This appeal features a claim that the Voice of America (VOA), the broadcasting arm of the International Communication Agency,1 discriminates against an employee because of his national origin. Perceiving no issue of fact material to the litigation, the District Court held that the evidence proffered by the employee did not make out a prima facie case, and entered summary judgment for VOA.2 We conclude that even if a prima facie case was established, it was effectively rebutted by an uncontested evidentiary tender by appellees3 demonstrating that the differentials protested are job-related, and thus no predicate for litigation.

Title VII of the Civil Rights Act of 1964,4 as extended by the Equal Employment Opportunity Act of 1972,5 prohibits federal employment practices having the purpose or effect of discriminating on the basis of race, color, religion, sex or national origin.6 In 1974, Ilya V. Talev, a Bulgarian-born American citizen, was hired by the Bulgarian Section of VOA's European Division7 to prepare and broadcast radio programs in his native tongue.8 Talev initially had indicated that he was amenable to a foreign service position9 at the grade equivalent of GS-7, and a minimum salary of $12,000.10 Eventually, however, he was offered, and accepted, employment at a grade equal to GS-9 and salaried at $13,193.11 Nevertheless, Talev quickly grew dissatisfied with his grade level and remuneration.12 After unsuccessfully seeking gratification administratively,13 he sued in District Court on behalf of himself and others purportedly similarly situated,14 alleging discrimination on account of national origin.15

In essence, Talev's complaint charged that employees in VOA's Worldwide English Division,16 who primarily are American-born, are given preferential treatment in comparison with employees in VOA's European Division, who largely are foreign-born.17 In an attempted support of this claim, Talev pointed to various facially neutral VOA employment policies and practices assertedly operating to the disadvantage of foreign-born employees.18 Talev lost on a bid for class certification,19 but prevailed substantially on his motion to compel discovery of statistical data on VOA employees.20 With these data,21 Talev proffered extensive statistical evidence,22 and both sides moved for summary judgment. The District Court, concluding that Talev had not met his burden of establishing a prima facie case of employment discrimination, entered judgment in favor of appellees,23 and sua sponte taxed costs against Talev.24

In the main, Talev assails the District Court's ruling that his evidentiary tender did not make out a prima facie case.25 In addition, he asserts that the court erred in denying his motion for class certification,26 in restricting discovery,27 and in assessing costs against him.28 Appellees, in turn, argue that Talev did not present sufficient evidence to generate a claim under Title VII or, if he did, that higher grades and salaries existent in the Worldwide English Division are explained by heavier responsibilities shouldered by employees therein, as well as by superior qualifications they bring to their tasks.29 Appellees resist all of Talev's other contentions except the last, which they say is moot in light of their decision not to seek costs.30 In view of that position, we vacate the award of costs, and proceed to consider the remainder of Talev's challenges.

The shifting burdens of proof in Title VII "disparate impact" litigation31 are well entrenched. The complainant has the initial burden of constructing a prima facie case by showing that facially neutral employment standards operate in a proscribed discriminatory fashion.32 The burden then falls upon the employer to demonstrate that these standards have "a manifest relationship to the employment in question."33 The complainant may then show that other policies or practices would "serve the employer's legitimate interest in 'efficient and trustworthy workmanship' " without a discriminatory impact.34

This analytical approach is to be taken whether the adjudicative context is summary judgment or trial.35 But since summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law,"36 the court must ascertain at each successive stage37 whether any fact essential to the claim or defense is disputed and, if not, whether on the basis of the proffered evidence a summary disposition is legally demandable.38 Our task on this appeal is to ascertain whether the District Court was obedient to these tenets.

Talev asserts that he presented a prima facie case of national-origin discrimination when he submitted statistical evidence disclosing that employees in VOA's Worldwide English Division fare better in terms of grade, salary and promotion than employees in the European Division. This contention rests on a combination of several items.39 More journeyman positions were authorized for the Worldwide English Division than for the European Division.40 European Division employees were primarily foreign-born, and Worldwide English Division employees mainly were American-born.41 Foreign-born employees had lower personal grades and salaries on the average than American-born employees.42 More foreign-born than American-born employees had personal grades below the grade of the position to which they were assigned, and more American-born than foreign-born employees had personal grades above the grade of their assigned position.43 More American-born than foreign-born employees had personal grades established on the basis of their grasp of American foreign policy and of the cultural situation in one or more foreign countries, rather than on the basis of their journalistic training and experience.44

