Odom v. Frank

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-1216
_____________________________

ELZIE D. ODOM,

Plaintiff-Appellee,

VERSUS

ANTHONY M. FRANK, in his capacity
as Postmaster General of the
United States,

Defendant-Appellant.

_________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________

(September 24, 1993)

Before GOLDBERG, GARWOOD, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this appeal of an employment discrimination, disparate

treatment case, Defendant-Appellant Anthony M. Frank, the

Postmaster General (the Service), asserts that the district court

erroneously found that Plaintiff-Appellee Elzie D. Odom was

discriminated against on the bases of race and age in his bid for

a promotion.1 Finding that the district court clearly erred in

the factual determinations on which its conclusion of

discrimination was founded, we reverse and render.

1
Odom v. Frank, 781 F. Supp. 1191 (N.D. Tex. 1991).
 I

FACTS AND PROCEDURAL HISTORY

Odom began working for the Service in October 1950. He

served as a postal inspector from 1967 until his retirement in

1987. In November 1983, he sought but did not receive a

promotion to "level 24 Prevention Team Leader," a position which

had recently been created in his home division of Fort Worth. At

the time he applied, Odom was fifty-four years old and thus

within the class of persons protected by the Age Discrimination

in Employment Act.2 He is also African American and thus

protected against racial discrimination as well.

Postal inspectors generally serve in one of two capacities:

1) auditors, or 2) criminal violations specialists. For the most

part, Odom served as an auditor throughout his tenure as a postal

inspector. He did, however, perform miscellaneous criminal

assignments from time to time between 1968 and 1971. He also

served on a "security assignment," which was a quasi-criminal

violations position, for a time during the period 1981-1982.

Unlike most of his prior experience, the position of

Prevention Team Leader which Odom sought in 1983 would involve

almost entirely criminal work. The new leader would concentrate

in four work areas, each projected to account for a specified

percentage of his time: thirty percent in "external crimes";

thirty percent in "security"; twenty-five percent in "fraud"; and

fifteen percent in "internal crimes." According to the

2
See 29 U.S.C. § 621 et seq.

2
announcement of the vacancy, the position would also require the

applicant to possess "highly developed written and oral

communication skills" and "well developed human relations

skills."3

Odom submitted his application in September 1983. He was

one of sixteen persons from several different divisions who

applied for the position. Seven of the sixteen were forty years

old or older; three of the sixteen were African American and one

was Hispanic. Of the total number of applicants, seven including

Odom were from the Fort Worth Division. Of those seven,

two))Odom and Peay))were African American; a third))Herrera))was

Hispanic; and the remaining four))Horton, Jennings, Nichols, and

Price))were Caucasian.

The application, PS Form 991, comprised several sections,

some of which were to be filled out by the applicant. When the

applicant finished his sections, the form was to be forwarded to

3
781 F. Supp. at 1193. The vacancy announcement further
described the position as follows:
Consistent with National Policy, supervises the activities
of Team Members and establishes their investigative
priorities. Coordinates the Division's External Crimes
Prevention, Internal Crimes Prevention, Consumer Protection
Program, Sensitive and Complex security-related
investigations. Performs surveys of major facilities to
determine security requirements. Is responsible for the
coordination of in-transit security measures; coordinates
presentations to employees and the public to reduce their
susceptibility to Postal Service related crimes. Is
responsible for evaluating Team Members' performance and
preparing merit evaluations, training and development of
Team Members, and developmental training of non-team members
when so assigned. Provides input for budget submission and
program evaluation for assigned areas. Performs other
investigative and administrative duties as assigned.
Id. at 1193-94.

3
his immediate supervisor for completion of a recommendation

section. When that was accomplished, the form was to be

forwarded to the Inspector in Charge to fill in an additional

recommendation section, thereby completing the form.

The Inspector in Charge of the Fort Worth Division was D.C.

Strader, a native American. Three of the seven applicants from

the Fort Worth Division))Herrera, Jennings, and Price))worked

directly under Strader at the time, so none had an immediate

supervisor other than Strader. Consequently, the applications

for those three contained only one supervisory

recommendation))Strader's.

As noted, sixteen persons applied for the subject position.4

After all application forms were complete, they were to be

forwarded to the Southern Regional Office of the Postal

Inspection Service in Memphis, Tennessee, for further processing.

