Appeal from the United States District Court for the Western District of Wisconsin. No. 82-C-627 -- John C. Shabaz, Judge.
Pell and Cudahy, Circuit Judges, and Campbell, Senior Circuit Judge.*fn*
Plaintiff-appellant, Georgia Caviale, brought suit pursuant to Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000 et seq., alleging that her employer, the State of Wisconsin, Department of Health and Social Services, discriminated against her on the basis of sex when it denied her a promotion to the position of Milwaukee Regional Director, Division of Community Services. Plaintiff tried the case to the district court, without a jury, and argued that defendant's selection of candidates to fill the post of regional director from an exclusive and circumscribed pool had a disparate and discriminatory impact on women. The District Judge, John Shabaz, ruled that plaintiff had failed to establish a prima facie case of sex discrimination and that, even if plaintiff had established such a case, defendant met its burden of proving that its selection method was a business necessity. On appeal, Caviale claims that the district court erred when it ruled she had not established a prima facie case and when it found defendant had sustained its burden on the issue of business necessity.
Plaintiff-appellant, Georgia Caviale, is the holder of university degrees in Speech, Sociology, and Social Work, some of which she earned with honors. Caviale also has to her credit numerous professional and community service credentials. She began her professional career as a supervisor in the Milwaukee County Department of Public Welfare. During the 1950s and early 1960s, she worked as a probation officer in DuPage County, Illinois, advancing to the level of Chief Probation Officer, a position whose responsibilities included management of a county-wide department that offered social service programs. In 1962, Caviale returned to Wisconsin and served as Deputy Director of Social Services in Waukesha County. She advanced to the level of full Director, a position that required Caviale to supervise five case worker directors and fifty case workers. In 1966, she moved from county-level administration to the state's Department of Health and Social Services.
The departments of Wisconsin's state government, including the defendant, Department of Health and Social Services (the Department), are organized into divisions, each headed by an Administrator. Some of the divisions are in turn divided into geographical districts with a District Administrator at its fore. In 1977, the Division of Mental Hygiene, which monitored the distribution of state funds to municipal and state mental health institutions, contained seven geographical districts. In 1968, Georgia Caviale was appointed to the post of District Administrator for the Milwaukee District, a district that was composed of Milwaukee County and the six counties around it. Caviale received a salary designated Pay Range 17, one range above the salary the other District Administrators in the Division of Mental Hygiene received. The salary difference reflected the greater responsibilities borne by the Milwaukee Regional Office. The Division of Family Services was also divided into districts, and the Milwaukee District of that division coincided geographically with the Milwaukee District of the Division of Mental Hygiene. In 1977, the Milwaukee District Administrator of the Division of Family Services was Charles Holton.
In 1977, the Department consolidated the Divisions of Mental Hygiene, Family Services, and Aging into a new Division of Community Services. Under the consolidation plan, the old seven-county Milwaukee District was to be divided into a new Milwaukee Region consisting solely of Milwaukee County and a new Southeast Region containing the remaining six counties. The Regional Director in charge of the Milwaukee Region would receive a salary at Pay Range 19 and the Regional Director in charge of the other regions would receive pay at Range 18.
This case arose out of the Department's decision to limit application eligibility for the new Milwaukee Regional Director position to its then-current members of the Career Executive Program, all of whom were men. The Wisconsin legislature created the Career Executive Program in 1972 to promote excellence in the state's administration. Only those who receive a salary at Pay Range 18 or above may be members of the Program. When the Program was implemented in 1974, an employee receiving a salary at Pay Range 18 could opt to become a member. Prior to 1976, a non-career executive who wished to apply for a position salaried at Pay Range 18 or above had to pass a battery of tests administered by the Executive Assessment Center, an institution created for this purpose. A non-career executive could also submit to assessment at the Center without applying for any particular position in anticipation of using his score later. In 1975, Caviale submitted to tests at the Center under the latter plan and scored poorly.
