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October 15, 1987

JOHN O. MARSH, Secretary of the Army, DEFENDANT

The opinion of the court was delivered by: EISELE


 On March 1, 1984, the Department of the Army, Pine Bluff Arsenal (PBA) published a job vacancy announcement for the position of Explosives Operator Foreman, WS-07. The PBA civilian personnel office prepared a Referral and Selection Register of the best qualified candidates. The list prepared by the civilian personnel office contained the names of the twelve most qualified candidates. The list included nine black men, one white man, one black woman, and one white woman. The name of Robert Pierce, the plaintiff in this action, appeared on that list.

 A panel of three selecting supervisors unanimously selected two people from the list to fill the vacant positions. One choice, Roosevelt Stokes, was black. The other, Johnnie Webb, was a white woman.

 On May 29, 1984, the plaintiff contacted PBA Equal Employment Opportunity counselor, Loydell Payton, asserting that he had been discriminated against due to his race and sex. The officer conducted an informal investigation and concluded that no discrimination had been present. On July 10, 1984, the plaintiff filed a formal administrative complaint alleging race and sex discrimination. The United States Army Civilian Appellate Review Agency (USACARA) conducted an investigation. On September 21, 1984, the agency issued a report stating that no clear obvious difference existed between the plaintiff and Ms. Webb in terms of relevant objective qualifications. The investigator concluded that the evidence did not even support a prima facie case of race or sex discrimination. The plaintiff requested a hearing before an EEOC complaints examiner on October 18, 1984. On September 15, 1986, the plaintiff brought this action, and he notified the EEOC examiner of withdrawal of his request for a hearing on September 22.

 The plaintiff alleges both disparate treatment and disparate impact under Title VII, 42 U.S.C. § 2000(e) et seq. To date, he has not obtained any ruling concerning his disparate impact claim, because the EEOC examiner refused to hear evidence concerning the validity of the selection procedures at the PBA.

 Disparate Treatment

 In order to prevail in a Title VII case, a plaintiff must first make out a prima facie case, raising the inference that he was discriminated against. The burden of production then shifts to the defendant to articulate a legitimate non-discriminatory reason for its action. The burden then shifts to the plaintiff to show that the articulated reason was a mere pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). In promotion cases, the prima facie case typically consists of four elements. The plaintiff must show first that he belongs to a racial minority or other protected class under Title VII; *fn1" second, that he applied and was qualified for a job for which the employer was seeking applicants; third, that despite his qualifications, he was rejected; and fourth, after his rejection, the position remained open and the employer continued to seek applicants from persons of his qualifications. Id.

 The court finds that the plaintiff in this case has made out a prima facie case of discrimination. Mr. Pierce is black, and he is thus a member of a protected class under Title VII. He applied for a position for which all parties in this action admit he is qualified. The most compelling evidence of his qualifications is his placement on the list of the 12 most qualified applicants. Mr. Pierce was rejected for the position. Thus, he satisfies the third element of the McDonnell Douglas test. The fact that the position in question was filled rather than remaining open does not preclude Mr. Pierce from meeting the standard. The McDonnell Douglas factors are not rigid. A plaintiff may satisfy the fourth element of the McDonnell Douglas test by showing that "other employees of similar qualifications who were not members of a protected group were promoted at the time the plaintiff's request for promotion was denied." Bell v. Bolger, 708 F.2d 1312, 1316 (8th Cir. 1983) (quoting Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 951 (D.C. Cir. 1981)). Because one of the employees who was promoted instead of the plaintiff was white, he has stated a prima facie case of discrimination.

 The fact that a plaintiff can state a prima facie case does not automatically save him from a summary judgment motion. Dea v. Look, 810 F.2d 12, 15 (1st Cir. 1987). The McDonnell Douglas test establishes a procedure to be used at trial, but the fact that a plaintiff establishes a prima facie case does not mean that a genuine issue of material fact exists necessitating a trial. The court must examine the evidence proffered by the defendant to explain the employment decision and the evidence offered by the plaintiff which can rebut the employer's stated justification. Id; Parker v. Fed. Nat'l. Mortgage Ass'n, 741 F.2d 975, 975-981 (7th Cir. 1984); Clark v. Burroughs Corp., 621 F. Supp. 660, 662-3 (E.D. Ark. 1985). The only part of the promotion procedure which the plaintiff has challenged was the process by which Webb and Stokes were selected over him from the most qualified list. The plaintiff does not challenge the method used to prepare the list. The court notes, however, that the list was prepared by the civilian personnel office. Thus, the three supervisors who made the ultimate decision were not involved in compiling it. In order to avoid summary judgment, the plaintiff must make a showing that considerations of race or sex influenced the three supervisors in their choice.

 The defendant in this case contends that the two people promoted to the job sought by the plaintiff were slightly better qualified than he. The defendant has submitted affidavits from the three supervisors who selected the candidates over the plaintiff. The selecting supervisors unanimously agreed that Ms. Webb and Mr. Stokes were best for the job. The supervisors admitted that they did not strictly follow the appraisals prepared by the civilian personnel office ranking the candidates. Instead, they incorporated their personal knowledge of the candidates, and made a relatively subjective decision. It should be noted, however, that both of the people they chose ranked higher than Mr. Pierce. *fn2"

 The selecting supervisors praised Ms. Webb's conscientiousness and her good work while temporarily assigned to the position in question. They stated that both selected candidates had demonstrated their ability to meet deadlines under pressure, organize their work effectively & to communicate, convincingly, both verbally and in writing. Personal observations of Ms. Webb's work contributed substantially to the decision. Each supervisor stated that race and sex had nothing to do with his decision, which was made solely on merit. *fn3" Although the decision in this case was based on some subjective criteria and each of the three candidates in question appear to have very similar credentials, the court finds that the defendant has met its burden to produce evidence of a nondiscriminatory reason for its failure to promote the plaintiff. See Burdine, 450 U.S. at 259 (an employer has discretion to chose among equally qualified candidates, provided the decision is not based upon unlawful criteria.)

 In order to avoid summary judgment, the plaintiff must present to the court evidence upon the basis of which it could properly find that the stated reasons are a pretext to conceal discrimination. And, overall, the plaintiff's proffered evidence must be such as would permit the trier of fact to find for the plaintiff upon the ultimate issue. Slaughter v. Allstate Ins. Co., 803 F.2d 857, 861 (5th Cir. 1986). See, Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). Evidence which is merely colorable cannot save the plaintiff from summary judgment. Id.

 The plaintiff in this case has not presented evidence which meets his burden. He has presented affidavits by two fellow employees, Lewis Powell, Jr. and Roosevelt Davis. In those affidavits, the two men stated their opinions that Mr. Pierce is more qualified than Ms. Webb. Such opinions do nothing to show that the supervisors' opinions to the contrary were pretext or that race was in any way a factor in a promotion decision. In addition, the plaintiff states that he had been employed longer and had taken more training courses than ...

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