Unpublished Disposition, 940 F.2d 1534 (9th Cir. 1991)

Plaintiff Harry Herman appeals the grant of summary judgment to defendant on plaintiff's Title VII claims of disparate impact and disparate treatment, and the dismissal for lack of jurisdiction of plaintiff's claim for retaliatory failure to hire.

* Herman, an Asian-Pacific Islander, has been employed by the Customs Service since 1970. He has served as a Senior Inspector, a grade level GS-11 position, since 1975. Among other positions, Herman served as an Equal Employment Opportunity Commission representative in Los Angeles, 1973-1974, and as an EEOC Counselor in San Francisco, 1975 through 1982.

In October 1984, the position of Supervisory Customs Inspector, also grade level GS-11, became vacant in the San Francisco District of the Service. Because the position was a reassignment within the same grade level and did not increase the promotion potential of an employee within the grade, the Service was not required to use the formal competitive promotion procedure, the Merit Promotion Plan, to fill the vacancy. Instead, allegedly to expedite the selection process, the Service employed an alternate staffing method that did not require issuance of a vacancy announcement, establishment of a crediting plan, use of an evaluation panel, or preparation of a ranked selection list. However, the Service notified all Senior Inspectors of the opening. Herman and three others applied and were interviewed by a panel of three Chief Customs Inspectors. The panel then made recommendations to Paul Andrews, District Director, who selected Bill Henry based on Andrews' assessment and the interviewers' recommendations.

Herman filed an EEOC charge in which he alleged discriminatory treatment based on his race, Filipino, and national origin, Pacific Islander. The EEOC examiner rejected Herman's claims of disparate impact and disparate treatment, and refused to consider evidence of retaliatory failure to hire since it was not raised by Herman's EEOC charge or the EEOC investigation. Herman subsequently filed this Title VII action. The district court granted defendant's motion for summary judgment on the disparate treatment and impact claims. The court dismissed Herman's claim of retaliation for lack of subject matter jurisdiction because Herman failed to exhaust administrative remedies.¹ 

II

Herman claims Asians are disproportionately underrepresented in supervisory positions in the District because of the use of the alternative staffing method. To establish a prima facie case of disparate impact, "a [Title VII] plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989). According to Herman, the "specific or particular employment practice" identified in this case, the alternative staffing method, was used only once. It is impossible to conclude that any present racial imbalance in the work force was caused by the use of the method on a single occasion. Summary judgment was appropriately granted on this claim.

III

The district court found Herman had made out a prima facie case of discrimination based upon race and national origin, but the business reason offered by the Service for hiring Henry--namely, Henry's superior qualifications--was legitimate and nondiscriminatory. Herman contends the court ignored evidence he introduced to carry his burden of demonstrating the Service's proffered reason for rejecting him was a pretext for discrimination. See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1409 (9th Cir. 1987). A plaintiff can show pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Herman asserts he offered evidence that his qualifications were superior to Henry's. He points out he was a Senior Inspector for ten years to Henry's two years, served as a temporary supervising inspector on two occasions, and had more airport experience than Henry. However, affidavits from a member of the interviewing panel and the District director stated Henry was selected because of his superior communication skills and better rapport with coworkers. They also cited Henry's total of fifteen years of supervisory experience while an officer in the Air Force and while working in the Service and discounted Herman's experience in temporary supervising positions because it occurred at smaller ports and involved less responsibility than the District position. Herman fails to offer any evidence that the Service's proffered explanation for discounting Herman's experience is unworthy of credence. See, e.g., Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (summary judgment appropriate where plaintiff failed to offer evidence of professionalism and attitude required for position).

Herman argues discriminatory intent can be inferred from the Service's use of a subjective alternative staffing method rather than the more objective Merit Promotion Plan. He asserts the alternative staffing method was used for the first and only time during his application process, and that the method used an unstructured interview, allowed submission of only a brief resume, and did not include a written examination to test the abilities of the applicants. In contrast, the Merit Promotion Plan required rating and ranking of applicants plus submission of additional qualification statements.

