Unpublished Disposition, 874 F.2d 816 (9th Cir. 1989)

MEMORANDUM^* 

Olayer, a Caucasian firefighter who was passed over for six¹  promotions within the Hawaii Department of Transportation, Airports Division, appeals a judgment for the defendants in his suit claiming racial discrimination in violation of Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (1982).

Olayer proceeded on both disparate treatment and disparate impact theories. The district court found that while Olayer had presented a prima facie case of disparate treatment, defendants had met their secondary burden of articulating a legitimate, nondiscriminatory reason for his rejection and Olayer had failed to show that the proffered reason was a pretext for discrimination. The district court also found that Olayer had failed to make out a prima facie case of disparate impact. We affirm.

The promotion process at issue had three stages. First, the Department of Personnel Services administered a written achievement test to produce a list of five eligible applicants for a vacant position. Olayer scored the highest mark on the written achievement test for all six promotions for which he applied.

Next, the certificate of eligibles was forwarded to a three or four person interview committee. The certificate did not indicate the applicants' scores on the written test. For all six promotions Olayer sought, the interview committee was racially mixed.

All applicants for a particular position were asked a series of job-related questions and graded by points, with a range from 1 to 4, or by marks with a range of very good, good, fair or poor. Each member of the interview committee independently scored each applicant.

Interview scoring was not a thoroughly objective process, however. Individual interviewers sometimes gave the same applicant significantly different scores both on individual questions and overall.

The scores given by the interview committee were totalled and the evaluation sheets were then included in a package of documents which was provided to the final appointing authority. For all of the positions to which Olayer sought promotion the final decisions were made by Jonathan Shimada, Deputy Director, Department of Transportation. On every occasion, Dr. Shimada received a packet of materials which included information as to the race of each applicant, sick leave and annual records, performance ratings, and the evaluations from the interviews.

Disparate Treatment

Olayer argues that because the interview committee's evaluation was subjective, reliance on it should not serve as a legitimate, nondiscriminatory reason for his failure to attain a promotion. We reject this argument. While subjective practices are susceptible to discriminatory abuse and should be closely scrutinized, they are not illegal per se. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1481 (9th Cir. 1987) (en banc), cert. granted, 108 S. Ct. 2896 (1988). The use of subjective criteria is less inherently suspect in cases involving higher level employment for which skills are necessarily measured in a subjective manner. Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir. 1981).

Moreover, the burden which shifts to the defendant once the plaintiff has made out a prima facie case of disparate treatment is only a burden of production. The defendant need not persuade the court by a preponderance of the evidence that legitimate nondiscriminatory reasons exist for rejecting plaintiff. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). "It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. at 254-55.

Here, defendants showed that in every instance the applicant who was promoted was rated higher than Olayer on the interview committee evaluation. The interview consisted of job-related questions graded separately by members of the interview committee. The interview committee was racially mixed. Even though the process was somewhat subjective, this evidence clearly raised a genuine issue of fact as to whether appellees discriminated against Olayer and therefore met appellees' intermediate burden of proof.

Olayer, relying on Contreras v. City of Los Angeles, 656 F.2d 1267, 1280 (9th Cir. 1981), cert. denied, 455 U.S. 1021 (1982), suggests that to rebut a prima facie case of employment discrimination the employer must show that its testing procedures have been validated by "professionally accepted methods." As appellees correctly point out, Contreras dealt with the defendant's burden after a plaintiff has made out a prima facie case of disparate impact, not disparate treatment. The burden which shifts to the employer in a disparate treatment case may be met "simply by producing some evidence that it had legitimate, nondiscriminatory reasons for the decision." Watson v. Fort Worth Bank and Trust, 108 S. Ct. 2777, 2784 (1988).

Once a defendant has articulated a legitimate, nondiscriminatory reason for declining to promote a plaintiff, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's reason was merely a pretext for discrimination. E.E.O.C. v. Inland Marine Industries, 729 F.2d 1229, 1234 (9th Cir.), cert. denied, 469 U.S. 855 (1984). The district court found that Olayer failed to meet this burden.

