Garcia v. Rush-Presbyterian-St. Luke's Medical Center

• Decision Date: 30 September 1981
• Docket Number: RUSH-PRESBYTERIAN-ST
• Citation: 660 F.2d 1217
• Parties: 26 Fair Empl.Prac.Cas. 1556, 27 Empl. Prac. Dec. P 32,167 Magdalena GARCIA, et al., Plaintiffs-Appellants, v.LUKE'S MEDICAL CENTER, et al., Defendants-Appellees. No 80-2087.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1217

660 F.2d 1217

26 Fair Empl.Prac.Cas. 1556,

27 Empl. Prac. Dec. P 32,167

Magdalena GARCIA, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, et al Defendants-Appellees.

No 80-2087.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 1981.

Decided Sept. 30, 1981.

Stephen G. Seliger, Raymond G. Romero, Mexican American Legal Defense and Ed. Fund, Chicago, Ill., for plaintiffs-appellants.

Richard H. Schnadig, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Circuit Judge, NICHOLS, ^* Associate Judge, and BAUER, Circuit Judge.

NICHOLS, Associate Judge.

This employment discrimination case comes before the court on plaintiffs' appeal of the June 30, 1980, judgment of the United States District Court for the Northern District of Illinois. The Honorable George N. Leighton held that defendants Rush-Presbyterian-St. Luke's Medical Center, James A. Campbell, and Charles A. Freeman were entitled to judgment in their favor against plaintiffs as to all individual and class claims. We affirm.

In the district court plaintiffs Magdalena Garcia, Fernando Romero, and Victoria Perez, who were Latinos, sued on their own behalf and on behalf of other Latinos similarly situated in a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. Plaintiffs' complaint alleged claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981.

The district court determined that the evidence did not establish by the standard of proof required by law that the plaintiffs individually or as a class were subjected to any disparate treatment or were the object of any disparate impact because of their race, color, national origin, or because any of them were Latinos. The district court's definition of "Latino" was "any Spanish surnamed person or individual of Hispanic ancestry." But he excluded Filipinos. It is asserted and denied that the district court was confused about the composition of the aggrieved class. This was potentially important because of the importance of statistical evidence and the noninclusion of blacks, the largest racial minority in the community, as members of the grievant class. In light of our other conclusions, clearing up any semantic confusion in this regard is not needed.

The district court issued a detailed and well reasoned decision in which it determined that defendant Rush's hiring and transfer practices were and had always been racially neutral. In rendering its decision the court considered extensive evidence submitted during 18 days of trial without a jury, from May 27 to June 23, 1980. At trial, plaintiffs called 13 witnesses, used excerpts from four depositions, and offered and had received in evidence 70 exhibits. Defendants called 11 witnesses, offered and received in evidence 102 exhibits and then on rebuttal plaintiffs offered three additional exhibits. The reasoning of the court will be set forth herein where it has been challenged by plaintiffs.

Succinctly, plaintiffs claims were and are for alleged employment discrimination. More specifically the claims of the individual plaintiffs against defendants below were:

1. Discrimination against plaintiff Magdalena Garcia by harassment, discipline, and discharge because of her race or national origin in violation of Section 703 of Title VII, 42 U.S.C. § 2000e-2.

2. Discrimination against plaintiff Victoria Perez in denying her transfer to the position of Lab Liaison Technician at Rush in violation of Title VII and 42 U.S.C. § 1981. She also alleged discrimination and retaliation by her discharge on August 17, 1976, in violation of Sections 703 and 704(a) of Title VII, 42 U.S.C. § 2000e-2 and § 2000e-3(a) and in violation of 42 U.S.C. § 1981, but at the conclusion of plaintiffs' evidence, plaintiffs' counsel withdrew this discharge claim under both statutes.

3. Purposeful and intentional discrimination against plaintiff Fernando Romero by Rush's refusal to hire him because he was a Latino, in violation of 42 U.S.C. § 1981.

Plaintiffs do not appeal from the trial court's findings of fact and conclusions of law concerning any of the individual claims of plaintiffs Garcia and Perez, and no issues respecting them remain in the case. Only the legal standard applied to the facts regarding plaintiff Romero are challenged.

The class claims against defendants under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. § 1981 were:

1. Discrimination in refusing to hire qualified Latinos.

2. Making discriminatory assignments to Latino employees.

3. Utilizing discriminatory performance standards for Latino employees with respect to promotion, assignment, and tenure.

