and "highly qualified" candidates were eligible for promotion. Id. at 775 & n.7.
Mr. DiSanto, the selecting official for the promotion at issue in this case, stated in his deposition that the designations "qualified" and "highly qualified" are attached as a result of the work of a rating panel, that "qualified" individuals are occasionally promoted before "highly qualified" individuals, and that "qualified" individuals can appear on a Certificate alongside of "highly qualified" individuals. It is clear, therefore, that the determination of whether an individual is "qualified" or "highly qualified" is merely the first step in a two-step selection process. It is also clear that "qualified" individuals are qualified for promotion but are not chosen when there is a sufficient number of eligible "highly qualified" individuals, and that the term "highly qualified" represents a judgment about an individual's credentials but is not itself a prerequisite for the job. To rank qualified candidates, divide them into two categories - "highly qualified" and "qualified," and then turn around and say that the "qualified" candidates were never really qualified in the first place, is to reify the term "highly qualified" and stand the term "qualified" on its head. The Secretary cannot insulate the first stage of the selection process from scrutiny by interposing a judgment made at that stage and raising it to the level of a qualification for the job.
The second ground relied upon by the Secretary in claiming that the plaintiff has failed to make out a prima facie case of discrimination is the argument that it is impossible to prove a prima facie case when two out of three "highly qualified" black candidates were eventually selected for the job and 20 percent of those actually promoted were black. This argument also misses the mark. In a disparate treatment case,
statistical evidence tending to show that the representation of protected group members in a given hiring, promotion, or workforce is equal to or greater than their representation in the relevant population, does not preclude a plaintiff from establishing a prima facie case of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978).
In Furnco, bricklayers were hired for a construction job over a time period of slightly less than two months. The employer attempted to show that for the hiring as a whole, 20 percent of those hired were black and 13.3 percent of the man-days spent on the job were performed by black bricklayers, while 13.7 percent of the local union membership was black. The Supreme Court held that, as a matter of law, the respondents had made out a prima facie case of discrimination. Id. at 575. In support of this conclusion, the court stated: "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant's race are already proportionately represented in the workforce." Furnco, 438 U.S. at 579; see also Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 27 L. Ed. 2d 613, 91 S. Ct. 496 (1971) (per curiam) (summary judgment improper when based upon showing of equal or greater representation of women in workforce than in applicant pool). The policy of Title VII, it should be remembered, "requires that we focus on fairness to individuals rather than fairness to classes." Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 709, 55 L. Ed. 2d 657, 98 S. Ct. 1370 (1978).
The Court of Appeals for the Third Circuit "has not been overly demanding of the proof required for a prima facie case." Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-41 (3d Cir. 1980) (quoting Whack v. Peabody & Wind Eng'g Co., 595 F.2d 190, 193 n.11 (3d Cir. 1979)). To establish a prima facie case, a plaintiff must only show "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.'" Furnco, 438 U.S. at 576 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. at 358). A prima facie case is not equivalent to a factual determination of discrimination but rather "is simply proof of actions taken by the employer from which we infer discriminatory animus because experience has shown that in the absence of any other explanation it is more likely than not that those actions were bottomed on impermissible consideration." Furnco, 438 U.S. at 579-80. A prima facie case is established, and an inference of discrimination arises, therefore, when an employee demonstrates "that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought." Teamsters, 431 U.S. at 358 n. 44; see also Burdine, 450 U.S. at 253-54. With these considerations in mind, it is clear that Mr. Grier has made a prima facie showing. The defendant's statistical evidence would be relevant in attempting to show a lack of discriminatory motive or animus at the third stage of the McDonnell Douglas analysis.
See Furnco, 438 U.S. at 580; Watson v. Fort Worth Bank & Trust, 798 F.2d 791, 798 (5th Cir. 1986), cert. granted in part, 483 U.S. 1004, 107 S. Ct. 3227, 97 L. Ed. 2d 734 (1987). The same evidence, however, does not defeat plaintiff's prima facie case.
