Appeal from the United States District Court for the District of Alaska. D.C. No. CV-92-311-JWS. John W. Sedwick, District Judge, Presiding.
Before: Harry Pregerson, William C. Canby, Jr., and Robert Boochever, Circuit Judges. Opinion by Judge Pregerson.
PREGERSON, Circuit Judge:
Lena R. Johnson ("Johnson"), a Native American, appeals the district court's judgment after a bench trial in favor of Donna Shalala, Secretary of Health and Human Services, in Johnson's Title VII action alleging wrongful denial of an employment opportunity under 42 U.S.C. §§ 2000e-2(a), 3(a), 5(g) (1988). We have jurisdiction under 28 U.S.C. § 1291 (1988). We affirm in part and reverse and remand in part.
Appellant Lena R. Johnson is a Native American member of the Navajo tribe. Beginning in 1983, Johnson worked as a medical technologist at the Alaska Native Medical Center ("ANMC") in Anchorage, Alaska. ANMC is part of the Indian Health Service ("IHS"), which provides health services to Native Americans. IHS is supervised by Donna Shalala, the Secretary of Health and Human Services ("The Secretary"). ANMC's laboratory is divided into three sections: chemistry, hematology, and microbiology.
In 1989, ANMC advertised internally and nationwide, through IHS, to fill the position of microbiology lab supervisor at ANMC. The advertisement included an explanation of the IHS preference for Native Americans:*fn1 Native Americans would be considered before any other job candidate.*fn2 The same qualification standards applied to preferred and non-preferred applicants. However, if one or more preferred persons applied and met the qualifications, only the applications of preferred persons would be placed before the panel from which the selection would be made.
No qualification standards separate and independent of the general civil service requirements existed for Native Americans applying to the microbiology lab supervisor position. The standards for the position were taken from the Office of Personnel Management standards. However, there were separate and independent qualification standards adopted for evaluating Native American applicants for certain other ANMC positions.
Three people, including Johnson, applied to become supervisor of the microbiology lab at ANMC. Of the three, only Johnson qualified for the IHS preference for Native Americans. Ron Jeanotte, the personnel staffing specialist for ANMC, however did not refer Johnson to Regina Smith, the general supervisor of ANMC's laboratory, for the supervisor position. Jeanotte referred the two other applicants to Smith. Applicant Dean Davidson, a caucasian male, had, among other things, been in charge of the microbiology department at Alaska's Mt. Edgecumbe Hospital for approximately seven years before joining ANMC in 1987. Applicant Carolyn Johnson, a caucasian female, had, among other things, worked at ANMC since 1977, and had served frequently as the acting supervisor of the microbiology lab. Smith selected Carolyn Johnson for the position.
Lena Johnson brought an action in federal district court against the Secretary. Johnson alleged that ANMC's refusal to promote her to the supervisor position of the microbiology lab amounted to racial discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a), 3(a), 5(g).
To support her discrimination claim, Johnson testified at trial that she possessed the requisite knowledge of the principles and techniques of microbiology. She outlined her microbiology experience as a lab technician prior to receiving her medical technology degree. She also highlighted the microbiology-related classwork that she had completed to earn her degree and the microbiology duties on her temporary duty assignments in Kotzebue and Bristol Bay while employed at ANMC. In addition, Johnson maintained that she possessed sufficient managerial and supervisory experience for the supervisor position. Johnson presented no direct evidence of discriminatory motive.
The Secretary did not dispute that Johnson belonged to a class protected by Title VII or that she applied for the microbiology lab supervisor position. However, the Secretary contended that Johnson's application failed to demonstrate that Johnson possessed a sufficient knowledge of the principles and techniques required for the position. The Secretary explained that Johnson spent most of her time in either ANMC's chemistry or hematology lab and never rotated through ANMC's microbiology lab.*fn3 Even though Johnson did perform some microbiology duties while working on temporary duty assignments, according to the Secretary, Johnson's assignments did not involve intensive microbiology activities. The Secretary also presented evidence that Johnson lacked the supervisory and managerial experience that the supervisor position required. Moreover, the Secretary presented evidence that the other two candidates for the microbiology supervisor position were more qualified than Johnson.
During both her opening statement and closing argument, Johnson contended that the Secretary violated the Indian Preference Act by refusing to promote Johnson to the supervisor position. Johnson contended that the Indian Preference Act required the Secretary to adopt standards for promoting Native Americans to the microbiology lab supervisor position that were separate and independent of the general civil service requirements for the position.
The district court found that in refusing to promote Johnson to the microbiology lab supervisor position, ANMC did not violate Title VII. The court found that the Secretary "did not engage in, or commit, any unlawful ...