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December 30, 1987

Norman Grier
The Secretary of the Navy of the United States

The opinion of the court was delivered by: CAHN


 The plaintiff, a civilian employed at the Philadelphia Naval Shipyard, brought this action against the Secretary of the Navy under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq. The plaintiff alleges that he failed to receive various promotions based upon the unlawful consideration of his race. On June 4, 1987, I entered an order dismissing plaintiff's claims with respect to all but one of the promotions. The question that remains is whether the plaintiff was unlawfully discriminated against when he was denied a promotion to the WG-10, Rigger position on May 11, 1984. Because I find that the defendant has failed to rebut plaintiff's prima facie case of discrimination, judgment will be entered in favor of the plaintiff.

 The plaintiff, Mr. Grier, is black. In June, 1983, while employed as a Rigger Helper (WG-5), Mr. Grier applied for a position as a Rigger (WG-10). On May 13, 1984, the defendant promoted ten individuals to the Rigger position, two of whom are black. Mr. Grier, however, was not selected. *fn1"

 The process the Navy used to make the selections, as far as it can be reconstructed, was as follows. The Industrial Relations Office first reviewed the applications and qualifications of the various applicants. The candidates were then ranked and those who met the minimum qualifications for the job were placed in one of two categories - "qualified" or "highly qualified." For purposes of the promotion at issue in this case, Mr. Grier was rated "qualified." *fn2" There was testimony to the effect that the knowledge, skills, and abilities of the candidates as reflected in their applications and their supervisory appraisals were measured against criteria set forth in a written crediting plan to determine which candidates were "highly qualified." Counsel for the defendant informed the court, however, that the crediting plan for this specific promotion had been destroyed.

 The Industrial Relations Office submitted a "Certificate of Eligibles" with the names of twenty-one "highly qualified" candidates to the selecting official, Mr. DiSanto. Three individuals on this certificate were black. Mr. DiSanto, with the advice of a panel chosen by him, selected ten individuals from the Certificate to fill the Rigger positions. *fn3" Two of the individuals eventually chosen were black. With respect to each individual on the Certificate, a synopsis of why that person was or was not selected was drafted by the members of the panel.

 In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Supreme Court set out the now familiar pattern of shifting burdens in a Title VII case. When the evidence is circumstantial, the employee has the initial burden of establishing a prima facie case of discrimination. Id. at 802. Once established, this prima facie case raises a presumption that the employer intentionally discriminated against the employee. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 If the employee establishes a prima facie case, the burden then shifts to the employer to articulate, through the introduction of competent evidence, some clear and reasonably specific, legitimate, nondiscriminatory reason for its actions. Id. at 256, 258; Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1499 (11th Cir. 1985). If the employer fails to produce sufficient evidence of the reason for its action to raise a genuine issue of fact, the court must enter judgment for the plaintiff. Burdine, 450 U.S. at 254; Robinson v. Lehman, 771 F.2d 772 (3d Cir. 1985). Nonetheless, the burden on the defendant is one of production, not persuasion. Burdine, 450 U.S. at 258. "The defendant need not persuade the court that it was actually motivated by the proffered reasons." Id. at 254. Rather, the sufficiency of the defendant's evidence must be evaluated by the extent to which it serves to present a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. Burdine, 450 U.S. at 255-56.

 If the defendant comes forward with sufficient evidence to create a genuine issue of fact, the burden shifts to the plaintiff to prove that the proffered reason is a pretext for intentional discrimination. The employee may satisfy this burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256.

 The first question for this court is whether Mr. Grier has established a prima facie case of discrimination. In McDonnell Douglas, the Supreme Court stated that a plaintiff may establish a prima facie case 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." McDonnell Douglas, 411 U.S. at 802. McDonnell Douglas involved allegations of discriminatory hiring, not discriminatory promotion. The McDonnell Douglas test, however, is flexible and should be adapted to fit differing factual situations. See Id. at 802 n. 13; see also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977).

 In Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984), the sixth circuit held that the plaintiff had established a prima facie case of a discriminatory failure to promote by proving that "he was a member of a protected group, applied for promotion to a job for which he was qualified and was rejected in favor of [another candidate], who had comparable qualifications." Id. at 377. Similarly, in Harris v. Wal-Mart, 658 F.Supp 62, 69 (E.D. Ark. 1987), the court held that to prove a prima facie case of a discriminatory failure to promote, a plaintiff must show "(1) that she was a member of a protected class; (2) that there was a vacancy for the position; (3) that she was qualified for the position; and (4) that the person chosen for the position was not a member of plaintiff's protected class." See also Jordan v. Wilson, 649 F. Supp. 1038, 1054 (M.D. Ala. 1986) ("An employee may establish a prima facie case of promotion discrimination by proving that she is a member of a protected group, was qualified for and applied for the promotion, was rejected despite these qualifications, and that other employees with equal or lesser qualifications who were not members of the protected group were promoted."). In the present case, Mr. Grier has offered evidence showing that he is black, that he applied for and met the qualifications for promotion to the Rigger position, that he was rejected, and that white individuals with comparable qualifications were promoted to the Rigger position.

 In spite of this showing, the defendant claims that Mr. Grier has failed to establish a prima facie case on two different grounds. First, the Secretary contends that Mr. Grier was not qualified for the position. The Secretary's argument is that, in the Navy, "highly qualified" is a term of art which really means qualified. Mr. Grier was not qualified for the job because he was found to be "qualified" and only the names of "highly qualified" individuals were placed on the Certificate of Eligibles. This argument is fatally deficient. It ill-behooves the Secretary, in the first place, to controvert the plain meaning of his own words. In any case, the Secretary has failed to prove that at the Philadelphia Naval Shipyard the term "qualified" means anything other than what it normally connotes. Moreover, in Robinson v. Lehman, 771 F.2d 772 (3d Cir. 1985), a case cited by the defendant, Judge Higginbotham explained the meaning and application in very similar circumstances of the terms "qualified" and "highly qualified" at the Navy's Aviation Supply Office in Philadelphia. In Robinson, Judge Higginbotham found that both "qualified" 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, *fn4" 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 ...

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