Robinson v Adams Petition Writ of Certiorari

    No. 88-—

Isr the

§>npvm? (tort ot %  Intt^ States
October Term, 1988

K enneth R obinson,

vs.
Petitioner,

M ichael A dams, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

J ulius L. Chambers 
Charles Stephen R alston 
R onald L. E llis 
J udith R eed

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900

P atrick O. P atterson, Jb.#
B ill L ann L ee

NAACP Legal Defense and 
Educational Fund, Inc.
634 South Spring Street 
Suite 800
Los Angeles, California 90014 

Counsel for Petitioner 

* Counsel of Record



QUESTIONS PRESENTED
1. Whether, in a Title VII dis­

parate impact case challenging discrimina­
tion against black men, an employer with 
no black male employees is entitled to 
summary judgment based on the fact that it 
has some black female employees.

2. Whether, in order to withstand a 
motion for summary judgment; the plaintiff 
in a Title VII disparate impact case is 
required (a) to establish adverse impact, 
(b) to identify specific employment 
practices or selection criteria, and (c) 
to show the causal relationship between 
the identified practices and the adverse 
impact.

3. Whether summary judgment is 
appropriate in a disparate treatment case 
under Title VII and 42 U.S.C. § 1981 where 
the record contains conflicting evidence 
as to the employer's knowledge of the 
plaintiff's race.



LIST OF PARTIES
The parties to the proceedings below 

were petitioner Kenneth Robinson and 
respondents Michael Adams, Dianne R. Coe, 
Georgia McCarthy, Martin Moshier, Lura 
Scovil, Joan Wilson, County of Orange, 
Orange County Superior Court, and L. B. 
Utter. Ben Avillar and Maria Bastanchury 
were also named as defendants in the 
district court.

IX



Ill
TABLE OF CONTENTS

Page
Questions Presented ............ i
List of Parties................ ii
Table of Contents.............. iii
Table of Authorities............ v
Opinions Below.................. 1
Jurisdiction.................... 3
Statutes Involved .............. 3
Statement of the Case.......... 4
Reasons for Granting the Writ . . 20
I. The Ninth Circuit Majority's

Rejection of Petitioner's Title 
VII Disparate Impact Claim of 
Discrimination Based on Race and 
Sex Is Contrary to the Decisions 
of this Court and Inconsistent 
With the Decisions of Other
Circuits.................. 28

II. This Court Has Granted Certiorari In
Another Case to Review the Prima 
Facie Case Standard Applied By the 
Ninth Circuit to Disparate Impact 
Claims Under Title VII.. . . 28

III. The Ninth Circuit Majority's
Affirmance of Summary Judgment 
Against Petitioner on His Claims 
of Intentional Discrimination,
In the Face of Conflicting



IV

Evidence, Is Contrary to the 
Decisions of this Court. 
Moreover, this Court Has Granted 
Certiorari In Another Case to 
Review A Substantially Similar 
Question..................  3 0

Conclusion.........................  33
Appendix
Opinion of the Court of Appeals

for the Ninth Circuit. . . .  4a
Final Judgment of the District Court

Memorandum and Order . . . .  18a
Second Partial Report and Recommen­

dation of United States Magis­
trate Partial Summary
Judgment.....................  34a

Order Adopting Findings, Conclusions, 
and Recommendations of United 
States Magistrate ............  79a

Partial Report and Recommendation of
United States Magistrate . . 81a



V

TABLE OF AUTHORITIES 

CASES

Atonio v. Wards Cove Packing Co., 810 
F.2d 1477 (9th Cir. 1987), on 
remand, 827 F.2d 439 (9th Cir.
1987), cert, granted. 56 U.S.L.W.
3887 (June 28, 1988) . . . 15,16,29,34

Chambers v. Omaha Girls Club, 629 F.
Supp. 925 (D. Neb. 1986), aff'd. 834 
F.2d 697 (8th Cir. 1987) . . .  26

Connecticut v. Teal, 457 U.S. 440
(1982) . . . 18,21,22

DeGraffenreid v. General Motors
Assembly Division, 558 F.2d 480 (8th 
Cir. 1977) . . .  26

Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978)... 22

Graham v. Bendix Corp., 585 F. Supp.
1036 (N.D. Ind. 1984).....  27

Harbison-Walker Refractories v. Brieck,
No. 87-271, 56 U.S.L.W. 3647 (March 
21, 1988)......... 32

Hazelwood School District v. United
States, 433 U.S. 299 (1977) . . .  18

Hutchinson v. Proxmire, 443 . . .  . 32
Hicks v. Gates Rubber Co., 833 F.2d

1406 (10th Cir. 1987)........ 26



vi
Jeffries v. Harris County Community 

Action Association, 615 F.2d 1025 
(5th Cir. 1980) . . . 18,23,24,25,26,27

Los Angeles Department of Water & Power 
v. Manhart, 435 U.S. 702 (1978) . 18,21

McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973)............ 8

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971)........ 21,22,24

Poller v. Columbia Broadcasting System,
Inc., 368 U.S. 464 (1962) . . . .  32

Tagupa v. Board of Directors, 633 F.2d
1309 (9th Cir. 1980) . . 8,13,14,15

White Motor Co. v. United States, 372
U.S. 253 (1963)............ 32

STATUTES
28 U.S.C. § 1254 (1).............. 3
Age Discrimination in Employment Act of 

1967, 29 U.S.C. § 621 et seg . . .  32
Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a). . . . passim 
42 U.S.C. 1981............... passim



IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1988
KENNETH ROBINSON,

Petitioner.
v.

MICHAEL ADAMS, et al., 
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

The petitioner, Kenneth Robinson, 
respectfully prays that a writ of certi­
orari issue to review the judgment and 
opinion of the United States Court of 
Appeals for the Ninth Circuit, entered in 
this proceeding on May 27, 1988.

OPINIONS BELOW
The amended opinion of the court of 

appeals for the Ninth Circuit is reported 
at 847 F.2d 1315, and is reprinted in the 
appendix to the petition, p.4a. The order 
of the court of appeals amending its prior 
opinion, denying rehearing, and rejecting 
the suggestion for rehearing en banc is



2
unreported and is reprinted in the 
appendix, p. 4a. The superseded opinion 
of the court of appeals is reported at 830 
F.2d 128, and is not reprinted in the 
appendix.

The order of the United States District 
Court for the Central District of 
California granting partial summary- 
judgment in favor of the respondents as to 
petitioner's claims under 42 U.S.C. § 1981 
is unreported and is reprinted in the 
appendix, p. 77a. The memorandum and 
order of the district court granting 
summary judgment in favor of the respon­
dents as to all claims is unreported and 
is reprinted in the appendix, p. 18a. The 
partial report and recommendation of the 
United States magistrate is reprinted in 
the appendix, p. 81a, and the second 
partial report and recommendation of the



3
magistrate is reprinted in the appendix, 
p. 34a.

JURISDICTION
The court of appeals entered its final 

judgment and denied a timely petition for 
rehearing and suggestion for rehearing en 
banc on May 27, 1988. On August 23, 1988, 
Justice O'Connor ordered that the time for 
filing this petition for writ of cer­
tiorari be extended to and including 
September 24, 1988. Jurisdiction of this 
Court is invoked pursuant to 28 U.S.C. § 
1254(1).

STATUTES INVOLVED
Section 1981 of 42 U.S.C. provides:
All persons within the jurisdic­

tion of the United States shall have 
the same right in every State and 
Territory to make and enforce 
contracts, to: sue, be parties, give 
evidence, and to the full and equal 
benefit of all laws and proceedings 
for the security of persons and 
property as is enjoyed by white 
citizens, and shall be subject to 
like punishment, pains, penalties,



4
taxes, licenses, and exactions of 
every kind, and to no other.
Section 703(a) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a), provides in pertinent part:

(a) It shall be an unlawful employment 
practice for an employer —

(1) to fail or refuse to hire . .
or otherwise to discriminate against 
any individual with respect to his 
compensation, terms, conditions, or 
privileges of employment, because of 
such individual's race, color, 
religion, sex, or national origin; or 2
(2) to limit, segregate, or classify 
his employees or applicants for 
employment in any way which would 
deprive or tend to deprive any 
individual of employment oppor­
tunities or otherwise adversely 
affect his status as an employee, 
because of such individual's race, 
color, religion, sex, or national 
origin.

STATEMENT OF THE CASE 
In the summer of 1983 plaintiff 

Kenneth Robinson, the petitioner in this 
Court, applied for four separate jobs with 
the County of Orange, California, and the



5
Orange County Superior Court. (App. 4a).1 
As part of each application, Robinson 
filled out a demographic questionnaire on 
which he indicated that he is a black 
male.2 (App. 6a). Each application was 
denied at the initial screening phase; 
Robinson was not hired for any of the four 
positions. (App. 4a-5a).

1 Robinson applied for jobs as an 
Administrative Analyst III, Employment 
Services Representative IV, Investigator- 
Special Services, and Probate Examiner I. 
(App. 37a).

That portion of the application 
states: "Orange County is asking all 
applicants for positions to complete this 
form in order to comply with United States 
government equal employment opportunity 
requirements. Information you provide 
will not be used in any wav as part of the 
testing process. This flap will not be 
duplicated or made available to hiring 
department. Data collected is used for 
statistical purposes and to measure the 
County's effectiveness of recruiting 
efforts." (App. 6a) (emphasis in 
original) . Petitioner Robinson checked 
boxes indicating that he is black (not of 
Hispanic origin), male, and 40 years old 
or older.



6
After filing an administrative charge 

of discrimination with the Equal Employ­
ment Opportunity Commission and receiving 
a notice of right-to-sue from the United 
States Department of Justice, Robinson 
filed a pro se action in the district 
court, alleging that the defendants (the 
County of Orange, Orange County Superior 
Court, and certain County officials and 
employees) had engaged in racial dis­
crimination in violation of 42 U.S.C. § 
1981 and Title VII of the Civil Rights 
Act of 1964. Robinson made a "disparate 
treatment" claim under § 19 81 and Title
VII, alleging that the defendants had 
intentionally discriminated against him 
because of his race or color. He also 
made a "disparate impact" claim under 
Title VII, alleging that the defendants' 
employment practices had a substantial and 
unjustified adverse impact on blacks in



7
general and black males in particular. 
Robinson filed, along with the complaint, 
a timely demand for a jury trial. 
(Compl., p. 20, Dkt. Nr. 1).

The case was assigned to a magi­
strate, who issued reports recommending 
that the district court grant the 
defendants' motions for summary judgment 
on the § 1981 claims (App. Ilia) and on
the Title VII disparate treatment claims. 
(App. 75a). The magistrate recommended, 
however, that the court deny the defen­
dants' motion for summary judgment on the 
Title VII disparate impact claims. (App. 
76a) .

With respect to the § 1981 and Title
VII disparate treatment claims, the 
magistrate stated that Robinson's written 
applications for three of the four jobs 
(Administrative Analyst III, Employment 
Services Representative IV, and Inves­



8
tigator, Social Services) did not contain 
information establishing that he possessed 
the specific qualifications sought in the 
County's job announcements, and that 
Robinson therefore had failed to "apply" 
for the jobs within the meaning of this 
Court's decision in McDonnell Douglas 
Coro, v. Green, 411 U.S. 792 (1973), as 
interpreted by the Ninth Circuit in Taguoa 
v. Board of Directors. 633 F.2d 1309 (9th 
Cir. 1980) . (App. 48-49a; 54-56a; 59a; 
92-93a; 100-101a; 103-104a) . The magistr­
ate also recited the respondents' conten­
tion that Robinson's application for 
Probate Examiner I was rejected "because 
he was not deemed to be one of the most 
qualified applicants." (App. 105a).

The magistrate stated an additional 
reason for recommending summary judgment 
with respect to Robinson's disparate 
treatment claims based on his applications



9
for Administrative Analyst III and Probate 
Examiner I. Although each of Robinson's 
applications included the demographic 
questionnaire indicating that he is a 
black male, the magistrate relied on 
declarations provided by two of the 
individual defendants in concluding that 
those defendants were not aware of 
Robinson's race when they rejected his 
applications. (App. 48a; 63a). Thus, 
the magistrate recommended that the 
district court grant summary judgment for 
the defendants on all § 1981 claims and on 
all Title VII disparate treatment claims. 
In separate orders, the district court 
approved and adopted the magistrate's 
findings, conclusions, and recommendations 
in all these respects. (App. 18a, 79a).

With respect to the Title VII disparate 
impact claims, the magistrate found that 
Robinson had sufficiently, albeit vaguely,



10
identified three challenged employment 
practices: (1) discounting education over 
experience; (2) not permitting testing for 
persons of a protected class who meet 
minimum qualifications; and (3) using 
subjective judgment in determining whether 
applicants meet stated minimum qualifica­
tions. (App. 67-68a). As the magistrate 
also noted, the record showed that the 
Orange County Superior Court employed no 
black males as of April 1984. (App. 68a).

The defendants offered evidence that 
the percentage of blacks employed by 
Orange County was higher than the per­
centage of blacks in the County's popula­
tion or labor force. (App. 69a). 
Robinson, on the other hand, offered 
evidence that the percentage of blacks 
employed by Orange County was lower than 
the percentage of blacks in the combined 
population of Orange County and the



11
surrounding counties. (See App. 8-9a). 
The magistrate therefore concluded that 
there was a "genuine issue of material 
fact" as to "whether the defendants 
maintained employment practices which had 
an adverse impact upon black males or 
black males over 40 years old," (App. 
70a), and he recommended that the district 
court deny defendants' motion for summary 
judgment on those claims. (App. 75a).

Rejecting the magistrate's recommen­
dation regarding the disparate impact 
claims, the district court granted summary 
judgment in favor of the defendants on 
these claims as well as the disparate 
treatment claims. The court stated that 
the challenged employment practices were 
"only vaguely described," and that 
Robinson had "not offered any statistics 
which show or tend to show that the 
challenged employment practices dispropor­



12
tionately exclude black male job ap­
plicants." (App. 30a). The district 
court held that Robinson "was not able to 
demonstrate the existence of a prima facie 
case at the summary judgment motion," and 
therefore granted summary judgment in 
favor of the defendants as to all claims. 
(App. 32a) .

On Robinson's pro se appeal, a divided 
panel of the Ninth Circuit affirmed the 
district court's judgment. With regard to 
the § 1981 and Title VII disparate 
treatment claims, the majority opinion did 
not address the question whether Robinson 
had adequately "applied" for the jobs, but 
focused instead on the question whether 
the defendants were aware of his race. 
Although the majority's opinion ack­
nowledged that "the credibility of the 
application screeners could be a triable 
issue," (App. 7a), the majority relied onII



13
the screeners' declarations denying 
knowledge of Robinsons race and held that 
"no genuine issue exists as to whether the 
application screeners were aware of his 
race." (Id.).

The Ninth Circuit majority also 
affirmed the district court's grant of 
summary judgment in favor of the defen­
dants on Robinson's Title VII disparate 
impact claims. Although the record showed 
that the Orange County Superior Court had 
no black male employees, the majority 
rejected Robinson's efforts to compare the 
racial composition of the defendants' work 
force with the racial composition of the 
population in Orange County and the 
surrounding counties; the majority stated 
that Robinson had failed to establish 
"that these general population statistics 
represent a pool of prospective applicants



14
qualified for the jobs for which he 
applied." (App. 9a).

Additionally, the majority held that 
Robinson's showing that there were no 
black male employees did not present a 
genuine issue of material fact on his 
disparate impact claims in view of 
evidence that the percentage of black 
female employees was slightly above the 
percentage of blacks in the Orange County 
population.3 (id.). Finally, the
majority held that Robinson had failed to 
establish a sufficient "prima facie case 
of disparate impact on Black males" 
because he did not "'identify specific 
employment practices or selection cri­

3 The majority opinion notes that, 
"in 1984, although Blacks represented 1.2% 
of the Orange County population, 1.7% of 
the Superior Court work force was Black 
and 2.7% of both the 'Professional' and 
'Official/Administration' positions in the 
County of Orange were held by Blacks." 
(App. 9a).



15
teria,'" and because he did not "'show the 
causal relationship between the identified 
practices and the impact.'" (Id.) 
(quoting Atonio v. Wards Cove Packing Co., 
810 F. 2d 1477, 1482 (9th Cir. 1987) (en 
banc), on remand. 827 F.2d 439, 441 (9th 
Cir. 1987) , cert, granted. 56 U.S.L.W. 
3887 (June 28, 1988). The majority 
concluded that, "[bjecause Robinson has 
not pointed to evidence creating a genuine 
dispute about facts material to a prima 
facie case of disparate impact, summary 
judgment was appropriate on this issue." 
(App. 9-10a).

Judge Pregerson dissented as to both 
the disparate treatment claims and the 
disparate impact claims. He first noted 
that, in reviewing a grant of summary 
judgment, the evidence should be viewed in 
the light most favorable to the nonmoving 
party, and that "Title VII is 'a remedial



16
statute to be liberally construed in favor 
of the victims of discrimination,' ... 
[p]articularly where, as here, a layperson 
brings a Title VII action pro se ...." 
(App. 11a) (citations omitted).

With respect to the disparate treatment 
claims, the dissent found that the record 
contained concrete evidence "that the 
County employees who considered Robinson's 
application may have known he was black" 
—  viz.. copies of Robinson's job 
applications, which had been supplied by 
the defendants in discovery with the 
racial information still attached. (App. 
12a). "[B]y keeping this information 
physically attached to other employment 
information, the County runs a risk that 
employees making employment decisions will 
be aware of racial and other demographic 
factors that might lead to discrimina­
tion." (Id.). In the dissenting judge's



17
view, the credibility of the employees who 
denied knowledge of Robinson's race, 
coupled with the concrete evidence that 
they may have known his race, presented 
genuine issues of material fact sufficient 
to withstand summary judgment on the 
disparate treatment claims.

