Thorne v. City of El Segundo

• Decision Date: 21 November 1983
• Docket Number: 80-5699,Nos. 80-5618,s. 80-5618
• Citation: 726 F.2d 459
• Parties: 33 Fair Empl.Prac.Cas. 441, 32 Empl. Prac. Dec. P 33,936, 1 Indiv.Empl.Rts.Cas. 299 Deborah Lynn THORNE, Plaintiff-Appellant, Cross-Appellee, v. CITY OF EL SEGUNDO, J.C. Devilbiss, James Johnson, and John Hampton, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 459

726 F.2d 459

33 Fair Empl.Prac.Cas. 441,

32 Empl. Prac. Dec. P 33,936,

1 Indiv.Empl.Rts.Cas. 299

Deborah Lynn THORNE, Plaintiff-Appellant, Cross-Appellee, v. CITY OF EL SEGUNDO, J.C. Devilbiss, James Johnson, and John

Hampton, Defendants-Appellees, Cross-Appellants.

Nos. 80-5618, 80-5699.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1983.

Decided Nov. 21, 1983.

Nathan Goldberg, Allred, Maroko & Goldberg, Los Angeles, Cal., for plaintiff-appellant, cross-appellee.

Richard R. Terzian, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellees, cross-appellants.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, TANG, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant, Deborah Lynn Thorne, appeals from the district court's dismissal of her claim against defendants Devilbiss, Johnson, and Hampton under 42 U.S.C. Sec. 1983 for invasion of constitutionally protected privacy and associational interests, and from the court's adverse judgment, following a bench trial, on her sex discrimination claim against the City of El Segundo under Title VII, 42 U.S.C. Sec. 2000e et seq. The district court dismissed the section 1983 claim under Federal Rule of Civil Procedure 41(b) at the end of Thorne's case, on the ground that the evidence showed no right to relief. The court rejected the Title VII claim after trial on the grounds that Thorne had failed to establish a prima facie case of disparate treatment, and that, in any event, the City had demonstrated legitimate justification for its refusal to hire her. Thorne filed a timely appeal from the district court's judgment and jurisdiction in this court is proper under 28 U.S.C. Sec. 1291 (1976). We reverse both the district court's dismissal of appellant's section 1983 claim and the judgment on her Title VII claim.

I FACTS

The following basic facts are undisputed. At the time of trial, the City's police department had 83 officers, of whom only 2 were women. In the previous 9 years, only 3 women had been hired as officers, one of whom failed to pass the probationary period.

Thorne was hired by the City of El Segundo in December of 1973 as a clerk-typist in the police department, a position she continued to hold until she left the City's employment in November, 1978. In January of 1978, the City announced a closed (i.e., open only to permanent city employees) promotion examination for persons desiring to become officers on the city police force. At the time of the announcement, the examination consisted of written and oral components to be followed by psychological and polygraph testing and a background investigation. Thorne received the second highest score among the applicants on the combined oral and written tests. Another female applicant received the highest test score. The oral test consisted of interviews with three officers who judged applicants on qualities reflecting their experience and personal fitness for police work. All three rated Thorne as acceptable for appointment as a police officer. Thorne was listed as an eligible applicant on the applicant roster.

After the applicant rankings were published, the City announced that a successful applicant would have to pass a physical agility test. Thorne passed the agility test, which was scored on a pass/fail basis. She also passed the psychological screening. In his written report, the psychologist noted that although Thorne appeared slightly immature she was highly motivated and likely to work out well as a police officer.

In April of 1978, Thorne submitted to the polygraph testing required for police officer candidates. The administration and handling of the results of the polygraph test form the basis of her section 1983 claim for invasion of privacy. The polygraph examiner, defendant John Hampton, had been told by personnel officer James Antonius to look into what was described as a "possible discrepancy" between an application Thorne had filled out for another police department and her El Segundo application. One application reported a dilation and curettage and the other a hospitalization for a "female problem." On the questionnaire Thorne filled out before the polygraph examination, she reported that she had been pregnant and had suffered a miscarriage. Hampton questioned her about this event, and asked who the father of the child was. Thorne was reluctant to reveal the information and said it had been a former officer with the El Segundo police department. Upon further questioning, Thorne revealed that the father was actually a married officer still with the El Segundo police department. Thorne asked Hampton to keep this information confidential. Hampton questioned her further about possible relationships with other department personnel. ¹ He warned that she might not be able to complete the rigorous program at the police academy, and suggested she think carefully before quitting her present job.