4
The sixteen applicants for the position were:
Name Race Age Interviewed Top 5
1. H. Herrera (FW) Hispanic 37 * *
2. G. Horton (FW) White 38 * *
3. S. Huggins White 37 *
4. E. Hurlbut White 41 * *
5. F. Jennings (FW) White 38 *
6. I. Jones White 39 *
7. J. Lingle White 43 *
8. E. McGraw White 44
9. D. Nichols (FW) White 34 * *
10. E. Odom (FW) Black 54 *
11. R. Peay (FW) Black 35
12. R. Price (X) (FW) White 36 * *
13. L. Scott White 40
14. R. Scott Black 46
15. R. D. Smith White 44
16. R. H. Smith White 37 *

(X) Selected for the position

4
 Under Service regulations, completed applications for a

position such as the one involved in the instant case are

initially screened by a review panel. The members of the panel

involved in the instant case were selected by Robert N. Moore,

the Regional Chief Inspector for the Southern Region, and the

ultimate decisionmaker for the subject position. The panel

members were "required to be at or above the rank of the position

[at] issue and to have, as a group, functional knowledge of the

position[] [at] issue."5

The three persons selected to constitute the instant panel

were Michael Gump (the designated Chairman), George Hicks, and

Hubert Smith. All three were white males, "despite the fact that

Postal Service Guidelines specified that 'every effort will be

made to designate at least one woman or one minority group member

to serve on each review committee.'"6 And, although it is

apparently contrary to Service regulations for a supervisor of a

worker to sit on a review panel considering that worker's

application for a promotion such as the one involved here, Hicks

was selected for the review panel despite being the supervisor of

R. Hurlbut, one of the applicants who is white and, like Odom, is

over forty years old.

On October 19, 1983, the review panel met to select

applicants to be interviewed. At that time, all sixteen of the

applications for the position had been completed, but

5
781 F. Supp. at 1195.
6
Id.

5
inexplicably two applications from the Fort Worth office had

failed to be forwarded to the panel. One of the two was Odom's.7

Unaware that two applications were missing, the panel selected

ten of the applicants for interviews. Five of those ten were

from Fort Worth.

After the review panel made its selection of the applicants

to be interviewed, Chairman Gump received Odom's application.8

The panelists then conferred about Odom's application but decided

not to add him to the group to be interviewed.9

When Odom learned that he had not been selected for an

interview, he complained to Strader, asserting the belief that

the decision not to interview him was racially based (no mention

of age). After hearing Odom's allegations, Strader discussed the

matter with Gump who again conferred with the other panelists.

As a result of Strader's intercession, the panel decided to grant

Odom an interview.

All interviews, including Odom's, were held in Memphis in

October 1983. Each panelist independently rated the persons

interviewed and came up with his own "top five" list. Those

7
The record does not reveal the name, office, age or
ethnicity of the other applicant whose application was not timely
delivered to Memphis. It does not appear, however, to have been
the application of a minority applicant.
8
The record does not reveal whether Gump received the other
delayed application when Odom's was received, if ever.
9
By the time Gump received Odom's application, Hicks had
returned home from the meeting. Gump read Odom's qualifications
to Hicks over the phone, and the three panelists then conferred
concerning Odom's application.

6
lists were then compared and discussed, ultimately producing the

review panel's consensus "top five" list. Odom was on neither

the consensus list nor on any panelist's top five list. "Each

panel member's individual top five list included the names of

Inspectors Herrera, Horton, Nichols and Price. There was

initially some disagreement over whether to include Inspector

Jennings or Inspector Hurlbut, but Inspector Hurlbut was

ultimately agreed upon."10

The panel's top five list was then sent to Regional Chief

Inspector Moore to make the actual selection. In addition to

considering the applications, recommendations of supervisors, and

the review panel's selections, Moore telephoned Strader and

specifically asked for his "pick." In response Strader indicated

candidly that, given a choice, he would select Price. "On

November 4, 1983, Moore announced that Inspector Price had been

selected for the . . . position."11

After the decision on the promotion was announced, Odom

filed a formal charge of age and racial discrimination with the

Service. The Equal Opportunity Employment Commission (EEOC)

conducted an administrative hearing on Odom's charge. The EEOC's

hearing officer concluded that Odom had been discriminated

10
781 F.Supp. at 1198. We accept as not clearly erroneous
the district court's finding that the only difference in the
individual panelist's top five lists involved Hurlbut and
Jennings. This finding conforms to Inspector Gump's testimony;
it is contradicted by Inspector Hicks's testimony; and Inspector
Smith could not recall.
11
Id.

