Hashan v. California St. Bd. Equalization

• Decision Date: 05 January 2000
• Docket Number: No. 98-3193,98-3193
• Citation: 200 F.3d 1035
• Parties: (7th Cir. 2000) ZIA U. HASHAM, Plaintiff-Appellee, v. CALIFORNIA STATE BOARD OF EQUALIZATION, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1035

200 F.3d 1035 (7th Cir. 2000)

ZIA U. HASHAM, Plaintiff-Appellee, v. CALIFORNIA STATE BOARD OF EQUALIZATION, Defendant-Appellant.

No. 98-3193

In the United States Court of Appeals For the Seventh Circuit

Argued February 23, 1999

Decided January 5, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 3326--William T. Hart, Judge. [Copyrighted Material Omitted]

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Before COFFEY, RIPPLE and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Zia U. Hasham ("Hasham") filed charges of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 et seq., against his employer, the State of California Board of Equalization ("CBOE"). Plaintiff filed formal and informal complaints alleging discrimination with CBOE and also filed a charge with the Equal Opportunity Employment Commission ("EEOC"), which issued a right to sue letter on March 19, 1996. Before the EEOC and also in federal court,¹ Hasham claimed that CBOE discriminated against him based on his Pakistani national origin, his Muslim religion and also because of his age (over 40 years of age). District Court Judge William Hart granted CBOE summary judgment on the age and religion discrimination claims but allowed the claim of national-origin discrimination to proceed to trial. The jury found in Hasham's favor and awarded him back pay and compensatory damages in the amount of $350,000. On post-trial motions, the trial judge upheld the jury's liability verdict but vacated rather than reduced the compensatory damage award of $350,000 while awarding Plaintiff $15,548 in back-pay, $4,188.48 in interest, a promotion to a Supervising Tax Auditor I ("Supervisor I") position in Houston, Texas with seniority retroactive to August 1993 and attorneys fees and costs.² On September 3, 1998, the trial court granted the defendant's motion to stay the money judgment and order of promotion. Three months later on December 10, 1998, the court lifted the stay on Plaintiff's promotion and granted him his promotion due to a Supervisor I job opening. The defendant now appeals the district court's denial of its motion for judgment as a matter of law and motion for a new trial. CBOE also appeals the trial judge's evidentiary rulings and jury instructions. We AFFIRM.

I. BACKGROUND

The CBOE is an administrative agency of the State of California and assumes the charge of auditing those businesses located outside California and doing business within California and who may be liable for payment of California sales and use tax. The CBOE out-of-state district maintains field offices in Chicago, New York and Houston. Each field office is directed by an area administrator who reports to a district administrator. Both Sidney Zigelman ("Zigelman"), the area administrator for the Houston branch office of the out-of-state district, and Bruce Henline ("Henline"), the out-of-state district administrator,³ served from July 1991 through the time of Hasham's promotion denial.

CBOE's offices maintain four types of auditing positions in the out-of-state district offices, entry level Tax Auditor I ("Auditor I"), Tax Auditor II ("Auditor II"), Associate Tax Auditor ("Auditor III") and Staff Tax Auditor. The out- of-state district has a long standing practice of promoting all Auditor Is to Auditor II, provided they successfully complete the mandatory probationary period and meet job expectations. Similarly, there is a long standing practice of promoting all Tax Auditor IIs to Tax Auditor III provided they pass the required examination and have an acceptable job performance. As CBOE's most senior tax auditing position, Staff Tax Auditor is a competitive post, requiring a promotional exam score within the top three ranks. This position has the responsibility of performing difficult and complex audits--audits of large, multi-national corporations.

Under CBOE's competitive promotion system, auditors desiring to be considered for a particular promotion must initially express an interest in the particular promotion and achieve one of the top three scores on the applicable promotional exam, which consists of both a written and an oral exam. Promotional exams are given approximately every two years and candidates who score above a minimum 70% on the exam are ranked based on their scores on an information list.⁴ When a vacancy arises, the CBOE Selection Unit certifies a list containing the names and addresses of "eligible candidates" for the position to the appointing authority. Only those candidates who have scored in the highest three ranks on the applicable exam and initially expressed an interest in the particular position at the time the list was certified are considered "eligible candidates" (i.e., "they are 'reachable' for the vacancy"). The candidates on the certification list are then contacted a second time to determine if they are interested in that particular vacancy.⁵ Also, CBOE's promotion policy provides that all employees, regardless of their field office location, are permitted to compete for promotions within the out-of-state district.