With respect to the disparate impact 
claims, the dissent noted Robinson's 
evidence "that the Orange County Superior 
Court has no black male employees, and 
that the overall representation of blacks 
(all women) among its employees is 1.7%." 
(App. 13a) (emphasis in original) . The 
fact that blacks constituted only 1.2% of 
Orange County's population did not 
conclusively justify "the startlingly low 
levels of black employment in the Orange 
County Superior Court . . . "? the defendants 
should have been required to come forward 
with "statistics concerning the actual



18
pool of applicants for the positions for 
which Robinson applied." (App. 13a). The 
dissenting judge also believed that the 
case should be remanded to the district 
court for further findings as to the 
relevant labor market under this Court's 
decision in Hazelwood School District v. 
United States. 433 U.S. 299 (1977). (App.
14a) .

Finally, citing this Court's decisions 
in Connecticut v. Teal. 457 U.S. 440 
(1982), and Los Angeles Department of 
Water & Power v. Manhart, 435 U.S. 702 
(1978) , as well as the Fifth Circuit's 
decision in Jeffries v. Harris County 
Community Action Association. 615 F.2d 
1025 (5th Cir. 1980), the dissent rejected 
the majority's apparent conclusion that 
the defendants' employment of black 
females was a complete defense to Robin­
son's claim of discrimination against



19
black males as a class. The dissent would 
hold instead "that the evidence presented 
by Robinson is sufficient to make out a 
prima facie case of disparate impact on 
black males." (App. 15a). Because 
Robinson had raised "a genuine issue of 
material fact on whether blacks and 
particularly black males are proportion­
ally represented in the court's work 
force," in the dissent's view summary 
judgment should not have been granted in 
favor of the defendants on the disparate 
impact claims. (App. 13a).

Robinson filed a timely petition for 
rehearing and suggestion for rehearing en 
banc. A majority of the original Ninth 
Circuit panel voted to deny the petition 
for rehearing and to reject the suggestion 
of rehearing en banc. A majority of the 
judges of the full court also voted to



20
reject the suggestion for rehearing en 
banc. (App. 4a) .

REASONS FOR GRANTING THE WRIT
I.

THE NINTH CIRCUIT MAJORITY'S REJECTION OF 
PETITIONER'S TITLE VII DISPARATE IMPACT 
CLAIM OF DISCRIMINATION BASED ON RACE AND 
SEX IS CONTRARY TO THE DECISIONS OF THIS 
COURT AND INCONSISTENT WITH THE DECISIONS 
OF OTHER CIRCUITS.

The Ninth Circuit majority held in 
part that Robinson's evidence of disparate 
impact against black males (indeed, he 
showed that the Orange County Superior 
Court did not employ a single black male) 
was not sufficient to withstand the defen­
dants' motion for summary judgment because 
blacks as a group were not statistically 
underrepresented in the defendants' work 
force. (App. 9a) . In effect, the court 
below treated the defendants' employment 
of black females as a defense to Robin­
son's claims that the defendants dis­
criminated against black males. As the



21
dissent observed, this holding is contrary 
to the prior decisions of this Court and 
it conflicts with the decisions of other 
circuits.

In Connecticut v. Teal, 457 U.S. 440
(1982), this Court rejected the "bottom
line" defense in Title VII disparate
impact cases. The Court stated:

It is clear that Congress never 
intended to give an employer license 
to discriminate against some employees 
on the basis of race or sex merely 
because he favorably treats other 
members of the employees' group. We 
recognized in Los Angeles Dept. of 
Water & Power v. Manhart, 435 U.S. 702 
(1978) , that fairness to the class of 
women employees as a whole could not 
justify unfairness to the individual 
female employee because the 'statute's 
focus on the individual is unam­
biguous. ' Id., at 708. Similarly, in 
Phillips v. Martin Marietta Corp., 400
U.S. 542 (1971) (per curiam), we
recognized that a rule barring 
employment of all married women with 
preschool child-ren, if not a bona fide 
occupational qualification under § 
703(e), violated Title VII, even though 
female applicants without preschool 
children were hired in sufficient 
numbers that they constituted 75 to 80 
percent of the persons employed in the 
position plaintiff sought.



22
457 U.S. at 455 (emphasis in original).

Thus, the majority opinion below, 
insofar as it treats the employment of 
black females as a justification for 
discrimination against the plaintiff and 
other black males, is contrary to this 
Court's decisions in Teal, Manhart, and 
Phillips v. Martin Marietta Corp., 400
U.S. 542 (1971) (per curiam). See also
Furnco Construction Corp. v. Waters. 438 
U.S. 567, 579 (1978) ("[i]t 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 work 
force") (emphasis in original).

The decision of the majority below 
also conflicts with the decisions of other 
circuits. In Jeffries v. Harris County



23
Community Action Association. 615 F.2d 
1025 (5th Cir. 1980) , a black woman 
brought a Title VII action charging the 
defendants with discrimination in promo­
tion based on both race and sex. The 
Fifth Circuit affirmed the district 
court's judgment against the plaintiff on 
the merits of her race discrimination 
claim, remanded the case for further 
findings on her sex discrimination claim, 
and held that that the district court had 
improperly failed to address her claim of 
discrimination based on both race and sex. 
615 F.2d at 1032.

Noting that Title VII provides a 
remedy for discrimination on the basis of 
"race, color, religion, sex, or national 
origin," 42 U.S.C. § 2000e-2(a) (emphasis 
added), the Fifth Circuit in Jeffries 
stated that Congress' use of the word 
"or," and its refusal to adopt an amend­



24
ment that would have added the word 
"solely" to modify the word "sex," 
demonstrated the intent of Congress "to 
prohibit employment discrimination based 
on any or all of the listed characteris­
tics." 615 F.2d at 1032. Moreover, "[i]n 
the absence of a clear expression by 
Congress that it did not intend to provide 
protection against discrimination directed 
especially toward black women as a class 
separate and distinct from the class of 
women and the class of blacks," the court 
could not "condone a result which leaves 
black women without a viable Title VII 
remedy." Id.

Additionally, the Fifth Circuit in 
Jeffries felt that recognition of the 
plaintiff's race-sex claim was mandated by 
this Court's decision in Phillips v. 
Martin Marietta Corp., supra, and other 
"sex plus" cases; just as employers may



25
not apply different standards to women 
with young children, married women, or 
women who are single and pregnant, so also 
are employers prohibited from singling out 
for discriminatory treatment a class of 
women who are black. 615 F.2d at 1033- 
1034. Indeed, " [t]his would be a par­
ticularly illogical result, since the 
'plus' factors in the former categories 
are ostensibly 'neutral' factors, while 
race itself is prohibited as a criterion 
for employment." Id. at 1034 (footnote 
omitted) .

The Fifth Circuit concluded as follows:
Recognition of black females as a 
distinct protected subgroup for 
purposes of the prima facie case and 
proof of pretext is the only way to 
identify and remedy discrimination 
directed toward black females. 
Therefore, we hold that when a Title 
VII plaintiff alleges that an employer 
discriminates against black females, 
the fact that black males and white 
females are not subject to discrimina­
tion is irrelevant and must not form 
any part of the basis for a finding



26
that the employer did not discriminate 
against the black female plaintiff.

615 F.2d at 1034.
The Tenth Circuit followed Jeffries in 

Hicks v. Gates Rubber Co. . 833 F.2d 1406
(10th Cir. 1987). The plaintiff in
Hicks, also a black woman, brought a Title 
VII action alleging racial and sexual 
harassment on the job. The Tenth Circuit, 
stating that "the Jeffries ruling is 
correct," held that the plaintiff was 
permitted to "aggregate evidence of racial 
hostility with evidence of sexual hos­
tility" in pursuing a combined race-sex 
discrimination claim. 833 F.2d at 1416 
(footnote omitted).4 See also Chambers v.

4 The Eighth Circuit has noted but 
not decided this issue. In DeGraffenreid 
v. General Motors Assembly Division. 558 
F.2d 480 (8th Cir. 1977), the court 
reviewed a district court decision 
refusing to recognize a combined race-sex 
claim under Title VII. The Eighth Circuit 
stated that it did "not subscribe entirely 
to the district court's reasoning in 
rejecting appellants' claims of race and



27
Omaha Girls Club, 629 F. Supp. 925, 946
n. 34 (D. Neb. 1986), aff'd, 834 F.2d 697
(8th Cir. 1987) (following Jeffries); 
Graham v. Bendix Coro., 585 F. Supp. 1036, 
1047 (N.D. Ind. 1984) ("[u]nder Title VII,
the plaintiff as a black woman is protec­
ted against discrimination on the double 
grounds of race and sex, and an employer 
who singles out black females for less 
favorable treatment does not defeat 
plaintiff's case by showing that white

sex discrimination under Title VII," but 
it affirmed the district court's judgment 
on other grounds. 558 F.2d at 484.



28
females or black males are not so un­
favorably treated").

II.
THIS COURT HAS GRANTED CERTIORARI IN 
ANOTHER CASE TO REVIEW THE PRIMA FACIE 
CASE STANDARD APPLIED BY THE NINTH CIRCUIT 
TO DISPARATE IMPACT CLAIMS UNDER TITLE 
VII.

In an effort to defeat the defendants' 
summary judgment motion in the district 
court, Robinson presented undisputed 
evidence that the Orange County Superior 
Court employed no black men, and he 
identified several practices that he 
believed were responsible for the absence 
of black male employees. (App. 67-70a). 
The Ninth Circuit majority affirmed 
summary judgment in favor of the defen­
dants on Robinson's disparate impact 
claims not only because the Superior Court 
employed black women, see supra, but also 
because Robinson did not present evidence 
sufficient, in the majority's view, to



29
make out a prima facie case of disparate 
impact discrimination.

In particular, the majority below 
ruled that a plaintiff must show the 
following to make out a prima facie Title 
VII disparate impact case: (1) sig­
nificant adverse impact against the 
protected group of which the plaintiff is 
a member; (2) specific identified employ­
ment practices or criteria; and (3) a 
causal relationship between the identified 
practices and the impact. (App. 9a) . In 
support of this ruling, the Ninth Circuit 
majority cited Atonio v. Wards Cove 
Packing Co.. 810 F. 1477, 1482 (9th Cir. 
1987) (en banc).

Subseguent to the decision of the 
court below, this Court granted certiorari 
to review the elements and application of 
the Ninth Circuit's disparate impact prima 
facie case standard. Atonio v. Wards Cove



30
Packing Co.. No. 87-1388, 56 U.S.L.W. 3887 
(June 28, 1988), granting cert, to 827
F. 2d 439 (9th Cir. 1987). The Court, 
therefore, should hold the present 
petition pending the resolution of Atonio 
this Term.

III.
THE NINTH CIRCUIT MAJORITY'S AFFIRMANCE OF 
SUMMARY JUDGMENT AGAINST PETITIONER ON HIS 
CLAIMS OF INTENTIONAL DISCRIMINATION, IN 
THE FACE OF CONFLICTING EVIDENCE, IS 
CONTRARY TO THE DECISIONS OF THIS COURT. 
MOREOVER, THIS COURT HAS GRANTED CER­
TIORARI IN ANOTHER CASE TO REVIEW A 
SUBSTANTIALLY SIMILAR QUESTION.

As the dissent points out, the record 
in this case contains conflicting evidence 
as to whether the Superior Court officials 
who rejected Robinson's employment 
applications knew his race. (App. 11- 
11a). Robinson relied on copies of his 
applications, which had been supplied in 
discovery by the defendants from their own 
files with demographic questionnaires



31
still attached, plainly stating that he 
was black. (App. 12a). The officials, on 
the other hand, submitted declarations 
disclaiming any such knowledge. In the 
dissent's view, the credibility of those 
officials, coupled with the concrete 
evidence provided by the employment 
applications and the inferences that could 
reasonably be drawn from that evidence, 
presented genuine issues of fact for 
trial. (App. 12-13a). The majority
below, however, affirmed summary judgment 
for the defendants on Robinson's disparate 
treatment claims under Title VII and 42 
U.S.C. § 1981. (App. 7-8a).

In a case involving claims of inten­
tional discrimination, the ultimate issue 
is the state of mind or intent of 
individuals. This Court has declared in 
numerous cases that a question regarding 
the state of mind of an individual "does



32
not readily lend itself to summary 
disposition," Hutchinson v. Proxmire, 443 
U.S. Ill, 120 n.9 (1979); that "[s]ummary
judgments . . . are not appropriate 'when 
motive and intent play leading roles,'" 
White Motor Co. v. United States, 372 U.S. 
253, 259 (1963); and that "summary
procedures should be used sparingly 
where motive and intent play leading 
roles, the proof is largely in the hands 
of the alleged [wrongdoers], and hostile 
witnesses thicken the plot." Poller v. 
Columbia Broadcasting System, Inc., 368
U.S. 464, 473 (1962) (footnote omitted).

The Court has granted certiorari to 
review a substantially similar question in 
Harbison-Walker Refractories v. Brieck, 
No. 87-271, 56 U.S.L.W. 3647 (March 21,
1988), a disparate treatment case brought 
under the Age Discrimination in Employment 
Act of 1967, 29 U.S.C. § 621 et seq.



33
Harbison-Walker. like the present case, 
concerns the proper standards for granting 
summary judgment where the plaintiff has 
requested a jury trial on claims of 
intentional discrimination.5 If the Court 
does not grant the present petition, it 
should hold the petition pending the 
resolution of Harbison-Walker this Term.

CONCLUSION
For the above reasons, certiorari 

should be granted to review the judgment 
and opinion of the Ninth Circuit. 
Alternatively, the Court should hold this

5 The petitioner's brief in Harbison 
states the question presented there as 
follows: "Whether a plaintiff who alleges 
intentional discrimination can survive 
summary judgment merely by questioning his 
employer's business judgment, without 
presenting any evidence, direct or 
indirect, that his employer's judgment was 
in fact motivated by an intent to 
discriminate." Brief for Petitioner, at 
i, Harbison-Walker Refactories v. Brieck. 
No. 87-271.



34
petition pending the resolution of Wards 
Cove Packing Co. v. Atonio. No. 87-1388, 
and Harbison-Walker Refractories v. 
Brieck. No. 87-271.

Respectfully submitted,

JULIU
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
JUDITH REED

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

PATRICK O. PATTERSON, JR.* 
BILL LANN LEE
NAACP Legal Defense and 

Educational Fund, Inc. 
634 South Spring Street 
Suite 800
Los Angeles, CA 90014 

Counsel for Petitioner 
*Counsel of Record

September 1988



APPENDIX



F O R  P U B L I C A T I O N

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Kenneth Robinson,
Plaintiff-Appellant,
v.

M ichael A dams, D ianne R. Coe, 
G eorgia McCarthy, Martin 
Moshier, Lura Scovil, Joan 
W ilson, County of O range, 
Orange County Superior Court 
and L .B . Utter,

Defendants-Appellees.

N o . 8 5 -6 5 3 3

D .C . N o ,
C V  8 3 -6 8 2 3 -IH

O R D E R  A N D  
A M E N D E D  

O P IN IO N

A p p e a l from  the U n ited  States D istr ict  C ou rt  
fo r  the C entra l D istr ict  o f  C a lifo rn ia  
Irv in g  H ill, D istr ict  Judge, P res id in g

A rg u ed  and  S u b m itted  
A p r il  6, 1987— P a sa d en a , C a lifo rn ia

F iled  O c to b e r  13, 1987 
A m e n d e d  M a y  27 , 1988

B e fore : J. C liffo rd  W a lla ce , M a ry  M . S ch ro e d e r  and  
H arry  P regerson , C ircu it  Judges.

„  O p in io n  by  Judge W a lla ce ; D issen t by Judge P regerson

S U M M A R Y

Employment Discrimination
A p p ea l from  a grant o f  su m m ary  ju d g m e n t. A ffirm ed .



2a
A p p e lla n t R o b in s o n  a p p lied  fo r  fo u r  p o s it io n s  w ith  the 

a pp ellee  C o u n ty  o f  O ran ge. E ach  a p p lica t io n  w as d e n ie d  at 
the screen in g  phase. R o b in s o n  a lleged  a v io la t io n  o f  T it le  V II, 
and  the E E O C  issued  a righ t-to -su e  letter. R o b in s o n  filed  this 
a ction  in d istrict cou rt a lleging v io la tio n s  o f  se ct io n  1981 and  
T itle  V II . T h e  d istrict cou rt en tered  su m m a ry  ju d g m e n t  fo r  
all d e fen d an ts .

[I] U n d e r  T itle  V II o r  u n der se ction  1981 , a p la in tiff  m ust 
p ro v e  in ten tion a l d is cr im in a t io n  to  m a k e  ou t a d is cr im in a ­
tion  c la im  using a d isparate  treatm en t th eory . A n  e m p lo y e r  
ca n n o t in ten tion a lly  d is cr im in a te  against a j o b  a p p lica n t 
based  o n  race unless the e m p lo y e r  k n ow s the a p p lica n t ’ s race. 
[2| R o b in s o n  has n ot p ro d u ce d  su fficien t e v id e n c e  o n  the 
q u estion  o f  the k n ow led g e  by  O ran ge C o u n ty  o r  the e m p lo y ­
ees o f  h is race fo r  a ju ry  to  return a v erd ict  in his fa v or . [3] A  
p la in tiff  estab lishes a p r im a  fa c ie  case o f  e m p lo y m e n t  d is ­
c r im in a tio n  using a d ispara te  im p a ct th eory  w h en  he o r  she 
sh ow s th a t'a  b u siness p ra ctice , neutral o n  its fa ce , had  a su b ­
stantial, a dverse  im p a ct o n  so m e  g rou p  p ro te c te d  by  T itle  
V II. [4] R o b in s o n  fails to  establish  that general p o p u la tio n  
statistics represen t a p o o l  o f  p ro s p e c t iv e  a p p lica n ts  q u a lified  
fo r  the jo b s  fo r  w h ich  he a p p lied .

