King v. Palmer, 84-5750
| Decision Date | 18 February 1986 |
| Docket Number | No. 84-5750,84-5750 |
| Citation | 778 F.2d 878,250 U.S.App.D.C. 257 |
| Parties | 39 Fair Empl.Prac.Cas. 877, 86 A.L.R.Fed. 217, 39 Empl. Prac. Dec. P 35,808, 39 Empl. Prac. Dec. P 36,036, 250 U.S.App.D.C. 257, 54 USLW 2320 Mabel A. KING, Appellant, v. James F. PALMER, Director, D.C. Department of Corrections, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert M. Adler, with whom David Albert Mustone, Washington, D.C., was on brief, for appellant.
William J. Earl, with whom John H. Suda and Charles L. Reischel, Washington, D.C., were on brief, for appellees.
Janine D. Harris, Washington, D.C., was on brief, for amici curiae, Federally Employed Women's Legal and Educational Fund, et al., urging reversal.
Before WRIGHT and EDWARDS, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Mabel King appeals from a decision of the District Court, granting judgment for the appellees and dismissing her claims of sex discrimination arising under Title VII of the Civil Rights Act of 1964. Specifically, Ms. King contends that she was unlawfully denied a promotion to supervisory forensic/clinical nurse at the District of Columbia Jail. Ms. King asserts that the position in question was awarded instead to a Ms. Norma Jean Grant, who was engaged in an intimate relationship with Dr. Francis Smith, the Chief Medical Officer at the Jail. Appellant also alleges that she was the victim of a discriminatory work environment and that she was subjected to reprisal for filing a complaint with the Equal Employment Opportunity Commission ("EEOC").
The District Court held that Ms. King easily had made out a prima facie case of sex discrimination. In particular, the trial court found that Ms. King had demonstrated that the sexual relationship between Dr. Smith and Ms. Grant had been a substantial factor in the promotion decision. In addition, the trial court held that the defendants' attempt to explain the selection of Ms. Grant was clearly pretextual. The District Court nonetheless entered judgment for the defendants, holding that Ms. King had not carried her ultimate burden of persuasion because she had failed to offer direct proof that the sexual relationship in question had been consummated.
The District Court's decision rests upon a faulty premise--that a plaintiff must produce direct evidence of intentional discrimination to carry the ultimate burden of persuasion. The District Court also erred in suggesting that there could be no finding of discrimination under Bundy v. Jackson 1 absent a showing of an explicit (or consummated) sexual relationship. When, as here, the plaintiff successfully makes out a prima facie case and discredits the defendants' purported explanation, she has carried her ultimate burden. Her reliance upon some indirect or circumstantial evidence is plainly permissible. Moreover, as the District Court found, there was clearly some direct evidence of sexual conduct between Ms. Grant and Dr. Smith that provided sufficient grounds for Ms. King's allegation that sex was a substantial factor in Ms. Grant's promotion; further proof (in the form of actual evidence of a fully consummated sexual relationship) was unnecessary to support Ms. King's claim of discrimination under Title VII.
Because the District Court improperly required Ms. King to produce direct evidence of a consummated sexual relationship between Ms. Grant and Dr. Smith, we reverse and remand this claim for the determination of an appropriate remedy. We also hereby remand the discriminatory work environment and reprisal claims to the District Court for the entry of findings of fact and conclusions of law.
Appellant is a registered nurse employed by the D.C. Department of Corrections as a DS-11 level supervisory clinical nurse. In 1981 she applied for a promotion to a new position, supervisory forensic/clinical nurse, DS-12, but the promotion went instead to another nurse, Norma Jean Grant. The trial testimony revealed that Dr. Francis Smith, Chief Medical Officer at the D.C. Jail, with the approval of Dr. Robert Lee, Assistant Director for Health Services, had tried to have Ms. Grant promoted to the position a month before announcing the vacancy in June, 1981. The Department rejected this request because it was required to fill the position competitively. However, even after this instruction, Drs. Smith and Lee did not seriously consider any other candidate because they had pre-selected Grant for the position. Ms. Grant received the promotion in September, 1981. The District Court found that Ms. Grant had been pre-selected for the position. King v. Palmer, 598 F.Supp. 65, 67 (D.D.C.1984).
