Unpublished Disposition, 872 F.2d 428 (9th Cir. 1985)

MEMORANDUM^* 

Denise Jackson ("Jackson") appeals from the district court's entry of summary judgment in favor of defendants San Jose Water Co. ("SJWC") and Nancy O'Connor ("O'Connor") in a race discrimination action brought by Jackson under 42 U.S.C. § 1981, 42 U.S.C. § 1983,¹  and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.²  We affirm.

In June, 1985, SJWC had an opening for a cashier.³  O'Connor, SJWC's employment supervisor, selected twenty-one applicants, including Jackson, to be interviewed. Of the twenty-one applicants selected, nine were white, six were Black, four were Hispanic, one was a Pacific Islander, and one was Asian.

Jackson was interviewed on June 28, 1985. She was the last person interviewed for the position. Following the interview, O'Connor rejected Jackson for the position, allegedly because Jackson lacked recent work experience dealing with the public and using a ten-key adding machine, had not been employed for an extended period of time, and did not present a neat, businesslike appearance at the interview because she had garish eye makeup and untidy hair. Jackson, like six other applicants including four whites, an Asian, and a Pacific Islander, was not asked to take a test designed to determine proficiency on a ten-key adding machine following her interview. The fourteen other applicants, including five Blacks, passed the interview and were given the test. Three people, all Hispanic, passed the test.

The woman who was hired to fill the cashier position, Magdalena Grimaldo, allegedly presented a neat, businesslike appearance, conducted herself during the interview in a friendly manner, and exhibited good communication skills. She had been employed continuously since 1981 as a teller in a credit union handling large sums of money and dealing with the public on a frequent basis. She understands Spanish, which is considered helpful since many of SJWC's customers are Spanish speaking. Grimaldo passed the ten-key adding machine test with high marks.

DISCUSSION

Jackson's race discrimination claim is premised on a disparate treatment theory, rather than a disparate impact theory. To establish a prima facie disparate treatment case, the plaintiff must show intentional discrimination. Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982).

The plaintiff initially has the burden to produce evidence establishing a prima facie case of racial discrimination. A prima facie case of race discrimination is established if the plaintiff can show (1) that she belongs to a racial minority, (2) that she applied and was qualified for a job for which the employer was seeking applicants, (3) that she was rejected for the position, and (4) that after her rejection, the position remained open and the employer continued to seek applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).⁴  The four factors set forth in Green were meant to be flexible guidelines, not absolute requirements for every disparate treatment case. The plaintiff can make out a prima facie case of disparate treatment as long as she produces enough facts to raise an inference of intentional discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978); Gay, 694 F.2d at 538.

Jackson belongs to a racial minority and can establish that she applied and was rejected for the position. She cannot show that the position remained open after she was rejected, since she was the last applicant interviewed and Grimaldo was selected immediately thereafter. However, it is not fatal to Jackson's case that the position did not remain open after she was rejected. Peters v. Lieuallen, 693 F.2d 966, 969 (9th Cir. 1982) (Peters I) .

Jackson also offers evidence that she was at least minimally qualified for the position. Her resume indicated that she had at least two years of continuous experience as an accounting clerk and several months of prior experience as an office manager and as an accounts payable supervisor. Jackson alleges that she had extensive experience with the ten-key adding machine and that she did present a businesslike appearance at the interview.

Finally, Jackson alleges that O'Connor's behavior immediately before and during the interview indicated that O'Connor did not take Jackson's interview seriously once O'Connor discovered that Jackson was Black. Jackson contends that when O'Connor entered the reception room to greet Jackson, O'Connor extended her hand before looking at Jackson. When she looked at Jackson, her mouth dropped and she retracted her hand. Then she again extended her hand and shook Jackson's hand lightly and briefly. O'Connor attributes her initial reaction to Jackson's garish eye make-up and untidy hair.

Jackson can show that she was at least minimally qualified for the cashier position and offers other evidence from which a trier of fact could infer that O'Connor might have rejected Jackson for the position because of Jackson's race. We assume arguendo that Jackson has raised an inference of race discrimination and thus has established a prima facie case.

