Unpublished Disposition, 931 F.2d 59 (9th Cir. 1991)

MEMORANDUM^* 

In this civil rights action, Robert Enright alleges that California State University, Chico refused to hire him because of his sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1988). He contends that the University's affirmative action plan is invalid and that, alternatively, because the University failed to follow its own personnel procedures, it is precluded from relying on its affirmative action plan. The district court granted summary judgment for the University, concluding that the University had not engaged in unlawful discrimination. We affirm.

Title VII of the Civil Rights Act of 1964, provides that it "shall be an unlawful employment practice for an employer ... to fail to refuse to hire ... any individual ... because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a) (1). Nevertheless, an employer may adopt an affirmative action plan provided that "a 'manifest imbalance' exists, reflecting underrepresentation of women and minorities in 'traditionally segregated job categories.' " Davis v. City and County of San Francisco, 890 F.2d 1438, 1448 (9th Cir. 1989) (quoting Johnson v. Transportation Agency, 480 U.S. 616, 631 (1987)), cert. denied, 111 S. Ct. 248 (1990).

Enright contends there was no manifest imbalance in this case because the University attained its affirmative action goal by hiring one woman. We disagree. The University sets its affirmative action goals by comparing "the availability of minorities and women having the requisite skills in an area in which the campus can reasonably recruit." Here, the University has shown a statistical imbalance between its work force and the applicable work force. Accordingly, the manifest imbalance requirement has been satisfied. See id.

Enright also contends that the job category at issue was not a "traditionally segregated job category." We reject this contention as well. The University has shown that its hiring practices have resulted in segregation, and that its plan was adopted to eliminate "the continuing effects of discrimination which has resulted in the limited representation of protected class members in certain occupations." Moreover, the University's plan was used to attain rather than to maintain its affirmative action goals. The University's adoption and implementation of its plan was therefore lawful. See Higgins v. City of Vallejo, 823 F.2d 351, 357 (9th Cir. 1987), cert. denied, 489 U.S. 1051 (1989).

Enright complains that the University failed to follow certain personnel procedures when it refused to hire him. We note that "evidence that the employer violated its own affirmative action plan may be relevant to the question of discriminatory intent." Gonzalez v. Police Dept., 901 F.2d 758, 761 (9th Cir. 1990). In this case, however, we agree with the district court that the University's deviations from its established personnel procedures were immaterial. Although certain communications between the hiring committee, the affirmative action committee, and the vice president were inconsistent with prescribed personnel procedures, these deviations did not violate the University's affirmative action plan. The final hiring decision was made by the vice president, who had the ultimate authority for hiring personnel and for enforcing compliance with the affirmative action plan. The plan requires that protected class members "be selected in hiring ... decisions in those instances where they have been adjudged substantially equal in qualifications to non-protected class members." The vice president stated that the woman candidate "was at least as qualified, if not better qualified, than Robert Enright." Hiring the woman candidate was consistent with the University's plan.

AFFIRMED.