Hochstadt v. Worcester Foundation for Experimental Biology, No. 76-1019

• Decision Date: 24 September 1976
• Docket Number: No. 76-1019
• Citation: 13 Fair Empl. Prac.Cas. (BNA) 804,545 F.2d 222
• Parties: 13 Fair Empl.Prac.Cas. 804, 12 Empl. Prac. Dec. P 11,220 Dr. Joy HOCHSTADT, Plaintiff-Appellant, v. WORCESTER FOUNDATION FOR EXPERIMENTAL BIOLOGY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 222

545 F.2d 222

13 Fair Empl.Prac.Cas. 804,

12 Empl. Prac. Dec. P 11,220

Dr. Joy HOCHSTADT, Plaintiff-Appellant, v. WORCESTER FOUNDATION FOR EXPERIMENTAL BIOLOGY et al.,

Defendants-Appellees.

No. 76-1019.

United States Court of Appeals, First Circuit.

Argued June 1, 1976.

Decided Sept. 24, 1976.

Nancy Gertner, Boston, Mass., with whom Harvey A. Silverglate and Silverglate, Shapiro & Gertner, Boston, Mass., were on brief, for plaintiff-appellant.

Ramon V. Gomez, Atty., EEOC, Washington, D.C., with whom Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Attys., EEOC, Washington, D.C., were on brief, for Equal Employment Opportunity Com'n, amicus curiae.

John Taylor Williams, Boston, Mass., with whom Judith Ashton and Haussermann, Davison & Shattuck, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This case arises on an appeal from the denial of a preliminary injunction. Claiming violation of her rights under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e, et seq., Dr. Joy Hochstadt brought this suit for interim relief pending disposition by the EEOC of her complaint of unlawful employment practices committed by her employer, the Worcester Foundation for Experimental Biology (the Foundation). ¹ She seeks, among other relief, an affirmative order requiring the Foundation to revoke its decision to terminate her employment until the EEOC decides whether there is reasonable cause to believe that her charge is true, and to bring suit on her behalf. She claims that her discharge violated section 704(a) of the Act, 42 U.S.C. § 2000e-3(a), ²because it was in retaliation for her opposition to unlawful employment practices of the Foundation. After a five-day hearing, the district court denied the application for preliminary injunction, concluding that plaintiff had failed to prove the likelihood of success on the merits of her claim of discrimination. We first considered this case on petitioner's motion for injunction pending appeal, which we denied. After having had the benefit of further argument and more extensive briefing, we remain unpersuaded that the district court abused its discretion in denying relief. ³

I

Before coming to the principal issues on appeal, we shall briefly consider the district court's power to afford relief. The Civil Rights Act does not provide specifically that an alleged victim of discrimination may privately obtain preliminary relief prior to the time the EEOC investigates and decides whether or not to bring suit in its own name, see notes 1 and 3, supra. Whether under the 1972 Amendments the right to maintain such an independent preliminary proceeding to preserve the status quo of employment can be implied, or whether such a private proceeding runs counter to the congressional scheme calling for an initial agency investigation into whether there is reasonable cause to believe that the charge is true, is a question that has not been resolved by the Supreme Court. The court below ruled that it could entertain Dr. Hochstadt's request for preliminary injunctive relief pending EEOC action and there is some support for this view, see Berg v. Richmond Unified School District, 528 F.2d 1208 (9th Cir., 1975), petition for cert. filed, 44 U.S.L.W. 3459 (U.S. February 17, 1976); Drew v. Liberty Mutual Ins. Co., 480 F.2d 69 (5th Cir., 1973), cert. denied, 417 U.S. 935, 94 S.Ct. 2650, 41 L.Ed.2d 239 (1974). There are, however, district court decisions to the contrary. See Troy v. Shell Oil Co., 378 F.Supp. 1042 (E.D.Mich., 1974), appeal dismissed as moot, 519 F.2d 403 (6th Cir., 1975); Collins v. Southwestern Bell Tel. co., 376 F.Supp. 979 (E.D.Okla., 1974). The Foundation does not raise the question on appeal, though the EEOC, in an amicus brief, endorses the district court's assumption of jurisdiction. In view of the district court's extensive consideration of the substantive aspects of Dr. Hochstadt's claim, and of the fact that we find no error in the court's denial of relief, we shall not rule on the issue, but shall assume, without deciding, that the court below had authority to grant or deny the relief sought.

