Miller v. Mercy Hosp., Inc.

• Decision Date: 07 December 1983
• Docket Number: No. 82-1323,82-1323
• Citation: 720 F.2d 356
• Parties: 33 Fair Empl.Prac.Cas. 206, 32 Empl. Prac. Dec. P 33,884 Lula B. MILLER, Appellee, v. MERCY HOSPITAL, INCORPORATED, d/b/a Mercy Hospital, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 356

720 F.2d 356

33 Fair Empl.Prac.Cas. 206,

32 Empl. Prac. Dec. P 33,884

Lula B. MILLER, Appellee, v. MERCY HOSPITAL, INCORPORATED, d/b/a Mercy Hospital, Appellant.

No. 82-1323.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 12, 1983.

Decided Oct. 31, 1983.

Rehearing Denied Dec. 7, 1983.

Richard F. Kane, Charlotte, N.C. (William L. Auten, Blakeney, Alexander & Machen, Charlotte, N.C., on brief), for appellant.

George Daly, Charlotte, N.C., for appellee.

Before PHILLIPS and ERVIN, Circuit Judges, HAYNSWORTH, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

This is a Title VII case in which Ms. Lula B. Miller, a black woman, sued Mercy Hospital, Inc. (Mercy), claiming discrimination on account of her race in Mercy's failure to hire her as a nurse's aide. Following a bench trial, the district court found Mercy liable as Miller had alleged and awarded Miller substantial monetary relief, costs, and attorney fees.

On Mercy's appeal, we conclude that the district court's ultimate factual determination that Mercy intentionally discriminated against Miller was, on the whole record, clearly erroneous. We therefore reverse.

I

Lula B. Miller is a black woman who for a number of years prior to this litigation had been employed in the general field of nursing in Charlotte, North Carolina, where Mercy is located. The events leading to this litigation can be traced to her employment in 1968 by Presbyterian Hospital (Presbyterian), another Charlotte hospital, as a nurse's aide (NA). In 1972, having been promoted by Presbyterian in the interim to Nurse Technician, she graduated from Central Piedmont Nursing School, and stood for licensure as a practical nurse by taking the state's examination. At this point Presbyterian--apparently in keeping with general custom among hospitals in the area--allowed Miller to perform the functions of a licensed practical nurse (LPN) pending receipt of the results of her licensing examination. Unfortunately, Miller did not pass this examination; nor did she pass it on three subsequent takings prior to this litigation. Miller's employment in this capacity by Presbyterian nevertheless continued until July of 1973 when she voluntarily resigned under circumstances discussed later in this opinion.

Within a month, according to her later testimony, Miller unsuccessfully applied to Mercy for employment in some nursing capacity. Around a year later, on August 14, 1974, Miller again applied for employment at Mercy in response to newspaper ads soliciting applications for LPNs and NAs. Miller's application was processed in a personal interview with a Ms. Dillie Winchester whose routine function this was. A typical written employment application form was used to record Miller's background and qualifications. It contained no formal entry for identifying the applicant's race, nor did Miller's completed form indicate her race by any special entry or by other manifest indicia. In a box marked "Type of Work Preferred," Miller was invited to indicate her preference, and in response she herself entered "LPN." In another box marked "Classification," Winchester then entered "N.A." reflecting, according to Winchester's later testimony, her judgment as applicant interviewer that this was the position for which Miller's application data revealed her to be qualified. According to Miller's testimony, she had indicated to Winchester that she, Miller, would be interested in a nurse's aide position as an alternative to her recorded preference for an LPN position.

Following normal procedures, Winchester then forwarded the completed application form to Ms. Casmira Marciniszyn, the Director of Nursing at Mercy, whose authority it then was to make this type of hiring decision for Mercy. Again in keeping with usual procedures, Winchester made a telephoned request of Presbyterian for a reference on Miller. The results of this reference call are a matter of critical import in this litigation. The only direct evidence on the point was provided by Winchester's testimony. According to that testimony, Winchester entered the results of her report, immediately following its receipt, upon a standard reference form. The form, dated August 14, 1974, was introduced in evidence. As completed by Winchester, the form began "Lula W. (sic) Miller has applied to us for a position as 'N.A.' ...." In a rating grid on the form Winchester indicated that Presbyterian evaluated Miller "very good" "as N.A." but "Unsatisfactory" "as PN." In a note section on the reference form, Winchester summarized her conversation with the Presbyterian referee as follows: "could not function as an LPN. Was unhappy when the hosp[ital] reported this on her 502 [North Carolina Employment Security Commission Separation Notice]--had lawyer contact hospital." According to Winchester's later testimony, not directly contradicted, her contemporaneous entries on the reference form reflected in full the substance of the reference: she was told no more about the reasons for Miller's "unhappiness" with Presbyterian than appeared on the form, nor was she told any more about the nature of the lawyer's "contact" with Presbyterian.

