Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

MEMORANDUM^** 

Loftis appeals the district court's grant of judgment in favor of the defendants in her employment discrimination suit. We affirm.

Loftis sued the Los Angeles Unified School District and seven of its officials, alleging employment discrimination based on her sex, race (white), and age (over 40). Loftis repeatedly and unsuccessfully applied for promotion from her teacher position to an administrative position as assistant principal. Loftis alleges that she was discriminated against because school district officials failed to provide her with assignments helpful for advancement, failed to appoint her to discretionary direct appointments, and withheld notification of promotion cycles. She seeks damages and injunctive relief under 20 U.S.C. § 1681 (Title IX of the Education Amendments of 1972); 29 U.S.C. § 623 (the Age Discrimination in Employment Act), 42 U.S.C. § 2000e (Title VII of the Civil Rights Act); 42 U.S.C. §§ 1981, 1983, 1985(3) (the Reconstruction Era statutes); the Fourteenth Amendment of the U.S. Constitution; Cal.Gov't Code Secs. 12940 and 12941 (prohibiting employment discrimination); and California law providing for an implied covenant of good faith and fair dealing in employment contracts and for recovery for intentional and negligent infliction of emotional distress.

The district court granted judgment for the school district following a bench trial. The court previously had granted partial summary judgment for three individual defendants and, following Loftis' case at trial, dismissed all claims against three other individual defendants.

We review de novo the district court's grant of summary judgment. E.E.O.C. v. Borden, Inc., 724 F.2d 1390, 1392 (9th Cir. 1984). We review the district court's findings of fact, including its finding on the ultimate issue of discrimination, under the clearly erroneous standard. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988); Stones v. Los Angeles Community College District, 796 F.2d 270, 273. We review de novo legal questions, such as the appropriate legal standard for evaluating evidence. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

To prove her employment discrimination claims, Loftis must establish either that she was the victim of disparate treatment--intentional discrimination--or that the district's policies or practices had a disparate impact--discriminatory effect. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36, n. 15 (1977). The same substantive requirement--proof of disparate treatment or of disparate impact--applies to claims filed under the Age Discrimination in Employment Act as to Title VII. See Teamsters, 431 U.S. at 335-36 n. 15 (Title VII); Borden's, 724 F.2d at 1392 (ADEA); see also North Haven Board of Education v. Bell, 456 U.S. 512, 530 (1982) (Title IX) (providing remedy of federal funds cutoff). A successful claim of discrimination under Secs. 1981, 1983, or 1985 requires proof of discriminatory intent. See Stones, 796 F.2d at 272 (Sec. 1981); B. Schlei and P. Grossman, Employment Discrimination Law 693-94 (1983) (Secs. 1981, 1983, 1985).

To prove disparate treatment, Loftis must show that the district or its officials had a discriminatory motive in rejecting her promotion requests. See Borden's, 724 F.2d at 1392. To prove disparate impact, Loftis need not show that the district intentionally discriminated against her. She need only show that facially neutral practices of the district had a disproportionately adverse impact on her because of her sex, race, or age and cannot be justified on the basis of business necessity. Teamsters, 431 U.S. at 336 n. 15.; Borden's, 724 F.2d at 132-93.

The district court found that the school district successfully rebutted Loftis' prima facie case of disparate treatment by articulating legitimate, nondiscriminatory reasons for rejecting Loftis' promotion requests. See McDonald Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The court found that Loftis failed to prove that the district or its officials intentionally discriminated against her because of her membership in a protected group, the ultimate question in a discrimination case. See United States Postal Serv. v. Aikens, 460 U.S. 711, 715 (1983).

The district court's decision was not clearly erroneous. The district court considered the shortcomings of the promotion process and the actions of the individual defendants in determining that no intentional discrimination existed. Considerable evidence of nondiscriminatory reasons for the challenged conduct was presented at trial. The district court found that Loftis was not promoted because of her problems in getting along with her peers and immediate superiors and her failure to request certain assignments, rather than as a result of her race, sex, or age. The district court found that those receiving the promotion were as qualified or better qualified than Loftis. It also found that white females, against whom Loftis claims the district and its officials discriminated, in fact received approximately 50% of the assistant principal and principal, elementary appointments made in Region A after 1978.