II

After conducting the five-day hearing, listening to the testimony of seven senior scientists at the Foundation, and reviewing the extensive documentary evidence, the district court prepared a comprehensive memorandum containing its findings and rulings of law. Although the court found that plaintiff had initially demonstrated a prima facie case, which shifted to the Foundation the burden of proving that it had discharged her for legitimate and nondiscriminatory reasons, it found that the Foundation had met this burden. ⁴ Accordingly the court held that plaintiff had not established a likelihood of success on the merits sufficient to entitle her to preliminary injunctive relief. The court's findings supporting this conclusion may be summarized as follows:

The Worcester Foundation for Experimental Biology is a nonprofit institution primarily committed to basic biomedical research, employing some 250 persons. The Foundation devotes.$1.8 million of its annual budget to cancer research in what is known as the Cell Biology Program. The principal investigator is Dr. Mahlan Hoagland, who is also the Director of the Foundation. Dr. Hoagland has recruited other scientists to join the program since its inception, and in 1971 recruited Dr. Harvey Ozer, a virologist, to fill a specific need in the program.

Dr. Ozer informed Dr. Hoagland of the availability and interest of his wife, Dr. Joy Hochstadt, in joining the Foundation. Dr. Hochstadt is a microbiologist, whose research into cell membrane functions, described by one scientist at the hearing as "pioneering", fit into the Foundation's research program. In September, 1971, Dr. Hoagland offered both Dr. Ozer and Dr. Hochstadt positions as senior scientists. Dr. Ozer's salary was set at $24,000, while Dr. Hochstadt's salary was set at $18,000. These salaries reflected the needs of the institution. Dr. Ozer and Dr. Hochstadt accepted the employment offers on October 1, but thereafter Dr. Hochstadt sought to renegotiate her salary, claiming it was discriminatory and illegal. The Foundation reluctantly acceded to readjust the salaries of Dr. Hochstadt and Dr. Ozer so that each would receive $21,000.

After starting her employment in January, 1972, Dr. Hochstadt joined the small group of cell biologists and participated in the periodic meetings of the group held to discuss policies, recruitment, and direction of research. At these meetings, Dr. Hochstadt early began to interpose personal grievances and salary complaints, to discuss the inadequacy of the Foundation's affirmative action program, and to criticize the Foundation's administration and its director, Dr. Hoagland, and assistant director, Dr. Welsch. These complaints interfered with the meetings, disrupted the discussions, and eventually caused discontinuation of the meetings.

In January, 1973, after they had been at the Foundation for over a year, Dr. Hochstadt and Dr. Ozer each sought from the Foundation $3,000 in lump sum back pay and a $3,000 salary increase to compensate for unanticipated moving expenses and the cost of living increase. In March, 1973, plaintiff was given a $1,500 (4.5%) increase as a result of the Foundation's annual salary review. Dr. Hoagland indicated that she would receive a larger raise the following year "when you've effectively joined the team."

In July, 1973, Dr. Hochstadt filed formal charges with the Massachusetts Commission Against Discrimination (MCAD), the EEOC, and the Department of Labor, alleging that the Foundation had discriminated against her by setting her starting salary much lower than that for male scientists starting work at the same time. One month later, she filed a class action complaint with the Department of Health, Education, and Welfare on behalf of all female employees at the Foundation. The complaint filed with HEW caused the Department to request the Foundation to implement an affirmative action plan. In June, 1974, the MCAD found reasonable cause to credit Dr. Hochstadt's complaint, but deferred further consideration of the charge pending action by the EEOC. In September, 1974, Dr. Hochstadt filed suit against the Foundation pursuant to § 2000e-5(f)(1), removing the case from the jurisdiction of the EEOC. In December, 1974, the Foundation settled with Dr. Hochstadt for $20,000.

Subsequent to her minimal increase and the filing of these charges, plaintiff sought to elicit salary information from other scientists and personnel at the Foundation and on several occasions this conduct interfered with ongoing research and upset the other scientists and research assistants who were approached.

Plaintiff also circulated rumors that the Foundation would lose much of its federal funding because it was not complying with regulations concerning affirmative action programs. To allay the apprehension created by these rumors, on at least three occasions the Foundation had to invite an official from HEW to assure scientists at the Foundation that they were in no danger of losing federal funding.

In April, 1974, Dr. Hochstadt invited Dr. Helene Guttman, an officer of the Association of Women in Science, to conduct a covert affirmative action survey at the Foundation, ostensibly while attending a scientific seminar. Dr. Guttman later wrote to Congressman Edwards indicating her findings that the Foundation was not in compliance with federal regulations and critical of HEW's handling of Dr. Hochstadt's complaint of discrimination against the Foundation, and she sent copies of the letter to eight other members of Congress.

Also in 1974, Dr. Hochstadt invited a reporter from the Worcester...