4. Discriminating against Latino employees by restraining and coercing them in the exercise of their rights to complain of discriminatory employment practices.

Plaintiffs do not challenge the trial court's findings and conclusions that defendant did not discriminate against plaintiffs in assignments, or in utilizing performance standards for promotion, assignment, and tenure, or by restraining and coercing plaintiffs in the exercise of the rights to complain of discriminatory practices. The issues brought forward on appeal are comparatively few. Plaintiffs challenge the district court findings regarding only defendant's hiring practices, and plaintiff Romero's claim under 42 U.S.C. § 1981.

I

Initially though, plaintiffs argue that this case should be reversed and remanded because the trial judge adopted the proposed findings and conclusions submitted by defendants. It does appear he used in haec verba many proposed findings that defendants submitted, or altered and rearranged them only in rather immaterial particulars. But a party cannot be penalized for the persuasive nature of his submissions. We do prefer to see findings that reflect an effort of composition by the trial judge. They furnish evidence that he really worked over and analyzed the fact issues. He must avoid giving the impression that he first decided who should win, and then made the findings that would best support the favored litigant on appellate review. Here, however, the record does contain other evidence of the concern Judge Leighton displayed with the fact issues. For instance, he requested additional evidence to verify the probativeness of defendants' statistical evidence. See infra.

As plaintiffs correctly point out, this court has criticized the practice of adopting the prevailing party's findings verbatim and without change. But such adoption does not invalidate the findings, although they may therefore be more critically examined. Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 731 (7th Cir. 1979); and FS Services, Inc. v. Custom Farm Services, Inc., 471 F.2d 671, 676 (7th Cir. 1972). The proper standard of appellate review of the trial court's findings of fact is that the findings will not be disturbed unless "clearly erroneous." Fed.R.Civ.P. 52(a), Title 28 U.S.C.; Hanock v. Eck, 183 F.2d 632, 635 (7th Cir. 1950) and Tornello v. Deligiannis Brothers, Inc., 180 F.2d 553 (7th Cir. 1950).

Plaintiffs have failed to establish any error on the part of the district court. Rather than showing that the district court findings were clearly erroneous as they must on appeal, with specifics as to what findings were erroneous and how, plaintiffs set forth summaries of the evidence they submitted below (complete with percentage statistics and a graph along with what is purported to be a summary of defendants' data and expert evidence). But the test on appeal is not which party had the better evidence below. Plaintiffs' position therefore cannot prevail. As this court explained in a previous employment discrimination case with respect to findings of expert statistical evidence

On appeal the defendants seek to challenge the district court's conclusions by relitigating the probativeness of the evidence introduced and rejected at trial. The findings of the trial court with respect to this evidence statistical studies and the testimony of expert witnesses are perfect examples of subsidiary facts to which the clearly erroneous standard applies. As this court has observed, "(t)he resolution of such evidentiary conflicts is the precise function for which our trial courts sit (and it) is only necessary for us to determine on review whether the findings supporting the judgment have an evidentiary basis. * * *. (citations omitted.) We should reverse the district court's findings only if, with due deference to the trial judge's resolution of conflicting evidence and to his determination of credibility, we are left with the definite and firm conviction that a mistake has been committed. * * * (citations omitted.)

United States v. City of Chicago, 549 F.2d 415, 429-30 (7th Cir.), cert. denied sub nom., Adams v. City of Chicago, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). The district court's findings now before us are supported by substantial record evidence.

Plaintiffs do not contest the vast majority of the trial judge's findings and conclusions, yet complain that the trial judge did not consider the case with a "disinterested mind." This argument is weak. Plaintiffs cite two cases as "similar" to their own, Equal Employment Opportunity Commission v. United Virginia Bank/Seaboard National, 555 F.2d 403 (4th Cir. 1977); United States v. Commonwealth of Virginia, 569 F.2d 1300 (4th Cir. 1978). But these cases do not support plaintiffs' position. In Equal Employment Opportunity Commission v. United Virginia Bank, supra, for instance, the appeals court reversed the district court because the district court's findings of fact were phrased in "broad conclusory terms and did not include any subsidiary findings which would give appropriate support to the court's conclusory findings." 555 F.2d at 405. In addition, the district court in that case made no...