Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1990)

No. 89-15212.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and KOZINSKI, Circuit Judges, and ANDREW J. KLEINFELD,^**  District Judge.

MEMORANDUM^*** 

Plaintiff, Meg Kornman appeals the district court's judgment following the trial of her Title VII claims against the defendant, Nicholas Brady, Secretary of the Treasury. She argues that the district court improperly applied the legal standard for Title VII discrimination cases in finding that she had failed to establish a prima facie case of sex discrimination. She also argues that the court abused its discretion by failing to consider statistical evidence establishing a pattern or practice of sex discrimination and by failing to make any findings regarding the Equal Employment Opportunity Counseling Report. Further, she contends that the court erred in finding that the defendant's asserted justification was not pretextual and that she had not proved sex discrimination. We affirm.

* Kornman is a self-taught electrician who began doing electrical work in 1978. In 1981, she began working for a property management company doing various electrical repairs in apartments. In 1985, she applied for two different positions with the U.S. government, one at the Naval Supply Center in Oakland and the other at the U.S. Mint in San Francisco. She was accepted first by the Naval Supply Center, but when she was also accepted by the U.S. Mint she decided to transfer. The Mint held the position for her for the three months it took for her transfer to go through.

In November 1985, Kornman began work as the first and only female electrician at the U.S. Mint in San Francisco. She was also the first electrician hired by the newly-appointed foreman of the electrical branch, Henry Herbert. Herbert interviewed Kornman and made the decision to hire her without any prompting from his superiors. Kornman represented herself as a qualified journeyman electrician and was hired by Herbert on that basis. No training period was anticipated.

A conflict arose between Herbert and Kornman in March 1986, when he informed her that he was switching her from the day shift to the graveyard shift. Because she was attending night school, she resisted the change in shifts. As a result of Kornman's complaints to the Union, Herbert's superiors informed him that he was acting in violation of the collective bargaining agreement. He was advised to ask for volunteers before changing the shifts of permanent employees based on seniority. Subsequently, another electrician volunteered and the dispute was apparently resolved.

In May 1986, Herbert completed Kornman's six month evaluation, rating her "marginal" in all areas but recommending that she be given six months to show improvement. However, the personnel department rejected Herbert's recommendation. The personnel specialists determined that since she had failed to perform satisfactorily during her probationary period, she should be terminated.¹ 

The recommendation of the personnel office was reviewed by Herbert's supervisor, Mr. Butler, who talked to Herbert and a number of Kornman's coworkers. Butler and the Officer in Charge of the Mint, Tom Miller, subsequently concurred in the termination. Kornman filed an appeal with the Office of Personnel Management and an EEO complaint. She filed this action when the EEO complaint was rejected by the agency. After a full trial on the merits, the district court concluded that Kornman had failed to prove that the termination was for gender rather than performance reasons. Kornman filed a timely appeal.

II

Kornman states that "the district court improperly applied the legal standard in Title VII discrimination cases by finding that [she had] failed to establish a prima facie case of sex discrimination." However, Kornman actually disputes the district court's findings of fact. She contends that the evidence establishes that she was a qualified journeyman electrician and that her performance was more than satisfactory. Thus, she argues, the evidence was sufficient to create an inference of discrimination and, therefore, to establish a prima facie case.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the Supreme Court set forth a tripartite order and allocation of proof for establishing whether or not a plaintiff was subjected to different treatment because of the plaintiff's protected basis:

(1) The plaintiff bears the initial burden of establishing a prima facie case of discrimination;

(2) the defendant must then offer a legitimate nondiscriminatory reason for its actions; and

(3) finally, the plaintiff must establish that this supposedly legitimate, nondiscriminatory reason was a pretext to mask an illegal motive.

Id. In order to establish a prima facie case, the plaintiff must show that she was a member of a protected class, that she was discharged, and that the evidence is sufficient to infer a causal connection between her discharge and her protected status. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). As the Supreme Court stated in Burdine:

[t]he prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection.... [The] prima facie case 'raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.' Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.

Id. at 253-54 (citations omitted).

The district court stated that " [w]hether [Kornman] has put on a prima facie case is debatable." The court appears to have concluded that Kornman failed to prove that she was a qualified journeyman electrician and, thus, failed to establish a prima facie case.

A district court's conclusion as to whether a plaintiff has satisfied the elements of a prima facie case is reviewed de novo, although the underlying findings of fact are reviewed for clear error. Atonio v. Wards Cove Packing Co., 827 F.2d 439, 443 (9th Cir. 1987), rev'd on other grounds, 109 S. Ct. 2115 (1989); Sisson v. Helms, 751 F.2d 991, 994 (9th Cir.), cert. denied, 474 U.S. 846 (1985). In reviewing the district court's findings of fact, " 'this court must view the evidence in the light most favorable' to the prevailing party, and 'such a party must be given the benefit of all inferences that may reasonably be drawn from the evidence.' " Komie v. Buehler Corp., 449 F.2d 644, 647 (9th Cir. 1971) (quoting Pacific Queen Fisheries v. Symes, 307 F.2d 700, 706 (9th Cir. 1962)). Further, " 'due weight must be accorded to the trial court's appraisal of the credibility of the witnesses.' " Komie, 449 F.2d at 647 (quoting Molitor v. American President Lines, Ltd., 343 F.2d 217, 219 (9th Cir. 1965)).

