Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

No. 89-16031.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, and ALDISERT^*  and FERGUSON Circuit Judges.

MEMORANDUM^** 

Glenda E. Johnson appeals the judgment denying her relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, for racial discrimination allegedly practiced by the Forest Service, a branch of the United States Department of Agriculture ("USDA").

In 1986, the Forest Service rejected Johnson, a black woman who served as Civil Rights Director for the Food and Nutrition Services, for appointment as Equal Employment Manager ("EEM") in the USDA's Pacific Southwest region. The position went instead to JoAnn Brechbill, a white woman who was then the Administrative Officer for the Mt. Hood National Forest and Director of the Forest Service's Equal Employment Office program. Because Johnson failed to satisfy her burden of persuasion under either a disparate treatment or disparate impact theory of the case, the trial court found for the Forest Service. We affirm.

The district court found that Johnson had established a prima facie case of discriminatory treatment. Assuming that this conclusion of law is correct, we nevertheless affirm the district court's ultimate conclusion that the defendant rebutted the presumption of discrimination thus created. The Forest Service defended on the theory that Johnson was not hired, in significant part, because "the selectee was generally viewed as the stronger candidate." Specifically, the defense witnesses maintained that in addition to her knowledge of the Forest Service, the diversity of her work experience (which included her direction of the Forest EEO program) provided [the selectee] with a wide range of management and supervisory skills. The proffered reason is legitimate, nondiscriminatory, clear and reasonably specific. Cf. Casillas v. United States Navy, 735 F.2d 338, 344 (9th Cir. 1984).

Because the defense rebutted the presumption of discrimination, Johnson--who retains the burden of persuasion--must "demonstrate that the proffered reason was not the true reason for the employment decision...." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The district court held that Johnson had failed to do so. We agree.

The failure of the Forest Service to inform Johnson that her application was incomplete (which was contrary to its alleged usual practice of returning incomplete forms) cannot be deemed anything more than an administrative error or oversight. Even assuming that the Forest Service's admitted practice of promoting from within the agency tends to exclude blacks from certain upper-level positions because of their underrepresentation throughout the service in rural areas, Johnson failed to show a hiring barrier to minorities for low-to mid-level positions. She therefore produced no evidence that USDA or Forest Service policy resulted from a discriminatory purpose. Johnson offers no evidence to undercut the USDA's contention that the gross racial imbalance among employees at the agency is due to attrition and an inability to recruit minorities because of substantial budget cuts. The trial court declined to conclude that the racially mixed selection panel was biased against minorities on the basis of a single off-color remark made by one of its members. We find no error on this point. Finally, we agree that the trial court could find nothing strikingly suspect about the selection committee's choice, based on the comparative qualifications of Johnson and the selectee.

To establish a prima facie case of disparate impact, a plaintiff "must demonstrate that it is the application of a specific and particular employment practice that has created the disparate impact under attack." Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct. 2115, 2125 (1989).

One proper gauge of disparate impact is a comparison "between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs." Id. at 2121. Johnson offers statistics which, if true, show merely that Forest Service employment of blacks does not match the percentage of black men and women in the national work force. These figures do not of themselves demonstrate that the Forest Service employs an insufficient number of blacks who are willing and qualified to work there.

Even if Johnson has proved that the promotion from within the agency, policy has a disparate impact on black workers seeking higher paying positions, she fails to meet her burden of isolating and identifying "the specific employment practices that are allegedly responsible for any observed statistical disparities." Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Johnson makes no showing, for example, that the Forest Service has consistently or repeatedly failed to notify black candidates that their applications are incomplete. Indeed, what evidence there was on this point tended to prove that the alleged notification failure was an isolated incident rather than a pattern or practice. On another point, Johnson fails to prove that the selection panel's use of the "potential to perform" criterion caused any negative impact upon minority promotion. Indeed, it is entirely plausible, if not likely, that the effect of using the "potential" criterion would be to benefit the employment opportunities of those minority workers who have limited relevant work experience.

We find no error in the court's failure to find for the plaintiff on the disparate impact theory.

The trial court excluded testimony offered by Johnson's witness, Cheryl James, that the selectee, after she had been appointed, told James that she knew nothing about, had no desire to learn about, and would not learn about civil rights. Despite Johnson's contention that the statement was admissible as an admission of a party-opponent under Fed.R.Evid. 801(d) (2),¹  the trial court concluded that the selectee was not a party and that the statement constituted inadmissible hearsay under Fed.R.Evid. 801(c);² 

We need not decide whether the trial court erred in not treating the proffer as an admission by a party-opponent. Even if the statement could have been received as an exception to the hearsay rule, the error would not require reversal. "To show reversible prejudice a party must demonstrate that the ... erroneous evidentiary ruling more probably than not was the cause of the result reached by the court." Jauregui v. City of Glendale, 852 F.2d 1128, 1133 (9th Cir. 1988). Admission of the testimony would have helped Johnson, if at all, only in making her prima facie case of disparate treatment by challenging, after the fact, the qualifications of the person appointed. Overall, Johnson offered virtually no evidentiary support for her treatment claim. The district court was not likely, therefore, to reach a different result on the basis of James' offer to testify about an out-of-court statement attributed to the selectee.

The trial court committed no error in excluding the testimony of James that the selectee was unqualified for the job. FRE 701 limits the testimony of non-expert witnesses to those opinions that are "helpful to ... the determination of a fact in issue." Fed.R.Evid. 701(b). This rule means that "meaningless assertions which amount to little more than choosing up sides" are excluded. Fed.R.Evid. 701(b) advisory committee's note. One factual issue in shifting the burden of going forward was whether the selectee was herself qualified for the job. Excluding James' testimony did not prevent her from testifying that the selectee was an inept office manager, or that the selectee's knowledge of civil rights laws was weak. Rather, it prohibited giving evidentiary status to her conclusion that the selectee was unqualified to be the EEM. Such a conclusion would not have helped the court decide that factual question for itself.

AFFIRMED.