Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1323 (9th Cir. 1987)

Clayton A. ROBARCHEK, Plaintiff-Appellant,v.CALIFORNIA STATE UNIVERSITY, Defendant-Appellee.

No. 88-1720.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 15, 1989.Decided July 25, 1989.

Before CHOY, SNEED and NOONAN, Circuit Judges.


MEMORANDUM* 

Dr. Clayton Robarchek appeals from the district court's grant of summary judgment to California State University. Robarchek sued the University under 42 U.S.C. § 2000e-2(a) for sexual discrimination. Robarchek, a white male professor, contends that the University discriminated against him in favor of a woman when hiring for a tenure-track position in 1985. He also claims that he was not rehired for a yearly teaching position in 1984 due to retaliation because he had previously filed a complaint with the California Department of Fair Employment and Housing ("DFEH") concerning the University's hiring practices.

Robarchek failed to show facts sufficient to establish a prima facie retaliation claim. He did, however, raise a genuine issue of fact concerning whether sex was impermissibly considered in the tenure-track employment decision. Therefore, while the district court's grant of summary judgment on the retaliation claim is affirmed, the grant of summary judgment on the reverse discrimination claim is reversed, and the case is remanded for further proceedings.

FACTUAL BACKGROUND

In 1981, Dr. Robarchek made his first application for a teaching position with the Anthropology Department at California State University, Chico. His application for this tenure-track position was rejected. The Department chose a woman, Dr. Carol Mukhopadhyay.

Robarchek was subsequently hired to fill a temporary teaching position for the 1983-1984 academic term while two professors were on sabbatical leave. Robarchek taught courses in the absent professors' areas of specialization. During this year, Robarchek filed a complaint with the DFEH alleging reverse discrimination in the selection of Mukhopadhyay for the 1981 position.

At the end of the 1983-1984 academic year, Robarchek applied for another one-year temporary position which was becoming available for the 1984-1985 academic year due to the sabbatical leave of two different permanent professors. The position required the replacement professor to teach different courses from those required in Robarchek's previous temporary position. Robarchek was a finalist for this position, but another man was chosen.

In 1984, the Anthropology Department put out an advertisement for applications for a tenure-track position available August, 1985. During the autumn of 1984, a departmental committee chaired by Dr. Mukhopadhyay developed hiring guidelines and evaluation criteria for the position. The guidelines included special procedures for dealing with affirmative action applicants.

The hiring guidelines provided for a four-step hiring process. First, the applications were to be reviewed to ensure that each applicant possessed the minimum education and experience listed as requirements in the advertisement. Next, three faculty members were to evaluate each application independently on the basis of seven criteria developed by the Department.1  The twenty applicants with the highest average score would remain in contention for the position. At this point, each member of the personnel committee would reevaluate the candidates using the same seven criteria. The top ten candidates would then become semi-finalists.

This is the first point in the process where affirmative action considerations would have an effect. If there were no affirmative action candidates among the 10 semi-finalists, the guidelines provided that the two top-ranked affirmative action candidates be added to the semi-finalist list.

In evaluating the semi-finalists, the personnel committee was supposed to consider two additional criteria. The committee members were to attempt to assess the "communicative and interpersonal skills" of the applicants. They were also supposed to analyze how well the candidates could meet the Department's desire to service students from the "non-traditional student population" by looking at (1) the candidates' ability to serve as role models to such students, (2) the candidates' sensitivity to the problems of such students, and (3) the candidates' willingness to give additional counseling to such students. After adding the scores for these additional criteria, each committee member was to rank the candidates in order of preference. These scores were totaled to choose the finalists.

The guidelines provided for an indefinite number of finalists, depending on the funds available to interview candidates. The committee was required to interview at least four candidates. If no affirmative action candidates were among the top four candidates, the committee was to add the top-ranked affirmative action candidate to the list of those to be interviewed. After the interviews, the committee would re-rank the finalists. The Department would then recommend to the University administration that the highest ranked person be hired.

In January, 1985, Robarchek applied for the advertised position. He was one of 67 candidates who was found to meet the minimum requirements for the position. After the three faculty members evaluated the applications, Robarchek was ranked twenty-ninth. He received a form letter stating that his application was no longer being considered.

After the preliminary screening the applicant pool consisted of 13 men and 7 women. The finalists consisted of 4 men and 3 women,2  Only the three women were interviewed in person. A woman was ultimately chosen.

On September 9, 1986 Robarchek filed his complaint in district court. On December 30, 1986 the complaint was served upon the University, which filed its answer on January 16, 1987. In April, 1987, the University moved for summary judgment. On October 23, 1987, the district court judge heard the motion for summary judgment. The order dismissing the action was filed in January, 1988. Robarchek timely appealed.

