(dissenting).
I can understand the court’s disappointment that the McDonnell Douglas criteria were not referred to in the district court’s decision, but I do not agree that a remand is called for. I would affirm.
The making out of a prima facie ease under McDonnell Douglas shifts the burden to defendant to show that the reasons for not promoting were non-discriminatory and non-pretextual. In cases where the defendant satisfies the district court, as he did here, that the reasons for not promoting were non-discriminatory and non-pretextual, I see no absolute necessity that the district court articulate whether or not a pri-ma facie case was made. Indeed, it may be that it was wiser for the district court simply to presume that such a case was made out, and then ascertain if the defendant’s grounds for refusing to promote were or were not proper.
I make this point in all earnestness because I can see real difficulties in deciding whether or not a top-level employee like plaintiff was, strictly speaking, “qualified” in the McDonnell Douglas sense so that her rejection was prima facie discriminatory. The Supreme Court recognized that the elements of a prima facie case would vary depending on the nature of the employment. 411 U.S. at 802 n. 13, 93 S.Ct. 1817. A top policy level employee does not fit neatly into the McDonnell Douglas analysis; and here we have the further complication that while plaintiff passed the Civil Service exam, she was the only candidate, and Civil Service standards normally allow selection to be made from the top three. Does an employer discriminate, even prima facie, by exercising his right under Civil Service to defer selection until he has three candidates to choose from?
My point is simply that there is much to say, in a case like this, for focusing upon the key issue — whether or not defendant had a proper reason for not promoting plaintiff — rather than floundering about with the difficult but inconclusive question of whether or not a prima facie case was made.
For all practical purposes, this was what was done here. It is true that the court did not preface its findings of non-discrimination with the words, “Assuming plaintiff has made out a prima facie case . . ” but it did carefully examine the substantiality of defendant’s reasons for non-promotion, concluding that they were valid and non-discriminatory. In so doing, it inferentially recognized that the burden of proof rested with defendant. Since the principal effect of a prima facie case is to shift the burden of proof, and since the district court necessarily recognized the location of the burden in its handling of the evidence, I think its failure to articulate the McDonnell Douglas formula was harmless.
The Federal Rules of Civil Procedure require us to uphold the district court’s findings of fact unless clearly erroneous, Fed.R. Civ.P. 52(a), and to disregard any error or defect which does not affect the substantial rights of the parties. Since the district court’s finding that plaintiff’s non-promo*17tion was not for discriminatory reasons is well supported in the record, it should stand. Similarly, the court’s failure to articulate the McDonnell Douglas standard is at most harmless error, since, even assuming plaintiff made out a prima facie case, the finding of a non-discriminatory reason for non-promotion defeats that showing.
This is not a case where there can be serious doubt that there exists sufficient evidence to support the district court’s finding of non-discriminatory motive. While the evidence is conflicting, there is substantial evidence for the court’s finding, and I would think that, under Rule 52(a), that would be that — especially since the court was able to view and hear the witnesses as we cannot.
I would affirm.