Gairola v. Com. of Va. Dept. of General Services

• Decision Date: 06 February 1985
• Docket Number: No. 84-1251,84-1251
• Parties: 36 Fair Empl.Prac.Cas. 1800, 36 Empl. Prac. Dec. P 34,980 Indira GAIROLA, Appellant, v. COMMONWEALTH OF VIRGINIA DEPARTMENT OF GENERAL SERVICES; Paul B. Ferrarra; David Lynn; Tracy Hunter; Appellees. United States of America, Intervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1281

753 F.2d 1281

36 Fair Empl.Prac.Cas. 1800,

36 Empl. Prac. Dec. P 34,980

Indira GAIROLA, Appellant, v. COMMONWEALTH OF VIRGINIA DEPARTMENT OF GENERAL SERVICES Paul B. Ferrarra; David Lynn; Tracy Hunter; Appellees United States of America, Intervenor.

No. 84-1251.

United States Court of Appeals Fourth Circuit.

Argued Oct. 4, 1984.

Decided Feb. 6, 1985.

Linda L. Royster, Richmond, Va. (Michael P. Falzone, Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, Va., on brief), for appellant.

Michael E. Ornoff, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Virginia, John A. Gibney, Jr., Asst. Atty. Gen., Richmond, Va., on brief), for appellees.

Harold J. Krent, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Elsie L. Munsell, U.S. Atty., Alexandria, Va., William Kanter, Peter R. Maier, Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., on brief), for intervenor.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.

ERVIN, Circuit Judge:

The plaintiff, Indira Gairola, brought related claims against the Department of General Services for the Commonwealth of Virginia and other named defendants based on alleged employment discrimination because of her race or color in violation of 42 U.S.C. Secs. 1981 and 1983 (1982), and because of her religion and national origin in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. Secs. 2000e, 2000e-17 (1982). Following the consent of the parties and the district court, the Title VII claim was tried before a federal magistrate under 28 U.S.C. Sec. 636(c) (1982), while the sections 1981 and 1983 claims were tried before a jury. Gairola appeals from the magistrate's grant of a directed verdict against her on the race discrimination claims under sections 1981 and 1983 and his entry of judgment for the defendants on all claims. We affirm.

On appeal, Gairola raises three issues. First, she argues that because Sec. 636(c) of the Federal Magistrate Act of 1979 is unconstitutional, the magistrate was without jurisdiction to enter judgment against her. Second, she contends that the magistrate erred in granting a directed verdict against her on the sections 1981 and 1983 claims. Finally, she asserts that the magistrate's determination that the defendants did not discriminate against her on the basis of religion or national origin in violation of Title VII was clearly erroneous. We will address these arguments seriatim.

I. Factual Background

Gairola, a former employee of the Commonwealth of Virginia, is a 48 year-old practicing Hindu who resides in Richmond, Virginia. She was born in West Pakistan and immigrated to the United States in 1967. The defendants include the Department of General Services for the Commonwealth and three of its employees. Defendant Ferrara is the Director of the Bureau of Product Testing ("Bureau") which is within the Division of Consolidated Laboratory Services ("Division"). Ferrara is also the state chemist. Defendant Lynn is the supervisor of the Food and Animal Remedy Section within the Bureau. Before becoming section supervisor in January of 1981, Lynn had been the team leader supervising the Food Lab. Defendant Hunter is the team leader supervising the Animal Remedy Lab.

Gairola was hired as a food chemist by Virginia's Department of Agriculture and Commerce in 1969. After departmental reorganization in 1972, her employer became the Division and she was classified as an entry level chemist. At first, Gairola was assigned to the Food Lab within the Food and Animal Remedy Section. This job required her to identify impurities in food through the use of a microscope. It did not, however, require the use of sophisticated instrumentation. (J.A. 103).

In 1976, Gairola was transferred to the Animal Remedy Lab where her team leader became Hunter. Gairola testified that prior to this transfer, Frank McGowan, her section supervisor, told her not to learn instrumentation. (J.A. 35). She did not do so. Gairola conceded, however, that she was repeatedly admonished in her performance evaluations that she received in 1977, 1978, 1979, and 1980 to obtain much needed instrumentation training. (J.A. 106-13). In 1979, Gairola was denied a promotion due to her lack of training on newly acquired sophisticated instrumentation. A white woman, Debra Paul, was promoted to the position Gairola sought. Paul already had considerable college training and practical experience in instrumentation when she was promoted. Nevertheless, Gairola asserts that McGowan's comment to her that she should not learn instrumentation is evidence of defendant's discriminatory intent.