In Casillas v. United States Navy, 735 F.2d 338, 345 (9th Cir. 1984), we held Title VII does not prohibit use of subjective criteria for employment. "Title VII is the law's promise that employment decisions will not be based on non-permissible discriminatory criteria, not that subjective criteria will be eliminated." Id. Herman does not allege how the procedure used by the Service in his case was discriminatory.²  The fact that the alternative staffing method was more streamlined than the Merit Promotion Plan is not enough to indicate it was used to discriminate. Furthermore, the evidence indicates the Service decided to use the procedure before it knew Herman would apply for the position.

Herman asserts no Asian employee has ever been promoted to a supervisory position in the District.³  At the EEO hearing, the District director testified this was because of the limited number of supervisory positions and the dearth of Asian employees qualified to apply for the openings. Herman responds that Henry's rapid rise from entry level position to supervisory position is evidence that positions were available. Evidence that a single non-Asian employee was able to obtain a supervisory position is not sufficient to create a genuine issue as to whether the proffered explanation was pretexual.

Because Herman failed to demonstrate any genuine issue of material fact concerning the Service's allegedly pretexual motive for not selecting him, we affirm the grant of summary judgment on his discriminatory treatment claim.⁴ 

IV

Herman claims the District did not select him because they feared he would bring an EEOC complaint. The district court dismissed this claim for lack of subject matter jurisdiction because it found Herman failed to exhaust his administrative remedies. Herman contends he raised his claim of retaliation in his formal EEOC charge.

"Federal court jurisdiction for a review of discrimination complaints in the federal sector requires an exhaustion of administrative remedies." Tanious v. Internal Revenue Serv., 915 F.2d 410, 411 (9th Cir. 1990). The purpose of the exhaustion requirement is to give the agency an opportunity to secure compliance with the law prior to the filing of a civil suit. Ong v. Cleland, 642 F.2d 316, 318-20 (9th Cir. 1981). A claim is exhausted only if it is sufficiently "like or reasonably related to the allegations of the EEOC charge." Oubichon v. Northern American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); see also Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir. 1984) (plaintiff's disparate treatment claim first raised in district court not reasonably related to EEOC complaint alleging only disparate impact). "In determining whether an allegation under Title VII is like or reasonably related to allegations contained in a previous EEOC charge, the court inquires whether the original EEOC investigation would have encompassed the additional charges." Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989).

In support of his argument, Herman cites the following language from his EEOC charge:

While being interviewed by Mr. Girardi and Chief Inspector Howard for the position in question, Mr. Girardi emphasized that I was a fair E.E.O. Counselor, to which I replied that I was a counselor in San Francisco for eight (8) years and have always tried my best to be fair. Mr. Girardi stated further "I hope you will not file an E.E.O. Grievance if you do not make it."

In the conclusion of his charge, Herman states he was not selected "due to his RACE (Asian-American: Filipino) and NATIONAL ORIGIN (Pacific Islander: Philippines)." No mention is made of non-selection due to retaliation. Furthermore, at the EEOC hearing Herman's attorney admitted the formal charge did not include an allegation of reprisal as a basis for non-selection, and that the Commission's investigation prior to the hearing did not explore any such allegations. We conclude Herman's retaliation claim was not reasonably related to his EEOC charge that he was not selected because of his race.

Herman contends he exhausted his administrative remedy by raising his retaliation claim orally at the EEOC hearing, even though the hearing examiner refused to hear the claim. Herman does not allege the hearing examiner erred in refusing to hear the claim, nor does he allege any equitable considerations that would excuse his failure to include the claim in the EEOC charge or an amendment to the charge. See Albano v. Schering-Plough Corp., 912 F.2d 384, 387 (9th Cir. 1990) (equitable considerations may excuse claimant's failure to exhaust administrative remedies when EEOC improperly refused to amend claimant's EEOC charge). The district court properly dismissed the claim.

AFFIRMED.⁵