Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1983)

MEMORANDUM^** 

OVERVIEW

Norman A. Harris appeals the district court's judgment in favor of the United States Postal Service in his action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Harris contends that he was discriminated against when he was terminated from his position as a postal inspector. We affirm.

FACTS¹ 

Norman Harris, who is black, was employed with the United States Postal Service from 1970 to 1981, when he was promoted to the position of postal inspector. He served in this position from March 7, 1981 to July 8, 1983, when he was terminated after an investigation into charges of his misconduct in a check theft case.

The facts concerning the check theft case and Harris's dismissal are as follows. In February 1982, Harris received a phone call from a bank security officer regarding the theft of mail containing checks. Harris attended a meeting regarding the mail theft, and three prime suspects were identified at this meeting--Ann Scott, Gardenia Morrison, and Jeanean Lee. It was decided that Harris would conduct the investigation and he was given four checks with forged signatures in connection with his investigation.

Harris interviewed Ann Scott, one of the suspects in the investigation. Scott had already been charged with forging two Washington State checks, and she was awaiting the disposition of that case. She admitted to Harris that she had stolen and forged eight or nine checks, and she wrote out a statement admitting this. Harris was required under Postal Service investigation procedure to obtain Scott's fingerprints and a handwriting sample, and to have her write out the suspected forged endorsement in the same manner as it appears on the check. Harris did not, however, take fingerprints or a handwriting sample at this time. Harris returned to Scott's apartment to obtain this information. Although Harris obtained a writing sample of block printing, he did not obtain a writing of the endorsement names.

Postal Service policy also requires that when a suspect is identified, an investigative file should be opened or jacketed in the name of the suspect. Harris jacketed such a file under the names of the other two suspects, but not Ann Scott. Harris also submitted the fingerprints and handwriting exemplars of the other two suspects to the Inspection Service Laboratory, but he did not do so for Ann Scott. When the laboratory analysis of the other two suspects was negative, Harris requested that the case on the two be closed.

The magistrate also found, on disputed evidence, that Harris made a number of false statements to the bank officer, an investigator for the state Department of Social and Health Services, and other postal investigators, regarding his investigation of Ann Scott.

In early 1983, Ann Scott told Lyle Workman, a special agent for the United States Secret Service, that Harris had tried to date her, and that Harris told her that she would not be prosecuted for any stolen checks other than those involved in the state charges. Harris denies these allegations.

Agent Workman wrote a report detailing Harris's alleged misconduct. The acting inspector in charge of the Seattle division ordered an investigation in response to this report.

On May 6, 1983, after an investigation, the Postal Service notified Harris that it was proposing to discharge him. The notification listed five specific grounds: (1) failure to report fully facts and information disclosed by his investigation to Inspection Service Management; (2) failure to investigate adequately thefts of checks, contrary to instructions; (3) furnishing a false statement to postal investigators; (4) furnishing false information concerning a matter under investigation; and (5) engaging in an action which might create the appearance of losing independence or impartiality, and soliciting or accepting a favor from a person with interests that may be substantially affected by the performance or nonperformance of official duties.

On June 27, 1983, the Chief Inspector of the Western Region notified Harris that the fifth ground was not sustained, but that the first four charges were fully sustained and warranted Harris's discharge.

Harris filed a federal complaint under Title VII of the Civil Rights Act of 1964, contending that his termination was the result of racial discrimination. The magistrate found that Harris's dismissal was not the result of discriminatory action, and entered judgment against Harris. Harris timely appeals.

ANALYSIS

* Standard of Review

This court reviews for clear error a district court's finding regarding discrimination. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).

II

No Discrimination

To establish that he was discriminated against in being discharged from employment, Harris must first establish a prima facie case of discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988). If he establishes a prima facie case, the burden of production then shifts to the employer to articulate a legitimate reason for the adverse employment decision. Id. If the employer carries this burden, Harris then has the opportunity to demonstrate that this stated reason was a pretext or discriminatory in its application. Id. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." See Burdine, 450 U.S. at 253.

The elements of a prima facie case of discrimination in the context of discharge from employment are: (1) the employee is within a protected class; (2) the employee was performing his job well enough to rule out the possibility that he was fired for inadequate job performance; and (3) the employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills. See Pejic, 840 F.2d at 672.

Harris has satisfied only two prongs of this test. Harris is black, and therefore he is a member of a protected class. See United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 202 (1979) ("Congress' primary concern in enacting the prohibition against racial discrimination in Title VII of the Civil Rights Act of 1964 was with 'the plight of the Negro in our economy' " (quoting 110 Cong.Rec. 6548 (1964) (remarks of Sen. Humphrey)). In addition, although not stated in the trial record, this court assumes that the Postal Service continues to need postal inspectors with qualifications similar to those possessed by Harris.

The record shows, however, that Harris was discharged because of his on-the-job misconduct and inadequate job performance. The magistrate found that Harris was generally considered to be a capable inspector, and that he received three commendations for his work. But with regard to the Scott investigation, the magistrate found that Harris intentionally mishandled the investigation. The magistrate further found that Harris intentionally made misstatements regarding the Scott investigation, and that the four grounds for Harris's discharge were legitimate.

These findings are reviewed for clear error. See Bessemer City, 470 U.S. at 573. A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n. 14 (1982) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

We conclude that the magistrate's findings were not clearly erroneous. The trial record supports the magistrate's conclusion that Harris was discharged because of job performance and misconduct. Postal Service procedure requires that an inspector obtain fingerprints and writing exemplars from the suspect, and jacket a file under the name of all suspects of check theft. However, Harris failed to submit the fingerprints and handwriting exemplars of Scott to the lab for their analysis. Thus, the magistrate correctly found that Harris failed to fully report the facts and information disclosed from his investigation of Ann Scott, and that he failed to investigate this case adequately. In addition, the special postal investigators testified that Harris gave contradictory explanations for his handling of the Scott investigation. Although Harris disputes this testimony, the magistrate's conclusion that Harris made false statements to the postal inspectors conducting the special investigation was not clearly erroneous.

Because the evidence shows that Harris was discharged for inadequate job performance, he has failed to establish a prima facie case of discrimination. See Pejic, 840 F.2d at 672.² 

Most of Harris's brief is devoted to his argument that similarly situated white employees received less severe treatment, and that therefore the reasons set forth for discharging Harris were pretext, and his argument that there was a "discriminatory atmosphere" in the Postal Inspection Service which supports his contention that his discharge was pretext.

Because we conclude that Harris has failed to satisfy his initial burden of establishing a prima facie case of discrimination, we need not address whether the Postal Service articulated a legitimate reason for its action, or whether this reason was pretext. See Burdine, 450 U.S. at 252-53.

AFFIRMED.