
USCA1 Opinion

	




          March 10, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1989                          CANDELARIA CUELLO-SUAREZ, ET AL.,                                Plaintiffs, Appellees,                                          v.                    PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA),                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Karen M. Loyola Peralta for appellant.            _______________________            A. Santiago Villalonga for appellees.            ______________________                                 ____________________                                    March 10, 1993                                 ____________________               COFFIN, Senior  Circuit Judge.   Plaintiff, a  United States                       _____________________          citizen who was born  in the Dominican Republic, claims  that she          was denied  promotion on many  occasions because of  her national          origin.  She brought  suit against her employer, the  Puerto Rico          Electric  Power Authority (PREPA),  under Title VII  of the Civil          Rights Act  of 1964, 42 U.S.C.    2000e-(2), and Law  100 of June          30, 1959  of the Commonwealth of Puerto Rico, P.R. Laws Ann. tit.          29,     146.1    After  a bench  trial,  the district  court gave          judgment for the plaintiff and PREPA appeals.  We affirm.               PREPA now challenges the court's holding that plaintiff made          out a prima facie case and its allegedly improper shifting of the          burden  of proof.  Although the trial lasted four days, appellant          did not provide us with a transcript, as required by Fed. R. App.          P.  10(b)(2).  We  have since obtained  it,2 have  reviewed it to          check our  understanding of the evidence, but rely principally on          the  facts as  set forth  by the  district court,  which in  turn          relied on the post-trial briefs of counsel.                 Plaintiff, a seventeen-year veteran employee of  PREPA, has          held various positions as clerk and typist.  She possesses a B.A.          degree in business administration with  a major in accounting and          a minor  in management and,  shortly after  commencement of  this          litigation,   obtained  her   license  as   a  Certified   Public                                        ____________________               1  She also asserted a claim under 42 U.S.C.   1981 that was          dismissed by the district court and is not a part of this appeal.               2   The transcript, filed  in the district  court on October          13, 1992, was sent to us at our request on February 18, 1993.          Accountant.   Over the years, she successfully had taken at least          ten  different  tests  required  for  promotion  and  always  had          received above average evaluations  in her performance reviews as          a  temporary employee.  She never received a reprimand.  Prior to          this lawsuit,  plaintiff had filed 77  applications for promotion          to supervisory  positions, with no  success.3  Subsequent  to the          filing of  this action in 1988,  she applied for  the position of          Supervisor  of Consumer Services.   The position was  filled by a          native  Puerto Rican with seven months of employment by PREPA and          a B.S. degree in marine biology.               Statistical data of various  kinds were introduced at trial.          Of  some  10,700  employees  in  PREPA,  100  were  in  executive          positions and 2,400  in managerial positions.   All employees  in          the former group were born  in either Puerto Rico or other  parts          of  the United  States;  in the  latter  group, there  were  five          persons   of   Dominican   origin  occupying   what   the   court          characterized as "highly technical" supervisory  positions in the          field.   There were six  other CPA's in PREPA.   All were born in                                        ____________________               3    This figure  is used  by the  district  court.   In her          testimony, plaintiff listed 92 separate applications between 1980          and 1989.               PREPA's  regulations  governing  appointment  to  managerial          level positions state:               The interested  supervisor selects the  one that he/she               considers  to be  the best  candidate in  accordance to               the effective norms and  in accordance to the following               priority order:               ...               a) Regular  and temporary  managerial employees with  one or          more      years of service with the authority.               b) Non-Regular employees.               c) Candidates from the Registry of Eligibles.                                           -3-          Puerto Rico  and held  jobs  ranging from  Executive Director  to          Auditor.               The  district court  began its  legal analysis  by rejecting          PREPA's contention  that plaintiff's evidence had  to be assessed          under  disparate  impact  principles  -- i.e.,  as  proof  that a          facially neutral practice had a significant discriminatory impact          on  applicants  for promotion  who  were of  Dominican  origin as          compared with applicants of  U.S. (including Puerto Rico) origin.          PREPA argues that the  court erred in that ruling,  claiming that          plaintiff challenged a specific, facially neutral practice, i.e.,          "grooming"  allegedly  less  qualified  persons  by placing  them          temporarily in desirable positions and then ultimately appointing          them  permanently based  on  their temporary  experience.   