Petition for Writ of Certiorari — Tisch v. Shidaker

Supreme Court, U.S.

rit, fs)

SEP 22 1986

86-465 sri sou.m |

; | ea CLERK |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

PRESTON R. TISCH, IN HIS CAPACITY AS

POSTMASTER GENERAL OF THE UNITED STATES

POSTAL SERVICE, PETITIONER

v.

DARLENE SHIDAKER

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHARLES FRIED

Solicitor General

RICHARD K, WILLARD

WM. BRABFORD REYNOLDS

Assistant Attorneys General

DONALD B. AYER

Deputy Solicitor General

JAMES M. SPEARS

MICHAEL CARVIN

Deputy Assistant Attorneys General

GLEN D. NAGER

Assistant to the Solicitor General

DAVID K. FLYNN

E. ROY HAWKENS

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether a plaintiff car state a cause of action

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seqg., based on alleged disparate impact resulting

from a subjective promotion practice or procedure.

2. Whether a plaintiff in a Title VII action establishes

that a promotion procedure is prima facie unlawful merely

by showing that the employer promotes from within in fill-

ing upper level positions requiring managerial ability and

other special skills and that a gross disparity exists between

the percentage of females occupying those upper level

positions and low-level positions in the employer’s work

force.

(I)

TABLE OF CONTENTS

Page

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Ea a a ee 2

ed cin adds whe ee eab xe sas au 2

SeenON Tr MrOMtifin UNE PEIMION ..... 2. cece cane 7

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A I ae ae ee a oer 48a

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 .......... BZ, 87,

18, 24

Arizona Governing Committee v. Norris, 463 U.S. 1073 . 28

Atonio v. Wards Cove Packing Co., 768 F.2d 1120 ...... 10, 17

I Oe OE oa vie a cc eck eden sesacs 10

Bazemore v. Friday, No. 85-93 (July 1, 1986) ........... 23

Burrus v. United Tel. Co., 683 F.2d 339, cert. denied, 459

a AONE SS I A 14

Coates v. Johnson & Johnson Co., 756 F.2d 524........ 9

Caen W. Oe, oe 0).c. SOO... ccc wee ee aese 12, 16

Contreras v. City of Los Angeles, 656 F.2d 1267, cert.

is as dae a6 40.0 de oe bn secs 19

Euoeere ¥. ewngon, 433 U.S. S21... we cess eee

24, 25, 26

EEOC v. Chesapeake & O. Ry., 577 F.2d 229 ........... 21

EEOC vy. Federal Reserve Bank, 698 F.2d 633, rev’d sub

nom. Cooper v. Federal Reserve Bank, 467 U.S. 867 .. 9

EEOC v. Radiator Specialty Co., 610 F.2d 178 ......... 21

EEOC vy. Rath Packing Co., 787 F.2d 318, petition for

ce cs K ens bas redes tens 10

Pe CE, MT 00S, ON ko eee cee sceeas 18

Furnco Construction Corp. v. Waters, 438 U.S. 567 ..... 13, 14,

18, 19

General Electric Co. v. Gilbert, 429 U.S. 125 ........... 12

(III)

IV

Cases — Continued: Page

Gilbert v. City of Little Rock, 722 F.2d 1390, cert. denied,

ee Se EI ke ee nS ee” 10

CRPEIe Ws GIy Fe ue BOO os cack catacciateacs 9, 16

Griggs v. Duke Power Co., 401 U.S. 424 ......... 11, 12, 13, 24

Harris v. Ford Motor Co., 651 F.2d 609 ............... 10

Hazelwood School Dist. v. United States, 433 U.S. 299 .. 13,

15, 25

Hung Ping Wang v. Hoffman, 694 F.2d 1146............ 10

Latino Unidos v. Secretary of HUD, 41 Fair Empl. Prac.

SEE gas Cn ees Ne eh 9

Los Angeles Dep’t of Water & Power v. Manhart, 435

SAS os Oe oS GAs ia pee Oe eee eee 28

Mayor v. Educational Equality League, 415 U.S. 605 ... 25

McDonald v. Santa Fe Trail Transportation Co., 427 U.S.

BE cede crt rea. fae eh FO 18

McDonnell Douglas Corp. v. Green, 411 U.S.792....... 13, 14,

15, 16, 17, 20

Metrocare vy. Washington Metropolitan Area Transit

PE ES eae coved oi wie keke ai, 255

Mortensen v. Callaway, 672 F.2d 822 ................. 10

Nashville Gas Co. v. Satty, 434 U.S. 136............... 12

New York City Transit Authority v. Beazer, 440 U.S.

Miers cee ke eee oe 12, 23, 24, 25, 26

O’Brien v. Sky Chefs, Inc., G70 F.2d 864 ............... 15

Page v. United States Industries, Inc., 726 F.2d 1038 .... 9

Pegues v. Mississippi State Employment Serv., 699 F.2d

700, Cort. Gemind, 4660S. OP... ck cae ncee 9

Pouncy v. Prudential Insurance Co. of America, 668 F.2d

NN Kose eh see yao, COM th Waa aed ee eA 9, 16

Regner v. City of Chicago, 789 F.2d 534............... 9

Rivera v. City of Wichita Falls, 665 F.2d 531 ........... 21, 24,

25, 26

Robinson v. Polaroid Corp., 732 F.2d 1010 ............ 9

Rossini v. Ogilvy & Mather, Inc., “40. 85-7776 (2d Cir.

We I, Md oS na an er ec Sa ye) Se 8

Rowe v. Cleveland Pneumatic Co. Numerical Control,

I oa ali ake ae re gaetes bs ak eae y

Segar v. Smith, 738 F.2d 1249, cert. denied, 471 U.S.

WEE os Sali anaes ahd a hee ea Oe eo kL ao Y

Sheet Metal Workers v. EEOC, No. 84-1656 (July 2,

LA Geary valva gh as oe see anne ee cae ee a, 18

Stastny v. Southern Bell Telephone & Telegraph Co.,

ef | a aie Aaieby re pt A gn Moneta re: oe y

Cases — Continued: Page

Ste. Marie v. Eastern R.R. Ass’n, 650 F.2d 395 ......... 21

Steelworkers v. Weber, 443 U.S. 193 .........6 5. eee eee 18

Stewart v. General Motors Corp., 542 F.2d 445, cert.

dead, G55 05D, GO ook civ soba ce nee ea hese ewes 9

Talley v. United States Postal Service, 720 F.2d 505, cert.

dented. G66 UES. DRE 65. a. i5 bance eidasnatencs seeks 10

Taylor v. Teletype Corp., 648 F.2d 1129, cert. denied,

tts Seren rar rrr ret yer ry ters a tay 10

Teamsters v. United States, 431 U.S. 324 ............4.4. 13, 14,

15, 16, 20, 21, 23

Texas Dep’t of Community Affairs v. Burcine, 450 U.S.

ins dbcla WARS Lex EDERAL Ra 18

Zahorik v. Cornell University, 729 F.2d 85 ...........-. 44 92

Statutes and regulations:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq.:

PTR ER Same ree err i rr 2

Peg ip toe 0 | rrr rrr 11

Py ein Coe rrr ere rere ry res 28

Pe gih foe ree Peer rs 2

20: FB. Pe CE ek x oie oo hak eee eee eee 19

29 C.F.R.:

Gartinds. CT OR. . kde ini ance aenae sa seneeaas 19

i hg od x 5s ee RAO COREL 23

Cis SMD. 5s <a 0 kia 0 oak RE ee ee 20

Goctians DONT IED 6 oc oc vce 050 US Roes ene eno 17, 20

Gots HOGTWD vos cs occa vcccicas dead ees sea tece 20

Miscellaneous:

Blumrosen, Strangers In Paradise: Griggs v. Duke Power

Co. And The Concept of Employment Discrimination,

Th tilich:, %. Bee FRUGGTEe eo ve iki cease anes 11

110 Cong. Rec. 11848 (1964) .. 0.2.66... eee eee eee ee eee 19

Cooper & Sobol, Seniority and Testing Under Fair Em-

ployment Laws: A General Approach To Objective

Criteria of Hiring and Promotion, 82 Harv. L. Rev.

R90G CAI onc ines Ldap ne OCs oes hed eee 11

Vi

Miscellaneous — Continued: Page

45 FOG. Rag. FEsees Sees CIMT oc ccc cncccusecscsces 20

44 Fed. Reg. 11196, 12001-12002 (1979) ............... 20

Gwartney, Asher, Haworth & Haworth, Statistics, the

Law, and Title VII: An Economist’s View, 54 Notre

SOS LA re Ce v0.0 6 ah Ka eee dee ee ek 17

H.R. Rep. 914, 88th Cong., Ist Sess. Pt. 2 (1963) ....... 18

3 A. Larson & L. Larson, Employment Discrimination

(UID vn.c.dctc eee edaesecis chk ae 14, 15, 17

Lerner, Employment Discrimination: Adverse Impact,

Validity, and Equality, 1979 Sup. Ct. Rev. 17 ........ 17

Maltz, Title VII and Upper Level Employment—A Re-

sponse to Professor Bartholet, 77 Nw. U.L. Rev. 776

GHUUD 6 0 c.canévenbkehiduy eb $name beer eeeL 18

B. Schlei & P. Grossman, Employment Discrimination

LAW URE OB, TOMES 60's och acseeendescs sen neeer 8, 21, 23

S. Rep. 91-1137, 91st Cong., 2d Sess. (1970) ............ 11

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No.

PRESTON R. TISCH, IN HIS CAPACITY AS

POSTMASTER GENERAL OF THE UNITED STATES

POSTAL SERVICE, PETITIONER

v.

DARLENE SHIDAKER

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Solicitor General, on behalf of Preston R. Tisch, in

his capacity as Postmaster General of the United States

Postal Service, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Seventh Circuit in this case.

OPINIONS BELOW

The order of the United States Court of Appeals for the

Seventh Circuit denying rehearing en banc (App., infra,

48a-49a) is unpublished. The prior panel opinion of the

court of appeals (App., infra, la-14a) is unpublished to

date. The opinion of the United States District Court for

the Northern District of Illinois (App., infra, 15a-47a) is

published at 593 F. Supp. 823.

JURISDICTION

The judgment of the court of appeals (App., infra,

la-14a) was entered on January 29, 1986. A petition for

rehearing was denied on May 1, 1986. On July 23, 1986,

Justice O’Connor extended the time for filing a petition

(1)

2

for a writ of certiorari to and including September 28,

1986. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTES INVOLVED

42 U.S.C. 2000e-2(a) 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; or

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

ployees or applicants for employment in any way

which would deprive or tend to deprive any in-

dividual of employment opportunities or other-

wise adversely affect his status as an employee,

because of such individual’s race, color, religion,

sex, Or national origin.

42 U.S.C. 2000e-16(a) provides in pertinent part:

All personnel actions affecting employees or ap-

plicants for employment * * * in the United States

Postal Service * * * shall be made free from any

discrimination based on race, color, religion, sex, or

national origin.

STATEMENT

1. Respondent, Darlene Shidaker, served as acting

postmaster and then as postmaster of a small post office in

Kenilworth, Illinois from 1962 through 1982. During this

time, she was in pay scale level-18. In 1977, the Postal

Service advertised vacancies for three pay scale level-22

postmaster positions in other, larger post offices in

illinois. Respondent applied for all three positions. App.,

infra, 16a-19a.

Pursuant to its regulations, the Postal Service convened

a Screening Board to assess all applicants for the three

vacancies. The Screening Board reviewed each applicant’s

work experience, educational background, performance

appraisals, capacity for growth, and potential in manage-

ment problem solving, employee development and rela-

tions, budget operations, work supervision, and public

and community relations. The Screening Board then

eliminated applicants lacking minimal qualifications,

ranked the qualified candidates by tallying point scores

assigned them by each of the Board members, and for-

warded the names of the seven highest ranked applicants

for each vacancy to a regional selection manager. That

manager added the candidates on the Screening Board’s

list to a list of Postal Service employees who, by regula-

tion, had an absolute right to be considered for the vacan-

cies. From the combined list, the manager recommended

five to seven candidates for each vacancy to a Regional

Management Selection Board. The Regional Management

Selection Board interviewed and evaluated each of these

candidates and then recommend a single person for each

vacancy to the Postmaster General. The Postmaster

General made the final appointments. App., infra,

19a-24a.

Respondent was the only female to apply for each of the

three postmaster vacancies. She competed with 31 other

applicants for two of those vacancies, and with 27 other

applicants as to the third. The Screening Board found

several instances of prior mismanagement in respondent’s

personnel history! and determined, based on her com-

' Two members of the Screening Board had “first-hand knowledge

of the conditions of the post office run by [respondent]. [Mr.] Wright,

as a postal inspector, had investigated an instance of poor

4

posite personnel profile, that she was not among the top

seven applicants for any of the available jobs.? According-

ly, respondent was not further considered by the Postal

Service for the vacant positions and did not receive a pro-

motion. Respondent, however, believed that the Postal

Service did not promote her because of her sex and, after

exhausting her administrative remedies, filed this Title VII

action in the United States District Court for the Northern

District of Illinois. App., infra, 19a-24a.

2. The district court conducted a full trial concerning

respondent’s claims (App., infra, 16a). Respondent pro-

duced evidence showing that the Postal Service had a

policy of promoting from within and that an arguably

significant disparity existed between the percentage of

females occupying low-level and high-level positions in the

Postal Service’s work force (App., infra, 19a, 24a-25a).?

The Postal Service responded with evidence explaining its

security in connection with the issuance of money orders and he

described [respondent’s] management as sloppy. [Mr.] Wright * * *

told the Screening Board that Christmas mail deliveries were two or

three days late. [Mr.] Besteda also told the Screening Board that the

Kenilworth post office was not well managed” (App., infra, 21a).

2 The Screening Board ranked respondent thirteenth out of the 16

applicants that it deemed minimally qualified for the Glenview,

Illinois postmaster position (App., infra, 21a). It ranked respondent

sixteenth out of the 17 applicants that it deemed minimally qualified

for the Palatine, Illinois postmaster position (/d. at 21a-22a). And the

Screening Board ranked respondent fifteenth out of the 17 applicants

that it deemed minimally qualified for the Franklin Park, Illinois

postmaster position (id. at 22a).

> Specifically, respondent introduced evidence showing that (App.,

infra, 36a-37a):

In November, 1974, women held 20.8% of the positions in the

Postal Service workforce. The percentage had moved to 23.5%

by November 1980. Nationally, women held 11.5% of the posi-

tions at PES-15 and above in January, 1980.

In 1978, the year of [respondent’s] failed promotion, women oc-

cupied 23 of the 108 postmaster positions in the North Suburban

promotion procedures, the special skills and training that

postmasters must have, the fact that postmasters (in-

cluding respondent) have in the past been promoted both

from within and without the Postal Service work force,

and the reasons that respondent was not promoted to any

of the three vacancies (App., infra, 16a, 19a-24a,

38a-43a). The Postal Service also argued that, since she

had not identified a facially neutral selection device which

had injured her, respondent had not raised a legally

cognizable disparate impact claim (Tr. 24-26, 427-430,

447-449). Respondent countered that the Postal Service’s

“whole promotion procedure” produced the “disparate im-

pact” (id. at 454). After hearing all of the evidence and the

parties’ arguments concerning it, the district court con-

cluded that the Postal Service had not discriminated

against respondent in its promotion decisions — under

either a “disparate treatment” or a “disparate impact”

theory (App., infra, 33a-43a).4

With regard to the “disparate treatment” issue, the court

found that “[respondent] has not proved, by a pre-

ponderance of the evidence, that the Postal Service

MSC, or 21.2% of the total postmaster positions. However, none

of the women postmasters were rated higher than PES-20 and 15

of them were at level PES-15 or lower. Additionally in 1977-1978

a total of 2,008 women were employed in the North Suburban

MSC, 29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5% [of those

filling positions of PES-19 or higher] were rated in positions of

PES-19 or higher.

* The district court also rejected respondent’s claim that the Postal

Service had retaliated against her in 1982—by reducing her in

grade —for initially raising her Title VII claim in 1978 (App., in/ra,

43a-47a). The court held that the Postal Service had demoted her for

“misfeasance and malfeasance and not in retaliation for * * * her civil

rights claim” (/d. at 46a-47a). The court of appeals affirmed (App.,

infra, 8a-14a). The retaliation claim has no bearing on the issues

raised by this petition and, accordingly, we discuss it no further.

6

failed to promote her because she was a woman” (App.,

infra, 43a). The court said that the Postal Service had a

“legitimate, nondiscriminatory business reason” for not

promoting respondent —i/.e., that the three candidates ac-

tually promoted were either more qualifed or had higher

composite Screening Board ratings than did respondent

(id. at 38a, 41a). Finally, it found that “the procedure used

by the Postal Service to initially select candidates for pro-

motion was permissible and without overt indicia of

discrimination” (id. at 42a).

