Ramos v. Roche Products, Inc.

• Decision Date: 08 May 1991
• Docket Number: No. 90-2107,90-2107
• Citation: 936 F.2d 43
• Parties: 56 Fair Empl.Prac.Cas. 296, 56 Empl. Prac. Dec. P 40,851, 20 Fed.R.Serv.3d 365 Nixa RAMOS, et al., Plaintiffs, Appellants, v. ROCHE PRODUCTS, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 43

936 F.2d 43

56 Fair Empl.Prac.Cas. 296,

56 Empl. Prac. Dec. P 40,851, 20 Fed.R.Serv.3d 365

Nixa RAMOS, et al., Plaintiffs, Appellants, v. ROCHE PRODUCTS, INC., Defendant, Appellee.

No. 90-2107.

United States Court of Appeals First Circuit.

Heard May 8, 1991.

Decided June 21, 1991.

A. Santiago-Villalonga with whom Nachman & Fernandez-Sein were on brief, Santurce, P.R., for plaintiffs, appellants.

David A. Copus with whom Donald B. Ayer, James E. Anklam, Jones, Day Reavis & Pogue, Washington, D.C., Luis F. Antonetti and Goldman, Antonetti, Ferraiouli & Axtmayer were on brief, Santurce, P.R., for defendant, appellee.

Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOWNES, Senior Circuit Judge.

This is an appeal from a consolidated action in which plaintiffs-appellants Julie Rossy and Nixa Ramos have respectively alleged sexual discrimination and retaliation in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e to 2000e-17. ¹

In August of 1988 the district court, after dismissing plaintiffs' claims of racial animus brought under 42 U.S.C. Sec. 1981 and striking their request for a jury trial, dismissed their state law claims as time-barred and Ramos' sex discrimination claim for failure to exhaust administrative remedies. The court also granted defendant Roche Products' ("Roche's") summary judgment motion as to Rossy's sex discrimination claim but denied Roche's motion regarding Ramos' retaliation claim. Ramos v. Roche Products, Inc., 694 F.Supp. 1018 (D.P.R.1988) (Ramos I), vacated sub nom. Rossy v. Roche Products, Inc., 880 F.2d 621 (1st Cir.1989). On appeal by Rossy, we vacated the grant of summary judgment on her sex discrimination claim and remanded her case for trial. Rossy,

supra. ² From October 1-4, 1990, the district court held a bench trial on Rossy's claim of sex discrimination and Ramos' claim of retaliation. The court then entered judgment against both Rossy and Ramos. Ramos v. Roche Products, Inc., No. 87-1442 (D.P.R. October 5, 1990) (Ramos II). This appeal ensued. We now affirm the conclusions of the district court.

I. BACKGROUND

Although Rossy and Ramos have made different charges under Title VII, many of the facts are equally applicable to both of their cases. Both women were hired by Roche in 1976, the year Roche began its Puerto Rican operations. Roche manufactures prescription drugs including Valium and Dalmane. Ruben Freyre, who was later promoted to the position to which Rossy aspired, was also hired in that year. Rossy became one of four managers in the quality control department; these managers report to the director of the department, the position for which Rossy and Freyre were later to compete. ³ Ramos consecutively held four supervisor-level positions in the quality assurance section. Supervisors report to managers; often Ramos worked with and under Rossy.

In 1981 Roche reorganized the quality control department and named Freyre to the newly created position of quality assurance manager, shifting this responsibility from Rossy and, in turn, appointing her manager of administrative services. In January 1983 Roche promoted Freyre to director of quality control. Roche claimed that Freyre's college degree in chemistry, his work on the Valium and Dalmane projects, his attaining a Certificate of Quality Engineer ("CQE"), his incipient graduate work in industrial pharmacy and his "exceptional" job evaluations effectively trumped Rossy's college degree in biology, her advanced degrees in educational administration and law, her varied work experience and her consistently "excellent" job evaluations. When Freyre left Roche in 1988, another man, Adalberto Ramirez, was chosen director of quality control.