Two years later, in June of 1981, Gairola requested that she be transferred to the Feed and Fertilizer Section. After consulting with her supervisor and the supervisor of the Feed and Fertilizer Section, Ferrara refused the transfer request because of substantial doubts he harbored about Gairola's ability to learn the new chemistry and analytical tasks required to work effectively in that section. (J.A. 236-41).

During the time Gairola was employed in the Animal Remedy Lab, an incident occurred in which a fellow employee mocked her for wearing the bindi, which is a symbol worn on the head of a Hindu woman to signify that she is married. However, the offending employee, Chuck Bailey, was sternly reprimanded for his unacceptable humor by defendant Lynn, and Paul noted Bailey's behavioral problem in his performance evaluation. (J.A. 262-64, 272).

On June 10, 1981, Gairola received a score of 2.6 on her annual performance evaluation. Under Commonwealth employment policy, Gairola's poor evaluation required that (1) she not receive an immediate merit pay increase, and that (2) she be reevaluated within 120 days. If her next evaluation score improved to 2.8 she would then receive her merit increase and no future punitive action would be taken. But if her score did not improve to the requisite 2.8, Commonwealth policy dictated that her supervisors were to determine whether her poor performance was due to an attitudinal problem or a lack of necessary skills. If the former were true, she would be fired. If the latter were true, she would be reassigned to a position more appropriate to her skill level and she would be terminated only if she refused the reassignment.

Gairola's performance was closely monitored by her supervisors while on probation. During this time, Gairola was given a blind sample test. To analyze the samples, it was necessary for Gairola to utilize sophisticated instruments. Gairola completely failed the test, obtaining incorrect results on all three samples she analyzed. Her failure revealed that she had considerable difficulty in analyzing both routine and nonroutine samples. ¹ On October 1, 1981, Gairola was reevaluated in compliance with Commonwealth policy. In this evaluation, she received a score of 2.3 which was below the minimum permitted under the applicable Commonwealth evaluation procedures. As a consequence, Ferrara searched for a vacant position that matched Gairola's qualifications. The only such position available was that of a Laboratory Technician in the Pesticide Residue Lab. He offered Gairola this position. However, she refused the offer and accordingly was discharged by Ferrara.

II. The Federal Magistrate Act

Eight federal circuits have held that Section 636(c) of the Federal Magistrate Act is immunized from any constitutional infirmity because (1) the Act requires that all parties and the district court consent to transfer of the case to a magistrate and (2) the district court retains sufficient control over the magistrate, including the authority to vacate the reference on its own motion, to render the magistrate a mere adjunct of the district court. Fields v. Washington Metropolitan Area Transit Authority, 743 F.2d 890, 893-95 (D.C.Cir.1984), Petition for cert. filed, 53 U.S.L.W. 3291 (U.S. Sept. 29, 1984) (No. 84-519); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1045 (7th Cir.1984); Lehman Bros. Kuhn Loeb v. Clark Oil & Refining Co., 739 F.2d 1313, 1316 (8th Cir.1984); Puryear v. Ede's Ltd., 731 F.2d 1153, 1154 (5th Cir.1984); Collins v. Foreman, 729 F.2d 108, 120 (2d Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); Goldstein v. Kelleher, 728 F.2d 32, 36 (1st Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984); Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537, 547 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984); Wharton-Thomas v. United States, 721 F.2d 922, 929-30 (3d Cir.1983). For the same compelling reasons, we decline to depart from the collective judgment of our sister circuits that Section 636(c) of the Federal Magistrate Act does not violate Article III of the Constitution.

III. The Directed Verdict

A. Standard of Review

Whether a motion for a directed verdict should have been granted is a question of law requiring de novo review on appeal. Bridges v. Groendyke Transport, Inc., 553 F.2d 877, 878 (5th Cir.1977); see also Miller v. Premier Corp., 608 F.2d 973, 981 n. 8 (4th Cir.1979); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2536 (1971 & Supp.1984). An appellate court may not, when reviewing the propriety of a directed verdict, "weigh the evidence, pass on the credibility of witnesses, or substitute [its] judgment of the facts for that of the jury." Tights, Inc. v. Acme McCrary Corp., 541 F.2d 1047, 1055 (4th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976). Although the courts have adopted numerous formulations for the standard of review regarding a directed verdict, the test is essentially whether, without weighing the evidence or considering the credibility of the witnesses, "there can be but one conclusion as to the verdict that reasonable...