Title VII case for race discrimination in failure to promote and in discharge as retaliation. United States Magistrate John L. Caden's adverse findings in the United States District Court for the Eastern District of New York upheld except as to retaliation motives of supervisor.
Lumbard, Oakes, and Newman, Circuit Judges. Jon O. Newman, Circuit Judge, concurring.
Althea Davis, a black nurse, filed a complaint in the United States District Court for the Eastern District of New York in January 1982, charging her employer, Downstate Medical Center of the State University of New York ("DMC"), and certain individuals with racial discrimination in failing to promote her in late 1978. Following her discharge from DMC in April 1982, she amended her complaint to charge that she was isolated at work and eventually discharged in retaliation for bringing the discrimination charges.*fn1 After a five-day bench trial, Magistrate John L. Caden found that Davis failed to prove that defendants discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, -3 (1982) ("Title VII"), either in not promoting her or in discharging her.*fn2 Specifically, the magistrate found that Davis's employer adequately explained its conclusion that another applicant was more qualified than Davis for the promotion and that Davis failed to show that the selection was racially motivated. He also concluded that DMC articulated several legitimate reasons for discharging appellant, including her inability to work with others and low productivity, and that Davis failed to prove that the termination was linked to her filing of charges of racial discrimination. On appeal, Davis argues that appellees' articulated reasons for not promoting her are unworthy of credence, and that the evidence shows that, as a matter of law, her discharge was retaliatory.
We summarize the facts as found by the magistrate. Davis began her employment for DMC in June 1977. At that time Davis had master's degrees in nursing and nursing education. In 1978 appellee Anna Boyle became the director of nursing services and, as such, Davis's supervisor. In the summer of 1978 the position of associate director of in-service education became vacant. A search committee screened the applicants, but its role was only advisory, the final decision resting with Boyle. The committee consisted of two white women, including defendant Pohutsky, defendant Dela Vega, who is of Philippine origin, and a black woman. After interviewing all the candidates, n.3 [Footnote Omitted] the committee recommended, in order of preference, Karen Sherman, a white woman, Cynthia Mock, and Rafello Aleto, both Asian women. The committee minutes reflect that none of the other candidates were considered "viable" for the position. Boyle interviewed the three recommended candidates and she also interviewed Davis, under the "affirmative action" policy of interviewing all in-house employee-applicants. Boyle then selected Sherman. The committee guidelines called for a master's degree in nursing; Sherman had a master's in education but had done her teaching, assignments, and papers on nursing. Boyle considered the degree to be equivalent to a master's with a clinical nursing major. Sherman's supervisory and in-service experience surpassed appellant's. The magistrate credited Boyle's testimony that she concluded that Sherman's education and experience made her the best qualified candidate.
Following the appointment of Sherman, appellant filed a complaint with DMC's affirmative action officers, who found no "conclusive evidence" of discrimination after an investigation.*fn4 She then filed a race discrimination complaint with the New York State Division of Human Rights ("SDHR"). In January 1980 the SDHR issued a finding of probable cause.
As a result of conflict between Davis and Sherman, her new supervisor, Boyle reassigned Davis in April 1979 to be an instructor in the Department of Medicine, which included a promotion in rank and salary. Conflicts soon developed between appellant and the head nurses concerning line authority and appellant's role. In an attempt to resolve this problem, Boyle assigned Davis to study the relationship between supervisory staff and those outside of line management, such as clinical specialists. After concluding her research in February 1980, Davis told Boyle that the real problem in the Department of Medicine was racial discrimination. Boyle concluded that the problems Davis had experienced were solely due to her personality. At this time, about one month after SDHR's probable cause finding, Boyle began to document conflicts between Davis and hospital staff in appellant's personnel file. She also delayed Davis's return to her former position in the Department of Medicine. In March 1980, Davis filed another complaint with the SDHR charging retaliation for her prior complaint. Appellant continued to supervise two nursing students and devoted substantial time to completing the work of a committee of which she was the chairperson. In October 1980, Davis returned to the Department of Medicine, but in a new role that did not include orienting nurses and that did not require her to interact with supervisory staff. In March 1981, Boyle prepared a performance evaluation of appellant that recommended nonrenewal of her contract because of lack of ability to work with others and low productivity, as well as poor organizational knowledge, adaptability, and judgment. In March 1982, Boyle again recommended nonrenewal of Davis's contract because of poor response to her in-service program and the absence of certification of any nurse attending her collaborative practice programs. Davis was terminated on April 22, 1982.
