922 F.2d 139 (2nd Cir. 1990), 392, Barbano v. Madison County

Docket Nº:392, 546, Dockets 90-7422, 90-7476.
Citation:922 F.2d 139
Party Name:Maureen E. BARBANO, Plaintiff-Appellee-Cross-Appellant, v. MADISON COUNTY; Madison County Board of Supervisors; Madison County Veterans Affairs Committee; Donald Greene, Defendants, Madison County; Madison County Board of Supervisors; Madison County Veterans Affairs Committee, Defendants-Appellants-Cross-Appellees.
Case Date:December 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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922 F.2d 139 (2nd Cir. 1990)

Maureen E. BARBANO, Plaintiff-Appellee-Cross-Appellant,


MADISON COUNTY; Madison County Board of Supervisors;

Madison County Veterans Affairs Committee; Donald

Greene, Defendants,

Madison County; Madison County Board of Supervisors;

Madison County Veterans Affairs Committee,


Nos. 392, 546, Dockets 90-7422, 90-7476.

United States Court of Appeals, Second Circuit

December 28, 1990

Argued Oct. 1, 1990.

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David E. Peebles, Syracuse, N.Y. (Hancock & Estabrook, of counsel), for defendants-appellants-cross-appellees.

Robert David Goodstein, New Rochelle, N.Y. (Goodstein & West, of counsel), for plaintiff-appellee-cross-appellant.

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FEINBERG, Circuit Judge:

Defendants appeal from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, J., finding them liable for gender discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq., and awarding plaintiff Maureen E. Barbano back pay, prejudgment interest and attorney's fees. After a bench trial, the district court found that defendants Madison County, the Madison County Board of Supervisors (the Board) and the Madison County Veterans Affairs Committee (the Committee) discriminated against Barbano on the basis of her sex in rejecting her application for the job of Director of the Madison County Veterans Service Agency. This appeal raises a number of questions, including whether evidence of discrimination during an interview conducted by the Committee supports a finding that the Board discriminated by adopting the Committee's recommendation in making the hiring decision. Barbano cross-appeals on grounds that the district court erred by not awarding "front pay" (prospective wages) and granting a mandatory injunction that she be appointed Director upon the next vacancy. For reasons given below, we affirm the judgment of the district court.


The Madison County Veterans Service Agency offers counseling, information and other services to veterans and their dependents. In February 1980, the position of Director of the Agency became vacant. The Director holds an administrative position and is responsible for supervising veterans' programs for the county. The job description for that position required:

Thorough knowledge of federal, state and local laws, rules and regulations pertaining to veterans' benefits and services; thorough knowledge of forms, methods and procedures and records necessary for the processing of veterans' benefits claims; demonstrated ability in public relations; ability to express ideas clearly and concisely orally and in writing; good judgment; willingness to accept responsibility; resourcefulness; interest; tact; good physical condition.

The Board decided to hold interviews before appointing a new Director. The interviews were to be conducted by the Committee, which would then submit its recommendation to the Board. Barbano applied for the position and was interviewed in February 1980 by Douglas S. Newbold, Chairman of the Committee, and Committee members Donald Greene, Harrison Holdridge, James E. Powell and James Rafte. Don R. Callahan, who took part in a number of the interviews in his capacity as Chairman of the Board but not as a voting member of the Committee, also participated in the interview.

Before entering the interview, Barbano heard someone say, "Here are copies of the next resume," followed by the comment, "Oh, another woman." The interview began, and after Barbano stated why she thought she was qualified for the job, Greene said that he would not consider "some woman" for the position. Greene then asked Barbano her plans on having a family and whether her husband would object to her transporting male veterans. Barbano said the questions were irrelevant and discriminatory. No one responded, except for Greene, who insisted on answers to his questions. Barbano again protested that the questions were discriminatory. Greene replied that the questions were relevant because he did not want to hire a woman who would get pregnant and quit. Newbold also said the questions were relevant. None of the interviewers rebuked Greene, objected to the questions or told Barbano that she need not answer them. Barbano stated that if she decided to have a family she would take no more time off than medically necessary. Greene once again asked whether Barbano's husband would object to her "running around the country with men" and said he would not want his wife to do it. Barbano said she was not his wife. The interview concluded

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after Barbano asked some questions about insurance.

