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

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


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Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions.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. § 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 art group, about one third were women, There are insufficient numbers to analyze the incidence of Jewish supervisors.

We are not unaware of the potential for unfairness in the use of procedures such as the ones challenged here. We recognize that any subjective process disfavors potential Title VII plaintiffs, since the lack of overt criteria makes it more difficult for the court to ferret out discriminatory motive. However, "Title VII protects employees against discrimination -- not against all foibles in employment relationships." O'Connor v. Peru State Colleges, 781 F.2d 632, 638 and n.3 (8th Cir. 1986). "ot every procedural infirmity gives rise to a violation [of Title VII]." Oates v. District of Columbia, No. 85-03997 (D.C. Cir. 1987) at 14. While Gallaudet's procedure here was not a model of open and fair decisionmaking, it does not automatically follow that it was a mask for impermissible discrimination. The court's conclusion that the defendant rebutted Gold's accusation of discriminatory intent with plausible, non-pretextual reasons was supported by competent evidence, and we can find no reason to disturb it.

B. Harrassment

On appeal, Gold advanced the argument that the promotion of Skripkar to the supervisory position constituted "religious harrassment" by the College in violation of Title VII. Gold argued that Torr's decision to promote Skripkar to the position of Gold's immediate supervisor despite Torr's awareness of Skripkar's anti-semitic remark created an intolerable and "tainted" work environment for Gold. By subjecting her to the distress of working for an anti-semite, Gallaudet allegedly engaged in harrassment in violation of Title VII.

Gold's claim of "harrassment" evinces a misunderstanding of the law and is without merit. It is true that employment discrimination is an expansive concept, see Meritor Savings Bank v. Vinson 106 S. Ct. 2399 (1986) ("urely psychological aspects" of a workplace environment are included in "terms and conditions of employment" under Title VII, and need not lead to concrete economic injury to establish a violation]. Derogatory remarks, if sufficiently frequent, may create a pervasively hostile atmosphere actionable under Title VII. See, e.g., Carter v. Duncan-Huggins, 727 F.2d 1225 (D.C. Cir. 1984) However, Skripkar's anti-semitic remark(s) did not contribute to the "tainted" atmosphere which Gold claims resulted from his promotion, since Skripkar made them before he became Gold's supervisor. Following Skripkar's promotion, there is no evidence on the record whatsoever that Gold was the special target of his anti-semitic animus.

Gold nevertheless asserts that Skripkar's remarks prove that he is an anti-semite, and that working under an anti-semitic boss humiliates and distresses her. She claims that Gallaudet is liable under Title VII for creating and tolerating this situation. The short answer to this argument is that Title VII proscribes action, not status. It protects employees from overt hostility but not from hateful thoughts. The promotion of a racist or anti-semite does not violate Title VII unless it leads to intolerable behavior or results in the deprivation of benefits. The employer "cannot change the personal beliefs of his employees but [only] let it be known that . . . harassment will not be tolerated, and he can take all reasonable measures to enforce this policy." DeGrace v. Rumsfeld, 614 F.2d 796 (1st Cir. 1980). Gallaudet took deliberate steps to minimize the effect of Skripkar's prejudicial attitudes on Gold. Alter Torr learned of the "kike" incident, Skripkar was swiftly and decisively reprimanded by the Vice President of the College, Robert Davila. Davila informed Skripkar that his behavior would not be tolerated in the future and that his promotion would be reconsidered if he repeated the remark. Given these facts, the court's conclusion that Gallaudet did all it was obliged to do in this case was reasonable. III. Section 1981 and state law claims

Gold challenges the district court's dismissal of her claim under section 1981 and its refusal to exercise pendant jurisdiction over her state law claims. Plaintiff argues that she was deprived of a jury trial because of these improper dismissals. We conclude that the district court's disposition of these claims was not reversible error.

In explaining its dismissal of Gold's § 1981 claim, the district court held that § 1981 creates a cause of action for racial discrimination not discrimination on the basis of sea and religion as alleged by Cold. The Supreme Court's rulings in St. Francis College v. Al-Khazraji, 107 S. Ct. 2022, 2028 (1987) and its companion case, Shaare Tefila Congregation v. Cobb, 107 S. Ct. 2019 (1987), however, strongly suggest that § 1981 creates a cause of action for persons suffering discrimination on the basis of their religious or ethnic identity. The Second Circuit has impliedly found that § 1981 supports an action alleging employment discrimination against a Jew. See Krulik v. Bd. of Educ. of City of New York, 781 F.2d 15 (2d. Cir. 1986).

We need not decide in this case whether this extended coverage would support Gold's request for reinstatement of her § 1981 claim. In rejecting Gold's Title VII claims, the district court made findings of fact which are dispositive against any allegations of discrimination under § 1981. Under the doctrine of Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322 (1979), the district court's dismissal of the § 1981 claim was at most harmless error. Parklane permits offensive use of collateral estoppel to prevent relitigation before a jury of facts found in a full hearing before a court sitting in equity. The application of that doctrine is especially fitting here, where the court proceeded under a "specific statutory scheme contemplating the prompt trial of a disputed claim" without a jury. Id. at 339.

Gold argues that the D.C. Circuit has suggested a contrary rule: that prior equitable determination does not collaterally estop relitigation of the same issues in a later jury trial. See Bouchet v. National Urban League, Inc., 730 F.2d 799 (D.C. Cir. 1984). However, Bouchet was decided on other grounds, and the opinion cites approvingly to pre-Parklane cases that were repudiated in the Parklane decision. See, e.g., Ritter v. Mount St. Mary's College, 814 F.2d 986, 990 (4th Cir. 1987). We conclude that provides sufficient authority to apply collateral estoppel here where the very same issues and facts relevant to the § 1981 claim were fully aired before the judge below.

Finally, we hold that the district court's dismissal of the state law claims was not improper. Where there is no independent jurisdictional basis for Gold's state law claims, the decision to entertain pendant jurisdiction is wholly discretionary. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The court's decision not to exercise pendant jurisdiction was appropriate in this case, since there is a marked discrepancy between the relief available under Title VII (back pay and promotion) and under the state causes of action (full compensatory and punitive damages) and a concomitant danger that state claims "might well become the predominant element of the lawsuit." Bouchet (supra) at 805. We conclude that the district court's decision to dismiss the state law claims was well within the court's discretion,

The judgment of the district court is AFFIRMED.

JUDGMENT

This case was reviewed on the record on appeal from the United States District Court for the District of Columbia and was briefed and argued by counsel for appellant and appellees. While the issues presented occasion no need for an opinion, they have been accorded full consideration by the Court. See D.C. Cir. Rule 14(August 1, 1987). On consideration thereof, it is

ORDERED and ADJUDGED, by this Court, that the judgment of the District Court appealed from in this cause is hereby affirmed for the reasons set forth in the accompanying memorandum. It is

FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b)(2) (August 1, 1987). This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

PER CURIAM DECISION

19871120

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