Marciniszyn received Miller's application in ordinary course. Within a week, under date of August 21, 1974, Marciniszyn made a "Not interested" entry upon the application and returned it to Winchester. This entry constituted Mercy's decision not to hire Miller based upon the August 14, 1974 application. The rejected application form was filed by Winchester along with the reference form reflecting the Presbyterian reference report.

At the time of her decision not to hire Miller, it was impossible for Marciniszyn to have determined Miller's race solely from entries on the form. Whether she then knew Miller's race from any other source is obviously a matter of critical import. It is disputed by the parties. Marciniszyn testified in this litigation that she did not then know Miller's race. This testimony is not contradicted by any direct evidence. No specific finding of fact on the point was made by the district court. We return to the point in later discussion of the court's findings.

Neither is it apparent from any direct evidence of record whether Marciniszyn knew of the reference from Presbyterian at the time of her decision not to hire. Both Marciniszyn and Winchester later testified that they did not recall whether it was ever brought to Marciniszyn's attention. No direct evidence contradicts this testimony, either as to the witnesses' states of recall at trial or as to the fact itself. It is only clear that the reference form was at some point filed by Winchester with the rejected application form returned to her by Marciniszyn.

Marciniszyn's reason--hence Mercy's--for rejecting Miller's application was, according to Marciniszyn's later testimony, a simple one: she considered the application to be one for employment as a LPN, Miller's stated preference; Miller's application revealed her not qualified for that position because not licensed; ¹ hence Marciniszyn, as hiring authority, was "not interested" in interviewing Miller as an applicant for employment. No direct evidence contradicts this proffered reason. Whether other evidence--indirect, circumstantial--sufficiently disproved it is the disputed, dispositive issue in the case.

Miller learned of the decision not to hire her sometime shortly after it was made. How she learned this and what she was told are not agreed between the parties. Miller's version, accepted by the trial court, was that she learned of her rejection by making telephoned inquiry of Winchester, and that Winchester told her the reason was the negative reference she received from Presbyterian. Winchester testified that she did not recall Miller's having made any inquiry of her and that in any event she could not then have given Miller any specific reason because it was a matter known only to Marciniszyn to which Winchester was not then privy.

In November of 1974, Miller, represented by private counsel, filed an EEOC charge alleging racial discrimination by Presbyterian in its forwarding of negative references to Mercy and Charlotte Memorial Hospitals and, arguably, also alleging discrimination by the latter two hospitals in acting upon the references. The charge against Presbyterian alleged that the negative references were given because of Miller's complaint to Presbyterian of racially discriminatory treatment by that hospital. Mercy received no notice of this charge at the time of its filing. In March of 1975 the EEOC's district director notified Miller that he had dismissed the charge as it might apply to Mercy, on the stated basis that the charge nowhere alleged that Mercy had any knowledge that any negative reference it received from Presbyterian was racially inspired. Mercy received no notice at that time of the dismissal of this charge. Perhaps significantly for the further course of this litigation, the district director, in an official communication explaining to Miller's counsel the basis for the dismissal, distinguished a case in which a negative employment reference had specifically identified a black charging party as "a troublemaker" who "was not averse to frivilously (sic) alleging racial discrimination." The director's letter concluded with the comment that "[w]e perceive no impediment to amending the charges to allege knowledge on the part of those respondents (Mercy and Charlotte Memorial) if your client believes that such knowledge did exist." Following a formal request by Miller's counsel for an opinion from the EEOC on the status of the charges against Mercy and Charlotte Memorial, the district director in April of 1975 advised Miller's counsel that the charges had been reopened and that "respondents" (presumably Mercy and Charlotte Memorial) would be notified. On February 6, 1976, Miller filed with the EEOC an "amended charge" alleging that Mercy had...