With regard to the “disparate impact” issue, the court

held that respondent had raised a legally cognizable

discriminatory impact claim even though “the system at-

tacked includes both objective and subjective parts”

(App., infra, 35a). But the court also concluded that,

where “management jobs which demand skills and train-

ing possessed by relatively few individuals” are in issue (id.

at 37a), statistics showing a disparity—even a gross

disparity — between the percentage of females in the lower

and higher work force levels are not by themselves suffi-

cient to establish discriminatory disparate impact (/bid.).

Since respondent had not introduced evidence concerning

the dates on which females had entered the Postal Service’s

work force, the number of females who had actually ap-

plied for promotions, the distribution of females by pay

scale levels in the workforce, or the number of females

who qualified for promotion, the court found her evidence

of disparate impact wanting and granted judgment to the

Postal Service on the disparate impact claim as well

(ibid.).

3. The court of appeals affirmed in part, reversed in

part, and remanded for further proceedings (App., infra,

la-14). The court agreed with the district court that re-

spondent had not supported her allegations of disparate

treatment (id. at 14a). However, the court allowed re-

spondent to proceed on a disparate impact theory and

disagreed with the district court’s conclusion that respond-

ent had failed to support her disparate impact claim.>

“Once [respondent] proved that the Postal Service pro-

motes from within and introduced statistical evidence

showing that there is a gross disparity between the percent-

age of women occupying lower level positions and upper

level positions, she made a sufficient prima facie showing

of discriminatory impact” (id. at 5a). Accordingly, the

court remanded the case to the district court to allow the

Postal Service to bring forward evidence “that few women

occupying lower level positions have applied for upper

level positions or are qualified for upper level positions, or

to bring forward evidence of the job relatedness of its pro-

motion standards” (id. at 7a).

REASONS FOR GRANTING THE PETITION

This case presents two questions of continuing impor-

tance in the administration of Title VII: First, whether a

Title VII plaintiff can state a cause of action based on an

alleged disparate impact arising from a subject“decision-

making process,® and, second, whether a Title VII plain-

* The court of appeals did not explicitly address in its opinion

whether respondent’s challenge to the Postal Service’s subjective,

multi-component promotion procedure presents a legally cognizable

disparate impact claim. But the Postal Service fully briefed the issue as

an alternative ground for affirming the district court’s judgment. See

Brief for the Defendant-Appellee at 14-17 (filed May 3, 1985); see also

Appellee’s Petition for Rehearing and Suggestion for Rehearing En

Banc at 8-13 (filed Mar. 13, 1986). Thus, the Postal Service clearly

raised the issue to the court below and, in deciding that respondent has

in fact established a prima facie case of disparate impact, the court

necessarily decided it.

* By “subjective decisionmaking process,” we mean a decision-

making process that is not exclusively comprised of “quantifiable or

objectively verifiable selection criteria which *** [can be]

mechanically applied * * *” (Zahorik v. Cornell University, 729 F.2d

85, 9S (2d Cir. 1984)). We discuss this definitional issue more fully

(page 15, & n.15 infra).

8

tiff establishes a prima facie disparate impact claim when

she shows that her employer promotes from within in fill-

ing upper level positions requiring managerial ability and

other special skills and that a gross disparity exists between

the percentage of females occupying those upper level

positions and the lower level positions in the employer’s

work force. We submit that both questions warrant this

Court’s review.

1. As tothe first question, the Postal Service argued to

both the district court and the court of appeals that re-

spondent had not raised a legally cognizable disparate im-

pact claim since she did not identify an objective, facially

neutral practice or procedure that served dispropor-

tionately to limit, segregate, or classify female employees.

Respondent countered that it is permissible for her to at-

tack the Postal Service’s decisionmaking process as a

whole, notwithstanding its subjective character. The

district court agreed with respondent, holding that

“discriminatory impact analysis may be applied here,

though the [multi-component] procedure which is

challenged consists of subjective parts” (App., infra, 35a).

The court of appeals affirmed. The decision of the court

of appeals here conflicts with the decisions of other courts

of appeals and represents an incorrect and unworkable ap-

plication of the disparate impact doctrine.

a. There is much confusion among the courts of appeals

concerning whether a Title VII plaintiff can maintain a

disparate impact cause of action without first identifying

an objective employment practice or procedure that causes

an alleged adverse impact. See generally B. Schlei & P.

Grossman, Employment Discrimination Law 1288 (2d ed.

1983). The Second and Fourth Circuits have held that dis-

parate impact analysis does not apply in challenges to sub-

jective decisionmaking processes. See, e.g., Rossini v.

Ogilvy & Mather, Inc., No. 85-7776 (2d Cir. Aug. 14,

1986), slip op.; EEOC v. Federal Reserve Bank, 698 F.2d

“

9

633, 638-639 (4th Cir. 1983), rev’d on other grounds sub

nom. Cooper v. Federal Reserve Bank, 467 U.S. 867

(1984); Stastny v. Southern Bell Telephone & Telegraph

Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980). The First Cir-

cuit has expressed grave concerns about the theory’s appli-

cability to subjective decisionmaking processes. See, e.g.,

Latino Unidos v. Secretary of HUD, 41 Fair Empl. Prac.

Cas. (BNA) 839, 848 (Ist Cir. 1986); Robinson v. Polaroid

Corp., 732 F.2d 1010, 1015 (1st Cir. 1984). By contrast,

the Sixth, Eleventh, and District of Columbia Circuits

have held that a disparate impact claim is cognizable even

though an objective, facially neutral, employment practice

has not been identified. See, e.g., Rowe v. Cleveland

Pneumatic Co. Numerical Control, 690 F.2d 88, 93 (6th

Cir. 1982); Griffin v. Carlin, 755 F.2d 1516, 1524-1525

(11th Cir. 1985); Segar v. Smith, 738 F.2d 1249, 1270-1272,

1288 n.4 (D.C. Cir. 1984), cert. denied, 471 U.S. 1115

(1985). The Courts of Appeals for the Fifth,’ Seventh,®

’? Compare Pouncy v. Prudential Insurance Co. of America, 668

F.2d 795, 800-801 (Sth Cir. 1982) (disparate impact analysis does not

apply to subjective, mixed-component employment decisions), and

Pegues v. Mississippi State Employment Serv. , 699 F.2d 760, 765 (Sth

Cir.), cert. denied, 464 U.S. 991 (1983) (same), with Page v. United

States Industries, Inc., 726 F.2d 1038, 1045-1046 (Sth Cir. 1984)

(assessing lawfulness of a “subjective promotional system” under both

disparate treatment and disparate impact analysis).

®’ Compare Coates v. Johnson & Johnson Co., 756 F.2d 524,

530-531 n.4 (7th Cir. 1985) (no disparate impact claim where no

“facially neutral” rules identified), with Stewart v. General Motors

Corp., 542 F.2d 445, 450-451 (7th Cir. 1976), cert. denied, 433 U.S.

919 (1977) (“highly subjective and loosely structured” promotion prac-

tices subject to disparate impact theory), and Regner v. City of

Chicago, 789 F.2d 534, 539 (7th Cir. 1986) (same).

10

Eight,’ Ninth, '° and Tenth'! Circuits have found the issue

so perplexing that panels within those circuits have

reached conflicting answers.'? This Court’s intervention is

needed to resolve the conflicts and to settle the confusion

that presently exists among the courts of appeals.

b. On the merits, we submit that the court of appeals

erred in allowing respondent to challenge the Postal Serv-

ice’s subjective, multi-component promotion procedure on

a disparate impact theory. The court’s holding on this

issue is inconsistent with the decisions of this Court.

% Compare Taylor v. Teletype Corp., 648 F.2d 1129, 1132-1133 n.6

(8th Cir.), cert. denied, 454 U.S. 969 (1981) (disparate impact theory

not available to challenge subjective decisionmaking process), Harris

v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir. 1981) (same), and

Talley v. United States Postal Service, 720 F.2d 508, 507 (8th Cir.

1983), cert. denied, 466 U.S. 952 (1984) (same), with Gilbert v. City of

Little Rock, 722 F.2d 1390, 1397-1398 (8th Cir. 1983), cert. denied,

466 U.S. 972 (1984) (allowing plaintiff to use disparate impact theory

without identifying an objective, neutral employment practice), and

EEOC v. Rath Packing Co., 787 F.2d 318, 328 (8th Cir. 1986), peti-

tion for cert. pending, No. 86-67 (same).

'© Compare Atonio v. Wards Cove Packing Co., 768 F.2d 1120,

1131-1133 (9th Cir. 1985) (petition for rehearing en banc granted) (re-

jecting disparate impact challenge to subjective hiring procedures),

with Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1148 (9th Cir.

1982) (applying disparate impact challenge to the absence of an objec-

tive promotion standard).

'! Compare Mortensen v. Callaway, 672 F.2d 822, 824 (10th Cir.

1982) (plaintiff could not assert disparate impact claim since “she

ha[d] not pointed to any employment practice that, neutral on its face,

has caused women not to be promoted”), with Bauer v. Bailar, 647

F.2d 1037, 1043 (10th Cir. 1981) (applying disparate impact to subjec-

tive hiring and promotion decisions).

'2 To our knowledge, the Third Circuit has not yet addressed the

issue.

11

By enacting Title VII, Congress in 1964 made clear that

employers could no longer intentionally select among ap-

plicants and employees on the basis of race, sex, or other

criteria listed in the statute (42 U.S.C. 2000e-2(a)(1)). Less

clear, however, was whether employers could, in good

faith and without intent to discriminate, continue to use

standardized tests and other mechanical selection devices.

See S. Rep. 91-1137, 91st Cong., 2d Sess. 4 (1970). For a

number of reasons, employers often prefer to use objec-

tive rather than subjective selection procedures: Standard-

ized selection devices are less expensive to administer; they

produce consistent and comparable results; and, by

depriving personnel officers of discretionary authority,

they help ensure that Title VIi’s commands are obeyed by

those with the greatest opportunity to abuse them. See

Cooper & Sobol, Seniority and Testing Under Fair

Employment Laws: A General Approach To Objective

Criteria Of Hiring And Promotion, 82 Harv. L. Rev.

1598, 1637-1638 (1969). Because, however, it is difficult

and expensive to fine-tune such objective devices so that

they measure only qualities necessary to specific jobs,

employers sometimes use tests and other specific qualifica-

tions that overstate what is necessary for competent per-

formance and that, because of the lingering effects of

society’s past discrimination, may disproportionately ex-

clude members of minority groups from various employ-

ment Opportunities. See id. at 1638-1649; see generally

Blumrosen, Strangers In Paradise: Griggs v. Duke Power

Co. And The Concept of Employment Discrimination, 7}

Mich. L. Rev. 59, 66-75 (1972).

It is against this background that the Court, in Griggs v.

Duke Power Co., 401 U.S. 424 (1971), first approved the

use Of disparate impact theory to establish unlawful

employment discrimination. In Griggs, the Court held that

“practices, procedures, or tests neutral on their face, and

even neutral in terms of intent, cannot be maintained if

12

they operate to ‘freeze’ the status quo of prior dis-

criminatory employment practices” (401 U.S. at 430). The

Court determined that Congress had “required * * * the

removal of artificial, arbitrary, and unnecessary barriers

to employment” (id. at 431) and, in the Court’s view,

“employment procedures or testing mechanisms that

operate as ‘built-in headwinds’ for minority groups and are

unrelated to measuring job capability” constitute such ar-

tificial barriers (id. at 432). Thus, while the Court con-

cluded that “[nJothing in the Act precludes the use of

testing or measuring procedures” (id. at 436), it also deter-

mined that “Congress has forbidden * * * giving these

devices and mechanisms controlling force unless they are

demonstrably a reasonable measure of job performance”

(ibid.) (emphasis added). Rather, the Court held, “Con-

gress has commanded * * * that any tests used must

measure the person for the job and not the person in the

abstract” (ibid.).

Thus, in approving use of the disparate impact theory,

the Griggs Court was responding to the special exclu-

sionary problems associated with the use of objective

selection devices —“practices, procedures or tests neutral

on their face.” This focus on the problems caused by ob-

jective selective devices reappears in the Court’s subse-

quent disparate impact cases, each of which has involved

an objective, facially neutral employment practice. See,

e.g., Albemarle Paper Co. v. Moody, 422 U.S. 495 (1975)

(written tests); General Electric Co. v. Gilbert, 429 U.S.

125 (1976) (exclusion from disability plan due to pregnan-

cy); Dothard v. Rawlinson, 433 U.S. 321 (1977) (height

and weight requirements); Nashville Gas Co. v. Satty, 434

U.S. 136 (1977) (rule denying accumulated seniority to

employees returning to work after pregnancy); New York

City Transit Authority v. Beazer, 440 U.S. 568 (1979)

(anti-narcotics rule); Connecticut v. Teal, 457 U.S. 440

(1982) (written examination).

13

In contrast, where subjective selection devices have been

in issue, and thus where the unique exclusionary problems

associated with objective selection devices are not present,

the Court has instead required plaintiffs to prove

discriminatory motivation. See, e.g., Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978) (subjective hiring

practice); Hazelwood School Dist. v. United States, 433

U.S. 299 (1977) (same); Teamsters v. United States, 431

U.S. 324 (1977) (same); McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) (subjective refusal to rehire).

Indeed, the Court has twice indicated that the reasoning of

Griggs does not apply in cases where plaintiffs are

challenging subjective decisionmaking processes.

Most specifically, in Furnco Construction Corp. v.

Waters, the Court expressly contrasted the selection device

in issue—an employer’s subjective hiring practices — with

“employment tests * * * or particularized requirements

such as the height and weight specifications * * * ” (438

U.S. at 575 n. 7). The Court determined that these subjec-

tive hiring practices should be assessed under the disparate

treatment, and not under the disparate impact, framework

(id. at S575 & n.7).'3

More generally, in McDonnell Douglas Corp. v. Green,

411 U.S. at 805-807, the Court contrasted a subjective

decision to dismiss an employee for misconduct with the

type of objective decisionmaking processes at issue in

Griggs. The Court noted that Griggs (411 U.S. at 806 (cita-

tion omitted)):

* * * dealt with standardized testing devices which,

however neutral on their face, operated to exclude

many blacks who were capable of performing effec-

'3 Justice Marshall dissented “from the Court’s apparent decision

* * * to foreclose on remand further litigation on the Griggs question

of whether [the employer’s] hiring practices had a disparate impact”

(438 U.S. at 583) (Marshall, J., concurring in part and dissenting in

part).

14

tively in the desired positions. Griggs was rightly con-

cerned that childhood deficiencies in * * * education

and background of minority citizens, resulting from

forces beyond their control, not be allowed to work a

cumulative and invidious burden on such citizens for

the remainder of their lives. Respondent, however,

appears in different clothing. * * * [His employer]

does not seek his exclusion on the basis of a testing

device which overstates what is necessary for compe-

tent performance, or through some sweeping dis-

qualification * * *. [His employer] assertedly rejected

[him] for unlawful conduct * * * and * * * this can-

not be thought the kind of “artificial, arbitrary, and

unnecessary barriers to employment” which the Court

found to be the intention of Congress to remove.

Thus, the Court in McDonnell Douglas vacated a lower

court decision that had apparently applied the Griggs re-

quirement of “job-relatedness” to the reasons given to

justify a subjective dismissal decision (411 U.S. at

805-806).

The holdings in Furnco and McDonnell Douglas “derive

from the basic distinction * * * between disparate impact

and disparate treatment litigation” (3 A. Larson & L.

Larson, Employment Discrimination § 76.34, at 15-87

(1984)). Disparate impact litigation challenges “facially

neutral” selection procedures —/.e., employment practices

that are mechanical in nature and that limit, segregate, or

classify independently of operator bias. See Teamsters v.

United States, 431 U.S. at 335-336 n.15. Disparate treat-

ment litigation challenges “judgmental” selection—/.e.,

the use or application of non-mechanical, operator-

dependent procedures or criterion. See McDonnell

Douglas Corp. v. Green, 411 U.S. at 802-806; Teamsters

v. United States, 431 U.S. at 335-336 n. 15; Burrus v.