Once a prima facie showing has been made, the burden shifts to the employer to articulate, through the introduction of competent evidence, some clear and reasonably specific, legitimate nondiscriminatory reason for its action. The Secretary has candidly conceded that the crediting plan which contained the criteria used to determine whether candidates were "qualified" or "highly qualified" has been destroyed. As a consequence, the Secretary does not know why Mr. Grier was designated only "qualified." Counsel for the Secretary argues that the defendant may meet this burden "merely be explaining what it did." Defendant's Post Trial Memorandum at 4. This statement, however, misconstrues the nature of the defendant's burden. A Title VII defendant cannot meet a prima facie case merely by articulating any reason, but must articulate a clear and reasonably specific, legitimate nondiscriminatory reason for its actions.
In support of his position, the defendant cites Burdine for the proposition that the burden of persuasion rests on the plaintiff and never shifts. Even after the plaintiff has established a prima facie case, the burden of persuasion does not shift -- assuming, of course, the defendant meets its burden of production. If the defendant fails to meet this burden, the presumption created by the plaintiff's prima facie case requires that judgment be entered in favor of the plaintiff. Burdine, 450 U.S. at 254; Robinson, 771 F.2d at 777 n.13. To meet this burden, the defendant need not prove that it was actually motivated by the reason it puts forth, but it must nonetheless articulate some legitimate reason for its action.
As the eleventh circuit has stated, "since the defendant's explanation must be clear and reasonably specific, some proffered reasons will be legally insufficient to rebut a prima facie case." Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499 (11th Cir. 1985) (citing Burdine, 450 U.S. at 258); see also Crawford v. Western Elec. Co., Inc., 745 F.2d 1373, 1384, (11th Cir. 1984) (finding that with respect to several plaintiffs, defendant had failed to meet prima facie case, and stating that "general and non-time specific testimony" is not sufficient to meet burden of production under Burdine).
In Title VII cases, the reason for proceeding within the framework established by McDonnell Douglas is not only to "enable the trial judge to sift through the evidence in an orderly fashion", Dillon v. Coles, 746 F.2d 998 at 1003 (3d Cir. 1984); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983), but also because "in most discrimination cases direct evidence of the employer's motivation is unavailable or difficult to acquire." Dillon, 746 F.2d at 1003. The employer's proffered reason must be sufficiently capable of objective evaluation to give the plaintiff a "full and fair opportunity" to prove that the reason is pretextual, and to present the fact finder with a reasonable basis for determining whether the reason was actually relied on. See Burdine, 450 U.S. at 255-56; Conner, 761 F.2d at 1499-1500.
In the present case, the defendant has not met its burden of production in that it has failed to articulate a clear and reasonably specific, legitimate, nondiscriminatory reason for failing to promote Mr. Grier. It is not enough to say that only "highly qualified" individuals were selected and that Mr. Grier was not found to be "highly qualified." The defendant did not produce the merit promotion package used to rank the candidates, nor did it offer the testimony of a single individual who had knowledge of its contents or of the reasons why Mr. Grier was not promoted. The evidence adduced by the defendant consisted solely of testimony with respect to the criteria currently being used for similar promotions and the factors generally taken into account at the Shipyard in making employment decisions. The defendant's witness, Mr. Conley, however, had no knowledge as to whether the same criteria had been used in making the decision not to promote Mr. Grier.
This is not the kind of evidence "that would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257. Therefore, the defendant has failed to meet its burden of production and judgment must be entered in favor of the plaintiff. This court does not doubt the good faith of the defendant in failing to come forward with evidence of his reasons for not promoting Mr. Grier. Nonetheless, I cannot subscribe to a rule of law that would encourage employers to destroy or misplace personnel documents in order to obfuscate their reasons for making employment decisions.
The parties agree that an appropriate remedy, assuming judgment is entered in favor of the plaintiff, is retroactive promotion to the WG-10, Rigger position effective May 11, 1984, with back pay from that date to the date of judgment. Accordingly, my order will reflect this understanding.
An appropriate order follows.