DISCUSSION

To make a preliminary showing of unlawful discrimination under Title VII, the plaintiff must show only that sex was considered in the employment decision. Johnson v. Transportation Agency, Santa Clara Cty., California, 107 S. Ct. 1443, 1449. Once a plaintiff has made such a showing, the burden shifts to the employer to articulate a nondiscriminatory reason for its decision. Id. The existence of an affirmative action plan provides such a reason. Id. If such a plan is given as the reason for the employer's decision, the plaintiff has the burden of showing that the plan was invalid. Id.

To support his claim that the Department impermissibly considered sex in its hiring decision, Robarchek points to the University's "Workforce [sic] Analysis." This document shows that it was the Department's goal to hire a woman for the position that was becoming available in the 1985-1986 academic term. Robarchek also points to the Department's hiring guidelines which provided for additional steps to be taken if the ordinary evaluation process did not produce affirmative action candidates at the semi-finalist and finalist stages. Robarchek also challenges the inclusion of one of the criteria at the finalist stage, that attempted to measure the candidate's sympathy to the needs of minority and women students, and the candidate's ability to serve as a role model to such students. He claims that this criterion would necessarily give extra points to affirmative action candidates.

This evidence is sufficient to raise a reasonable inference that the Department took sex into consideration in its hiring decision. The burden therefore shifts to the University to show that it had valid reasons for doing so. The Department, in its motion for summary judgment, made no real attempt to show that its affirmative action plan provided a legitimate reason for considering sex in its decision.3  Rather, the Department claims that it ultimately did not take sex into consideration at all.

The Department claims that because of the high quality of the affirmative action candidates, it did not need to resort to its affirmative action plan. However, the Department presents no evidence about the relative qualifications of the various candidates. Given the Department's stated goal of hiring a woman and its creation of a formal affirmative action plan, the Department's assertion that it ultimately made its decision in a gender-blind fashion is unpersuasive.

The Department also argues, and the district court appears to have agreed, that the mere fact that 13 of the 20 final applicants and 4 of the 7 finalists were male proves sex was not considered in the hiring decision. However, the fact that there were some men left in the applicant pool at various stages of the process is not sufficient to show that sex was not impermissibly considered in the hiring decision. If that were the case, any employer wishing to discriminate against a class while successfully defeating any charge of discrimination, could simply leave a certain number of members of the disfavored group in the pool until the final decision. See Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982). Robarchek contends that the male applicants left in the pool at the finalist stage were not under serious consideration for the position. To support this claim, Robarchek notes that none of the male finalists received an on-campus interview, while all of the female finalists were interviewed in person. The University has not presented any reason for its decision to interview only the female finalists. The females were not the highest ranked candidates prior to the interviews.

The fact that the Department interviewed only women candidates lends credence to Robarchek's claim that the Department was only considering the female candidates and weakens the Department's argument that the composition of the finalist pool shows a lack of discrimination.

The district court also considered the fact that Robarchek was not among the finalists as proof that Robarchek could not show that he was harmed by the Department's alleged discrimination. Since Robarchek was only ranked 29th out of 67, the court stated, he would not have received the position in the absence of any discrimination. However, if as Robarchek alleges, the Department was only truly considering the female candidates, the ranking of the male candidates may have been arbitrary.4  Therefore, the fact that Robarchek was not among the top candidates is not fatal to his claim of illegal sex discrimination on a motion for summary judgment.

Given the clear evidence that the Department intended to consider sex in its hiring decision, the mere allegation that it did not ultimately do so is not sufficient to meet the Department's burden of production. The fact that several men were left in the pool of candidates until the ultimate selection does not show that sex was not considered. Nor does the fact that Robarchek was not among the finalists show that he was not harmed. A reasonable juror could, based on the evidence before the trial court, find that the Department impermissibly considered sex in its hiring decision, and that Robarchek was harmed by this discriminatory conduct. Therefore, the grant of summary judgment on this claim is reversed.

B. The retaliation claim.

Robarchek claims that he was not hired for the temporary teaching position in 1984 due to the University's retaliation against him for filing a complaint with the DFEH regarding the University's decision to hire Mukhopadhyay in 1981. The Civil Rights Act makes it unlawful to discriminate against an employee because he has opposed an employment practice made unlawful by the Act. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation Robarchek must show that: (1) he engaged in a protected activity, (2) he was thereafter subjected to adverse employment action, and (3) a causal link exists between the two. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th Cir. 1982); Jordan v. Clark, 847 F.2d 1368, 1378 (9th Cir. 1988). Robarchek has met the first two requirements for showing a prima facie case. His filing of a DFEH claim was a protected activity and the failure to rehire him for the 1984-1985 academic year could be seen as an adverse job action.