There are three general categories of evidence which a plaintiff may use to show that a defendant's proffered reasons are pretextual: (1) direct evidence of discriminatory motive; (2) comparative evidence which shows that similarly situated protected group members were treated less favorably than majority group members; and (3) statistical evidence which shows a discriminatory pattern and may give rise to an inference of intent. B. Schlei and P. Grossman, Employment Discrimination Law 15 (1983); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973); Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985) (statistical evidence may be used to show pretext), modified on other grounds, 784 F.2d 1407 (9th Cir. 1986).

The record contains neither direct nor comparative evidence of discrimination. The only statistical evidence which Olayer presents which is relevant to show discrimination in the promotion process is the evidence regarding the six promotions for which he applied. For these jobs, no Caucasian was promoted while seven (one other Caucasian applied for one of the positions) were included among the eligible candidates. However, Olayer may not rely on these statistics to carry his burden of proving discrimination.

" [S]tatistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded." Morita v. Southern California Permanente Medical Group, 541 F.2d 217, 220 (9th Cir. 1976), cert. denied, 429 U.S. 1050 (1977). The problem with a small sample size is that "slight changes in data can drastically alter appearances." Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986). "Statistics are not trustworthy when minor numerical variations produce significant percentage fluctuations." Contreras, 656 F.2d at 1273 n. 4. Minor variations in the results of the promotion process at issue here (e.g. one successful Caucasian applicant) would have created a significant statistical variation. The district court was therefore correct not to rely on this statistical evidence. The district court's ruling that Olayer failed to show pretext by a preponderance of the evidence was not clearly erroneous.

Disparate Impact

To establish a prima facie case of disparate impact, a plaintiff must identify a particular business practice and show that it has a "significant disparate impact on a protected class." Atonio, 810 F.2d at 1485. A plaintiff can meet this burden by presenting appropriate statistical evidence. Clady v. County of Los Angeles, 770 F.2d 1421, 1427 (9th Cir. 1985), cert. denied, 475 U.S. 1109 (1986).

In the instant case, the specific practice which Olayer challenges is the second stage of the promotion process--the interview committee evaluations. Most of the statistical evidence Olayer presents to establish his prima facie case is either irrelevant to show that Caucasians were adversely impacted by this process or unfavorable to his case.

For example, statistics included in the Department of Transportation's 1981 Affirmative Action Plan showed that Caucasians comprised 31.7 percent of the statewide labor force but only 13.25 percent of the Department of Transportation work force. This statistic shows that Caucasians were underrepresented in the department as a whole. However, it is not relevant to show that Olayer was discriminated against in the promotion process.

The Plan statistics also showed that of all promotions within the Department during fiscal year 1979-80, 14 percent involved the promotion of Caucasian employees. Thus the percentage of promotions department-wide which went to Caucasians was slightly above their percentage representation in the department. This statistic therefore lends no support to Olayer's claim. None of the Plan statistics presented show that Caucasians were promoted at a lower rate than other groups within the Department of Transportation work force.

The Revised Plan provided statistics on the racial background of those holding the positions for which Olayer applied. These statistics show that as of 1984, Caucasians held a higher percentage of these jobs than Japanese even though there were more Japanese in the Department of Transportation work force. Again, these statistics, to the extent they are relevant, do not support Olayer's position.

The only statistical evidence Olayer has offered which is relevant to show that the promotion process adversely impacted Caucasians is the evidence regarding the six promotions for which he was a candidate. As explained above, however, this evidence is drawn from too small a sample and must be disregarded. Morita, 541 F.2d at 220. Olayer has therefore failed to make out a prima facie case of disparate impact. Because he cannot carry this initial burden, Olayer's disparate impact claim fails.

Olayer's reliance on Watson, 108 S. Ct. 2777, is misplaced. In Watson, the Supreme Court held that disparate impact analysis may be applied to subjective or discretionary promotion systems. The Court remanded for consideration of plaintiff's claim of disparate impact growing out of four denials of promotion. However, the Court expressed no opinion on whether the plaintiff, who worked in an eighty-employee bank, would be able to make out a prima facie case on remand. The Court noted that "it may be that the relevant statistical base is too small to permit any meaningful statistical analysis." Id. at 2791.

AFFIRMED.