Talev appears to attribute these disparities mainly to four alleged practices at VOA:45 (1) appointing employees to positions without regard to their personal grades;46 (2) maintaining separate promotional categories for English-language and foreign-language broadcasters;47 (3) setting the grades of new employees on the basis of positions available rather than the employees' qualifications;48 and (4) hiring at junior levels and promoting from within.49

We need not ponder the question whether the District Court was correct in its holding that this evidentiary tender was insufficient to attest a prima facie case of employment discrimination under Title VII.50 VOA offered evidence tending strongly to show that all of the variances to which Talev points are the result of substantial differences in the qualifications and job responsibilities of employees in the two divisions.51 Not only was VOA's submission overwhelming, but it also was undisputed by countervailing evidence. That sealed Talev's fate on the cross-motions for summary judgment.52

The Worldwide English Division, as its title implies, broadcasts to countries around the globe.53 It does so for many more hours each day than foreign-language programs of the European Division are aired.54 Moreover, the Worldwide English staff must be able to perform a variety of tasks not required of foreign-language broadcasters, among which are the development of original broadcast material including features, roundtable discussions and documentaries.55 Worldwide English employees must also be able to function day-to-day as correspondents on special assignments throughout the Nation and the world.56 On the other hand, broadcasters in the European Division, limited as they are by the amount of air time available,57 usually present relatively brief news programs.58 Even when time permits, they generally broadcast only translated adaptations of material developed by the Worldwide English Division.59 Resultantly, employees in the European Division are called upon to handle far fewer and less demanding assignments than those in the Worldwide English Division.

Employees in the two divisions also vary substantially in the qualifications they bring to the job. Professional broadcasters and graduates of journalism schools provide a diverse and talented pool from which Worldwide English broadcasters are hired,60 but practical and political realities severely curtail VOA's ability to lure equally qualified foreign-language broadcasters. Not only are there few foreign-language radio stations in the United States from which experienced foreign-language broadcasters can be sought,61 but also most professional broadcasters in Eastern European countries are unavailable for VOA recruitment.62 As a consequence, foreign-language broadcasters at VOA normally have had substantially less professional journalistic experience than VOA's Worldwide English broadcasters.63

Comparisons of grades, salaries and promotional opportunities within the two divisions that do not take these differences in qualifications and responsibilities into account are plainly incapable of carrying the day for Talev, absent additional evidence that other means are available to insure satisfaction of VOA's legitimate interest in "efficient and trustworthy workmanship" without occasioning such differentials.64 Talev's failure to proffer such evidence compels the conclusion that appellees have met their burden of demonstrating that even if the variances complained of sufficed to make out a prima facie case of national-origin employment discrimination, they were job-related and thus not violative of Title VII.

In supplementation of their general rebuttal, appellees proffered further evidence-likewise uncontested-portending a showing that the practices which Talev assails either are justified by business necessity or were not a cause of any of the differentials at issue. We consider, in turn, each of Talev's contentions in light of this evidentiary material.

1. Appointment Without Regard to Personal Grade

Talev argues that VOA's facially neutral policy of appointing employees to positions without regard to their personal grades accords those in the Worldwide English Division greater compensation than those in the European Division doing the same work.65 This so-called "rank in person" system-which statutorily governs the appointment and assignment of all Foreign Service employees, and thus those at VOA66-permits the agency to assign and transfer employees from post to post as its organizational interests may require.67 The rank in person system differs from the "rank in position" system of the civil service, under which the employee and his position are assigned the same grade.68 Under the rank in person system, grades are assigned to positions and employees separately, with the grade of the position assessed at its maximum performance level, and the grade of the employee established on the basis of his or her personal qualifications.69 The result is that Foreign Service employees frequently occupy positions having higher grades than their personal grades.70 Similarly, it often happens that two employees having substantially different qualifications or experience may be assigned to positions bearing the same rank.71 That they receive incommensurate salaries, though assigned to positions of equivalent grades, is amply explained by the differences in qualifications and responsibilities of employees in the two divisions.72

