dissenting.
I respectfully dissent.
My review of the district court’s opinion (which constituted the Findings of Fact) does not support the conclusion that an improper burden of proof was placed upon the plaintiff. To reach that conclusion, one must interpret the opinion very technically or take statements out of context.
The district court specifically found that the selection process did not encourage personal biases nor foster discrimination, and that the selection process was valid and fair. It is true, as the majority states, that the trial judge found that the contention of the Corps that oral communication skills were a prerequisite to promotion was a pretext. However, he went further and found that the Corps had established legitimate non-discriminatory reasons for its refusal to promote Wang.1
Finally, I have difficulty with the majority’s theory that disparate impact analysis applies to the instant case. This approach, which treats the element of intent as irrelevant, has heretofore been reserved for those situations in which “a business practice, neutral on its face, is shown to have a substantial, adverse impact on some group protected by Title VII”, e.g. Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 537 (9th Cir.1982) emphasis added. Application of such analysis where only a single individual is involved is not likely to enhance stability in an area of law already fraught with uncertainty.
*1150Since I conclude that the trial judge properly applied the law to the facts as he found them and that the Findings of Fact are not clearly erroneous, I would affirm the judgment of the district court.
. On this point the trial court stated “While the findings and conclusions on this point [oral communication skills] are not necessary to the holding in this case and are therefore dicta, I believe it is important for the parties to be aware of the court’s resolution of this issue since it was a central issue in the trial.”