Sinai v. New England Tel. and Tel. Co.

• Decision Date: 05 May 1993
• Docket Number: Nos. 92-1119,92-1153,s. 92-1119
• Citation: 3 F.3d 471
• Parties: 62 Fair Empl.Prac.Cas. 1202, 62 Empl. Prac. Dec. P 42,519, 62 USLW 2183 Hertzl SINAI, Plaintiff, Appellee, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants, Appellants. Hertzl SINAI, Plaintiff-Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 471

3 F.3d 471

62 Fair Empl.Prac.Cas. 1202,

62 Empl. Prac. Dec. P 42,519, 62 USLW 2183

Hertzl SINAI, Plaintiff, Appellee, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al.,

Defendants, Appellants.

Hertzl SINAI, Plaintiff-Appellant, v. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, et al.,

Defendants, Appellees.

Nos. 92-1119, 92-1153.

United States Court of Appeals, First Circuit.

Heard May 5, 1993.

Decided Aug. 24, 1993.

Amy D. Seifer, with whom John D. Corrigan, Boston, MA, was on brief, for defendants.

Gabriel O. Dumont, Jr., Boston, MA, for plaintiff.

Before TORRUELLA, CYR and OAKES, ^* Circuit Judges.

TORRUELLA, Circuit Judge.

After failing to gain employment at NYNEX Information Resources Co. ("NIRC"), appellee brought suit for race and national origin discrimination under 42 U.S.C. Sec. 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. A jury found for the plaintiff on race discrimination, and the district judge, finding himself bound by the jury's factual findings, found for the plaintiff on national origin discrimination.

Appellant contends that the evidence was insufficient to sustain the judgments, such that the judge erred when he refused to grant a judgment notwithstanding the verdict. Appellant also contends that the district court instructed the jury incorrectly and issued two erroneous evidentiary rulings. Appellee, in response, complains that the district court refused to grant an additional award of damages under Title VII. Finding this volley of allegations unconvincing, we affirm.

We use the same standard to review the evidence in this case that the district judge used when he ruled on the motion for judgment n.o.v. Biggins v. Hazen Paper Co., 953 F.2d 1405, 1409 (1st Cir.1992). When a jury has delivered a verdict, we examine the evidence, including all facts and inferences, in the light most favorable to the verdict. Id. We overturn the verdict when the evidence leads a reasonable person to one conclusion and one conclusion only: that the losing party was entitled to win. Id. The evidence, viewed in this light, follows.

Appellee was born in Israel of parents of Jewish/Hebrew heritage. He came to the United States in 1973 after a five-year stint in the Israeli Air Force and a two-year stint in sales at a private company. In the United States he received a Bachelor of Science degree from Suffolk University and held various jobs. When his wife, a NIRC employee, told him that positions in directory advertising sales were available at NIRC, appellee submitted a resume and cover letter. This was the first step in appellee's quest to win a position at NIRC, and it occurred in the spring of 1984. NIRC informed appellee that no positions were available at the time, but that his application would be added to the waiting list for future openings.

Appellee filed a new application in the Summer of 1984 and followed up with a phone call to the hiring supervisor, Marlene Dumas. During the conversation, Ms. Dumas revealed that applicants needed a college degree and sales experience to pass the initial screening. Appellee responded that he had both, and Ms. Dumas delved further into appellee's career background. Ms. Dumas asked appellee where he came from, or where he received his sales experience. When appellee responded Israel, Ms. Dumas stated "Israel doesn't count." Ms. Dumas denies making this comment, but testified that, in any event, appellee's sales experience in Israel was too far removed in time from the application date to satisfy the requirement. She explained that sales experience garnered more than three to five years earlier is considered stale.

Appellee filed a new application in late November and again followed up with a phone call. He was told that he would be interviewed within the coming year. Indeed, appellee was called for a test and interview in March, 1985. He passed the test. During the subsequent interview, Ms. Dumas reportedly asked "Did you say you were from Israel?" and appellee detected a look of disgust on her face. A letter soon followed, informing appellee that he would not be considered further.