In 1976, the Center was closed and non-career executives submitted to ordinary civil service screening and testing procedures when applying for jobs salaried at Pay Range 18 or above. Thus, in 1977 when the Department underwent reorganization, there were three distinct groups of people in the Career Executive pool. First, there were those who in 1974 had occupied positions salaried at Pay Range 18 or above. Second, there were those who had successfully competed for Career Executive jobs from 1974 through 1976, when the Executive Assessment Center played a major role in the screening process. Third and finally, there were those who had successfully competed after 1976 for such jobs under ordinary civil service selection methods. All told, there were thirty-three career executives in the Department in 1977. In all departments of state service, there were approximately 200 career executives. None of the thirty-three career executives in the Department was a woman, and only two or three of the 200 state-wide career executives were women.
On June 17, 1977, Caviale telephoned Dr. Leonard Ganser, the Administrator of the Division of Mental Hygiene, to express her interest in becoming the new Regional Director of the Milwaukee Region. Dr. Ganser replied that, where there was a career executive currently in the District Administrator position for a district, he expected to fill the Regional Director post with current career executives from the Department's pool. Since Charles Holton was a career executive in the position of District Administrator, Division of Family Services, he or a different career executive would obtain the post in which Caviale had expressed interest. Sometime prior to July 27, 1977, Holton obtained a position in the Department's Central Office in Madison, and he consequently withdrew his application for Milwaukee Regional Director. On July 27, Ganser wrote to Gerald Berge, a career executive in the Department who was also under consideration for the position of Milwaukee Regional Director. Ganser stated that he had reconsidered his decision to restrict application for the Regional Director's position and that he would now recommend opening competition for the post to all qualified state employees. Ganser, however, encouraged Berge to reapply when the position was announced on the broader basis. On August 1, 1977, Caviale learned that Holton was no longer in contention for the post she sought, and she once again telephoned Ganser. Ganser, contradicting his writing to Berge, stated that the position would be filled from the pool of career executives in the Department. On August 9, 1977, Ganser wrote to Berge, stating that the Department had now decided not to offer the Milwaukee Regional Director position on a broad basis and that the Department had selected Berge to fill the post.
On August 12, 1982, Caviale, having exhausted her administrative remedies, filed suit in federal district court against the Department, alleging employment discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. The case was tried to the bench on the theory that the Department's restricting applications for the position of Milwaukee Regional Director to current career executives had a disparate and discriminatory impact on women. Caviale presented evidence that several alternatively defined pools of qualified potential applicants for the position of Milwaukee Regional Director all contained substantial numbers of women. For example, Caviale showed that one potential group of applicants, namely defendant's full-time "Officials and Administrators," a classification used by the United States Equal Employment Opportunity Commission, contained 10 percent women as of July 1977. Caviale also showed that 20.8 percent of the defendant's employees at Pay Range 15 and above were women. The percentage of women in these comparison pools, Caviale contended, established that the selection of candidates from a pool that contained no women had a prohibited disparate impact on women.
On June 22, 1983, Judge Shabaz issued a decision in favor of defendant and ordered the cause dismissed. Judge Shabaz agreed that the case should be analyzed under the disparate impact model, but he disagreed with Caviale's assertion that the statistics proved unlawful discrimination. Judge Shabaz reasoned that the post of Milwaukee Regional Director required a high level of managerial capability. Therefore, in order for Caviale to prevail, she had to show that the challenged, facially neutral employment criterion, namely membership in the Career Executive Program, imposed a substantially disproportionate burden upon females who possess the managerial qualifications demanded by the post. General statistics concerning the percentage of women in the administrative posts of state service, the court further opined, would not suffice to show a disproportionate burden because women in such a comparison pool would not necessarily possess the subjective qualities that the Department would desire when filling the post of Regional Director. Judge Shabaz further concluded that, even if Caviale had established a prima facie case of disparate impact, the Department sustained its burden to prove that the challenged criterion was a business ...