Appeal by Citibank, N.A. from: (1) a decision of the Southern District of New York, Robert L. Carter, District Judge, refusing to set aside a jury verdict finding discrimination by employer against plaintiff, its employee, under 42 U.S.C. § 1981 (1982), and intentional infliction of emotional distress under New York law, based on Citibank's selection of six minority employees, including plaintiff, for polygraphing, and awarding $75,000 in compensatory and punitive damages to plaintiff, and (2) an opinion of the court finding discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 (1982), based on the same facts. Cross-appeal by plaintiff from dismissal of her claims of constructive discharge against the bank and denial of plaintiff's claim for injunctive relief against future Title VII violations.
MANSFIELD, Circuit Judge:
Citibank, N.A. ("Citibank") appeals a decision of the Southern District of New York, Robert L. Carter, District Judge, refusing to set aside a jury award of $75,000 in damages to Eva Martin, a black woman who formerly worked as a teller at one of its branches. The jury found discrimination under 42 U.S.C. § 1981 (1982) and intentional infliction of emotional distress under New York law, based on Citibank's selection of six minority employees, including Martin, for polygraphing during an investigation of missing funds at the bank. Only one white employee was polygraphed. Citibank also appeals a decision by Judge Carter that the bank's conduct constituted discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 (1982). The bank maintains that there was insufficient evidence as a matter of law to demonstrate either discrimination in violation of § 1981 or Title VII or to constitute intentional infliction of emotional distress under state law. We agree and reverse.
Martin cross-appeals from Judge Carter's dismissal of her claims under § 1981 and Title VII of constructive discharge from the branch to which she was transferred after the polygraph incident and denial of her claim for injunctive relief against future Title VII violations. Finding no error in either of these rulings, we affirm them.
At the end of September 1980, Eva Martin began work as a teller at Citibank's City Hall branch, 250 Broadway, New York City. Martin's responsibilities as a teller included processing deposits at Citibank's automated teller machines and express deposit boxes. Her work record was admirable, her relations with co-workers were very good, and at one point she assisted the bank in foiling a robbery.
In March, April, and May of 1981, the bank experienced several unexplained disappearances of items including cash, checks, a money order and a passbook. About half of the missing items had been deposited in the automated teller machines or express deposit boxes. The others disappeared from the work area near the head teller's station.
Citibank's Internal Investigations Unit began an inquiry, directed by Geoffrey Obici, an assistant manager in the bank's investigation and potential loss department and an investigator in its audit department. Branch officials forwarded to Obici four memoranda describing the various disappearances and identifying seven individuals known to have been involved in transactions affecting some of the items that later disappeared. Neither the memoranda nor bank records contained any information as to the race of these seven individuals, five of whom were black, one hispanic and one white. Obici also spoke several times with Assistant Branch Manager Larry Cook, who gave him the names of the operations employees at the bank. Martin's name was not mentioned in any of the memoranda analyzing the missing items.
During the relevant period the City Hall branch had 26 employees, including Martin, of whom 15 were on its operations staff, which consisted of tellers and others whose duties entailed the handling of funds.*fn1 Of the 26, eight were black, two hispanic, one Indian, and the remainder white. The 15-member operations staff included seven blacks, one hispanic, one Indian, and six whites. Because the bank lacked complete records regarding the persons who had handled the missing items, Obici's supervisor instructed him to polygraph the branch, which Obici interpreted as meaning that he should polygraph the operations staff employees, the only employees who handled money transactions for the bank.*fn2 A manual given to all new employees advised them that polygraphs might be required during bank investigations.*fn3
Obici began to set up interviews with employees on the operations staff in early June 1981. By the time he concluded his investigation, seven of the bank's operations staff employees were polygraphed, including Martin. Of those seven, five were black, one hispanic and one white. The first person polygraphed, a hispanic, tested inconclusively, but after further discussion was sent back to work. The second person tested was cleared, but the third failed the polygraph and was discharged. Martin, tested immediately afterwards, was cleared and sent back to work when her test revealed nothing suspicious. Three others were subsequently tested, including one white woman. All three cleared.
Despite being exonerated, Martin was upset at having been suspected and questioned Cook repeatedly as to why only blacks had been tested, particularly since he had told her initially that everyone at the branch would be polygraphed. Still discontent after her return from sick leave (due to a burn) she arranged, at her own request, to be transferred to the bank's 23rd Street Branch. At the 23rd Street Branch, Martin complained of harassment by her superiors and co-workers, including: the loud mention by her supervisor in public of the polygraphing; twice being required (contrary to bank policy) to process deposits while serving customers; being given the wrong combination to the night deposit safe on one occasion; one having her deposits blocked from being credited by someone using her supervisor's computer card; and having her lunch hour repeatedly changed. As a result of these events, she resigned about four weeks later. Bank records reflect that a week before she left she had received a warning regarding complaints from customers and co-workers about her attitude.
After exhausting her administrative remedies Martin sued Citibank, alleging claims of disparate treatment and constructive discharge under Title VII and § 1981 and alleging intentional infliction of emotional distress under New York law. She based both her disparate treatment claims and her intentional infliction of emotional distress claim on the theory that she was polygraphed because of her race.
At the three-day trial held during April 1984 Martin testified about her experiences at both branches. She also stated that Clarence Sexton, a black supervisory teller at the City Hall Branch and one of those polygraphed, had in response to her question as to why he was polygraphed despite his eight years there, replied, "once you're a black, you are all in the same boat."
Martin's sole other witness was a statistical expert, Dr. Jeffrey Tanaka, who testified that there was only a .5% chance that a randomly selected group of seven individuals chosen from the 26 employees at the bank would include six or more minorities. In addition, he said that there was a 3.2% chance of randomly selecting from the 15 people on the operations staff a group of seven that included at least six minority persons. This analysis counted blacks and hispanics as minorities. Tanaka stated that statisticians consider a phenomenon statistically significant (that is, unlikely to have happened accidentally) if the probability of it happening by chance is under 5%. On this basis, he found race a significant factor in the bank's selection for testing.
Citibank presented testimony from Obici that he did not know the race of the employees at the branch, that bank records do not contain race information, and that he did not learn of Eva Martin's race until she arrived for the interview. He stated that he was the one who selected individuals for polygraphing and that he made his choices from the operations staff, based chiefly on each person's potential access to the missing funds. He stated that he placed three people with whom he had had prior dealings when he had personally worked in the City Hall Branch (two white, one black) on the bottom of his mental list because he considered them "least likely" to have been involved in the thefts and that he did not recall having been given the names of two operations staff members (one white and one Indian). Similarly, Cook testified that he had given Obici the names ...