regulations, they would only investigate the alleged discriminatory acts that occurred within thirty days of the filing of the preliminary complaint.
William Jefferson, the EEO investigator assigned to investigate Williams' complaint, attempted to meet with Williams on April 17, 1989 to discuss the allegations. Dissatisfied with the DLA's notification that it would only investigate Williams' GS-12 promotion claim, Williams refused to meet with Jefferson or otherwise cooperate with the investigation.
On June 6, 1989, 180 days after filing his formal discrimination complaint, and on the first day that he was legally entitled to do so, Williams filed this action. The filing of this action automatically terminated the EEO investigation.
Conclusions of Law
Williams Established a Prima Facie Case of Racial Discrimination
The Supreme Court's test for proving a prima facie case of race discrimination, established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), applies to failure to promote cases. See Patterson v. McLean Credit Union, 491 U.S. 164, 185-88, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). Establishment of a prima facie case "creates a presumption that the employer unlawfully discriminated against the employee." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Williams met the four prongs of the McDonnell Douglas test: (1) he is black; (2) he applied for a position for which the DLA was seeking applicants; (3) he was qualified for the position; and (4) Flynn, who is white, was promoted rather than Williams. A rebuttable presumption of discrimination by the DLA against Williams was established.
The Reasons for the Selection Were Not Pretextual
Once a plaintiff establishes a prima facie case, "the burden shifts to the defendant 'to articulate some legitimate nondiscriminatory reason for the employee's rejection.'" Burdine, 450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). The plaintiff then has an opportunity to prove that the "reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. at 253. Plaintiff may carry its 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.
Giglio selected Flynn based on Flynn's experience, education, performance at the Loral Residency, and the results of the interview. The decision is worthy of credence and not pretextual.
The burden returned to Williams, but he failed to submit evidence that the failure of Giglio to promote him was based on race. Although blacks were alleged to be under-represented in professional contract administration positions in DCASR-NY, as the Supreme Court recently stated, racial imbalances in a segment of an employer's work force do not prove discrimination:
The Court of Appeals' theory, at the very least, would mean that any employer who had a segment of his work force that was -- for some reason -- racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the "business necessity" of the methods used to select the other members of his work force. The only practicable option for many employers will be to adopt racial quotas, insuring that no portion of his work force deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII.
Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 652, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989).
To the extent such evidence is relevant, "the 'proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market.'" Id. at 650 (quoting Hazelwood School District v. United States, 433 U.S. 299, 308, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977)). No evidence was presented at trial establishing a disparity between the percentage of blacks in professional contract administration positions within DCASR-NY and the percentage of blacks in the relevant labor pool.
The irregularities in the EEO process do not give rise to an inference of discrimination in Giglio's selection either. There can be no dispute that any purported deficiencies in the processing of Williams' EEO complaint occurred after the selection. Williams' EEO experience does not establish that the DLA was engaged in a "pattern and practice of discrimination" against blacks.
The establishment of a pattern or practice of discrimination requires proof of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts" and depends upon a finding by "a preponderance of the procedure -- the regular rather than the unusual practice."
E.E.O.C. v. Federal Reserve Bank of Richmond, 698 F.2d 633, 642 (4th Cir. 1983) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977)), rev'd on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 81 L. Ed. 2d 718, 104 S. Ct. 2794 (1984); see also Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2d Cir.), cert. denied, 116 L. Ed. 2d 277, 112 S. Ct. 337 (1991).
Williams also failed to establish that the merit promotion regulations were violated in connection with the JOA and its amendment. Such procedures are "mediate" actions which are not subject to Title VII scrutiny:
There are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of . . . Title VII. We hold here merely that among the latter are mediate decisions such as those concerning composition of the review committees in the instant case that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc.
Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981), cert. denied, 454 U.S. 892, 70 L. Ed. 2d 206, 102 S. Ct. 388 (1981); see also Young v. Lehman, 748 F.2d 194, 198 (4th Cir. 1984), cert. denied, 471 U.S. 1061, 85 L. Ed. 2d 489, 105 S. Ct. 2126 (1985).
Because Giglio's reasons for selecting Flynn were not pretextual and because Williams has failed to establish that the promotion was denied to him because of his race, the complaint will be dismissed. Submit judgment on notice.
It is so ordered.
New York, N. Y.
February 3, 1992
ROBERT W. SWEET
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