This case presents the question of whether G.E., when faced with the necessity of laying off several employees because of unfavorable business conditions, discriminated on the basis of race, color, or national origin in deciding to lay off plaintiff Ravindra Nath. Plaintiff was not dismissed because of absenteeism, insubordination, or gross incompetence; rather, he was dismissed because he was judged to be less competent than other employees. Thus, it is especially important in this case to examine carefully the criteria used by G.E. in ranking its employees for purposes of the lay off.
The allocation of the burden of proof in a private employment discrimination case was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under McDonnell Douglas, the plaintiff is required to carry the initial burden of establishing a prima facie case of discrimination on the basis of race, color, or national origin. The burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802. Once this is accomplished, the employer has rebutted the plaintiff's prima facie case, and in order to carry his burden the plaintiff must show that the defendant's articulated reason was mere pretext. See Walton v. Eaton, 563 F.2d 66 n.9 (3d Cir. 1977).
Plaintiff relies heavily on the contention that the criteria used by G.E. were "subjective". Although it is true that the use of subjective criteria may open the door to more subtle types of discrimination, the use of subjective criteria is not per se a violation of Title VII. Rogers v. International Paper Co., 510 F.2d 1340, 1345 (8th Cir.) vacated on other grounds, 423 U.S. 809, 96 S. Ct. 19, 46 L. Ed. 2d 29 (1975); Hester v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir. 1974). In all fairness to G.E., no one would seriously contend that an evaluation of the relative ability of design engineers could be made solely on the basis of completely objective criteria, such as years of service with G.E. and educational level. An evaluation of technical ability is necessarily based on factors that are not purely objective.
Nevertheless, use of subjective criteria is open to attack where the criteria are vague and unrelated to the qualities necessary for successful on-the-job performance. See Rogers v. International Paper Co., supra; Rowe v. General Motors Corporation, 457 F.2d 348 (5th Cir. 1972); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.) cert. denied, 409 U.S. 982, 34 L. Ed. 2d 246, 93 S. Ct. 319 (1972). A distinction must be made between such vague, subjective criteria, and criteria which, although subjective, are job-related, clearly defined in terms of the competences to be measured, and capable of being applied in a nondiscriminatory manner. We conclude that G.E.'s criteria are of the latter kind.
Looking to the criteria themselves, two of the factors -- "experience" and "service" -- are clearly objective. One of the remaining criteria, "proven ability," specifies the factors which are to be considered in making an evaluation, which are "results, skills, adaptability, length of time on current level of work, versatility, etc." These factors are clearly defined and job-related. The third criteria, "potential for greater contributions and/or responsibilities," while certainly a valid, job-related factor, presents a possible problem in measurement, i.e., how can "potential" be measured? However, the testimony of Mr. Stagliano establishes that judgments here were based on past performance; in other words, employees who had demonstrated good skills, adaptability, etc., in the past were presumed to have the potential to do so in the future. Thus, we conclude that the evidence establishes that the criteria used by G.E. were clear, job-related, and capable of being applied in a nondiscriminatory manner.
Finally, plaintiff has failed to show that these criteria were merely a pretext. The testimony demonstrates that Mr. Stagliano fairly and conscientiously applied the criteria in making his ranking. Plaintiff's race, color, or national origin were not a factor.
In sum, plaintiff here has established his prima facie case. However, G.E. has been able to articulate nondiscriminatory criteria used for the ranking of the employees in the Product Management Subsection which resulted in the dismissal of plaintiff. This suffices to meet plaintiff's prima facie case unless plaintiff can demonstrate that the criteria used were mere pretext. This plaintiff has failed to do.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter of this action under 42 U.S.C.A. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.
2. This Court has jurisdiction of the parties.
3. Defendant General Electric Company is an "employer" within the meaning of Title VII of the Civil Rights Act of 1964.
4. Plaintiff must, in order to sustain his burden of proof, establish by a preponderance of the evidence that G.E. impermissibly considered his race, color, or national origin in determining the ranking of employees in the PSMBD division.
5. G.E.'s articulated criteria for ranking employees were clearly defined, job-related, and nondiscriminatory.
6. G.E. fairly applied their articulated criteria in arriving at their ranking of employees.
7. G.E. did not discriminate against plaintiff on the basis of his race, color, or national origin in violation of 42 U.S.C. § 1981 or Title VII of the Civil Rights Act of 1964.
DANIEL H. HUYETT, 3RD, / J.
[SEE ILLUSTRATION IN ORIGINAL]
NOW, September 15, 1977, in accordance with the accompanying Findings of Fact and Conclusions of Law arrived at following a non-jury trial, IT IS ORDERED that judgment is entered in favor of defendant General Electric Company, Switchgear Division, and against plaintiff Ravindra Nath.
DANIEL H. HUYETT, 3RD, / J.
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