29 Fair Empl.prac.cas. 1828,30 Empl. Prac. Dec. P 33,100manuel Lerma, Plaintiff-appellant, v. William F. Bolger, Postmaster General, United States Postalservice, Washington, D.c., Defendant-appellee, 689 F.2d 589 (5th Cir. 1982)

The appellant, Manuel Lerma, a Mexican-American, brought suit against the United States Postal Service under 42 U.S.C. § 1981 and § 1983, and under 42 U.S.C. § 2000e-16(c), alleging violation of § 717(c) of Title VII of the 1964 Civil Rights Act when a white male was hired instead of him. The District Court, Southern District of Texas, Kazen, J., dismissed all jurisdictional grounds except 42 U.S.C. § 2000e-16(c), pursuant to which he found for the Postal Service and dismissed the complaint. The appellant brings this appeal pursuant to 28 U.S.C. § 1291. We affirm the District Court's dismissal.

Following the retirement of one of the custodians in the Harlingen, Texas, Post Office, prospective applicants were sought in order to establish a register of eligibles. The position was advertised and fourteen applicants applied, including Lerma, who applied in September 1976.

The applications received in response to the advertisement were sent to the National Test Administration Center in Los Angeles, California, for rating under applicable regulations. This rating was based on previous work experience and other considerations. Having been rated, the applicants were listed on a hiring worksheet in the order of their rating, with acceptable ratings ranging from 70 to 110 points.¹  The order of the register was Howard Jordan (99); Winniberto Rodriguez (95); Lerma (95); and Ricky Schwab (94).² 

Postmaster Gilbert arranged interviews with the applicants. Pursuant to the "rule-of-three," Gilbert was required to interview at least three applicants. Because the list of eligibles was new, however, Postmaster Gilbert decided to interview the top four applicants, believing that this would ensure interviews with at least three. In late September 1976, letters were sent to the four highest-rated applicants, Jordan, Rodriguez, Lerma and Schwab, inviting them to arrange an interview.³  Jordan and Schwab are white; as stated, Rodriguez and Lerma are Mexican-American.

The four applicants responded to the request for an interview. Postmaster Gilbert did not remember Rodriguez responding. Rodriguez testified, however, that he had responded but that he had not set up an interview. He spoke to Gilbert's secretary and informed her that he no longer wished to be considered for the job.

Following the interviews with Jordan, Lerma and Schwab, Gilbert informed them that no hiring would take place at that time but that the applicant ultimately chosen would be notified at a later date.

The custodial position remained open some 7 months until March before being filled.⁴ 

In March 1977 Postmaster Gilbert filled the custodial vacancy with Schwab, a white male. Schwab's rating on the list of eligibles was 94, 1 point less than Lerma's rating of 95.⁵  Schwab had been employed in the Post Office at Harlingen, Texas, as a "casual distribution clerk" during the fall and early winter of 1976. His father had been a long-time employee in the Post Office but was not a personal friend of Postmaster Gilbert.

Gilbert had spoken with Charlie Krause, the Superintendent of Postal Operations in Harlingen. Krause informed Gilbert that Schwab was a good employee and a "known factor." By Gilbert's own admission, Schwab's performance as a temporary employee "did have some impact on my decision to appoint him since I knew the quality of his work."

Shortly after the decision was made, Lerma received a letter from the Postmaster's office informing him that he had not been selected. The letter did not state the reasons why Lerma had not been selected.

The only issue before the District Court and before this court on review is whether the plaintiff met his burden of proving that Postmaster Gilbert illegally discriminated against him on the basis of race or national origin.

Under the Supreme Court's decisions in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the order of presentation of proof in Title VII cases is set forth.

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." (McDonnell, supra), at 802, 93 S. Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804, 93 S. Ct. at 1825.

Burdine, supra, at 252, 101 S. Ct. at 1093.

The initial question, under Burdine and McDonnell Douglas, then, is whether the District Court was correct in its determination that the plaintiff had established a prima facie case of discrimination.

In an oft-quoted discussion of an appropriate model for establishing a prima facie case of racial discrimination, McDonnell Douglas set forth four predicates which the plaintiff must prove:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualification, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

411 U.S. at 802, 93 S. Ct. at 1824. Lerma met the first three of these requirements. Although he did not fall literally within the fourth requirement, we do find that he established a prima facie case in that he was equally qualified as the person chosen, who was not a minority.⁶ 

Lerma having met his initial burden, the presentation of evidence moved to the second phase, which requires that the defendant clearly set forth a legally sufficient explanation for the rejection of the applicant. Burdine, supra, 450 U.S. at 254, 101 S. Ct. at 1094.

Postmaster Gilbert's reasons for hiring Schwab were that Schwab had previously worked for the Harlingen Post Office, had been a good employee, and was a "known factor."

Under this Court's decision in Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. 1981), the "proffered reason" required by Burdine must be viewed "in the context of the evidence in the plaintiff's prima facie case." Id., at 1067. Viewed in this manner, we find that the defendant's stated reasons for hiring Schwab instead of Lerma do offer a sufficient rebuttal to require the plaintiff to move forward with his proof. Schwab was qualified for the position based on the neutral, standardized criteria used by the Post Office. And although there was an element of subjectivity involved in Postmaster Gilbert's decision, it was based on Schwab's record as an employee with the Post Office. We have previously upheld such subjective evaluations based upon work experience where made in good faith. Jenkins v. Caddo-Bossier Association for Retarded Children, 570 F.2d 1227 (5th Cir. 1978).

Thus, because Postmaster Gilbert did present a question of fact concerning his decision to hire Schwab, the plaintiff was required to demonstrate that the proffered reason was pretextual.

The plaintiff attempted to do this by showing the entire course of events surrounding Gilbert's decision. Lerma would have us infer discriminatory intent from Postmaster Gilbert's request for four interviews instead of three, from the arrangement of interviews with personal letters rather than prescribed forms, from the placement of Rodriguez on the register ahead of him, from the failure to fill the vacancy for 7 months, and from other such failures to "follow the book." The totality of these circumstances is not persuasive. It is certainly plausible for the fact-finder to view such facts as more indicative of a bureaucratically haphazard, rather than malevolent, office. If the plaintiff had shown that the hiring process produced disparate results, this might be a different case.⁷  Plaintiff made no such showing, however, and the District Court found no intent to discriminate. "Treating issues of intent as factual matters for the trier of fact is commonplace." Pullman-Standard v. Swint, --- U.S. ----, ----, 102 S. Ct. 1781, 1790, 72 L. Ed. 2d 66 (1982). Following the reasoning in Pullman-Standard v. Swint, we cannot find that the District Court was clearly erroneous in its determination that the plaintiff failed to prove that the defendant's proffered reason was pretextual.

For this reason, the decision of the District Court is

AFFIRMED.