dissenting in part.
The majority opinion holds that Lowe has made out a prima facie case of disparate treatment simply by showing that she was not hired by the City to fill a vacancy. It treats the City’s rules and practices under which an applicant must qualify to be hired as mere evidence admissible at trial to rebut an inference of discrimination.
In so doing, the majority stands the case on its head,1 ignores the settled law of this circuit, and creates a precedent that threatens the integrity of commonly used non-discriminatory civil service hiring systems.
In addressing the question whether Lowe made out a prima facie case, it is useful to recall the Supreme Court’s observation that
[t]he method suggested in McDonnell Douglas for pursuing this inquiry [whether a prima facie case has been established], however, was never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A pri-ma facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). This court elaborated on the reasoning in Furnco in Gay v. Waiters’ and Dairy Lunchmen’s Union, 694 F.2d 531 (9th Cir.1982), stating that the McDonnell Douglas test “presents the legal question whether the plaintiff has met his burden of production, coming forward with sufficient probative evidence to permit a rational jury or court to find the material facts in his favor, thus avoiding a directed verdict or motion for judgment as a matter of law.” Id. at 543, n. 10.
The material facts are undisputed. Lowe filed her application with the City on January 19, 1982. She took and passed the written and oral examinations in May, 1982. The results of the examinations and the ranking of the applicants were announced in June, 1982, and an eligibility list of successful applicants was certified to take effect on August 1, 1982. Lowe ranked eleventh on that list, based on her grades on the examinations.
Meanwhile on June 7, 1982, the City hired a male hispanic applicant from its lateral transfer list to fill a vacancy. No additional persons were hired until after February 1,1983, the date on which the list with Lowe’s name expired.
It is not disputed that the procedure followed in this case conformed to the City’s established rules and practices. Every six months the City certifies a new list of eligible applicants for entry level positions ranked in order of grades. The list remains in effect for six months when a new list is certified. In addition the City maintains a lateral entry level eligibility list from which it also fills vacancies for lateral entry.
These facts demonstrate that Lowe failed to establish a prima facie case for three reasons:
(1) At the time when Razo was hired in June, Lowe was not yet eligible to be hired because her name did not appear on a then effective eligibility list;
(2) During the period when she was eligible, there were no job openings;
*1013(3) Even if Lowe were treated as having been eligible in June, her position as the eleventh on the eligibility list precludes any inference that the failure to hire her “more likely than not [was] based on the consideration of impermissible factors.” Furnco, supra2
This case falls squarely within principles well-settled in this circuit. A plaintiff fails to establish the second element of McDonnell Douglas if she does not show that she completed the application process for the position, Tagupa v. Board of Directors, 633 F.2d 1309 (9th Cir.1980), and that she was a qualified applicant when the job opening existed. Morita v. Southern Cal. Permanente Medical Group, supra; Chavez v. Tempe U. High Sch. Dist. No. 213, 565 F.2d 1087 (9th Cir.1977); Gay v. Waiter’s and Dairy Lunchmen’s Union, supra. A plaintiff fails to establish the third element by failing to show that she was barred from consideration for the position or that she was not considered when others of her qualifications were. White v. City of San Diego, 605 F.2d 455 (9th Cir.1979).3
The majority sweeps all of this aside by holding that “Lowe ‘applied’ when she filed her application” and that “the City rejected Lowe on February 1, 1983 [when the eligibility list expired].” (At 1006) To reach those conclusions, however, the majority has to disregard entirely the City’s established rules and practices in accordance with which it acted. Lowe challenged those rules and practices as having a disparate impact on Blacks. The court below granted summary judgment on that issue and the majority affirms. Thus we must accept those rules and practices as racially neutral.4
Under those rules and practices, the City hired only persons whose names appeared on a then certified eligibility list and a person did not become eligible for hire until she had qualified ánd been placed according to her rank on a certified list. There is no evidence to support the majority’s characterization of the City’s practice as “delaying the effective dates of its eligibility lists.” (Majority at 1006) What the evidence shows is that the City regularly prepares a new list every six months and maintains it in effect for six months. Before a new list is prepared it advertises for applicants who may then take the examinations to qualify for placement on the new list. There is no evidence that the City in preparing and certifying the August 1, 1982, eligibility list acted other than in the ordinary course.
Nor is there any evidence that in permitting the August 1, 1982, list to expire on February 1, 1983, to be replaced by a new list, the City acted other than in accordance with its established rules and practices.
“[I]t is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally.” Texas Dept. of Community Affairs v. Burdine, supra 450 U.S. at 258, 101 S.Ct. at 1096. Who are similarly situated employees? Presumably it would be others who had applied but whose eligibility list had not yet gone into effect when a job was filled, or whose eligibility list had expired when a job was filled. There is no evidence of any other person so situated, *1014let alone that any one in that position was treated differently. When the City made the decision to fill a position in June, it did not hire anyone who under its system was not eligible for consideration. During the period when Lowe was eligible, it did not hire anyone. When Lowe’s list expired, it did not prevent her from reapplying for future consideration.