United Tel. Co., 683 F.2d 339 (10th Cir.), cert. denied,

459 U.S. 1071 (1982); O’Brien v. Sky Chefs, Inc., 670 F.2d

|

15

864 (9th Cir. 1982). When an employer’s decisionmaking

process is in part discretionary, “there is simply no

‘neutral’ factor involved. * * * [WJhat is going on is an ad

hoc decision process in which a subjective judgment is

being made about an individual” (3 A. Larson & L. Lar-

son, supra, at 15-87 to 15-88; see also id. at 15-91 to

15-98). Accordingly, such subjective decisionmaking proc-

esses are rightly assessed only for their operator’s motiva-

tion—the sine qua non of a disparate treatment case.'4

In suggesting that disparate impact theory is applicable

only to objective (and not to subjective) decisionmaking

processes, we do not imply that the line between subjective

and objective decisionmaking processes — and thus the line

between cases subject to disparate impact and disparate

treatment analysis—is always obvious. We _ suggest,

however, that the distinction turns on whether the deci-

- sionmaking process involves “quantifiable or objectively

verifiable selection criteria which are mechanically applied

* * * ” (Zahorik v. Cornell University, 729 F.2d 85, 95 (2d

Cir. 1984); see also McDonnell Douglas Corp. v. Green,

411 U.S. at 806 & n.21), and we believe that courts can

reasonably make this determination. Here, of course, the

district court did precisely that and found the process in

issue to be partially subjective. See App., infra, 35a-36a.'>

'4 Of course, a plaintiff can still use statistical evidence to prove

discriminatory motivation. See Hazelwood School Dist. v. United

States, 433 U.S. 299, 306-313 (1977); Teamsters v. United States, 431

U.S. at 335-336 n.15, 339-340 n.20.

'S Because we suggest that only quantifiable or objectively

verifiable decisionmaking processes are subject to disparate impact

theory, we agree with Professor Larson that selection processes which

include both objective and subjective components must be considered

non-quantifiadie or verifiable, and thus subjective. See 3 A. Larson &

L. Larson, supra, at 15-91 to 15-98. In this case, the district court

held, thai the Postal Service’s promotion procedure is precisely such a

}

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16

Allowing plaintiffs to proceed on a disparate impact

theory against such decisionmaking processes, which are

neither quantifiable or objectively verifiable, would have

consequences incompatible with the policies underlying

Title VII itself. Those consequences result from the dif-

ferent defenses legally available to employers in disparate

treatment and disparate impact cases. In a disparate treat-

ment case, after a plaintiff establishes an inference of

discriminatory intent (by use of the McDonnell Douglas

factors or by other circumstantial or statistical evidence),

the employer must offer evidence of a legitimate, non-

discriminatory reason for the actions it has taken. See

Teamsters v. United States, 431 U.S. at 342; McDonnell

Douglas Corp. v. Green, 411 U.S. at 802. Having weighed

alternatives and exercised judgment, the employer is re-

quired to articulate the reasons it had for the actions it

took, and in that way is given the chance to refute the in-

ference that an improper discriminatory motive was at

work.

mixed component system. See App., infra, 35a-36a. Accordingly, we

believe that the courts below erred in allowing respondent to proceed

on a disparate impact theory.

Of course, even where a mixed-component selection process is in-

volved, a plaintiff can challenge an objective component of that proc-

ess for its own disparate impact. See Connecticut v. Teal, 457 U.S. 440

(1982). However, since respondent has not made any such allegation

in this case, the decisions below cannot be defended on that basis.

Finally, we note that this petition does not address the permissibility

of a plaintiff pursuing a disparate impact claim directed at the bottom

line results of a multi-step, but completely objective, decisionmaking

process. Compare Pouncy v. Prudential Insurance Co. of America,

668 F.2d at 200-801 (suggesting that disparate impact theory never ap-

plies to any multi-component systems, even if completely objective),

with Griffin v. Carlin, 755 F.2d at 1525 (suggesting that disparate im-

pact theory always applies to all multi-component systems). That issue

is not raised by the facts of this case, which involve the Postal Service’s

mixed-component promotion procedure.

17

By contrast, in a disparate impact case, after a plaintiff

establishes a statistically significant disparity in the treat-

ment of majority and minority workers, the employer

must “validate” the device that cause the disparity —/.e.,

show by rigorous empirical proof that the selection device

accurately assesses necessary job criteria. See A/bemarle

Paper Co. v. Moody, 422 U.S. at 425-436. While this is an

extremely expensive and time-consuming process,'® writ-

ten examinations, height and weight requirements, and

other objective personnel selection devices arguably can be

validated in this fashion. The same cannot be said of sub-

jective selection processes: They are not susceptible to

such rigorous validation and, practically speaking, may

not be susceptible to validation at all. See McDonnell

Douglas Corp. v. Green, 411 U.S. at 802, 806 n.21;3 A.

Larson & L. Larson, supra, at 15-85 to 15-86; see also 29

C.F.R. 1607.6B(1). Thus, employers are inherently less

able to show that a subjective decisionmaking process is

justified by business necessity and, if plaintiffs are allowed

to challenge subjective decisionmaking processes on a

disparate impact theory, will have “little choice * * * but

to engage in * * * subjective quota system[s] of employ-

ment selection.” Albemarle Paper Co. v. Moody, 422 U.S.

at 449 (Blackmun, J., concurring in the judgment); see

also Atonio v. Wards Cove Packing Co., 768 F.2d 1120,

1133 (9th Cir. 1985) (“Were the facial-neutrality threshold

to disappear or be ignored, * * * [rjather than being an ir-

relevant factor as envisoned, race (or sex, etc.) could then

become an overriding factor in employment decisions.”).

'© Lerner, Employment Discrimination: Adverse Impact, Validity,

and Equality, 1979 Sup. Ct. Rev. 17, 18 n.6; Gwartney, Asher,

Haworth & Haworth, Statistics, the Law, and Title VII: An

Economist’s View, 54 Notre Dame Law. 633, 643 (1979).

18

“This, of course, [would be] far from the intent of Title

VII” (Albemarle Paper Co. v. Moody, 422 U.S. at 449)

(Blackmun, J., concurring in the judgment). Title VII

does “not require employers or labor unions to use racial

quotas or to grant preferential treatment to racial

minorities in order to avoid being charged with unlawful

discrimination” (Sheet Metal Workers v. EEOC, No.

84-1656 (July 2, 1986), slip op. 27). To the contrary, it

prohibits them from doing so. See McDonald v. Santa Fe

Trail Transportation Co., 427 U.S. 273 (1976);

Firefighters v. Stotts, 467 U.S. 561, 589 n.4 (1984)

(O’Connor, J., concurring).

To be sure, in some circumstances, employers might

avoid this dilemma by replacing their subjective decision-

making processes with completely objective ones. But, for

many employment decisions, especially decisions involv-

ing professional positions or managerial positions of the

type that respondent sought here, objective criteria do not

exist and cannot reasonably be derived. See Maltz, Title

VII and Upper Level Employment—A Response to Pro-

fessor Bartholet, 77 Nw. U. L. Rev. 776, 787-788 (1983).

Moreover, the “statute was not intended to ‘diminish tradi-

tional management prerogatives’ ” (Texas Dep’t of Com-

munity Affairs v. Burdine, 450 U.S. 248, 259 (1981)

(quoting Steelworkers v. Weber, 443 U.S. 193, 207

(1979)), or to “impose a duty to adopt * * * procedure[s]

that maximize[] [selection] of minority employees”

(Furnco Construction Corp. v. Waters, 438 U.S. at

577-578) . The legislative history of Title VII demonstrates

that Congress intended that “ ‘management prerogatives,

and union freedoms * * * be left undisturbed to the

greatest extent possible.’ ” Steelworkers v. Weber, 443 U.S.

at 206 (quoting H.R. Rep. 914, 88th Cong., Ist Sess. Pt. 2,

at 29 (1963)). Congress simply did not intend to discourage

employers from experimenting and using innovative per-

sonnel selection methods, or to require employers to use

only objective selection devices. See Contreras v. City of

19

Los Angeles, 656 F. 2d 1267, 1278 (9th Cir. 1981), cert.

denied, 455 U.S. 1021 (1982); 110 Cong. Rec. 11848 (1964)

(remarks of Senator Humphrey) (Title VII does not “per-

mit the Government to control the internal affairs of

employers * * * ”). Congress required only that em-

ployers’ subjective decisions not be intentionatiy dis-

criminatory. See Furnco Constrction Corp. v. Waters, 438

U.S. at 575, 577-578.

Significantly, in addition to her disparate impact claim,

respondent raised a disparate treatment claim on which

both the district court and the court of appeals found for

the Postal Service. The district court expressly found that

“the procedure used by the Postal Service to initially select

candidates for promotion consideration was permissible

and without overt indicia of discrimination” (App. infra,

42a). The court also found that the Postal Service had a

“legitimate, nondiscriminatory reason” for not promoting

respondent (id. at 4la). The court of appeals affirmed

these findings. See App., infra, 14a. We submit that any

additional inquiry into such promotion procedures will

undermine the delicate accommodation of policies that

Title VII makes.'’ The contrary resolution of this issue by

the court of appeals warrants review by this Court.

'7 Though the Equal Employment Opportunity Commission’s

Uniform Guidelines on Employee Selection Procedures (1978), 29

C.F.R. Pt. 1607, contain directives which point in different directions,

those Guidelines are not inconsistent with the position taken here. The

Guidelines provide that the “use of any selection procedure which has

an adverse impact on * * * employment * * * opportunities of

members of any race, sex, or ethnic group will be considered

discriminatory * * * unless * * * the procedure has been validated

*** or the provisions of section 6 [of the Guideline] * * * are

satisfied” (29 C.F.R. 1607.3A) (emphasis added). A “selection pro-

cedure” is defined to include “[aJny measure, combination of

measures, Or procedure used as a basis for any employment decision{s}

* * * includ{ing] the full range of assessment techniques from tradi-

tional paper and pencil tests * * * through informal or casual inter-

views and unscored application forms” (29 C.F.R. 1607.16Q).

20

2. Assuming, arguendo, that the Postal Service’s sub-

jective promotion procedure can be challenged under the

disparate impact theory, we further ask that the Court

determine whether respondent’s statistics were sufficient

to establish that that procedure has a prima facie

discriminatory impact. The district court. held those

Statistics to be patently inadequate. It held that, where

“management jobs which demand skills and training

possessed by relatively few individuals” are in issue,

statistics reflecting the selection rate rather than data

relating only to some imbalance in the workforce are re-

quired to establish such a prima facie case (App., in/ra,

37a). The court of appeals reversed, holding that, “[o]nce

[respondent] proved that the Postal Service promotes

from within and introduced statistical evidence showing

that there is a gross disparity between the percentage of

women occupying lower level positions and upper level

Section 6 of the Guidelines goes on to state, however,that “[t}here are

circumstances in which a user cannot or need not utilize the validation

techniques contemplated by these guidelines” (29 C.F.R. 1607.6B (em-

phasis added)), that such “circumstances” include the use of “informal

or unscored selection procedure[s]” (Section 1607.6 B(1)), and that,

where such informal or unscored selection procedures are involved,

the user need only “justify continued use of the procedure[{s] in accord

with Federal law” (ibid.). See generally 43 Fed. Reg. 38290, 38291 &

n.17 (1978); 44 Fed. Reg. 11196, 12001-12002 (1979).

While the Guidelines do not expressly so state, we believe that an

employer justifies “continued use of the procedure in accord with

Federal law” by setting forth legitimate, nondiscriminatory reasons

for maintaining the selection procedure and for applying it in par-

ticular cases, as is required in disparate treatment cases. See Teamsters

v. United States, 431 U.S. at 342; McDonnell Douglas Corp. v. Green,

411 U.S. at 802. Otherwise, the Guidelines would leave the employer

with no possible defense to a showing that its subjective decision-

making process has an adverse impact and, as the inclusion of Section

6 indicates, the Guidelines clearly do not contemplate placing the

employer in such a dilemma.

positions, she made a sufficient prima facie showing of

discriminatory impact” (id. at Sa). This holding of the

court of appeals is worthy of this Court’s review.

a. Thecourt of appeals’ holding is substantially incon-

sistent with the decisions of at least four other circuit

courts dealing with the use of statistical proof in employ-

ment discrimination cases.'® In situations involving pro-

motion or selection for higher level positions requiring

special skills or abilities, the courts of appeals for the Sec-

ond, Fourth, Fifth, and District of Columbia Circuits

have all held that a plaintiff cannot establish a prima facie

case merely by showing that the employer promotes from

within and that there is an imbalance between minority

representation in the higher and lower levels of the

employer’s workforce. See Ste. Marie v. Eastern R.R.

Ass’n, 650 F.2d 395, 400-401 (2d Cir. 1981); EEOC v.

Radiator Specialty Co., 610 F.2d 178, 184-186 (4th Cir.

1979); EEOC v. Chesapeake & O. Ry., 577 F.2d 229, 233

(4th Cir. 1978); Rivera v. City of Wichita Falls, 665 F.2d

531, 546 (Sth Cir. 1982); Metrocare v. Washington

Metropolitan Area Transit Auth., 679 F.2d 922, 930 (D.C.

Cir. 1982). Rather, in such cases, the courts have held

that, to support an inference that minority employees have

been selected at a substantially disproportionate rate, a

'® The cases we cite include disparate treatment as well as disparate

impact cases. In citing disparate treatment cases, we are not unmind-

ful that the plaintiff in a disparate treatment case carries the added

burden of proving discriminatory intent. See Teamsters v. United

States, 431 U.S. at 335-336 n.15. However, where statistics are in-

volved, both disparate treatment and disparate impact challenges to

promotion procedures must, as a threshold requirement, present data

sufficient to give rise to an inference of a substantially dispropor-

tionate rate of selection. See B. Schlei & P. Grossman, supra, at

1286-1289, 1331-1346. Accordingly, disparate treatment cases poin-

ting out the insufficiencies of plaintiffs’ prima facie statistical proofs

are highly probative of the issue at hand.

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22

Title VII plaintiff must offer evidence from which conclu-

sions can reasonably be drawn about the results produced

by the selection process. That is, the plaintiff must present

evidence about the actual selections during the relevant

time period and, in appropriate circumstances, evidence

about the qualifications of those in the work force, the ex-

pressed interests of those minority persons in advancing to

the positions in question, and/or, the actual group of can-

didates considered for promogon. Because respondent’s

statistical data says nothing about actual selections made,

and does not account for any of these other critical

variables, it cannot suppori any inference of a dispropor-

tionate selection rate (as the district court held). We

therefore ask this Court to intervene and clarify the

thresholds that a Title VII plaintiff’s statistics must satisfy

in order to establish a prima facie case of adverse selec-

tion.

b. On the merits, we submit that the court of appeals

erred in finding that respondent’s quite limited statistical

evidence, relating to the proportion of women in various

parts of the Postal Service’s work force, was sufficient to

establish a prima facie case.

Respondent demonstrated, and the district court found,

that women occupied approximately one-fifth of both the

overall Postal Service work force '? and the postmaster

positions in the North Suburban MSC in 1978, the year of

the challenged decisions. See App., infra, 5a n.1. Re-

spondent also showed that none of the female postmasters

were rated higher than pay scale level-20 and that 15 of the

23 female postmasters were at pay scale level-15 or below

(ibid.). Finally, respondent demonstrated that, while the

Postal Service has positions of unspecified description in

'9 The statistics showed that between 1974 and 1980 the represen-

tation of women in the Postal Service work force changed from 20.8%

to 23.5%.

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23

the North Suburban MSC ranging as high as pay scale

level-27, only five percent of the women in that work force

were rated in pay scale levels-19 or higher (ibid.). These

statistics are not probative of adverse selection.

“Statistics * * * come in infinite variety and, like any

other evidence, * * * their usefulness depends on all of the

surrounding facts and circumstances” (7eamsters v.

United States, 431 U.S. at 340). When properly con-

structed, statistics can aid in determining whether employ-

ment actions have resulted from discrimination or from

legitimate, nondiscriminatory employinent requirements

(id. at 339-340). But, like other circumstantial evidence,

statistics must meet certain thresholds of sufficiency if

they are to be probative of discrimination. See ibid.,

Bazemore v. Friday, No. 85-93 (July 1, 1986), slip op.

12-13 & n.10; see generally B. Schlei & P. Grossman,

supra, at 1331-1346. Specifically, as noted in Dothard v.

Rawlinson, 433 U.S. 321 (1977), the plaintiff's proof must

create an inference that the “standards in question select

applicants * * * in a significantly discriminatory pattern”

(id. at 329) (emphasis added); see also 29 C.F.R. 1607.4

(EEOC Guidelines emphasizing that proof of disparate

impact must focus on selection rates).

In New York City Transit Authority v. Beazer, 440 U.S.

568 (1979), the Court discussed deficiencies in statistical

proof that prevent the drawing of any inference about the

rate of selection. In Beazer, the plaintiffs challenged a

public employer’s policy against hiring persons on

methadone maintenance. They claimed that the policy had

a discriminatory disparate impact on blacks and Hispanics

and, in that regard, introduced statistics showing that 63

to 65% of the persons in New York receiving methadone

maintenance in public programs were black and Hispanic.