Undaunted, appellee reapplied in the Summer of 1985, and again in early 1986. In mid 1986, Ms. Dumas left NIRC. Appellee filed yet another application to Ms. Dumas's replacement and again followed up with a phone call. In this conversation, appellee learned that NIRC had adopted a policy forbidding the hiring of NIRC-employee spouses. As appellee's wife worked at NIRC, appellee could not be hired. Stunned, appellee pursued further information from various supervisors. He learned that the alleged "no-spouse" policy was unwritten and informal. Appellee was unsatisfied with this news, as he knew of a couple that was hired after appellee submitted his several applications.

During the relevant time period, NIRC made other pertinent hiring decisions. First, NIRC hired several adherents of the Jewish faith for directory advertising sales positions. Second, NIRC hired several individuals who did not meet the stated screening criteria; these individuals either did not have a college degree or did not possess sufficient sales experience.

The above culminated in appellee bringing a two-pronged discrimination suit. He claimed that he suffered discrimination on the basis of his Jewish/Hebrew race and on the basis of his national origin, Israel. The race claim arose under Sec. 1981, which guarantees that "all persons" in the United States will have the same rights as "white citizens" "to make and enforce contracts." The national origin claim arose under Title VII, which makes the refusal to hire an applicant because of his "race, color, religion, sex, or national origin" unlawful. As plaintiffs are entitled to a jury trial in Sec. 1981 cases, but not in Title VII cases, the district judge conducted a jury trial on race discrimination before he himself decided the national origin discrimination claim.

Appellant argues that evidence of race and national origin discrimination are not inextricably intertwined in this case, and that appellee failed to adduce any evidence to support a finding of discrimination on the basis of his Jewish/Hebrew race, as opposed to his Israeli national origin. Appellant thus concludes that a rational jury could not have found race discrimination.

While we agree with the district court that the evidence of race discrimination was thin in this case, we also agree with the district court that the jury was entitled to reach the result it did. Appellee made out a prima facie case of discrimination as it was described in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, he established that he was Jewish/Hebrew, defined as a protected race by the Supreme Court in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), and Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987). Second, he applied for a job for which he was qualified. ¹ Finally, appellee was rejected, but the position remained available to other candidates with similar credentials and even some others with apparently fewer credentials.

In addition to establishing the prima facie case of discrimination, appellee testified that Ms. Dumas twice disparaged appellee's Israeli background. Although appellant claims that these events do not establish race discrimination, the jury could find that Israel is one of those countries in which the populace is composed primarily of a particular race. As Justice Brennan stated of race and national origin discrimination, often "the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group." Saint Francis College, 481 U.S. at 614, 107 S.Ct. at 2028 (Brennan, J., concurring). That Israel is a Jewish state, albeit not composed exclusively of Jews, is well established. Furthermore, it is undisputed that appellee is of Hebrew/Jewish descent, the stock primarily associated with Israel. The jury thus could have determined that NIRC, through Ms. Dumas, discriminated against appellee on the basis of his Hebrew/Jewish race by disparaging Israel.

The jury also could have chosen to disregard NIRC's evidence. NIRC attempts to defuse the allegation of discrimination by pointing out that several adherents of the Jewish faith were hired for directory advertising positions. The jury could have determined, however, that the other Jewish hires did not rebut appellee's contention of race discrimination. The relevant issue in a discrimination claim is whether the defendant discriminates against the plaintiff on an improper basis. The fact that the defendant hired other members of the protected class is evidence that the jury can consider in reaching the ultimate issue, but is not dispositive in itself. The jury must weigh all of the evidence. In this case, the jury could conclude that appellant discriminated against appellee on the basis of race in spite of the other Jewish hires.

The fact that NIRC advanced different reasons for refusing to hire appellant at different times could have led the jury simply to disbelieve NIRC. NIRC first alleged that no jobs were available and that appellee's resume was unclear. NIRC then alleged that appellee was not as qualified as other candidates. Finally NIRC announced that it had adopted a "no-spouse" policy barring appellee's employment. This policy was unwritten and, according to Ms. Dumas, not communicated to her until May 1986, even though it was adopted in late 1984 or early 1985. The jury easily could have determined that these reasons were unsatisfactory, not true, or a pretext to cover up...