The majority’s concern, of course, is that the City’s system enables it to fill a vacancy with some one else if a minority applicant is coming up on the next eligibility list before that eligibility list goes into effect. It may be assumed that the City’s system, as the majority says, “permit[s] the manipulation of hiring dates and job openings.” (At 1010 n. 10, emphasis added). The trouble with that reasoning, however, is that a defendant cannot be held liable for a wrongful act without some evidence from which a trier of fact could find by a preponderance of the evidence not that he was capable of committing it but that he did commit it. Here there is not an iota of such evidence.5
Inasmuch as there is no evidence of disparate treatment, the City’s Personnel Division Manager’s alleged statement to Lowe that the City’s police force had no women and no Blacks and her encouraging Lowe to apply to the Los Angeles Police Department instead is irrelevant. Evidence of motive is insufficient to establish a prima facie case in the absence of evidence of disparate treatment. See Hagans v. Andrus, 651 F.2d 622, 626 (9th Cir.), cert. denied sub nom. Hagans v. Watt, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); cf. Thorne v. City of El Segundo, 726 F.2d 459, 464 (9th Cir.1983).6 Here there is none.
It is appropriate to take note that the system of hiring off eligibility lists ranking applicants in order of their examination scores and having a limited life is common practice for public agencies. See, e.g. Cal. Gov’t Code §§ 18900 et seq., §§ 19050 et seq. Such a system promotes fair and open hiring based on qualifications; it offers early applicants a chance to qualify for job openings created after they have first applied while giving later applicants a chance to gain high ranking on a new list if their qualifications entitle them to it. So long as such a system is not shown to have a disparate impact, mere adherence to it does not afford a basis for finding disparate treatment. The majority’s conclusion to the contrary raises the spectre of a rule under which minority employees must be considered for employment whenever openings exist, regardless of whether they are eligible under the public agency’s hiring procedures. Title VII does not call for such preferential treatment. Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S. at 259, 101 S.Ct. at 1096. See also Atonio v. Wards Cove Packing Co., Inc., 768 F.2d 1120, 1132 (9th Cir.1985) (“essential that employers remain free to set employment qualifications as they honestly saw fit, so long as those qualifications were not based on race, color, religion, sex, or national origin.”); and EEOC Uniform *1015Guidelines on Employee Selection Procedures, 29 CFR § 1607.1B (no restriction on “selection procedures where no adverse impact results”) § 1607.11 (prohibition against disparate treatment does not preclude selection procedures in compliance with guidelines).
Because the undisputed facts would not permit a rational jury or judge to find that Lowe was subjected to disparate treatment or that, as the eleventh on the list, she would have been hired but for the City’s discriminatory motive, I dissent from parts III.C. and IV and would affirm the judgment below.7
. The majority confuses the framework of rules and practices within which the City acted with non-discriminatory reasons for an employment decision which may rebut a prima facie case, (pp. 1007-1008) See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (after plaintiff has made a prima facie case, burden shifts to employer "to articulate some legitimate, non-discriminatory reason for the employee's rejection”) It does so by in effect shifting a part of plaintiffs burden to make a prima facie case— her qualification to be hired — onto defendant by making it a part of its rebuttal case. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981); Morita v. Southern Cal. Permanente Medical Group, 541 F.2d 217, 219 (9th Cir.1976). The error in this approach is discussed in what follows.
. At oral argument, moreover, counsel for the City represented that the City is obligated to hire from among the top three candidates on any list.
Inasmuch as the only issue concerns the filling of the vacancy in June 1982, it is not necessary to address the majority’s point that if the lists did not automatically expire, the City would have had to hire Lowe eventually, no matter how low she ranked. (Majority at 1007 n. 7)
. The City contends that Lowe failed to satisfy both the second and third elements. See App’ee Br. 10-16.
. The majority rejects "Lowe’s challenge to lateral hiring and the use of eligibility lists with delayed effective dates and automatic expiration times” because she "did not offer affidavits or documentary evidence sufficient to support her claim [of disparate impact].” (At 1005) It is difficult to follow the majority’s logic under which these same practices, held to be neutral under the impact analysis, are held to raise an inference of disparate treatment. (At 1006)
. Thus the majority misconceives the basis of this dissent. Obviously, it is not that "[t]he availability of a discriminatory treatment claim is ... dependent on the plaintiffs ability to prove a discriminatory impact claim." (At 1005 n. 5) Nor is it "that the mere existence of a system of the nature of the City’s precludes plaintiffs from showing intentional discriminatory treatment.” (At 1010 n. 10) Rather it is that a showing of nothing more than hiring in accordance with rules and practices found by the majority not to have been shown to have a discriminatory impact is insufficient to prove a prima facie case of discriminatory treatment.
. The majority opinion correctly states that a plaintiff can establish a prima facie case of disparate treatment without satisfying the McDonnell Douglas test" (At 1007) but no case to this writer’s knowledge has ever held that a plaintiff can do so without some proof of disparate treatment. See the cases cited by the majority (At 1007), Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1361 (9th Cir.1985) (plaintiff not precluded from suit merely because person of same protected class selected for challenged position); Gay v. Waiters and Dairy Lunchmen's Union, supra, 694 F.2d at 550 (reliable generalized statistical data relevant and admissible at prima facie stage of disparate treatment case to determine whether employment decision was product of intentional discrimination.)
. In the light of the conclusion I reach, it is not necessary to address the majority’s discussion of the individual defendants’ qualified immunity. I do not understand, however, how "[a] reasonable person would have been aware that the practices Lowe complains of were unlawful” when this court itself has failed to find them so (At 1011); that awareness surely cannot be attributed ex post facto on the strength of allegations of discriminatory intent subsequently made in litigation.