Burrell v. Board of Trustees of Georgia Military College
| Decision Date | 24 October 1997 |
| Docket Number | No. 95-9135,95-9135 |
| Citation | 125 F.3d 1390 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1063, 72 Empl. Prac. Dec. P 45,190, 11 Fla. L. Weekly Fed. C 641 Melba J. BURRELL, Plaintiff-Appellant, v. The BOARD OF TRUSTEES OF GEORGIA MILITARY COLLEGE, et al., Defendants, Alva L. Baggarly, Individually and in his official capacity as Chief Executive Officer of First Federal Savings and Loan Association of Milledgeville, First Federal Savings and Loan Association of Milledgeville, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Neil Bradley, Atlanta, GA, for Plaintiff-Appellant.
William T. Prescott, Carr G. Dodson, Jones, Cork & Miller, Macon, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior Circuit Judge.
Plaintiff brought suit against Defendants under Title VII for gender discrimination and retaliation. The case was one involving an employment decision--Plaintiff's dismissal--which was the product of mixed motives on the employer's part. The district court conducted a bench trial and entered judgment for Defendants. We affirm.
Plaintiff Melva J. Burrell ("Plaintiff") began working in Milledgeville, Georgia for First Federal Savings and Loan of Milledgeville ("First Federal") as a teller in 1972. In her 16 years there, she advanced rapidly to higher positions. In 1986, she was appointed senior vice president. Plaintiff also served as corporate secretary and was appointed to the Board of Directors.
For the first six months of 1987, Plaintiff acted as the interim Chief Executive Officer ("CEO") and was on the search committee for a new CEO. 1 Plaintiff recommended Alva Baggarly to the Board for the CEO position, and they voted to hire him. Baggarly started as CEO of First Federal in July 1987.
Baggarly and Plaintiff met to discuss the company's organization. They disagreed over how First Federal should be structured and what Plaintiff's responsibility would be. Baggarly disclosed his intent to establish an executive vice president position that would fall directly below the CEO. When Plaintiff expressed interest in the position, she claims that Baggarly told her that he planned to hire a male because too many women filled First Federal's officer positions. Baggarly never admitted or denied making this statement, but he repeatedly denied that he ever discriminated against Plaintiff based on her gender.
In the following months, Plaintiff and Baggarly had constant disputes. 2 The tension between Baggarly and Plaintiff was visible to First Federal's employees, who felt that they had to choose sides. Board members eventually became aware of the problem; Plaintiff met with some of them to discuss her conflicts with Baggarly, particularly her concern over loan-policy violations.
Baggarly began to isolate Plaintiff from his management scheme. In the fall of 1987, Baggarly hired Larry Smith as an officer to manage real estate lending. Baggarly introduced Smith to other board members, but not to Plaintiff. Baggarly, Smith and Fred Williamson, another male loan officer, met each morning to discuss loan matters; but in spite of her position as chief financial officer, Plaintiff was not included in the meetings. In early 1988, Baggarly began to have business development parties for local realtors; but he invited only the other male employees and Board members. Plaintiff at this time confided to a close friend that Plaintiff thought that she was being discriminated against because she was a woman.
During this same period, Plaintiff was also serving as president of the Baldwin County PTA. She publicly criticized Georgia Military College ("GMC") at PTA meetings and Board of Education meetings for what Plaintiff believed were GMC's segregationist practices. She also advanced the position that GMC should receive no public funding in the light of these practices. Jacob Goldstein, one of the seven members of First Federal's Board of Directors and also a member of the Board of Trustees of GMC, frequently debated his opposing views of GMC with Plaintiff.
In Spring 1988, Plaintiff wrote a letter to the editor of the local newspaper. The Milledgeville Union Recorder published the letter to the editor, which criticized public funding of GMC. A reporter from the Atlanta Journal and Constitution called to interview Plaintiff on the subject. In preparation for this interview, Plaintiff inquired into the racial composition of GMC's faculty; she was informed that there were no black faculty members. This information and other statements provided by Plaintiff were printed in an Atlanta Journal article.