T h e  d issent argues that the d istrict cou rt erred  in granting 
su m m ary  ju d g m e n t  on  the d ispara te  treatm en t c la im  beca u se  
there is a gen u in e  issue o f  m ateria l fact w h eth er the O ran ge 
C o u n ty  e m p loy ees  rev iew in g  R o b in s o n ’ s a p p lica tion  actu a lly  
knew  he was b la ck  and  that he has ra ised  a gen u in e  issue o f  
m ateria l fact o n  w h eth er b lacks and  particu larly  b la ck  m ales 
are p ro p o r t io n a lly  represen ted  in the c o u r t ’ s w ork  fo rce .

C O U N S E L

K en n eth  R o b in s o n , F u llerton , C a lifo rn ia , in  p ro  per, fo r  the 
p la in tiff-ap pella n t.



3a
L yn n  B ou slog , Santa A n a , C a lifo rn ia , fo r  the d e fen d a n ts - 
appellees .

O R D E R

T h e  m a jo r ity  o p in io n , p u b lish ed  at 8 30  F .2 d  128, is 
a m en d ed  as fo llo w s . T h e  language b e g in n in g  w ith  the sen ­
ten ce  starting o n  line 4 in the r igh t-h an d  c o lu m n  o f  page 131 
to  the sen ten ce  en d in g  at line 27  b e fo re  the c ita tio n  is d e leted  
and  the fo llo w in g  is su bstitu ted :

R o b in s o n , h ow ev er , has p resen ted  insu fficien t e v i ­
d en ce  to  suggest this is the case  here. H is  sh ow in g  
that B la ck  m ales are sta tistica lly  u n d errep resen ted  
ca n n o t, stan d in g  a lon e , sh ow  a racia lly  d is cr im in a ­
tory  im p a ct  o n  B lacks as a w h o le . T o  m a k e  o u t a 
p r im a  fa c ie  case o f  d isparate  im p a ct o n  B la ck  m ales, 
R o b in s o n  w o u ld  a lso  h ave  to  “ id e n tify  sp ec ific  
e m p lo y m e n t  p ra ctices  o r  se le c tion  cr ite r ia ”  and  
“ sh ow  the causal re la tion sh ip  b e tw e e n  the id en tified  
p ra ctices  and  the im p a c t .”

T h e  d issen tin g  o p in io n , p u b lish ed  at 8 30  F .2 d  131, is 
a m en d ed  as fo llow s :

T h e  h ea d in g  “ A . S tatistica l B a ck grou n d  o f  B lacks and  
B lack  M a le s ”  in the le ft-h an d  co lu m n  o f  page 133 is d e leted .

T h e  h ea d in g  “ B. B lack  M a les  as a P ro te cte d  C lass”  in the 
le ft-h an d  co lu m n  o f  page 134 is d e leted .

T h e  sen ten ce  “ I flatly . . .  T it le  V I I .”  in  the s e co n d  full p ara ­
graph in the le ft-h an d  co lu m n  o f  page 134 is d e le ted .

T h e  sen ten ce  “ I w o u ld  . . .  T it le  V I I .”  a n d  the fo llo w in g  
c ita tion  in the righ t-h an d  co lu m n  o f  page 134 is d e le ted  and



4a
the fo llo w in g  is su bstitu ted : “ I w o u ld  h o ld  that th e  e v id e n ce  
presen ted  by  R o b in s o n  is su ffic ien t to  m ake o u t a p r im a  facie  
case  o f  d isparate  im p a ct o n  b la ck  m a les .”

T h e  panel as con stitu te d  a b o v e  has v o te d  to  d en y  the p e ti­
tion  fo r  rehearing. A  m a jo r ity  o f  the p an el has v o te d  to  re ject 
the suggestion  fo r  reh earin g  en b an c.

T h e  full cou rt  has b een  a d v ised  o f  the su ggestion  fo r  rehear­
ing  en b a n c . A n  a ctiv e  ju d g e  ca lle d  fo r  an en  b a n c  v o te  and  a 
m a jor ity  o f  the ju d g e s  o f  the cou rt  has v o te d  to  re ject the sug­
gestion  for  rehearing en  b a n c . F ed . R . A p p . P . 3 5 (b ).

T h e  p e tit io n  fo r  reh earin g  is d e n ie d , a n d  the su ggestion  fo r  
reh earin g  en b a n c  is re jected . * I

„  O P I N I O N

W A L L A C E , C ircu it  Judge:

R o b in s o n  appeals p ro  se the d is tr ict c o u r t ’ s su m m ary  ju d g ­
m en t against h im  o n  his e m p lo y m e n t  d is cr im in a t io n  c la im s. 
H e co n te n d s  (1 ) that he need  n ot p ro v e  that d e fe n d a n ts  had 
k n ow led g e  o f  h is race to  sustain  a c la im  o f  racia l d is cr im in a ­
tion  u n d e r  42  U .S .C . § 1981 o r  T itle . V II o f  the C iv il  R ights  
A ct o f  1964, 42  U .S .C . §§ 2 0 0 0 e  to  2 0 0 0 e -1 7 , (2 ) that a gen u ­
ine issue exists w h eth er the d e fen d a n ts  w ere aw are o f  h is race, 
and  (3 ) that he estab lish ed  a p rim a  fa c ie  case  o f  d isparate  
im p a ct. W e  h ave ju r is d ic t io n  pursuant to  28  U .S .C . § 1291, 
and  w e affirm .

I

In July and  A u gu st 1983, R o b in s o n  a p p lied  fo r  fo u r  p o s i ­
tion s  w ith  the C o u n ty  o f  O ran ge a n d  the O ran ge  C ou n ty  
S u p erio r  C o u rt  (O ra n ge  C ou n ty ). O ran ge  C o u n ty  d e n ie d  each



5a
a p p lica tion  at the in itia l screen in g  phase. R o b in s o n  filed a 
charge w ith  the Equal E m p lo y m e n t O p p o r tu n ity  C o m m is ­
sion , a lleging a v io la tio n  o f  T it le  V II , and  the C o m m is s io n  
issued a righ t-to -su e  letter. R o b in s o n  filed this a c t io n  in  d is ­
trict co u r t  against O ran ge C o u n ty  a n d  several o f  its e m p lo y ­
ees (the e m p lo y e e s )  a lleging v io la t io n s  o f  s e ct io n  1981 and 
T itle  V II. T h e  d istrict cou rt en tered  su m m ary  ju d g m e n t  for  
all d e fen d an ts . W e  rev iew  the su m m ary  ju d g m e n t  de n o v o . 
Lojek v. Thomas, 716  F .2 d  6 7 5 , 6 77  (9 th  C ir. 1983). W e  
address first R o b in s o n ’ s d ispara te  treatm en t c la im , and  then 
his c la im  o f  d ispara te  im p a ct.

II

[1} U n d e r  T itle  V II o r  u n d er se ct io n  1981, a p la in tiff  m ust 
p rov e  in ten tion a l d is cr im in a tio n  to  m ake ou t a d is cr im in a ­
tion  c la im  u sing a d ispa ra te  treatm ent th eory . Gay v. Waiters' 
and Dairy Lunchmen’s Union, 6 9 4  F .2 d  5 3 1 , 537  (9th  C ir. 
1982) (Gay). A n  e m p lo y e r  ca n n ot in ten tion a lly  d is cr im in a te  
against a j o b  a p p lica n t based  o n  race unless the e m p lo y e r  
know s the a p p lica n t ’ s race. R o b in s o n  co n te n d s , h ow ever , 
that he m ay d isch a rge  his p rim a  fa c ie  b u rd en  o f  p ro d u ct io n  
by o ffe r in g  p r o o f  o f  the fou r  e lem en ts articu lated  in 
McDonnell Douglas Corp. v. Green, 411 U .S . 792  (1 9 7 3 ), and  
that McDonnell Douglas m ere ly  requ ires  p r o o f  that he 
belon gs to  a racia l m in ority . See id. at 8 02 ; Gay, 6 9 4  F .2d  at 

„ 538 &  n .5 .

T h e  McDonnell Douglas test, h o w e v e r , “ w as n ever 
in tended  to  be rigid , m ech a n ized , o r  ritua listic. R ath er, it is 
m erely a sen sib le , o rd er ly  w ay to  eva lu ate  the e v id e n ce  . . .  on  
the cr it ica l q u estion  o f  d is cr im in a t io n .”  Furnco Construction 
Corp. v. Waters, 4 38  U .S . 5 67 , 577  (1 9 7 8 ). T h e  McDonnell 

» Douglas test defin es on e  m e th o d  o f  p ro v in g  a p r im a  fa c ie  case 
o f  d is cr im in a tio n  —  p r o o f  fro m  w h ich  a trier o f  fact can  rea­
sonab ly  in fer  in ten tion a l d is cr im in a tio n . See Gay, 6 94  F .2d  
at 538 . But the McDonnell Douglas e lem en ts w o u ld  n ot ra tio ­
nally create  this in feren ce  if, as here, a p la in tiff  o ffers  p r o o f



6a
that he is B la ck , b u t there is n o  sh ow in g  b y  d ire ct  o r  in d ire ct  
e v id e n ce  that the d e c is io n -m a k e r  k n ew  this fact.

{21 E ven  a cce p tin g  this req u irem en t, h ow ev er , R o b in s o n  
co n te n d s  that he ca n  su rv iv e  a m o t io n  for  su m m a ry  ju d g m e n t  
b eca u se  so m e  e v id e n ce  in the re co rd  suggests that O ran ge  
C o u n ty  and  the e m p lo y e e s  c o u ld  have d is co v e re d  he is B lack . 
O n  all fo u r  o f  R o b in s o n ’ s a p p lica tio n s , he ch e ck e d  a b o x  in d i­
ca tin g  his race. N everth e less , “ there is n o  issue fo r  trial unless 
there is su fficien t e v id e n c e  fa v o r in g  the n o n m o v in g  party  fo r  
a ju ry  to  return  a v erd ict  fo r  that party. I f  th e  e v id e n ce  is 
m ere ly  co lo ra b le , o r  is n ot s ign ifican tly  p ro b a t iv e , su m m ary  
ju d g m e n t  m a y  b e  g ra n ted .”  Anderson v. Liberty Lobby, Inc., 
106 S. C t. 2 5 0 5 , 251 1 (1 9 3 6 ) (c ita tio n s  o m itte d )  (.Liberty 
Lobby). W e  d o  n ot b e lie v e  that R o b in s o n  has p ro d u ce d  suffi­
c ien t e v id e n ce  o n  the q u e stio n  o f  the k n ow led g e  b y  O ran ge  
C o u n ty  o r  the e m p lo y e e s  o f  h is race  fo r  a ju ry  t o  return  a v e r ­
d ic t  in his favor .

T h e  fo llo w in g  paragraph  a p p ea red  at the to p  o f  that p o r t io n  
o f  the a p p lica tion  w h ich  co n ta in e d  racia l a n d  o th er  d e m o ­
grap h ic in fo rm a tio n .

O ran ge  C o u n ty  is ask ing all a p p lica n ts  fo r  p o s i ­
tion s  to  co m p le te  tjiis fo rm  in  o rd e r  to  c o m p ly  w ith  
U n ite d  States g ov e rn m e n t equa l e m p lo y m e n t  
o p p o r tu n ity  req u irem en ts . Information you provide 
will not he used in any way as part o f the testing 
process. T h is  flap w ill n o t be d u p lica ted  o r  m a d e  
a va ila b le  to  h iring  d epa rtm en t, [sic] D a ta  co lle c te d  
is used  fo r  statistical p u rp oses  and  to  m easu re  the 
C o u n ty ’ s e ffe ctiv en ess  o f  recru itin g  efforts.

(E m ph a sis  in or ig in a l.) F u rth erm ore , this se ct io n  o f  the a p p li­
ca tion  a p p ea red  on  a flap that is d e scr ib e d  in the re co rd  vari­
ou sly  as a “ tear apart a tta ch m en t,”  “ in s ide  d eta ch a b le  ta b ,” 
“ te a r -o ff  fo r m ,”  a n d  “ separate sheet [that w as] d e ta ch e d  fo r  
internal re co rd  k eep in g  p u rp o se s .”  T h e  re co rd  suggests that



e ith er the flap was p h o t o c o p ie d  as part o f  the orig in a l a p p lica ­
tion  and  then torn  o f f  b e fo re  the a p p lica t io n  w as sent to  the 
a p p lica tio n  screener, o r  a c o p y  o f  the a p p lica t io n  w h ich  d id  
n ot sh ow  the flap w as sent to  the a p p lica t io n  screen er, o r  the 
flap was fo ld e d  so  that it co u ld  n ot b e  v ie w e d  b y  the a p p lica ­
tion  screener. S in ce  the data  o n  the flap d id  n o t co n ta in  s ign if- 
icant in fo rm a tio n  fo r  statistical p u rp oses , such  as the j o b  
a p p lied  fo r  and  the date  o f  a p p lica t io n , the e m p lo y e r  m ust 
have reta in ed  a full c o p y  o f  the a p p lica t io n  in its record s . T h e  
key q u estion  here is w h eth er the screeners kn ew  the a p p li­
ca n t ’ s race. O ran ge  C o u n ty  su b m itted  a ffidav its  fro m  the 
a p p lica tio n  screeners w h o  h ad  re je c te d  R o b in s o n ’ s j o b  a p p li­
ca tion s. A ll o f  these screeners d e c la re d  that they w ere 
unaw are o f  R o b in s o n ’ s race w h en  th ey  rev iew ed  a n d  re jected  
his a p p lica tion s . A lth ou g h  the c re d ib ility  o f  the a p p lica tio n  
screeners c o u ld  be  a triab le  issue, R o b in s o n  has p ro d u ce d  n o  
e v id e n ce  that p la ces th e ir  cre d ib ility  in d o u b t . “ [N je ith e r  a 
desire  to  cro ss -e x a m in e  an affiant n o r  an u n sp ecified  h o p e  o f  
u n d erm in in g  h is o r  her cre d ib ility  su ffices to  avert su m m ary  
ju d g m e n t .”  National Union Fire Insurance Co. v. Argonaut 
Insurance Co., 701 F .2d  95 , 97  (9 th  C ir. 1983).

In light o f  this re co rd , w e co n c lu d e  that there w as n o  gen u ­
ine d isp u te  as to  w h eth er the a p p lica tio n  screeners w ere 
aw are o f  R o b in s o n ’ s race. T h e  a p p lica tio n s  stated  that the 
d e m o g ra p h ic  in fo rm a tio n  w o u ld  n ot be co n s id e r e d  as part o f  
the h iring  p rocess , and  the in fo rm a tio n  w as co n ta in e d  o n  a 
flap p u rp ose fu lly  d esign ed  so that it w o u ld  n ot be seen  by  the 
a p p lica tion  screeners. S ign ifican tly , R o b in so n  d oes  n ot p o in t  
to  any e v id e n ce  ten d in g  to  sh ow  that th is p ro ce d u re  resu lted  
in the d isc lo su re  o f  racial in fo rm a tio n  to  a p p lica tio n  screen ­
ers in his o r  any o th er case. T h e  o n ly  e v id e n ce  in  the re co rd , 
the a ffidavits o f  the a p p lica tion  screeners, u n e q u iv o ca lly  sug­
gests that the p ro ce d u re  w ork ed . R o b in s o n ’ s e v id e n c e  on  this 
issue is “ m ere ly  c o lo r a b le ”  and is n o t “ s ign ifican tly  
p ro b a t iv e .”  Liberty Lobby, 106 S. C t. at 2 5 1 1 . T h e re fo re , w e 
h o ld  that n o  gen u in e  issue exists as to  w h eth er the a p p lica tio n  
screeners w ere aw are o f  h is race. S u m m a ry  ju d g m e n t  was



8a
a p p rop ria te  o n  R o b in s o n ’ s in ten t ion a l d is cr im in a t io n  
th e o ry .1

I l l

[3] A  p la in t iff  estab lish es a p r im a  fa c ie  case  o f  e m p lo y m e n t  
d iscr im in a t io n  usin g  a d ispara te  im p a ct  th e o ry  w h en  he o r  
she sh ow s that a b u siness p ra ctice , neutral o n  its fa ce , h ad  a 
substantia l, a dverse  im p a ct  o n  so m e  g rou p  p ro te c te d  b y  T itle  
V II . Gay, 6 94  F .2 d  at 537 . S u ch  p r o o f  is usually  a cco m p lis h e d  
b y  statistical e v id e n ce  sh ow in g  “ that an e m p lo y m e n t  p ra ctice  
selects m em b ers  o f  a p ro te c te d  class in  a p r o p o r t io n  sm aller 
than  th e ir  p ercen tage  in  the p o o l  o f  a ctu a l a p p lica n ts .”  Moore 
v. Hughes Helicopters, Inc., 708  F .2 d  4 7 5 ,4 8 2  (9 th  C ir . 1983).

