Unpublished Disposition, 930 F.2d 26 (9th Cir. 1991)

MEMORANDUM^** 

Andre Bryson, appearing pro se, appeals the district court's judgment in favor of his employer, United Cable of Alameda, in this action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Bryson claims that the district court clearly erred in finding that he failed to prove that United Cable of Alameda committed racial discrimination when it refused to grant him a wage increase at the same time as other similarly situated employees, denied him a promotion and, finally, terminated him. We affirm.

Andre Bryson is black. He was hired by United Cable of Alameda ("United Cable") as the warehouse manager in December of 1984. He was brought in as an experienced warehouseman at the top of the existing pay scale which at that time was $7.85 per hour. In April, all employees were given a pay increase except for Andre Bryson. He was told that the delay in receiving a pay increase was due to the fact that he had not yet been with the company for six months. However, a white employee who had also been with the company less than six months, was given a raise in April. Two months later, in June of 1985, Bryson was given a raise to $8.15 per hour.

In 1985, United Cable had an opening for a job as service technician. Bryson expressed an interest in this position to his supervisor. However, the position was given to a white employee. Bryson was told that he did not have the requisite experience in installation to qualify him for this position. The company explained that all employees who had held this position for the last eight years had been required to have prior experience as an installer.

In October 1985, United Cable's corporate auditor inspected the warehouse and noted that it lacked organization and, in particular, that it lacked a perpetual inventory system. The auditor produced such a system for use at the warehouse and after going over it with Bryson, submitted a copy to Bryson and his supervisor, Mark Harrigan. Bryson and Harrigan discussed the use of the system and Harrigan requested that Bryson follow this system in the warehouse. In the latter part of 1985, Suzie Butzier, the corporate purchasing agent, concluded that Bryson was not following the correct procedure. She reviewed the proper procedure with Bryson.

In December 1985, following an inventory of the warehouse conducted by Robert Leigh from the central offices of United Cable, it was determined that no perpetual inventory system was in use and that the warehouse was disorganized. Leigh concluded that Bryson was not the person for the warehouse job and conveyed this to the local management.

During the latter part of 1985, Harrigan and Bryson spoke several times about the operation of the warehouse. Bryson was told that the warehouse needed to be cleaned up and that the perpetual inventory system was to be put into operation as earlier requested. Bryson denied any disorganization and vouched for the effectiveness of the system he was using.

In January 1986, a decision was made by Harrigan and United Cable's General Manager, Pamela Mackenzie, to replace Bryson as manager of the warehouse. They decided to offer Bryson a promotion to installer which included a pay raise. Bryson was told of this plan and notified that this change was necessary because the warehouse was still not being run properly. Bryson agreed to consider the position of installer.

During the middle of February, a new warehouse manager was hired and Bryson was asked to orient him to the inventory in the warehouse. Bryson did not cooperate with this request. Harrigan reminded him that the decision to move him from the warehouse had been made and asked Bryson again to consider the installer position. Bryson told Harrigan to either leave him in the warehouse or fire him. His employment was terminated in February 1986.

After a bench trial, the district court found that there was no evidence of racial discrimination. The court concluded that Bryson had not been denied a wage increase or a promotion based upon his race, and that there was no evidence of racial discrimination in his termination. Judgment was rendered in favor of the defendants and Bryson timely appealed.

A finding of no intentional discrimination is a finding of fact. The court of appeals reviews questions of fact for clear error. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Fragrante v. City and County of Honolulu, 888 F.2d 591, 594 (9th Cir. 1989), cert. denied, 110 S. Ct. 1811, 108 L. Ed. 2d 942 (1990). This court will hold a finding of fact "clearly erroneous only 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction the a mistake has been committed....' " Casillas v. United States Navy, 735 F.2d 338, 342-43 (9th Cir. 1984) (quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)).

