the vacancies filled from pro-

motional opportunity No. OC-76-182. Morris never de-

tailed petitioner to any of the temporary vacancies

he sought to fill.

Mr. Morris not only controlled the opportunities for

which petitioner sought to be temporarily detailed in

the E & E line, he also served on the ranking panel

that ranked all of the applicants for the OC-12-76

permanent promotion. As a member of that ranking

panel, Mr. Morris became one of the two individuals

assigned to rank petitioner’s application for the E &

E position. These two individuals assigned petitioner

a score of 20 and 19 respectively; petitioner’s com-

posite score of 19.5 was 1 point lower than that of

any person referred to the selecting officer by the

rating panel and 2.5 points lower than that of any

person ultimately selected for the position.

Regarding promotional opportunity announcement

No. OC-12-76, the testimony at trial was uncontrad-

icted that Mr. Morris told petitioner ‘Lee, you

wouldn’t stand a ‘Chinaman’s’ chance [of being de-

tailed to E & E}.” Although evidence was introduced

that petitioner at least initially took the ““Chinaman’s

chance”’ remark ‘“‘as a joke,” his testimony on cross-

examination made it clear that he ultimately viewed

his former friend as having shot him down. Mr. Mor-

ris was apparently available to the defense as a wit-

ness, as he was included on respondent’s witness list

but was not called.

The District Court found that there was ‘‘no in-

dication that any person who rated plaintiff consid-

ered any non-merit factors,’’ and that ‘“‘there was no

evidence that Mr. Morris rated plaintiff in a discrim-

inatory manner. (Appendix A at 2a & 3a, Findings

of Fact Nos. 6 and 8)

As petitioner argued in the Court of Appeals, these

findings by the District Court were clearly erroneous

because there was direct evidence of unlawful motive

on the part of one'person, Mr. Morris, who played a

critical role in rating petitioner for the E & E pro-

motion. Moreover, Morris was available as a witness

to deny the statement but was not called by the gov-

ernment at trial.

In addition, the District Court’s finding of ‘“‘no dis-

crimination”’ is also clearly erroneous since the critical

role Morris played in the overall evaluation and se-

lection process, compelled a finding that discrimina-

tion based on race or national origin infected the

selection process. (Appendix A at 3a)

The District Court concluded that, while petitioner

had established a prima facie case of discrimination,

and that respondent had articulated a legitimate, non-

discriminatory reason for petitioner’s rating, petitioner

failed to show that respondent’s reasons were pre-

textual. Appendix A at 4a)

Applying the clearly erroneous standard of review,

the Court of Appeals held ‘“‘we are satisfied that the

district court decided ‘the question of discrimination

based on the entire case,’ and that its finding was

not clearly erroneous.’”’ (Appendix C at 10a)

REASONS FOR GRANTING THE WRIT

This Case Presents A Significant Question Of Federal

Law Which Has Created Conflict Among The Circuits

And Which Has Not Been, But Should Be Decided By

This Court.

This Court should grant review in order to resolve

a substantial, recurrent question not heretofore de-

cided by this Court, viz, whether, the McDonnell-

Douglas formula applies when direct evidence of racial

animus is present.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and later in Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248 (1981), this Court set forth

the prevailing standard for allocation of the burdens

of proof in employment discrimination cases. The for-

mula developed by the Court allows for three (3) sep-

arate and discrete steps in most cases: (1) the

employee must establish a prima facie case of unlaw-

ful discrimination; (2) the employer must articulate a

legitimate, non-discriminatory reason in order to re-

but the prima facie case; and (3) the employee must

then have an opportunity to prove that the employer’s

articulated reason was a pretext to conceal unlawful

discrimination. McDonnell-Douglas, supra at 802-04.

Subsequent to this Court’s decisions in McDonnell-

Douglas and Burdine, the federal circuits have grap-

pled with the question of whether the McDonnell-

Douglas formula applies when direct evidence of racial

animus is before the trial court.

The Eleventh Circuit has repeatedly held that this

standard of proof is inapplicable when direct evidence

of discrimination is present. For example, in Thomp-

kins v. Morris Brown College, 752 F.2d 558 (11th Cir.