But the Court found the plaintiffs’ evidence too unrefined

to be helpful (440 U.S. at 585):

We do not know * * * how many of these persons ever

worked for or sought to work for [this employer].

Thfese] statistic[s] revea[l] little if anything

24

about the racial composition of the class of [this

employer’s} employees receiving methadone treat-

ment. More particularly, it tells us nothing about the

class of otherwise-qualified applicants and employees

* * * improperly excluded [from] the * * * analysis.

440 U.S. at 585-586. Thus, while the Court did not have to

decide whether the plaintiffs’ statistics actually established

a prima facie case of disparate impact (because the

employer showed that the challenged policy was job-

related) (id. at 587), the Court emphasized that the plain-

tiffs’ demonstration of the challenged policy’s effect on

applicants was “[a]t best * * * weak” (ibid.), and con-

cluded that, “when the entire record is examined[,] it is

clear that the two statistics on which [the plaintiffs] and

the district court relied [did] not prove a violation of Title

VII” (id. at 584).

Like Griggs, Albemarle, and Dothard before it, Beazer

teaches that, to establish a prima facie case of disparate

impact, the plaintiff must create an inference that the

selection procedure “select[s] applicants for hire or promo-

tion in a racial [or gender] pattern significantly different

from that of the pool of applicants” (A/bemarle Paper Co.

v. Moody, 422 U.S. at 425) or, in appropriate cir-

cumstances, in a pattern different from that of the general

work force as a whole. See New York City Transit

Authority v. Beazer, 440 U.S. at 584-587; see also

Albemarle Paper Co. v. Moody, 422 U.S. at 425; Griggs v.

Duke Power Co., 401 U.S. at 429-430; Dothard v. Rawlin-

son, 433 U.S. at 329. Statistics merely showing a disparity

between levels of a work force will not do so. They show

nothing about how many people were promoted or who

among those promoted were male or female (or black or

white). See New York City Transit Authority v. Beazer,

440 U.S. at 585-586; Rivera v. City of Wichita Falls, 665

F.2d at 546-547. Nor do such statistics address in any way

whether members of the minority group were interested in,

or considered for, the jobs in question. See New York City

25

Transit Authority v. Beazer, 440 U.S. at 585-586. And

they do not indicate what skills or training members of the

identified labor pools have or can easily acquire. See

Metrocare v. Washington Metropolitan Area Transit

Auth., 679 F.2d at 930; cf. Mayor v. Educational Equality

League, 415 U.S. 605, 619-621 (1974). Accordingly, both

this Court and the courts of appeals have held that, where

statistics do not expressly reflect or reasonably approx-

imate the rates at which employees are selected, they do

not establish an inference that the procedure has adversely

selected minority employees. See, e.g., New York City

Transit Authority v. Beazer, 440 U.S. at 585-587;

Hazelwood Schooi Dist. v. United States, 433 U.S. at 308

n.13; Mayor v. Educational Equality League, 415 U.S. at

620-621; Rivera v. City of Wichita Falls, 665 F.2d at

546-547; Metrocare v. Washington Metropolitan Area

Transit Auth., 679 F.2d at 930.?°

20 In Dothard, this Court accepted plaintiffs’ “generalized national

Statistics” as a proxy for the potential applicant pool available to the

employer. See Dothard v. Rawlinson, 433 U.S. at 330. But, in using

these general availability figures, the Court still recognized that the

ultimate question was whether the selection process in issue had a

disproportionate exclusionary effect on women as compared to men.

See id. at 329-330 & n.12. The Court did not simply inquire whether

there were fewer women in the work force than in the general popula-

tion.

Moreover, the Dothard Court was only willing to use such

generalized statistics because “there was no reason tc suppose that

physical height and weight characteristics of Alabama men and

women differ markedly from those of the national population” (433

U.S. at 330), and because “[t]he application process itself might not

[have] adequately reflect[ed] the actual potential applicant pool, since

otherwise qualified people might [have] be[en] discouraged from ap-

plying because of a self-recognized inability to meet the very standards

challenged as being discriminatory” (ibid.). The Dothard Court’s use

of such generalized data, therefore, does not excuse respondent, in a

case involving promotions to management or higher level positions,

from her ordinary burden of accounting for qualifications of potential

26

Here, of course, respondent made no effort to account

for any of the variables that this Court has indicated can

be used to establish an inference of disparate selection

rate. She presented no evidence about the relative numbers

of men and women who have actually been promoted. She

made no effort to account for the flow of applicants into

and within the Postal Service’s work force. She did not

show the time period over which the disparity in minority

representation had developed, or how women are dis-

tributed in the various pay scale levels. And, though the

Postal Service “demonstrated that the persons selected to

fill the vacancies were required to have high levels of

management skills” (App., infra, 4la; see also id. at

35a-37a), and that numerous applicants were deemed lack-

ing even the minimum qualifications necessary for promo-

tion (id. at 20a), respondent presented no evidence about

the qualifications of women in the lower levels of the work

force. She showed only that the Postal Service has a policy

of promoting from within and that an arguably gross dis-

parity exists between the percentage of females occupying

the low-level and high-level positions in the Postal

Service’s work force. Such proof sheds no light on the

operation or exclusionary effects of the challenged promo-

tion procedure and, accordingly, is insufficient to

establish any inference of an adverse selection rate.

Moreover, the Postal Service, by cross-examination and

rebuttal, argued that respondent’s statistics had no pro-

bative value whatsoever. It showed that, in each of the

three promotions that respondent challenged, only one of

approximately 30 applicants was female (and, thus, that

applicants, actual applicant flow data, or at least actual selection

rates. See New York City Transit Authority v. Beazer, 440 U.S. at

584-587; Dothard v. Rawlinson, 433 U.S. at 348-349 (opinion of

White, J.) (arguing that plaintiff did not establish that all members of

labor pool used were interested in job in issue); Rivera v. City of

Wichita Falls, 655 F.2d at 546-547; Metrocare v. Washington

Metropolitan Area Transit Auth., 679 F.2d at 930.

27

females may not regularly seek promotion); that the

Postal Service has in the past hired postmasters from out-

side of its own work force; that women have only recently

begun to enter the Postal Service’s work force in large

numbers (and that this recent entrance may account for

the high percentage of females in the lower levels); that

pay scale level-22 jobs require unique management skills;

and that the Postal Service denied respondent a promotion

because other, more highly-skilled, employees were

available. On the basis of this full evidentiary record, the

district court held that respondent’s statistics did not

establish that the Postal Service had selected employees at

a discriminatory rate. This finding is supported by the

evidence and should have disposed of the case.

In remanding the case with instructions that the Postal

Service can rebut respondent’s statistics only with

“evidence of a low percentage of female applicants for

upper level jobs or evidence of the lack of qualifications of

women in lower level positions” (App., infra, 7a-8a.), the

court of appeals has apparently dismissed out of hand the

Postal Service’s cross-examination and rebuttal testimony

and held instead that gross statistical imbalances can be

refuted only with applicant flow or qualifications data.

This approach requires the Postal Service to bear the

burden and expense of actually proving that its procedure

does not have a disparate impact, rather than simply pro-

ducing evidence to dispel any inference created by re-

spondent’s meager proof. In doing so, the court of appeals

has reversed traditional burdens of proof in a way that will

unnecessarily delay the resolution of legitimate Title VII

suits, complicate and impede the prompt evaluation and

disposition of frivolous Title VII claims, and further none

of the policies that Title VII seeks to promote.?! This

Court’s review is warranted.

2! That the district court found respondent to be less qualified than

those actually promoted underscores the incorrectness of the court of

28

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

WM. BRADFORD REYNOLDS

Assistant Attorneys General

DONALD B. AYER

Deputy Solicitor General

JAMES M. SPEARS

MICHAEL CARVIN

Deputy Assistant Attorneys General

GLEN D. NAGER

Assistant to the Solicitor General

DAVID K. FLYNN

E. ROY HAWKENS

Attorneys

SEPTEMBER 1986

appeals’ remand. It is axiomatic that Title VII limits “make-whole

relief to those employees who would have received the contested

benefit “but for” their sex (or race). See Los Angeles Dep’t of Water &

Power v. Manhart, 435 US. 702, 711 (1978); see also Arizona Govern-

ing Committee v. Norris, 463 U.S. 1073, 1080 (1983). Thus, the

district court has no authority to order any relief for respondent, since

she was refused “* * * advancement * * * for [a] reason other than

discrimination on account of * * * sex * * *.” 42 U.S.C. 2000e-5(g).

The court of appeals’ remand serves no readily apparent purpose.

”

i acaencntnerieeiaseaeadaiiemmaiiaiaiiimaeiaiiiiieaiiaiiadl

APPENDIX A

In the

Gnited States Court of Appeals

FOR THE SEVENTH CIRCUIT

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT

V.

PAUL N. CARLIN, IN HIS CAPACITY AS POSTMASTER GENERAL

(UNITED STATES POSTAL SERVICE)

DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

[Jan. 29, 1986}

Before CUMMINGS, Chief Judge, and BAUER and

FLAuUM, Circuit Judges.

BAUER, Circuit Judge. This is an appeal by Darlene

Shidaker from an adverse judgment entered below in

favor of Paul N. Carlin in his capacity as Postmaster

General of the United States Postal Service. Shidaker, a

postal employee, claims that the Postal Service denied her

a promotion because she is a woman and then demoted her

for challenging that promotion denial as discriminatory.

We reverse and remand for further consideration the

district court’s finding that Shidaker’s promotion denial

was not discriminatory. We affirm, however, the district

court’s finding that Shidaker’s demotion was not

retaliatory.

(1a)

LT

2a

Shidaker was Acting Postmaster and then Postmaster of

Kenilworth, Illinois from 1962 through 1982. In this posi-

tion she was in pay scale category PES-18.

In 1977 Shidaker applied for vacant postmaster posi-

tions at Glenview, Palatine, and Franklin Park, Illinois.

These positions were PES-22 positions. Ninety-two postal

employees (the Postal Service follows a policy of pro-

moting from within) applied for the vacant postmaster

positions. Shidaker was the only female applicant.

Shidaker was not promoted to any of the positions. The

lower court found that two of the men who were promoted

were better qualified than Shidaker and that the other pro-

motee was as qualified as Shidaker.

In 1978 Shidaker filed an Equal Employment Opportuni-

ty (“EEO”) complaint alleging that she was denied promo-

tion to the PES-22 postmaster positions on the basis of sex.

In 1980 an Equal Employment Opportunity Commission

Complaint Examiner held a hearing on Shidaker’s com-

plaint. In September 1982 the Complaint Examiner issued a

decision on the complaint finding that Shidaker was denied

promotion on the basis of sex. In October 1982 the Postal

Service’s Regional Director for Employment and Labor

Relations Central Region notified Shidaker that the Postal

Service was rejecting the Examiner’s decision.

On February 8, 1982 Shidaker received a “Proposed

Notice of Reduction in Grade” from her immediate super-

visor, Frank J. Santoro. Santoro’s notice proposed that

Shidaker be reduced from Postmaster, Kenilworth,

PES-18, to distribution clerk, PES-5, because of alleged

official misconduct. The notice informed Shidaker that

she had the right under Postal Service regulations to

answer the charges in the notice. The notice told her to

direct her response to Santoro’s superior, Richard

Koenigs, District Manager of the Northern Illinois

District, the »fficial who would initially decide whether

the demotion would occur.

iain cedeaicenineeeaaseniaiaeaaiae tena aiial

3a

Shidaker responded to Santoro’s notice in two ways: she

sent a letter to Koenigs answering the charges, and she

filed a second EEO complaint. This complaint alleged that

the proposed reduction in grade was in retaliation for her

filing the first complaint challenging the promotion

denial.

After Shidaker had answered Santoro’s charges in her

letter to Koenigs, Santoro wrote Koenigs a personal letter.

In his letter Santoro responded to Shidaker’s answers,

alleged an additional ground for demoting Shidaker, and

urged Koenigs to approve Shidaker’s reduction in grade

“for the good of the Service.” Shidaker was unaware of

this letter until after Koenigs approved her demotion.

Shidaker was eventually demoted to distribution clerk,

PES-5. Shidaker filed an administrative appeal with the

Postal Service from this reduction in grade and was ac-

corded a full de novo hearing before a hearing officer ap-

pointed to examine the merits of her appeal. Shidaker was

given a chance to respond to all charges and evidence in-

cluding Santoro’s letter to Koenigs. After the hearing, the

Postal Service informed Shidaker by letter that the charges

against her were supported by the evidence and that the

demotion was warranted.

Shidaker sued the Postal Service in the United States

District Court for the Northern District of Illinois, Eastern

Division. Her complaint is in two counts. Count I alleges

discriminatory failure to promote under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 and 39

U.S.C. § 409. Count II seeks review of Shidaker’s ad-

ministrative appeal of her demotion.

The district court made findings adverse to Shidaker on

both counts and entered judgment accordingly. As regards

Count I, the district court found that Shidaker failed to

establish a prima facie case of discriminatory impact. The

court found that Shidaker did make a prima facie showing

of disparate treatment, but also found that the Postal

Service demonstrated legitimate nondiscriminatory

reasons for not promoting Shidaker that were not pretex-

_—

4a

tual. Shidaker’s discrimination count was thus found to be

without merit. As regards Count II, the district court

found that there was substantial evidence to support the

Postal Service’s finding that Shidaker was demoted for

misconduct and poor performance and not in retaliation

for challenging her promotion denial. The court also

found that the Postal Service’s administrative review of

Shidaker’s appeal was in adequate compliance with its own

procedural regulations. This appeal followed.

Shidaker makes two main arguments on appeal, one

charging error in the trial court’s treatment of her

discrimination claim and the other charging error in its

treatment of her retaliation claim. First, Shidaker argues

that the district court erroneously found that she failed to

make a prima facie showing of discriminatory impact. She

argues that when an employer follows the policy of pro-

moting from within (that is, fills high level positions with

lower level employees rather than bringing in “laterals”), a

plaintiff need only show statistical evidence of an im-

balance between the percentage of a minority occupying

high level positions and the percentage of that minority oc-

cupying lower level positions in order to make a prima

facie case of discriminatory impact. Second, Shidaker

claims that Santoro’s letter to Koenigs was an ex parte

communication that violated the Postal Service’s

regulatory procedures and denied Shidaker due process of

law.

We agree with Shidaker that she made an adequate

prima facie showing of discriminatory impact. We

therefore reverse the district court’s findings and judgment

to the contrary, and remand Shidaker’s discriminatory im-

pact claim for further consideration. We affirm the

district court’s judgment in all other respects, however, in-

cluding its finding that despite Santoro’s letter to Koenigs

the Postal Service adequately complied with its own pro-

cedural regulations when demoting Shidaker.

Sa

A.

The district court incorrectly found that Shidaker failed

to make a prima facie showing of discriminatory impact.

Once Shidaker proved that the Postal Service promotes

from within and introduced statistical evidence showing

that there is a gross disparity between the percentage of

women occupying lower level positions and upper level

positions,' she made a sufficient prima facie showing of

discriminatory impact. She need not, as the district court

apparently thought, Shidaker v. Bolger, No. 82 C 5635,

mem. op. at pp. 26-27 (N.D. Ill. E.D. 1984), make a fur-

ther showing of the percentage of female applicants for

upper level positions or the percentage of lower level

female employees qualified for upper level positions.

To make a prima facie showing of discriminatory im-

pact Shidakei need only present evidence that the Postal

Service’s promotion practices, although facially neutral,

' The district court summarized Shidaker’s statistical evidence as

follows:

The statistics presented to the Court are as follows: In November,

1974, women held 20.8% of the positions in the Postal Service

workforce. The percentage had moved to 23.5% by November,

1980. Nationally, women held 11.5% of the positions at PES 1§

and above in January, 1980.

In 1978, the year of Shidaker’s failed promotion, women oc-

cupied 23 of the 108 postmaster positions in the North Suburban

MSC, or 21.1% of the total postmaster positions. However, none

of the women postmasters were rated higher than PES 20 and 15

of them were at level PES 15 or lower. Additionally in 1977-78 a

total of 2,008 women were employed in the North Suburban

MSC, 29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5% were

rated in positions of PES 19 or higher. Grossly, the disparities

could be significant.

Shidaker v. Bolger, No. 82 C 5635, mem. op. at 26 (N.D. Ill. E.D.

1984).

6a

select promotees “in a_ significantly discriminatory

pattern”. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

This evidence may be, and most often is, statistical in

nature. New York City Transit Authority v. Beazer, 440

U.S. 568, 584 (1979); Teamsters v. United States, 431 U.S.

