USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1522
SHARON C. FOSTER,
Plaintiff, Appellant,
v.
JOHN H. DALTON, SECRETARY OF THE NAVY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Selya, Cyr and Stahl, Circuit Judges.
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Robert B. Mann, with whom Mann & Mitchell was on brief, for
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appellant.
Jennifer H. Zacks, Attorney, U.S. Dep't of Justice, with
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whom Frank W. Hunger, Assistant Attorney General, Sheldon
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Whitehouse, United States Attorney, and Marleigh D. Dover,
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Attorney, U.S. Dep't of Justice, were on brief, for appellee.
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December 11, 1995
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SELYA, Circuit Judge. Plaintiff-appellant Sharon C.
SELYA, Circuit Judge.
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Foster, an African-American woman, sued the Secretary of the Navy
on the ground that the Newport Naval Hospital (the Hospital)
denied her a job due to her race.1 Following a bench trial, the
district court rendered judgment for the Secretary. Although the
record makes it painfully clear that this episode is light years
away from the Navy's finest hour, we have no principled choice
but to affirm.
I. BACKGROUND
I. BACKGROUND
The subsidiary facts are largely undisputed. The
United States Navy maintains a substantial presence in Newport,
Rhode Island. In the summer of 1989, the appellant found
civilian employment at the Naval War College. Seeking to advance
through the ranks, she assiduously applied for other, more
attractive jobs in the Newport naval establishment. Since most
facilities located at the base adhered to a policy of filling
vacancies by selecting internal candidates (i.e., candidates
already employed within the particular facility) where possible,
the appellant had no luck until the Hospital hired her as its
professional affairs coordinator. She reported for duty in July
of 1990.
Shortly after the appellant came on board, the
Hospital's director of administration, Commander William Travis,
sought to fill a newly created opening for a management analyst.
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1The Secretary is the appropriate defendant in this type of
action. See 42 U.S.C. 2000e-16(c) (1988).
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2
Because he believed that available funding would be jeopardized
if the position remained open at the start of the next fiscal
year (October 1, 1990), Commander Travis eschewed the hiring
procedure ordinarily used to recruit civilian staff and undertook
a non-competitive search. This process consisted mainly of
culling the names of aspirants for advancement from existing
files and assembling a list of potential candidates. Staff
personnel compiled a roster of five such candidates (including
the appellant). As among the five nominees, the appellant was
twice distinguished: she was the only non-Caucasian and the only
person already employed at the Hospital. Thus, had Commander
Travis adhered to the usual policy of preferring in-house
aspirants, the appellant who was plainly qualified for the post
would have been selected.
When George Warch, the Hospital's civilian program
specialist, presented Commander Travis with the list, Travis
inquired why James Berry's name was omitted from it. Warch
informed Travis that Berry Warch's "fishing buddy" and Travis's
acquaintance could not be offered employment at the grade
specified for the position. Travis promptly directed Warch to
rewrite the job description, specify a lower grade (at which
Berry would be eligible), and generate a new list. Leaving
little to chance, Travis also decreed that candidates for the
position should have certain computer expertise expertise that
Berry possessed and intimated that he would invoke the Veterans
Readjustment Act (VRA), 38 U.S.C. 4214 (1988 & Supp. V 1993),
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in filling the management analyst vacancy.2
The modified job description yielded a fresh list with
only one name on it: James Berry. Although Warch mused that the
revisions made it appear that the powers-that-be had connived to
preselect Berry for the vacancy, Travis brushed these concerns
aside and named Berry to the management analyst position.