In this case, Kornman testified that she was a self-taught electrician whose skills are equivalent to a journeyman electrician. She also introduced as evidence of her qualifications a letter signed by five of her fellow electricians indicating that her firing was unfair and that she was doing a very good job.

However, Kornman admitted that she had little experience on the type of machinery used at the Mint. She also admitted that she had caused a short by not disconnecting equipment that she was working on. Kornman was also reprimanded for using the wrong tools on at least one occasion, for misusing a stud gun, and for failing to find a blown fuse while troubleshooting a battery charger.

Additionally, the testimony of her coworkers differed from the letter she introduced at trial. Although Joe Azzopardi testified that her work was adequate and better than that of some who had worked there, he also testified that he disliked Herbert.

Robert Hakell testified that he had not worked with Kornman much but that she seemed competent. However, he also testified that she was not at all enthusiastic about her job and that she had told him that she was going to quit because she was more interested in art. Further, on cross-examination he admitted that at one time he had said that she was not great. He stated that he did not agree with the attestation letter (specifically with the statement that Kornman's work was "more than adequate") but signed it because of peer pressure.

Ray Cordellini testified that her work was "all right." Similarly, Russell Olsen testified that her work was satisfactory and that she seemed interested in the job and willing to learn. However, Donald Butler testified that he had observed a particular incident in which Olsen and Kornman were installing conduit wire in his office and Olsen appeared to be doing all the work, while Kornman just watched. When asked about it, Olsen stated that Kornman was still learning. The district court found this testimony to be credible.

Butler also testified that when he asked them none of Kornman's coworkers would state that she was truly a qualified journeyman electrician.

The court also found Mr. Raubfogel's testimony credible in spite of the emotional way in which he testified. Raubfogel testified that he started the letter as a means of getting back at management, specifically at Herbert. He also testified that the letter did not accurately describe Kornman's performance. In fact, he described her performance as "a flunk".

Finally, Kenneth Free testified that Kornman was clearly not a journeyman electrician. Although Free apparently only worked with Kornman after the decision to terminate her had been made, his testimony is admissible as it describes her knowledge of proper electrical repair, rather than simply subsequent acts of misbehavior. See Fed.R.Evid. 404(b).

The district court's findings of fact are not clearly erroneous. There was sufficient evidence from which the court could conclude that Kornman had failed to prove that she was a qualified journeyman electrician and that her work had been more than marginal.

Further, and more directly to the point, the district court did not err in finding that Kornman had failed to prove that Herbert had discriminated against her because she was a female. The other electricians testified that Herbert was a very authoritarian supervisor. For instance, Robert Hakell testified that Herbert is extremely dictatorial, constantly watches over people's shoulders, yells at people and is harsh with them. He also testified that Herbert did not treat Kornman any different from any of the others. Raubfogel and Cordellini made similar statements.

The only evidence of discriminatory animus involved Azzopardi's testimony that in 1976--ten years prior to the events in question--Herbert had made a sexist remark to a female job applicant. However, Herbert was not in a supervisory position at the time. The court did not err in concluding that Herbert's remark made ten years earlier was outweighed by his behavior in hiring Kornman. In fact, she was the first electrician he hired after becoming foreman. He made the decision on his own, without prompting from his supervisors, and in spite of the three month delay incident to her transfer.

Kornman also testified regarding a second incident, in which she was offended by a promotional poster of a scantily clad woman. However, Herbert apparently told her to take the poster down if it offended her. It is unclear how his behavior during this incident demonstrates any discriminatory animus.

Kornman simply failed to create an inference of discrimination. She failed to prove that she was a qualified journeyman electrician. Further, her own evidence suggests that any retaliatory motive on the part of Herbert was due to his dictatorial management style rather than any discriminatory animus. There is little if any evidence to suggest that he would not have treated her the same way if she were a man.

III

Kornman also argues that the district court erred by failing to make any findings with respect to the statistical evidence she offered. This argument also fails.

We have held that

[s]tatistical evidence is unquestionably relevant in a Title VII disparate treatment case. Statistical information is helpful 'despite the fact that [it] may not be directly probative of any of the four specific elements set forth by McDonnell Douglas.... A plaintiff is also entitled to use statistical evidence to show that a defendant's articulated nondiscriminatory reason for the employment decision is pretextual.... Statistical data is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. Such a discriminatory pattern is probative of motive and can therefore create an inference of discriminatory intent with respect to the individual employment decision at issue.

Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1362-63 (9th Cir. 1985) (citations omitted).

In this case, Kornman introduced evidence that she was the first and only female electrician out of 17 who have worked at the Mint since 1985. She was also the first employee to receive a rating below satisfactory from Herbert and the only employee ever terminated for a marginal rating.