However, Robarchek has failed to establish a causal link between his protected activity and the Department's decision. To show the necessary causal link, Robarchek must "present sufficient evidence to raise the inference that [his] protected activity was the likely reason for the adverse action." Cohen, 686 F.2d at 797 (emphasis added).

Robarchek offers very little evidence to show that the adverse job action was retaliatory. He alleges that Dr. Jay Noricks, the man who was hired to fill the 1984-1985 position, was considered less qualified than Robarchek in 1983 when both men were applicants for the 1984-1984 temporary position. This fact alone does not show retaliation. The 1983-1984 position and the 1984-1985 position had substantially different requirements. The 1983-1984 position required someone to teach courses in religion and medical anthropology. The 1984-1985 position required someone to teach psychological anthropology and an area seminar about the Pacific region. Robarchek alleges that he was qualified to teach the required courses. However, the Department could have found Noricks to be better qualified to teach those courses. Thus, the simple fact that Noricks, a man who previously had been found to be less qualified than Robarchek for a different position, was hired over Robarchek for the 1984-1985 position does not show that the decision not to rehire Robarchek was retaliatory.

Robarchek also contends that standard academic practice is to keep on the same person for successive temporary positions, absent extraordinary circumstances, because of the low salaries accompanying such positions and the high costs associated with moving from one university to another. However, Robarchek offers no evidence in support of this claim. In addition, a university would not necessarily hire the same person for each opening created by a sabbatical leave, if different courses were to be taught for each new opening.

Since the two positions at issue here were different, neither of Robarchek's contentions would present enough evidence for a rational juror to infer that the "likely reason" for Robarchek's failure to get the job was his filing of a complaint with the DFEH. Matsushita, 475 U.S. at 587. Since Robarchek has not shown facts sufficient to support each element of his prima facie case, the grant of summary judgment on the retaliation claim was proper. Celotex, 106 S. Ct. at 2553.

CONCLUSION

Robarchek raised a genuine issue of fact as to whether sex was impermissibly considered in the tenure-track employment decision. The University failed to articulate a valid reason for considering sex which would entitle them to judgment as a matter of law. Therefore, the reverse discrimination claim is remanded.

However, Robarchek failed to produce enough evidence of retaliation to withstand a motion for summary judgment on that claim. Robarchek's claim that he had been found more qualified than Noricks a year previously and his arguments regarding standard academic practice fail to support a reasonable inference that the likely reason that he was not hired for the second temporary position was retaliatory.

AFFIRMED in part; REVERSED in part and REMANDED for further proceedings.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The seven criteria were: (1) academic qualifications, (2) teaching experience, (3) commitment to teaching as evidenced by a developed educational philosophy, (4) commitment to teaching students to function in a "multicultural world", (5) expertise to teach several specific courses, (6) experience in "applied antropology," (7) ability to develop and teach courses about current perspectives on ethnicity and gender. Each of the seven major criteria contained several more specific sub-categories for evaluation. SER, Doc. 16, Exhibit B

The applicants were to be given a score of 1 through 3 for each of the 7 criteria. Criterion 1 was to be given twice the weight of the other criteria.

 2

The parties do not discuss the composition of the semi-finalist list. Indeed, from the repeated references to the twenty candidates as the "semi-finalists" in the Appellee's declarations, it appears that the Department may have skipped one of the steps articulated in the guidelines

 3

The Department states that "even if" it had taken sex into consideration it would have been justified by its valid affirmative action plan. The district court stated that had the plan been used, it would have been proper because the plan was valid under Johnson. It is unclear whether the discrepancy between the number of qualified women in the field and the number of women teaching at Chico was sufficent to meet the Johnson test. However, it is unnecessary to decide the validity of this plan under Johnson. If on remand, the Department attempts to rely on its affirmative action to show that its actions were proper, the validity of the plan would have to be reexamined in light of City of Rchmond v. J.A. Crosen Co., 109 S. Ct. 706 (1989)

 4

To support his allegation that the Department arbitrarily ranked the male candidates, Robarchek points out that he had been ranked among the top five candidates on the two previous times he had applied for a teaching position. This evidence would not be sufficient to prove that Robarchek would in fact have received the position in the absence of discrimination, since the positions were different from the tenure-track position at issue here. However, the large disparity between Robarchek's ranking on the two prior occasions and in this job action does tend to show that the ranking in this case may have been arbitrary since the Department does not explain the discrepancy in the rankings