Hampton reported the information regarding Thorne's affair with the officer in a "confidential report" to Police Chief Johnson, who is also a defendant in this case. Hampton also reported that in his personal opinion Thorne lacked "sufficient aggressiveness, self-assuredness or probable physical ability to presently handle herself in stress situations." Sometime after receiving the information from Hampton, Chief Johnson had a meeting with Thorne in his office. He warned her that if she pursued her application, he could not guarantee the confidentiality of the information regarding her affair with the officer. After thinking it over, Thorne decided not to withdraw her application. Johnson gave the information to defendant Captain Devilbiss, who was assigned to complete the background investigation on Thorne that had been started by Officer Antonius.

After investigating Thorne's background, Antonius had indicated on the "applicant review checklist" that the results of his Captain Johnson recommended to the City Manager's office that Thorne be disqualified, and on June 13, 1978, Thorne received a letter from the City Manager informing her that her name had been removed from the eligibility list. The City hired a male, Allison Graham, who had originally been ranked third on the eligibility list. ² The City had processed Thorne's application before that of the first ranked applicant, Jeannie Metcalfe. Because of the delay in processing her application, Metcalfe feared that El Segundo would not offer her a job and she accepted a position as police officer in another city. ³

                investigation were satisfactory in every category.  On June 2, 1978, Devilbiss made his report to Captain Johnson.  This report, which was not marked "confidential," discussed Thorne's affair with the officer and the resulting pregnancy and miscarriage.  It also reported Hampton's conclusion that Thorne lacked sufficient "aggressiveness, self-assuredness, or probable physical ability."    In summarizing the results of his investigation, Captain Devilbiss reported that although Thorne had a number of positive attributes, she was deficient for three reasons.  First, she had a poor record of tardiness and sick time.  Second, she had "barely passed" the physical agility test and was "a very feminine type person who is apparently very weak in the upper body."    Third, Thorne had only a very recent interest in police work.  Devilbiss concluded by recommending that Thorne be disqualified and the processing of the next applicant on the list be finalized
                

On September 28, 1979, appellant filed this action alleging violations of 42 U.S.C. Sec. 1983 and Title VII, 42 U.S.C. Sec. 2000e et seq. ⁴ She named Police Captain Devilbiss, Police Chief Johnson and Mr. John Hampton, the polygraph examiner, as defendants in the 1983 suit and the City of El Segundo as the defendant in her Title VII action. The case went to trial in May of 1980. At trial, the basic facts were undisputed. However, many particulars of these events and their implications were the subject of conflicting testimony. At the end of Thorne's case-in-chief, the district court granted a defense motion for involuntary dismissal of plaintiff's section 1983 claim under Federal Rule of Civil Procedure 41(b). This rule permits dismissal of a claim where, under the applicable law and in view of the evidence presented, a plaintiff has failed to show a right to relief. At the close of the trial, the district court ruled in favor of the City on the Title VII claim because it found that Thorne had not established a prima facie case of discriminatory treatment and that defendants had articulated legitimate, nondiscriminatory reasons for not hiring her. On appeal, Thorne argues that the district court should not have dismissed her section 1983 claim and that the proof on her Title VII claim entitled her to judgment as a matter of law.

II DISCUSSION

A. Thorne's Title VII Claim.

At trial, Thorne advanced a discriminatory treatment theory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). She introduced evidence to show that the City refused to hire her because of its stereotyped views of the physical strength and ability of women and because those responsible for reviewing her application applied a different standard of moral integrity to her application than was applied to similarly situated males. After hearing all of the evidence, the district court rejected appellant's claim and ruled in favor of the City. Specifically, the trial court found:

Plaintiff failed to establish a prima facie case of employment discrimination in that she failed to show that she was qualified for the position offered .... Even if plaintiff had established a prima facie case, defendants articulated valid, non-discriminatory reasons for the failure to hire [her] ... The criteria upon which [Police Chief] Johnson made his determination [to disqualify] Plaintiff were...