324, 339-40 (1977). Only in very limited instances may a

court find discriminatory impact from non-statistical

evidence. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977);

Carpenter v. Board of Regents, 728 F.2d 911, 914 (7th Cir.

1984).

Gross disparity between the racial or gender composi-

tion of the relevant labor pool and the composition of the

group occupying the positions in question can, by itself,

make a prima facie case of disparate impact. Mozee v.

Jeffboat, 746 F.2d 365, 372 (7th Cir. 1984); Clark v.

Chrysler, 673 F.2d 921, 927 (7th Cir. 1982), cert. denied,

459 U.S. 873 (1982); Movement for Opportunity and

Equality v. General Motors, 622 F.2d 1235, 1244-45 (7th

Cir. 1980); See also, Hazelwood School District v. United

States, 433 U.S. 299 (1977). Where a company is shown to

promote from within, the relevant labor pool for upper

level positions is the group of employees from which pro-

motees will be drawn. Hazelwood, 433 U.S. at 308 n. 13;

Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir. 1984);

Movement for Opportunity and Equality v. General

Motors, 622 F.2d 1235, 1258 (7th Cir. 1980); Paxton v.

Union National Bank, 688 F.2d 552, 563-64 (8th Cir.

1982), cert. denied, 460 U.S. 1083 (1983); Fisher v. Procter

& Gamble Mfg., 613 F.2d 527, 544 (Sth Cir. 1980), cert.

denied, 449 U.S. 1115 (1981). Thus, where the plaintiff

can show that the employer promotes from within,

evidence of a gross disparity between the percentage of a

minority in upper and lower level positions is sufficient to

Ta

make a prima facie case of disparate impact. Mozee v.

Jeffboat, 746 F.2d 365, 372 (7th Cir. 1984); Segar v.

Smith, 738 F.2d 1249, 1276-77 (D.C. Cir. 1984), cert.

denied sub nom. Meese v. Segar, U.S. , 0 SA.

2357 (1985); Fisher v. Procter & Gamble Mfg., 613 F.2d

§27, 544 (Sth Cir. 1980).

Once a plaintiff makes a prima facie showing with

statistics of this nature, the burden shifts to the defendant

to rebut the inference of discrimination raised by these

statistics. Washington v. Davis, 426 U.S. 229, 241 (1976).

Defendants may rebut a statistical prima facie showing of

disparate impact with statistical evidence of their own that

is “more refined, accurate and valid”, Movement for Op-

portunity and Equality v. General Motors, 622 F.2d 1235,

1245 (7th Cir. 1980); Teamsters v. United States, 431 U.S.

324, 339-40 and 360 (1977), or by showing that the

challenged standards causing the discriminatory pattern

are job related. Washington v. Davis, 426 U.S. 229,

246-47 (1976); Griggs v. Duke Power, 401 U.S. 424, 431

(1971).

Thus, it is not up to Shidaker to proffer evidence of

lower level female employees’ qualifications or evidence of

the percentage of lower level female employees who ap-

plied for upper level positions. The burden is now on the

Postal Service to bring forward evidence that few women

occupying lower level positions have applied for upper

level positions or are qualified for upper level positions, or

to bring forward evidence of the job-relatedness of its pro-

motion standards.

We must, therefore, remand Shidaker’s discriminatory

impact claim for further consideration by the district

court. If the Postal Service can come forward with

evidence of a low percentage of female applicants for up-

per level jobs or evidence of the lack of qualifications of

8a

women in lower level positions, the Service might possibly

rebut the inference of discrimination that arises from

Shidaker’s prima facie statistical showing. The Service

might also be able to show the job-relatedness of its pro-

motion standards. These determinations are best left in the

discretion of the district court on remand, Soria v. Ozinga

Bros., 704 F.2d 990, 995 n.6 (7th Cir. 1983), and are not

properly before us for review.

B.

The district court correctly found that the demotion

procedure was in adequate compliance with Postal Service

regulations. We reject Shidaker’s claim that Santoro’s let-

ter to Koenigs was an ex parte communication that

“voided” the demotion decision.

Shidaker alleges that the demotion procedure violated

Postal Service regulations and thereby denied her due

process. Specifically, Shidaker claims that Santoro’s per-

sonal letter to Koenigs, sent after Shidaker responded to

Santoro’s notice of reduction in grade, was in violation of

§ 661.5 of the Postal Service’s Disciplinary, Grievance and

Appea! Procedures. That section provides that employees

are to have notice and a chance to respond to charges

against them when they are the subject of a proposed

adverse action. Shidaker claims that this section was

violated by Santoro’s letter because Santoro’s letter alleged

an additional ground for demoting Shidaker and Shidaker

was unaware of that letter until after Koenigs made the

decision to demote her. The Postal Service apparently con-

cedes that § 661.5 was violated here, and we, therefore,

assume that it was.

It is well-settled that an agency must abide by its own

regulations when discharging or disciplining an employee.

Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Service v.

Dulles, 354 U.S. 363, 389 (1957); Accardi v. Shaughnessy,

347 U.S. 260, 268 (1954). Every minor deviation from pro-

9a

cedural guidelines, however, does not amount to a denial

of procedural due process sufficient to vitiate the entire

administrative proceeding. Vermont Yankee Nuclear

Power Corp. v. Natural Resources Defense Council, 435

U.S. 519, 558 (1978); County of Del Norte v. United

States, 732 F.2d 1462, 1467 (9th Cir. 1984), cert. denied

sub nom. Assoc. of Cal. Water Agencies v. United States,

___ U.S. ___, 105 S.Ct. 958 (1985); Boylan v. United

States Postal Service, 704 F.2d 573, 577 (11th Cir. 1983),

cert. denied, ____ U.S. ___, 104 S.Ct. 1916 (1984); Doe

v. Hampton, 566 F.2d 265, 277 (D.C. Cir. 1977). The

question becomes one of determining the seriousness of

the error by looking to possible prejudice resulting from

such error. Vermont Yankee Nuclear Power, 435 U.S. at

558; United States v. Lovasco, 431 U.S. 793, 790 (1977);

Dozier v. United States, 473 F.2d 866, 868 (Sth Cir. 1973);

Wathen v. United States, 527 F.2d 1191, 1200 n.9 (Ct. Cl.

1975), cert. denied, 429 U.S. 821 (1976).

If the procedure is found substantially defective because

likely to prejudice the rights of individuals subjected to

that procedure, the substantive merits of Shidaker’s par-

ticular retaliation claim are irrelevant. Greene v. United

States, 376 U.S. 149, 161-62 (1964); Sullivan v. Dept. of

the Navy, 720 F.2d 1266, 1273-74 (Fed. Cir. 1983); Ryder

v. United States, 585 F.2d 482, 487-88 (Ct. Cl. 1978). We

are thus unconcerned with whether, absent the ex parte

communication from Santoro to Koenigs, Koenigs would

have reached the same decision to demote Shidaker. The

test is not whether the procedural defect caused actual pre-

judice to the rights of the party before the court. Greene v.

United States, 376 U.S. 149, 161-62 (1964); Simmons v.

United States, 348 U.S. 397, 405-06 (1955). The test is an

objective one, whether the particular procedural defect is

so substantial and so likely to cause prejudice that no

claimant can fairly be required to be subjected to adverse

action under such a flawed proceeding. United States v.

10a

Lovasco, 431 U.S. 783, 790 (1977); Vitarelli v. Seaton, 359

U.S. 535, 540-46 (1959); Sangamon Valley Television v.

United States, 269 F.2d 221, 224 (D.C. Cir. 1959).

Although we view this as a close case, we cannot say

that the letter from Santoro to Koenigs was such a serious

departure from Postal Service procedures that it vitiated

the entire process. Even though this was an ex parte com-

munication and in violation,of Postal Service regulations,

the defect was not so substantial that it would unfairly pre-

judice the rights of claimants reviewed under procedures

having this defect.

Certainly other cases have found that certain ex parte

communications from an adversary to a neutral ad-

ministrative decision-maker in the context of an employee

discharge or demotion were by themselves procedural

defects substantial enough to vitiate the entire ad-

ministrative proceeding. Sullivan v. Department of the

Navy, 720 F.2d 1266 (Fed. Cir. 1983); Ryder v. United

States, 585 F.2d 482 (Ct. Cl. 1978; Camero v. United

States, 375 F.2d 777 (Ct. Cl. 1967); Sangamon Valley

Television v. United States, 269 F.2d 221 (D.C. Cir. 1959).

We cannot, however, conclude from these cases, as

Shidaker argues, that every ex parte communication is suf-

ficient by itself to undermine the integrity of an ad-

ministrative proceeding. Many other cases have found ex

parte communications in administrative proceedings to be

harmless error. Pinar v. Dole, 747 F.2d 899, 906 (4th Cir.

1984), cert. denied, U.S.__, 105 S.Ct. 2019 (1985);

Chrysler Corp. v. Federal Trade Commission, 561 F.2d

357, 362 (D.C. Cir. 1977); Doe v. Hampton, 566 F.2d 265

(D.C. Cir. 1977); Korman y. United States, 462 F.2d 1382,

1388 (Ct. Cl. 1972); Salter v. United States, 412 F.2d 874

(Ct. Cl. 1969). Not every ex parte communication is a pro-

cedural defect so substantial and so likely to cause prej-

udice that it entitles the claimant to an entirely new ad-

ministrative proceeding.

lla

Several aspects of this ex parte communication convince

us that it is not such a substantial procedurai error that

Shidaker or other claimants subjected to such a defective

procedure are entitled to a new proceeding. First, the

degree of departure from regulatory guidelines was minor.

The regulations did not guarantee Shidaker that Santoro

would not respond to her answer. They simply gave her

the right to answer all charges and allegations made

against her before the demotion decision would be made.

Therefore, Santoro’s letter violated Postal Service pro-

cedures only to the extent that it alleged an additional

ground for demoting Shidaker. This it did in one sentence

stating that “[Shidaker’s] community relations also leave

much to be desired as evidenced by correspondence pre-

viously submitted to you.” Although the Postal Service ap-

parently admits that this single sentence was in violation of

regulations, we do not find that it amounts to the type of

extended, substantial, and adversarial ex parte com-

munication in blatant violation of known procedural

guidelines that has been found fatally defective in other

cases. Sullivan v. Department of the Navy, 720 F.2d 1266

(Fed. Cir. 1983) (supervisor, angered by employee’s filing

of grievance against him, instigated investigation by FBI

and Naval Investigative Service into employee’s work

habits, directed department head to recommend

employee’s removal on basis of evidence discovered in in-

vestigation, encouraged hearing officer by ex parte com-

munication to recommend employee’s removal, and en-

couraged reviewing officer by repeated ex parte phone

calls to finalize employee’s removal); Ryder v. United

States, 585 F.2d 482 (Ct. Cl. 1978) (supervisor, who had

recommended employee for discharge on grounds of inef-

ficiency, wrote a lengthy signed ex parte statement to the

officer who was reviewing the hearing examiner’s findings,

which statement the officer adopted in toto); Camero v.

United States, 375 F.2d 777 (Ct. Cl. 1967) (attorney, who

12a

represented agency at hearing reviewing agency’s discharge

of employee, engaged in on-going ex parte discussion of

case with officials who reviewed that hearing committee’s

recommendation); Brown y. United States, 377 F. Supp.

530 (N.D. Tex. 1974) (prosecutor for agency that dis-

charged employee flew with hearing officer to hearing,

discussed case with hearing officer on plane, stayed in

hearing officer’s hotel, and discussed case after hearing

with hearing officer in car on way back to airport).

Second, the “additional ground” alleged in Santoro’s let-

ter was “additional” to the charges in the “Proposed

Notice of Reduction in Grade” but was cumulative to

other information that Koenigs had already reviewed in

regard to Shidaker’s performance. Santoro’s letter itself

reveals that Shidaker’s poor community relations were

“evidenced by correspondence previously submitted.” We

thus view Santoro’s ex parte communication less harshly

since there is less concern with claimants being unaware of

evidence and charges against them when evidence is

cumulative to that already before the decision-maker. Doe

v. Hampton, 566 F.2d 265, 277 (D.C. Cir. 1977) (harmless

error where evidence, obtained in violation of regulations

and to which claimant had no chance to respond, was

cumulative); Dozier v. United States. 473 F.2d 866, 868

(Sth Cir. 1973) (same); Salter v. United States, 412 F.2d

874, 877-78 (Ct. Cl. 1969) (ex parte communication

harmless error where evidence submitted thereby is

cumulative).

Third, the minor procedural error of Santoro’s ex parte

communication was mitigated by Shidaker’s knowledge of

it, and chance to respond to it, in the full de novo hearing

at which Koenig’s decision was reviewed. We certainly

acknowledge that an ex parte communication can be so

prejudicial that it cannot be “cured” by subsequent review.

Sullivan, 720 F.2d at 1273; Ryder, 585 F.2d at 486-87.

Where the communication is already unlikely to do any

13a

harm, however, we are reluctant to require a reviewing

agency that discovers a minor procedural error to

reinstitute an entirely new proceeding rather than rectify

that error by giving the employee full opportunity to re-

spond to the new charges and evidence in the communica-

tion. Here, Shidaker knew of the existence and contents of

Santoro’s letter to Koenigs before the full de novo hearing

reviewing her demotion. She had full opportunity to re-

spond to the additional charge and present evidence to the

contrary. Whatever damage might possibly have been

done by the ex parte communication Shidaker had full op-

portunity to undo.

Finally, we are reluctant to apply a stringent procedural

standard in this particular case since we are not firmly con-

vinced that the regulations give Shidaker the right to have

Koenigs act as a neutral decision-maker. Shidaker was cer-

tainly entitled to have Koenigs consider her response to

charges against her. This, however, would be a sensible re-

quirement for any agency concerned with demoting only

those employees that deserve such adverse action. The

regulations can thus be interpreted in two ways: as allow-

ing Koenigs to act adversely to Shidaker in the interest of

the Postal Service, or as giving Shidaker the right to have

Koenigs act as a neutral decison-maker. Santoro clearly

was not required to act neutrally towards Shidaker while

the hearing examiner reviewing Koenigs’ decision clearly

was. The problem is that Koenigs’ function lies somewhere

in between these two roles of the Postal Service in the ad-

ministrative review process. Although we do not rest our

decision solely on this basis, Koenigs’ uncertain role as

neutral decision-maker makes us unwilling to apply the

high standard of procedural protection designed for ad-

judicatory proceedings.

l4a

We find Shidaker’s other bases for appeal to be com-

pletely without merit. The district court’s findings as to the

promotees’ qualifications were not undermined by the fact

that documents underlying the promotion committee’s

decision are now unavailable, and there is sufficient

evidence to find that Shidaker was demoted for miscon-

duct and poor performance and not in retaliation for

challenging her promotion denial as discriminatory.

The judgment of the district court finding that Shidaker

failed to make a prima facie showing of discriminatory im-

pact is reversed, and Shidaker’s disparate impact claim is

remanded for further consideration. On remand, Circuit

Rule 18 will not apply. The district court’s judgment in all

other respects is affirmed.

lSa

APPENDIX B

UNITED STATES DISTRICT COURT

N.D. ILLINOIS, E.D.

No. 82 C 5635

DARLENE SHIDAKER, PLAINTIFF

Vv.

WILLIAM BOLGER, IN HIS CAPACITY AS POSTMASTER

GENERAL (UNITED STATES POSTAL SERVICE),

DEFENDANT

[Aug. 23, 1984]

FINDING OF FACT—CONCLUSIONS

OF LAW AND ORDER

WILLIAM T. Hart, District Judge.

Plaintiff Darlene Shidaker (“Shidaker”) sued her

employer Wiliiam Bolger in his capacity as Postmaster

General of the United States Postal Service (“Postal Serv-

ice”). Count I alleges discriminatory failure to promote

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-16 and 39 U.S.C. § 409. Count II seeks review of

an administrative appeal of Shidaker’s reduction in grade

by the Postal Service. Plaintiff alleges that the reduction

was in retaliation for her attempt to vindicate the alleged

discriminatory failure to promote. Judicial review of the

entire administrative record of Shidaker’s reduction in

grade is limited to determining whether the Posial

Service’s ostensible reason for the grade reduction,

Shidaker’s alleged poor performance, is supported by

substantial evidence and was not arbitrary or capricious.

Coffman v. Bolger, 590 F.2d 1366 (Sth Cir. 1979); Alsbury

l6a

v. United States Postal Service, 530 F.2d 852 (9th Cir.),

cert. denied 429 U.S. 828 (1976); Oates v. United States

Postal Service, 444 F.Supp. 100 (S.D.N.Y.1978).

