Unpublished Disposition, 908 F.2d 977 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 977 (9th Cir. 1989)

Galen L. SCOTT, Plaintiff-Appellantv.CITY AND COUNTY OF SAN FRANCISCO, a municipal corporationDefendant-Appellee.

No. 89-15448.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1990.* Decided July 19, 1990.


Before GOODWIN, Chief Judge, SCHROEDER and CANBY, Circuit Judges.

Galen L. Scott, a caucasian male, appeals a judgment in favor of the City and County of San Francisco ("the City") in Scott's employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Scott alleges that the City discriminated against him because of his race and sex when it hired a hispanic female and a black male for two investigator positions in the City's Office of Citizen Complaints (OCC). We affirm.

In June 1983, Scott responded to a "Job Opportunity Notice" for the newly-created position of Class 8124 Investigator at the OCC. Scott met the announced minimum qualifications and was selected to take an oral civil service examination. Following the examination, he ranked number 20 on the civil service list of eligibles. Two other applicants, Araceli Matus, a hispanic female, and James Allen Houston, a black male, ranked numbers 21 and 29 respectfully.

Because of his rank number, Scott was not considered for the first 10 openings. In December of 1984, Frank Schober, the acting Director of the OCC, hired Araceli Matus to fill a temporary position. Her appointment was made without reference to the eligibility list and there were no interviews conducted. Schober testified that Matus was hired because the OCC needed a bilingual individual to handle complaints from Spanish-speaking individuals.

In May of 1985, a permanent position became available. To hire permanent employees the OCC is required to select one of the three top candidates from the eligibility list; there is no interview requirement. The three contenders were Scott (rank 20), Matus (rank 21), and Keith Klegman (rank 22). Matus was selected without an interview because of her excellent performance as a temporary employee.

Also in May of 1985, another permanent position became available. The top three candidates were Scott, Klegman, and Fletcher Houston (rank 25), the two alternate candidates were Castanon-Hill (rank 26) and Allen Houston (rank 29). Under the procedures, the OCC can hire any of the top three candidates or any of the alternates if one of the higher ranking candidates waives or does not meet special conditions of employment. Prior to choosing an employee, Schober determined that he needed an investigator with hearing officer experience. He requested that the Personnel Manager of the City's Civil Service Commission redefine the investigator position to include the special condition of one-year hearing officer experience. His request was granted and the candidates were interviewed by a panel of other OCC investigators.1  Because none of the three top candidates had hearing officer experience, the alternates were interviewed. Allen Houston, who had hearing officer experience, was hired.

Scott filed a complaint with the Civil Service Commission alleging that the selections of Matus and Allen Houston violated the Civil Service Rules. The complaint was found to be meritless. On January 23, 1986, Scott filed a discrimination complaint with the Equal Employment Opportunity Commission and received a right to sue letter. During the same period of time Scott interviewed for a third opening at the OCC and was offered the position. He began work on October 14, 1986.

Scott commenced this action in the district court in 1987, and judgment was entered in favor of the City on February 3, 1989. Applying the burdens of proof articulated by the Supreme Court in McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973), the court concluded that the City produced legitimate, nondiscriminatory reasons for hiring Matus and Allen Houston. In its final analysis, the court held that Scott failed to prove that the reasons offered by the City were pretextual or that the City was motivated by discriminatory intent. These factual findings are not clearly erroneous. Norris v. City and County of San Francisco, et al., 900 F.2d 1320, 1329 (9th Cir. 1990) (citing Anderson v. City of Bessemer, 470 U.S. 564 (1985); Pullman Standard v. Swint, 456 U.S. 273 (1982)).

Scott first argues that the district court applied the incorrect legal analysis to his Title VII allegations. He claims that his case presents issues of both discriminatory treatment and discriminatory impact. Because Scott failed to present a discriminatory impact claim at trial, however, we need not consider it on appeal. See Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir.), cert. denied, 479 U.S. 882 (1986).

The district court correctly applied the criteria set forth in McDonnell Douglas, 411 U.S. 792 (1973), and Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Under these cases, the plaintiff must first prove a prima facie case of discrimination by a preponderance of evidence. If a prima facie case is established, the defendant carries the burden of producing evidence that its employment practices are justified by a legitimate, nondiscriminatory reason. If the employer meets this burden of production, then the plaintiff must be afforded the opportunity to show that the employer's rationale is pretextual and that the disputed action was motivated by impermissible discrimination. McDonnell Douglas, 411 U.S. at 802-04; Burdine, 750 U.S. at 252-56. See also Wards Cove Packing Co., Inc. v. Antonio, 109 S. Ct. 2115, 2126 (1989) (the burden of proof always remains on the plaintiff).

The district court found that Scott did not meet his burden of proving that the City's proffered reasons for hiring Matus and Allen Houston instead of him were pretextual. A plaintiff may show pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. We have found employer's reasons pretextual in situations where the employer puts forth "clearly incredible" reasons. Norris, 900 F.2d at 1330. See Yee v. Department of Envtl. Serv., 826 F.2d 877, 882 (9th Cir. 1987) (reliance on a promotional exam rejected where the highest scoring applicant, a white male, assisted in the preparation of the exam); Thorne v. City of El Segundo, 726 F.2d 459, 467-68 (9th Cir. 1983) (rejection of employer's explanation that it refused to hire the plaintiff because of past attendance record where there was no evidence that those records were considered), cert. denied, 469 U.S. 979 (1984). The district court's findings are not clearly erroneous; the City's reasons are not "incredible" or pretextual. Testimony was presented that the City hired Matus because of her language skills and Allen Houston because of his hearing officer experience. The district court found these witnesses credible and the evidence convincing. Our review of the record does not reveal an clear error. Anderson, 470 U.S. at 573 (reviewing court gives special deference to the credibility findings of the trial court).2 

The district court's judgment in favor of the City is AFFIRMED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Scott claims that during his interview for the position, he was interviewed by Matus with whom he was competing for the job. He argues that Matus's presence at the interview tainted the application process. The record indicates, however, that he is confusing the two different job openings: the one Matus received, and the one Allen Houston received. According to the record, Scott was never interviewed for the first position. Scott was interviewed for the second position and Matus, who was already a permanent employee, was on the interviewing panel for this second position


Scott's argument that the district court made clearly erroneous "implied" findings of fact that Scott's non-selection was proper according to an existing affirmative action plan is equally meritless. The district court's Memorandum Opinion makes no mention of an affirmative action plan and we find no indication that the City relied upon the existence of an affirmative action plan