7
against. The Service, however, disagreed with the EEOC examiner

and found that Odom had not been discriminated against. After

more than one hundred eighty days passed without any action being

taken on his appeal from the Service's final agency decision,

Odom filed the instant lawsuit.

The district court held a bench trial and concluded that

Odom had been discriminated against on the bases of both age and

race. The court stated that it was "persuaded by the totality of

the circumstances surrounding the promotion process that the

offered explanation for the denial of the [subject] position is a

pretext for discriminatory actions."12 The court listed the

facts which it found Odom to have established in demonstrating

discrimination:

a. Plaintiff was clearly better qualified than the
selectee for the Prevention Team Leader position in
terms of his performance and experience;
b. The method of completion and submission of Plaintiff
Odom's PS Form 991 is evidence of pre-selection due to the
deliberate omission of the highlights and successes of
Plaintiff's career with the agency, when similar highlights
were detailed by the supervisor on the applications of other
white applicants.
c. The review panel appointed to make the selection, which
was made up solely of white males, was improperly
constituted under the agency's own regulations. The
inclusion of Mr. Hicks on the review panel in violation of
internal regulations which prohibited supervisors of
applicants from serving on the review panel is especially
probative since Defendant excluded eligible and available
minorities from serving on the review panel because they had
supervised some of the applicants or came from the same
division as some of the applicants.
d. Evidence was adduced that the agency had an unwritten
policy discouraging promotion of persons over forty to
upwardly mobile positions.
e. The statistical data introduced by Plaintiff indicates

12
Id. at 1199.

8
 [sic] exclusion of blacks and persons over the age of forty
as selectees for higher level positions within the Postal
Inspection Service.13

Finding the Service liable for discrimination, the district

court awarded Odom $8,707.04 in unpaid backpay, $8,796.15 in

"unpaid annuity," and $6,212.68 in pre-judgment interest.14 The

court also awarded Odom $33,646.50 in attorneys' fees.15 The

Service timely appealed.

II

ANALYSIS

A. Standard of Review

As noted above, this is an appeal from a bench trial. We

review the factual findings of such a proceeding under the

clearly erroneous standard of review.16 Issues of law are

reviewed de novo.17

B. The District Court's Findings

Observing that the district court expressly based its

decision on the "totality of the circumstances surrounding the

promotion process" to which Odom was exposed, we have

exhaustively reviewed the evidence contained in the record that

either supports or fails to support the findings of the district

court. Left with the unmistakable impression that the district

13
Id.
14
Odom v. Frank, 782 F. Supp. 50, 51-52 (N.D. Tex. 1991).
15
Id.; see 42 U.S.C. § 2000e-5(k).
16
See FED. R. CIV. P. 52(a).
17
See Pullman Standard v. Swint, 456 U.S. 273, 287 (1982).

9
court's direct or implied findings of discreet facts were either

not supported by sufficient evidence or simply wrong, we find

that the court clearly erred in making its ultimate factual

determination of age and racial discrimination. We shall discuss

each key fact in turn.

1. Strader's Completion and the Submission of Odom's
Application

a. Strader's Completion of the Forms

The district court found that the manner in which Odom's

application was completed by Strader evidenced negative pre-

selection "due to the deliberate omission of the highlights and

successes" of Odom's career when "similar highlights were

detailed by the supervisor on the applications of . . . white

applicants."18 The phrase "completion . . . of Plaintiff Odom's

PS Form 991" as used by the district court refers to Strader's

recommendation, which was the last requirement for the completion

of Odom's (and any other) application from the Fort Worth

division. The crux of Odom's argument on this point, which the

district court accepted, is that Strader provided more extensive

and complimentary recommendations on the application forms of

white employees than on those of African American employees, and

thus discriminatorily "pre-screened" the positions, i.e., sent an

implicit message to the panel as to whom Strader did and did not

want the panel to consider seriously for the position.

The Service counters that, in crediting Odom's argument, the

18
781 F.Supp. at 1199 (emphasis added).