A claim of racial discrimination brought under Title VII requires that the employee first establish a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (Burdine) ; Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988) (citation omitted). Once the employee establishes a prima facie case, the burden shifts to the employer to show the existence of a legitimate business purpose for the adverse treatment. Pejic, 840 F.2d at 672. If the employer carries this burden, then the employee is given the opportunity to demonstrate that the reason given was merely "a pretext for discrimination." Burdine, 450 U.S. at 253. Despite the shifting burdens of production, " [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. After considering the explanations of both sides, the district court must determine which explanation is more credible. Pejic, 840 F.2d at 672 (citation omitted).

Bryson advances three claims of discrimination in this action. First, he claims disparate treatment in the denial of a wage increase which was given to all other employees. Second, he claims that he was denied a promotion on the basis of race. Third, he claims that he was wrongfully terminated. We will consider each of his claims in turn.

As the plaintiff, Bryson bears the initial burden of proving to the court that (1) he is a member of the class entitled to protection under the statute and (2) that he was treated differently than others similarly situated when he was denied a wage increase. See Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir. 1982). Bryson met the first part of the test but was unable to show that another similarly-situated employee was treated differently. Bryson compares himself to all other employees but the record reflects that only one other employee was employed with the company for less than six months at the time of the wage increase. John Morton, a white employee who had worked for the company less than six months, was given a wage increase when Bryson was not.

Testimony at trial showed that Morton and Bryson were not similarly-situated employees. Morton was brought in at the bottom of the pay scale and was given a raise at the same time as the others to prevent him from being below the pay scale. Harrigan testified that Bryson had been hired at the top of his pay scale and that Bryson and United Cable had agreed at the time of his hiring that he would not receive an increase in pay until he had been there for six months.

The district court chose to credit Harrigan's testimony. In fact, Bryson was given a wage increase in June, as promised, six months after his employment began. Bryson failed to present any evidence that the explanation provided by United Cable was merely a pretext or discriminatory in its application. Therefore, the district court's finding that there was no discriminatory intent behind the delay in Bryson's wage increase was well supported by the evidence and was not clearly erroneous. See Casillas, 735 F.2d at 343-45.

The Title VII plaintiff who brings a discriminatory promotion claim must show that besides (1) being a member of the class entitled to protection, that (2) he was qualified for the position sought and (3) he was denied the promotion while individuals outside the protected class were promoted. Pejic, 840 F.2d at 672 (citing Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1341 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982)).

At trial, Bryson was able to establish only two of the required three elements. It is clear that Bryson is black and that a white man, a person outside of the protected class, was promoted to service technician, the position desired by Bryson. However, the district court chose to believe testimony by United Cable employees that only persons with installation experience were qualified for the position. The white employee had prior experience as an installer, as had all employees holding the position of service technician for the last eight years. Bryson had extensive experience but not as an installer. Because the evidence shows that Bryson lacked the necessary qualifications for the promotion, he has failed to establish a prima facie case. Id. The district court's finding therefore was not clearly erroneous. Casillas, 735 F.2d at 342-45.

In order to establish a prima facie case of wrongful termination under Title VII, the plaintiff must show that, in addition to being a member of the protected class, (1) he was performing his job well enough to rule out termination for inadequate performance and (2) the employee replacing him had similar qualifications "thus demonstrating a continued need for the same services and skills." Pejic, 840 F.2d at 672 (citing Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir. 1986)). There is no dispute that the need for a warehouse manager continued. However, at trial Bryson was unable to show that his job performance was adequate.

Bryson admits that the warehouse was disorganized and that he was not using the perpetual inventory system that management required. Thus, he failed to establish his prima facie case. Evidence of unsatisfactory job performance supports the court's finding that Bryson's termination was not discriminatory, especially in light of the fact that United Cable offered Bryson another job at higher pay. Moreover, there was no evidence to suggest that such an offer was insincere. While Bryson claims that partial blindness prevents him from being able to perform the installer position safely, it is unclear how this risk would be any less in the service technician job. United Cable's offer appears motivated by their knowledge that the installer position would provide Bryson with the experience required for the service technical position that he had previously requested.

The district court correctly determined that Bryson had not met his burden under Title VII.

CONCLUSION

The district court's order is affirmed for the reasons set forth above. Each party to bear their own costs on appeal.