Title VII allows an employer to hire an employee "on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e) (emphasis added); see Dothard v. Rawlinson, 433 U.S. 321, 332-34 (1977). The district court referred to the school district's need to consider factors such as leadership qualities and ability to maintain successful working relationships with peers as a bona fide occupational qualification. Although we have sometimes used the phrase "bona fide occupational qualification" in the same manner as the district court, see, e.g., Frangrante v. City and County of Honolulu, No. 87-2921, slip op. 1709, 1714, 1717-21 (9th Cir. March 6, 1989), a requirement of leadership qualities more properly is characterized as a "legitimate, non-discriminatory reason" that an employer may cite to overcome a prima facie case of disparate treatment. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

The district court also found that the school district and its officials did not act in a retaliatory or harassing manner. The school district presented evidence responsive to Loftis' allegations of harassment and retaliation. The district court's conclusion is not clearly erroneous.

The district court found that Loftis established a prima facie case of disparate impact. To rebut such a claim, the school district may refute the statistical evidence and show that no disparate impact exists. See Connecticut v. Teal, 457 U.S. 440, 446 (1982). Alternatively, the school district may prove the job relatedness or business necessity of the challenged employment practices. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971). The district court determined that the school district successfully rebutted the disparate impact claim in both of these alternative ways.

Loftis claims that the district court made two legal errors in evaluating the statistical data and expert testimony of the parties. First, she maintains that because she is challenging the entire promotion process, each of its components must be examined to determine disparate impact. The school district's expert testimony addressed only the Training and Experience portion of the process because that was the only portion of the promotion process Loftis did not complete successfully. Second, Loftis argues that the court must address discrimination against her as a white female, as opposed to evaluating only discrimination against whites and females as two distinct groups. The school district's expert separately analyzed statistics by race and sex and did not combine them into the category of white females used by Loftis' statistical expert.

The district court erred in concluding that the school district's statistical expert rebutted Loftis' prima facie case. The statistical evidence and expert testimony cited by the district court only addressed the Training and Examination component of the promotion process. Loftis alleged discrimination in all aspects of the process and her statistical data purports to show discrimination in the entire promotion process. The school district argues that only the Training and Examination component need be addressed, because that is the part of the promotion process that Loftis failed. However, Loftis also unsuccessfully attempted to obtain an assistant principal position through the direct appointment process, a route separate from the Training and Experience evaluation process that fills approximately 25% of the positions. The school district's rebuttal failed to address this aspect of Loftis' allegations.

The district court also erred in failing to examine discrimination against white females as a group, as opposed to whites or females. Loftis may establish a prima facie case of disparate impact against white females, as opposed to whites or females, if she identifies specific employment practices and shows a causal relationship between the identified practices and the impact. See Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1988) (black males v. blacks); see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987); Jefferies v. Harris City Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) (black females v. blacks or females). The district court found that such a prima facie case had been established. It then accepted the school district's refutation of that prima facie case based on an analysis of whites and women as separate categories. Id. at 37-38.

The school district incorrectly reads Robinson to state that discrimination claims against subgroups such as white females are not required. The issue in Robinson was whether the evidence presented by Robinson was sufficient to make out a prima facie case of disparate impact against black males, not whether such a subgrouping was valid. See Robinson, 847 F.2d at 1318; id. at 1321 (Pregerson, J., dissenting).

In sum, the school district's statistical evidence failed to refute Loftis' prima facie case of disparate impact because it left untouched two aspects of that case. The school district's statistical evidence (as described by the district court) did not address the complete promotion process. Nor did it address the subgroup of white females, as opposed to whites or females, although the district court found that Loftis had made out a prima facie case of discrimination against white females.

