Appeal from the dismissal of appellant's employment discrimination claims after a nonjury trial in the United States District Court for the Eastern District of New York, George C. Pratt, Judge . Held that appellee adequately rebutted appellant's prima facie case on the failure to promote claim, but that appellant established a right to relief on his claim regarding assignment to minority recruitment. Judgment affirmed in part and reversed and remanded in part.
Before Feinberg, Chief Judge, Oakes, Circuit Judge, and Motley, District Judge.*fn*
This appeal is from the district court's rejection of appellant James Knight's claims that the Nassau County Civil Service Commission racially discriminated against him in his employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the equal protection clause of the Fourteenth Amendment. Specifically, Knight argued that both the Commission's failure to promote him from the position of Personnel Specialist III to Personnel Specialist IV, despite the fact that he had done well on promotional examinations, and his transfer from the Commission's Test Development Division to the Recruitment Division for the purpose of recruiting minority applicants were impermissibly based on racial factors. After a nonjury trial, Judge George C. Pratt of the United States District Court for the Eastern District of New York found for the Commission on both claims.
We agree with the district court that the Commission adequately rebutted Knight's prima facie case under Title VII on the failure to promote claim, and that Knight did not establish the intentional racial discrimination that would give rise to a violation of equal protection. Accordingly, we affirm Judge Pratt's dismissal of this ground for relief. We reverse on the assignment to minority recruitment claim, however, finding that the assignment constituted an impermissible classification based on race in violation of both Title VII and the equal protection clause.
Appellant Knight, a black man, has been employed by the Nassau County Civil Service Commission since 1968 in the position of Personnel Specialist III. From 1968 until 1973, Knight worked in the Test Development Division, preparing civil service examinations for the Commission under the supervision of Charles Teubner, who was a Personnel Specialist IV. Although Knight did well on promotional examinations taken in 1969 and 1973, i. e., he was among the top three on each examination and therefore was eligible for promotion, he was not promoted to Personnel Specialist IV. Instead, between 1969 and 1974, four white applicants, who also were eligible for promotion based on the two examinations, were promoted to level IV positions. Appellee Commission presented evidence below, however, and the district court found, that the latter two promotions (those in 1973 and 1974) were a matter of reclassifications and budget increases catching up with reality, for the two promoted employees had in fact been doing Personnel Specialist IV work for some time.*fn1 Knight also complained that he was not promoted to fill Teubner's position when the latter retired in April of 1973. Instead, Florence Caddle, a co-worker of Knight's in the Test Development Division, who was already a Personnel Specialist IV, had been working for the Commission since 1966, had previously worked as a psychologist for the Air Force Test Development Division, and had been working independently and with little supervision from Teubner, took over as head of the Division when Teubner left.
Rather than being promoted within the Test Development Division, Knight was transferred in September of 1973 to the Commission's Recruitment Division, with the expectation that he would participate in a program to encourage more members of minority groups to apply for Civil Service jobs. Knight claimed that both the failure to appoint him to Personnel Specialist IV positions*fn2 and the reassignment to minority recruitment were based on his race and therefore violated Title VII and the equal protection guarantee of the Fourteenth Amendment.
The Commission admitted that Knight's race was a significant factor in the decision to assign him to minority recruitment.*fn3 With respect to the failure to promote claim, however, the Commission argued and the court below found that in recent years the Nassau County Civil Service Commission has increasingly relied upon examinations prepared by the New York State Civil Service Commission, and therefore the County's needs for test development personnel have declined significantly.*fn4 In addition, in the early 1970s employment qualification testing problems became more complex, with greater test reliability and validity required, and Knight, unlike Caddle, had no background in the field of psychometrics. Most importantly, Knight's work in test development had been of unacceptable quality. Based on statistics from the years 1968 through 1977, the district court found that Knight had prepared significantly fewer examinations than had either Teubner or Caddle, and his tests had resulted in a much greater number of complaints and corrections. There was also evidence that Knight took an inordinately long time to do his work and that the product was often convoluted and unsatisfactory.
Judge Pratt, after a bench trial on Knight's employment discrimination claims under Title VII and 42 U.S.C. §§ 1981 and 1983, found for the Commission.
I. The Failure to Promote Claim
Judge Pratt held that Knight had made out a prima facie case of discriminatory treatment under Title VII, by showing that he was black, had applied for Personnel Specialist IV positions, had done well on promotional examinations, and was passed over in favor of white applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). The burden then shifted to the Commission "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. The employer thus had the "intermediate evidentiary burden" of producing evidence which "raises a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981). To satisfy this burden, "the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Id. at -- , 101 S. Ct. at 1096. The burden then shifts back to the employee to prove by a preponderance of the evidence that the proffered reasons are unworthy of belief or merely pretextual. Id. at 1094-95; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S. Ct. 295, 58 L. Ed. 2d 216 (1978) (per curiam); Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980).
Here the reasons presented to the Commission for not promoting Knight to fill Teubner's position (which seems to have been the crux of Knight's failure to promote claim) were that the County's test preparation needs had declined, Knight did not have the proper training to prepare the new kinds of tests that were required, and, most importantly, Knight did not do much work and the work that he did was unsatisfactory. Judge Pratt's findings that Caddle was better qualified for the position, did better work, and was more efficient are not clearly erroneous, see Fed.R.Civ.P. 52(a), and certainly satisfy the Commission's burden of production. See Burdine, -- U.S. at -- , 101 S. Ct. at 1097 (defendant employer need not show that person hired or promoted is more qualified than plaintiff, but only that the employment decision was not based upon unlawful criteria).
Knight contends, however, that the Commission failed to carry its burden of production because it presented no "objective competent evidence," but rather only "subjective" evaluations by his superiors. It is true that an employer may not use wholly subjective and unarticulated standards to judge employee performance for purposes of promotion. See Crawford v. Western Electric Co., 614 F.2d 1300, 1313-17 (5th Cir. 1980); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 440-41 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S. Ct. 515, 42 L. Ed. 2d 308 (1974); Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th Cir. 1972). But the facts underlying the Commission's failure to promote Knight his lack of background in the field of psychometrics, the amount of time that he took at his work, and the significantly greater number of appeals and corrections on the examinations he prepared as opposed to those prepared by others in the Test Development Division can be objectively evaluated. See generally Stacey, Subjective Criteria in Employment Decisions Under Title VII, 10 Ga.L.Rev. 737, 748-52 (1976). The fact that satisfaction of job performance criteria is judged by an employee's superiors does not necessarily warrant the inference that the evaluations are subjective. Although Knight claims that the three members of the Civil Service Commission (one of whom was black) who ruled on complaints about examinations were not "experts" in psychological testing techniques, there is no evidence that they did not act in a fair and nondiscriminatory manner. Therefore we hold that the Commission met its burden ...