Talev next urges that VOA's maintenance of separate promotional categories for English-language and foreign-language broadcasters renders the advancement opportunities for foreign-born employees inferior.73 He insists that the sole distinction underlying these groupings is national origin,74 and cites the greater number of journeyman positions and journeyman-level employees in the Worldwide English Division than in the European Division as proof of discriminatory effect.75

This contention, too, however, founders when examined in light of appellees' proffered evidence. First, as we have said, variation in number of journeyman employees and authorized journeyman positions is adequately explained by both the "rank in person" system76 and the differences in professional training of, and types of work performed by, employees in the two divisions.77 Additionally, while as a general rule VOA separates the two divisions for purposes of employee advancement,78 it avowedly does so to enable foreign-language broadcasters to vie for available positions in the European Division without having to compete with the generally more journalistically experienced English-language broadcasters.79 And, while language barriers make transfers from one division to the other difficult,80 such transfers do occur, and more frequently from the European Division to the Worldwide English Division than vice versa.81

Talev's last contention is that VOA sets the grade of new employees in terms of the position available, rather than on the basis of the employee's age, qualifications and experience as required by the Foreign Service Act,82 and that this practice operates to discriminate against foreign-born employees.83 In support of this claim, Talev submitted statistical evidence showing that while half of the English-language broadcasters were graded congruently with positions requiring knowledge of economic, cultural and political conditions in foreign areas, less than 20 percent of the foreign-language broadcasters were so treated. Grading of foreign-language broadcasters, Talev urges, emphasizes qualifications and characteristics more common among American-born than foreign-born applicants, with the result that the latter suffer in the process.84 To fully grasp Talev's thesis, we must review briefly the job-classification and the employee-qualification policies in operation at VOA at the time he was hired.

Prior to 1971, the post for which Talev was engaged-that of Writer (Radio)-was considered a civil service job, and thus was ranked according to civil service classification standards.85 The criteria applicable to Talev's job were those of the GS-1082 occupational classification series, which governed writing and editing appointments generally.86 These standards were drawn broadly and referred to positions, not the qualifications of employees filling them.87 Under the civil service system, applicants for vacant positions were selected for their ability to perform the duties thereof, a determination abiding by the civil service employee qualification standards applicable to GS-1082 jobs.88 Because those jobs were classified as writing and editing functions, the pertinent standards stressed journalistic training at the expense of academic credentials.89

In 1971, all VOA positions came within the purview of the Foreign Service personnel system set forth in the Foreign Service Act.90 Consequently, when in 1974 Talev came aboard, his entrance grade had to be set in accordance with his "age, qualifications and experience."91 The changeover, however, from the civil service to the foreign service system was still fairly recent, and no foreign service employee-qualification standards for Talev's post had been established.92 VOA therefore relied upon the old civil service employee-qualification standards in establishing Talev's grade, and weighed his relative lack of journalistic experience more heavily than his relatively extensive academic training.93

Talev complains that this methodology was inappropriate, and that VOA should have fixed his grade by reference to standards applicable to the GS-1085, rather than the GS-1082, occupational classification series,94 which arguably would have placed more emphasis on his academic background. But there never were any civil service employee-qualification standards for the GS-1085 series95 and, moreover, the GS-1085 job-classification series was reserved for policymaking and supervisory positions above the journeyman level.96 Talev thus not only confuses job-classification standards with employee-qualification standards, but also insists that his grade should have been fixed by resort to nonexistent standards for a position he never held. The evidence he relies upon97 shows nothing more than that a larger number of policymaking and supervisory positions are authorized for the Worldwide English Division than for the European Division, a fact we already have accepted as job-related.98

Talev's statistical tender, if unexplained, may have sufficed to raise an inference-as the greater likelihood-that the VOA policies complained of affect foreign-born broadcasters more harshly than American-born broadcasters, and do so on account of national origin.99 But VOA's uncontested proffer of proof revealed that its practices are designed to serve its governmental mission, or that they did not contribute to the results Talev challenges. Talev did not come forward with any evidence indicating that those effects could be avoided by adoption of alternative methods that would meet VOA's operational requirements.

We affirm, then, the District Court's grant of summary judgment in favor of appellees without reaching the issue of class certification.100 As earlier stated,101 however, we vacate the District Court's order taxing costs to Talev.

So ordered.