# Petition for Writ of Certiorari — Lee v. Webb > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1869%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1069 ## Text 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 OUUTIONT PION oi iis di cocvcsecns vcs candce cs i 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 NE Be i ea ee la PR TP séciccnincanjscccdaa ie ae 6a TE isc cissicinnaseststecttallnia epee ae mne anes 7a tala hah ili 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1869%3A1. Public record. Not legal advice.