Joshi v. Florida State University Health Center, 84-3387

• Decision Date: 21 June 1985
• Docket Number: No. 84-3387,84-3387
• Citation: 763 F.2d 1227
• Parties: 38 Fair Empl.Prac.Cas. 38, 38 Empl. Prac. Dec. P 35,505, 25 Ed. Law Rep. 196 Dr. Anjali A. JOSHI, Plaintiff-Appellant, v. FLORIDA STATE UNIVERSITY HEALTH CENTER, Bernard Sliger, in his capacity as President of Florida State University, Dr. Homer Ooten, in his capacity as Director of Business Affairs, Dr. Robert Hunter, in his capacity as Former Director of Florida State University Health Center, Dr. Phillip C. Rond, as Director of Florida State Health Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1227

763 F.2d 1227

38 Fair Empl.Prac.Cas. 38, 38 Empl. Prac.

Dec. P 35,505,

25 Ed. Law Rep. 196

Dr. Anjali A. JOSHI, Plaintiff-Appellant, v. FLORIDA STATE UNIVERSITY HEALTH CENTER, Bernard Sliger, in his capacity as President of Florida State University, Dr.

Homer Ooten, in his capacity as Director of Business

Affairs, Dr. Robert Hunter, in his capacity as Former

Director of Florida State University Health Center, Dr.

Phillip C. Rond, as Director of Florida State Health Center,

Defendants-Appellees.

No. 84-3387.

United States Court of Appeals, Eleventh Circuit.

June 21, 1985.

Lindsey Gorman, Tallahassee, Fla., Algia R. Cooper, Pensacola, Fla., for plaintiff-appellant.

Gene T. Sellers, Tallahassee, Fla., for State Bd. of Ed.

Gerald B. Jaski, University Atty., Fla. State University, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, Chief Judge, HATCHETT, Circuit Judge, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Dr. Anjali Joshi appeals from a decision of the district court, 486 F.Supp. 86 (N.D.Fla.1980), holding that Florida State University ("FSU") did not discriminate against her in its failure to hire her for a position at the FSU Health Center between April and September 1976. We reverse.

A prior appeal in this case was decided by the Fifth Circuit in 1981. Joshi v. Florida State University, 646 F.2d 981 (5th Cir., Unit B, 1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982). The Court in this prior appeal ("Joshi I ") affirmed the district court's finding of no discrimination in three of the instances alleged by Joshi; however, the Court reversed the district court's ruling as to the fourth instance of discrimination holding that the district court had erroneously found that Joshi was no longer in the running for employment during the period from April to September 1976. The Court in Joshi I found that Joshi "was actively in the running for a position as staff physician" during this time period and directed that the district court determine on remand "whether the defendants produced or are now able to offer evidence of a legitimate, nondiscriminatory reason explaining their failure to hire Dr. Joshi." Id. at 990.

On remand, the district court applied the law of the case to the issue of whether Joshi was an applicant, indicating that the Court "was not free to re-examine the issue of whether or not this plaintiff was an applicant or an active applicant for the positions between the period of April '76 and September of '76. That issue was foreclosed by the opinion of the 5th Circuit Court of Appeals and the opinion of this Court."

The court found, however, that while plaintiff was an active applicant for the position, she was not actively considered because the people at FSU in charge of the hiring process did not in fact believe that she was an applicant. The court further found that "the persons ultimately chosen, that's Doctor Heller and Latti [Latey], had qualifications at least equal to those of the plaintiff" and that the fact that these doctors were better or equally qualified is the true reason for the employment decision.

Although the only issue on this appeal relates to the fourth alleged instance of discrimination, that relating to the hiring of two male physicians in September 1976, reference to the entire series of contacts between Joshi and the FSU Health Center is essential to an understanding of the factual context in which the instant allegation of discrimination arose. That factual context, largely as stated in Joshi I, is as follows: Joshi initially made a formal application for a position as staff physician in August 1975. During the middle of that month, she was interviewed by Dr. Robert Hunter, then director of the Health Center. According to his usual procedure, he conducted her through the medical center and introduced her to several physicians with whom she had brief interviews. Following the tour, Hunter polled the physicians who had met Joshi. None had any objections to her personality or attitude. Hunter found Joshi to be fully qualified for employment as a staff physician, but he needed written authorization from Dr. Homer Ooten, the University administrator with primary fiscal responsibility for the Health Center, before he could fill any position at the Center.