Plaintiff Hasham is a U.S. citizen and has been employed by CBOE since 1981 as an out-of-state district auditor in the Chicago office. He received promotions to Auditor II and III and after a competitive exam process, was promoted to Staff Tax Auditor in 1988. In 1990, Hasham took the promotional exam for a Supervisor I position, and scored the second highest exam in the Chicago office. In 1992, Hasham again took the exam and scored the highest among the Chicago, New York and Houston offices. He also passed the Supervising Tax Auditor II ("Supervisor II") exam, which tests for knowledge and skills above what is tested on the Supervisor I exam. As a result, Hasham's name appeared on the Houston office certification lists in 1991 and 1992.

In July 1993, a Supervisor I position in the Houston office became available and at the time, Brian Wiggins ("Wiggins"), Hasham and Steve Smith ("Smith") were ranked within the top three ranks on the applicable certification list, 1, 2 and 3, respectively. During the first week of August 1993, Hasham called Zigelman to inquire about the Supervisor I position. During the conversation, Hasham advised Zigelman that he had three school- age children and inquired about the quality of the Houston public schools. Hasham asserts that after the conversation, Zigelman criticized his Indian/Pakistani accent to a fellow Houston employee⁶ and said that Hasham was worrying about the Houston schools "as if he would get the job."⁷

On August 18, 1993, Zigelman participated in a phone interview with Hasham that lasted but a few minutes with Zigelman asking only a few general questions. Despite the fact that Zigelman admitted at trial that Hasham's performance in the job interview was "excellent," Hasham did not receive the promotion. Instead, Smith, a white auditor in the Houston office, was selected.

A. Qualifications of Hasham and Smith

Hasham scored an 87 on the Supervisor I exam while Smith scored an 83. Hasham has a Bachelor of Arts degree from the University of Karachi, Pakistan, and a Bachelor of Science degree in Business Administration and a Masters of Science degree in Accounting from Roosevelt University in Chicago. At the time of the promotion at issue, Hasham had informed Zigelman that he was a certified public accountant ("CPA"), while Smith on the other hand, had a Bachelor's degree in accounting but was not qualified as a CPA.

According to Zigelman's testimony at trial, prior to his promotion of Smith, every supervisor in the Houston office was a CPA. Further, as of September 1993, Hasham had twelve and one-half years of tax auditing out-of-district accounts experience in contrast to Smith's six years. Moreover, Hasham had completed several difficult and large "mega" audits (audits of large multi- national corporations) for CBOE, while Smith had yet to complete even one as of September 1993 and had more aged audits⁸ than Hasham. Also, prior to recommending Smith for the promotion, Zigelman contacted Lynn Thompson, Hasham's supervisor at the time, and received a favorable reference.

B. Zigelman's Promotion Decision

Zigelman recommended Smith for the Supervisor I position and district administrator Henline concurred.⁹ Zigelman, in an affidavit filed with the trial court, claimed that he chose Smith for four reasons: (1) he worked with Smith personally and knew the quality of his work firsthand; (2) experience did not play a major role in the ultimate promotion decision because the candidates were equally experienced; (3) he preferred to promote from in-house to improve worker morale; and (4) he wanted to retain another employee, Carol Cross ("Cross") who caused the vacancy by requesting a voluntary demotion. In making his decision, Zigelman admitted that he did not consider the complexity of the audits that the respective candidate had responsibility for nor did he consider Hasham's superior experience to that of Smith. He also stated that he did not take into account that Hasham had been asked to train new auditors, teach a law class or temporarily fill in for a supervisor. Further, prior to 1993, Zigelman on two occasions had an opportunity to make promotions to supervisory positions: Carol Cross and Joe Clayton.¹⁰

Following Smith's promotion, Hasham filed his discrimination claim with the EEOC and thereafter with the district court. After a jury trial, Hasham was awarded back pay and compensatory damages. On post-trial motions, the trial judge upheld the jury's liability verdict while vacating the compensatory damages award and awarded Plaintiff $15,548 in back pay, calculated from the date of his promotion denial, $4,188.48 in interest, the Supervisor I...