In response to Plaintiff's public criticism of GMC, Goldstein's brother withdrew his funds from First Federal. Other GMC advocates threatened to do the same. Baggarly asked an employee to notify him of account closings because of the GMC situation and further asked that instances of Plaintiff's poor performance be documented.
Over the next weeks, Baggarly spoke with several Board members about his conflicts with Plaintiff. Plaintiff and Baggarly agreed to submit their differences to the Board at the next meeting. At this meeting, Plaintiff and Baggarly each addressed the Board individually. Plaintiff's most pressing complaint was that Baggarly repeatedly and consistently failed to follow Board policy; she cited many examples to that effect. Plaintiff also complained that she had requested that Baggarly define her duties and that he had not responded. Plaintiff also mentioned complaints of sexual harassment at one of the branches. 3
In his presentation, Baggarly described what he viewed as "personality conflict" and "style of management" problems. He also responded to Plaintiff's allegations of board-policy violations. The Board conferred for a short time and unanimously adopted a resolution supporting Baggarly's right to make employment decisions without the Board's prior consent. Baggarly then requested that Plaintiff resign, but she refused. He fired her the next day. 4
The Board paid Plaintiff to relinquish her seat on the Board, but she received no severance pay. Baggarly hired John Collins to replace Plaintiff at a salary $7000 higher than what Plaintiff had been making, although neither had college degrees.
Plaintiff sued under Title VII for sex discrimination and retaliatory discharge. 5 Following a bench trial, the district court found for First Federal on both Title VII claims. Plaintiff appealed.
Plaintiff testified that when she asked Baggarly--about a year before she was fired--to give her the executive vice president job, he responded that he wanted to hire a man for the position because too many women filled First Federal's officer positions. She says the statement constitutes direct evidence of gender discrimination. Assuming for the sake of argument that Baggarly did, in fact, make the statement, 6 it is not direct evidence of gender discrimination in Plaintiff's termination.
Direct evidence is "evidence, which if believed, proves existence of fact in issue without inference or presumption." Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987) (citing Black's Law Dictionary 413 (5th ed.1979)). Here, we cannot say that Baggarly's statement--even if fully credited--proves the existence of a discriminatory motive in his decision to terminate Plaintiff's employment; at best, the evidence suggests--but does not prove--a discriminatory motive. 7 "By definition, then, it is circumstantial evidence." Id. 8
Whether the plaintiff--by means of circumstantial or direct evidence or both--has carried the burden to show discrimination is a question of fact, which will only be overturned by this court if clearly erroneous. Lake v. B.F. Goodrich Co., 837 F.2d 449, 451 (11th Cir.1988). "Findings based on the credibility of witnesses demand even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Caban-Wheeler v. Elsea, 71 F.3d 837, 843 (11th Cir.1996) (internal quotation marks omitted). And "[w]hen there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. (citation omitted).
Here, the district court, after conducting a complete trial and hearing extensive testimony from the parties involved, found that the evidence (including the testimony on Baggarly's statement about promoting plaintiff) failed to prove--on the pertinent termination issue--gender discrimination at all. 9 The court wrote: "The court cannot say that Plaintiff has proved that her gender was a factor in Baggarly's decision to discharge her." Based on the sum of the evidence, this finding was certainly a permissible view of the evidence; it is not, therefore, clearly erroneous.
Plaintiff also contends that her discharge from First Federal was in retaliation for her public criticism of GMC's discriminatory employment practices. By a preponderance of the evidence, Plaintiff convinced the factfinder (here, the district court judge) that "her criticism of GMC was a factor in the decisionmaking process to terminate her"; 10 in accordance with Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the district court then shifted the burden of persuasion to First Federal to prove that it would have fired her even in the absence of her criticism of GMC. 11 Price Waterhouse provides specific guidance on how the employer must meet this burden:
[T]he employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive ... An employer may not ... prevail in a mixed-motives case by offering a legitimate and...
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