FINDINGS OF FACT

A hearing was held by the Court. Shidaker was not

called as a witness. Based on the final pretrial order, which

is incorporated by reference, and the testimony before the

Court, the Court finds the following facts, as of the rele-

vant times, many of which are adopted from the parties’

statement of uncontested facts:

(1) Shidaker, began her Postal Service career on

September 21, 1962, as Acting Postmaster of Kenilworth,

Illinois. She was converted to Postmaster, Kenilworth,

Illnois on May 8, 1964. This position was a PES-18.

(2) When Shidaker was appointed Acting Postmaster in

Kenilworth, Illinois, it was her first employment in any

capacity with the Postal Service or its predecessor Post Of-

fice Department, United States of America.

(3) Prior to her appointment at Kenilworth, Shidaker’s

employment experience was as follows:

1956-1958—Executive Secretary, “Business Week”

(McGraw-Hill), Chicago, Illinois, earning $350.00 per

month;

1958-1961 —Office work, Stivers Officer Service,

Chicago, Illinois, earning $4.00 per hour;

1961-1962—Office Manager, Jack Bullock &

Associates, Chicago, Illinois, earning $100.00 per week.

(4) The Kenilworth Post Office is an associate post of-

fice of the North Suburban Metropolitan Service Center

(“MSC”). The associate post offices employ approximate-

ly 5,000 employees, including postmasters and super-

visors. In 1977 there were 108 associate post offices within

the North Suburban MSC. Since 1977, one associate post

office has been eliminated, leaving 107.

ell alidlll

ay

17a

(5) Kenilworth is the smallest of the associate post of-

fices according to the number of city delivery routes and

rural delivery routes. It is a “Class C” post office, which

embraces the associate post offices with the smallest

delivery operations. In “Class C,” Kenilworth ranks with

the bottom six post offices by size of delivery operations:

Kenilworth —3 City delivery routes

Fox River Grove —3 City delivery routes

Genoa —3 City delivery routes

3 City delivery routes and 3

Marengo —rurai routes

Winfield —3 City delivery routes

Wihthrop Harbor —3 City delivery routes

(6) The Kenilworth post office is located in northern

Cook County, Illinois. It serves a village with a population

of 3,000. The area is not growing and contains only small

commercial establishments and no industrial firms. There

are three letter carrier routes. At the relevant time, the

authorized complement of employees was 11, including a

PES-18 postmaster, one supervisor and four part-time

employees. Revenue for fiscal year 1977 was $112,297. In

1978, the position of supervisor was eliminated and the

post office was downgraded to PES-15.

(7) On August 18, 1977, Shidaker applied for the va-

cant PES-22 level postmaster positions at Glenview,

Palatine, and Franklin Park, Illinois.

(8) Franklin Park is a medium size first class post of-

fice, located in the western section of Cook County serv-

ing a population of 35,000. The town contains small in-

dustrial and commercial firms, several large manufactur-

ing businesses as well as a switch-yard. There are 29 city

routes and four auxiliary routes. The authorized comple-

ment of employees is 89, which includes a PES-22 post-

master, seven supervisors and 16 part-time employees.

Revenue for fiscal year 1977 was $5,453,725 and operating

expenses were $1,674,781.

18a

(9) Palatine is a medium size first class post office

located in central Cook County in an area of rapid

residential and commercial growth. The office serves a

population of 70,000. There are 42 city routes, one rural

route and three auxiliary routes. The authorized comple-

ment of employees is 109, which includes a PES-22 post-

master and six supervisors. Revenue for fiscal year 1977

was $2,588,283 and operating expenses were $2,094,581.

(10) Glenview is a medium size first class post office

located in the northern part of Cook County in a area of

growing residential and commercial activity. The office

serves a population of 52,000. There are 45 city routes and

Six auxiliary routes. The authorized complement of

employees is 114, which includes a PES-22 postmaster and

seven supervisors. Revenue for fiscal year 1977 was

$3,648,185 and operating expenses were $2,121,720.

(11) Frank J. Santoro (“Santoro”) has been Manager of

the North Suburban MSC since August 14, 1976. Santoro

and his staff supervise the operation of all of the associate

post offices within the jurisdiction of the North Suburban

MSC. Santoro and his staff are ultimately responsible for

the efficient operation of the associate post offices, pro-

viding advice and supervision in such areas as mail proc-

essing, customer services, finance and employee and labor

relations. Santoro also is responsible for the efficient

operation of the North Suburban main mail facility which

employs approximately 3,000 employees, including San-

toro and his staff and the employees who sort the mail for

the associate post offices. Santoro is the immediate super-

visor of each associate postmaster.

(12) The North Suburban MSC is subordinate to the

Northern Illinois District Office, Oakbrook, Illinois. That

Office supervises several MSC’s in Northern Illinois. San-

toro’s immediate supervisor is the Manager, Northern

Illinois District. The current District Manager is Richard

Koenigs. His predecessor was William Booras (“Booras”).

19a

(13) The Northern Illinois District is subordinate to the

Regional Postmaster General (RPMG) for the Central

Region. The Central Region encompasses 13 states, in-

cluding Illinois. The RPMG and his staff are located in the

Main Post Office, 433 W. Van Buren Street, Chicago,

Illinois. The Postmaster General, Washington, D.C., is

the immediate supervisor of the (RPMG), Central Region

as well as the RPMGs for the Northeastern, Eastern,

Southern and Western Regions.

(14) During the relevant time period, the Postal Service

had an affirmative action program for women, sometimes

referred to as the “women’s program.”

(15) There were a total of 92 applicants for the

postmaster positions in Glenview, Palatine, and Franklin

Park, and Shidaker was the only female among them.

(16) The Postal Service has a policy of promoting from

within. Ordinarily promotions are made one step at a

time, e.g., from a PES-20 to 21.

(17) On November 3, 1977, a Postmaster Screening

Board, composed of W. Robert Sleep, Postmaster, North-

brook; Ralph Wright, Postmaster, Oak Park and former

postal inspector with jurisdiction over the Kenilworth post

office; Richard Skala, Director Customer Services North

Suburban MSC; and Walter L. Besteda, Director,

Employee and Labor Relations, North Suburban MSC,

met to review applications and screen candidates for the

positions of Postmaster, Glenview, Palatine, and Franklin

Park, Illinois. Besteda is black. No woman was on the

Screening Board.

(18) The Screening Board did not interview the appli-

cants. Each Screening Board member scored each appli-

cant individually, for each vacancy, and the results were

cumulated. In evaluating the applicants, including

Shidaker, the Board had available:

(a) the applicant’s “Personal History Summary’

which showed the applicant’s educational back-

ground, including Postal Service courses taken,

’

20a

Postal Service employment experience, non-Postal

Service employment experience, participation in civil,

fraternal and professional organizations, and awards;

(b) the applicant’s “Estimate of Potential” (PS

2577) prepared and submitted by the applicant’s im-

mediate supervisor. Form 2577 rates factors such as

“motivation,” “personal growth,” and “capacity to

learn.”

(c) the applicant’s “Analysis of LCaperience,

Background and Potential” which showed the appli-

cant’s experience and performance in such matters as

labor relations, Equal Employment Opportunity,

decision making (problem solving), budget opera- .

tions, employee development, supervision, supervi-

sion of branch operations, planning and scheduling

of work, safety and health, customer and community

relations and general observations;

(d) the applicant’s personnel file; and

(e) any relevant personal knowledge that the Board

members had concerning the applicant’s work per-

formance. The Screening Board also had available

data concerning the community, employee comple-

ment, number of carrier routes and dollar revenue of

each of the vacant post offices.

(19) During their meeting on November 3, 1977, the

Screening Board first evaluated the applicants to deter-

mine those who did not meet the minimal qualifications

for the three positions. These applicants were given no

consideration for the positions. Eleven male applicants,

fifteen male applicants and sixteen male applicants, were

not considered minimally qualifed for the postmaster posi-

tions in Franklin Park, Palatine, and Glenview, respec-

tively.

(2) The Screening Board next evaluated those ap-

plicants, including Shidaker, who were determined to be at

2la

least minimally qualifed for the positions. In evaluating

these applicants, each Screening Board member used the

following scoring system:

8-7: Outstanding Candidate

6-5: Very Good Candidate

4-3: Acceptable Candidate

When the scores were tallied, the highest score an appli-

cant could receive was thirty-two. The Screening Board

decided not to recommend further consideration of those

candidates who received less than twenty points.

(21) At each of the three post offices there were one or

more applicants who were automatically entitled to be in-

terviewed and considered for the vacant position. The

Screening Board did not evaluate these applicants.

(22) In connection with the review of Shidaker for pro-

motion, both Besteda and Wright testified to advising the

Screening Board of their first-hand knowledge of the con-

ditions of the post office run by her. Wright, as a postal

inspector, had investigated an instance of poor security in

connection with the issuance of money orders and he

described Shidaker’s management as sloppy. Wright stated

that he told the Screening Board that Christmas mail

deliveries were two or three days late. Besteda also told the

Screening Board that the Kenilworth post office was not

well managed.

(23) There were 32 applications for the Postmaster of

Glenview, and Shidaker was the only female. She received

a numerical rating of 13, which placed her in the thirteenth

position of 16 qualified applicants. The remaining 16 were

deemed unqualified and were not numerically rated. The

Screening Board recommended seven male applicants as

“qualified and able to assume the duties of the position” at

Glenview. Their scores ranged from 20 to 24.

(24) There were 32 applicants for Postmaster of

Palatine, and Shidaker was the only female. She received a

numerical rating of 11, which placed her in the sixteenth

22a

position of the 17 qualified applicants. The remaining 15

were deemed unqualified and were not numerically rated.

The Screening Board recommended seven male applicants

as “qualified and able to assume the duties of the position”

at Palatine. Their scores ranged from 20 to 24.

(25) There were 28 applicants for Postmaster of

Franklin Park, and Shidaker was the only female. She

received a numerical rating of 11 which placed her in the

fifteenth position of the 17 qualified applicants. The re-

maining 11 were deemed unqualified and were not

numerically rated. The Screening Board recommended

seven male applicants as “qualified and able to assume the

duties of the position” at Franklin Park. Their scores

ranged from 20 to 24.

(26) Plaintiff was not selected for any of the above va-

cant postmaster positions.

(27) By letters dated December 21, 1977, and January 4,

January 5 and March 21, 1978, Santoro sent his immediate

supervisor Booras the names of applicants eligible for con-

sideration for the vacancies. Some of the names submitted

to Booras were from the lists of applicants reeommended

by the Screening Board as “qualified and able to assume

the duties of the position.” The other names sent forward

by Santoro were applicants employed at Franklin Park,

Palatine and Glenview who had a right to automatic con-

sideration for the vacant positions in their respective of-

fices.

(28) The applicants designated in Santoro’s letters to

Booras were interviewed by the Regional Management

Selection Board (“RMSB”) of which Gilbert Brown,

Regional Postmaster Selection Officer, was the executive

secretary. The RMSB then recommended to the Post-

master General one applicant for consideration for each

vacancy on the basis of the applicant’s performance during

the interview and his qualifications reflected in the

materials, e.g. personal history summaries, and estimates

of potential.

23a

(29) The Postmaster General selected the following ap-

plicants to fill the positions:

a. Postmaster at Franklin Park:

Robert G. Boeckenhauer (“Boeckenhauer”)

Manager, Mail Processing (PES-21)

Des Plaines, Illinois

b. Postmaster at Palatine:

James A. Daily (“Daily”)

Postmaster (PES-20)

Bloomingdale, Illinois

c. Postmaster at Glenview:

William J. Soto (“Soto”)

Postmaster (PES-18)

Algonquin, Illinois

Soto’s name was not among those initially submitted by

Booras for consideration for the Glenview vacancy. He

had received only 19 points when he was evaluated by the

Screening Board. However, some of those candidates who

had earned 20 points and had been submitted for con-

sideration withdrew. Thereafter, Santoro added Soto’s

name to the list of applicants to be considered for Glen-

view.

(30) Boeckenhauer’s promotion was from a PES-21

position. He had 21 years of service and was serving in

grade 21 since March of 1973. The Des Plaines Post Office

is grade level PES-24. It serves a population of 105,000.

There are 83 regular and three auxiliary routes. The

authorized complement of employees is 232 including 14

Supervisors.

(31) Daily’s promotion was from PES-20. He had 12

years of service and was serving in grade 20 since August

of 1975 as postmaster of the Bloomingdale, Illinois 60108

post office. That post office serves a population of 11,500.

It is grade level PES-20. There are six regular and three

auxiliary routes. The authorized complement of

employees is 16 including one supervisor.

24a

(32) Soto’s promotion was from PES-18. He had 15

years of service and was serving in grade 18 since being ap-

pointed postmaster of Algonquin, Illinois in November of

1974. Algonquin, Illinois 60102 serves a population of

14,000. it is grade level PES-18. There are three regular

and one auxiliary routes. The authorized complement of

employees is 15 including one supervisor and five part-

time employees. Revenues for fiscal year 1977 were

$237,000 and operating expenses were $259,325. Soto’s en-

try level position with the Postal Service was at level four,

as a temporary carrier at Geneva, Illinois. He received six

promotions before being appointed postmaster at Algon-

quin.

(33) The selected candidates were all given positive

ratings by their immediate supervisors.

(34) During 1977 and 1978 the statistical breakdown by

gender of the Postal Service’s work force in the North

Suburban MSC was as follows:

PES Level M r YF

1-27 5,309 2,208 29.4

19-27 76 4 5.0

(35) According to data introduced by Shidaker in

November 1974, there were 20.8% women in the Postal

Service’s workforce nationally, including postmasters. In

the first quarter of 1980, the percentage was 23.51%. In

January of 1980, women held 11.5% of the national

Postal Service positions in PES levels 15 and above.

In 1978, women held 23 or 21.2% of the 108 postmaster

positions in the North Suburban MSC. None of them was

ranked higher than PES-20. The breakdown is:

PES-20—2

PES-18—4

PES-17—2

PES-15—5

PES-12—9

PES-03 — 1

Ee

25a

(36) No evidence of applicant flow was presented.

(37) On April 28, 1978, Shidaker filed an Equal

Employment Opportunity (“EEO”) complaint alleging

that she was denied promotion to the PES-22 level

postmaster positions on the basis of sex.

(38) On February 27, 1980, a hearing on Shidaker’s

complaint was held before Equal Employment Opportuni-

ty Commission (“EEOC”) Complaint Examiner Robert

Johnson (“Johnson”).

(39) In a decision dated September 2, 1982, Johnson

found that Shidaker was denied promotion on the basis of

sex. He also found that the procedure used by the Postal

Service to make the promotions had a discriminatory im-

pact on women. He did not, however, find discriminatory

the fact that no woman was on the Screening Board.

(40) In a letter dated October 25, 1982, the Postal Serv-

ice’s Regional Director for Employee and Labor Relations

Central Region, informed Shidaker that the Postal Service

was rejecting Johnson’s decision of September 2, 1982.

(41) While Shidaker’s EEO complaint was pending, San-

toro rated her “marginal” on her merit performance

evaluations for fiscal years 1980 and 1981. Prior to 1980

she had never received anything less than a “satisfactory”

rating. A marginal rating denies an employee a salary in-

crease.

(42) No female postmasters except Shidaker received

“unsatisfactory” or “marginal” merit evaluations in 1980,

1981, and 1982. Santoro gave three male postmasters “un-

satisfactory” merit evaluations in 1978. In 1979, Santoro

gave two male postmasters “marginal” merit ratings. In

1980, Santoro gave tnree male postmasters “marginal”

ratings. In 1981, Santoro gave one male postmaster a

marginal rating. In 1982, Shidaker was the only

postmaster to receive a “marginal” rating. In 1983, two

male postmasters were given “marginal” ratings.

26a

(43) Santoro’s written comments accompanying

Shidaker’s evaluation in 1980 indicate:

Ms. Shidaker rated herself “Good” but she received a

“Marginal” rating because of poor performance in all

major areas of her office. Blames her supervisor for

performance of office. Negative performance in car-

rier operation of 8.2% even after discounting Ac-

counting Periods 4 and 5 due to severe weather. Clerk

productivity down 1.7% vs SPLY [Same Period Last

Year]. Needs to become more directly involved in of-

fice Operations and to improve her attitude and

cooperation with MSC staff. [Bracketed words

added].

(44) On April 28, 1980, Shidaker was issued a “Pro-

posed Notice of Adverse Action.” The Notice informed

her that Santoro proposed to remove (discharge) her from

employment for incidents of “misappropriation and per-

sonal use of postal funds,” and for “misrepresentation of

work hours.” The dates alleged were October 8, 1978,

August 17, 1979, November 19, 1979 and January 17,

1980. The incidents involved the alleged unauthorized is-

suance of postal money orders in the amounts of $20.00

and $35.00 for personal annual membership fees in an

Organization called “Women In Management,” the

unauthorized purchase with Postal Service funds of a

Village of Kenilworth motor vehicle sticker for Shidaker’s

personal automobile; and taking 32 hours of leave but

knowingly entering the time as worked on her time card

rather than charging the absence to annual leave.

