Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1989)

MEMORANDUM^* 

This appeal presents the question of whether the district court properly determined that plaintiff failed to show that he was discriminated against on the basis of his race when he was not selected for a promotion.

* Carroll Walters had worked for the United States Customs Service ("Customs") since 1968. When Walters was promoted to Inspector in 1974, he was assigned to the Los Angeles Harbor where he worked for approximately six months. In 1975, Walters was transferred to the downtown World Trade Center ("WTC") facility.

Inspectors assigned to the WTC perform more limited inspectional duties than inspectors assigned to the harbor or to the airport. Harbor and airport inspectors frequently clear ships, aircraft, and passengers and often work overtime. In contrast, WTC inspectors only infrequently clear ships and aircraft and occasionally work overtime. Moreover, harbor and airport inspectors work extensively on the Treasury Enforcement Communications System ("TECS") computer and perform duties at the manifest desk which require extensive knowledge of shipping documents. WTC inspectors generally do not perform these tasks.

There also are special enforcement team projects at the harbor and the airport. These special enforcement teams are comprised of experienced inspectors, who are assigned to work in specialized law enforcement areas such as narcotics or trademark and copyright violations. At all times relevant to this appeal, an inspector at WTC would not be assigned to a special enforcement team unless he transferred to the harbor or airport. Walters never submitted a written request to be assigned to a special team or to be transferred to the harbor or the airport.

In response to a vacancy announcement, Walters applied for a promotion to a GS-11 Senior Inspector in April 1979. Pursuant to the Office of Personnel Management Merit Promotion plan, his application, his most recent appraisal, and an appraisal of supervisory potential were reviewed and rated by a promotion panel. Thirty-eight other individuals applied for the promotion. Four applicants were black. In rating the applicants, the promotion panel used evaluation criteria known as the "crediting plan," which guided the panel on which factors should be given greater weight. Factors such as participation on special enforcement teams and experience with the TECS computer were given great weight under the crediting plan. Non-merit factors such as race, sex and religion were not considered by the panel under the crediting plan.

After the thirty-eight applicants were rated, the top nine applicants were placed on the "best qualified" list. This list was given to the Chief Inspector of Customs, who selected four inspectors for the GS-11 positions. Walters was not selected for the promotion. No other black applicant was selected for the promotion in 1979.

In 1986, Walters filed a Title VII action in federal district court, alleging that he was not selected for a promotion to a GS-11 Senior Inspector in 1979 because of his race. See 42 U.S.C. §§ 2000e-2000e-17. Walters alleged discrimination based on both disparate treatment and disparate impact theories.

After a bench trial, the district court entered judgment in favor of defendants on February 24, 1989. Walters now timely appeals.

II

Walters argues that the district court's finding as to the length of time the crediting plan was used was clearly erroneous. Specifically, Walters asserts that because the crediting plan was modified prior to any subsequent use after 1979, the same plan was not used from 1979 to 1985. The district court found that:

The crediting plan at issue in this case was used for selections of GS-11 Senior Inspectors within the Los Angeles District for the first time in 1979 (for the selection at issue in this case) until September, 1985. Although there was some evidence that minor modifications may have been made to the crediting plan, there was no evidence that the modifications had any relevance to impact that the use of the crediting plan had on black applicants.

Finding of Fact No. 16 (Feb. 22, 1988).

Under the clearly erroneous standard of review, an appellate court must accept the lower court's finding of fact unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); United States v. Silverman, 861 F.2d 571, 576-77 (9th Cir. 1988).

Here, a personnel specialist testified that although some modifications were made to the crediting plan, the changes were not substantive. The personnel specialist testified, for example, that the crediting plan was modified so that consistent job titles would be used at the harbor and the airport. We are not able to conclude with definite and firm conviction that the district court was mistaken in finding that the crediting plan was used from 1979 to 1985 and that the modifications to the crediting plan were not substantial enough to constitute different selection criteria. The district court's finding therefore is not clearly erroneous.

Walters also challenges the district court's findings that three blacks were promoted under the crediting plan and that the statistical evidence provided by Walters is "sketchy." See Findings of Fact Nos. 17 and 18 (Feb. 22, 1988). This argument assumes that the district court's finding of fact regarding the length of time the plan was used was incorrect.

Given that the crediting plan was used between 1979 and 1985, however, Walters failed to provide relevant statistics. For example, he did not show the number of people who were qualified for the promotion and the number of people who were actually promoted between 1979 and 1985. Therefore, the district court's finding that Walters' statistics are "sketchy" is not clearly erroneous. The district court also did not err in finding that three blacks were promoted to senior inspector between 1979 and 1985. There was evidence that at least five blacks were evaluated under the crediting plan and that three blacks were promoted between 1979 and 1985.

III

Walters contends that the district court incorrectly concluded that the statistical evidence he introduced was insufficient to meet his burden of persuasion in a disparate impact case. See Conclusion of Law No. 8 (Feb. 22, 1988).

In a recent opinion, the Supreme Court outlined the plaintiff's burden in establishing a prima facie case of disparate impact:

[T]he plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities.... The plaintiff must begin by identifying the specific employment practice that is challenged....

Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Our formulations, which have never been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation.

Watson v. Fort Worth Bank and Trust, 108 S. Ct. 2777, 2788-89 (1988).

Once the plaintiff establishes a prima facie case of disparate impact, the employer has the burden of coming forward with evidence that its employment practices are based on legitimate business purposes. Id. at 2790. "In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff." Wards Cove Packing Co., Inc. v. Atonio, 109 S. Ct. 2115, 2126 (1989).

If the employer is able to show that the criteria used have a legitimate business purpose, then the disparate impact plaintiff can still prevail if he persuades the factfinder that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate hiring interests." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (citations omitted).

Applying the above standard, we conclude that the district court did not err in determining that Walters failed in his disparate impact claim. Assuming arguendo that Walters had established a prima facie case of disparate impact, Customs came forward with evidence that the selection criteria used in the crediting plan served a legitimate business purpose. There was testimony establishing that the criteria used in the crediting plan insured that those promoted to the senior inspector position would have facility with the TECS computer and a knowledge of the personal search policy for arriving passengers. Generally, inspectors at the WTC did not have the same broad range of experiences that inspectors assigned to the harbor or the airport had. This proof was corroborated and credited by the district court. It was sufficient to demonstrate that the crediting plan served a legitimate business purpose.

Finally, Walters failed to introduce evidence of alternative selection devices that would not result in similarly undesirable racial effects and would also serve the employer's legitimate business needs. See Watson, 108 S. Ct. at 2790. The testimony cited by Walters appears only to suggest that rotations through the different facilities would provide potential applicants with pertinent experience, but the testimony does not provide specific alternative selection tests.

AFFIRMED.