Appellant introduced evidence that she had an excellent work record and outstanding credentials and that Ms. Grant had a poor work record and behaved unprofessionally and dishonestly on the job. Appellant also introduced evidence of an intimate relationship between Dr. Smith and Ms. Grant. This evidence included testimony of co-workers that Dr. Smith and Ms. Grant frequently took long lunches together and that their behavior on the job, including physical contact, suggested intimacy between them; testimony that the Administrator of the D.C. Jail, Calvin Scott, had seen Dr. Smith and Ms. Grant kissing outside the work-place; and testimony of Ms. Grant's roommate and boyfriend, Ronald Dock, that Dr. Smith frequently called Ms. Grant at home to discuss nonwork-related topics, that Dr. Smith and Ms. Grant sometimes stayed out together all night long, and that Dr. Smith had wired Ms. Grant and Mr. Dock a substantial sum of money when they were arrested in South Carolina. Co-workers also testified as to the favoritism shown toward Ms. Grant, whose disregard of the work schedule and unprofessional behavior were not punished consistent with the policy and practice toward other employees. The District Court found that "no effort was made to investigate the numerous complaints concerning Grant's performance and her frequent disregard of schedule." Id. at 68.
The evidence at trial also revealed that Drs. Smith and Lee had attempted to cover up the irregularities with respect to Ms. Grant's promotion. Drs. Smith and Lee had refused to investigate in a meaningful way complaints of favoritism toward Ms. Grant. Dr. Smith attempted at trial to deny any pre-selection, testifying that members of the Oversight Committee had made the selection based on a comparison of the candidates' credentials. A committee member disavowed this version of the events.
Appellant also introduced evidence to demonstrate that the favoritism and unfairness surrounding Ms. Grant's promotion has created a demoralizing and disruptive work environment, and that appellant has been singled out for discriminatory treatment at work since bringing EEO charges.
The appellees suggested that Mr. Dock's testimony was motivated by a desire for revenge against Ms. Grant and Dr. Smith, and noted that the District Court did comment that "[r]esolution of this case on the merits is hampered by the unreliability of the testimony." Id. Nonetheless, the trial court held that Ms. King had proven the four elements of her prima facie case: first, that she was a member of a protected class; second, that she applied for a job for which she was qualified; third, that she was rejected in favor of another applicant; and fourth, that there was a sexual relationship between Ms. Grant and Dr. Smith that was a substantial factor in Ms. Grant's promotion. Id. at 67. With respect to the fourth element, the District Court stated, after summarizing the evidence, that "[t]his evidence presented on the plaintiff's direct case was sufficient for an inference to be drawn that some kind of sexual relationship between Dr. Smith and Grant was a substantial factor in Grant's promotion." Id.
With regard to the defendants' rebuttal, the trial court found the testimony of the doctors responsible for promoting Ms. Grant "not worthy of any credence." It found their assertions that they had promoted Grant because of her superior qualifications "unsupported by testimony the Court finds credible" and "clearly pretextual." Id. at 68 (emphasis added).
The District Court nonetheless granted judgment in the defendants' favor because Ms. King failed to offer any "direct evidence of an explicit sexual relationship" between Ms. Grant and Dr. Smith and thus, according to the District Court, failed to carry her ultimate burden of persuasion. Id. The trial court rejected Ms. King's argument that the sexual conduct that influenced Ms. Grant's promotion, even if unconsummated, should suffice to show a Title VII violation, stating that sexual attractiveness is too difficult to distinguish from non-sexual attractiveness.
We note at the outset that the parties agree that Ms. King's allegation, based as it is on the sexual relationship between Ms. Grant and Dr. Smith, presents a cognizable cause of action under statutes prohibiting sex discrimination in employment. Appellees do not challenge the District Court's conclusion that this case is within the purview of such statutes. We agree with the District Court's conclusion and its rationale: that unlawful sex discrimination occurs whenever sex is " 'for no legitimate reason a substantial factor in the discrimination.' " Id. at 66-67 (quoting Bundy v. Jackson, 641 F.2d 934, 942-43 (D.C.Cir.1981)).
Appellant contends that the District Court failed properly to apply the principles announced in United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). She points...
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