10
district court gave short shrift to Strader's legitimate, non-

discriminatory explanation that it just happened that he was

either the immediate supervisor of, or had a much closer working

experience with, the white and Hispanic applicants. According to

the Service, this, coupled with the fact that there was no other

"immediate supervisor" to write recommendations for those

applicants whom he directly supervised, explained why Strader's

recommendations of the non-black applicants were more detailed

than were those of Odom and the other black applicant, Peay.

Strader provided recommendations for the seven applicants

from the Forth Worth Division. Three of the applicants))Herrera,

Jennings, and Price))had no immediate supervisor other than

Strader. Strader thus served a dual role for those three

applicants, so his longer, more detailed, and more complimentary

recommendations might thus be explained. Additionally, Strader

testified that, even though he was not Nichols's immediate

supervisor, he knew Nichols well and had worked closely with him

in the past. Strader thus explains his more detailed and longer

recommendation of Nichols as well.

The final non-African American that Strader recommended was

Horton. Odom's attorney failed on her direct examination of

Strader to adduce any evidence regarding either his professional

or personal relationship with Horton. Nonetheless, one of her

comments during direct examination set the tenor of things to

come. At one point during this examination Strader commented:

"My basic knowledge of Mr. Odom at the time was))I didn't have

11
that much knowledge of him." Odom's attorney replied: "You mean

to tell me you had contact with every other inspector who applied

for this position but Mr. Odom?"

On cross examination, Strader testified that he gave longer

and more detailed evaluations of some applicants because he had

worked with them in the past and was more familiar with them. In

the course of identifying those persons with whom he had worked

in the past, Strader testified that he thought Horton too had

reported directly to him for a period.

Q. So your testimony is that you're certain that Mr.
Price reported directly to you prior to this promotion?
A. Yes.
Q. And Mr. Horton may also have to a certain extent;
is that correct?
A. Yes.

Despite the somewhat equivocal nature of the Service's attorney's

second question, Odom's attorney did not return to the subject of

Strader's past experience with Horton when she conducted her re-

direct examination of Strader.

Although Strader's testimony about his prior direct

supervision of Horton was less than absolute, it constituted at

least some evidence. More significantly, it was uncontradicted.

As Odom adduced no evidence favorable to his position regarding

supervision of Horton, we are compelled to accept Strader's

legitimate, non-discriminatory explanation that he was either the

immediate supervisor of, or had a closer working experience with,

each white or Hispanic applicant. Consequently, we hold that the

district court clearly erred in finding that the manner in which

Odom's application was completed by Strader evidenced negative

12
pre-selection.

b. Late Submission of Odom's Application

As noted, Odom's application did not reach the panel until

after the panel's initial screening had been completed.

Inexplicably, that application was not transmitted with the

original batch of five from Fort Worth. Like one other among the

seven applications from Fort Worth, Odom's apparently was omitted

from the package. Importantly, however, nothing in the

record))and nothing urged by Odom))reflects any evidence of

conscious or intentional delay, much less racial or age animus.

When Odom's application was received, the panelists

conferred by telephone about its merits. Moreover, when Odom was

not granted an interview, the panel reversed itself at Strader's

behest and interviewed Odom. Yet from the palpable innuendo in

the district court's opinion, we cannot help but infer that

during the trial the court came to believe that some nexus

existed between age and racial discrimination and the delayed

submission of Odom's application. The unfairness of such an

implication is demonstrated, however, in the court's statement

early in its opinion:

Inspector Odom's application was one of the two that,
for some unknown reason, either had not been received
by the review panel with the rest of the Fort Worth
Division applications or was not properly completed by
Mr. Strader, despite the fact that Inspector Odom had
submitted his application well in advance of the
deadline.19

As the district court stated, there is no evidence

19
Id. at 1196.

13
concerning why Odom's application was not timely submitted.

Neither is there any evidence that it "was not properly completed

by Mr. Strader." The implication, by the court's repeated

references to that late submission in context with other

practices questioned by the court, that discriminatory animus

against Odom produced the delivery glitch))is wholly baseless.