[4) R o b in s o n  co n te n d s  he estab lish ed  a p r im a  fa c ie  case  o f  
d is cr im in a to ry  im p a ct  b y  c it in g  statistics w h ich  a lleged ly  
sh ow  that the p ercen tage  o f  B lacks in O ran ge  C o u n ty  and  in

‘The dissent correctly points out that the record before us includes copies 
o f Robinson’s four applications still containing the detachable tab on which 
Robinson’s race is noted. There is nothing in the record to suggest that 
muse copies are in fact the copies o f the applications that the application 
screeners actually saw. The form itself, as we observed above, indicates that 
this portion o f the application would not be “ duplicated” or otherwise 
made available to the hiring department. The most reasonable inference 
from this statement is that the County generally keeps the original applica­
tions on file, and sends a duplicate copy to the screeners. Robinson has 
presented nothing more than his conclusory assertion, which he admits is 
an assumption, that the copy o f the application form he received through 
the discovery process is the same as what was sent to the application screen­
ers, The screeners all declared that they were unaware o f Robinson’ s 
race— i.e., that they did not see the tab containing his race identification. 
In the absence o f some evidence that the copies o f the form Robinson pro­
cured through discovery are the same as those submitted to the application 
screeners, we are unable to believe that a jury could decide, based on the 
preponderance o f the evidence, that Robinson’s copy o f  the application 
was the same as what the screeners saw and therefore that the screeners 
were aware o f  his race. See Liberty Lobby, 106 S. Ct. at 2510-12. Thus, in 
light o f the screener’s testimony, there is no triable issue o f  fact.



9a
su rrou n d in g  co u n tie s  is h igh er than  the p ercen ta ge  o f  B lacks 
e m p lo y e d  b y  O ran ge  C o u n ty . N everth e less , R o b in s o n  fa ils  to  
estab lish  that these general p o p u la t io n  statistics  rep resen t a 
p o o l  o f  p ro s p e c t iv e  a p p lica n ts  q u a lified  f o r  the jo b s  fo r  w h ich  
he a p p lied . W e  h a v e  co n s is ten tly  re je c te d  the u sefu lness o f  
general p o p u la t io n  statistics as a p ro x y  fo r  the p o o l  o f  p o te n ­
tia l a p p lica n ts  w h ere  the e m p lo y e r  sou gh t a p p lica n ts  fo r  p o s i ­
tion s  req u ir in g  sp ecia l skills. See id. at 4 8 2 -8 3 .

In any  case, the m ost p ro b a t iv e  statistics in  the re co rd  ten d  
to  sh ow  an  a b sen ce  o f  d ispa ra te  im p a ct : in  1984 , a lth ou gh  
B lacks rep resen ted  1 .2%  o f  the O ran ge  C o u n ty  p o p u la t io n ,
1.7%  o f  the S u p erio r  C ou rt  w ork  fo r c e  w as B la ck  a n d  2 .7 %  o f  
b o th  the “ P ro fe s s io n a l”  and  “ O ffic ia l/A d m in is t ra t io n ”  p o s i­
tion s  in  the C o u n ty  o f  O ran ge w ere  h e ld  b y  B lacks. R o b in s o n  
argues, h o w e v e r , that h is d ispara te  im p a ct  th eory  ca n  su rv iv e  
a m o t io n  fo r  su m m ary  ju d g m e n t  b eca u se  he has p resen ted  
e v id e n ce  that the O ran ge  C o u n ty  S u p e r io r  C ou rt  d id  n o t h ave  
any B lack  male em p lo y e e s . O b v io u s ly , s in ce  B lacks are n ot 
sta tistica lly  u n d errep resen ted  in the O ran ge  C o u n ty  S u p erio r  
C o u rt ’ s w ork  fo rce , R o b in s o n  ca n n o t  p la u sib ly  m a in ta in  that 
the C o u r t ’ s h ir in g  p ra ctices  h a v e  a racia lly  d is cr im in a to ry  
im p a ct o n  B lacks as a w h o le . C o n ce iv a b ly , the a b sen ce  o f  any 
B lack  male e m p lo y e e s  c o u ld  result fro m  racia l ste reo ty p in g  o r  
have so m e  o th er  lin k  to  racia l d is cr im in a t io n . R o b in s o n , 
h ow ev er , has p resen ted  insu fficien t e v id e n ce  to  suggest th is is 
the case  here. H is sh ow in g  that B la ck  m ales are statistica lly  
u n d errep resen ted  ca n n o t, s tan d in g  a lo n e , sh ow  a racia lly  d is ­
cr im in a to ry  im p a ct o n  B lacks as a w h o le . T o  m ake ou t  a 
p rim a  fa c ie  case  o f  d ispa ra te  im p a ct o n  B la ck  m ales, R o b in ­
son  w o u ld  a lso  h ave  to  “ id e n tify  sp ec ific  e m p lo y m e n t  p ra c ­
tices o r  s e le c tion  cr ite r ia ”  and  “ sh ow  the causal re la tion sh ip  
betw een  the id en tified  p ra ctices  and  the im p a c t .”  Atonio v. 
Wards Cove Packing Co., 8 10  F .2 d  1 4 7 7 ,1 4 8 2  (9th  C ir . 1987) 
(en  b a n c). T h is , w e c o n c lu d e , he has n o t d o n e  to  the d egree  
n ecessary  to  su rv iv e  a m o t io n  fo r  su m m a ry  ju d g m e n t .

B eca u se  R o b in s o n  has n o t p o in te d  to  e v id e n ce  crea tin g  a 
gen u in e  d isp u te  a b o u t facts m ateria l to  a p rim a  fa c ie  case  o f



10a
d isparate  im p a ct , su m m a ry  ju d g m e n t  w as a p p rop ria te  o n  this 
issue.

A F F IR M E D .

P R E G E R S O N , J „  d issen tin g

K en n eth  R o b in s o n  appeals  p ro  se fr o m  the d is tr ict c o u r t ’ s 
grant o f  su m m ary  ju d g m e n t  in fa v o r  o f  d e fen d a n ts . In the 
su m m er o f  1983, R o b in s o n  a p p lie d  fo r  fo u r  separate jo b s  
w ith  the O ran ge  C o u n ty  S u p erio r  C o u rt . A s part o f  the jo b  
a p p lica tio n , R o b in s o n  filled  ou t a d e m o g r a p h ic  q u estion n a ire  
in w h ich  he in d ica te d  that he is b la ck . T h is  q u e stio n n a ire  is 
a “ te a r -o ff  a tta ch m en t”  to  the j o b  a p p lica t io n  and  states at the 
to p  that the in fo rm a tio n  p ro v id e d  o n  it w ill be  u sed  fo r  statis­
tica l p u rp oses  o n ly . R o b in s o n  was n ot h ired  fo r  any  o f  the 
fou r  p o s it io n s , and  he b rou gh t this suit a lleg in g  that he was 
d en ied  e m p lo y m e n t  w ith  the O ran ge  C o u n ty  S u p erio r  C ou rt 
based  o n  his race. T h e  m agistrate w h o  first heard  the case  rec­
o m m e n d e d  that the d istr ict cou rt grant su m m a ry  ju d g m e n t 
for  d e fen d a n ts  o n  the T itle  V II “ d ispara te  trea tm en t”  c la im  
but d en y  su m m ary  ju d g m e n t  on  the “ d ispara te  im p a ct”  
c la im . T h e  d istrict cou rt partia lly  a cce p te d  th is r e c o m m e n d a ­
tion , granting su m m ary  ju d g m e n t fo r  d e fen d a n ts  on  b oth  
cla im s.

W e  rev iew  d e  n o v o  d istrict cou rt  ord ers  granting su m m ary  
ju d g m e n t. Darring v. Kincheloe, 783  F .2 d  8 74 , 876  (9th  C ir. 
1986). O u r  rev iew  is g o v e rn e d  by  the sam e standard  used  by 
the d istrict cou rt  u n d er F ed . R . C iv . P. 5 6 (c ). Id. W e  m ust 
d eterm in e , v iew in g  the e v id e n ce  in the light m ost fa v ora b le  to  
the n o n m o v in g  party, w h eth er there are any  gen u in e  issues o f  
m ateria l fact and  w h eth er the d istrict cou rt co rre c t ly  a p p lied  
the re levan t su bstan tive  law . Ashton v. Cory, 7 8 0  F .2 d  816 , 
818  (9 th  C ir. 1986).



_________________________________ D a ____________ ________________

T itle  V II is “ a rem ed ia l statute to  be  libera lly  co n stru e d  in 
fa v o r  o f  the v ictim s  o f  d is c r im in a t io n .”  Mahroom v. Hook, 
563 F .2 d  1369 , 1375 (9 th  C ir . 1977 ), cert, denied, 4 3 6  U .S . 
904  (1 9 7 8 ). P articu larly  w h ere , as here, a la y p erson  brings a 
T itle  V II a c t io n  p ro  se, a libera l co n s tru c tio n  o f  the statute ’ s 
tech n ica l req u irem en ts  is a p p rop ria te . Rice v. Hamilton Air 
Force Base Commissary, 7 2 0  F .2 d  1082 , 1084  (9 th  C ir . 1983).

I. Disparate Treatment

as the m a jo r ity  states, u n der T it le  V II  o r  se ct io n  1981 a 
p la in tiff  m ust establish  in ten tion a l d is cr im in a t io n  to  sh ow  
d isparate  treatm en t. I agree w ith  the m a jo r ity  that, n o tw ith ­
stan d in g  the literal language o f  McDonnell Douglas, a fin d in g  
o f  in ten tion a l d is cr im in a t io n  log ica lly  requ ires  a sh o w in g  
that d e fen d a n ts  kn ew  p la in t if fs  race. In th is case , then , to  
pursue a c la im  o f  d isparate  treatm en t, R o b in s o n  m u st p ro v e  
that O ran ge  C o u n ty  S u p erio r  C ou rt e m p lo y e e s  kn ew  he w as 
b la ck  w h en  they co n s id e re d  h is a p p lica tio n s  fo r  e m p lo y m e n t. 
I w ou ld  h o ld  that the d istrict cou rt  erred  in  gran tin g  su m m ary  
ju d g m e n t o n  the d ispara te  treatm en t c la im  b eca u se  there is a 
gen u ine  issue o f  m ateria l fact w h eth er the O ran ge  C o u n ty  
em p loy ees  rev iew in g  R o b in s o n ’ s a p p lica tio n  actu a lly  knew  
he w as b lack .

In su p p ort o f  its co n c lu s io n  that there is n o  g en u in e  factu al 
issue on  this p o in t , the m a jor ity  cites  (1 ) the language at the 
top  o f  the d e m o g ra p h ic  q u estion n a ire  a ttach ed  to  the e m p lo y ­
m ent a p p lica tio n  stating that racial and  o th e r  in fo rm a tio n  
w ou ld  n ot be  co n s id e re d  in the e m p lo y m e n t  d e c is io n , (2 ) the 
fact that the q u estion n a ire  a pp eared  o n  a d e ta ch a b le  flap that 
was part o f  the a p p lica tio n  fo rm , and  (3 ) a ffidav it te s tim on y  
by C ou n ty  e m p lo y e e s  w h o  rev iew ed  R o b in s o n ’ s a p p lica tio n s  
in d ica tin g  that w h en  they d e c id e d  n ot to  h ire R o b in s o n  they 
w ere unaw are o f  h is race.

T h e  m a jo r ity  n eglects to  m e n tio n  the e v id e n c e  R o b in s o n  
p ro v id e d  to  co u n te r  the e v id e n ce  p ro v id e d  b y  the C o u n ty . In



12a
his E xcerp ts  o f  R e c o r d , R o b in s o n  p r o v id e d  c o p ie s  o f  his 
e m p lo y m e n t  a p p lica tio n s  re ce iv ed  fro m  the C o u n ty  via  the 
d is co v e ry  p rocess . O n  the pages in  the E xcerp t m ark ed  141, 
150, 163, a n d  2 7 9 , R o b in s o n ’ s a p p lica tio n s  are re p ro d u ce d . 
In ea ch  case , the d e m o g ra p h ic  q u estion n a ire , co m p le te  w ith 
R o b in s o n ’ s “ x ”  in d ica tin g  that he is b la ck , is still a ttach ed  to  
the a p p lica tio n . In m y v iew , th is e v id e n c e  in d ica tes  that the 
C o u n ty  em p lo y e e s  w h o  co n s id e re d  R o b in s o n ’ s a p p lica tio n  
m ay h ave k n ow n  he w as b la ck .

T h e  e v id e n ce  p ro v id e d  b y  the C o u n ty  d o e s  n ot u n d erm in e  
the p ro b ity  o f  the raw  fact that R o b in s o n ’ s racia l in fo rm a tio n  
w as still a ttach ed  to  his j o b  a p p lica tio n . T h e  first tw o  item s 
c ite d  by  the m a jo r ity  are o f  n eg lig ib le  va lu e  fo r  d e te rm in in g  
w hat the rev iew in g  e m p lo y e e s  a ctu a lly  k n ew . T h e  language at 
the to p  o f  the q u e stio n n a ire  is n ot d e te rm in a tiv e  o f  h ow  
a p p lica tio n s  w ere in  fact p rocessed . S im ilar ly , the fact that 
the a p p lica n t ’ s racia l in fo rm a tio n  w as p r o v id e d  o n  a d e ta ch ­
ab le  fo rm  in d ica tes  little a b ou t the C o u n ty ’ s treatm en t o f  race 
in  the j o b  a p p lica tio n  p rocess . I f  the C o u n ty  had  an entirely  
separate d e m o g ra p h ic  q u estion n a ire  u sed  fo r  gath erin g  statis- 

► tics , it m igh t d em on stra te  the C o u n ty ’s d esire  to  ensure that 
e m p lo y e e s  rev iew in g  the a p p lica tio n s  w ou ld  be  ign oran t o f  
each  a p p lica n t ’ s race. But b y  k eep in g  this in fo rm a tio n  p h y si­
ca lly  a ttach ed  to  o th er  e m p lo y m e n t  in fo rm a tio n , the C ou n ty  
runs a risk that em p lo y e e s  m a k in g  e m p lo y m e n t  d e c is io n s  w ill 
be aw are o f  racia l and  o th er  d e m o g ra p h ic  fa ctors  that m ight 
lead  to  d is cr im in a tio n .

T h e  C o u n ty  e m p lo y e e s ’ a ffidavits in d ica tin g  that they w ere 
unaw are o f  R o b in s o n ’ s race is the o n ly  v ia b le  e v id e n ce  the 
C o u n ty  has p ro v id e d  to  d isp u te  R o b in s o n ’ s a llegation  that 
the e m p lo y e e s  knew  o f  his race. A s  the m a jo r ity  recogn izes , 
the c re d ib ility  o f  these e m p lo y e e s  is a m atter fo r  the trier o f  
fact. A lth ou g h  the c re d ib ility  issue a lon e  p ro b a b ly  sh ou ld  not 
d e fea t d e fe n d a n ts ’ su m m ary  ju d g m e n t  m o t io n , the c r e d ib il ­
ity  q u estion  co u p le d  w ith  R o b in s o n ’ s co n c re te  e v id e n ce  that 
the em p lo y e e s  m ay h ave k n ow n  o f  h is race is su fficien t to



13a
a llow  his d ispara te  treatm en t c la im  to  w ith stan d  su m m ary  
ju d g m en t.

II. Disparate Impact

R o b in s o n  a lso  b rou gh t a T it le  V II c la im  u n d er  the d isp a ­
rate im p a ct th eory . T h e  d is tr ict co u r t  re jected  the m a gis ­
trate’ s r e co m m e n d a tio n  that d e fe n d a n ts ’  su m m a ry  ju d g m e n t  
m o tio n  o n  this c la im  b e  re jected . I w o u ld  reverse  the d is tr ict 
c o u r t ’ s grant o f  su m m a ry  ju d g m e n t  on  th is  issue.

U n d e r  a d isparate  im p a ct  a p p ro a ch , an e m p lo y e e  m ust 
sh ow  that facia lly  neutra l e m p lo y m e n t  p ra ctice s  h a v e  a 
“ sign ifican tly  d is cr im in a to ry ”  im p a ct u p o n  a g rou p  p ro te c te d  
by  T it le  V II. Connecticut v. Teal, 4 57  U .S . 4 4 0 , 4 4 6  (1 9 8 2 ). 
T h e  starting p o in t  fo r  d isparate  im p a ct analysis  is id en tify in g  
the a p p rop ria te  ca n d id a te  p o o l  a n d  its racia l m akeu p . Moore 
v. Hughes Helicopters, Inc., 708  F .2 d  4 7 5 , 4 8 2  (9 th  C ir . 1983). 
G en era lly , the m ost a p p rop ria te  statistical b ase  is the actual 
p o o l  o f  a pp lica n ts . Id.

R o b in s o n  has sh ow n  that the O ran ge C o u n ty  S u p erio r  
C ou rt has no b la ck  m ale em p lo y e e s , a n d  that the ov era ll rep ­
resen tation  o f  b la ck s (all w o m e n ) a m o n g  its e m p lo y e e s  is 
1.7% . T h e  m a jor ity  states that there is n o  statistical su p p ort 
for R o b in s o n ’ s a ssertion  that b lacks are u n derrep resen ted  in 
the co u r t 's  w ork  fo rce . T o  the con tra ry , I b e lie v e  that R o b in ­
son  has ra ised  a gen u in e  issue o f  m ateria l fact o n  w h eth er 
b lacks and  particu larly  b la ck  m ales are p ro p o r t io n a lly  rep re­
sented in the co u r t ’ s w ork  force .

