Sharman SIMON and Cynthia Dellick, Plaintiffs-Appellants, Cross-Appellees, v. CITY OF YOUNGSTOWN, Defendant-Appellee, Cross-Appellant, 73 F.3d 68

SILER, Circuit Judge, delivered the opinion of the court, in which RYAN, Circuit Judge, joined. CONTIE, Circuit Judge (pp. 72-74), delivered a separate opinion concurring in part and dissenting in part. SILER, Circuit Judge.

Plaintiffs, Sharman Simon and Cynthia Dellick, and the defendant, City of Youngstown, appeal the district court’s judgment in favor of plaintiffs on the issue of discriminatory practices in assignment to desk duty and in favor of the City on the issues of failure to promote and failure to appoint to certain assignments, in this civil rights action alleging discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f), and 42 U.S.C. § 1983. For the reasons stated herein, we affirm in part and reverse in part. I.

In 1989, the plaintiffs herein, Simon and Dellick, white female police officers with the City of Youngstown Police Department, filed this action alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. Plaintiffs contended that a stipulated settlement agreement pursuant to a 1986 Consent Decree in Williams v. Vukovich, No.

C76-6Y (N.D.Ohio) (“the Williams case”), had resulted in the promotion of unqualified minority police officers to the rank of detective-sergeant, had denied plaintiffs promotion to this rank, and had discriminated against them on the basis of sex because they were qualified for these promotions. Additionally, plaintiffs alleged the City had failed to promote female police officers to certain assignments on the basis of sex and the City had disproportionately assigned plaintiffs to desk duty on the basis of sex.

After presentation of the evidence before the magistrate judge sitting as a special master, the district court found: 1) plaintiffs had failed to prove their claim of sex discrimination in the City’s failure to promote them; 2) plaintiffs had failed to make a prima facie showing of discrimination against them because of their sex in the City’s assignment of officers to various jobs within the department, because the plaintiffs had not requested assignment to certain positions; and 3) plaintiffs had proved their claim of sex discrimination in the City’s disproportionate assignment of the female officers to desk duties.

The district court then awarded compensatory damages to the plaintiffs for the disproportionate desk duty assignments. II. Plaintiffs contend that, but for the Consent Decree, they would have been promoted to detective-sergeant in 1989 and thus, they were victims of sex discrimination. The district court’s findings are reviewed for clear error. Sones-Morgan v. The Hertz Corp., 725 F.2d 1070, 1071 (6th Cir.1984). A brief history of the 1986 Consent Decree which plaintiffs allege violate their Title VII and constitutional rights is discussed below.

In 1976, black police officers from the City of Youngstown Police Department as well as three black applicants to the police department filed a class action suit against the City and others alleging racially discriminatory practices in hiring and promoting black applicants and employees of the Youngstown Police Department contrary to the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, 1985 and 1986. This suit was subsequently settled by entry of a gender neutral consent decree, the purpose of which was to obtain a racial balance in the City’s police department.

Black and other minority women were to be placed on the minority eligibility list for civil service promotional purposes, and Caucasian women were to be placed on the majority eligibility list. In 1989, seventeen vacancies to the position of detective-sergeant became open. Based upon the examination results of the promotional test, the City promoted the top four white police officers from the majority list and the top four black officers from the minority list, all of whom had received a score of 70% or better on the exam.

There were only four minority candidates who had made 70% or above, which had always been the “passing” score. Seven vacancies for the rank of detective-sergeant remained. After negotiations, a court-approved settlement was reached as to how to fulfill the terms of the Consent Decree which required that six minority policemen be promoted. Pursuant to the court-approved settlement, racial minority officers lower on the eligibility list than the two plaintiffs were promoted.

In order to succeed in a Title VII discrimination action, “a plaintiff is required to demonstrate that the adverse employment decision would not have been made ‘but for’ her sex.” Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988). Further, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. The burden then shifts to the employer to articulate some legitimate, nondiseriminatory explanation for the plaintiffs rejection. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

The district court found the plaintiffs had failed to make a prima facie showing of sex discrimination. Specifically, it found in 1989 seventeen vacancies for the position of detective-sergeant became available. Simon and Dellick were ranked thirteen and seventeen respectively on a list of officers eligible for promotion. Pursuant to the consent decree, racial minority officers lower on the eligibility list than the plaintiffs were promoted. Of those promoted who were lower on the list, two were women.