Even Odom's counsel, at oral argument, would not claim that the

late delivery was an intentional or deliberate act by Strader or

anyone else. We cannot help but wonder at the court's failure to

mention Strader's successful mitigating efforts on Odom's behalf

to get the review panel to reconsider his application when it

finally arrived in Memphis after the panel initially failed to

grant him an interview))reconsideration that resulted in the

panel's decision to reverse itself and grant Odom an interview.

We find the district court's implied finding of discrimination in

the isolated fact of late delivery of Odom's application to the

review panel to be clearly erroneous.

2. Comparative Qualifications for the Position

The district court found that "Odom was clearly better

qualified than Price for the Prevention Team Leader position in

terms of his performance and experience."20 Generally, a court's

belief that an unprotected applicant who has been promoted is

less qualified than a protected applicant who has been passed

over, will not in and of itself support a finding of pretext for

discrimination. If, however, the passed over applicant who is

20
781 F. Supp. at 1199 (emphasis added).

14
protected against discrimination is clearly better qualified for

the position in question, a finding of pretext masking

discrimination can be supported by the promotion of the less

qualified person.21 In considering the relative qualifications

here, the district court placed those of Odom and Price side-by-

side and found:

45. Inspector Odom was better qualified for the position
than Inspector Price when comparing them according to the
stated qualifications and attributes sought in the vacancy
announcement and as stated by the review panel members.
These qualifications and attributes included leadership
abilities, oral and written communication skills, and
technical knowledge or skills of the position.
46. Inspector Odom had previously led task forces, had
been assigned the training of junior inspectors, and had
previously served as a team leader. Additionally, Inspector
Odom had several commendation letters in his personnel file
for various work that he had performed in the criminal
arena, some of which he had supervised.22

When we conduct a like comparison of the two applicants'

qualifications, however, we are led to the conclusion that the

district court clearly erred in finding that Odom was clearly (as

distinguished from merely) better qualified for the position than

was Price. Rather, as readily conceded by the Service's attorney

21
See Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 259 (1981) ("The fact that a court may think that the
employer misjudged the qualifications of the applicants does not
in itself expose him to Title VII liability, although this may be
probative of whether the employer's reasons are pretexts for
discrimination.") Recently, doubt has been cast on the
continuing validity of this Burdine finding in light of St.
Mary's Honor Center v. Hicks, ___ U.S. ___, 61 U.S.L.W. 4782,
4786-87 (June 25, 1993). As the result we reach in the instant
case does not require a full analysis of the Hicks decision, we
decline the opportunity to discuss its possible ramifications in
that regard. See infra text accompanying notes 28-29.
22
781 F. Supp at 1198.

15
at oral argument, the record supports the conclusion that Odom

and Price were similarly qualified for the position. We simply

do not find support for the district court's conclusion that

Odom's qualifications were so greatly or significantly superior

to Price's to make Odom "clearly better qualified."

Price had significant recent experience in several of the

criminal areas that were most relevant to the new position. As

noted above, Odom's experience had not been primarily on the

criminal side of the inspection service; to the contrary, his had

been almost entirely on the audit side. Most of the work for

which Odom had been primarily responsible during the several

years preceding to the application process simply was not

relevant to the new position.

Odom contends that the fact that he was a career audit

specialist did not matter, and that the Service's assertion of

the irrelevance of his specialty and his experience was merely a

pretextual explanation. We disagree. The review panelists'

testimony demonstrates what follows naturally to us: The fact

that Odom's primary experience did not match the position sought

was legitimately relevant and significant to the panel's

determination.

Additionally, Price had a college degree while Odom did

not.23 Based on raw numbers, Odom had participated in more

23
The different educational backgrounds of the two
applicants is more reflective of the times when they began
working for the Service (and their entry level positions) than
their relative merit as applicants. Odom began working as a
letter carrier for the Service in 1950, and worked his way up to

16
instructional courses and programs than had Price; but that was

to be expected, given the greater length of time that Odom had

worked for the Service. Their respective statements of "specific

qualifications" are quite different, but neither is particularly

more impressive than the other. A careful and objective

comparison of Price's and Odom's applications reveals no glaring

distinction that would support a finding that Odom was "clearly

better qualified than [Price] for the Prevention Team Leader

position."24

We also remain cognizant of the fact that the evaluation of

applicants (and applications) for high level positions in any

discipline))business, industry, government, military, or

education))involves both objective and subjective elements. We

also recognize that subjectivity has a potentiality for abuse by

those evaluators who would use it to shield improprieties in the

selection process, possibly even as a pretext for discrimination.

