Anderson v. Group Hospitalization, Inc.

• Decision Date: 12 June 1987
• Docket Number: No. 85-6107,85-6107
• Citation: 820 F.2d 465
• Parties: 43 Fair Empl.Prac.Cas. 1840, 43 Empl. Prac. Dec. P 37,219, 261 U.S.App.D.C. 57 Sylvia ANDERSON v. GROUP HOSPITALIZATION, INC., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 465

820 F.2d 465

43 Fair Empl.Prac.Cas. 1840,

43 Empl. Prac. Dec. P 37,219, 261 U.S.App.D.C. 57

Sylvia ANDERSON v. GROUP HOSPITALIZATION, INC., Appellant.

No. 85-6107.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 17, 1986.

Decided June 12, 1987.

John R. Erickson, with whom Charles J. Steele and Diane E. Burkley, Washington, D.C., were on the brief, for appellant.

James H. Heller, for appellee; Irving Kator, Washington, D.C., entered an appearance for appellee.

Before STARR and WILLIAMS, Circuit Judges, and GREEN, ^* District Judge.

Opinion for the Court by District Judge JOYCE HENS GREEN:

JOYCE HENS GREEN, District Judge:

Sylvia Anderson brought suit against her former employer, Group Hospitalization, Inc. (GHI), claiming that her July 1981 resignation from that company's employ was the coerced product of unlawful racial discrimination. She sought damages and equitable relief under 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. Appellant GHI now challenges the jury verdict entered in favor of Anderson on her section 1981 claim, and the District Court's entry of judgment in her favor in her Title VII action, on the grounds that (1) the District Judge erred in instructing the jury to consider certain numerical or statistical data as evidence of discrimination; (2) that the instruction accompanying this evidence was vague and inadequate; (3) that the trial court erred in not granting GHI judgment notwithstanding the verdict, and in finding for Anderson on her Title VII claim; (4) that the trial judge impermissibly granted Anderson double back pay; and (5) that the lower court improperly ordered Anderson reinstated. As we find all of appellant's contentions, save for that concerning the double back pay award, to be without merit, we affirm the jury's verdict as to Anderson's section 1981 claim and the District Court's judgment on her Title VII action, and remand the case for the limited purpose of recalculating the damage award entered under the latter statute.

I

Anderson, a black woman, began working for GHI in 1972 as a Grade 4 clerk and, by May 1978, had become a Grade 10 assistant supervisor, responsible for overseeing the work of a secretary and a clerk in the Clerical Section of the Marketing Services Department. During this time she received ratings of "competent" or better. In October 1979, Kay Viverette, the department manager, asked Anderson to transfer to the Small Group Section to be an assistant supervisor. Promotions within the department were noncompetitive and based solely on the subjective judgments of the selecting managers. Anderson, whose work at GHI had been in membership services, had no previous sales experience, but Viverette anticipated that she could acquire these skills on the job, and placed her in charge of six telephone sales and service representatives, a field representative, a secretary, and a clerk typist.

Several months before this promotion, GHI's marketing division underwent a major reorganization in response to declining enrollment, and its vice-president, David Kestel, demanded a new, more aggressive sales policy. In view of these changes, Kestel announced a revised ratings policy under which all personnel would be graded "competent" until they proved themselves deserving of a higher rating. One month after her promotion, and again in a six-month interim review, Anderson received a rating of "competent plus" from Viverette. Although Anderson had at times received "superior" evaluations in her previous positions, Viverette's ratings placed Anderson in the above-average category under the new system, for a job she had only recently assumed. Indeed, in her June 1980 evaluation, Viverette indicated that she would recommend Anderson for promotion. Not surprisingly, Anderson thought the appraisal was fair. Trial Transcript at 275. In the spring of 1980, Anderson's immediate supervisor, Reba Sue Dodd, left GHI and recommended that Anderson replace her. Dodd, a white woman, had worked well with Anderson, consulting with her regularly, inviting her to staff meetings, and sharing supervisory responsibilities with her. Viverette instead chose Susan Feist, a woman outside the department with whom she had previously worked. Like Anderson, Feist had neither a college degree nor any prior sales experience before joining the Small Group Section.