II. Legitimate, Nondiscriminatory Reasons for Refusal to Hire

The burden next shifts to the defendants to articulate legitimate, nondiscriminatory reasons for refusing to hire Jackson. Green, 411 U.S. at 802. Demonstrating that the employee hired for the position was substantially more qualified than the plaintiff may constitute a legitimate reason for refusing to hire the plaintiff. Parsons v. County of Del Norte, 728 F.2d 1234, 1239 (9th Cir. 1984).

O'Connor has alleged that she rejected Jackson for the position because Jackson lacked recent work experience dealing with the public and using a ten-key adding machine. In addition, Jackson had not been employed for an extended period of time and did not present a neat, businesslike appearance at the interview. SJWC and O'Connor also have demonstrated that the person chosen for the position was substantially better qualified than Jackson.

The defendants have offered evidence that Jackson was not hired because she was considered unqualified. They also have demonstrated that the woman hired for the job was considered far more qualified than Jackson and the most qualified for the job. Thus, they have met their burden of articulating legitimate, nondiscriminatory reasons for refusing to hire Jackson.

Once the defendants have articulated nondiscriminatory reasons for their decision not to hire Jackson, the burden shifts back to Jackson to offer evidence that those reasons were a pretext for discrimination. Green, 411 U.S. at 804. When the employer has introduced evidence that the person hired was more qualified than the plaintiff, the plaintiff's subjective personal judgment that she was equally qualified does not raise a genuine issue of material fact on the issue of pretext. Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir. 1986). Thus, Jackson must do more than show that she felt she was qualified for the position. She must show that the company actually rejected her on the impermissible ground of race discrimination.

Jackson contends that the claim that she was not hired because of her garish and untidy appearance is pretextual. However, the defendants did not reject Jackson solely because of her appearance. The defendants have also shown that they considered Jackson unqualified because of her lack of recent related work experience and her lack of steady work experience in previous years. These objective criteria support the legitimacy of SJWC's refusal to hire Jackson.

Jackson contends that the company's claim that she was unqualified because of her work history is pretextual because O'Connor granted Jackson an interview on the basis of Jackson's resume which showed that she lacked recent work experience. However, when Jackson was granted an interview, O'Connor had not already interviewed the twenty other applicants. By the time Jackson was interviewed, O'Connor knew that she had other qualified applicants who had passed the ten-key adder test and who had more stable work histories than Jackson. Thus, even though O'Connor had initially decided to interview Jackson knowing that she had not worked steadily in prior years, the company legitimately could reject her on the basis of her work experience as compared to that of other applicants.

Finally, Jackson contends that O'Connor could not determine that Jackson was unqualified for the position until she was given a ten-key adding machine test. Once again, by the time Jackson was interviewed, O'Connor legitimately decided that it was not worth giving Jackson the ten-key adding machine test because the information provided at Jackson's interview proved she was less qualified than the three applicants who had already passed the test.

In addition, Jackson's contention that she was not given the test because she is Black is weakened by the fact that five other Blacks were given the test. "The fact that a particular screening device admits some members of a protected class does not demonstrate an absence of discrimination." Peters I, 693 F.2d at 970. The defendants could not rely solely on the fact that other Blacks passed the interview to show that there was no discrimination against Jackson but this evidence is of some significance to rebut a claim of pretext. Peters II, 746 F.2d at 1392-93.

SJWC and O'Connor have offered substantial evidence that the woman hired for the cashier position was more qualified than Jackson. In addition, they have demonstrated that they considered Jackson to be unqualified, on the basis of both objective and subjective criteria. Jackson has failed to demonstrate that the legitimate and nondiscriminatory reasons for the defendants' refusal to hire her were a mere pretext. Thus, Jackson did not offer sufficient evidence of intentional discrimination to withstand summary judgment on her Title VII, Sec. 1981, and Sec. 1983 claims.

AFFIRMED.