On the other hand, as a general rule judges are not as well

suited by training or experience to evaluate qualifications for

high level promotion in other disciplines as are those persons

who have trained and worked for years in the field of endeavor

for which the applicants under consideration are being evaluated.

Therefore, unless disparities in curricula vitae are so

apparent as virtually to jump off the page and slap us in the

the position of inspector. Price, on the other hand, came to
work as an inspector out of college.
24
781 F. Supp. at 1199.

17
face, we judges should be reluctant to substitute our views for

those of the individuals charged with the evaluation duty by

virtue of their own years of experience and expertise in the

field in question. We cannot here disabuse ourselves of the

conclusion that the district court clearly erred in substituting

its comparative evaluation of the two candidates for that of the

review panel to find that Odom's credentials were so obviously

and substantially superior to Price's that Odom was "clearly

better qualified" for the job than was Price. We find that

neither singly nor collectively do Odom's qualifications leap

from the record and cry out to all who would listen that he was

vastly))or even clearly))more qualified for the subject job than

was Price. The district court's finding to the contrary was

clear error.

3. Constitution of the Review Panel

Without labeling it discriminatory, the district court

expressly considered the improper make up of the Service's review

panel as a key element in the "totality of the circumstances

surrounding the promotion process" that led to the court's

finding of discrimination against Odom. As we observed earlier,

the court stated:

The review panel appointed to make the selection, which
was made up solely of white males, was improperly
constituted under the agency's own regulations. The
inclusion of Mr. Hicks on the review panel in violation of
internal regulations which prohibited supervisors of
applicants from serving on the review panel is especially
probative since Defendant excluded eligible and available
minorities from serving on the review panel because they had
supervised some of the applicants or came from the same

18
 division as some of the applicants.25

In making this determination, the district court rejected

and did not discuss the only evidence in the record))testimony by

one of Regional Chief Inspector Moore's assistants))concerning

the composition of the review panel. Apparently ignoring the

Service's witnesses, the court implicitly found that the

composition of the panel evidenced a discriminatory intent toward

Odom. We cannot accept either the district court's unexplained

disregard of the facially benign explanation given by the Service

or the inference of discrimination the court made from the fact

that the panel was comprised of three white males in derogation

of a provision in Service guidelines for the inclusion of at

least one woman or minority on every panel.

The district court found the constitution of the review

panel "especially probative," because minorities who were

supervisors of applicants for positions and were of appropriate

25
781 F. Supp. at 1199. The Service guidelines at issue
provide:
3. Composition of the Committee
a. . . . Every effort will be made to designate at least
one woman or one minority group member to serve on each
review committee.
. . . .
d. Neither the supervisor of the position to be filled
nor any manager exercising authority over the supervisor, up to
and including the selecting official, may serve on a review
committee or participate in its deliberations. A manager
who has signed a candidate's Form 991-B is ineligible to
serve on a review committee which will consider that
candidate. An exception to this latter rule may be made by
the official who designates the committee when it is
impracticable to designate another manager. The reasons for
making the exception must be fully documented.
Hicks was a white male who directly supervised Hurlbut and had
signed his "Form 991-B."

19
rank were not appointed to the panel while Hicks, a white male,

was included on the panel even though an employee whom he

supervised (Hurlbut) was under consideration by the panel. Yet

if the district court even considered the uncontradicted

testimony of Walker Liner, the Regional Personal Officer and one

of Moore's assistants, that fact is not apparent from its

opinion.

Liner testified that the fact that Hicks was the supervisor

of one of the applicants did not come to anyone's attention when

the recommendations for the review panel assignment were being

made. By the time it was discovered that Hurlbut had applied and

that he was supervised by Hicks, the panel was simply too far

into the process for anything to be done about the problem.

Moreover, Liner's uncontradicted testimony was that when on

previous occasions had been panels constituted in technical

violation of the guidelines, it was not uncommon for the

panelists to serve nonetheless. His experience had been that it

was difficult (if not impossible) to constitute every panel in a

technically correct manner, and that the fact that it occurred

here had nothing to do with Odom's case.