D e fen d a n ts  m a in ta in  that their 1 .7%  rate o f  b la c k 'e m p lo y ­
m ent is m o re  than su fficien t, in light o f  the fact that b la ck s 
con stitu te  o n ly  1.2%  o f  O ran ge C o u n ty ’ s p o p u la t io n . T h e  
C ou n ty  has p ro fe rred  n o  ju s tifica tio n  fo r  its re lian ce  o n  gen ­
eral p o p u la t io n  statistics rather than o n  statistics co n ce rn in g  
the actual p o o l  o f  ap p lica n ts  fo r  the p o s it io n s  fo r  w h ich  R o b ­
inson  a p p lied . G iv e n  the startlingly lo w  levels  o f  b la ck



14a
e m p lo y m e n t  in  the O ran ge  C o u n ty  S u p e r io r  C o u rt , I w o u ld  
h o ld  that the a b sen ce  o f  statistics a b ou t the ca n d id a te  p o o l  by 
itse lf  ju stifies  reversin g  the grant o f  su m m a ry  ju d g m e n t  for  
d e fen d an ts .

E ven  a ssu m in g  that general p o p u la t io n  statistics are a p p ro ­
priate , it is n ot at all c lea r  u n d er  Hazelwood School Dist. v. 
United States, 4 33  U .S . 2 9 9 , 313  (1 9 7 7 ), that the O ran ge  
C o u n ty  p o p u la t io n  is the “ re levan t la b o r  m a rk et”  req u ired  
for  statistical co m p a r iso n s  in d ispa ra te  im p a ct  cases. O ran ge 
C o u n ty  is n ot an iso la ted  co m m u n ity . A lth ou g h  the U n ited  
States cen su s bu reau  iden tifies  O ran ge  C o u n ty  as a S tan dard  
M e tro p o lita n  S tatistica l A rea , the bu reau  a lso  iden tifies  
O ran ge  C o u n ty  as part o f  the L os  A n g e le s -L o n g  B each - 
A n a h e im  stan d ard  c o n s o lid a te d  statistical area. B e in g  part o f  
the greater L o s  A n g e les  m e tro p o lita n  area, O ra n ge  C o u n ty  
p resu m a b ly  d raw s its w o rk  fo r c e  fro m  a larger p o p u la t io n  
p o o l  than the C o u n ty  a lon e . T h e  e v id e n c e  a d d u ce d  thus far 
su p p orts  th is p re su m p tio n . F o r  ex a m p le , O ran ge  C o u n ty  
a d v ertised  the p o s it io n s  fo r  w h ich  R o b in s o n  a p p lie d  in the 
L os  A n geles  T im e s  and  the O ran ge  C o u n ty  R eg ister , b o th  o f  
w h ich  are w id e ly  c ircu la ted  th rou g h ou t the greater L o s  A n g e ­
les area.

I w o u ld  h o ld , in  k eep in g  w ith  Hazelwood, that this case 
sh ou ld  g o  b a ck  to  the d is tr ict co u r t  “ fo r  fu rth er fin d in gs as to 
the re levan t la b o r  m a rk et.”  Id.

R o b in s o n  co n te n d s  that ev en  i f  there w ere  factu al su p p ort 
fo r  d e fe n d a n ts ’ a rgu m en t that blacks are p ro p o r t io n a te ly  rep ­
resen ted  in the c o u r t ’ s w ork  fo rce , the e v id e n c e  n on eth e less  
d em on stra tes  d ispara te  im p a ct  o n  black males. T h e  S u p rem e 
C ou rt stated  in  Connecticut v. Teal, 4 5 7  U .S . 4 4 0 , 4 5 1 , 455  
(1 9 8 2 ):

T it le  V II strives to  a ch ie v e  eq u a lity  o f  o p p o r tu n ity  
by  ro o t in g  o u t “ artificia l, a rb itrary , a n d  u n n eces ­
sary”  e m p lo y e r -cre a te d  barriers  to  p ro fe ss io n a l



15a
d e v e lo p m e n t  that h ave  a d is cr im in a to ry  im p a ct 
u p on  in d iv id u a ls .

It is c lea r  that C on gress  n ever in te n d e d  to  g iv e  an 
e m p lo y e r  licen se  to  d is cr im in a te  against som e  
em p lo y e e s  o n  the basis o f  race o r  sex m ere ly  b eca u se  
he fa v ora b ly  treats o th er m em b ers  o f  the e m p lo y e e s ’ 
g rou p . W e  re co g n ize d  in Los Angeles Dept, o f Water 

-  & Power v. Manhart, 435  U .S . 702  (1 9 7 8 ), that fa ir­
ness to  the class o f  w o m e n  em p lo y e e s  as a w h o le  
c o u ld  n ot ju s tify  u n fa irness to  the in d iv id u a l fem ale  
e m p lo y e e  beca u se  the “ statute ’ s fo cu s  o n  the in d i­
v id u a l is u n a m b ig u o u s .”  Id. at 1375. . . .

T h e  stark fact is that the O ran ge  C o u n ty  S u p erio r  C ou rt 
d oes  n ot e m p lo y  a single b la ck  m ale. T h is  is stron g  e v id e n ce  
that d e fen d a n ts  have d is cr im in a te d  against b la ck  m ales by 
creating an artificial barrier to  th eir p ro fess ion a l d e v e lo p ­
m ent, th ereby  frustrating T itle  V II ’ s goa ls  o f  a ch ie v in g  eq u a l­
ity o f  o p p o r tu n ity . L ik e  the b e h a v io r  in Manhart, the O ran ge 
C ou n ty  S u p erio r  C o u r t ’ s fa ilu re to e m p lo y  a single  b la ck  m ale  
b latantly  d isregards the rights o f  the in d iv id u a l re co g n ize d  
and p ro te c te d  in T it le  V II, I w o u ld  h o ld  that the e v id e n ce  
presen ted  by R o b in s o n  is su fficien t to  m ake o u t a p r im a  fa c ie  
case o f  d isparate  im p a ct o n  b la ck  m ales. Cf Jefferies v. Harris 
County Community Action Ass’n, 6 1 4  F .2 d  1025, 103 2 -35  
(9th  C ir. 1980) (b la ck  fem ales are a p ro te cted  class u n der 
T itle  V II). A cc o rd in g ly , 1 d issent fro m  the m a jo r ity ’ s v iew  to  
the con trary .



16a
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA

No. CV 83”6823-IH(Me) 
Filed October 31, 1985

KENNETH ROBINSON,
Plaintiff,

vs.
MICHAEL ADAMS, et al.,

Defendants * 1

FINAL JUDGMENT
Pursuant to a document entitled 

"Memorandum and Order" filed this date 
and the Order appearing at the end 
thereof, IT IS ORDERED, ADJUDGED AND 
DECREED AS FOLLOWS:

1. Plaintiff shall take nothing by 
his action against any of the Defendants 
named herein. The Defendants and each of 
them shall have judgment against the



17a
Plaintiff with costs of $ ______ .

2. The Clerk shall transmit a copy 
of the said "Memorandum and Order" and 
this judgment to all counsel of record 
and to Magistrate McMahon.

DATED: October 31, 1985.

________s/s_____
IRVING HILL, Judge 

United States District Judge



18a
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA

No. CV 83-6823-IH(Me) 
Filed October 31, 1985

KENNETH ROBINSON,
Plaintiff,

vs.
MICHAEL ADAMS, DIANNE R. COE, GEORGIA 
MCCARTHY, MARTIN MOSHIER, LURA SCOVIL, 
JOAN WILSON, BEN AVILLAR, MARIA 
BASTANCHURY, COUNTY OF ORANGE, A 
MUNICIPAL CALIFORNIA CORPORATION, 
SUPERIOR COURT OF ORANGE, AND L. B. 
UTTER,

Defendants.

MEMORANDUM AND ORDER 
The pro se plaintiff has filed an 

employment discrimination complaint 
alleging that the defendants discrimi­
nated against the plaintiff by failing to 
hire the plaintiff for certain jobs with 
the County of Orange because of the 
plaintiff's race. The court has previ-



19a
ously granted partial summary judgment 
against the plaintiff in favor of the 
defendants on all of the plaintiff's 
claims asserted under 42 U.S.C. § 1981.
(See Partial Report and Recommendation of 
United States Magistrate, filed February 
14, 1985.) The defendants have now moved 
for summary judgment on all of the 
plaintiff's claims asserted under Title 
VII of the Civil Rights Act of 1964. (42
U.S.C. §200e[sic]-2000e-17.)

This court has now received the 
Second Partial Report and Recommendation 
of United States Magistrate, filed August 
13, 1985. In that Second Partial Report
and Recommendation, the Magistrate 
recommends that the court:

(1) Grant partial summary judgment 
for the defendants dismissing 
all of the plaintiff's Title 
VII disparate treatment claims



20a
as against all defendants;

(2) Deny summary judgment for the 
defendants on the plaintiff's 
disparate impact claims;

(3) Dismiss all punitive damage 
claims as against all defen­
dants ;

(4) Dismiss all back pay claims as 
against all defendants other 
than the defendant County of 
Orange; and

5) Dismiss the complaint entirely 
as against defendants Bas- 
tanchury and Avillar.

The Magistrate has also recommended that 
this action proceed to trial as to the 
plaintiff's Title VII disparate impact 
claims seeking back pay as against 
defendant County of Orange and injunctive 
relief as against all defendants other 
than Bastanchury and Avillar.



21a
The court has reviewed the com­

plaint, all of the records and files 
herein, the Second Partial Report and 
Recommendation of United States Magis­
trate, and the Plaintiff's Objections to 
the Report and Recommendation. The court 
approves and adopts the findings, 
conclusions, and recommendations of the 
Magistrate in the Second Partial Report 
and Recommendation insofar as they relate 
to the recommendations numbered (1), (3), 
(4), and (5), above. The court, however, 
does not adopt the Magistrate1s recommen­
dation regarding the plaintiff's dis­
parate impact claims. The court finds 
that the plaintiff has not presented 
evidence sufficient to demonstrate the 
existence of a viable Title VII disparate 
impact claim. The court, therefore, 
grants summary judgment for the defen­
dants and against the plaintiff on the



22a
Title VII disparate impact claim.

The Magistrate has, in his Second 
Partial Report and Recommendation, 
outlined the applicable Title VII 
disparate impact law and its application 
to this particular action. The court 
adopts the Magistrate's analysis with 
some modifications. (Additions are
indicated by passages set off in brackets 
and omissions are set off by ellipsis.)

H. Disparate Impact
A plaintiff seeking to es-

tablish a prima facie case of
employment discrimination on a
disparate impact theory must show
that a facially neutral employment 
practice had a significantly 
discriminatory impact. Once that 
showing has been made by the 
plaintiff, the employer must 
demonstrate that the challenged



23a
employment practice has a manifest 
relationship to the employment in 
question in order to avoid a finding 
of discrimination. If the employer 
demonstrates that the challenged 
employment practice has a manifest 
relationship to the employment, a 
plaintiff may still prevail by 
showing that the employer was using 
the challenged practice as a mere 
pretext for discrimination. 
Connecticut v. Teal. 457 U.S. 440, 
446-447, 102 S.Ct. 2525, 73 L.Ed.2d 
130 (1982) discussing Griggs v. Duke 
Power Company. 401 U.S. 424, 91 
S.Ct. 849, 28 L.Ed.2d 158 (1971).

Of necessity, disparate impact 
cases rely heavily upon statistics. 
Typically, the plaintiff identifies 
a particular employment practice, 
e.g., a requirement that an appli-



24a
cant seeking a particular position 
possess a high school diploma or 
pass a certain test (See Griggs, 
supra) or a requirement that an 
applicant be of a certain height or 
weight. (See Dothard v. Rawlinson, 
433 U.S. 321, 97 S.Ct. 2720, 53
L.Ed.2d 786 (1977).) The plaintiff
then attempts to show through a 
statistical analysis that the 
facially neutral practice has the 
effect of eliminating a dispropor­
tionate share of applicants of a 
protected class. Thus, in Dothard, 
supra, Alabama's requirement that 
prison guards be at least 5* 2" and 
weigh at least 120 pounds excluded 
over 41 percent of the female 
population but less than 1 percent 
of the male population. This
statistical evidence was held to



25a
constitute a prima facie case of sex 
discrimination. Id., pages 330- 
331.

1• The Plaintiff's Applica­
tions— Disparate Impact

The plaintiff has not clearly 
identified any particular employment 
practice of the defendant County of 
Orange which had an adverse impact 
upon members of his protected class, 
black males or black males over age 
40. The plaintiff's points and 
authorities attempt to identify 
certain practices including "(l) 
discounting education over expe­
rience; (2) the underrepresentation 
of blacks in their workforce; and 
(3) not permitting testing for those 
persons of a protected class who 
meet minimum qualifications". 
(Plaintiff's Answer to Defendants' 
Motion, etc., filed May 21, 1985,



26a
pages 23-24.) In oral argument, tne 
plaintiff identified [an additional]
. . . challenged employment practice 
... the use of subjective judgment 
by persons who screen applications 
to determine if a given applicant 
meets minimum stated qualifications. 
[See Transcript of June 4, 1985, of 
Oral Argument on Summary Judgment 
Motion, pages 28-29.]

At least one of these alleged 
"employment practices" is not a 
practice at all in the sense that 
the term is used in Griggs. supra. 
Underrepresentation of blacks is a 
possible result of an employment 
practice, not an employment practice 
itself. The plaintiff has only 
vaguely identified the parameters of 
the other three challenged employ­
ment practices.



27a
The plaintiff has offered 

virtually no statistical evidence 
designed to show that the use of the 
identified employment practices 
adversely affect black males or 
black males over age 40. Thus, the 
plaintiff has not presented any 
statistical evidence showing or 
tending to show that a challenged 
employment practice has a dispropor­
tionate impact upon black male job 
applicants. The only vaguely
pertinent statistic which the 
plaintiff has offered is the fact 
that the Orange County Superior 
Court employed no black males as of 
April, 1984. (Plaintiff's Answer to 
Defendants' Motion, etc., filed May 
21, 1985, Exhibit 11, p. 247.) This 
statistic does not, in and of 
itself, demonstrate that an iden-



28a -
tified employment practice dis­
criminates against black males. 

(Second Partial Report and Recommendation 
of United States Magistrate, filed August 
13, 1985, page 15, line 25, through page
18, line 2.)

Pursuant to Rule 56(c), F.R.Civ.P., 
a court shall grant summary judgment "if 
the pleadings, depositions, answers to 
interrogatories, and admissions on file, 
together with the affidavits, if any, 
show that there is no genuine issue as to 
any material fact and that the moving 
party is entitled to a judgment as a 
matter of law". In this Circuit, it is 
the law that when

"it is clear from the evidence 
presented at the hearing on the 
motion for summary judgment 
that the movant would be 
entitled to a directed verdict



29a
were the case to proceed to 
trial, the motion may properly 
be granted, unless the opposing 
party is able to offer adequate 
reasons why he is presently 
unable to present facts 
justifying his opposition."

Neely v. St. Paul Fire And Marine 
Insurance Company, 584 F.2d 341, 344
(9th Cir. 1978) ; Ruffin v. County Of Los 
Angeles. 607 F.2d 1276, 1280 (9th Cir.
1979), cert, denied. 455 U.S. 951 (1980).

It is apparent that, if the evidence 
presented in the present case at the 
summary judgment motion were considered 
at trial by the court at a defendants' 
motion for a directed verdict, the 
defendants would be entitled to a 
directed verdict. The plaintiff has 
identified three employment practices 
which might arguably have an adverse



30a
impact upon his protected class, black 
males, or black males over age 40:

(1) discounting education over 
experience;

(2) not permitting testing for 
those persons of a protected 
class who meet minimum qualifi- 
cations; and

(3) the use of subjective judgment 
by those who screen job 
applications to determine if a 
job applicant meets minimum 
stated qualification.

These challenged employment practices are 
only vaguely described. Nowhere does the 
plaintiff define the exact parameters of 
the challenged practice. Moreover, the 
plaintiff has not offered any statistics
which show or tend to show that the
challenged employment practices dis-
proportionately exclude black male job



31a
applicants.

Thus, the plaintiff did not attempt 
to show at the summary judgment hearing 
how many applicants applied for each of 
the jobs in issue in this case, how many 
of these applicants were black males, how 
many of the black male applicants were 
exclude by the challenged employment 
practice, and whether the number of black 
males excluded from the applicant pool by 
the use of the challenged employment 
practice was disproportionate to the 
number of other applicants excluded by 
use of the employment practice. The 
plaintiff must be able to make a showing 
of this type in order to demonstrate the 
existence of a prima facie case that a 
"facially neutral employment practice had 
a significantly discriminatory impact". 
Connecticut v. Teal, supra, page 446.



32a
The court notes that the pro se 

plaintiff is a law school graduate who 
may fairly be expected to be able to read 
and to understand the leading cases 
concerning Title VII disparate treatment 
actions. He may also fairly be expected 
to understand the nature of the evidence 
necessary to establish the existence of a 
prima facie case. The plaintiff was not 
able to demonstrate the existence of a 
prima facie case at the summary judgment 
motion. He has not offered any reason 
why he cannot present facts to the court 
demonstrating the existence of a prima 
facie case.

There does not appear to be any 
genuine issue as to any material fact in 
the present action. The defendants are 
entitled to judgment as a matter of law 
on all of the plaintiff's Title VII 
disparate impact claims.



33a
ORDER

For the reasons stated by the 
Magistrate in those portions of his 
recommendations which the court has 
specifically adopted in this Memorandum 
and Order and for the reasons stated in 
this Memorandum and Order,

IT IS HEREBY ORDERED that summary 
judgment be entered in favor of the 
defendants and against the plaintiff as 
to all claims for relief stated in the 
First Amended Complaint.