However, the district court does appear to have considered this evidence. In fact the court's Memorandum Opinion recognizes that " [i]n November 1985 plaintiff was hired as the first and only female electrician at the U.S. Mint in San Francisco." Additionally, the evidence fails to establish a pattern of discrimination as it does not reflect the number of qualified female applicants who have been rejected by the Mint. Further, Kornman's argument is that Herbert discriminated against her. However, Herbert was a new foreman whose very first hiring decision was to offer the job to Kornman.

As described above, the evidence does not contradict the marginal rating Herbert gave Kornman. It is undisputed that Herbert recommended that she be given another six months to improve. Kornman's argument that no other employee had been terminated for receiving a marginal rating does not address whether such previous employees had been on probationary status at the time and, if anything, it undercuts her contentions with respect to Herbert. If no previous employee had ever been terminated for receiving a marginal rating, Herbert could hardly have anticipated that the personnel department would reject his recommendation of an additional six months and insist on Kornman's termination.

IV

Additionally, Kornman argues that the district court erred by failing to make any findings with regard to the EEO report. This argument lacks merit.

We have held that EEOC findings are per se admissible, although it is within the trial court's discretion to determine the weight to be accorded such evidence. See Plummer v. Western Int'l Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981); Bradshaw v. Zoological Soc. of San Diego, 569 F.2d 1066, 1069 (9th Cir. 1978); Player, Employment Discrimination Sec. 5.82 at p. 497 (1988). In both Plummer and Bradshaw, the EEOC had determined that there was "reasonable cause" to believe that the charge was true. However, in this case, the EEOC rejected Kornman's complaint. In spite of the agency's ultimate determination, Kornman seems to argue that the court was obligated to make findings with respect to the EEO counselor's initial findings. She offers no authority to support this proposition.

The district court apparently admitted the EEO counselor's findings, but failed to mention them in its Memorandum Opinion. In these findings, the counselor concluded that Herbert was "a vindictive, get you back type person" who had "used the system to his fullest advantage" to retaliate against Kornman "because of the graveyard shift problems.... Herbert resented the fact that he was overruled." The counselor also found that Herbert did not have a good rapport with the other electricians due to his supervisory methods. As a final matter, the counselor found that " [b]ecause Ms. Kornman was of a different gender seemed to bother Mr. Herbert also. He complained because she had trouble carrying 10' and 12' ladders which all the men complain about carrying by themselves."

The EEO counselor's initial findings are not particularly helpful to Kornman. At most they support the conclusion that Herbert's marginal evaluation of Kornman was actually motivated by his desire to retaliate against her for having undermined his authority. The counsel found that he was "a vindictive, get you back type person." There is little in the counselor's findings that suggests that Herbert would have treated Kornman any differently had she been a man.

V

Further, Kornman contends that the district court erred in finding that the defendant's asserted nondiscriminatory justification was not pretextual. This argument also lacks merit.

Assuming the plaintiff establishes a prima facie case, the defendant has the burden of producing evidence sufficient to raise a genuine issue of fact. However, "the defendant need not persuade the court that it was actually motivated by the proffered reasons.... The plaintiff retains the burden of persuasion." See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Thus, Kornman bears the burden of establishing that the defendant's justification was pretextual. Id. She has failed to meet that burden.

The district court did not set forth its findings in a form strictly consistent with the three-step burden shifting analysis established in McDonnell Douglas.²  This may be due in part to the fact that the nondiscriminatory reason given by the defendant--that Kornman did not perform satisfactorily--is also an issue which Kornman must address in establishing her prima facie case. Therefore, although the court seems to have found that Kornman failed to prove she was a qualified journeyman electrician whose performance had been satisfactory, it pulls up short of specifically holding that she failed to establish a prima facie case. Instead, the court looked at the whole case in holding that " [w]hat does seem clear to the court however is that Herbert was not discriminating against her in any way because she was female." As discussed in part I, the evidence supports this decision.

To the extent that Kornman failed to establish a prima facie case, the issue of pretext is irrelevant. However, even assuming that Kornman did establish a prima facie case, the defendant met its burden of production in articulating a legitimate, nondiscriminatory reason for Kornman's discharge. Kornman failed to prove that this reason was merely a pretext to mask gender discrimination. The evidence shows that her status as a qualified journeyman electrician is at least questionable. Further, although Kornman argues that the defendant should not be able to now offer a nondiscriminatory reason other than that given at the trial, the defendant does not even attempt to do so. However, Kornman bears the burden of proving that her discharge was the result of discrimination. In attempting to do so, she has, herself, presented significant evidence of a second nondiscriminatory reason for her discharge. At best, she has shown that this reason--Herbert's desire to retaliate against Kornman for undermining his authority--was in fact the reason for her discharge.

VI

Finally, Kornman argues that the district court erred in finding that she had failed to prove discrimination. This is simply a reiteration of her arguments discussed in parts I and IV. As described above, the district court's findings of fact are not clearly erroneous and those findings are sufficient to support its conclusion that Kornman failed to prove that she was a victim of gender discrimination; therefore, the district court's decision is

AFFIRMED.