Appeal from orders of the United States District Court for the Southern District of New York, Hon. Whitman Knapp, Judge, dismissing plaintiff's complaint which alleged violations of Title VII of the Civil Rights Act of 1964 and of 42 U.S.C. § 1983, and awarding attorney's fees to defendant. Affirmed.
Friendly, Mansfield and Mulligan, Circuit Judges.
The plaintiff, Mrs. Odessa Carrion, is a black citizen of the United States who was employed by defendant Yeshiva University (Yeshiva) as a Social Work Supervisor at Lincoln Hospital, an institution owned and operated by the City of New York. The hospital's professional services were supplied by the Albert Einstein College of Medicine, a division of Yeshiva, pursuant to an affiliation contract. The complaint here was filed on July 6, 1971 in the United States District Court for the Southern District of New York. It alleged that Yeshiva had discriminated against Mrs. Carrion because of her race by failing to promote her to three positions for which she had applied, and in discharging her from her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. §§ 1981 and 1983. The action was set for a bench trial on May 21, 1975 before Hon. Whitman Knapp. After a two-day trial Judge Knapp dismissed the complaint at the close of plaintiff's case and rendered an oral opinion and findings. Both parties later submitted proposed findings of fact and conclusions of law. On June 13, 1975, Yeshiva moved pursuant to Sec. 2000e-5(k) of Title 42 for reasonable attorney's fees and discretionary costs, in accordance with Rule 54(d) of the Federal Rules of Civil Procedure. Judge Knapp subsequently filed a memorandum and order on July 28, 1975 substantially accepting the findings submitted by the defendant, and deeming them to be supplemental to those made in open court at the close of the plaintiff's case. On the same date, Judge Knapp filed an opinion (reported at 397 F. Supp. 852) awarding Yeshiva counsel fees in the sum of $5,000 and discretionary costs of $630.36. This appeal was taken from the order dismissing the complaint and the order awarding fees and costs.
Odessa Carrion was hired by Yeshiva in January, 1967 to work as a Social Work Supervisor of the out-patient clinic in the Department of Social Services at Lincoln Hospital at an annual salary of $11,000. Some time in March 1967 she spoke to Raymond Cagan, a Student Unit Supervisor, indicating that she was interested in his position which it was rumored would become vacant upon his promotion to another job. This position involved joint employment by both Yeshiva and New York University. Cagan was paid a salary of $9,500 by Yeshiva and $1,500 by New York University. The hiring required a joint decision by both universities. Cagan advised the plaintiff that the job when filled would pay only $9,500 since New York University would no longer supplement the salary of the Student Unit Supervisor. Mrs. Carrion, who was then making $11,000, indicated she was unprepared to take a decrease in salary, became angry and walked out of the meeting. Mrs. Carrion had also sent a letter of inquiry to a Professor Leon of New York University who was then in charge of that University's program at the hospital. She was later interviewed by Professor Leon but was never offered the job. (New York University was initially made a defendant in this action but was dismissed by agreement of the plaintiff on May 20, 1975.) Late in August 1967 Miss Avis Crocker, a Caucasian, was hired for the position at a salary of $10,500 which was $500 less than Mrs. Carrion's salary at the time. While Cagan only learned that the additional $1,000 was available at or about the time Miss Crocker was hired, Mrs. Carrion was never notified of the new salary figure. Miss Crocker, who like Mrs. Carrion had a master's degree in social work, had worked at Lincoln Hospital for a year longer than Mrs. Carrion. Mr. Cagan testified that he selected Miss Crocker because he had personally known and respected her work, that she had satisfactorily participated in the field work supervision of other social worker students a year before, and was deemed qualified and acceptable by New York University. Cagan also testified that he was aware of derogatory comments in her file but discounted them because he believed that they were caused by a personal dispute between Miss Crocker and her supervisor. Mr. Cagan was not familiar with Mrs. Carrion's work, believed she would not submit to a cut in salary, and knew that she was looking for other jobs. The court below concluded that the selection of Miss Crocker as opposed to Mrs. Carrion was not based on racial or other invidious reasons. Miss Crocker concededly turned out to be unsatisfactory and was subsequently discharged from her job.
On August 24, 1967 Mrs. Carrion promptly filed a complaint with the Commissioner on Human Rights of the City of New York (the Commission) alleging that she was a Negro and that Miss Crocker's employment as a Student Unit Supervisor was a discriminatory and unlawful act under the Administrative Code of the City of New York.
The second allegedly discriminatory act occurred in the summer of 1967 when another Student Unit Supervisor's position became available. The position was made known to employees at Lincoln Hospital by circulating a memo which Mrs. Carrion admitted receiving in her later testimony before the Commission in 1969. Although Mrs. Carrion testified on the trial below that she had informed Cagan that she wanted the job, he stated that he was unaware of her interest. This is supported by Mrs. Carrion's testimony before the Commission in which she indicated that she did not approach Cagan but waited to see if she would be contacted. The court below did not credit Mrs. Carrion's trial testimony, finding that she deliberately remained silent, that she did not want the job and was "trying to make a case." The second position was filled by a Caucasian, Professor Levy. There was no evidence that he was less qualified than the appellant. After this Mrs. Carrion amended her complaint before the Commission to include this second incident.
The third alleged act of discrimination involved the position of Director of Social Work at the Yeshiva Neighborhood Maternity Center, which was supervised by Doctor Joseph J.Smith. Mrs. Carrion did apply for this position after having been advised of the opportunity by Mr. Cagan. Dr. Smith interviewed Mrs. Carrion but selected instead Mrs. DeMorrisey, a black woman, who in his opinion was better qualified. The court below found that Dr. Smith's selection of Mrs. DeMorrisey over Mrs. Carrion was based exclusively on his evaluation of their relative fitness for the job. While Mrs. Carrion testified that Dr. Smith had told her that her discrimination charges had angered the Einstein people and that she would not get the position until this was cleared up, Dr. Smith denied that he then knew of any such charges and further denied making the statement. The court credited the testimony of Dr. Smith and characterized Mrs. Carrion's statements as untruthful. Mrs. Carrion again amended her complaint before the Commission to include this third incident.
The final acts of alleged discrimination involved Mrs. Carrion's suspension and ultimate discharge from Yeshiva. In late September 1969, while Mr. Cagan was on vacation, Mrs. Carrion unsuccessfully sought to persuade another female employee to sign a statement prepared by Mrs. Carrion that Cagan had made unwelcome sexual advances to the other woman in the spring of 1968. This incident provoked the anger of fellow social workers who had learned of the effort to injure the reputation of Mr. Cagan. Two memos were sent to Dr. Lubell, the Administrator in charge of the hospital for the City, and Abraham Silverberg, Liaison Administrator for Yeshiva at the hospital, in early October, 1969 by social workers protesting Mrs. Carrion's actions which they characterized as "a violation of the code of ethics of our profession," and requesting that "some action should be taken." Further memos from members of the Social Service Department on October 8 and 22, 1969 requested that Mrs. Carrion be immediately dismissed and threatened "appropriate actions." On or about October 22, 1969, Silverberg received a memorandum from Stanley Shulman, Assistant Administrator in charge of the City's Labor Relations at the hospital, indicating that still another female employee at the hospital had filed a grievance charging that Mrs. Carrion had attempted to coerce that employee into signing a false statement of charges against Mr. Cagan. The Shulman memorandum concluded, "I respectfully suggest that Mrs. Carrion is unfit to work here."
In addition, the court found that two unions, Local 1199 of the Drug and Hospital Workers Union, which represented Yeshiva's employees at Lincoln Hospital, and District Council 37, which represented City employees at Lincoln, demanded that Mrs. Carrion be discharged and threatened a work stoppage. Finally, on October 28, 1969, Mr. Silverberg sent a memo to Mrs. Carrion, which is set forth in the margin,*fn1 suspending her with pay for no longer than three weeks pending investigation and indicating that she might be requested to appear for investigatory conferences. Mrs. Carrion refused to accept Silverberg's authority to suspend her, refused to absent herself from the hospital and sent a letter on October 29th to this effect to Dr. Lubell, with copies to six other officials. Her letter is also set forth in the margin.*fn2
On October 31, 1969, after consulting counsel and a city administrator, Silverberg discharged Mrs. Carrion for insubordination. Mrs. Carrion once more amended her complaint before the Commission to include the acts of suspension and discharge.
In its Final Decision and Order of January 22, 1970, the City Commission on Human Rights found that Mrs. Carrion had been discriminated against because of her race with respect to the first two job opportunities we have discussed, and that her suspension and discharge were in retaliation for her opposition to discriminatory practices. The Commission ordered Mrs. Carrion's reinstatement at Lincoln Hospital with back pay in the amount of $3,200.14 plus the sum of $100 compensatory damages. Yeshiva thereupon commenced an Article 78 proceeding in the New York Supreme Court to review the Commission's ...