Feist, who considered herself a "tough" supervisor, was described by witnesses as loud and frequently profane-a persona she apparently chose not to temper on the witness stand, where she was characterized by the trial judge as "overbearing and authoritarian." Anderson v. Group Hospitalization, Inc., 621 F.Supp. 943, 945 (D.D.C.1985). Five months after becoming her supervisor, Feist prepared Anderson's November 1980 performance evaluation and rated her "competent." While questioning appellee's ability to cope with change and complaining that she was not flexible or aggressive enough, Feist recommended that Anderson receive an eight percent salary increase and checked the box indicating that she would recommend her for a promotion. Anderson received the evaluation in January 1981 and registered no complaints.

Two months later, Feist prepared an interim appraisal in which she rated Anderson "marginal." According to GHI, the review was triggered by Anderson's failure to improve in the areas of concern discussed with her when she received her November 1980 evaluation. At a meeting held to discuss the March 1981 evaluation, Feist and Viverette told Anderson that supervision of sales personnel was not one of her strengths and that she might advance more readily in a different area of the company. Viverette advised her that if she transferred out of the group, the marginal review would not be placed in her personnel file. Anderson responded in a March 19, 1981 memorandum in which she asked Viverette for her help in obtaining no less than a lateral transfer. Viverette agreed to make inquiries, but testified that these proved fruitless.

Anderson requested a meeting in April to discuss her performance since the March appraisal. Feist stated that she had improved in some areas and not others and asked Anderson to keep a log of her daily activities to see how she spent her time. In July, Viverette prepared another interim evaluation, again rating Anderson as "marginal." Feist and Viverette met with her on July 10, informed her of the rating and gave her the option of resigning or being discharged. Viverette advised her that there were no lateral transfer positions available. Anderson elected to resign.

These events were placed before the jury. In addition, Anderson offered certain remarks concerning race made by Feist. These included Feist's comment "You people can't agree on anything," made to three black employees who could not agree on a point in a staff meeting; her statement that she would not date blacks because her father did not like them; her statement "My best friend is black" ; and her comment to a black female employee that she liked the woman's hair straight rather than in a "natural jheri curl." Anderson also offered the contested statistical evidence from which, she contended, it could be inferred that blacks were underrepresented in managerial positions. In the marketing department, where 46 percent of the employees were black, only 14 percent of the supervisory posts were held by blacks. Finally, Anderson pointed out that four white employees whose performances were in question were transferred and demoted without a loss of pay at approximately the same time she sought, but was unable to make, a similar transfer.

II

Both section 1981 and Title VII disparate treatment causes of action require proof of intentional discrimination. See General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (section 1981); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977) (Title VII disparate treatment claims). The requisite "discriminatory animus, however, can be demonstrated through either direct or indirect evidence." Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1231 (D.C.Cir.1984). In the trial below, Anderson offered both types of evidence, some of which GHI contends was irrelevant and all of which it insists was insufficient to support the verdicts entered by the jury on her section 1981 claim or by the judge on her Title VII claim. We address these contentions in turn.

A. Anderson's Statistical Evidence

GHI argues vigorously that Anderson's statistical evidence was at best irrelevant and at worst misleading, and that the trial judge's instruction to the jury concerning that evidence was hopelessly and impermissibly vague. We cannot agree.

Anderson offered evidence showing that while blacks accounted for 46 percent of the department's workforce, they held only 14 percent of its supervisory positions. GHI contends that this evidence is meaningless; the relevant comparison is not the proportion of blacks in managerial positions to the proportion of blacks in the department generally, but rather the percentage of black supervisors compared with the percentage of qualified blacks in the division. Forty-six percent of the department may have been black, GHI argues, but not all of these people were qualified to be supervisors. Appellant is correct that no inference of unlawful racial animus can be drawn from a statistical comparison that fails to account for relevant job qualifications. " [W]hen the posts [in question] require managerial capability or other expertise, the comparison group must be the set of available minority persons with that expertise or qualification." Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922, 930 (D.C.Cir.1982); see also New York City Transit Authority v....