Before WILKEY, WALD and EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Dissenting Opinion September 9, 1980. Dissenting Opinion from Motions to Grant Extension of Time to File Rehearing October 14, 1980.Rehearing Denied November 20, 1980.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 77-0303).
Opinion for the Court filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Circuit Judge WILKEY.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
Plaintiff-appellant, Louis H. Aikens, instituted this action under Title VII of the Civil Rights Act of 1964, 78 Stat. 241, 253, as amended by
Aikens is a black man who began his employment with the Post Office in Washington, D.C. in 1937. He was promoted to his first supervisory position in 1952; subsequently, between 1952 and 1960, Aikens held various jobs at the level of foreman. From 1960 to 1966, he received six promotions that raised him from the foreman level (ranked PFS-7) to the level of Assistant Director, Operations Division for Transit Mails (PFS-15). In 1974, Aikens was upgraded twice, once by virtue of a promotion and once pursuant to a "detail" (temporary assignment). Between 1966 and 1974, however, Aikens was neither detailed nor promoted above his Assistant Director position. His failure to be promoted during this latter period forms the basis of this Title VII suit.
Under applicable Postal Service procedures, an employee who desires consideration for supervisory promotions is required to indicate his job preferences on a Form 1717. Following that procedure, during the entire period from 1966 through 1973, Aikens had on file the appropriate Form 1717 seeking consideration for promotion to any Post Office position ranked above his PFS-15 job. Between 1966 and 1973, there were only four positions in the Washington, D.C. Post Office that were ranked above PFS-15. During that period, several white employees, all with less seniority than Aikens, were promoted above him. After the Job Evaluation Program in 1973, Aikens' job was rated at grade PES-20; however, following the implementation of the Job Evaluation Program, several additional positions were rated above Aikens' job and several junior white employees received details or promotions above Aikens.
Aikens filed an Equal Employment Opportunity complaint with the Postal Service on January 4, 1974. An existing Civil Service Regulation, 5 C.F.R. § 713.214 (1974), required that complaints be filed within thirty days of the alleged discriminatory action. Under this statute of limitations standard, Aikens' complaint was timely only as to four positions for which promotions or details had occurred within thirty days of the complaint; the four positions in question were Mail Processing Officer, Acting Mail Processing Representative, Director, Operations Division, and Customer Services Representative. *fn1 Accordingly, administrative and judicial review of Aikens' employment discrimination claim was properly focused on Aikens' failure to be promoted to these four positions. *fn2
Following an administrative review, the Postal Service concluded that the evidence of record did not support Aikens' allegation of racial discrimination. This judgment was affirmed by the Appeals Review Board of the Civil Service Commission. Aikens then filed his Title VII complaint in the District Court, which held a trial de novo on his claim of employment discrimination. Aikens here appeals a judgment rendered in favor of the Postal Service. II.
In McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court articulated the standard that must be met in order for individual complainants to make out a prima facie case of discrimination under Title VII:
The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
411 U.S. at 802, 93 S. Ct. at 1824. The Court recognized that the varying factual situations seen in Title VII cases require the application of a flexible formulation for this prima facie proof. Id. at 802 n. 13, 93 S. Ct. at 1824 n. 13. In essence, McDonnell Douglas requires an individual bringing suit under Title VII to demonstrate that the alleged discrimination did not result from a lack of qualifications or the absence of a vacancy in the job sought. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977). Thus, it has been held that the McDonnell Douglas test, adopted to fit the factual circumstances of the case, applies in individual actions involving charges of race discrimination in promotion decisions. President v. Vance, 200 U.S. App. D.C. 300, 627 F.2d 353 at 364 n. 78 (D.C.Cir.1980); Rich v. Martin Marietta Corp., 522 F.2d 333, 346-47 (10th Cir. 1975).
On the record in this case, it is clear that Aikens met the first, third and fourth elements of the test set forth in McDonnell Douglas: he is a black man; he sought promotion to higher level positions that became available; and white Post Office employees received the positions. Therefore, it is the second element of the test, having to do with Aikens' qualifications to perform the jobs here in question, that must be addressed in our consideration of this appeal. *fn3 III.
Upon review of the evidence submitted to the District Court, we are convinced that Aikens offered ample evidence, which was not contested, to demonstrate his qualifications to perform the work in issue. To begin with, we note that the District Court made no finding that Aikens was not qualified for the positions in dispute. Moreover, Aikens' own record of accomplishments attests to his qualifications. He is highly educated, having earned a Master's degree and completed several years of course work towards a Ph.D. Aikens had almost forty years of experience with the Post Office, during which time he held a number of different supervisory positions. Nothing indicates that his performance was ...