In the wake of Berry's hiring, the appellant filed an
administrative complaint with the Navy, alleging that the
Hospital had discriminated against her on the basis of her race
and gender. Receiving no satisfaction, she brought suit in Rhode
Island's federal district court, charging discrimination in
contravention of Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e (1988). Following a bench trial that focused on
allegations of race discrimination,3 the district court ruled in
the Secretary's favor. The court thought that the appellant
proved a prima facie case, see Foster v. Secretary of the Navy,
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No. 93-0509, slip op. at 12 (D.R.I. Apr. 13, 1995), and also
thought that she was better qualified for the position than
Berry, see id. at 8. But the court determined that the Secretary
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2Under the VRA, veterans receive preference in certain
governmental employment. See, e.g., Jakes v. Veterans Admin.,
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793 F.2d 293, 295 (Fed. Cir. 1986) (elucidating VRA preference
system); see also Keyes v. Secretary of the Navy, 853 F.2d 1016,
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1020-21 (1st Cir. 1988) (discussing veterans' preferences
generally); 5 C.F.R. 307.102(a) (1995) ("Federal agencies have
the responsibility to provide the maximum of employment and job
advancement opportunities to eligible veterans . . . ."). Not
coincidentally, Berry had served in the United States Navy.
3The appellant did not press her claim of gender
discrimination at trial, and does not seek to resurrect it on
appeal. The claim is therefore waived.
4
had successfully rebutted the prima facie case by proffering a
nondiscriminatory, if unsavory, reason for the personnel action:
preselection of a friend of the appointing officer. See id. at
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14. Overriding Travis's and Warch's pious assurances that
cronyism played no role in Berry's recruitment, the court
concluded that this was a near-classic case of an old boy network
in operation, but not a situation in which the employment
decision was motivated by racial animus.4 This appeal ensued.
II. ANALYSIS
II. ANALYSIS
The district court wrote a thoughtful, meticulously
reasoned opinion dealing with many of the same contentions that
Foster voices on appeal. Having carefully explored the nooks and
crannies of the case, we affirm the judgment essentially on the
basis of Judge Pettine's rescript. We embellish only in certain
limited respects.
First: We start at a high level of generality. The
First:
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appellant does not seriously dispute the district court's account
of the facts, but vigorously attacks the inferences that the
court saw fit to draw from them. Although she denies it, her
jeremiad essentially asks that we reweigh the evidence de novo,
and substitute a new set of inferences for the inferences drawn
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4Though entering judgment in the Secretary's favor, the
district court expressed its distaste for Commander Travis's
ichthyophagous hiring practices. Among other things, the court
chastised Travis for his "ignorance of EEO hiring policies, his
calloused attitude toward the hiring of minorities, and the fact
that he rejected [Warch's] pre-selection concern . . . ."
Foster, slip op. at 14. The court's criticism appears to be
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well-founded.
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by the trier. Our standard of review, however, is much more
circumscribed.
Following a bench trial, an appellate tribunal is not
warranted in substituting its judgment for that of the trial
court. This rule is composed of equal parts of common sense and
practical wisdom: it is difficult to gain a full appreciation of
a fact-sensitive controversy from a paper record, and the
district judge ordinarily has had the benefit of seeing and
hearing the witnesses in person. Hence, we are not free to
reject either his findings of fact or the conclusions he draws
therefrom unless they are clearly erroneous, that is, "unless, on
the whole of the record, we form a strong, unyielding belief that
a mistake has been made." Cumpiano v. Banco Santander P.R., 902
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F.2d 148, 152 (1st Cir. 1990). Findings concerning an employer's
intent are subject to review under this standard, and can be set
aside only for clear error. See id. (citing authorities).
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This case is troubling in that we, if writing on a
pristine page, might well have reached a different conclusion as
to the impetus behind the refusal to hire. But that is not the
test. See Keyes v. Secretary of the Navy, 853 F.2d 1016, 1027
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(1st Cir. 1988). While the record, read objectively, shows that
the district court could have drawn an inference of
discriminatory intent, it does not show that such an inference is
compelled. That raises the stakes appreciably. It is common
ground that, "when there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
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erroneous." Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138
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(1st Cir. 1995) (citing Anderson v. City of Bessemer City, 470
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U.S. 564, 574 (1985)). So it is here.
