Barbano v. Madison County

922 F.2d 139, 1990 U.S. App. LEXIS 22494, 55 Empl. Prac. Dec. (CCH) 40,461, 54 Fair Empl. Prac. Cas. (BNA) 1287

• Court: Court of Appeals for the Second Circuit
• Decided: December 28, 1990
• Docket: Nos. 392, 546, Dockets 90-7422, 90-7476
• Status: Published

Opinions

FEINBERG, Circuit Judge:

Defendants appeal from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, J., finding them liable for gender discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and awarding plaintiff Maureen E. Barbano back pay, prejudgment interest and attorney’s fees. After a bench trial, the district court found that defendants Madison County, the Madison County Board of Supervisors (the Board) and the Madison County Veterans Affairs Committee (the Committee) discriminated against Barbano on the basis of her sex in rejecting her application for the job of Director of the Madison County Veterans Service Agency. This appeal raises a number of questions, including whether evidence of discrimination during an interview conducted by the Committee supports a finding that the Board discriminated by adopting the Committee’s recommendation in making the hiring decision. Barbano cross-appeals on grounds that the district court erred by not awarding “front pay” (prospective wages) and granting a mandatory injunction that she be appointed Director upon the next vacancy. For reasons given below, we affirm the judgment of the district court.

Background

The Madison County Veterans Service Agency offers counseling, information and other services to veterans and their dependents. In February 1980, the position of Director of the Agency became vacant. The Director holds an administrative position and is responsible for supervising veterans’ programs for the county. The job description for that position required:

Thorough knowledge of federal, state and local laws, rules and regulations pertaining to veterans’ benefits and services; thorough knowledge of forms, methods and procedures and records necessary for the processing of veterans’ benefits claims; demonstrated ability in public relations; ability to express ideas clearly and concisely orally and in writing; good judgment; willingness to accept responsibility; resourcefulness; interest; tact; good physical condition.

The Board decided to hold interviews before appointing a new Director. The interviews were to be conducted by the Committee, which would then submit its recommendation to the Board. Barbano applied for the position and was interviewed in February 1980 by Douglas S. Newbold, Chairman of the Committee, and Committee members Donald Greene, Harrison Hol-dridge, James E. Powell and James Rafte. Don R. Callahan, who took part in a number of the interviews in his capacity as Chairman of the Board but not as a voting member of the Committee, also participated in the interview.

Before entering the interview, Barbano heard someone say, “Here are copies of the next resume,” followed by the comment, “Oh, another woman.” The interview began, and after Barbano stated why she thought she was qualified for the job, Greene said that he would not consider “some woman” for the position; Greene then asked Barbano her plans on having a family and whether her husband would object to her transporting male veterans. Barbano said the questions were irrelevant and discriminatory. No one responded, except for Greene, who insisted on answers to his questions. Barbano again protested that the questions were discriminatory. Greene replied that the questions were relevant because he did not want to hire a woman who would get pregnant and quit. Newbold also said the questions were relevant. None of the interviewers rebuked Greene, objected to the questions or told Barbano that she need not answer them. Barbano stated that if she decided to have a family she would take no more time off than medically necessary. Greene once again asked whether Barbano’s husband would object to her “running around the country with men” and said he would not want his wife to do it. Barbano said she was not his wife. The interview concluded after Barbano asked some questions about insurance.

The Committee interviewed several other candidates, and found all of them (including Barbano) to be qualified for the position. Following the interview process, the interviewers ranked the applicants and unanimously agreed to recommend Allan Wagner to the Board. In March 1980, the Committee submitted the recommendation to the Board in the form of a resolution, and the Board, which consisted of 19 members, unanimously approved the resolution at a public meeting. Shortly thereafter, Wagner began working as Director and continues to occupy the position.