PREPA          further argues  that plaintiff  failed to sustain  this challenge          because she relied on statistical data, compiled by herself, that          provided no comparison  with the relevant  pool of eligibles,  as          required by Wards Cove Packing Co.  v. Atonio, 490 U.S. 642, 650-                      ______________________     ______          52 (1989).                 There is  some surface plausibility to this  argument but on          reflection we reject it.  While a practice of hiring or promotion          allowing considerable room for subjective judgment can be subject          to disparate impact analysis,  Watson v. Ft. Worth Bank  & Trust,                                         ______    _______________________          487  U.S. 977,  990  (1988), "grooming"  was  merely one  of  the          justifications  advanced by PREPA for  its actions.   The gist of          plaintiff's  claim was that,  try as hard  as she  might, she was          always turned down in  favor of U.S.-Puerto Rico born  persons --                                         -4-          for  varying and pretextual reasons having nothing to do with her          performance  or  qualifications.   It  was  the  discriminatorily          motivated  treatment of her that she sought to demonstrate by her          data,  which did not purport  to be a  broad statistical analysis          but  rather a  distillation and  summary of  her analysis  of the          personnel records of all those who were chosen instead of her.4               As  is  well  recognized,   either  a  disparate  impact  or          disparate  treatment analysis may  be applied to  any given case.          Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977).   This          _________    _____________          case seems to us, as it did to the district court, more suited to          disparate treatment analysis, where the plaintiff must make out a          prima  facie case of discrimination, the  employer must then come                                        ____________________               4    Plaintiff's  testimony   on  her  methodology  was  the          following:                    Q     So  you  did  not   study  the  general                    population  of  all  the  persons  that  were                    competing  with you in all the positions that                    you requested in  PREPA during  the years  in                    controversy?                    A   No because what I did was conduct a study                    of the persons to whom positions were awarded                    not  the  persons  who were  competing,  that                    would  be another study. (Trans., Vol. IV, at                    153-154.)                    ...                    Q  Do you have any evidence that any of these                    persons that are born  outside Puerto Rico or                    that are not U.S. citizens were discriminated                    against by PREPA?                    A   On that  list there is only,  as far as I                    know  I  am  the   only  one  that  has  been                    discriminated  against  as  to  the  others I                    don't know. (Trans., Vol. IV, at 159.)                                         -5-          forward  with  some  non-discriminatory  justification,  and  the          plaintiff finally is given the  opportunity to convince the trier          of fact that the  justification was pretextual and that  the real          reason  was discriminatory.  Texas  Dep't of Community Affairs v.                                       _________________________________          Burdine, 450 U.S. 248, 252-53 (1981); McDonnell  Douglas Corp. v.          _______                               ________________________          Green, 411  U.S. 792, 802-05  (1973).  This  being the  case, the          _____          sophisticated  statistical comparisons  between the  impact  on a          victim  class  and that  on  non-victim  class  eligibles in  the          relevant labor pool, as required by Wards Cove, are unnecessary.                                              __________               In reviewing  the district court's rulings in  this genre of          case,  we give  plenary review  to its  conclusion as  to whether          plaintiff has made out a prima facie case and "clearly erroneous"          review to any ultimate finding of discriminatory intent.  EEOC v.                                                                    ____          Metal Service  Co.,  892 F.2d  341,  345  (3rd Cir.  1990).    We          __________________          conclude  that  the  district   court  correctly  identified  and          executed the three-pronged inquiry required.                 The court  first found  present the elements  constituting a          prima  facie case.  Plaintiff's  status as a  person of Dominican          Republic  origin was  clear.5   That she  was qualified  was well          established.   That she repeatedly was rejected and those of U.S.          origin promoted also was  not disputed.  The court,  referring to          plaintiff's  77 rejections, to the status of the other six CPA's,                                        ____________________               5   Although  PREPA claimed in  its brief that  there was no          evidence that the supervisors making the decisions on plaintiff's          applications  knew  she was  a  Dominican  national, counsel  for          appellee represented without contradiction at oral  argument that          such  knowledge  was  never at  issue  and  that,  in any  event,          plaintiff's  personnel record and  the records of  others were in          evidence and clearly showed the employees' places of birth.                                           -6-          and  to plaintiff's  final  rejection as  Supervisor of  Consumer          Affairs  in  favor  of  someone  with  less  job  experience  and          education,   found   the   prima   facie  case   of   intentional          discrimination established.    At the  conclusion of  plaintiff's          case, the court denied PREPA's motion to dismiss.               The court then turned  to PREPA's proffered business reasons          for  rejecting  plaintiff.   It earlier  had recognized  that the          employer's burden was "not one of persuasion but of production of          a legitimate reason" and that,  as to plaintiff's ultimate burden          to   prove  pretext   and  the  more   likely  motivation   of  a          discriminatory reason, "the issue is  one of credibility that the          trier  of fact will determine."  PREPA advances the argument that          "defendant   established  legitimate  business  reasons  for  not          awarding the  management positions to plaintiff.   The plaintiffs          did  not rebut  such  proof showing  that  those reasons  were  a          pretext."  In arguing in this manner, PREPA completely misses the          point that this was a bench trial and that the district court was          not  merely passing  on  the facial  adequacy  of the  employer's          justification but  had to make credibility judgments  and pass on          the genuineness of PREPA's reasons and on the presence or absence          of a discriminatory motive.               As the Supreme  Court has said in  U.S. Postal Serv. Bd.  of                                                  _________________________          Governors  v.  Aikens,  460  U.S. 711,  714-15  (1983)  (footnote          _________      ______          omitted),                    But  when  the  defendant  fails  to persuade  the               district  court to  dismiss  the action  for lack  of a               prima facie case, and responds to the plaintiff's proof               by offering evidence of  the reason for the plaintiff's                                         -7-               rejection, the factfinder must  then decide whether the               rejection  was  discriminatory  within the  meaning  of               Title  VII.    At  this  stage,  the  McDonnell-Burdine                                                     _________________               presumption "drops from the case," 450 U.S., at 255, n.               10, and "the factual inquiry proceeds to a new level of               specificity." Id., at 255.                             __               . . .               The  district court has  before it all  the evidence it               needs  to decide  whether "the  defendant intentionally               discriminated against the  plaintiff."  Burdine, supra,                                                       _______  _____               at 253.               The  district  court  proceeded  to  identify   each  reason          advanced by the  employer, subjected it to critical analysis, and          then evaluated their cumulative weight.   It first noted  PREPA's          initial position  that, among  the 77  positions  applied for  by          plaintiff, there were eight  for which she was unqualified.   But          it observed that there was  no such claim as to the  remaining 69          positions.    Then the court noted PREPA's argument  that she was          turned down  for the position of Supervisor  of Consumer Services          in Training because,  as Clerk of Consumer  Services in Training,          she was  already performing the  tasks required of  a supervisor.          As  to  this,  it commented,  not  unfairly  we  think, that  the          argument was "disingenuous."  Opinion at 14.               Another   PREPA   justification   was   that   the   limited          availability of  managerial jobs meant that  there was inevitable          underutilization  of certain employees.  This did not impress the          court as a  suitable explanation for the  uninterrupted series of          rejections  of plaintiff  in favor  of less  qualified employees.          Another of  PREPA's positions was that  managerial positions were          awarded  to  employees with  experience in  the  job.   The court          reasoned:                                         -8-               The record  does not bear this assertion.   Rather, the               record discloses a practice of grooming individuals  by               placing  them temporarily  in  the  position they  were               ultimately  selected  for   as  a  means   of  facially               satisfying the experience requirement.          Opinion at 16.               Still  another   PREPA  witness's  reason   for  not  acting          favorably  on one  of plaintiff's applications,  not specifically          cited  by the  court, was that  her acquisition of  a CPA license          indicated that  she soon  would seek greener  pastures elsewhere.          This  conclusion, remarkable when applied to one who for 17 years          had  made every attempt to improve her position within the agency          and laboriously  had qualified  in a  discipline relevant  to the          agency's  accounting and  auditing  functions, was  based on  one          experience  with a supervisor who, on receiving a law degree, had          left to practice law.               