DATED: this 31 day of October, 1985.

s/s_________________
IRVING HILL
United States District Judge



34a
UNITED STATES DISTRICT COURT 
CENTRAL DISTRICT OF CALIFORNIA

No. CV 83-6823—IH(Me) 
Filed August 31 1985

KENNETH ROBINSON,
Plaintiff,

vs.
MICHAEL ADAMS, DIANNE R. COE, GEORGIA
McCa r t h y, martin moshier, lura sco vil,
JOAN WILSON, BEN AVILLAR, MARIA 
BASTANCHURY, COUNTY OF ORANGE, A 
MUNICIPAL CALIFORNIA CORPORATION, 
SUPERIOR COURT OF ORANGE, AND L. B. 
UTTER,

Defendants

SECOND PARTIAL REPORT AND RECOMMENDATION 
OF UNITED STATES MAGISTRATE

This Report and Recommendation is 
filed pursuant to the provisions of 28 
U.S.C. § 636(b)(1)(B) and General Order
No. 194 of the United States District 
Court for the Central District of
California



35a
The pro se plaintiff has filed an 

employment discrimination complaint 
alleging that the defendants discrimi­
nated against the plaintiff by failing to 
hire the plaintiff for certain jobs with 
the County of Orange because of the 
plaintiff's race. The court has previ­
ously granted partial summary judgment 
against the plaintiff in favor of the 
defendants on all of the plaintiff's 
claims asserted under 42 U.S.C. § 1981. 
(See Partial Report and Recommendation of 
United States Magistrate, filed February 
14, 1985.) The defendants have now moved 
for summary judgment on all of the 
plaintiff's claims asserted under Title 
VII of the Civil Rights Act of 1964. (42 
U.S.C. § 20Ge[sic]-2000e~17.) The 
Magistrate recommends that the court 
grant partial summary judgment in favor 
of the defendants against the plaintiff



36a
on the plaintiff's Title VII disparate 
treatment claims, and further recommends 
that the court deny summary judgment on 
the plaintiff's Title VII disparate 
impact claims.

The plaintiff is a black male over 
age 40 who applied for four separate jobs 
with the County of Orange in the summer 
of 1983. The defendants are the County 
of Orange, the Superior Court of the 
County of Orange (the employer for one of 
the positions, Probate Examiner I) , and 
certain individual employees of the 
County of Orange who processed the 
plaintiff's various job applications, who 
denied the plaintiff's administrative 
complaints concerning alleged employment 
discrimination, or who were employed in 
the County of Orange affirmative action
program.



37a
The plaintiff's First Amended/Sup- 

plemental Complaint (filed August 21, 
1984) invokes the jurisdiction of the 
court pursuant to 28 U.S.C. §§ 1337 and 
1343(4) (sic) and pursuant to 42 U.S.C.
§ 2000e-5(f) (3) . The First Amended 
Complaint states claims for relief under 
42 U.S.C. § 1981 and under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2000e-17. The First Amended 
Complaint alleges that the plaintiff 
applied for four separate jobs with the 
County of Orange - Administrative Analyst
III, Employment Services Representative
IV, Investigator-Social Services, and 
Probate examiner I, that the plaintiff 
met the minimum gualifications for the 
jobs, but that the plaintiff was denied 
the jobs because of his race. As relief, 
the complaint requests back pay, punitive 
damages totalling one million dollars,



38a
attorney's fees, and injunctive relief. 
The defendants' answer denies any acts of 
discrimination and asserts various 
affirmative defenses.

DISCUSSION
A. Summary Judgment
A court must enter summary judgment 

in favor of a party if the pleadings and 
the evidence submitted in support of the 
motion "show that there is no genuine 
issue as to any material fact and that 
the moving party is entitled to a 
judgment as a matter of law". (Rule 
56(c), F.R.Civ.P.) If the court is 
unable to render summary judgment upon 
the whole case the court may enter a 
partial summary judgment or enter an 
order "specifying the facts that appear 
without substantial controversy...". 
Rule 56(d), F.R.Civ.P.



3 9a
B. Title VII Of The Civil Rights 

Act Of 1964
The plaintiff's complaint alleges 

that the County of Orange failed to hire 
him in the four positions for which he 
applied because he is black. He further 
alleges that the County hired persons 
less qualified than the plaintiff in 
other positions for which the plaintiff 
applied. Title VII of the Civil Rights 
Act forbids discriminatory employment 
practices:

It shall be an unlawful employment
practice for an employer --
(1) to fail or refuse to hire ... 

any individual . . . because of 
such individual's race, color, 
religion, sex, or national 
origin; or

(2) to limit, segregate, or 
classify his employees or 
applicants for employment in



40a
any way which would deprive or 
tend to deprive any individual 
of employment opportunities ... 
because of such individual's 
race, color, religion, sex or 
national origin.

42 U.S.C. § 2000e-2(a).
A claim under Title VII of employ­

ment discrimination because of race may 
arise in two different ways. An in­
dividual may allege that he has been 
subjected to 'disparate treatment' 
because of his race, or that he has been 
the victim of a facially neutral practice 
having a 'disparate impact' on his racial 
group." Furnco Construction Corporation 
v. Waters. 438 U.S. 567, 582, 98 S.Ct. 
2943, 57 L . E d .2d 957 (1978) (Marshall,
J., concurring in part). The plaintiff 
has attempted to prosecute his lawsuit 
using both disparate treatment and



41a
disparate impact theories.

C. Disparate Treatment
A Title VII claim prosecuted under a 

disparate treatment theory requires proof 
of intentional employment discrimination. 
Gay v. Waiters1 and Dairy Lunchmen1s 
Union, Local No. 30. 694 F.2d 531, 537
(9th Cir. 1982). A plaintiff establishes 
a prima facie case of employment 
discrimination on account of race through 
disparate treatment by showing:

(1) that the plaintiff belongs to a 
racial minority;

(2) that the plaintiff applied and 
was qualified for a job for 
which the employer was seeking 
applicants;

(3) that, despite the plaintiff's 
qualifications, the plaintiff 
was rejected; and 
that after the plaintiff's(4)



42a
rejection, the position 
remained open and the employer 
continued to seek applicants 
from persons of the plaintiff's 
qualifications.

McDonnell Douglas Corp. v. Green. 411 
U.S. 729, 802, 93 S.Ct. 1817, 36 L.Ed.2d 
668 (1973). A plaintiff may also 
establish a prima facie case of inten­
tional discrimination by other modes of 
proof which support an inference of 
discrimination. Gay supra, p. 538.

A court may grant summary judgment 
against a plaintiff claiming disparate 
treatment under Title VII when the 
plaintiff's employment application was 
rejected because the application did not 
contain information establishing that the 
plaintiff possessed the specific qualifi­
cations sought by the employer in a job 
announcement. Tagupa v. Board Of



43a
Directors, 633 F.2d 1309, 1311-1312 (9th 
Cir. 1980). A job applicant who files an 
application which does not establish that 
he possesses the required qualifications 
is deemed to have failed to apply for the 
position within the meaning of the 
guidelines laid down in McDonnell Douglas 
v. Green. Tagupa. supra. p. 1311.

The standard of review of disparate 
treatment claims and of claims of 
intentional job discrimination under 42 
U.S.C. § 1981 are very similar. The 
following analysis of the plaintiff's 
disparate treatment claims closely tracks 
the analysis of the plaintiff's § 1981 
claims in the Partial Report and Recom­
mendation of United States Magistrate, 
filed February 14, 1985.



44a
D. Administrative Analyst III —  

Disparate Treatment
1. Job Prerequisites 

The job announcement for the 
position of Administrative Analyst III 
required applicants to possess three 
years of experience. The announcement 
listed as a prerequisite "[t]hree years 
of experience that requires the applica­
tion of the knowledges (sic) and abili­
ties listed as minimum qualifications; 
education can be substituted for up to 
one year at the rate of three semester 
units for one month of experience...". 
(Defendants' Index of Exhibits (filed 
August 17, 1984) hereinafter cited as
"Defendants' Index", Exhibit 2, p. 14). 
The knowledge and abilities generally 
listed as qualifications included 
administrative skills such as those 
needed to gather information, prepare 
reports, administer and evaluate pro­



45a
grams, prepare budgets, develop plans, 
prepare organizational charts, etc. Id. . 
pages 14-15. In context, it is clear 
that there was a requirement that job 
applicants have three years of ad­
ministrative experience or two years of 
administrative experience plus an 
educational substitute equivalent to one 
year of experience.

2• Plaintiff's Application 
The plaintiff's application lists 

two jobs which could arguably demonstrate 
administrative experience, a position as 
an assistant registrar at a college for 
which the plaintiff worked two years and 
nine months, and a position as a manager 
for an export/import company. The 
plaintiff's application did not state 
whether these former jobs were full or 
part time and did not state the number of 
hours worked per week at each job. Id.,



46a
Exhibit 1, p. 5.

3. The Selection Process 
Defendant Joan Wilson, who is 

employed as a Senior Administrative 
Analyst for the County of Orange, 
processed the applications for the 
Administrative Analyst III job. Defen­
dant Wilson screened the plaintiff's 
application and rejected it because the 
application contained insufficient 
information to establish that the 
plaintiff met the minimum requirements.
(Defendants' Memorandum of Points and
Authorities in Support of Motion for
Summary Judgment, filed August 17, 1984,
Declaration of Joan Wilson, paragraph 5). 
In particular, the plaintiff's applica­
tion failed to state whether his jobs as 
assistant registrar and manager of an 
export/import company were full-time or 
part-time jobs and failed to state the



47a
hours per week. This made it impossible 
to determine whether the plaintiff had 
the minimum required three years expe­
rience (Id., paragraph 7).

The plaintiff has offered no
evidence which shows or tends to show
that his application demonstrated that
the plaintiff met the minimum qualifica­
tion standard.

Clarence Ray, a white male applicant 
for the Administrative Analyst III 
position, also failed explicitly to state 
whether his previous work experience was 
in full-time or part-time positions and 
failed to state the hours he worked per 
week in previous jobs. (Plaintiff's 
Answer to Defendants' Motion For Summary 
Judgment, etc., filed May 21, 1985,
Exhibit 1, p. 3 2.) Clarence Ray's
application was apparently not rejected 
at the screening process (Id., p. 8).



48a
Joan Wilson was not aware of the 

plaintiff's race during the screening 
phase. Information regarding the
plaintiff's race, age, and sex was 
available on a tear-apart attachment to 
the plaintiff's employment application. 
Joan Wilson did not review this informa­
tion on any application during the 
screening phase in which the petitioner's 
application was rejected. (Defendants' 
Memorandum, etc., filed August 17, 1984,
Declaration of Joan Wilson, paragraphs 3 
and 4.)

4. Magistrate's Discussion 
The defendants have demonstrated 

that the plaintiff's employment applica­
tion for the position of Administrative 
Analyst III did not contain information 
establishing that the plaintiff possessed 
the minimum qualifications sought by the 
employer in the job announcement. The



49a
plaintiff has offered no evidence which 
shows or tends to show otherwise. Under 
the rule of Tagupa. supra. the plaintiff 
is deemed to have failed to have applied 
for the position within the meaning of 
McDonnell v. Green test.

The plaintiff cannot sustain a claim 
of disparate treatment based upon the 
fact that his application was rejected 
while Clarence Ray's application was not. 
The only evidence before the court with 
respect to the screening process con­
ducted by Joan Wilson is that she was not 
aware of the plaintiff's race during the 
screening process. It is impossible for 
a person screening employment applica­
tions intentionally to discriminate 
against a job applicant because of the 
applicant's race, if the screener is not 
aware of the applicant's race.



50a
The plaintiff contends in his Answer 

to Defendants' Motion For Summary 
Judgment, filed May 21, 1985 (a document 
apparently intended to fulfill the 
requirement of a Statement of Genuine
Issues under Local Rule 7.14.2) that
defendant Wilson knew or should have
known of plaintiff's race or sex. (See
Answer to Defendants' Motion, etc. , pages
1-2.) The plaintiff has not supplied any 
evidence in support of this assertion. 
The plaintiff's assertion does not rebut 
the evidence offered by the defendants in 
the Declaration of Joan Wilson. The 
assertion of plaintiff does not create a 
triable issue of fact.

The court should grant summary 
judgment for the defendants as to the 
plaintiff's Title VII disparate treatment 
claim relating to the position of 
Administrative Analyst III.



51a
E. Employment Services Representa­

tive IV— Disparate Treatment
1. Job Prerequisites 

The job announcement for the 
position of Employment Services Represen­
tative IV provides for the following 
prerequisites: "Education/Experience:
One year of experience performing the 
duties of an Employment Services Repre­
sentative II or six months as an Employ­
ment Services Representative III or 
equivalent experience that demonstrates 
possession of the knowledges (sic) and 
abilities listed above" (Defendants' 
Index, Exhibit i, p. 48) . The knowledge 
and abilities listed in the announcement 
generally describe skills needed to 
fulfill the role of a vocational coun­
selor. The announcement specifically 
requires knowledge of the laws, regula­
tions, and administrative guidelines
which affect the Comprehensive Employment



52a
and Training Act (CETA) and other special 
employment programs. (Id., pps. 47-48.)

2. Plaintiff's Application 
The plaintiff's application for the

position of Employment Services Represen­
tative IV states that the plaintiff 
worked as a full-time assistant registrar 
at a college. The plaintiff stated that 
part of this job involved academic 
counseling of students. The plaintiff 
also stated that, as part of a course in 
vocational counseling, he had counseled 
various individuals to help them identify 
their vocational interests. (Defendants' 
Index, Exhibit 7, p. 43.) The plaintiff 
also stated that he had participated in a 
CETA program and studied the law regard­
ing affirmative action and employment 
discrimination. (Id., p. 44.)

3. The Selection Process
Defendant Georgia McCarthy, a



53a
personnel specialist with the County of 
Orange, processed the plaintiff's 
application for the Employment Services 
Representative IV job. Defendant
McCarthy screened the plaintiff's 
application and rejected it because the 
application did not show that the 
plaintiff had the required experience and 
because the information in the applica­
tion did not contain enough specific 
information which demonstrated that the 
plaintiff possessed the required ex­
perience (Defendants' Memorandum, 
Declaration of Georgia McCarthy, para­
graph 5) .

In an answer to an interrogatory, 
the defendants stated that the plain­
tiff's application was rejected because 
the plaintiff's description of counseling 
activity in his job as assistant regis­
trar did not state the amount of time



54a
allotted to this activity. The activity 
was not "vocational" counseling. The 
plaintiff's vocational counseling 
activity undertaken as part of a course 
reguirement did not constitute qualifying 
experience because the job requirements 
did not contain an educational substitute 
for experience. The fact that the 
plaintiff worked in a CETA program did 
not constitute experience working with 
CETA and federal and state regulations 
pertaining to employment. The plain­
tiff's application failed to state the 
percentages of his time spent on employee 
training and counseling. The application 
thus contained insufficient information 
to evaluate the plaintiff's qualifica­
tions (Defendants' Index, Exhibit pps. 
23-24.)

The plaintiff has offered no 
evidence which shows or tends to show



- 55a
that his application contained the
required experience. The plaintiff
claims that the defendants hired an
applicant less qualified than the
plaintiff. (Plaintiff 1 s Answer to
Defendants 1 Motion, etc., filed May 21,
1985, p. 3.) He has apparently offered
no evidence in support of that con-
elusion.

4 Macjistrate1 s Discussion
The plaintiff's application for 

Employment Services Representative IV did 
not contain information which established 
that the plaintiff had one year of 
experience performing the duties of 
Employment Services Representative II or 
six months of experience as an Employment 
Services Representative III or some other 
equivalent experience. The plaintiff 
apparently does not contend otherwise.

The evidence demonstrates that the



56a
plaintiff's employment application did
not contain information demonstrating
that the plaintiff possessed the minimum
qualifications sought by the employer.
The plaintiff is deemed to have failed to
apply for the position within the meaning
of the McDonnell Douglas v. Green test.
Tagupa. supra. The court should grant
summary judgment for the defendants as to
the Title VII disparate treatment claim
relating to the position of Employment
Services Representative IV.

F. Investigator, Social Services—
Disparate Treatment
1. Job Prerequisites 

The job announcement for the 
position of Investigator, Social Services 
provides for the following prerequisites: 

One year of experience as an 
Investigator Trainee, SSA, with 
Orange County, or one year expe­
rience at the fully qualified



57a
working level as a welfare fraud 
investigator in California welfare 
department, or two years of criminal 
investigative work which demon­
strates the application or develop­
ment of the required knowledges and 
abilities listed above as minimum 
qualifications.

(Defendants' Index, Exhibit 13, p. 71).
2 • Plaintiff's Application 

The plaintiff's application for the 
position of Investigator, Social Ser­
vices, contains no information indicating 
that the plaintiff had any work ex­
perience as a criminal investigator or 
investigator trainee. The application 
states that the plaintiff took a law 
school class entitled "Investigative 
Techniques". The application also states 
that the plaintiff has a law degree, a 
J.D. from Western State University.



58a
(Defendants' Index, Exhibit 12, pages 59 
and 65.)

3. The Selection Process 
Defendant Diane Coe, a personnel 

specialist with the County of Orange, 
processed the plaintiff's application for 
the position of Investigator, Social 
Services. Defendant Coe screened the 
plaintiff's application and rejected it 
because the application did not demon­
strate that the plaintiff possessed the 
reguired work experience as a criminal 
investigator. (Defendants' Memorandum, 
Declaration of Diane Coe, paragraphs 5 
and 7.) The plaintiff has offered no 
evidence showing or tending to show that 
his application demonstrated that he 
possessed the required criminal inves­
tigative experience.



59a
4• Magistrate's Discussion

G. Probate Examiner I— Disparate 
Treatment

The plaintiff's application for 
Investigator, Social Services, did not 
contain information which established 
that the plaintiff had the required 
experience as a criminal investigator. 
The only evidence before the court is 
that the application was rejected because 
the plaintiff did not qualify for the 
position. The plaintiff is deemed to 
have failed to apply for the position 
within the meaning of the McDonnell 
Douglas v. Green, test. Tagupa, supra. 
The court should grant summary judgment 
for the defendants as to the Title VII 
disparate treatment claim relating to the 
position of Investigator, Social 
Services.