(45) On September 3, 1980, Shidaker, who was repre-

sented by counsel, entered into an EEO settlement of the

notice of removal. The settlement agreement provided, in

pertinent part, that she would be reduced “from a step

27a

six to step three in the EAS' 18 pay scale.” This reduction

in pay amounted to approximately Three Thousand

Dollars ($3,000.00).

(46) In 1981, Santoro wrote on Shidaker’s evaluation

form: “Employee rated ‘marginal’ because of misappropri-

ation of postal funds.”

(47) On February 8, 1982, Santoro issued Shidaker a

“Proposed Notice of Reduction in Grade.” It was pro-

posed that due to her alleged official misconduct she be re-

duced from Postmaster, Kenilworth, Illinois, PES-18 at a

salary of $26,300, to a full-time distribution clerk, PES-S5,

Step 12, at a salary of $22,325.00.

(48) Shidaker ultimately was reduced in grade to a level

PES-S, full-time regular distribution clerk.

(49) On February 18, 1982, Shidaker filed a written

EEO complaint, claiming that the February 8, 1982 notice

of grade reduction was issued in reprisal for filing on April

28, 1978 her EEO administrative complaint concerning the

failure to be promoted. She scheduled an appointment to

discuss the prior EEO complaint with a Postal Service

EEO Investigator.

(50) Shidaker previously had filed timely EEO com-

plaints alleging that the marginal ratings for 1980 and 1981

were issued in retaliation for her filing of the EEO com-

plaint in 1978. By a decision dated August 6, 1982, the

EEOC issued a final administrative determination that

Shidaker’s marginal rating for fiscal years 1980 and 1981

did not violate Title VII. Shidaker renewed the claims of

retaliation in her civil complaint but abandoned them

before trial.

' There is some confusion over the designation of pay scale

categories, i.e., “PES, “PMS” or “EAS.” Each designation likely is

correct, depending on the year in question. For example, in 1980 the

“EAS” designation apparently replaced the “PES” rating. For ease the

Court adopted the “PES” designation, except where the rating appears

within a quotation.

——

—

28a

(51) Shidaker also filed an administrative appeal from

her reduction to a PES-5 distribution clerk. By letter dated

March 1, 1983, the Postal Service informed her that its

final decision was that the charges against her were sup-

ported by the evidence and warranted the reduction.

(52) The meaning and purpose of the 16 item Model

Delivery Office (“MDO) Checklist,” which is part of the

Postal Service’s Exhibit 22, is as follows:

Item 1. “Minimum—80% Mail Volume

a. Mail ledged for carrier.”

The purpose of Item 1 is to have at least 80% of the

morning mail volume at each post office sorted by the

clerks and at each letter carrier’s sorting case when the car-

rier starts work. Before the carrier leaves the post office to

deliver his or her route, he or she must “case” the mail that

is, sort it in sequence of delivery, by street and address.

The carrier “cases” the mail by sorting it into designated

separations (“pigeon holes”) in the carrier’s case. Each car-

rier case has a “mail ledge” at the front of the case where

the mail is placed for “casing.” The mail is placed on the

ledge, stamp side down and to the carrier’s right hand side

to ensure efficient casing.

Item 3. “DUVRS

a. Data used for workhour decisions.”

“DUVRS” means “Delivery Unit Volume Recording

System.” It requires the measurement with a foot rule of

the daily moil volume ultimately delivered by the letter car-

rier. It is estimated that a linear foot of letter size mail con-

tains 250 pieces. “Flats”, such as magazines and other

magazine size mail, contain 115 pieces per linear foot.

These daily measurements are made so that supervisory

and managerial employees can decide whether a carrier

needs overtime, auxiliary assistance by another carrier or

curtailment of mail on a given day or whether individual

carriers have insufficent volume (“undertime”) to fill an

eight hour day.

29a

Ttem 4. “Workload Leveling.”

The objective of workload leveling is to ensure that each

carrier has sufficient mail to fill an eight hour day. “Level-

ing” is achieved by curtailing the delivery of mail on a

given day and also by dividing mail between carriers so

that each has enough mail to fill an eight hour day.

Item 5. “Carrier Control Forms.”

Item 5 requires the daily review of workhour control

forms and mail volume curtailment forms. The purpose of

this review is inter alia to reduce the need to curtail the

delivery of mail; to eliminate problems of carriers leaving

the office late to deliver their routes; to eliminate problems

of late delivery of mail; to eliminate problems of excess

Overtime; and to correct problems of carrier work

methods.

Item 6. “Pivoting.”

Pivoting involves assigning carriers having “undertime”

to assist carriers who have more mail than they can deliver

in eight hours. Effective pivoting requires daily knowledge

of the mail volume of each carrier.

Item 7. “Reporting Times.

a. Supervisors

b. Carriers

(1) 80% Mail Volume

(2) FLSA”

This item requires that the starting times of supervisors

and carriers be checked and coordinated so that the super-

visor, Or Other responsible person, starts work ahead of

the carriers to ensure inter alia that 80% of the mail

volume is sorted by the clerks and at the carrier’s case

when the carrier starts work. It also is required that the

carrier’s starting time be scheduled so that the carrier does

not start before the 80% requirement is met.

30a

The Fair Labor Standards Act (“FLSA”) aspect of the

program requires responsible management or supervisory

personnel to monitor the times that employees punch in

and out, or otherwise start and end work, so that they do

sO at appropriate times in order to avoid unearned over-

time under FLSA.

Item 8. “Park Points.”

a. Five or less unless otherwise justified.

Letter carriers who drive their routes, drive to various

points, park and lock their vehicles and deliver a portion

of the mail. The purpose of restricting parking points to

five or fewer points is te save gasoline, unnecessary

mileage and time otherwise lost by unnecessary parking

and locking and mounting and dismounting the vehicle.

Item 9. “Relays.

a. Weighted In Office.”

A relay is a segment of a carrier’s route which weighs ap-

proximately 30 pounds, the weight a carrier carries and

delivers at a given time. The relays are weighed at the post

office so that the 30 pound requirement is met for each

relay. The purpose is to assure the minimum possible

relays thereby avoiding unnecessary relays and wasted

time.

Item 10. “Office Supervision.”

The purpose of office supervision is to ensure that

employees observe proper starting and stopping times, use

efficient work methods and observe the other rules of the

workplace.

Item 11. “Street Supervision.”

The purpose of street supervision is to ensure that car-

riers are using efficient work methods and observing perti-

nent work rules. Street supervision includes checking

whether the carrier is taking appropriate short cuts,

3la

following efficient delivery patterns, unnecessarily

deviating from the route and taking lunch and other

breaks at designated times and locations.

Item 12. “Mobile Accountable Cart.”

Item 12 is a system by which accountable mail, e.g.,

registered, certified, C.O.D. and postage due mail, is

brought to the carrier at his or her case in order to save

time.

Item 13. “Parking and Loading.”

The purposes of “Parking and Loading” include check-

ing for the most efficient parking places for Postal Service

vehicles in order to avoid interference with official vehicle

operations and designated customer parkings; and check-

ing whether employees efficiently load vehicles for sequen-

tial route delivery; make a minimum number of trips from

office to the vehicle; and how they transport mail to the

vehicle.

Item 14. “Review PS Forms 4570.”

A PS Form 4570 is a Vehicle Trip Report, documents

daily starting and ending times and mileage. Its purpose is

to ensure proper utilizaton of the vehicle. For example,

review of the forms ensures that the reports are made;

forms are accurately filled in; unauthorized mileage is not

used; and mileage rates are accurate.

Item 15. “Carrier Route Books.”

Route books are checked to verify that they contain re-

quired information. For example, they must contain the

route map; any special instructions for the route; the form

which reflects designated break and lunch times and

designated lunch locations; and the M-41 handbook which

is the carrier work method book.

32a

Item 16. “Carrier Case Labels.”

These are strip labels of various colors (“color coded”)

which bear the street name and delivery addresses in

delivery sequence. These labels are affixed to the ap-

propriate pigeon holes in the letter carrier’s sorting case. It

is required that the labels be typewritten and color coded.

Color coding results in separations for letters and flats

with the same destination bearing the same color.

(53) Defendant’s Exhibit 64 is a “Daily Condition

Report” form. It is used during specified accounting

periods, including the Christmas season period of heaviest

mail volume. Column | lists four post offices within the

North Suburban MSC. Lake Bluff, Kenilworth and Mor-

ton Grove are required to call in to the Park Ridge Post

Office the information in columns two through eight daily

by a specified time. Column two reports the number of

city delivery routes. Column three reports the total

number of trays, 500 pieces of first class (“pref”) mail per

tray that the clerks have not sorted by their “cut off time,”

the time they were required to stop sorting mail. “Pref

mail” includes personal letters, registered letters, and cer-

tified return, receipt mail. “Non Pref” mail includes

magazines and advertisements. Column four reports the

total number of trays of “pref” mail that have not been

sent to the carriers’ cases at the clerks’ cut off time. Col-

umn five reports the number of carrier routes which have

curtailed, j.e., not to be delivered, “pref” mail. Column six

reports the number of routes with three or more trays of

curtailed “pref” mail. Column seven reports any “nonpref”

mail more than one day behind in delivery. Column eight

reports any parcel post mail more than one day behind in

delivery.

One of the main reasons for acquiring this daily infor-

mation during the Christmas season is to ensure the timely

delivery of the mail by post office to post office assistants

33a

and other means. Management personnel also need this

daily information so that they can readily answer inquiries

from the public concerning the status of mail delivery dur-

ing the peak season.

CONCLUSIONS OF LAW

Shidaker attempts two theories for proving a Title VII

violation relative to her failure to win promotion: (1) the

Postal Service’s procedure for selecting candidates for pro-

motion to postmaster has a “disparate impact” on women;

and (2) the Postal Service intentionally discriminated

against her by promoting a male instead of her, although

she was qualified.

DISCRIMINATOPY IMPACT

A plaintiff makes a prima facie case of discriminatory

impact merely by showing that the employer’s facially

neutral criteria for hiring or promotion have an adverse

impact on a protected class to which he or she belongs.

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28

L.Ed.2d 153 (1971). Unlike a case of “disparate

treatment,” McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817. 30 L.Ed.2d 668 (1973), proof of

wrongful motive is not required. J/nternational

Brotherhood of Teamsters v. United States, 431 U.S. 324,

335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396

(1977). Where an individual brings a discriminatory im-

pact claim, a prima facie showing is not overcome by the

employer’s -subsequent attempt to minimize the

discriminatory impact of the procedure by favoring some

members of the protected group. Title VII provides an

equal opportunity for each applicant, and “ ‘[a] racially

balanced work force cannot immunize an employer from

liability for specific acts of discrimination.’ ” Connecticut

v. Teal, 457 U.S. 440, 454-55, 102 S.Ct. 2525, 2534-2535,

—————————————EEwE

34a

73 L.Ed.2d 130 (1982), quoting Furnco Construction Co.

v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 2950, 57

L.Ed.2d 957 (1978).

Prima facie adverse impact is demonstrated by various

statistical means, depending on the nature of the chal-

lenged practice and the employer. Regardless of the

method chosen, the plaintiff must present supporting

Statistical data with some degree of precision. New York

City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct.

1355, 59 L.Ed.2d 587 (1979); Soria v. Ozinga Brothers,

Inc., 704 F.2d 990 (7th Cir.1983). In limited cir-

cumstances, a court may project disparate impact from

non-statistical data. Dothard v. Rawlinson, 433 U.S. 321,

97 S.Ct. 2720, 53 L.Ed.3d 786 (1977); Carpenter v. Board

of Regents, 728 F.2d 911, 914 (7th Cir.1984).

If adverse impact can be inferred from plaintiffs data,

the employer may present evidence indicating that the

challenged practice or rule is a “business necessity.” Griggs

v. Duke Power Co., supra. The practice or rule must bear

a manifest relation to the job in question. /d., 401 U.S. at

432, 91 S.Ct. at 851. See also Solo Cup Co. v. Federal In-

surance Co., 619 F.2d 1178, 1186 (7th Cir.), cert. denied

449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980).

If the employer shows that the challenged procedure is

necessary to its business, the plaintiff may show that the

rule actually is a pretext for discrimination. Albemarle

Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45

L.Ed.2d 280 (1975). It is at this juncture only that the

employer’s motive is tested. New York City Transit

Authority v. Beazer, supra. A plaintiff may demonstrate

pretext by showing that other, non-discriminatory, selec-

tion criteria would serve the employer’s purpose as well.

Carpenter v. Board of Regents, supra.

35a

The burden of proving discriminatory impact remains

with Shidaker throughout the inquiry. Only the burden of

going forward is imposed upon the Postal Service if a

prima facie showing of discriminatory impact is made.

Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

As a threshold matter, it is arguable whether disparate

impact analysis is even proper here where the system at-

tacked includes both objective and subjective parts. The

Eighth Circuit addressed the question and holds that “[a]

subjective decision-making system cannot a/one form the

foundation for a discriminatory impact case.” (emphasis

added). Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th

Cir.1981). See also Talley v. United States Postal Service,

72J0 F.2d 505, 507 (8th Cir.1983), cert. denied 104 S.Ct.

2155, 80 L.Ed.2d 541 (1984). The Seventh Circuit recently

noted the issue, but found it unnecessary to resolve. Soria

v. Ozinga Brothers, Inc., supra.

The use of subjective criteria is not unlawful per se. See

e.g., Rogers v. International Paper Co., 510 F.2d 1340,

1345 (8th Cir.), vacated and remanded on other grounds,

423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975). The ques-

tion is do the selection criteria, objective or subjective, im-

permissibly burden a person in a protected group. Thus

discriminatory impact analysis may be applied here,

though the procedure which is challenged consists of sub-

jective parts.

The validity of subjective devices increases in direct pro-

portion to the level of employment sought. In cases where

the skills sought are minimal or can be objectively quan-

tified, or the position is entry level, courts reject as il-

legitimate purely subjective evaluations of potential or

fitness. Nanty v. Barrows Co., 660 F.2d 1327 (9th

Cir.1981); Rowe v. General Motors Corp., 457 F.2d 348

(Sth Cir.1972).

36a

In contrast, while objective factors may play a threshold

role in professional or entry level management positions,

decisions as to promotions at these levels likely turn on an

evaluation of more intangible subjective qualities, such as

leadership skill and ability to take decisive action when

necessary. However, even subjective tests for upper level

employees and professionals will not withstand scrutiny

unless the underlying goals are clear and job-related. See,

e.g., Davis v. Board of School Commissioners, 600 F.2d

470, 474-75 (Sth Cir. 1979) (principal); Peters v. Lieuallen,

568 F.Supp. 261, 266 (D.Or.1983) (compliance officers,

state department of higher education). But see Leisner v.

New York Telephone Co., 358 F.Supp. 359

(S.D.N.Y.1973) (interviews for women in management re-

jected). See also Yuhas v. Libbey-Owens-Ford Co., 562

F.2d 496 (7th Cir.1977) (husband and _ wife);

discriminatory intent cases: Harris vy. Group Health

Association, Inc., 662 F.2d 869 (D.C.Cir.1981) (doctor);

Frausto v. Legal Aid Society of San Diego, Inc., 563 F.2d

1324 (9th Cir.1977) (attorney); Powell v. Syracuse Univer-

sity, 580 F.2d 1150 (2d Cir.), cert. denied 439 U.S. 984, 99

S.Ct. 570, 58 L.Ed.2d 656 (1978) (professor); Chalk vy.

Secretary of Labor, 565 F.2d 764 (D.C.Cir.1977), cert.

denied 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978)

(writer/editor).

Although it is appropriate to use disparate impact

analysis, Shidaker fails to make out a prima facie case of

disparate impact. The statistics presented to the Court are

as follows: In November, 1974, women held 20.8% of the

positions in the Postal Service workforce. The percentage

had moved to 23.5% by November, 1980. Nationally,

women held 11.5% of the positions at PES-15 and above

in January, 1980.

In 1978, the year of Shidaker’s failed promotion,

women occupied 23 of the 108 postmaster positions in the

North Suburban MSC, or 21.2% of the totai postmaster

37a

positions. However, none of the women postmasters were

rated higher than PES-20 and 15 of them were at level

PES-15 or lower. Additionally in 1977-1978 a total of

2,008 women were employed in the North Suburban MSC,

29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5%

were rated in positions of PES-19 or higher. Grossly, the

disparities could be significant.

