Unpublished Disposition, 855 F.2d 860 (9th Cir. 1988)

Nos. 86-2855, 87-1513 and 87-1911.

Argued and Submitted April 13, 1988.

Decided Aug. 1, 1988.

Before BOOCHEVER and NORRIS^** , Circuit Judges, and ALBERT LEE STEPHENS^*** , Jr., District Judge.

MEMORANDUM^* 

Appellee Banks brought this Title VII suit against his former employer, the Secretary of the Navy ("Secretary"), claiming that the Secretary failed to promote him because of race. The Secretary appeals the district court's judgment and other post-trial remedies in favor of Banks. We affirm.

The Secretary has admitted discrimination in denying Banks a previous 120-day temporary promotion in 1981, and in the filing of a retaliatory letter of reprimand. Excerpt of Record ("ER") at 20. Banks claims that if he had been temporarily promoted in 1981, he would have been eligible for a permanent foreman position ultimately awarded to a white employee, Donald Schueler ("Schueler"), in 1982.¹ 

First, the Secretary argues that the 1981 discrimination could not have affected Banks's rating for the Schueler position because nothing in the applicants' records after 1978 was considered in the selection process. Appellant's Brief at 11-12. Thus, the Secretary contends that the district court erred when it concluded that the Secretary failed to show by clear and convincing evidence that Banks would not have been given the Schueler promotion in the absence of the 1981 discrimination.

Contrary to the Secretary's contentions, evidence at trial was presented showing that both the Secretary's denial of the 120-day temporary promotion, and the retaliatory letter of reprimand, were factors used by the Navy to evaluate Banks's qualifications for the position awarded to Schueler. Testimony and exhibits provided by Potts, a witness for the Secretary, "show [ed] that [Banks] received fewer points because of the reprimand. Similarly, it shows [Banks] was given less points on experience because the one month as a general foreman was 'too limited.' " ER at 27. Thus, the Secretary's own witness and exhibits contradict his argument that nothing in Banks's record after 1978, including the 1981 discrimination, was the cause of Banks's failure to be promoted in 1982. As the district court wrote, the Secretary's " [e]xhibits specifically indicate that the denial of the 120-day temporary promotion and the letter of reprimand were, in fact, used in evaluating [Banks's] qualifications for the vacant position." ER at 27. We note that when, as in this case, "there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574 (1984) (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)). Thus we conclude that the district court's determination that the government failed to prove by clear and convincing evidence that the 1981 discrimination did not affect Banks's failure to receive the 1982 promotion is not clearly erroneous.

Second, the Secretary contends that the district court found that the 1981 discrimination affected Banks's promotion potential generally, but did not find the 1981 discrimination precluded Banks from obtaining a particular promotion. Appellant's Brief at 14. Whether Banks is entitled to relief turns on whether he would have received the Schueler promotion "but for" the Secretary's discrimination, Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1166 (9th Cir. 1984), which "is essentially a question of causation." Ruggles v. California Polytechnic University, 797 F.2d 782, 786 (9th Cir. 1986). If the Secretary could show that Banks was not qualified for the Schueler position, then no relief may be awarded. Muntin v. State of Cal. Parks and Recreation Dept., 671 F.2d 360, 363 (9th Cir. 1982).

The Secretary misinterprets the district court's holding. The district court did not award damages for Banks' reduced "promotion potential" in the abstract. Rather, the court held that the Secretary was unable to show that the 1981 discrimination was not the sole cause of Banks's inability to obtain the Schueler promotion. The district court specifically stated that the Secretary "failed to establish by clear and convincing evidence that, had [the 1981 discrimination not occurred, Banks] would not have been selected." ER at 24. Although the district court's decision does not include the specific "but for" language, the meaning of its holding is clear: Banks would have received the promotion absent discrimination. The fact that the district court phrased its holding in terms of the Secretary's burden of proof does not alter its conclusion. Thus, we hold that the district court did not err in ordering that Banks be retroactively promoted because the Secretary failed to show that Banks would not have obtained a particular position even absent discrimination.

Third, the Secretary argues that the district court erred in requiring the Secretary to prove by clear and convincing evidence that Banks would not have received a subsequent promotion absent the 1981 discrimination. Appellant's Brief at 16. However, in light of the Secretary's admission of the 1981 discrimination, and the court's finding that the discrimination affected the outcome of the Schueler promotion, we hold that the district court properly found that Banks established a prima facie case of employment discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once a prima facie discrimination case is made, the burden shifts to the employer to prove that the employee or applicant would not have received the job, even absent discrimination. League of United Latin American Citizens (LULAC) v. City of Salinas Fire Dept., 654 F.2d 557, 559 (9th Cir. 1981). The Secretary's reliance on Johnson v. Brock, 810 F.2d 219 (D.C. Cir. 1987), is inapposite, because in this case the court explicitly found that Banks established a prima facie case with respect to the Schueler position. ER at 25-27. We hold that the district court's allocation of the burden of proof was not error.

AFFIRMED.