The district court also ignored, without comment, the

reasonable, benign explanations for there having been no minority

member or woman on the instant review panel. At the time the

panel was appointed, there were no women supervisors at the

appropriate level in the Southern region. As for potential

minority participation on the review panel, Liner provided

20
reasonable (and uncontradicted) explanations concerning why each

potential qualified minorities supervisor had to be excluded.26

The district court found that the bending of the Service's

guideline by allowing Hicks to serve on the panel while excluding

potential minority panelist evidenced discrimination against

Odom. As discussed, however, the record does not contain any

evidence whatsoever of a nexus between the panel's make-up and

age or racial discrimination towards Odom))certainly none

sufficient to support a finding of discrimination on this point.

The inclusion of Hicks on the panel was at most one of oversight

regarding Hurlbut's application. Besides, the unavailability of

qualified female or minority supervisors to serve on the panel

made the appointment of some white male unavoidable. Further,

the relevant service guideline does not impose an absolute duty

to include a woman or minority group member on each review

committee. Instead, the guideline dictates that "every effort

will be made" to designate one such person to each review

26
One potential minority member of the review panel was
recovering from an eye injury. Another was on a special detail
in Washington, D.C., and was therefore unavailable. A third was
not selected because he had served on review panels frequently in
the recent past and was behind in his own work. Yet another
potential minority member was under investigation and thus could
not serve. The last two potential minority panelists were
stationed in the Fort Worth division, where the subject position
was to be located and where almost half of the applicants for
that position were stationed. It was immediately obvious to
Liner that the two Fort Worth minority supervisors would
supervise some of the applicants and thus could not properly be
on the panel. This is in contrast to Hicks, who, in addition to
being the only available internal crimes expert, was a supervisor
in New Orleans, and about whom it had not been immediately known
that a conflict existed.

21
committee. This language implicitly recognizes that it will not

always be possible to compose a review committee in accordance

with this standard.

Odom's argument, and the reliance of the district court in

this regard, encounter another problem: There is simply no

evidence that the inclusion of Hicks on the panel had any

producing causal connection with Odom's failure to make the

panel's top five list. All three panel members were white males,

so there is no basis for singling out Hick's appointment as

evidence of race or age bias. That Hicks was a supervisor of one

of the applicants who made the consensus top five list may show

cronyism, but cannot be classified as reflecting race or age

bias. After all, not one of the three panelists included Odom in

his "top five" list. Moreover, the only difference in the

panelists' individual top five lists was the inclusion of either

Nichols or Hurlbut as the last of the sixteen applicants to make

the consensus top five list. If anyone should be heard to

complain about the composition of the panel, it could only be

Nichols))not Odom. For even if Hicks' position on the panel had

been filled by a non-white, non-male, non-supervisor who

eventually included Odom on her top five list, he still would not

have been on the top five list of either of the other two

panelists, and thus presumably would not have made the "cut." To

the extent that the district court found the evidence of

discrimination in the makeup of the review panel, the court

clearly erred.

22
 4. Evidence of an Unwritten Policy to Discriminate Against
Persons Over Forty

The district court next stated that "[e]vidence was adduced"

that the Service "had an unwritten policy discouraging promotion

of persons over forty to upwardly mobile positions." We assume

from its inclusion of this oblique statement in its findings that

the court accepted as fact that such a "policy" actually existed.

The record, however, does not support such a conclusion.

The only evidence that Odom produced on this point consists

of four statements, which together cannot overcome the clearly

erroneous standard to support a finding of an "unwritten policy"

of age discrimination. First, Inspector Smith, one of the review

panelists, mused that, at one point in his career, he may have

been denied both a promotion and a lateral move because of age.

Second, Smith said that, in his opinion, persons over fifty did

not have the same chance for advancement as younger workers.

Third, Inspector Gump, the chairman of the review panel, had

written "potential for advancement" in his notes concerning

general factors that the panelists should consider; and he

testified that he had intended to use this factor only in the

event a tie-breaker became necessary))which it never did.

Finally, there are Odom's self-serving but otherwise unsupported

assertions concerning his belief in the existence of such an

unwritten policy.

All of the evidence adduced to demonstrate the existence of

such a "policy" is at most anecdotal and bare speculation. We

thus hold that the district court's finding that the Service

23
maintained such an unwritten policy))and the inclusion thereof

among the "circumstances" considered by the court in concluding

that discrimination occurred))was clear error.