However, aside from informing the Court that she was

the only female applicant for the three PES-22 postmaster

vacancies in 1977, Shidaker presented no other evidence of

applicant flow. The Court was not informed of how many

women, if any, had applied for X number of vacant

postmaster positions, of any level, in the past. Nor does

the Court know how many women even were eligible to

apply for the 1977 or past vacancies. No breakdown of the

number of women in each PES position by year was

presented. Without such basic data, the impact of the

Postal Service’s promotion procedure cannot be fairly

tested.

The use of statistics in investigation of management

discrimination is complicated by the problem of defining

the relevant labor pool. Lower level jobs require skills pre-

sent or readily acquired by persons in those categories.

Such an assumption does not apply to management jobs

which demand skills and training possessed by relatively

few individuals. Accordingly, the absence of applicant

flow data is a serious deficiency in Shidaker’s proof.

Although expert testimony is not required in every case,

no presentation was made to analyze or probe the limited

data which were presented.

The paucity of data also prevented the Court from

testing for adverse impact by reference to the “Four-Fifths

Adverse Impact Rule” utilized by the EEOC. 29 C.F.R.

q 1607.4. Under this approach, a selection rate is deter-

mined by examining the employer’s actual experience in

38a

hiring Or promoting, and comparing the percentage of

minority applicants with nonminority applicants who are

hired. If “[a] selection rate for any race, sex or ethnic

group .. . is less than four-fifths (4/5) of the rate for the

group with the highest rate,” the selection process normal-

ly has an adverse impact. /d.

Having failed to prove a prima facie case of

discriminatory impact, it is unnecessary for the Postal

Service to prove whether its promotion procedure was a

business necessity.

DISPARATE TREATMENT

The Court concludes that Shidaker has made a prima

facie showing of disparate treatment in accordance with

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973):?

(1) she belongs to a group protected by Title VII;

(2) she was at least as qualified for promotion as one of

the candidates selected;

(3) she was considered but denied promotion; and

(4) the jobs that she sought were filled by men.

Of the three candidates promoted to the positions

sought by Shidaker, two of them were more qualified

when judged only by objective criteria. Prior to promo-

tion, Boeckenhauer was a PES-21 postmaster in Des

Plaines. The Des Plaines Post Office was roughly com-

parable to any of the three post offices with vacancies. It

served a population of 105,000, with 88 regular mail

routes and utilized 232 employees. Boeckenhauer had been

with the post office for 21 years, four of which were at

grade PES-21.

2 There is some doubt in this Circuit whether the McDonnell

Douglas standards for prima facie disparate treatment apply in pro-

motion cases, where the criteria are subjective and the evaluation is

comparative. Mason v. Continental Illinois National Bank, 704 F.2d

361 (7th Cir.1983).

39a

Daily had 12 years of service, with two years in grade

PES-20. He managed the Bloomingdale Post Office,

which served a population of 11,500, with six regular

routes and 16 employees. Although the difference between

Shidaker’s qualifications and Daily’s is not as dramatic

as the difference between those of Shidaker and

Boeckenhauer, a marked difference nonetheless exists.

While Shidaker had 15 years experience, 13 of which were

at PES-18, all her service was at the Kenilworth Past Of-

fice, one of the six smallest in the North Suburban MSC.

Kenilworth’s population is almost four times smaller than

Bloomingdale’s, and it had one half as many delivery

routes. Furthermore, Shidaker was responsible for only

six full-time employees, the other four positions author-

ized were part-time positions.

The Postal Service has demonstrated that Boeckenhauer

and Daily were selected for their superior qualifications.

In Holder v. Old Ben Coal Co., 618 F.2d 1198, 1201-02

(7th Cir.1980), the Seventh Circuit stated

[a] desire to hire the more experienced or beter

qualified applicant is a non-discriminatory, legitimate

and common reason on which to base a hiring deci-

sion. Thus . . . plaintiff must foreclose this possible

explanation for a hiring decision before a prima facie

case is established.

By inference, the Title VII plaintiff in this Circuit must

allege that he or she is as qualifed or more qualified than

those persons who received the position sought by the

plaintiff. See also Mason v. Continental Illinois National

Bank, 704 F.2d at 364. (“No rational enterprise that has

several qualified candidates for a position selects among

them by lot, it picks the best qualified”).

Thus if Shidaker is to prevail at all, it must be by

demonstrating first that she is as qualified as Soto and sec-

ond that the Postal Service promoted Soto instead of her

for discriminatory reasons. Shidaker and Soto each were

40a

rated as PES-18 postmasters and had been employed by

the Postal Service for 15 years. Furthermore, both the

Algonquin and Kenilworth Post Offices had only three

regular delivery routes. On one level, it appears that

Shidaker was more qualified for promotion than Soto.

Shidaker served in a PES-18 position for 13 years, while

Soto was in that grade for fewer than three years. That

“deficiency” in Soto, however, is balanced by the fact that

Soto entered the Postal Service as a level four employee

and received six promotions before his appointment as

postmaster in Algonquin. Shidaker’s position as a PES-18

was an entry level position. Another leveling factor is that

the Algonquin Post Office serves a population area more

than three times the size of the Kenilworth Post Office,

thereby exposing its postmaster to a greater degree of

financial transactions and experience. Finally, at Algon-

quin, Soto was in charge of 15 employees including one

supervisor and five part-timers. Shidaker’s authority ex-

tended over ten employees including five part-timers.

Although the case is close, the Court finds that on

balance Shidaker and Soto were roughly of equal

qualifications. Shidaker has made out a prima facie case

of disparate treatment. The burden of going forward now

shifts to the Postal Service to articulate a legitimate, non-

discriminatory reason for denying the promotions to

Shidaker. Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67

L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green,

supra.

> The Court could have found that Shidaker was not even minimal-

ly qualified and, therefore, that no prima facie case was proved. The

Screening Board established that no candidate with less than 20 points

would be recommended. That finding was rejected, however, as the

Court considered instead the grosser: qualifications of longevity and

level of service to constitute minimal qualifications. Soto was not

awarded 20 points as a composite score by the Screening Board either.

4la

The Postal Service states that the reason for selecting

Soto over Shidaker was that Shidaker was not recom-

mended by the Screening Board. Her composite score for

each vacancy was below 20, which was the cutoff score be-

tween recommendation and not. Soto’s composite score

for the Glenview vacancy was 19, and he also was not

recommended initially. His name was put forward only

after those candidates with higher scores either dropped

Out or were otherwise eliminated. Soto and one other can-

didate had the next highest scores of 19. It is irrelevant

whether both of the men who earned scores of 19 were

then recommended. What is important is that a next most

qualified candidate was recommended and _ ultimately

selected. The reason that Soto was elevated into the run-

ning, /.e., his higher composite score, is a legitimate, non-

discriminatory business reason —if the process used to ar-

rive at that score is valid under the circumstances.

The Postal Service has demonstrated that the persons

selected to fill the vacancies were required to have high

levels of management skills. Each post office vacancy to

be filled, including the Glenview office to which Soto was

promoted, was designated “medium size, first class,”

served populations ranging in size from 35,000 to 70,000,

included commercial and industrial firms, had from 29 to

42 regular delivery routes, and was growing. The post-

masters chosen would supervise between 89 to 114 em-

ployees and be responsible for annual revenue of up to

$5.5 million.

To probe the managerial ability of the applicants, a

Screening Board, which included one minority member,

was appointed and given previously compiled records of

each applicant. Those records included both Postal Serv-

ice and non-Postal Service histories. Of particular rele-

vance was material on each applicant’s experience and per-

formance in employee relations, budget operations and

planning and scheduling of work. To the historical data

42a

was added an “Estimate of Potential,” prepared by the

applicant’s immediate supervisor. The Estimate rated the

applicant on factors such as motivation, personal growth

and learning capacity.

The initial scores assigned to each applicant were de-

rived by each screener without consultation with the

others, thereby minimizing the possible force of anecdotal

influence in the first scoring. Each applicant was separate-

ly rated for each vacancy sought. Although the screeners

later added their specific, firsthand observations about

Shidaker’s work style and managerial ability, (and

presumably about the other a splicants), those observa-

tions were pertinent to the skills required for the positions

sought.

While most of the material relied upon by the screeners

was subjectively derived, the Screening Board made an ef-

fort to objectify its decision by applying a point system to

the findings, considering each vacancy separately and then

by comparing each candidate to the others. Each candi-

date who was not automatically entitled to be reeommend-

ed for interview, was required to be evaluated by this same

subjective/objective process. The Court finds that the pro-

cedure used by the Postal Service to initially select candi-

dates for promotion consideration was permissible and

without overt indicia of discrimination.

It remains only to decide whether the Postal Service

erred by selecting Soto instead of Shidaker. It did not.

here is no obligation under Title VII requiring an

employer to integrate its workforce or make gender-

preferential promotions where all candidates are equal or

minimally qualified. Texas Department of Community

Affairs v. Burdine, supra. “(T]he employer has discretion

to choose among equally qualified candidates, provided

the decision is not based upon unlawful criteria.” Jd. at

259. 101 S.Ct. at 1097. Similarly, outside the factory set-

ting the first qualified applicant need not be selected where

43a

a choice is made “ ‘on the basis of qualifications, recom-

mendations and subjective impressions.’” Mason v.

Continental Illinois National Bank, 704 F.2d at 365,

quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1017, n. 18

(ist Cir.1979).

Where, as here, the promotion selection among

minimally and arguably equally qualified applicants was

made for a legitimate business reason, and no evidence of

purposeful discrimination is offered, a plaintiff cannot

show that the employer’s proffered reasons are pretext.

Shidaker cannot rebut by showing that “but for” gender

discrimination she would have been selected. See Mc-

Cluney v. Joseph Schlitz Brewing Co., 728 F.2d 924, 928

(7th Cir. 1984); Sherkow v. State of Wisconsin, Depart-

ment of Public Instruction, 630 F.2d 498, 502 (7th

Cir.1980). Shidaker has not proved, by a preponderance

of the evidence, that the Postal Service failed to promote

her because she was a woman.

RETALIATORY REDUCTION IN GRADE

The matter of administrative review of Shidaker’s

reduction in grade was presented to the Court without sup-

porting briefs discussing the evidence or, with one excep-

tion, oral argument pointing out in what respect Shidaker

claims the hearing officer erred. That exception relates to

Shidaker’s claim that she did not receive a copy of a letter

sent by Santoro to a higher authority after Shidaker’s re-

sponse to the damages for grade reduction. The Court has

reviewed the administrative record and the notice of

reduction in grade and finds that the decision to reduce is

supported by substantial evidence.

The charges in the notice to reduce which were found to

be substantial after administrative review were (1) failure

to follow management’s instructions; (2) failure to timely

report status of mail and failure to follow managerial in-

structions; (3) failure to train an employee to assume re-

44a

sponsibility in Shidaker’s absence; (4) falsely accusing an

employee of serious misconduct; and (5) failure to take

disciplinary actions against an employee despite manage-

ment’s instructions to do so. Shidaker also had been

notified that her reduction was due to a failure to file

reports of status mail during the Christmas 1981 period

and misrepresentation of work hours. However those

charges were not sustained.

A review of the relevant evidence in support of the find-

ing for grade reduction is: Shidaker persistently ignored or

disobeyed repeated instructions to bring her office into

compliance with the Fair Labor Standards Act by correct-

ing numerous time-keeping and pay computation errors

involving straight time, overtime and night differential

pay for her employees. Ultimately, personnel at the North

Suburban MSC had to prepare the necessary corrected

forms and send them to Shidaker for her signature.

Shidaker’s failure to make these corrections cost the Postal

Service $356.00.

Despite notice of the MDO program and its efficiency

goals, and training and instructional visits by memUers of

the MSC staff, Shidaker failed to bring her post office into

compliance with several items of the program: Item 1, re-

quiring the availability of 90% of the mail volume for the

letter carriers when they report for work; Item 3,

“DUVRS,” whish is data used for work hour decisions;

Item 4, workload leveling; Item 5, carrier control forms;

Item 7, reporting work hours of supervisors and carriers;

Item 8, park points—S5 or less unless otherwise justified;

Item 9, relays; Item 10, office supervision; Item 11, street

supervision; Item 12, mobile accountable cart; Item 14,

Review PS (Postal Service) forms 4570; Item 15, carrier

route books.

Shidaker also failed, despite repeated instructions, to

change her starting time to 8:00 a.m. so that she could

“assign auxiliary assistance or overtime” for the letter

45a

carriers and make any decisions necessary to expedite the

sorting and casing of the mail; to appoint and train an act-

ing supervisor (204B supervisor) who could serve in her

absence; and to submit a 16 noint MDO check list reflect-

ing the dates by which she proposed to implement the 16

MDO items or the dates on which she had implemented

the items.

All postmasters in the North Suburban MSC were in-

structed to complete the “Daily Condition Report,” which

is a seven (7) item report concerning the status of mail in

their post offices, during the period December 10-24,

1981. They also were instructed to report the information

daily by telephone to a designated post office. Shidaker

failed to make her report in a timely manner to the Park

Ridge Post Office on Saturday, December 12, Monday,

December 14, and Thursday, December 17, 1981. When

requested to explain this failure, Shidaker’s response to

one MSC manager was, “Cool it man.” When Santoro re-

quested an explanation, Shidaker accused Santoro of be-

ing “completely out of line” and of having “very poor

judgment.”

Shidaker failed to comply with Santoro’s July 27, 1981

order that she train an employee to serve as an acting

supervisor (204B supervisor) during her absences. She also

failed to comply with Santoro’s subsequent order of

August 5, 1981. On December 16, 1981, almost five (5)

months later, Shidaker requested a level 13 supervisor to

cover the Kenilworth post office during her forthcoming

three weeks of leave.

In a letter to Santoro dated July 28, 1981, Shidaker ac-

cused Charles Fargo, a full-time clerk in Kenilworth, of

falsifying time cards, falsifying mail volume reports and

writing a partially obscene letter during work time. When

Postal Inspectors investigated, Shidaker could produce no

records or other evidence of such falsifications although

such falsifications are felonies under federal law.

46a

Nonetheless, Shidaker told the inspectors that Fargo

also had misused a “penalty indicia” Postal Service

envelope in connection with the later. When the Postal In-

spectors indicated that they would question Fargo,

Shidaker then said that her accusations were intended only

to oppose Fargo’s elevation to the position of acting super-

visor, Kenilworth. Although Shidaker was repeatedly in-

structed to take corrective actions against employee Mon-

toya, who actually wrote the letter and misused the penalty

envelope, she refused to do so. Misuse of a penalty

envelope is a federal crime.

Shidaker also complains that after she answered charges

made against her by Santoro, Santoro responded to his

higher authority without sending her a copy of his re-

sponse to her answer. Any procedural error committed by

not sending her a copy of Santoro’s response was cured by

the fact that the entire administrative record was available

to Shidadker when the matter was heard by the appointed

hearing officer.

The Court finds that there is substantial evidence in the

record to support the finding of the Postal Service that

Shidaker was not reduced from Postmaster PES-18 to full-

time distribution clerk, PES-5, step 12 in reprisal for filing

the April 28, 1978 EEO complaint. The reduction was the

result of Shidaker’s misconduct and poor work perform-

ance, as specified in the proposed notice to reduce her

from postmaster to clerk and set forth in the above Find-

ings of Fact. Therefore, the decision to reduce Shidaker in

grade was neither arbitrary nor capricious.

IT IS THEREFORE found that

(1) Shidaker has failed to prove sexual discrimination in

promotion by either a disparate impact or disparate treat-

ment theory.

(2) There is substantial evidence in the administrative

record to support the finding of the Postal Service that

Shidaker was demoted in grade for misfeasance and mal-

47a

feasance and not in retaliation for pursuing her civil rights

claim.

(3) The Court finds the issues in favor of the Postal

Service and against Darlene Shidaker. Accordingly, the

complaint is dismissed with prejudice.

48a

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT,

v.

WILLIAM BOLGER, IN HIS CAPACITY AS POSTMASTER

GENERAL (UNITED STATES POSTAL SERVICE),

DEFENDANT-APPELLEE.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

[MAY 1, 1986]

ORDER

HON. WALTER J. CUMMINGS, Chief Judge

HON. WILLIAM J. BAUER, Circuit Judge

HON. JOEL M. FLAUM, Circuit Judge

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed by Albert V. Casey, ap-

pellee, (now Postmaster General of the United States

Postal Service), and all of the judges on the original panel

have voted to deny the petition for rehearing and sugges-

tion of rehearing en banc. Accordingly,

49a

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing and suggestion for rehearing en banc be, and

the same is hereby DENIED.

: US. GOVERNMENT PRINTING OFFICE: 1986 —491-507/20329