It is not disputed that Davis made out a prima facie case of race discrimination in the hospital's failure to promote her. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The hospital, however, met its burden of producing a "legitimate, nondiscriminatory reason for the employee's rejection." Id. First, no member of the selection committee recommended appellant for the job; indeed, she was "not considered viable for this position" by the committee. Second, Boyle explained the basis for concluding at the time of her decision that Sherman was the best-qualified candidate. She also adequately explained why she considered Sherman's master's degree in education to be equivalent to a master's in nursing. Finally, the committee, as to which there was no proof of discrimination in its deliberations, recommended Sherman as its first choice. The employer need not prove that the person promoted had superior objective qualifications, or that it made the wisest choice, but only that the reasons for the decision were nondiscriminatory. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258-59, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980); Powell v. Syracuse University, 580 F.2d 1150, 1156-57 (2d Cir.), cert. denied, 439 U.S. 984, 99 S. Ct. 576, 58 L. Ed. 2d 656 (1978).
After the employer has shown a "legitimate, nondiscriminatory reason" for its action, the employee must demonstrate that the articulated reason is a pretext. See McDonnell Douglas, 411 U.S. at 804. The ultimate burden of persuasion remains at all times with the employee. See Burdine, 450 U.S. at 253. Ultimately, the district court "must decide which party's explanation of the employer's motivation it believes." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). Appellant argues that DMC's stated reasons for failing to promote her are unworthy of credence. The magistrate, however, believed the evidence presented by appellees that Sherman was hired because she was the best candidate. The requirement of Fed. R. Civ. P. 52(a) that factual findings will be set aside only if clearly erroneous and that due regard will be given to the trial court's opportunity to judge the credibility of witnesses applies with equal force to Title VII cases. See, e.g., Martin v. Citibank, 762 F.2d 212, 217 (2d Cir. 1985). Appellant presented no evidence to show that the committee or Ms. Boyle was racially biased. In short, the reasons for hiring Sherman were not so ridden with error that appellees could not have honestly relied upon them. See Lieberman, 630 F.2d at 65. As the magistrate found, the record does not support appellant's contention that the failure to promote her was based, in whole or in part, on racial animus.
Appellant's allegation that appellees discharged her in retaliation for filing the race discrimination charges with the SDHR in violation of section 704(a) of the Civil Rights Act, 42 U.S.C. § 2000e-3(a) (1982), rests on a different footing. A finding of unlawful retaliation is not dependent on the merits of the underlying discrimination complaint. See Sims v. Mme. Paulette Dry Cleaners, 580 F. Supp. 593, 594 (S.D.N.Y. 1984) (citing EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 70 & n.6 (S.D.N.Y. 1975), aff'd without published opinion, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 54 L. Ed. 2d 277, 98 S. Ct. 395 (1977)). The order of proof in a retaliation case follows the McDonnell Douglas standard. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980). Title VII is violated if "a retaliatory motive play[ed] a part in the adverse employment actions," id., even if it was not the sole cause. See, e.g., Abel v. Bonfanti, 625 F. Supp. 263, 268 (S.D.N.Y. 1985); Sims, 580 F. Supp. at 596 & n.9. The magistrate properly found that Davis made out a prima facie case of retaliation: Appellant engaged in protected activity, i.e., the filing of the state discrimination charges; appellees were aware of that activity; she suffered adverse employment decisions; and the protected activity was closely followed by adverse actions, such as denial of a merit pay increase and documentation of conflict in appellant's file. See Grant, 622 F.2d at 46; Sims, 580 F. Supp. at 598 & n.23.
Appellees then sought to demonstrate legitimate, non-discriminatory reasons for the discharge. Evidence credited by the magistrate was to the effect that Davis had serious conflict with other nurses in positions of authority. These conflicts resulted in appellant's move to the Department of Medicine in April 1979, her removal from that department in October 1979, and the postponement of her scheduled return in February 1980 until October 1980. The record also supports findings that Davis's work productivity was low, that she did not accept supervision, that she responded to conflict with angry correspondence, often over relatively trivial matters, and that staff nurses responded poorly to appellant's in-service programs.
Once the employer establishes a legitimate, nondiscriminatory motive, the presumption of retaliation drops from the case and the employee must demonstrate that the stated reasons were pretextual. See Burdine, 450 U.S. at 255 & n.10, 256. Again, the trier of fact must ultimately decide which party's explanation of the employer's motivation it believes. Aikens, 460 U.S. at 716. The magistrate explicitly stated that he believed the reasons given by the appellees for the discharge were the true reasons, and rejected appellant's claim that the stated reasons were pretextual.
It is true that the magistrate's opinion does not discuss what at first blush seems a significant admission by Boyle.*fn5 In response to a question on cross-examination as to whether appellant's filing of charges with the SDHR had any ...