The Committee interviewed several other candidates, and found all of them (including Barbano) to be qualified for the position. Following the interview process, the interviewers ranked the applicants and unanimously agreed to recommend Allan Wagner to the Board. In March 1980, the Committee submitted the recommendation to the Board in the form of a resolution, and the Board, which consisted of 19 members, unanimously approved the resolution at a public meeting. Shortly thereafter, Wagner began working as Director and continues to occupy the position.

Barbano commenced this action in 1982, asserting claims under Title VII and 42 U.S.C. Sec. 1983. After a three-day bench trial, Judge McAvoy, in an opinion dated September 13, 1988, dismissed the section 1983 claim because it was based only on Title VII violations. The court then found that Barbano had established a prima facie case of discrimination under Title VII, thus bringing into issue appellants' purported reasons for not hiring her. Appellants provided four reasons why they chose Wagner over Barbano, which the district court rejected as either unsupported by the record or a pretext for discrimination in light of Barbano's interview. The district court then found that due to Barbano's education and experience in social services, appellants had failed to prove that, absent the discrimination, they still would not have hired Barbano. Accordingly, the court awarded Barbano back pay, prejudgment interest and attorney's fees. Subsequently, the court denied Barbano's request for front pay and a mandatory injunction ordering her appointment as Director upon the next vacancy. This appeal and cross-appeal followed.


Appellants argue that the district court erred in finding that Greene's statements during the interview showed that the Board discriminated in making the hiring decision, and that there was no direct evidence of discrimination by the Board, making it improper to require that appellants prove that they would not have hired Barbano absent the discrimination. Barbano in turn challenges the adequacy of the relief awarded to her by the district court.

  1. Discrimination

    At the outset, we note that Judge McAvoy's opinion predated Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1990), in which the Supreme Court made clear that a "pretext" case should be analyzed differently from a "mixed motives" case. Id. 109 S.Ct. at 1788-89. Judge McAvoy, not having the benefit of the Court's opinion in Price Waterhouse, did not clearly distinguish between the two types of cases in analyzing the alleged discrimination. For purposes of this appeal, we do not think it is crucial how the district court categorized the case. Rather, we need only concern ourselves with whether the district court's findings of fact are supported by the record and whether the district court applied the proper legal standards in light of its factual findings.

    Whether the case is one of pretext or mixed motives, the plaintiff bears the burden of persuasion on the issue of whether gender played a part in the employment decision. Id. at 1788. Appellants contend that Barbano did not sustain her burden of proving discrimination because the only evidence of discrimination involved Greene's statements during the interview, and Greene was an elected official over whom the other members of the Board exercised no control. Thus, appellants maintain, since the hiring decision was made by the 19-member board, evidence of discrimination by one member does not establish that the Board discriminated in making the hiring decision.

    We agree that discrimination by one individual does not necessarily imply that a collective decision-making body of which the individual is a member also discriminated. However, the record before us supports the district court's finding that the Board discriminated in making the hiring decision.

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    First, there is little doubt that Greene's statements during the interview were discriminatory. He said he would not consider "some woman" for the position. His questioning Barbano about whether she would get pregnant and quit was also discriminatory, since it was unrelated to a bona fide occupational qualification. King v. Trans World Airlines, 738 F.2d 255, 258 n. 2 (8th Cir.1984). Similarly, Greene's questions about whether Barbano's husband would mind if she had to "run around the country with men," and that he would not want his wife to do it, were discriminatory, since once again the questions were unrelated to bona fide occupational qualifications. See Price Waterhouse, 109 S.Ct. at 1786; 29 C.F.R. Sec. 1604.7.

    Moreover, the import of Greene's discriminatory questions was substantial, since apart from one question about her qualifications, none of the interviewers asked Barbano about other areas that allegedly formed the basis for selecting a candidate. Thus, Greene's questioning constituted virtually the entire interview, and so the district court...

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