Barbano commenced this action in 1982, asserting claims under Title VII and 42 U.S.C. § 1983. After a three-day bench trial, Judge McAvoy, in an opinion dated September 13, 1988, dismissed the section 1983 claim because it was based only on Title VII violations. The court then found that Barbano had established a prima facie case of discrimination under Title VII, thus bringing into issue appellants’ purported reasons for not hiring her. Appellants provided four reasons why they chose Wagner over Barbano, which the district court rejected as either unsupported by the record or a pretext for discrimination in light of Barbano’s interview. The district court then found that due to Barbano’s education and experience in social services, appellants had failed to prove that, absent the discrimination, they still would not have hired Bar-bano. Accordingly, the court awarded Bar-bano back pay, prejudgment interest and attorney’s fees. Subsequently, the court denied Barbano’s request for front pay and a mandatory injunction ordering her appointment as Director upon the next vacancy. This appeal and cross-appeal followed.

Discussion

Appellants argue that the district court erred in finding that Greene’s statements during the interview showed that the Board discriminated in making the hiring decision, and that there was no direct evidence of discrimination by the Board, making it improper to require that appellants prove that they would not have hired Bar-bano absent the discrimination. Barbano in turn challenges the adequacy of the relief awarded to her by the district court.

A. Discrimination

At the outset, we note that Judge McA-voy’s opinion predated Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1990), in which the Supreme Court made clear that a “pretext” case should be analyzed differently from a “mixed motives” case. Id. 109 S.Ct. at 1788-89. Judge McAvoy, not having the benefit of the Court’s opinion in Price Wa-terhouse, did not clearly distinguish between the two types of cases in analyzing the alleged discrimination. For purposes of this appeal, we do not think it is crucial how the district court categorized the case. Rather, we need only concern ourselves with whether the district court’s findings of fact are supported by the record and whether the district court applied the proper legal standards in light of its factual findings.

Whether the case is one of pretext or mixed motives, the plaintiff bears the burden of persuasion on the issue of whether gender played a part in the employment decision. Id. at 1788. Appellants contend that Barbano did not sustain her burden of proving discrimination because the only evidence of discrimination involved Greene’s statements during the interview, and Greene was an elected official over whom the other members of the Board exercised no control. Thus, appellants maintain, since the hiring decision was made by the 19-member board, evidence of discrimination by one member does not establish that the Board discriminated in making the hiring decision.

We agree that discrimination by one individual does not necessarily imply that a collective decision-making body of which the individual is a member also discriminated. However, the record before us supports the district court’s finding that the Board discriminated in making the hiring decision.

First, there is little doubt that Greene's statements during the interview were discriminatory. He said he would not consider "some woman" for the position. His questioning Barbano about whether she would get pregnant and quit was also discriminatory, since it was unrelated to a bona fide occupational qualification. King v. Trans World Airlines, 738 F.2d 255, 258 n. 2 (8th Cir.1984). Similarly, Greene's questions about whether Barbano's husband would mind if she had to "run around the country with men," and that he would not want his wife to do it, were discriminatory, since once again the questions were unrelated to bona fide occupational qualifications. See Price Waterhouse, 109 S.Ct. at 1786; 29 C.F.R. § 1604.7.

Moreover, the import of Greene's discriminatory questions was substantial, since apart from one question about her qualifications, none of the interviewers asked Barbano about other areas that allegedly formed the basis for selecting a candidate. Thus, Greene's questioning constituted virtually the entire interview, and so the district court properly found that the interview itself was discriminatory.

Next, given the discriminatory tenor of the interview, and the acquiescence of the other Committee members to Greene's line of questioning, it follows that the judge could find that those present at the interview, and not merely Greene, discriminated against Barbano. Judge McAvoy pointed out that the Chairman of the Committee, Newbold, thought Greene's discriminatory questions were relevant. Significantly, Barbano protested that Greene's questions were discriminatory, but no one agreed with her or told her that she need not answer. Indeed, no one even attempted to steer the interview in another direction. This knowing and informed toleration of discriminatory statements by those participating in the interview constitutes evidence of discrimination by all those present. Cf. Price Waterhouse, 109 S.Ct. at 1794 & n. 16; Blake v. J.C. Penney Co., 894 F.2d 274, 278 (8th Cir.1990). That each member was independently elected to the Board does not mean that the Committee itself was unable to control the course of the interview. The Committee had a choice of how to conduct the interview, and the court could find that the Committee exercised that choice in a plainly discriminatory fashion.

