Beatty v. Chesapeake Center, Inc., 86-1176

• Decision Date: 10 December 1987
• Docket Number: No. 86-1176,86-1176
• Parties: 45 Fair Empl.Prac.Cas. 806, 45 Empl. Prac. Dec. P 37,619, 56 USLW 2379, 10 Fed.R.Serv.3d 223 Sandra K. BEATTY, Plaintiff-Appellant, v. CHESAPEAKE CENTER, INC.; Chesapeake Developmental Unit, Inc.; Chesapeake Group Homes, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 71

835 F.2d 71

45 Fair Empl.Prac.Cas. 806,

45 Empl. Prac. Dec. P 37,619, 56 USLW 2379,

10 Fed.R.Serv.3d 223

Sandra K. BEATTY, Plaintiff-Appellant, v. CHESAPEAKE CENTER, INC.; Chesapeake Developmental Unit, Inc.; Chesapeake Group Homes, Inc., Defendants-Appellees.

No. 86-1176.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 6, 1987.

Decided Dec. 10, 1987.

Eileen McGinley Stein, Chevy Chase, Md. (Leslye Orloff, Washington, D.C., on brief), for plaintiff-appellant.

Waller S. Hairston (Henry, Hairston & Price, Easton, Md., on brief), for defendants-appellees.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge, sitting en banc.

HAYNSWORTH, Senior Circuit Judge:

Sandra K. Beatty brought this action alleging employment discrimination because of her pregnancy. During a bench trial, there was conflicting testimony about what was said, during an employment orientation session, regarding the plaintiff's undergoing a tuberculin test. At the conclusion of the hearing, the district judge announced his findings and his acceptance of the testimony of Mary Brown, the manager of the unit.

On appeal, a divided panel of this court reversed upon the ground that Brown's testimony was so inherently improbable as to be unbelievable. Concluding that the prima facie case that the plaintiff had made out was entirely unrebutted, the court directed the entry of judgment for the plaintiff. Beatty v. Chesapeake Center, Inc., 818 F.2d 318 (4th Cir.1987).

Upon consideration of the defendant's petition for rehearing, a majority of the judges of this court in regular active service granted a rehearing before the en banc court. 823 F.2d 60 (4th Cir.1987).

I.

Chesapeake Center is a privately operated social agency subject to extensive regulation by Maryland. Late in 1983, Beatty applied for a position as an instructor of mentally retarded adults. After an interview with the unit's manager, Brown, Beatty was offered a job on December 2, 1983.

Beatty reported for orientation on January 16, 1984. She was wearing a maternity blouse. Beatty told Brown she was pregnant, though she had not known she was pregnant when she sought the job several weeks earlier. Each of the women testified that they agreed that Beatty's pregnancy created no real employment problem. In the past, the Center had granted maternity leave on ten separate occasions without encountering any serious problem.

Brown had Beatty sign an employment agreement, after which they proceeded with the orientation process. The employment agreement contained a provision that the employee must be willing to undergo annual physical examinations, including tuberculin tests, and the orientation instructions directed inquiry to that matter. Beatty presented a certificate of Charles County, Maryland, to the effect that she was free of communicable tuberculosis on October 4, 1981. She also presented a letter from her physician that a tuberculin test had been administered on November 4, 1982, with negative results. Earlier, a skin test on Beatty had been read as positive for tuberculosis, although subsequent chest x-rays were read as being negative.

The two women engaged in a discussion of the matter. There was no agreement as to exactly what was said but it is clear that Beatty had some concern about undergoing tuberculin testing because of her pregnancy, and that she thought her records of prior testing should be accepted as satisfying the requirement. At one point in her testimonial version of what was said, Beatty testified that she had told Brown "It's probably good that I'm certified because it probably wouldn't be healthy for me to have one at this time."

If one accepts Beatty's testimonial version of what was said at the orientation session, one cannot reasonably construe it as an adamant refusal to take the test. Brown testified, however, that she understood Beatty to have told her that Beatty would not take the test, though she was pleased that she need not take it.