8

1985), the Eleventh Circuit reversed a judgment on

the merits for the defendant in a Title VII case be-

cause the trial court had erroneously applied the

McDonnell-Douglas test without specifically stating

whether or not it believed the plaintiff’s proffered

direct evidence of discrimination. Thompkins, supra

at 564. Plaintiff had offered proof that the president

and the vice-president of the defendant college had

each made statements reflecting a bias against women

with respect to the employment practice at issue.

The Eleventh Circuit held the McDonnell-Douglas

rebuttal specification inadequate in the face of direct

evidence of discrimination and posed two alternatives

for the trial court. First, it might have disbelieved

the uncontradicted testimony; but, if so, it should have

explained why. In the alternative, the trial court might

have found that testimony credible. If so, the court’s

ultimate finding in favor of defendant was clearly

erroneous. Id.

The Eleventh Circuit has reached a similar result

in an age discrimination case, holding that direct evi-

dence of an employer’s state of mind took the case

out of the required allocation of proof articulated in

McDonnell Douglas. Lindsey v. American Cast Iron

Pipe Co., 772 F.2d 799 (11th Cir. 1985).

This Court has held that in an age discrimination

case under the ADEA, the McDonnell-Douglas test

does not apply where the plaintiff presents direct evi-

dence of discrimination. TWA v. Thurston, 469 U.S.

111, 105 S.Ct 6138, 622 (1985), relying on. Teamsters

v. United States, 431 U.S. 324, 358 n.44 (1977).

The District Court found that petitioner had estab-

lished a prima facie case of discrimination on the

9

basis of McDonnell-Douglas and Burdine. (Appendix

A at 3a & 4a) Thus, the District Court was obligated

to consider the direct evidence as a part of plaintiff's

rebuttal evidence to defendant’s articulation of a le-

gitimate, non-discriminatory grounds for its’ action.

The District Court failed to do so.

The error that both the District Court and the Court

of Appeals made relates to their respective treatment

of the evidence of racial animus. The District Court

failed to make a finding as to whether or not the

direct evidence of racial animus affected the rating

which petitioner received from the rating panel or

affected Mr. Morris’ refusal or failure to detail

petitioner to the E & E position. The Court of Appeais

adhered to a rigid, mechanistic application of the

McDonnell-Douglas formula and failed to determine

whether or not, as a matter of law, petitioner’s direct

evidence of racial animus rebutted the employer’s ar-

ticulated rationale for its treatment of the petitioner

or whether or not such evidence required a different

analysis and approach to the relative burdens of the

parties. Where direct evidence of racial animus is of-

fered, unless trial courts and appellate courts depart

from McDonnell-Douglas, it is useless for Title VII

litigants to offer direct evidence of racial animus, for

it may be conveniently factored out of the decision-

making process.

To avoid this error, most recently, in Wilson v. City

of Aliceville, 779 F.2d 631 (11th Cir. 1986), the Elev-

enth Circuit held that where there is direct evidence

of discrimination, the McDonnell-Douglas formula is

inapplicable. In Wilson, plaintiff, a Black, male ap-

plicant for employment as a police officer in Aliceville,

Alabama, sought to introduce testimony at trial that

10

the Mayor of Aliceville stated ‘‘that he wasn’t gonna

let no Federal government make him hire no god-

dam nigger” Jd. at 633. The trial court refused to

admit this statement upon defendant’s evidentiary ob-

jections and an ultimate verdict in favor of defendant

city was reached.

The Eleventh Circuit, relying on such earlier ap-

pellate decisions as Miles v. M.N.C. Corp., 750 F.2d

867, 875 (11th Cir. 1985); Bell v. Birmingham Linen

Service, 715 F.2d 1552, 1556 (11th Cir. 1983), cert.

denied, 467 U.S. 1204 (1984); and Lee v. Russell

County Bd. of Education, 684 F.2d 769, 774 (11th

Cir. 1982), held that such direct evidence of discrim-

ination cannot be met by a McDonnell-Douglas re-

buttal. Id. at 634. In Wilson, the court of appeals

held the statement to be an unambiguous racial slur

and found the statement to be highly probative on

the issue of racial discrimination. Id. at 634.

Petitioner urged the Court of Appeals for the Ninth

Circuit to follow the Eleventh Circuit’s lead in re-

cognizing that when direct evidence of racial animus

is present, the McDonnell-Douglas formula does not

apply. The Ninth Circuit specifically refused to follow

the Eleventh Circuit’s reasoning:

‘We believe that McDonnell-Douglas is apposite

here. We decline to adopt the Eleventh Circuit’s

modification of the McDonnell-Douglas allocation

of burdens that Lee urges. See, e.g., Wilson v.

City of Aliceville, 779 F.2d 631 (11th Cir. 1986).

(Appendix C at 10a)

As a result of the Ninth Circuit’s refusal to rec-

ognize that the McDonnell-Douglas test is not the ex-

clusive means of proving a case of disparate treatment

11

in employment, this issue has created a conflict among

the circuits which requires this Court to resolve. Con-

tinued reliance on the McDonnell-Douglas formula

when compelling direct evidence of discrimination is

before a trial court frustrates the intent of Title VII

to redress clear-cut racial bias in employment.

When Direct Evidence Of Racial Animus Is

Present, the McDonnell-Douglas Formula Does

Not Apply.

In the present case, direct, uncontradicted and cor-

roborated evidence of racially-derogatory slurs was

introduced at trial, yet wholly ignored by the District

Court. First, petitioner himself testified to Morris’

statement that he did not have a ‘“‘Chinaman’s chance”’

of getting into the E & E position. Petitioner further

testified that Morris told him he ‘‘didn’t like ..

‘Chinamen’ in E & E.” Next, petitioner’s witness,

Finley, testified to having been present on the oc-

casion of the ‘“Chinaman’s chance”’ remark and con-

firmed it. This testimony placed Morris’ statements

in the context of petitioner’s request of Morris that

he be detailed to E & E, when temporary vacancies

arose, a request which Morris had the authority to

grant or deny. Finally, respondent’s own witness,

Hegger, testified that Morris ‘figured he could say

anything he wanted,’ including the use of “‘racially

derogatory terms in a nonmalicious way,” “‘in a kid-

ding way.” All of this evidence was uncontradicted.

Petitioner’s opportunity to obtain the E & E po-

sition for which he applied was directly controlled by

Morris as well as the other members of the ranking

panel. In a discussion which occurred after petitioner's

rating, Morris made the racial slur. The District Court

12

appeared to credit the testimony of the two witnesses

with respect to the fact that the remark was indeed

made and its context. Significantly, respondent of-

fered no evidence which would contradict the infer-

ence which logically must be deduced from the

remark. That is, that petitioner’s national origin was

relevant to Morris’ assessment of his promotability

into the E & E department and that this relevance

was negative. Morris was available to respondent as

a witness but was never called to deny or even ex-

plain the statement.

The evidence was clear that Morris knew petitioner

well and appeared to have had much opportunity to

observe his work. Although the rating process re-

quired that raters be instructed to ignore their per-

sonal knowledge of the applicants and consider only

the paper evidence before them, the record offers no

assurance that Morris did not negatively influence the

other members of the rating panel.

Petitioner was entitled to be evaluated by a panel

comprised of members uninfluenced by any unlawful

motive. Title VII commands such a non-discriminatory

process:

All personnel actions affecting employees .. .

in military departments ... shall be made

free from any discrimination based on race,

color, religion, sex or national origin. 42

United States Code, Section 2000e-16(a).

A decision in which even one of several decision

makers has admitted an unlawful motive with respect

to race or national origin, flies in the face of Title

VII's prohibition.

:

:

:

\

:

1

i

nae ed ts

13

The District Court found the evidence of the racial

slur credible, since Finding of Fact No. 8 states that

Morris made a discriminatory remark. (Appendix A

at 3a) However, the District Court dismissed the slur

as no evidence that Morris rated plaintiff in a dis-

criminatory manner. In fact, the District Court en-

gaged in colloquy with counsel in closing argument

repeatedly emphasizing that he had heard testimony

of but one racial slur. Yet even singular admission

of unlawful motive was compelling evidence of an

evaluating officer’s state of mind.

The District Court’s casual view of the racial slur

belongs to an era that preceded the enactment of the

Civil Rights Act of 1964 by more than one hundred

(100) years. Even a cursory review of the legal and

historical discrimination endured by persons of

Chinese descent in this country demonstrates that the

District Court’s reticence to equate the racial slur

with direct evidence of discrimination was erroneous.

In 1854, the California Supreme Court held that

the Chinese were not allowed to present testimony

in a court of law. People v. Hall, 4 Cal. 399 (1854).

This decision resulted in a literal onslaught of mur-

dering and robbing of Chinese by whites who knew

they were immune from prosecution for their crimes.

Although the Chinese vigorously attempted to de-

fend their legal rights, the passage of the Exclusion

Law in 1882 marked the beginning of an official na-

tional policy of racial discrimination against the

Chinese in the United States. As a result of this

policy, Chinese workers were precluded from immi-

grating to this country and denied the right of citi-

zenship.

14

Shortly after the Exclusion Law, several other ra-

cially-discriminatory laws were enacted by Congress

subjecting the Chinese to further injustice. In fact,

from 1882 to 1902, thirteen (13) such discriminatory

laws were enacted against the Chinese.

It was during this approximate period that the

phrase “‘Chinaman’s chance”’ came into use to refer

to a hopeless situation.

At trial, petitioner’s witness Finley testified, ‘“To

the Chinese [the word, Chinaman, is] the same thing

as the word nigger means when you express that

expression.”’

“Although the slang epithet “‘nigger’’ may once

have been in common usage, along with .. . other

racial characterizations ... [it] has become par-

ticularly abusive and insulting in light of recent

developments. ... The same conclusion is com-

pelled with regard to Mexican-Americans and the

various slang epithets that may have once been

in common usage regarding them.” Contreras v.

Crown Zellerbach Corp., 565 P.2d 1173, 1177

(1977), quoting Alcorn v. Anbro Engineering, Inc.,

2 Cal. 3d 493, 498 n.4_(1970).

_ Such racial epithets, which were once part of com-

mon usage, and now are regarded as insulting and

offensive language have no non-discriminatory utility.

See, Delgado, Words That Wound. A Tort Action For

Racial Insults, Epithets, and Name Calling, 17 Harv.

C.R.-C.L.L.Rev. 133, 145 (1982) and S. Hayakawa,

Symbols, Status And Personality at 25 (1963).

Morris’ use of the phrase “Chinaman’s chance’’

served only one function in his speech—to distinguish

petitioner by his race and national origin from those

‘

15

who are not Chinese. Since his comments concerned

petitioner’s prospects for work in the E & E section,

the inference that petitioner’s race and national origin

were important factors with respect to those pros-

pects is compelling. Only Morris, as the speaker, could

dispel that inference.

CONCLUSION

For the reasons stated, petitioner -respectfully sub-

mits that the writ prayed for should issue.

Respectfully submitted,

HOWARD MOORE, JR.

SuSAN D. KRAMER

445 Bellevue Avenue, Third Floor

Oakland, California 94610

Attorneys for Petitioner

February 19, 1987

APPENDIX

la

APPENDIX A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C-82-4174-WHO

Jin K. LEE,

Plaintiff,

vs.

JoHN LEHMAN, Secretary of the Navy,

FILED

APR 26 1985

ORDER

This employment discrimination and retaliation case is

brought by Jin K. Lee, a Chinese male, against his former

employer, Naval Air Rework Facility (“NARF’’), Alameda.

Plaintiff complains that he was not selected for various

promotional opportunities because of race and national or-

igin discrimination, and because of retaliation fo prior

Equal Employment Opportunity (‘‘EEO’’) activities.

Plaintiff retired from NARF in August, 1980, aiter over

37 years of government service.

A bench trial was held in this matter on April 22, 1985.

Based upon the testimony of the witnesses, the exhibits

offered and recéived into evidence, and all the papers and

records on file in this case, this Court finds no discrimi-

nation or retaliation and makes the following findings of

fact and conclusions of law.

2a

FINDINGS OF FACT

1. Plaintiff is a Chinese male who was employed by

NARF for over 37 years at the time of his retirement in

1980.

2. In 1976 and 1977, Plaintiff applied for two promo-

tional positions. Those positions were: 1) Planner/Esti-

mator Progressman (A/C Engine Mechanic) WD-8202-08,

under promotional opportunity number 76-182 (“Pro-Op 76-

182”); and 2) Aircraft Examiner (A/C Engine Mechanic—

WD-8602-06, under promotional opportunity number 12-76

(“‘Pro-Op OC-12-76’’).

3. Pursuant to Pro-Op 76-182, five permanent selections

were made. Of the five persons selected, two were Black,

and three were White. Two Asians were rated high enough

to be referred for selection. All five persons ultimately

selected had higher rating scores than did plaintiff. Pro-

Op 76-182 was reactivated on one occasion to fill a tem-

porary promotion. Plaintiff was referred for selection along

with nine other applicants, but was not ultimately selected.

The person selected for the position had a higher rating

score than did plaintiff.

4. Pursuant to Pro-Op OC-12-76, five »ermanent selec-

tions were made. Of the five persons selected, two were

Hispanic, two were White and one was Black. All five

persons selected had higher rating scores than did plaintiff.

One Asian was rated high enough to be referred for se-

lection.

5. For both Pro-Ops, the ranking panel included, among

others, one Asian. Each time, plaintiff was rated inde-

pendently by two persons. For Pro-Op 76-182, both per-

sons gave plaintiff the same rating score. For Pro-Op OC-

12-76, plaintiff was given independent rating scores within

one point of each other.

6. Ranking panels were specifically instructed not to

consider any non-merit factors, such as national origin or

3a

race, when rating the applicants. There is no indication

that any person who rated plaintiff considered any non-

merit factors. F

7. Each ranking panel included a member whose func-

tion was to contact the Commanding Officer of NARF if

any discrimination occurred during the rating process.

There was no indication of any misconduct on the part of

the EEO member of the panels that assigned plaintiff his

rating scores and no reports of discrimination were shown

to have been made.

8. There was evidence that Mr. Charles Morris, who

rated plaintiff’s application as a member of a ranking panel,

made a racially discriminatory remark. However, there was

no evidence that Mr. Morris rated plaintiff in discrimi-

natorily manner. Mr. Morris, in fact, rated plaintiff higher

than did the other panel member who independently as-

signed plaintiff a rating score.

9. Plaintiff served on the Commander’s Advisory Com-

mittee on Equal Employment Opportunity in 1965-66. Al-

though this fact was noted on plaintiff's applications, and

was therefore within the knowledge of the persons rating

plaintiff's application, there was no evidence of any causal

connection between plaintiff's EEO activities in 1965-66

and the evaluation of plaintiff’s applications ten years later

in 1976 and 1977. Rather, the only testimony on the sub-

ject indicated that, if anything, plaintiff’s prior EEO ac-

tivities may have been considered in a positive light in

that such activities demonstrated an ability to work and

communicate with people.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties and the

subject matter of this action under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5.

2. Plaintiff has satisfied his burden of proving a prima

facie case of discrimination. See McDonnell Douglas Corp

4a

v. Green, 411 U.S. 792 (1973); Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981). First, plaintiff

belongs to a racial minority (Chinese). Second, plaintiff

applied for and was qualified for both promotional oppor-

tunity positions. Third, despite plaintiff's qualifications, he

was rejected. And fourth, the positions were later filled

with persons of plaintiff’s general qualifications.

3. Defendant has satisfied its burden of articulating a

legitimate, nondiscriminatory reason for plaintiff's rejec-

tion. See Texas Dept. of Community Affairs v. Burdine,

450 U.S. at 258. Plaintiff was rated according to a highly

standardized and objective process, and those persons se-

lected for the positions were rated higher than was

plaintiff.

4. Plaintiff has failed to show that the defendant’s le-

gitimate, nondiscriminatory reasons were pretextual. See

McDonnell Douglas Corp. v. Green, 411 U.S. at 805.

5. Plaintiff has failed to establish a prima facie case of

retaliation. Although plaintiff has established that he en-

gaged in the protected activity of serving on the Com-

mander’s Advisory Committee on Equal Employment

Opportunity and that he thereafter was not chosen for the

promotional ‘opportunity positions, plaintiff has failed to

establish any causal link between the two. See Cohen v.

Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). There

is simply no evidence to establish that plaintiff was rated

in any particular manner, or not selected for the Pro-Op

positions, due to any EEO activity engaged in ten years

earlier.

6. Even if a causal link had been established, plaintiff

has not shown that the legitimate, nondiscriminatory rea-

son for nonselection was pretextual.

Therefore, IT IS HEREBY ORDERED that:

1. Plaintiff take nothing by this complaint and judgment

will be entered for defendant.

5a

2. Defendant shall lodge with the Court a proposed judg-

ment consistent with the above findings of fact and con-

clusions of. law by May 10, 1985.

DATED: April 25, 1985.

/s/ WtttiaAm H. ORRICK

WILLIAM H. ORRICK

United States District Judge

6a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Civil No. C-82-4174-WHO

JIN K. LEE,

Plaintiff,

Ve

JOHN O. LEHMAN, Secretary of the Navy, |

Defendant.

FILED

APR 30 1985

JUDGMENT

This action having come before the court for trial, the

Honorable William H. Orrick presiding, the issues having

been duly tried, the court having been fully advised in the

premises, and a decision having been duly rendered,

IT IS ORDERED AND ADJUDGED that judgment be

entered for defendant John O. Lehman, Secretary of the

Navy, in accordance with the Findings of Fact and Con-

clusions of Law entered on April 26, 1985, each party to

bear their own costs and attorney fees.

/s/ WILLIAM _H. ORRICK

WILLIAM H. ORRICK

United States District Judge

Dated: APRIL 30, 1985

Ta i

APPENDIX C

Not For Publication

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 85-2087

D.C. No. C-82-4174-WHO

JIN K. LEE,

Plaintiff/A ppellant,

v.

JOHN LEHMAN, Secretary of the Navy,

. Defendant/A ppellee.

FILED

OCT 22 1986

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

District Judge William H. Orrick, Presiding

Submitted August 18, 1986—San Francisco

Before: WRIGHT and FARRIS, Circuit Judges, and

RHOADES,** District Judge.

We are asked to decide whether the-district court erred

in finding that the failure to promote Lee was not a result

* This disposition is not appropriate for publication and may not be

cited to or by the courts of this circuit except as provided by 9th

Cir.R.21.

** Of the Southern District of California.

8a

of racial or national origin discrimination. The district

court’s finding was not clearly erroneous and we affirm.

Lee, a native of China and a citizen of the United States,

was employed by the Navy in various positions, including

aircraft mechanic and aircraft engine inspector, since 1946.

He voluntarily retired in 1981.

The instant action concerned two applications for pro-

motion above Lee’s WG-11 grade: for Aircraft Engine and

Examiner position (“E & E’’), and for Planner and Es-

timator/Progressman. This appeal concerns only the for-

mer application.

Lee alleges that he was denied promotion to E & E

because of the racial animus of the E & E Supervisor,

Mr. Charles Morris (‘‘Morris’’). Morris had been one of

two members of a “rating panel’’ that rated Lee for the

E & E position. The trial court below elicited Lee’s tes-

timony that Morris had said he ‘“‘did not like the China-

men—Chinamen in E & E.” RT 53:15-16. In addition, Lee

testified that Morris, in response to Lee’s inquiry con-

cerning the possibility of Lee’s being ‘‘detailed’” to E &

E, stated ‘‘Lee, you -wouldn’t stand a ‘Chinaman’s’ chance

.... RT 183:21-23. A witness at trial corroborated the

latter remark. Morris was not called as a witness, and

neither statement was rebutted.

In general, permanent appointment to either of the two

positions Lee sought involves an elaborate application and

screening process. All factors considered in rendering a

decision are reduced to writing. A ‘rating panel,” con-

sisting of individuals familiar with the requirements of the

position applied for, is appointed to score each application

against a set of criteria known as a “‘crediting plan.’’ The

panel then refers a list of the highest scored candidates

to the selecting officer. An applicant can enhance his or

her chances by being ‘“‘detailed’’ to temporary vacancies

in the positions sought.

9a

In the instant action, the ranking panel for the E & E

position gave Lee a composite score of 19.5 (Morris gave

Lee a score of 20, and the other panel member assigned

Lee a score of 19. Lee’s score was one point lower than

that of any other person referred to the selecting officer,

and 2.5 points lower than that of anyone ultimately se-

lected for the position.

After a bench trial, the district court entered judgment

in favor of the defendant. The court found that there was

no indication that anyone who rated Lee had considered

non-merit factors, and in particular, that there was no

evidence that Morris rated Lee in a discriminatory manner.

The court also found that no reports of discrimination in

the rating process were made. While the district court

determined that Lee had made out a prima facie case of

discrimination, and that the defendant had articulated a

legitimate, non-discriminatory reason for Lee’s rejection,

it concluded that Lee failed to show that defendant’s rea-

sons were pretextual.

Findings of fact are reviewed for clear error. United

States v. McConney, 720 F.2d 1195, 1200 (9th Cir.) (en

banc, cert. denied, 105 S.Ct. 101 (1984). Discrimination is

an ultimate question of fact. U.S. Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 715 (1983). To overturn

findings of fact after a review of the record, the reviewing

court must be left with the ‘definite and firm conviction

that a mistake has been committed.’’ McAllister v. United

States, 348 U.S. 19, 20 (1954).

In reaching its conclusion on discrimination, the district

court applied the analysis first set. forth in McDonnell-

Douglas Corp. v. Green, 411 U.S. 792 (1973), and explained

in Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248 (1981). The Ninth Circuit applies this analysis in either

a Title VII or a § 1981 case alleging disparate treatment.

See, ¢.g., Atonio v. Wards Cove Packing Co., Inc., 768 F.2d

1120, 1125 (9th Cir. 1985).

10a

In McDonnell-Douglas, the Supreme Court focused on

the proper allocation of burdens of proof in private, non-

class action Title VII cases such as the case at hand. We

believe that McDonnell-Douglas is apposite here. We de-

cline to adopt the Eleventh Circuit’s modification of the

McDonnell-Douglas allocation of burdens that Lee urges.

See, e.g., Wilson v. City of Aliceville, 779 F.2d 631 (11th

Cir. 1986).

The McDonnell-Douglas allocation of burdens has the

effect that ‘‘after plaintiff's prima facie case and

defendant’s ‘articulation,’ the trier of fact decides that

question of discrimination based on the entire case.”” Kim-

brough. v. Sec’y of United States Air Force, 764 F.2d 1279,

1283 (9th Cir. 1985), explaining Aikens, supra, 460 U.S.

at 714-715. Given the elaborate and standardized selection

process, the fact that no reports of discrimination in the

rating process were made, the fact that Lee’s score was

one point lower than the lowest score of anyone referred

to the selecting officer and 2.5 points lower than anyone

ultimately selected, and the fact that Morris rated Lee

higher than the other member of the rating panel, we are

satisfied that the district court decided “‘the question of

discrimination based on the entire case,” id., and that its

finding was not clearly erroneous.

The defendant’s request for attorney’s fees is denied.

There is no indication that Lee’s appeal was frivolous,

unreasonable or without foundation. Boatowner and Ten-

ants Association v. Port of Seattle, 716 F.2d 669, 674 (9th

Cir. 1983).

AFFIRMED.