Further, Roche bypassed Ramos to give Freyre's vacant position as manager of quality assurance to Victor Berberena and Freyre's former position as manager of quality control laboratories to Matti Munoz, in March of 1983.

Immediately after Freyre was promoted over Rossy in January 1983, Rossy filed a sex discrimination suit against Roche in superior court in Puerto Rico and named Ramos as one of three witnesses to the alleged discrimination against her. Although Ramos did not submit a signed affidavit to the Equal Employment Opportunities Commission ("EEOC") until September 30, 1983, she claimed that her support of Rossy caused Roche to retaliate, denying her the aforementioned managerial positions in March and reducing her job evaluation from "excellent" to "very good" in June of 1983. While Roche did not lower Ramos' salary, it allegedly assigned her to successively inferior positions, some unrelated to her training as a pharmacist. ⁴ Finally, after several probationary terms with unsatisfactory evaluations, Ramos was fired on July 17, 1989.

Rossy and Ramos brought separate suits against Roche in 1987. ⁵ Initially they rested their claims on Title VII of the 1964 Civil Rights Act, as well as 42 U.S.C. Sec. 1981 and Puerto Rico Law 100, 29 L.P.R.A. Sec. 146. As previously noted, the cases were consolidated and the latter two claims ultimately dismissed.

II. CLEAR ERROR STANDARD

In a Title VII case we review the district court's findings of fact under a "clearly erroneous" standard. Fed.R.Civ.P. 52(a) provides in pertinent part:

In all actions tried upon the facts without a jury ... the court shall find the facts specially and state separately its conclusions of law thereon.... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

The Supreme Court has held that "a finding of intentional discrimination is a finding of fact." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). "Treating issues of intent as factual matters for the trier of fact is commonplace." Hence, "discriminatory intent is a finding of fact to be made by the trial court; it is not a question of law and not a mixed question of law and fact...." Pullman Standard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273, 288-89, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982). See also Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 781 (1st Cir.1990); Athas v. United States, 904 F.2d 79, 80 (1st Cir.1990); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir.1990) (acknowledging the superior "bird's-eye view" of the district court in Title VII fact-finding); Anderson v. Beatrice Foods Co., 900 F.2d 388, 392 (1st Cir.) (disavowing "Monday-morning quarterbacking" of factual issues by appellate court), cert. denied, --- U.S. ----, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990).

This high standard does not permit a finding of clear error unless "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). And if there are "two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. at 574, 105 S.Ct. at 1511. See also Jackson v. Harvard University, 900 F.2d 464, 466 (1st Cir.) (quoting Anderson, supra ), cert. denied, --- U.S. ----, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990).

III. REVIEW OF FACTS

A. Rossy's Sex Discrimination Charge

There is no question that Rossy established a prima facie case for discrimination under Title VII according to the now-familiar McDonnell Douglas tripartite schema. Allegations of discriminatory promotion and firing, as well as retaliatory actions, have all been found compatible with the McDonnell Douglas rubric. Oliver v. Digital Equipment Corp., 846 F.2d 103, 107 (1st Cir.1988). See also Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 (1st Cir.1987) (Title VII covers denial of raises, unlawful discharge and retaliation for filing charges with EEOC.). See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). As the Supreme Court has instructed, this allocation of evidentiary burdens was "never intended to be rigid" but is "merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), quoted in White v. Vathally, 732 F.2d 1037, 1040 (1st Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984).

Rossy demonstrated by a preponderance of the evidence that she was in a protected class, that she applied for an advertised job, that she was rejected, and that someone with her essential qualifications was hired. Accord Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 70 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984); Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979).

In the second prong of McDonnell Douglas, "the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' " Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). We have further held that when a plaintiff has proved by direct evidence, not inference, that "unlawful discrimination was a motivating factor in an employment decision," there is a greater burden on the employer. The latter must then "prove by a preponderance of the evidence that the same decision would have been made absent the discrimination." Fields v. Clark University, 817 F.2d 931, 937 (1st Cir.1987). Otherwise, the employer must merely articulate a plausible, nondiscriminatory reason for rejecting the plaintiff. Board of Trustees of Keene State College v. Sweeney, 439...