5. Statistical Evidence

Finally, the district court's last finding among the

totality of circumstances supporting a determination that the

Service had discriminated against Odom was that "[t]he

statistical data . . . indicates [sic] exclusions of blacks and

persons over the age of forty as selectees for higher level

positions." In our meticulous combing of the record of this

appeal, we find no statistical evidence introduced by Odom that

supports this finding.

The only items of evidence introduced in the trial that

could be viewed (even erroneously) as statistical evidence are

found in the Service's responses to Odom's

interrogatories))responses which the Service entered into

evidence at trial. They are nothing more than raw data of the

age, race, and location of persons promoted to level 24 positions

in the inspection service from 1980-1983. Odom introduced no

analysis of this data. The "statistical evidence" that was

presented to the district court, without more, is not competent

to prove anything. It is simply impossible to discern from the

record what (if anything) the Service's responses to the

interrogatories are supposed to mean))much less to determine that

they "indicate[] exclusion of blacks and persons over the age of

forty as selectees for higher level positions within the Postal

24
Inspection Service."27 The district court's finding that this

so-called statistical evidence demonstrated discrimination was

thus clearly erroneous.

C. What the Evidence Does Show

Although it does not demonstrate age-based or racial

discrimination, the evidence adduced in the instant case does

appear to confirm something else of an untoward nature: the

perpetuation of what, for lack of a better term, is frequently

labeled the "good old boy" network. Much of the evidence in this

case))e.g., the subliminal messages in Strader's recommendations

and the fact that after the panel completed its work, Moore (who

was supposed to be the final decisionmaker) called Strader and,

in effect, allowed him to pick the person he wanted to fill the

position))gives us the impression that the decisionmakers were

merely "going through the motions" of the required procedure

while in fact ensuring that Strader would get the person he

wanted to fill the new position. But even if that impression is

correct, it does not amount to racial or age-based

discrimination. Again, misfeasance, malfeasance, or non-

feasance))without nexus to age or race))is not actionable here.

The essence of the Service's explanation concerning why Odom

did not receive the subject promotion is that, at the conclusion

of its promotion process, Odom was simply not the top-rated

candidate. Even though the conduct of the Service's process

might not pass the "smell test," and might well raise eyebrows,

27
781 F. Supp. at 1199.

25
Odom has failed to adduce forth sufficient evidence to

demonstrate that discriminatory intent motivated the acts or

omissions of anyone involved in the promotion process.

In St. Mary's Honor Center v. Hicks,28 the Supreme Court

recently discussed, at length, the burden of proof applicable to

a claim of racial discrimination.

The factfinder's disbelief of the reasons put forward
by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together
with the elements of the prima facia case, suffice to
show intentional discrimination. Thus, rejection of
the defendant's proffered reasons, will permit the
trier of fact to infer the ultimate fact of intentional
discrimination,4 and the Court of Appeals was correct
when it noted that, upon such rejection, "[n]o
additional proof of discrimination is required." 970
F.2d at 493 (emphasis added). But the Court of
Appeals' holding that rejection of the defendant's
proffered reasons compels judgment for the plaintiff
disregards the fundamental principle of Rule 301 that a
presumption does not shift the burden of proof, and
ignores our repeated admonition that the Title VII
plaintiff at all times bears the "ultimate burden of
persuasion."
4
. . . Even though (as we say here) rejection of
the defendant's proffered reasons is enough at law to
sustain a finding of discrimination, there must be a
finding of discrimination."29

Odom has failed as a matter of law to demonstrate race or

age discrimination, even though his evidence may be sufficient to

bring into question the objectivity of the Service's selection

process as administered. But that alone cannot carry the day.

III

CONCLUSION

28
___ U.S. ___, 61 U.S.L.W. 4782 (June 25, 1993).
29
61 U.S.L.W. at 4784 and n.4.

26
 Odom failed to produce sufficient evidence that the reasons

given by the Service for his not receiving the promotion were a

pretextual smokescreen masking racial or age-based

discrimination. We have found the district court's express or

implied factual findings, which supported its ultimate finding of

discrimination, to be clearly erroneous. We therefore REVERSE

the judgment of that court and RENDER judgment in favor of the

Service, dismissing Odom's action.

27