Brown interrupted the orientation session to consult the Center's director, John Wright. According to both Brown and Wright, Brown told Wright that Beatty was refusing to take the test, but sought to satisfy the requirement by her evidence of the results of earlier testing. Upon Wright's instructions, Brown told Beatty that the orientation process was suspended because of Beatty's "change in status," but promised to be in touch with her.

Upon Wright's instructions, Brown contacted the public nurse at the Talbot County, Maryland, Health Department, the Center's contact for TB tests. The nurse told her that Beatty's documentation was stale and could not be accepted.

Brown wrote to Beatty, stating, "In light of your stated position of not subjecting yourself to a tuberculin test at this time, we are unable to continue to process you as a new employee."

Beatty immediately contacted her physician, who told her that a tuberculin test would not be harmful in her present condition. Beatty then wrote to Brown, explaining her willingness to take a TB test. Brown responded that the job had been filled.

It is a matter of some significance that when Beatty responded on January 23, 1984, to Brown's letter of January 20, 1984, she did not say that Brown had misstated or misconstrued what Beatty had said during the orientation session. Beatty admitted that she had said that "I didn't think it would be healthy to have the TB test done because I am pregnant," though she said the statement was made in the context of her belief that the results of the earlier tests made it unnecessary for her to be tested again. Nor did she claim that she would have expressed a willingness to take the test if she had been told during the orientation meeting that the results of the earlier tests were unacceptable. Instead, she said that, upon receipt of Brown's letter, she called her physician and was then told that she might safely take the test. On the basis of that fresh advice, she told Brown that she was then willing to take the test.

There was also testimony that, earlier, some new employees had been allowed to commence work before undergoing the test several weeks, even months, later, but there was also evidence that the Center's operations would soon be reviewed in connection with recertification procedures and that strict compliance with the state's regulatory rules was thought to be necessary to assure the necessary recertification.

II.

The role of the fact finder is vested exclusively in the district judge, to whom the case was tried without a jury. We have no power to set aside those findings of fact unless they are "clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). A finding may be clearly erroneous if the testimony tending to support the finding is so internally inconsistent or implausible that it could not be accepted by a reasonable fact finder. Id. at 575, 105 S.Ct. at 1512-13.

Brown's story is neither so internally inconsistent nor so implausible as to possess no believability.

That enforcement of the tuberculin test rule for new employees had been somewhat lax in the past might justify an adverse inference by the fact finder, but no such inference was compelled in light of the testimony about preparation for the impending review of operations.

There is no such inconsistency or implausibility in Brown's testimonial version of what Beatty said during the orientation procedure. Brown testified that Beatty had told her that Beatty was unwilling to take the test at that time because of her pregnancy. That was what Brown reported to Wright, as confirmed by Wright's testimony, and that is what Brown said in her letter to Beatty, a statement which went without direct refutation in Beatty's response.

The fact that Brown questioned Beatty as to whether Beatty knew of her pregnancy at the time the position was offered to her would lend support to an adverse inference, but no adverse inference was compelled in light of the testimony that both women agreed that the pregnancy would create no serious employment problem.

Finally, Beatty contends that the Center's story is plausible only if Brown and Wright acted for a discriminatory purpose with a discriminatory intent, but the contention is founded upon complete acceptance of Beatty's testimonial version of what was said during the orientation procedure. That, this court may not do, for Beatty's testimonial version of what was said was contradicted by Brown, and the letters of January 20 and January 23 tend to support Brown's testimonial version of what was said rather than Beatty's.

The district judge heard the testimony and saw the witnesses. It was for him, not for us, to decide whom and what to believe.

III.

The judgment of the district court is affirmed.

AFFIRMED.

HARRISON L. WINTER, Chief Judge, concurring:

Since a majority of the active judges voted to rehear this case in banc and since I have a duty to sit and to vote, I concur in Judge Haynsworth's opinion. I do so reluctantly, not because I have any doubt that affirmance is proper, but because I am convinced that the case should not have been heard by the in banc court even if it was incorrectly decided by a majority of the panel.

The determination of causes by a court of appeals sitting in banc is governed by Rule 35, F.R.App.P. In pertinent part, the rule is:

Rule 35. Determination of Causes by the Court in Banc

(a) When Hearing or Rehearing in Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (...