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11/20/87 Mona G. Gold, v. Gallaudet College

November 20, 1987

MONA G. GOLD, APPELLANT

v.

GALLAUDET COLLEGE, ET AL. 1987.CDC.489 DATE FILED: NOVEMBER 20, 1987



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Civil Action No. 83-02291.

This is an appeal from a judgment in favor of defendants Gallaudet College and certain of its employees in an action by plaintiff Mona Gold alleging employment discrimination in violation of her rights under Title VII of the Civil Rights Act of 1964. Gold also seeks reversal of the district court's dismissal by pre-trial order of her claims under 42 U.S.C. ยง 1981 and of the court's refusal to exercise pendant jurisdiction over her state tort and contract claims. Our decision upholds the district court's judgment on the Title VII claim and affirms the dismissal of all other causes of action. I. Introduction

Gallaudet College is a private liberal arts college for deaf students in the District of Columbia. Gold is a graphic artist hired by Gallaudet to prepare materials for the education of hearing-impaired secondary and elementary school students. Gold's claim arises from the decision of supervisor Dr. Donald Torr to promote her co-worker, Daniel Skripkar, to the position of Gold's immediate supervisor as Director of the College's Arts and Photography Services . Gold argued that she was more qualified for the position but was passed over because of her sex (female) and religion (Jewish).

Gold also contended that she was subjected to adverse employment actions by Skripkar, Torr and Gallaudet in retaliation for her protest of Skripkar's promotion. Shortly before Skripkar's promotion, Gold had been transferred to another building at the college ("the Learning Center") and given different responsibilities. Gold claimed that the later decision to return her to the graphic arts department and to assign her less desirable work was motivated by discriminatory animus. In support of her contention that Skripkar's anti-semitic prejudice was a motivating factor in this decision, Gold offered uncontroverted evidence that Skripkar had referred to her as a "kike" at least once prior to his promotion.

After the district court dismissed all other causes of action, the case proceeded to trial on her Title VII claims alone. Alter a seven day bench trial the district court found that Gold had not been subject to discrimination in violation of the statute. While the district court breed that Gold had made out a prima facie case of discrimination under McDonnell Douglas v. Green 411 U.S. 792 (1973), it decided that Gold had failed to prove by a preponderance of the evidence that the legitimate business reasons proferred by defendants in rebuttal were pretexts for discrimination. After reviewing the record in this case, we conclude that the district court's findings are not clearly erroneous and affirm the judgment in favor of defendants. II. Title VII claims

A. Failure to Promote and Retaliation

Prior to the promotion of Skripkar, John Scott occupied the position of APS supervisor. When Scott decided to leave the position in 1982, Torr (the senior supervisor] and Scott met to discuss a replacement. Torr testified that he wanted to promote from within the department because he thought the unit was overstaffed, and that be relied on Scott's recommendation because Scott had worked closely with all members of the staff. Scott and Torr did not solicit applications from the staff or request submissions of updated resumes. However, Scott stated that he considered everyone in the department for the job. After discussing various individuals, Scott and Torr met with Skripkar and selected him for the position of APS supervisor.

Torr testified that he relied heavily on Scott's view of the comparative skills of Gold and Skripkar. The position of supervisor required skills in layout design, an area in which Scott considered Skripkar superior to Gold. In addition, Scott testified that he had a poor personal opinion of Gold's work, and that his decision was influenced by the fact that the APS supervisor would be required to work closely with the director of the print shop, who also disliked Gold's work.

The record indicates that Scott's opinion of Gold was not inconsistent with her previous employment evaluations. A number of APS supervisors had intermittently criticized some aspects of her work habits and quality of work. Skripkar, in contrast, received only one formal evaluation during his tenure at the APS, since he was designated a temporary employee. Torr testified that Skripkar's work was rated "distinguished". Although Gold introduced testimony by fellow workers that Skripkar often made derogatory remarks about co-workers no adverse criticism by supervisors of Skripkar's work or interpersonal skills was introduced. In sum, there is sufficient evidence in the record to support a business judgment that Gold was not the ideal person for the job of supervisor, and that Skripkar was not clearly less qualified.

In addition, there is ample evidence to rebut Gold's contention that the decision to reassign her permanently to the main APS work area from the Learning Center was retaliatory. The record shows that Gold had repeatedly expressed dissatisfaction with her working conditions at the Learning Center, including the distractions of her open work space and the lack of security for her possessions. During the course of ongoing discussions with Gold addressing the security problems, Torr suggested re-assigning plaintiff to the main APS center. There is evidence that this possibility was seriously considered before Gold registered her objection to Skripkar's promotion and brought the "kike" remark to Torr's attention. Torr further testified that he was never convinced that Gold was needed at the Learning Center and that the increased workload at the the APS made the transfer a desirable solution. These facts support the district court's conclusion that the transfer was motivated by legitimate business considerations rather than a retaliatory motive.

Gold contends that the college's failure to openly solicit applications was a deviation from past practice which conclusively proves discrimination. She claims that the college internal guidelines required posting of the APS supervisor opening. However, the district court found that the school had promulgated a regulation which specifically exempted intra-departmental promotions from the posting and notice requirement. In addition, the court credited testimony by two employees of the college personnel office that numerous internal promotions had been made using the new procedure. Since this method of promotion from within was settled practice in the university, the court did not consider it competent evidence of discriminatory animus.

Gold also faults the court's refusal to hold that the lack of established, objective selection criteria sufficed to rebut the defendants' showing that their reasons for promoting Skripkar were not pretextual. The courts have generally recognized that a closed and ad hoc selection process may sometimes serve as a mask for the discriminatory preferences of the decision-maker. See, e.g., Crawford v. Western Electric Co., 614 F.2d 1300, 1319 (5th Cir. 1980); Rogers v. International Paper Company, 510 F.2d 1340 (8th Cir. 1975). If there is a statistical demonstration that a protected class has failed to advance in the workplace, informal selection -- especially at the discretion of a privileged, ensconced group -- can be weighty evidence that decisions are impermissibly motivated. See Metrocare v. Washington Metro Area Transit Authority, 679 F.2d 922, 929 (D.C. Cir. 1982). However, selections based on informal and impressionistic criteria are not always unlawful in themselves, since "in all fairness to applicants and employers alike decisions about hiring and promotion in supervisory and managerial jobs cannot be realistically made using objective standards alone." Rogers v. International Paper Company, 510 F.2d at 1345. Additional evidence is needed to buttress a claim of discrimination against an employer who uses poorly standardized or subjective procedures. For example, such procedures acquire greater significance when considered in the contest of an overall pattern of disparate impact on a protected group.

Gold's case relies primarily on proof of disparate treatment rather than disparate impact. As the district court found, Gold failed to put forward any competent evidence of a "pattern or practice" of discrimination against women and Jews at Gallaudet. Only evidence concerning hiring within Gold's unit was presented. The district court noted that, of the small number of individuals occupying supervisory positions within the Model Secondary School for the Deaf ...


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