This discrimination directly affected the hiring decision. At the end of the interviewing process, the interviewers evaluated the candidates, and on that basis submitted a recommendation as to which candidate to hire for the position. "Evaluation does not occur in a vacuum. By definition, when evaluating a candidate to fill a vacant position, one compares that candidate against other eligible candidates." Berl v. County of Westchester, 849 F.2d 712, 715 (2d Cir.1988). Appellants stipulated that Barbano was qualified for the position. Again, because Judge McAvoy could find that the evaluation of Barbano was biased by gender discrimination, the judge could also find that the Committee's recommendation to hire Wagner, which was the result of a weighing of the relative merits of Barbano, Wagner and the other eligible candidates, was necessarily tainted by discrimination.

The Board in turn unanimously accepted the Committee's recommendation to hire Wagner, and so the Board's hiring decision was made in reliance upon a discriminatory recommendation. The Supreme Court in Price Waterhouse found that a collective decision-making body can discriminate by relying upon discriminatory recommendations, and we are persuaded that the reasoning in that case applies here as well.

In Price Waterhouse, Ann Hopkins, a candidate for partnership at the accounting firm of Price Waterhouse, alleged that she was refused admission as a partner because of sex discrimination. Hopkins's evidence of discrimination consisted largely of evaluations made by various partners. Price Waterhouse argued that such evidence did not prove that its internal Policy Board, which was the effective decision-maker as to partnership in that case, had discriminated. The Court rejected that argument and found the evidence did establish discrimination:

Hopkins showed that the partnership solicited evaluations from all of the firm’s partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners’ comments were the product of [discrimination]; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins’ case or in the past. Certainly, a plausible — and, one might say, inevitable — conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners’ comments, including the comments that were motivated by [discrimination],

109 S.Ct. at 1794.

In a very significant sense, Barbano presents an even stronger case of discrimination because the only recommendation the Board relied upon here was discriminatory, whereas in Price Waterhouse, not all of the evaluations used in the decision-making process were discriminatory. On the other hand, it is true that the discriminatory content of some of the evaluations in Price Waterhouse was apparent from reading them, whereas here, the recommendation was embodied in a resolution to the Board and a reading of the resolution would not reveal that it was tainted by discrimination. Nonetheless, the facts in this case show that the Board was put on notice before making the appointment that the Committee’s recommendation was biased by discrimination.

Barbano was a member of the public in attendance at the Board meeting in March 1980 when the Board voted to appoint Wagner. Before the Board adopted the resolution appointing Wagner, Barbano objected and asked the Board if male applicants were asked the questions she was asked during the interview. At this point, the entire Board membership was alerted to the possibility that the Committee had discriminated against Barbano during her interview. The Committee members did not answer the question, except for Newbold, who evaded the issue by stating that he did not ask such questions. The Board’s ability to claim ignorance at this point was even further undermined by the fact that the Chairman of the Board, Callahan, was present at many of the interviews, including Barbano’s, in his role as Chairman of the Board. Callahan did not refute Barba-no’s allegations, implying that they were worthy of credence, and none of the Board members even questioned Callahan on the matter.

