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LEWIS v. AMERICAN FOREIGN SERV. ASSN.

April 12, 1993

TURNA R. LEWIS, Plaintiff,
v.
AMERICAN FOREIGN SERVICE ASSOCIATION, Defendant.



The opinion of the court was delivered by: RICHEY

 I. INTRODUCTION

 Before the Court is a race discrimination claim brought by the Plaintiff, Turna R. Lewis, an African-American female, against the American Foreign Service Association (AFSA), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Trial was held in this case on March 5 and 10, 1993. *fn1" The Court, after careful consideration of the submissions of the parties, the testimony of witnesses, the exhibits, the arguments of counsel, the applicable law, and the entire record herein, concludes that the Plaintiff has not proved that the Defendant AFSA discriminated against her because of her race. The Court shall therefore enter judgment for the Defendant on the Title VII claim. The following shall constitute the Court's Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 II. BACKGROUND

 The Plaintiff is a young African-American woman who is brilliantly educated, with a bachelor's degree in political science, a master's degree in public administration, and a law degree from the University of Denver School of Law. In April 1990, she became General Counsel for the Defendant, AFSA, a professional association and labor union for government employees in the foreign service. Immediately prior to her tenure as General Counsel, she served as assistant counsel for the National Treasury Employees Union (NTEU). She has also served as budget/policy analyst for the Colorado Joint Budget Committee, legal assistant in the Environmental Litigation Section of the Department of Justice, and attorney advisor to the Benefits Review Board at the United States Department of Labor.

 In July 1991, the Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC), claiming that AFSA discriminated against on account of her race with respect to the terms and conditions of her employment. The EEOC issued a right to sue letter in May 1992. The Plaintiff thereafter brought suit in this Court in August 1992.

 Trial was set and held in March, 1992. At this point, the Court is compelled to respond to the remarks made by the Plaintiff's counsel in open court, by telephone to the Court's Courtroom Clerk, and in her Unopposed Motion for Short Extension of Time and Points and Authorities in Support Thereof. The Plaintiff's counsel objected to resuming the Title VII portion of the trial on March 10, 1993, because she claimed she had obligations to other clients. Although this Court regrets that the trial did not conclude on March 5, 1993, despite the best efforts of the Court and the fact that the Court remained in session until after 5:00 p.m. on that day, the Court notes that the jury portion of this trial, begun on March 3, 1993, was significantly delayed because the parties failed to submit a complete joint set of jury instructions, and the Court was required to expend a great deal of time and energy drafting its own jury instructions and having the parties approve the instructions line by line. The time taken to create a set of jury instructions both consistent with the law and acceptable to both parties consequently delayed the presentation of the Title VII portion of the case until Friday, March 5, 1993.

 The Court also notes that both counsel represented to the Court on March 5, 1993, that the Title VII portion of the trial could be completed on that day; however, the Plaintiff's counsel took most of the day for direct examination of her client. Although the Court does not begrudge the Plaintiff's counsel the time necessary to fully present her case, she cannot then be heard to complain that the trial extended beyond its alloted time. To delay the presentation of the Defendant's case-in-chief until another, possibly much later, date would have been unfair and inefficient. The trial date in this matter had been set since September 2, 1992, and the Court went to great lengths to arrange its criminal docket so that the trial date would not have to be continued. The Court notes that the Defendant was also unavoidably inconvenienced by resuming the trial on March 10 by not being able to have one of its witnesses present on that day. Based on all the circumstances, however, the Court properly concluded the trial on March 10. The Plaintiff had a continuing obligation to this Court and to her client in this case to assist in the just and speedy resolution of the pending trial.

 III. THE PLAINTIFF'S CLAIM BROUGHT PURSUANT TO 42 U.S.C. § 2000e MUST FAIL, BECAUSE THE EVIDENCE PRESENTED AT TRIAL CANNOT SUPPORT A FINDING THAT THE DEFENDANT DISCRIMINATED AGAINST THE PLAINTIFF ON ACCOUNT OF HER RACE

 In actions brought pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Plaintiff bears the initial burden of establishing a prima facie case of discrimination. The defendant may rebut the plaintiff's case by providing legitimate, non-discriminatory reasons to refute the inference of discrimination raised by the plaintiff's allegations. The Plaintiff must then prove, by a preponderance of the evidence, that the defendant's proffered reasons are merely pretextual. See McDonnell-Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253. The Plaintiff put forth several allegations to support her claim of discrimination, to which the defendant has responded with legitimate, non-discriminatory explanations. The Plaintiff has not supplied evidence to this Court that would indicate the Defendant's explanations as to its actions are pretextual or that racially discriminatory behavior affected her as General Counsel. She has therefore failed to carry her ultimate burden of persuasion.

 The Court has thoroughly considered all of the Plaintiff's factual claims or allegations and finds that they fall generally into seven categories: 1) exclusion from AFSA and industry meetings; 2) criticism about her work from the Chairman; 3) review of her work by Caucasian colleagues and her Caucasian predecessor; 4) refusal to account for or provide help for the Plaintiff's large workload; 5) unfair performance evaluation; 6) disparate raise and bonus; and 7) offensive treatment by co-workers. The Court examines each of these allegations in turn.

 As to the first issue, the Plaintiff claims that she was excluded from several meetings by her supervisor, Richard Milton, Chris Bazar, a Caucasian colleague, and Theodore Wilkinson, the AFSA President. She claims that despite the fact that the issues to be discussed at these meetings involved legal questions, Mr. Bazar was asked to attend these meetings instead of her. Denial of access to meetings and substitution of someone else is not a per se violation in and of itself of Title VII of the Civil Rights Act. In this case, the Plaintiff failed to show that these actions were taken on account of her race, and the Court has heard credible testimony from Mr. Milton and Ms. Lewis herself that AFSA management had legitimate concerns about the amount of time that the Plaintiff was absent from the office going to various meetings. The Court heard credible testimony from Mr. Milton that there were occasions when the Plaintiff was unavailable for meetings or other AFSA needs because she was elsewhere attending to matters that Mr. Milton and Mr. Wilkinson thought to be of lesser importance than the competing tasks at hand. Moreover, in light of Mr. Bazar's four-year tenure with AFSA and the Plaintiff's admission at trial that the functions of the General Counsel and Director of Member Services overlapped, there were any number of proper reasons for not asking Ms. Lewis to attend these meetings.

 In support of the Plaintiff's second claim, undue criticism, the Plaintiff testified that Mr. Wilkinson harshly criticized her in front of other employees at staff meetings and that others, specifically Caucasian employees, were not so criticized. The Court credits the testimony of Janet Hedrick, who worked at AFSA during the Plaintiff's tenure and is now the current Director of Membership Services. She testified that, if he considered it appropriate, Wilkinson did not hesitate to dispense criticism of AFSA employees, even if it meant criticizing people in front of other employees. Ms. Hedrick related several examples of such criticism aimed at Caucasian employees. Therefore, Mr. Wilkinson's treatment of the Plaintiff, while not necessarily commendable, did not occur on account of her race.

 With regard to the Plaintiff's third contention, the Plaintiff testified that there were several occasions when her work was given to Caucasian colleagues to review, while she was never asked to review anyone's work. She also testified that on a few occasions she was required to consult her predecessor before making changes or starting new projects. The Court finds that the Plaintiff's relative newness to the organization was a legitimate explanation for both the ...


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