Two  other factors are relevant to the issues of pretext and          intentional discrimination.  One is the established fact that all                                                                        ___          of  plaintiff's  performance review  evaluations  had  been above          average and  that in 17 years  there had been no  reprimands.  In          other  words,  the  court  on  this  record  could  exclude   the          possibility that  either quality  of  performance or  personality          defects  legitimately  could  have   played  a  part  in  PREPA's          decisions.   The  fact  that many  supervisors  joined  in  these          recommendations over time, under  these circumstances, could have          been  looked upon  as corroborative  of some  hidden, unannounced          practice.  Cf. EEOC v. Metal Service Co., 892 F.2d at 350.                     ___ ____    _________________                                         -9-               The  second factor  is  that,  although PREPA's  Affirmative          Action Plan  requires a statement of reasons to be made a part of          an  employee's personnel file when such  employee is rejected for          promotion,  no such  statement  ever was  made.   We  would  have          expected  that  at  some  point  in  this attenuated  history  of          frustration some supervisors would have noted the bases for their          adverse decisions.   This seems to  be an example of  the type of          case where "courts  continue to express distrust, even  in white-          collar  jobs, for  selection criteria  that are  unstructured and          where the  overwhelming number of selectors or  testers are white          or  male  [i.e.,  putative  discriminators]."   B.  Schlei  &  P.          Grossman, Employment Discrimination Law 25 (2d ed. 1983) (1987-89                    _____________________________          Supp.)               The  district court's  ultimate  finding was  that from  the          facts  and  the inferences  drawn  from  PREPA's "silence  and/or          fanciful explanations  is that failure to  select [plaintiff] for          77  managerial   positions  responds   [sic]  to  a   pattern  of          intentional discrimination  on  the basis  of  her  nationality."          Opinion at 16-17.  We conclude, based on all the  factors we have          cited, that this judgment was  not clearly erroneous, indeed, far          from it.                In so concluding, we note that even  if the employer has met          its burden  of articulating a nondiscriminatory  business reason,          the trier  of fact  may consider  the prima  facie case plus  the          cross  examination  of  defendant  and arrive  at  a  supportable          determination  of discrimination.  Burdine, 450 U.S. at 255 n.10.                                             _______                                         -10-          Our  own jurisprudence makes it  clear that there  is no absolute          rule as  to the necessary  composition of sufficient  evidence of          discrimination  and  that we  look to  the  evidence as  a whole.          Goldman v. First Nat'l Bank of Boston, No. 92-1773, slip op. at 8          _______    __________________________          (1st  Cir. Feb. 18, 1993);  Lawrence v. Northrop  Corp., 980 F.2d                                      ________    _______________          66, 69-70  n.1 (1st Cir.  1992); Connell v.  Bank of  Boston, 924                                           _______     _______________          F.2d  1169,  1172  n.3  (1st  Cir.  1991).    More  particularly,          depending on the facts, the making of a prima facie case together          with   evidence   of   pretext   may  raise   an   inference   of          discrimination.   There is no absolute rule that a plaintiff must          adduce additional evidence.  Samuels  v. Raytheon Corp., 934 F.2d                                       _______     ______________          388, 392  (1st Cir. 1991);  Villanueva v. Wellesley  College, 930                                      __________    __________________          F.2d 124, 128 (1st Cir. 1991).6               The  instant case fits this prescription.  Not only is there          plaintiff's history of repeated  failed efforts rivaling those of          Sisyphus,  but the variety of reasons offered by defendant do not          withstand  scrutiny  and  have  nothing to  do  with  competence,          character,  or personality.   Nor  was there  any contemporaneous          explanation of  the rejections.    We cannot  fault the  district          court for finding a pattern of intentional discrimination.               We  have not overlooked PREPA's claims  that the court erred          in excluding certain evidence and in allowing plaintiff to reopen                                        ____________________               6  Although a  panel in one earlier  case took the  position          that additional evidence of  discrimination must be  forthcoming,          see  Olivera v. Nestle  Puerto Rico, Inc.,  922 F.2d  43, 48 (1st          ___  _______    _________________________          Cir. 1990), a majority of that panel since has taken the position          articulated  in  Connell and  Villanueva,  which  we believe  now                           _______      __________          represents the law of the circuit.                                         -11-          her  direct examination.  We  have reviewed these  rulings in the          context of the entire trial and do not find reversible error.               Affirmed.               ________                                         -12-
