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