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  &amp; 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  &amp;  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-