Second: Turning to specifics, the appellant says that
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preselection (which, according to the court below, dictated the
adverse employment decision) occurred only after the
decisionmaker learned that the management analyst post would go
to an African-American woman, virtually by default, if he failed
to adopt an alternative means of candidate selection. This is a
plausible rendition of the facts, but not the only permissible
one. Though Berry's name first surfaced after Commander Travis
received an initial list, Travis could well have expected all
along to see Berry in that lineup and, when his hopes were
dashed, attempted to regain lost ground by altering the rules.
Because both scenarios are plausible, we will not disturb the
trial judge's choice between them. See Johnson, 63 F.3d at 1138;
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Cumpiano, 902 F.2d at 152; Keyes, 853 F.2d at 1019-20.
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Third: The appellant insists that Commander Travis's
Third:
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abandonment of the Hospital's wonted policy of preferring in-
house candidates itself gives rise to an irresistible inference
of racial animus. The appellant weaves a complicated tapestry
with the threads of this argument, hinting that the policy often
operated in the past to exclude minority candidates from
elevation, thus making the Hospital's disregard of it in a case
where that policy would redound to the advantage of a minority
candidate all the more cruel. In her view, this abrupt departure
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from past practice can only be explained on the basis of racial
bias. We do not agree.
The district court treated this departure as
suspicious, but concluded that Commander Travis tweaked the
ordinary praxis to benefit a friend rather than to thwart a
person of color. Two obvious propositions spring to mind. One
is that cronyism is deplorable, especially when it is allowed to
infect public sector employment decisions. The other obvious
proposition is that Title VII does not have a limitless remedial
reach. An employer can hire one person instead of another for
any reason, fair or unfair, without transgressing Title VII, as
long as the hiring decision is not spurred by race, gender, or
some other protected characteristic. See Keyes, 853 F.2d at
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1026. As we explain infra, Title VII does not outlaw cronyism
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and, in this case, cronyism provides a sufficient alternative
explanation for the challenged deviation from the standard hiring
protocol. Thus, the district court's assessment of the proffered
evidence was not clearly erroneous.
Fourth: At trial, Commander Travis stalwartly
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maintained that he hired Berry because he was the best qualified
aspirant. Judge Pettine understandably discounted this
testimony. See Foster, slip op. at 14-15. Although the
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appellant concedes that a court is not legally bound to find for
a Title VII plaintiff simply because it rejects the employer's
proffered reason for an employment decision, she maintains that,
here, the court's disbelief of the explanation, coupled with the
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deviation from the standard policy of in-house preferment,
compels an inference that the decision was race-driven. To shore
up this contention, the appellant points to the naval officials'
repeated denials of favoritism. Noting that the district court
declined to credit these denials because they were self-serving,
see id. at 14, the appellant asseverates that, since preselection
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was the only alternative rationale that could sidetrack a finding
of racial discrimination, the district court erred; the denials
of preselection were, in fact, against self-interest, and the
employer should be held to them.
This argument is too clever by half. We do not believe
it is implausible that veteran bureaucrats and, in our view,
"bureaucrat" and "naval officer" are not mutually exclusive terms
would deny preselection to avoid the stigma of having failed to
follow neutral hiring procedures. Indeed, Travis's and Warch's
on-the-stand denials are replete with clues from which the
district judge reasonably could have deduced that the two men
collogued to tilt the process in Berry's favor.5 In all events,
actions speak louder than words. In a bench trial "what an actor
says is not conclusive on a state-of-mind issue. Notwithstanding
a person's disclaimers, a contrary state of mind may be inferred
from what he does and from a factual mosaic tending to show that
he really meant to accomplish that which he professes not to have
intended." Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir.
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5To cite one example, Warch admitted that he proposed
invoking the VRA as a means to getting Berry's name to the
forefront.
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1991).
In one sense, the district court's finding that an old
boy network was in operation though the old boys denied it
amounts to a credibility call. By and large, such calls are for
the district court, not for the court of appeals. See, e.g., id.