1. Job Prerequisites
The job announcement for the



60a
position of Probate examiner I sought 
candidates with some experience and/or 
education relating to the functions, 
purposes and procedures of probate law.

2. Plaintiff's Application 
The plaintiff's application for the 

position of Probate Examiner I states 
that the plaintiff had completed law 
school and attained a J.D. degree. While 
in law school, the plaintiff had taken a 
course in Wills and a course in Civil 
Procedure. (Defendants' Index, Exhibit 
17, pages 77-78.)

3• The Selection Process 
Defendant Lura Scoville is employed 

as a Probate Coordinator with the Orange 
County Superior Court. She processed 97 
applications for the position of Probate 
Examiner I, including the plaintiff's 
application. Defendant Scoville screened 
all the applications and rejected the



61a
plaintiff's application at the initial 
screening phase because he was not deemed 
to be one of the most qualified ap­
plicants. She found that the plaintiff 
was not one of the most qualified 
applicants because the plaintiff's 
application did not contain any informa­
tion which showed that the plaintiff had 
any previous job experience or any other 
experience in the probate field. The 
plaintiff's courses at law school did not 
reflect actual procedural practicing of 
the items of law and administration re­
quired before the Probate Court. Other 
job candidates had law degrees and 
relevant experience. The plaintiff, 
therefore, was not one of the most 
qualified applicants. (Defendants'
Memorandum, Declaration of Lura Scoville, 
paragraphs 4 and 6.)

Defendant Scoville states in her



62a
declaration that she was not aware of the 
plaintiff's race at any time during the 
screening process. "The applications 
originally submitted to personnel by 
plaintiff may have contained a separate 
sheet indicating background information 
such as race, that sheet was detached for 
internal record keeping purposes and was 
not included in the application this 
declarant [Scoville] reviewed." (Id. , 
paragraph 7.)

The plaintiff contends that defen­
dant Scoville knew or should have known 
of the plaintiff's race and sex. 
(Plaintiff's Answer to Defendants' 
Motion, filed May 21, 1985, p. 4.) He
has offered no evidence in support of 
this assertion.

4. Magistrate's Discussion
The only evidence contained in the 

documents presented to the court in



63a
support of and in opposition to the 
Defendants' Motion For Summary Judgment 
is the testimony of defendant Scoville 
that she was not aware of the plaintiff's 
race at any time during the screening 
process and that the information in the 
application concerning the plaintiff's 
race was not included in the application 
of the plaintiff which she reviewed. It 
is impossible for a person screening 
employment applications intentionally to 
discriminate against a job applicant 
because of the applicant's race, if the 
screener is not aware of the applicant's 
race.

Nothing that the plaintiff has
presented to the court rebuts the
declaration of defendant Scoville. The
plaintiff's bare assertion that defendant 
Scoville knew of his race at the time she 
screened his application does not create



64a
a triable issue of fact.

The court should grant summary 
judgment for the defendants as to the 
plaintiff's Title VII disparate treatment 
claim relating to the position of Probate 
Examiner I. In summary, the court should 
grant summary judgment for the defendants 
on all of the plaintiff's Title VII 
disparate treatment claims.

H. Disparate Impact
A plaintiff seeking to establish a 

prima facie case of employment dis­
crimination on a disparate impact theory 
must show that a facially neutral 
employment practice had a significantly 
discriminatory impact. Once that showing 
has been made by the plaintiff, the 
employer must demonstrate that the 
challenged employment practice has a 
manifest relationship to the employment 
in question in order to avoid a finding



65a
of discrimination. If the employer 
demonstrates that the challenged employ­
ment practice has a manifest relationship 
to the employment, a plaintiff may still 
prevail by showing that the employer was 
using the challenged practice as a mere 
pretext for discrimination. Connecticut
V.  Teal. 457 U.S. 440, 446-447, 102 S.Ct. 
2525, 73 L.Ed.2d 130 (1982) discussing 
Griggs v. Duke Power Company. 401 U.S. 
424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Of necessity, disparate impact cases 
rely heavily upon statistics. Typically, 
the plaintiff identifies a particular 
employment practice, e.g., a requirement 
that an applicant seeking a particular 
position possess a high school diploma or 
pass a certain test (See Griggs, supra) 
or a requirement that an applicant be of 
a certain height or weight. (See Dothard 
v. Rawlinson. 433 U.S. 321, 97 S.Ct.



66a
2720, 53 L. Ed. 2d 786 (1977).) The
plaintiff then attempts to show through a 
statistical analysis that the facially 
neutral practice has the effect of 
eliminating a disproportionate share of 
applicants of a protected class. Thus, 
in Dothard, supra. Alabama's reguirement 
that prison guards be at least 5'2" and 
weigh at least 12 0 pounds excluded over 
41 percent of the female population but 
less than 1 percent of the male popula­
tion. This statistical evidence was held 
to constitute a prima facie case of sex 
discrimination. Id., pages 330-331.

I. The Plaintiff's Applications—  
Disparate Impact

The plaintiff has not clearly 
identified any particular employment 
practice of the defendant County of 
Orange which had an adverse impact upon 
members of his protected class, black 
males or black males over age 40. The



67a
plaintiff's points and authorities 
attempt to identify certain practices 
including "(1) discounting education over 
experience; (2) the underrepresentation 
of blacks in their workforce; and (3) not 
permitting testing for those persons of 
a protected class who meet minimum 
qualifications". (Plaintiff's Answer to 
Defendants' Motion, etc., filed May 21, 
1985, pages 23-24.) In oral argument, 
the plaintiff identified the challenged 
employment practice as the use of 
subjective judgment by persons who screen 
applications to determine if a given 
applicant meets minimum stated qualifica­
tions .

At least one of these alleged 
"employment practices" is not a practice 
at all in the sense that the term is used 
in Griggs, supra. Underrepresentation of 
blacks is a possible result of an



68a -
employment practice, not an employment 
practice itself. The plaintiff has only 
vaguely identified the parameters of the 
other three challenged employment 
practices.

The plaintiff has offered virtually no 
statistical evidence designed to show 
that the use of the identified employment 
practices adversely affect black males or 
black males over age 40. Thus, the 
plaintiff has not presented any statisti­
cal evidence showing or tending to show 
that a challenged employment practice has 
a disproportionate impact upon black male 
job applicants. The only vaguely 
pertinent statistic which the plaintiff 
has offered is the fact that the Orange 
County Superior Court employed no black 
males as of April, 1984. (Plaintiff's 
Answer to Defendants' Motion, etc, filed 
May 21, 1985, Exhibit 11, p. 247.) This



69a
statistic does not, in and of itself, 
demonstrate that an identified employment 
practice discriminates against black 
males.

The defendants have not presented 
any evidence which conclusively demon­
strates that the plaintiff's specified 
employment practices do not have an 
adverse impact on black males. The 
defendants have merely proferred evidence 
which shows or tends to show that the 
County of Orange employs a larger 
percentage of blacks than the percentage 
of blacks in the Orange County population 
or work force. (See Defendants' 
Statement of Uncontroverted Facts and 
Conclusions of Law, lodged April 29, 
1985, pages 5-8.) This statistical 
presentation does not conclusively rebut 
the plaintiff's vague claims of employ­
ment practices having an adverse impact



70a
upon black males.

Upon analysis, the defendants have
not demonstrated that there is "no
genuine issue of material fact" presented 
by the plaintiff in this Title VII
adverse impact claim. Rule 56(c), 
F.R.Civ.P. An issue of fact exists as to 
whether the defendants maintained 
employment practices which had an adverse 
impact upon black males or black males 
over 40 years old.

The Magistrate recognizes that it 
appears, based upon the presentations of 
the parties at this time, that the
plaintiff will not be able to present a 
prima facie adverse impact case at trial. 
The defendants have not, however, 
presented any authority to the court 
which supports the proposition that a 
plaintiff may be compelled to demonstrate 
the existence of a prima facie case in



71a
response to a summary judgment motion.

The Defendants' Motion For Summary 
judgment should be denied as to the 
plaintiff's Title VII adverse impact 
claims. The court must thus consider the 
defendants' motion for summary adjudica­
tion of certain issues as to certain 
defendants pursuant to Rule 56(d), 
F.R.Civ.P.

J. Rule 56(d), F.R.Civ.P.
If a court denies a motion for 

summary judgment upon the whole case, it 
may make an order specifying "the facts 
that appear without substantial con­
troversy". Rule 56(d), F.R.Civ.P. The 
defendants here request an order declar­
ing that the plaintiff may not recover 
punitive damages from any party, that the 
plaintiff may not obtain back pay from 
the individual defendants who are County 
of Orange employees, that defendants



72a
Bastanchury and Avillar be dismissed 
entirely, and that defendants Scoville, 
Wilson, Avillar, and Bastanchury be 
dismissed as immune.

K. Liability For Back Pay And 
Punitive Damages

In his First Amended Complaint the 
plaintiff requests the court for certain 
injunctive relief, back pay, punitive 
damages, and the costs of the suit. The 
Title VII cause of action is created by 
statute. The statute makes back pay 
awards payable only by employers. 42
U.S.C. § 2000e-5(g). The individual
defendants in this action are not 
employers. They are all employees of 
defendant County of Orange. The in­
dividual defendants cannot be held liable 
for any back pay awards. Padwav v.
Palches, 665 F.2d 965, 968 (9th Cir. 
1982); Clanton v. Orleans Parish School 
Board. 649 F.2d 1084, 1099 (5th Cir.



73a
1981) . A back pay award may only be 
assessed against the employer defendant, 
the County of Orange. In the light of 
this ruling, the defendants' contention 
that certain defendants are entitled to 
official immunity need not be considered.

Punitive damages may not be assessed 
against any party in a Title VII action. 
Padwav. supra. p. 9 68. That remedy was 
not created by statute. Id.

The court should therefore enter an 
order pursuant to Rule 56(d), F.R.Civ.P., 
dismissing all punitive damages claims as 
against all defendants and all back pay 
claims as against all individual defen­
dants .

L. Defendants Bastanchurv And 
Avillar

The defendants Bastanchury and 
Avillar have each filed declarations 
stating that neither was ever involved in 
any way in the handling, review, or



74a
decision-making process concerning any of 
the plaintiff's job applications to the 
County of Orange or the Orange County 
Superior court. (Defendants' Memorandum 
of Points and Authorities, filed April 
29, 1985, Declarations of Ben Avillar and 
Maria Bastanchury.) The plaintiff has 
not rebutted these declarations. he 
appears to claim that defendant Avillar 
should be responsible because Avillar 
held the title of Affirmative Action 
Officer for the County of Orange during 
the period of the plaintiff's employment 
applications. The plaintiff's theory as 
to defendant Bastanchury is that she held 
a position which supervised the Affirma­
tive Action Coordinator. (Plaintiff's 
Answer to Defendants' Motion, filed may 
21, 1985, pages 24-26.)

Defendants Bastanchury and Avillar 
should be dismissed. Their declarations



75a
unequivocally establish that they each 
had no involvement with the plaintiff's 
case.

CONCLUSION
In the light of the foregoing, the 

magistrate recommends that the court:
(1) Grant partial summary judgment 

for the defendants dismissing 
all of the plaintiff's Title 
VII disparate treatment claims 
as against all defendants;

(2) Deny summary judgment for the 
defendants on the plaintiff's 
disparate impact claims;

(3) Dismiss all punitive damage 
claims as against all defen­
dants ;

(4) Dismiss all back pay claims as 
against all defendants other 
than the defendant County of 
Orange; and



76a
(5) Dismiss the complaint entirely 

as against defendants Bas- 
tanchury and Avillar.

The action should continue as to the 
plaintiff's Title VII adverse impact 
claims seeking back pay as against 
defendant County of Orange and injunctive 
relief against all defendants other than 
Bastanchury and Avillar.

DATED: This 13th day of August,
1985.

____s/s James W. McMahon
JAMES W. MCMAHON 
United States Magistrate



77a
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KENNETH ROBINSON, ) No.
) CV 83-6823-IH(Me) 

Plaintiff, ) Entered Mar 21 1985 
)vs. ) PARTIAL SUMMARY
) JUDGMENT
)MICHAEL ADAMS, )

et al., )
Defendants. )

_______________________ )

Pursuant to the order of the court 
adopting the findings, conclusions, and 
recommendations of the United States 
Magistrate,

IT IS ADJUDGED that partial summary 
judgment is granted in favor of the 
defendants as to all of the plaintiff's 
claims of employment discrimination under
42 U.S.C. §1981.



78a
DATED: This 14 th day of March,

1985.
/s/ Irving Hill

IRVING HILL
United States District Judge



79a
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KENNETH ROBINSON, 
Plaintiff,

vs.
MICHAEL ADAMS,

Defendants.

) No.
) CV 83-6823-IH(Me) 
) Filed Mar 14 1985 
)
) ORDER ADOPTING
FINDINGS. CONCLU-
SIGNS. AND RECOM-
MENDATIONS OF
UNITED STATES

) MAGISTRATE

Pursuant to 28 U.S.C. §636(b)(1)(B), 
the court has reviewed the complaint, all 
of the records and files herein, the 
attached Report and Recommendation of the 
United States Magistrate, and the 
Plaintiff's Objections to the Report and 
Recommendation, and concurs with and 
adopts the findings and conclusions of 
the Magistrate.

IT IS HEREBY ORDERED that partial 
summary judgment is granted in favor of 
the defendants as to all of the plain­
tiff's claims of employment discrimina­



80a
tion under 42 U.S.C. §1981.

IT IS FURTHER ORDERED that the Clerk 
shall serve copies of this Order, the 
Magistrate's Report and Recommendation, 
and the Partial Summary Judgment herein 
by United States mail on the plaintiff 
and on counsel for the defendants.

DATED: This 14th day of March, 1985.

/s/ Irving Hill 
IRVING HILL
United States District Judge



81a
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KENNETH ROBINSON, )
)Plaintiff, )
)vs. )
)MICHAEL ADAMS, )

et al., )
)Defendants. ) 

___________ )

No.
CV 83-6823-IH(Me) 
Filed Feb 14 1985
PARTIAL REPORT AND 
RECOMMENDATION OF 
UNITED STATES 
MAGISTRATE

This Report and Recommendation is 
filed pursuant to the provisions of 28 
U.S.C. §636(b) (1) (B) and General Order 
No. 194 of the United States District 
Court for the Central District of 
California.

The pro se plaintiff has filed an 
employment discrimination complaint 
alleging that the defendants discrimi­
nated against the plaintiff by failing to 
hire the plaintiff for certain jobs with 
the County of Orange because of the 
plaintiff's race. The defendants have



82a
now moved for summary judgment on all of 
the plaintiff's claims asserted under 42 
U.S.C. §1981. The plaintiff has also 
moved for summary judgment against the 
defendants on his §1981 claims. The 
Magistrate recommends that the court 
grant partial summary judgment in favor 
of the defendants against the plaintiff 
on the §1981 claims. The Magistrate 
further recommends that the plaintiff's 
motion for summary judgment be denied.

The plaintiff is a black male who 
applied for four separate jobs with the 
County of Orange in the summer of 1983. 
The defendants are the County of Orange,
the Superior Court of the County of
Orange (the employer for one of the
positions, Probate Examiner I), and
certain individual employees of the
County of Orange who processed the
plaintiff's various job applications or



83a
who denied the plaintiff's administrative 
complaints of employment discrimination.

The plaintiff's First Amended/Sup- 
plemental Complaint (filed August 21, 
1984) invokes the jurisdiction of the 
court pursuant to 28 U.S.C. §§1337 and 
1343(4) (sic) and pursuant to 42 U.S.C. 
§2000e-5(f)(3). The First Amended 
Complaint states claims for relief under 
42 U.S.C. §1981 and under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.
§§2000e - 2000e-17. The First Amended
Complaint alleges that the plaintiff 
applied for four separate jobs with the 
County of Orange - Administrative Analyst
III, Employment Services Representative
IV, Investigator-Social Services, and 
Probate Examiner I, that the plaintiff 
met the minimum qualifications for the 
jobs, but that the plaintiff was denied 
the jobs because of his race. As relief,



84a
the complaint requests back pay, punitive 
damages totalling one million dollars, 
attorney's fees, and injunctive relief. 
The defendants' answer denies any acts of 
discrimination and asserts various 
affirmative defenses.

DISCUSSION
The defendants have filed a motion 

for summary judgment directed only to the 
plaintiff's claims under 42 U.S.C. §1981. 
An analysis of these claims is made 
difficult by the failure of the pro se 
plaintiff to file a "Statement of Genuine 
Issues" setting forth all material facts 
as to which he contends that there exists 
a genuine issue to be litigated. See 
Local Rule 7.14.2. The plaintiff has 
filed a document entitled "Statement of 
Genuine Issues" (filed August 24, 1984) 
which is, in reality, a memorandum of 
points and authorities in opposition to



85a
the defendants' motion for summary 
judgment. The plaintiff has failed to 
list the material facts which he claims 
are genuinely at issue in the case and 
failed to present declarations tending to 
rebut the defendants' declarations. On 
this record, the court may grant the 
defendants' motion for summary judgment 
on the ground that the plaintiff has 
failed to present an adequate "Statement 
of Genuine Issues" and that he has failed 
to present any declarations which rebut 
the declarations of the defendants. See 
Local Rule 7.14.3. The Magistrate 
recommends, however, that the court 
consider and grant defendants' motion on 
the merits.

