Paul E. Johnson v. Transportation Agency, Santa Clara County, California, and Service Employees International Union Local 715, Intervenor-Appellant

Plaintiff alleges that he was denied promotion on account of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court rejected defendant’s contention that it acted lawfully pursuant to a bona fide affirmative action plan. The district court granted retroactive promotion and pay and enjoined defendant from further discrimination against plaintiff.

We conclude that the district court misapprehended the requirements for a bona fide affirmative action plan. Guided by United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), we hold that defendant’s affirmative action plan was valid and that defendant acted lawfully pursuant to the plan. We reverse.

I

Defendant is the Santa Clara County Transportation Agency (Agency). Established and maintained by the County of Santa Clara, California, the Agency is an employer within the meaning of Title VII, 42 U.S.C. § 2000e(b).

Plaintiff Paul E. Johnson has been employed by the Agency since 1967. For eleven years, he worked as a road yard clerk. In 1979, when Johnson was a road maintenance worker, the Agency announced an opening for a road…

concurring in part and dissenting in part:

This “reverse discrimination” case presents some difficult questions arising from the application of an affirmative action plan. I conclude that the record before us is insufficient to make broad pronouncements of judicial policy. I would vacate and remand this case for two reasons. First, the record suggests that the district court improperly allocated the burdens of persuasion and production between *1315 the parties. Second, the court did not make sufficiently detailed findings on the plan to hold it invalid.

I

The facts of this case, referred to in part by the majority, áre significant. Johnson, a 58 year-old white male, has lived in Santa Clara for many years. After working 17 years for a cement company, including 7 years as a dispatcher and 8 years as a supervisor, he quit rather than accept a transfer that would uproot his family. Instead, he took a job with the Agency. He worked the better part of 11 years in the position of Road Yard Clerk II, requisitioning road materials for operations, processing purchase orders and arranging material provisions in emergencies. Eventually, however, he concluded that the job offered him…

748 F.2d 1308 35 Empl. Prac. Dec. P 34,819 , 53 USLW 2312 Paul E. JOHNSON, Plaintiff-Appellee, v. TRANSPORTATION AGENCY, SANTA CLARA COUNTY, CALIFORNIA, Defendant-Appellant, and Service Employees International Union Local 715, Intervenor-Appellant. No. 83-1532. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1984. Decided Dec. 4, 1984. James L. Dawson, Gruber, Dawson & Preefer, San Jose, Cal., for plaintiff-appellee. Steven Woodside, Deputy County Counsel, San Jose, Cal., for defendant-appellant. David A. Rosenfeld, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for intervenor-appellant. Appeal from the United States District Court for the Northern District of California. Before WALLACE, FLETCHER, and FERGUSON, Circuit Judges. FLETCHER, Circuit Judge: 1 Plaintiff alleges that he was denied promotion on account of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. The district court rejected defendant's contention that it acted lawfully pursuant to a bona fide affirmative action plan. The district court granted retroactive promotion and pay and enjoined defendant from further…