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(warning that the court of appeals "ought not to disturb
supportable findings, based on witness credibility, made by a
trial judge who has seen and heard the witnesses at first hand").
There is no reason to apply a different rule in this case.
Fifth: The appellant argues passionately that even if
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Commander Travis fished Berry from the applicant pool simply
because he was spawned by the old boy network, such a hiring
decision itself contravenes the mandate of Title VII. Though
this construct, which rests on the premise that cronyism is the
primary means by which employers perpetuate workplace apartheid,
possesses a certain superficial appeal, it cannot withstand close
perscrutation.
Indeed, the construct lacks any vestige of precedential
support. The very cases on which the appellant relies explicitly
reject it. See, e.g., Holder v. City of Raleigh, 867 F.2d 823,
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825-26 (4th Cir. 1989) (rebuffing plaintiff's assertion that
nepotistic hiring practices, even when denied by defendant under
racially charged circumstances, constitute impermissible
discrimination under Title VII); Autry v. North Carolina Dep't of
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Human Resources, 820 F.2d 1384, 1385 (4th Cir. 1987) (similar).
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Thus, her argument amounts to nothing more than a plea that we
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impose the construct by judicial fiat. But that is not our
province. Given the state of the law, appellant's construct
should be debated before the Congress, not argued before the
courts.
Relatedly, the appellant suggests that Title VII must
be read to bar cronyism because that tawdry practice assures
continued white domination in the workplace. But this suggestion
challenges as discriminatory a facially race-neutral (if
offensive) policy, and necessarily depends for support on an
examination of multiple hiring decisions. It is, therefore,
better tailored to cases alleging disparate impact as opposed to
disparate treatment. See Autry, 820 F.2d at 1385; see generally
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Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-80 (1987)
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(explaining the basic dichotomy between disparate impact and
disparate treatment); cf. EEOC v. Steamship Clerks Union, Local
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1066, 48 F.3d 594, 606 (1st Cir.) (holding in disparate impact
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case that a policy of nepotism can, under certain circumstances,
constitute evidence of race discrimination in employment), cert.
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denied, 116 S. Ct. 65 (1995).
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Where, as here, a disappointed applicant has made no
systematic effort to prove pervasive cronyism or to show that
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cronyism, when practiced in a particular workplace, regularly
yields a racially discriminatory result, a disparate impact claim
goes by the boards. So here: at trial, appellant's counsel,
responding to the district court's insightful questioning,
characterized the suit as one involving disparate treatment, not
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disparate impact. That characterization binds the appellant in
the present venue as well.
This brings us full circle. While the facts of this
disparate treatment case can support an inference of
discriminatory intent, they can equally support a finding of
undiluted favoritism, unmixed with racial animus. On such a
record, it is the trial court's prerogative indeed, its duty
to select the inference that it deems appropriate. Because we
cannot accept the appellant's invitation to create a presumption
that the use of an old boy network in hiring constitutes per se
racial discrimination, we are powerless to subvert the district
court's election between conflicting inferences.
III. CONCLUSION
III. CONCLUSION
We need go no further.6 Title VII "does not presume
to obliterate all manner of inequity, or to stanch, once and for
all, what a Scottish poet two centuries ago termed `[m]an's
inhumanity to man.'" Keyes, 853 F.2d at 1026 (quoting Robert
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Burns, Man Was Made to Mourn (1786)). Like the court below, we
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find the conduct of the naval hierarchy in this case to be
deserving of opprobrium, but two wrongs seldom make a right.
Discerning no clear error in the district court's finding that
favoritism, not racism, tainted Commander Travis's
decisionmaking, we reject Foster's appeal.
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6This appeal concerns only Foster's claims under Title VII.
We take no view of what remedies, if any, federal law or
regulations governing personnel practices may afford the
appellant to redress this seeming injustice.
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Affirmed. No costs.
Affirmed. No costs.
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