A. Summary Judgment 
A court must enter summary judgment 

in favor of a party if the pleadings and 
the evidence submitted in support of the



86a
motion "show that there is no genuine 
issue as to any material fact and that 
the moving party is entitled to a 
judgment as a matter of law". Rule 
56(c), F.R.Civ.P. If the court is unable 
to render summary judgment upon the whole 
case the court may enter a partial 
summary judgment or enter an order 
"specifying the facts that appear without 
substantial controversy . . . .". Rule
56(d), F.R.Civ.P.

B. 42 U.S.C.§1981
"All persons within the jurisdiction 

of the United States shall have the same 
right in every State and Territory to 
make and enforce contracts . . .  as is 
enjoyed by white citizens . . . . " .  42
U.S.C. §1981. Section 1981 creates a 
remedy for racial discrimination in 
employment which is independent of the 
Title VII remedy. Gay v. Waiters And



87a
Dairy Lunchroen1s Union, Local No. 30, 694 
F. 2d 531, 536 (9th Cir. 1982). A
plaintiff alleging employment discrimina­
tion which violates §1981 must prove 
intentional discrimination. General 
Building Contractors Association. Inc, v.
Pennsylvania, ____ U.S. ____, 102 S.Ct.
3141, 3150, 73 L.Ed.2d 835 (1982).

A plaintiff may prove a prima facie 
case of intentional employment dis­
crimination by proof of the four elements 
articulated in McDonnell Douglas Coro, v. 
Green. 411 U.S. 792, 802, 93 S.Ct. 1817,
36 L.Ed. 2d 668 (1973). Gay, supra. p.
538. These elements are a showing:

(1) that the plaintiff belongs to a 
racial minority;

(2) that the plaintiff applied and 
was qualified for a job for 
which the employer was seeking 
applicants;



88a
(3) that, despite the plaintiff's 

qualifications, the plaintiff 
was rejected; and

(4) that after the plaintiff's 
rejection, the position 
remained open and the employer 
continued to seek applicants 
from persons of the plaintiff's 
qualifications.

McDonnell Douglas v. Green, supra, p. 
802. A plaintiff may also establish a 
prima facie case of intentional dis­
crimination by other modes of proof. 
Gay, supra. p. 538.

A court may grant summary judgment 
against a plaintiff claiming intentional 
employment discrimination under §1981 
when the plaintiff's employment applica­
tion was rejected because the application 
did not contain information establishing 
that the plaintiff possessed the specific



89a
qualifications sought by the employer in 
a job announcement. Tagupa v. Board of 
Directors. 633 F.2d 1309, 1311-1312 (9th 
Cir. 1980). A job applicant who files an 
application which does not establish that 
he possesses the required qualifications 
is deemed to have failed to apply for the 
position within the meaning of the 
guidelines laid down in McDonnell Douglas 
v. Green. Tagupa. supra. p. 1311.

C. Administrative Analyst III 
1• Job Prerequisites

The job announcement for the 
position of Administrative Analyst III 
required applicants to possess three 
years of experience. The announcement 
listed as a prerequisite "[tjhree years 
of experience that requires the applica­
tion of the knowledges (sic) and abili­
ties listed as minimum qualifications; 
education can be substituted for up to



90a
one year at the rate of three semester 
units for one month of experience . . .

(Defendants' Index of Exhibits 
(filed August 17, 1984) hereinafter cited 
as "Defendants' Index", Exhibit 2, p. 
14). The knowledge and abilities
generally listed as qualifications 
included administrative skills such as 
those needed to gather information, 
prepare reports, administer and evaluate 
programs, prepare budgets, develop plans, 
prepare organizational charts, etc. Id. . 
pps. 14-15. In context, it is clear that 
there was a requirement that job appli­
cants have three years of administrative 
experience or two years of administrative 
experience plus an educational substitute 
equivalent to one year's experience.

2. Plaintiff's Application 
The plaintiff's application lists 

two jobs which could arguably demonstrate



91a
administrative experience, a position as 
an assistant registrar at a college for 
which the plaintiff worked two years and 
nine months, and a position as a manager 
for an export/import company. The
plaintiff's application did not state 
whether these former jobs were full or 
part time and did not state the number of 
hours worked per week at each job. Id.. 
Exhibit 1, p. 5.

3. The Selection Process 
Defendant Joan Wilson, who is 

employed as a Senior Administrative 
Analyst for the County of Orange, 
processed the applications for the 
Administrative Analyst III job. Defen­
dant Wilson screened the plaintiff's 
application and rejected it because the 
application contained insufficient 
information to establish that the 
plaintiff met the minimum requirements.



92a
(Defendants' Memorandum of Points and 
Authorities in Support of Motion For 
Summary Judgment, filed August 17, 1984, 
Declaration of Joan Wilson, paragraph 5). 
In particular, the plaintiff's applica­
tion failed to state whether his jobs as 
assistant registrar and manager of an 
export/import company were full-time or 
part-time jobs and failed to state the 
hours per week. This made it impossible 
to determine whether the plaintiff had 
the minimum required three years ex­
perience (Id., paragraph 7).

The p1 a int i f f has offered no
evidence which shows or tends to show
that his application demonstrated that
the plaintiff met the minimum qualifica­
tion standard.

4. Magistrate's Discussion 
The defendants have demonstrated 

that the plaintiff's employment applica­



93a
tion for the position of Administrative 
Analyst III did not contain information 
establishing that the plaintiff possessed 
the minimum qualifications sought by the 
employer in the job announcement. The 
plaintiff has offered no evidence which 
shows or tends to show otherwise. Under 
the rule of Tagupa, supra. the plaintiff 
is deemed to have failed to have applied 
for the position within the meaning of 
the McDonnell Douglas v. Green test. The 
court should grant summary judgment as to 
the §1981 claim relating to the position 
of Administrative Analyst III.



94a
D. Employment Services 

Representative IV
1• Job Prerequisites 

The job announcement for the 
position of Employment Services Represen­
tative IV provides for the following 
prerequisites: "Education/Experience:
One year of experience performing the 
duties of an Employment Services Repre­
sentative II or six months as an Employ­
ment Services Representative III or 
equivalent experience that demonstrates 
possession of the knowledges (sic) and 
abilities listed above" (Defendants' 
Index, Exhibit 8, p. 48). The knowledge 
and abilities listed in the announcement 
generally describe skills needed to 
fulfill the role of a vocational coun­
selor. The announcement specifically 
requires knowledge of the laws, regula­
tions, and administrative guidelines
which affect the Comprehensive Employment



95a
and Training Act (CETA) and other special 
employment programs. (Id., pps. 47-48).

2. Plaintiff's Application 
The plaintiff's application for the 

position of Employment Services Represen­
tative IV states that the plaintiff 
worked as a full-time assistant registrar 
at a college. The plaintiff stated that 
part of this job involved academic 
counseling of students. The plaintiff 
also stated that, as part of a course in 
vocational counseling, he had counseled 
various individuals to help them identify 
their vocational interests. (Defendants' 
Index, Exhibit 7, p. 43.) The plaintiff 
also stated that he had participated in a 
CETA program and studied the law regard­
ing affirmative action and employment 
discrimination. (Id., p. 44).

3. The Selection Process
Defendant Georgia McCarthy, a



96a
personnel specialist with the County of 
Orange, processed the plaintiff's 
application for the Employment Services 
Representative IV job. Defendant
McCarthy screened the plaintiff's 
application and rejected it because the 
application did not show that the 
plaintiff had the required experience and 
because the information in the applica­
tion did not contain enough specific 
information which demonstrated that the 
plaintiff possessed the required ex­
perience (Defendants' Memorandum, 
Declaration of Georgia McCarthy, para­
graph 5) .

In an answer to an interrogatory, 
the defendants stated that the plain­
tiff's application was rejected because 
the plaintiff's description of counseling 
activity in his job as assistant regis­
trar did not state the amount of time



97a
allotted to this activity. The activity 
was not "vocational" counseling. The 
plaintiff's vocational counseling 
activity undertaken as part of a course 
requirement did not constitute qualifying 
experience because the job requirements 
did not contain an educational substitute 
for experience. The fact that the 
plaintiff worked in a CETA program did 
not constitute experience working with 
CETA and federal and state regulations 
pertaining to employment. The plain­
tiff's application failed to state the 
percentages of his time spent on employee 
training and counseling. The application 
thus contained insufficient information 
to evaluate the plaintiff's qualifica­
tions (Defendants' Index, Exhibit pps. 
23-24) .

The plaintiff has offered no 
evidence which shows or tends to show



98a
that his application contained the 
required experience. The plaintiff 
instead contends that the County of 
Orange has a general policy of accepting 
education as a substitute for job 
experience. (Plaintiff's Statement of 
Genuine Issues, filed August 24, 1984, p. 
6 ) .

4. Magistrate's Discussion
The plaintiff's application for 

Employment Services Representative IV did 
not contain information which established 
that the plaintiff had one year of 
experience performing the duties of 
Employment Services Representative II or 
six months of experience as an Employment 
Services Representative III or some other 
equivalent experience. The plaintiff 
apparently does not contend otherwise.

The plaintiff appears to contend 
that the defendant County of Orange has a



99a
blanket policy allowing education to be 
substituted for experience in any job 
offered by the County. (Plaintiff's 
Statement of Genuine Issues, p. 6.) The 
plaintiff further contends that his law 
degree and course work for a master' s 
degree in counseling should be considered 
to be a satisfactory substitute for the 
required one year of job experience. 
(Id. , p. 6) . In support of this conten­
tion, the plaintiff offers an unexplained 
exhibit which may be an excerpt from a 
County or Orange manual. The exhibit 
states as follows:

The selection of candidates for 
interviews and appointments 
will be guided by the following 
criteria:
1. Experience, education and/or 

test results will be considered 
as indicators of ability to



100a
perforin if directly related to 
the knowledges and abilities of 
the pertinent job classifica­
tion.

(Id. , Exhibit F, page 50) . This state­
ment appears to state that experience or 
education will be considered as a 
qualification for employment only if 
relevant to the requirements of a 
particular job. The statement does not 
establish a policy allowing education to 
be a substitute for any required ex­
perience listed in a job announcement.

The evidence demonstrates that the 
plaintiff's employment application did 
not contain information demonstrating 
that the plaintiff possessed the minimum 
qualifications sought by the employer. 
The plaintiff is deemed to have failed to 
apply for the position within the meaning 
of the McDonnell Douglas v. Green test.



101a
Tacnxpa. supra. The court should grant
summary judgment for the defendants as to 
the §1981 claim relating to the position 
of Employment Services Representative IV.

E. Investigator, Social Services 
1. Job Prerequisites 

The job announcement for the 
position of Investigator, Social Services 
provides for the following prerequisites: 

One year of experience as 
an Investigator Trainee, SSA, 
with Orange County, or one year 
experience at the fully 
qualified working level as a 
welfare fraud investigator in 
California welfare department, 
or two years of criminal 
investigative work which 
demonstrates the application or 
development of the required 
knowledges and abilities listed



102a
above as minimum qualifica­
tions .

(Defendants' Index, Exhibit 13, p. 71).
2. Plaintiff's Application 

The plaintiff's application for the 
positions of Investigator, Social 
Services contains no information indicat­
ing that the plaintiff had any work 
experience as a criminal investigator or 
investigator trainee. The application 
states that the plaintiff took a law 
school class entitled "Investigative 
Techniques". The application also states 
that the plaintiff has a law degree, a 
J.D. from Western State University. 
(Defendant's Index, Exhibit 12, p. 59, 
and p. 65.)

3• The Selection Process 
Defendant Diane Coe, a personnel 

specialist with the County of Orange, 
processed the plaintiff's application for



103a
the position of Investigator, Social 
Services. Defendant Coe screened the 
plaintiff’s application and rejected it 
because the application did not demon­
strate that the plaintiff possessed the 
required work experience as a criminal 
investigator. (Defendants' Memorandum 
Declaration of Diane Coe, paragraphs 5 
and 7.) The plaintiff has offered no 
evidence showing or tending to show that 
his application demonstrated that he 
possessed the required criminal inves­
tigative experience.

4. Magistrate's Discussion 
The plaintiff's application for 

Investigator, Social Services, did not 
contain information which established 
that the plaintiff had the required 
experience as a criminal investigator. 
The only evidence before the court is 
that the application was rejected because



104a
the plaintiff did not qualify for the 
position. The plaintiff is deemed to 
have failed to apply for the position 
within the meaning of the McDonnell 
Douglas v. Green, test. Taguna. supra. 
The court should grant summary judgment 
for the defendants as to the §1981 claim 
relating to the position of Investigator, 
Social Services.

The plaintiff argues that he should 
be able to substitute education for the 
required experience. That argument is 
considered and rejected above. It should 
be rejected here also.

F. Probate Examiner I 
1. Job Prerequisites 

The job announcement for the 
position of Probate Examiner I sought 
candidates with some experience and/or 
education relating to the functions, 
purposes, and procedures of probate law.



105a
2. Plaintiff's Application 

The plaintiff's application for the 
position of Probate Examiner I stated 
that the plaintiff had completed law 
school and attained a J.D. degree. While 
in law school, the plaintiff had taken a 
course in Wills and a course in Civil 
Procedure. (Defendants' Index, Exhibit 
17, pages 77-78.)

3. The Selection Process 
Defendant Lura Scoville is employed 

as Probate Coordinator with Orange County 
Superior Court. She processed 97
applications for the position of Probate 
Examiner I, including the plaintiff's 
application. Defendant Scoville screened 
all the applications and rejected the 
plaintiff's application at the initial 
screening phase because he was not deemed 
to be one of the most qualified ap­
plicants. She found that the plaintiff



106a
was not one of the most qualified 
applicants because the plaintiff's 
application did not contain any informa­
tion which showed that the plaintiff had 
any previous job experience or any other 
experience in the probate field. The 
plaintiff's courses at law school did not 
reflect actual procedural practicing of 
the items of law and administration 
required before the Probate Court. Other 
job candidates had law degrees and 
relevant experience. The plaintiff, 
therefore, was not one of the most 
qualified applicants. (Defendants' 
Memorandum, Declaration of Lura Scoville, 
paragraphs 4 and 6.)

Defendant Scoville states in her 
declaration that she was not aware of the 
plaintiff's race at any time during the 
screening process. "The applications 
originally submitted to personnel by



107a
plaintiff may have contained a separate 
sheet indicating background information 
such as race, that sheet was detached for 
internal record keeping purposes and was 
not included in the application this 
declarant [Scoville] reviewed." (Id. , 
paragraph 7.)

The plaintiff contends that a copy 
of the plaintiff's application shows that 
racial information was contained on the 
plaintiff's application. (See Plain­
tiff's Statement of Genuine Issues, p. 9 
and Defendants' Index, Exhibit 17, p. 
80). A copy of the plaintiff's applica­
tion for the position of Probate Examiner 
contains a section entitled "Applicant's 
Statistical Information". This section 
is reproduced in such a manner that the 
page must be rotated 90 degrees to read 
the statistical information. The 
statistical information section clearly



108a
states that the applicant is a black male 
over 40 years of age. (Defendants'
Index, Exhibit 17, p. 80.)

4. Magistrate's Discussion 
The plaintiff must prove intentional 

discrimination to prove employment 
discrimination which is actionable 
conduct violative of 42 U.S.C. §1981. 
General Building Contractors Association. 
Inc. v. Pennsylvania. supra. The only 
evidence contained in the documents 
presented to the court in support of and 
in opposition to the defendants' motion 
for summary judgment is the testimony of 
defendant Scoville that she was not aware 
of the plaintiff's race at any time 
during the screening process and that the 
information in the application concerning 
the plaintiff's race was not included in 
the application of the plaintiff which 
she reviewed. It is impossible for a



109a -
person screening employment applications 
intentionally to discriminate against a 
job applicant because of the applicant's 
race, if the screener is not aware of the 
applicant's race.

Nothing that the plaintiff has 
presented to the court rebuts the 
declaration of defendant Scoville. The 
copies of the plaintiff's application 
which have been produced to the plaintiff 
by defendants in discovery (and which 
have been included as exhibits in this 
motion by both the plaintiff and the 
defendants) contain the statistical 
section which reveals the plaintiff's 
race. The plaintiff contends that this 
proves or tends to prove that the copy of 
the application reviewed by defendant 
Scoville also contained the statistical 
section revealing the plaintiff's race. 
There is no evidence before the court



110a
which justifies that inference. There is 
no evidence before the court which 
reveals anything about the manner in 
which the plaintiff's employment applica­
tion was maintained and reproduced by the 
defendant County of Orange. The plain­
tiff speculates that the copy of the 
application produced in discovery is 
substantially the same as the application 
reviewed by defendant Scoville. That 
speculation is not evidence which rebuts 
the direct evidence contained in the 
declaration of defendant Scoville. The 
plaintiff's speculation does not create a 
triable issue of fact. The court should 
grant summary judgment for the defendants 
as to the §1981 claim relating to the 
position of Probate Examiner I.

G. Plaintiff's Motion for 
Summary Judgment

In the light of the discussion 
above, there is no need for extended



111a
discussion of the plaintiff's motion for 
summary judgment. That motion refers to 
the same §1981 claims and the same 
evidence discussed above with reference 
to the defendants' motion for summary 
judgment. The plaintiff's motion for 
summary judgment should be denied.

CONCLUSION
In the light of the foregoing, the 

Magistrate recommends that the court 
grant partial summary judgment for the 
defendants on all of the plaintiff's 
claims of employment discrimination under 
42 U.S.C. §1981. The action should 
continue as to the plaintiff's Title VII 
claims which remain pending.

DATED: This 14th day of February,
1985.

/s/ James W. Mahon
JAMES W. McMAHON 
United States Magistrate



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