The district court found that the school district had legitimate reasons for the practices that prevented Loftis from receiving a promotion. The court stated that Loftis' prima facie case was rebutted by a showing of "bona fide occupational qualification." It stated that the Training and Examination process, but not any other challenged practice, was "valid and job related." It also stated that the school district's "proof of business necessity and of existing social factors" refuted the prima facie case. Citing Burdine, the district court also stated that no applicant with lesser qualifications was given a position sought by Loftis.

The district court used an incorrect legal standard in reaching its result. A prima facie case of disparate impact is not rebutted by showing that no lesser qualified applicants were promoted. The practice must be shown to be job related. See Albermarle, 422 U.S. at 425. Nor do "existing social factors" provide a basis for overcoming a prima facie case. The district court cites no authority for this proposition, nor do the appellees attempt to defend it.

In its opinion, the district court focused on detailing why the Training and Experience component was a valid, job related practice. It discussed other challenged practices, such as the direct appointment process, in a conclusory way. However, the district court did state that Loftis' failure to receive a direct appointment was due to her lack of rapport with other faculty and school officials, as opposed to any discriminatory motive on the part of school officials. As discussed above, the district court determined that Loftis lacked the necessary leadership qualities and ability to maintain successful working relationships. We interpret these statements of the district court to be a finding of business necessity for the school district's failure to promote Loftis through the direct appointment process. (We read the district court's use of the phrase "bona fide occupational qualification" in its disparate impact analysis as a synonym for the business necessity defense, as we did in the disparate treatment analysis.)

In sum, the district court's determination that the school district rebutted the prima facie case of disparate impact is not clearly erroneous.

Based on the expert testimony of the school district, the court properly determined that Loftis failed to prove adverse impact against those over 40. The district court also properly found that business necessity justified the school district's limiting its consideration of a candidate's experience to that of the last ten years in the Training and Experience component.

Loftis alleged that the school district and its officials were liable for negligent or intentional infliction of emotional distress. The district court found no evidence that any of the defendants "ever acted intentionally, outrageously or with reckless disregard so as to cause plaintiff emotional distress." Loftis did not present any evidence rebutting this finding of the district court, which forms a sufficient basis for upholding its determination as not clearly erroneous. The cases Loftis cites in support of her statement that the conclusion of the district court was erroneous concern the standards for bringing, as opposed to proving, a claim. See Molien v. Kaiser Found. Hosps. 27 Cal. 3d 916, 167 Cal. Rptr. 831, 616 P.2d 813 (1980); Alcorn v. Anbro Eng'g, Inc., 2 Cal. 3d 493, 86 Cal. Rptr. 88, 468 P.2d 216 (1970).

The district court stated that it found no evidence that the school district or its officials used anything but good faith in dealings with Loftis. Although Loftis has offered evidence disputing that conclusion, she has not established it to be clearly erroneous. Both the emotional distress and good faith claims are fact-driven and heavily dependent on the credibility of witnesses. The school district did present evidence refuting Loftis' allegations. That evidence is sufficient to support the district court's determination.

F. Dismissal for Lack of Authority over the Promotion Process and Qualified Immunity

The district court's dismissal of the claims against certain individual defendants on the grounds that they acted in good faith and thus enjoyed qualified immunity is consistent with its later conclusion that Loftis was not a victim of disparate treatment. We need not reach the issue of qualified immunity because we uphold the district court's conclusion on the disparate treatment issue. Similarly, we need not address the grant of partial summary judgment to certain defendants on the grounds that they lacked authority over the promotion process because we uphold the district court's conclusion on the disparate treatment issue.

In her opening brief, Loftis attacked certain evidentiary rulings of the district court. We review evidentiary rulings for abuse of discretion and will not overturn a ruling unless prejudice is shown. Roberts, 870 F.2d at 1418. Contrary to Loftis' assertions in the brief, the district court did not prevent Loftis' expert from presenting any testimony for which a proper foundation existed. Counsel for Loftis ultimately succeeded in presenting the challenged testimony for consideration by the court. No prejudice is shown. Loftis did not assert, much less demonstrate, that prejudice resulted from the exclusion of testimony from Kitzerow.

AFFIRMED.