On August 18, 1975, Hunter submitted Joshi's name, along with the names of five other applicants he had found to be qualified, in a memorandum to Ooten requesting authorization to hire the six doctors. Hunter recommended the doctors in the order in which each had made a firm commitment to accept the appointment. Ooten approved the hiring of the first four on the list. As Joshi's name was fifth on the list, she was not hired.

On August 21, 1975, Hunter wrote Joshi to inform her that he had not received approval to hire her. He stated that she was "next on the list and [would] have the first opportunity for the next position that opens." On January 8, 1976, Hunter sent a memorandum to Ooten in which he requested authorization to hire Joshi "at the earliest possible date" since the Medical Center was understaffed and Joshi was next in line for employment in terms of qualifications and priority.

Ooten replied by memorandum dated January 19, 1976. He stated that he was concerned about the small number of physicians on the staff but that he felt that the fact that Joshi was next in line in terms of the date on which she had made a firm commitment to accept employment was insufficient justification for hiring her. He stated that he did not feel that a commitment had been made to Joshi despite the implications of Hunter's letter to her on August 21, 1975. He requested Hunter to arrange for a select group of staff physicians to interview Joshi and forward their comments regarding her to him by way of written recommendation.

On January 22, 1976, Dr. Joshi met with this committee. The next day, Dr. McHugh, who had chaired the committee, submitted a written report of the interview to Ooten. He stated therein that the committee had questioned Joshi about her past medical experience and reached the conclusion that she appeared well qualified for the position. However, he concluded with the statement that he felt the vacancy should be advertised to determine the availability of physicians prior to hiring any staff physicians. Ooten testified that he called a meeting of the committee members on February 20, 1976, in order to clarify the meaning of this report since it contained no clear recommendation either to hire or not to hire Joshi. He testified that he learned that some of the physicians had reservations about Joshi's qualifications.

Hunter stepped down from the position as director of the Health Center effective January 31, 1976. Dr. Phillip Rond became acting director on or about February 1, 1976. Hunter testified that he assumed the position of staff physician, apparently the position to which Joshi aspired, on January 31, 1976.

In early February 1976, Joshi telephoned Hunter to find out what had been the result of her interview. Hunter told her that he was no longer the director and that she should contact Ooten. Ooten told her that there was no vacancy.

On February 26, 1976, a staff physician at the Health Center resigned, creating a vacancy. On February 27, Ooten phoned Joshi and told her there was a vacancy for which they were going to advertise in the professional journals. That same day, Ooten wrote Joshi a letter to inform her that she was being considered for the position of staff physician. From March 11, 1976, through March 20, 1976, a staff physician position was posted as vacant in accordance with state personnel rules.

On March 17, 1976, a Physician's Selection Committee established by Rond made three recommendations: First, they recommended that Hunter be placed in the category of staff physician. Second, they recommended that Joshi's application be "tabled until the results of an advertisement have produced, or failed to produce, further applications." Finally, the committee recommended that the Health Center make an effort to employ at least two more full-time physicians.

On March 19, 1976, Ooten wrote Joshi to inform her that the position for which she was being considered was to be filled by Hunter. He stated that her qualifications were impressive but that the committee had "recommended the qualifications of the person selected over those of yourself." On April 2, 1976, Joshi filed charges of discrimination with the Equal Employment Opportunity Commission.

On April 23, 1976, another staff physician resigned, creating another vacancy at the Health Center. During the spring and summer of 1976, Rond sought applications for physicians at the Health Center. Although he advertised and actively recruited certain physicians, he made no effort to contact Joshi to notify her of the need for additional physicians at the Center.

On June 11, 1976, the Physician's Screening Committee met to review the curriculum vitae of doctors who had written about employment in order to choose one for employment in the immediate future. The committee recommended that a position be offered to Dr. Charles Freeble, III, and that interviews be set up with three additional applicants. Joshi's name was not mentioned. Freeble turned down the offer on July 19, 1976.

On July 25, 1976, an advertisement announcing the association of Joshi with another doctor in the practice of family medicine appeared in the Tallahassee Democrat. Joshi, however, testified that she never withdrew her application from the University despite this association.

In September 1976, Rond hired two male physicians for the Health Center, Dr. Latey and Dr. Heller. On June 14, 1978, Joshi filed suit in federal district court seeking damages and injunctive relief for the defendant's alleged violation of ...