It is clear that those present understood Barbano was alleging that she had been subjected to discrimination during her interview. John Patane, a member of the Board who had not interviewed Barbano, asked Barbano whether she was implying that Madison County was not an equal opportunity employer. Barbano said yes. Patane said the County already had their “token woman.” Callahan apologized to Barbano for “any improper remarks that may have been made,” but an apology for discrimination does not constitute an attempt to eliminate the discrimination from the hiring decision. Even though the Board was aware of possible improprieties, it made no investigation whatsoever into the allegations and did not disclaim any reliance upon the discrimination. In short, the circumstances show the Board was willing to rely on the Committee’s recommendation even if Barbano had been discriminated against during her interview. On these facts, it was not clearly erroneous for the district court to conclude that Barbano sustained her burden of proving discrimination by the Board.

B. The Employer’s Burden

Having found that Barbano carried her burden of proving discrimination, the district court then placed the burden on appellants to prove by a preponderance of the evidence that, absent the discrimination, they would not have hired Barbano for the position. Appellants argue that this burden is only placed on an employer if the plaintiff proves discrimination by direct evidence, and since Barbano’s evidence of discrimination was merely circumstantial, the district court erred by placing the burden of proof on them. Appellants, however, misapprehend the nature of Barba-no’s proof and thus the governing legal standard.

The burden is properly placed on the defendant “[o]nce the plaintiff establishes by direct evidence that an illegitimate factor played a motivating or substantial role in an employment decision.” Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir.1989). Thus, the key inquiry on this aspect of the case is whether the evidence is direct, that is, whether it shows that the impermissible criterion played some part in the decision-making process. See Price Waterhouse, 109 S.Ct. at 1791; Grant, 880 F.2d at 1569. If plaintiff provides such evidence, the factfinder must then determine whether the evidence shows that the impermissible criterion played a motivating or substantial part in the hiring decision. Grant, 880 F.2d at 1569.

As we found above, the evidence shows that Barbano’s gender was clearly a factor in the hiring decision. That the discrimination played a substantial role in that decision is shown by the importance of the recommendation to the Board. As Rafte testified, the Board utilizes a committee system, and so the Board “usually accepts]” a committee’s recommendation, as it did here when it unanimously voted to appoint Wagner. Had the Board distanced itself from Barbano’s allegations of discrimination and attempted to ensure that it was not relying upon illegitimate criteria in adopting the Committee’s recommendation, the evidence that discrimination played a substantial role in the Board’s decision would be significantly weakened. The Board showed no inclination to take such actions, however, and in adopting the discriminatory recommendation allowed illegitimate criteria to play a substantial role in the hiring decision.

The district court thus properly required appellants to show that the Board would not have hired Barbano in the absence of discrimination. “The employer has not yet been shown to be a violator, but neither is it entitled to the ... presumption of good faith concerning its employment decisions. [A]t this point the employer may be required to convince the factfinder that, despite the smoke, there is no fire.” Price Waterhouse, 109 S.Ct. at 1798-99 (O’Connor, J., concurring).

Judge McAvoy noted in his opinion that appellants claimed they chose Wagner over Barbano because he was better qualified in the following areas: (1) interest in veterans’ affairs; (2) experience in the military; (3) tactfulness; and (4) experience supervising an office. The judge found that the evidence before him supported only appellants’ first and second reasons for refusing to hire Barbano, but acknowledged that the Committee members “were enamored with Wagner’s military record and involvement with veterans’ organizations.” However, neither of these is listed as a job requirement in the job description, although the district court found that membership in a veterans’ organization may indicate an interest in veterans’ affairs. Nonetheless, the district court found that given Barba-no’s “education and experience in social services,” appellants failed to carry their burden of proving by a preponderance of the evidence that, absent discrimination, they would not have hired Barbano.

The district court properly held appellants to a preponderance of the evidence standard. Price Waterhouse, 109 S.Ct. at 1795. Appellants contend that the district court “impermissibly substituted its own opinion on the matter” in rejecting their reasons for not hiring Barbano. This is a curious argument for appellants to offer, since Judge McAvoy as the trier of fact was required to have an opinion — more precisely, to make a finding — on whether the asserted reasons for the discharge sustained appellant’s burden of proving that they would not have hired Barbano absent the discrimination. In any event, our review of the record indicates that the district judge did not commit error.