Also, there were white males who had scored higher on the exam than the plaintiffs who were also passed over for promotions due to the Consent Decree. Thus, the City did not discriminate on the basis of sex, as it promoted females. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 565, 105 S.Ct. 1504, 1507, 84 L.Ed.2d 518 (1985).

A review of the record below in its entirety reveals that the district court’s findings were not clearly erroneous. Although “the prima facie burden is not a heavy one,” Mills v. Ford Motor Co., 800 F.2d 635, 639 (6th Cir.1986), these plaintiffs failed to prove that the adverse action would not have been taken but for their sex, as identical adverse employment action was taken against male officers. Gutzwiller, 860 F.2d at 1325. III. Plaintiffs next contend that the City failed to appoint female police officers to certain assignments on the basis of sex.

The district court dismissed this claim, finding the plaintiffs had failed to make a prima facie showing of sex discrimination. This finding is reviewed for clear error. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511-12. “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie ease of ... discrimination.” McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. Then, the burden shifts “to the employer to articulate some legitimate, nondiseriminatory reason for the employee’s rejection.” Id.

However, “[t]he only burden that shifts at this stage of the proceedings is the burden of going forward with admissible evidence of a legitimate, nondiseriminatory reason for not promoting the plaintiffs.” Sones-Morgan, 725 F.2d at 1072. “‘[T]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Id. (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)).

Here, the district court found the plaintiffs failed to establish a prima facie case, as there was no evidence these plaintiffs had ever requested assignment to any of the subject positions. Thus, they could not have been discriminated against with respect to such assignments. A review of the record in its entirety does not leave this court with “the definite and firm conviction that a mistake has been committed,” Anderson at 573, 105 S.Ct. at 1511, as there is no evidence that these plaintiffs had ever requested assignment to any of the subject positions.

Consequently, they could not have been discriminated against regarding those positions. The district court’s finding was not clearly erroneous. Even assuming arguendo that the plaintiffs did make a prima facie case of discrimination, this claim should be dismissed nonetheless as the plaintiffs failed to show the City’s proffered nondiseriminatory reasons for its action — that insufficient female officers were on the force for the department to be able to assign female officers to all positions — was a pretext. IV.

The City, in its cross appeal, contends that the district court’s finding that the plaintiffs had proved discrimination in desk duty assignments was erroneous. This finding is also reviewed for clear error. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511-12. This finding was clearly erroneous, as a review of the evidence reveals that the plaintiffs failed to show that the nondiscriminatory reasons offered by the City for its assignments were pretextual. The efficient, accurate completion of desk work is essential to the operation of the department as a whole.

Consequently, an individual unqualified to perform desk work could not be so assigned, while those individuals qualified to perform desk work would be so assigned a large part of the time. In fact, certain male officers were permanently assigned to desk work. In support of their contention, plaintiffs offered into evidence their statistics on “predictable rotational average.” These statistics assume that the Youngstown Police Department rotates all officers (or it should rotate all officers) on assignments equally, regardless of their individual qualifications for these assignments.

However, these statistics ignored, among other things, qualifications. Consequently, these statistics were irrelevant and insufficient to rebut the City’s business necessity defense. The evidence offered by the plaintiffs was insufficient to rebut the City’s evidence that it assigned solely on the basis of business necessity. Thus, the district court’s finding of discrimination here is reversed. Consequently, the award of damages is set aside.

Based upon the foregoing, the district court’s decision in favor of the City on plaintiffs’ claims that (1) their failure to be promoted was the result of sex discrimination and (2) their failure to be appointed to certain assignments was the result of sex discrimination is AFFIRMED. The district court’s judgment for the plaintiffs on discrimination in desk duty assignments is REVERSED. . This is a companion case to Rafferty v. City of Youngstown, 54 F.3d 278 (6th Cir.1995), which relates some of the facts in more detail. .

The dissent in footnote 1 asserts that the record does not support the statement that males were permanently assigned to desk duty. However, the district court found in its opinion: "[S]ome male officers were assigned exclusively to desk duty."