At the time of the hiring decision in 1980, Barbano had been a Social Welfare Examiner for Madison County for the three previous years. In this position, she determined the eligibility of individuals for public assistance, medicaid or food stamps, and would then issue or deny the individual’s application based on all federal, state and local regulations pertaining to the program from which the individual was seeking assistance. Barbano was thus familiar with the operation of public assistance programs, knew how to fill out forms relating to benefits and had become familiar with a number of welfare agencies that could be of use to veterans. Barbano was also working towards an Associate Degree in Human Services at the time. Rafte testified that Barbano’s resume was “very impressive.” Moreover, Barbano, unlike Wagner, was a resident of Madison County, and according to Rafte, a candidate’s residency in the county was considered to be an advantage. Finally, Barbano had also enlisted in the United States Marine Corps in 1976, but during recruit training had been given a vaccine that affected her vision. She had received an honorable discharge shortly thereafter.

Wagner had nine years experience as an Air Force Personnel Supervisor, maintaining personnel records, had received a high school equivalency diploma and took several extension classes in management. He had been honorably discharged from the Air Force in 1965 with the rank of Staff Sergeant. Wagner was a member of the American Legion, and his application for the position included recommendations from two American Legion members. However, for the six years prior to his appointment as Director, Wagner’s sole paid employment was as a school bus driver and part-time bartender at the American Legion. Wagner admitted that before he was hired he had no knowledge of federal, state and local laws, rules and regulations pertaining to veterans’ benefits and services, or knowledge of the forms, methods and procedures used to process veteran benefits claims. Wagner also had not maintained liaison with welfare agencies and was unfamiliar with the various welfare agencies that existed in the county.

To be sure, both candidates were qualified for the Director’s position, and it is not our job — nor was it the district court’s — to decide which one was preferable. However, there is nothing to indicate that Judge McAvoy misconceived his function in this phase of the case, which was to ' decide whether appellants failed to prove by a preponderance of the evidence that they would not have hired Barbano even if they had not discriminated against her. The judge found that defendants had not met that burden. We must decide whether that finding was clearly erroneous, and we cannot say that it was.

C. The Adequacy of Relief

Barbano cross-appeals from the district court’s denial of her request for front pay and a mandatory injunction ordering her appointment as Director upon the next vacancy. District courts should fashion remedies ensuring that victims of gender discrimination are made whole. Cf. Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727-28 (2d Cir.1984). A district court is given the sound discretion to determine these remedies, and so our inquiry on the cross-appeal is limited to whether the district court abused its discretion. See Carrero v. New York City Housing Authority, 890 F.2d 569, 579 (2d Cir.1989).

Judge McAvoy awarded Barbano back pay, which covered approximately an eight and one-half year period, prejudgment interest and attorney’s fees, and Barbano ultimately received over $55,000 pursuant to the judgment. On this record, in light of the relief Barbano received, we find the district court did not abuse its discretion in denying Barbano’s request for front pay and a mandatory injunction.

Barbano also contends that the district court abused its discretion because it did not state the reasons for denying a mandatory injunction and front pay. We would be troubled by this if the circumstances indicated that the district court erroneously felt that it was without discretion to award such relief. However, when Barbano moved to vacate the order denying front pay and a mandatory injunction, the district court denied the motion and stated that whether it abused its discretion in failing to award this relief was properly a subject of appeal. The district court was thus aware that it had the discretion to award the relief requested. Although it would have been better had the district court expressly stated its reasons for denying the relief, on this record the denial was tantamount to stating that the relief actually awarded was sufficient to make Barbano whole. Under the circumstances, we do not believe that the failure to give reasons was an abuse of discretion requiring reversal or remand.

We affirm the judgment of the district court.