Stones v. Los Angeles Community College Dist.

• Decision Date: 01 August 1986
• Docket Number: No. 83-6329,83-6329
• Citation: 796 F.2d 270
• Parties: 41 Fair Empl.Prac.Cas. 710, 41 Empl. Prac. Dec. P 36,563, 33 Ed. Law Rep. 1046 Phyllis S. STONES, Plaintiff-Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Leslie Koltai, and Mary E. Lee, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 270

796 F.2d 270

41 Fair Empl.Prac.Cas. 710,

41 Empl. Prac. Dec. P 36,563, 33 Ed. Law Rep. 1046

Phyllis S. STONES, Plaintiff-Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Leslie Koltai, and Mary E. Lee, Defendants-Appellees.

No. 83-6329.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 5, 1985.

Decided Aug. 1, 1986.

Bruce M. Stark, Long Beach, Cal., for plaintiff-appellant.

Mary L. Dowell, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, ANDERSON, and NORRIS, Circuit Judges

NORRIS, Circuit Judge:

Dr. Phyllis Stones, a highly credentialed and accomplished black woman educator, ¹ has made her career in the Los Angeles Community College District ("District") since 1962. After a brief appointment as an acting dean in charge of resource development at East Los Angeles College--abbreviated by the district-wide abolition of that position in 1978 due to funding cutbacks--Dr. Stones was transferred to Los Angeles Valley College, where she has served as an assistant dean of instruction ever since. Four times between 1978 and 1982, Dr. Stones was passed over for promotion to be a full dean of instruction although her application was on file in the District's "Deans' pool" and she believed herself objectively better qualified than the candidates who were chosen as deans.

In this civil rights action filed against the District, its chancellor, and the president of Valley College, Dr. Stones claims that the District's failure to promote her violated her right to contract under 42 U.S.C. Sec. 1981 and her right to civil employment free of racial discrimination under 42 U.S.C. Sec. 1983. To support her right to relief, she makes the following factual claims: (1) the District's ostensibly open, systematic and colorblind promotion policy is a sham used to validate the invidious hiring preferences of college presidents; (2) the Chancellor conveyed to her informal guarantees of promotion that he failed to honor; and (3) particularly with respect to high-level administrative positions at the predominantly white San Fernando Valley campuses, the District has neglected to fulfill the detailed affirmative action requirements incumbent on it as a recipient of federal funds. Dr. Stones seeks to enjoin the defendants from interfering with her right to be promoted; she also seeks backpay to compensate her for her salary losses due to racial discrimination and one million dollars in punitive damages.

Judgment was entered for defendants following a four-day bench trial. See Stones v. Los Angeles Community College District, 572 F.Supp. 1072 (C.D.Cal.1983). Dr. Stones raises two issues on appeal: (1) whether the district court's finding that she was not the victim of intentional racial discrimination should be set aside as clearly erroneous; and (2) whether the Eleventh Amendment bars her suit against the District.

I

The district court concluded that Dr. Stones's suit for backpay against the District was barred by the Eleventh Amendment because state law treats the District as an arm of the state, see Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977), and a money judgment levied against the District would be paid out of state-appropriated funds. 572 F.Supp. at 1078; see Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); see also Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1349 (9th Cir.1981). If the District is properly characterized as an arm of the state, Dr. Stones's suit to enjoin it would also be barred. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) (Eleventh Amendment proscribes suit against state agencies "regardless of the nature of the relief sought"). However, we need not reach the Eleventh Amendment question on this record, because even were we to find that the District is shielded from suit by the state's sovereign immunity, Dr. Stones could still recover from the individual defendants in their individual capacity as well as obtain prospective injunctive relief. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, regardless of the District's Eleventh Amendment status, we have jurisdiction to reach the merits of plaintiff's appeal. As we explain in Part II, her appeal fails on the merits. Accordingly, on this record, we need not decide the theoretical--and, we note, quite difficult--question whether judgment against the District would violate the Eleventh Amendment. ²

II

A

42 U.S.C. Sec. 1981 secures to all persons "the same right ... to make and enforce contracts ... as is enjoyed by white citizens." Noting its origins in Reconstruction Era legislation, the Supreme Court has limited section 1981 to claims of racial discrimination. Runyon v. McCrary, 427 U.S. 160, 168-72, 96 S.Ct. 2586, 2593-95, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Further, to recover, a plaintiff must prove that the defendant acted against him with discriminatory intent. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) ("Sec. 1981, like the Equal Protection Clause, can be violated only by purposeful discrimination"); see also Craig v. County of Los Angeles, 626 F.2d 659, 668 (9th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981). The district court's finding with respect to the "elusive factual question," Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981), of intentional racial discrimination is a finding of fact, subject to appellate review under the clearly erroneous standard of Fed.R.Civ.P. 52(a). Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789, 72 L.Ed2d 66 (1982) ("issues of intent [are] factual matters for the trier of fact"). Under this deferential standard, we may not reverse the district court's findings of fact unless upon reviewing the evidence we are "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), quoted in Anderson v. Bessemer City, 105 S.Ct. at 1511; see also Casillas v. United States Navy, 735 F.2d 338, 343 (9th Cir.1984) ("we will not ransack the record, searching for mistakes").

B

Since 1978, when she was relocated to Valley College and sustained a reduction in position and pay, Dr. Stones has kept an updated application on file in the "Deans' pool". According to the district court's findings, the Deans' pool is a color-blind list of about 180 applicants, each of whom is deemed qualified to assume a dean position and is considered--without further expressions of interest--whenever openings arise. 572 F.Supp. at 1075. The district court set out in conscientious detail the procedure apparently used to fill openings from this list. Id. First, the college president designates a search committee consisting of several faculty members, incumbent deans, perhaps a student and the president himself. This committee examines all interested applications in the Deans' pool, looking both at the applicant's resume and at confidential "tracers" elicited from the applicant's supervisors that predict, based on past job performance, whether the applicant is temperamentally and professionally suited to be dean. On this basis, the search committee interviews the five to ten candidates it considers best qualified and afterwards recommends two names to the Chancellor. The Chancellor then forwards his choice from among these two names for final approval by the Board of Trustees.

From 1978 through 1982, the period relevant to this lawsuit, four dean of instruction positions were filled at community colleges in the District. Dr. Stones was neither called to interview nor ultimately hired for any of these openings. The successful applicants, in chronological order, were as follows: (1) in 1979, Noel Korn, a white male, was chosen to be dean of instruction at East Los Angeles College; (2) in 1980, Raul Cardozo, a Latino male, was chosen to be dean of instruction at Los Angeles Mission College; (3) in 1982, Jean Loucks, a white female, was chosen to be dean of instruction at Pierce College; (4) in 1982, Dr. Edwin Young, a white male, was chosen to be dean of instruction at Valley College. The district court found that although plaintiff's objective credentials were competitive with those of the successful applicants, she rated consistently below them in her confidential references, an "[e]qually (if not more important)" element of the hiring decision. 572 F.Supp. at 1081. In particular, the court found that many of her "tracers" characterized Dr. Stones as condescending to subordinates, rigid, generally in need of improving her communicative and diplomatic skills. Id. at 1082. In contrast, by far the greater number of "tracers" solicited on the actual dean designees gave them outstanding ratings, and the comments reflected uniform confidence that they were personally qualified to be deans. Id. at 1082-83.

Plaintiff offered only circumstantial evidence in support of her claim that the District's rejection of her for promotion was based upon the impermissible criterion of race. For instance, she testified at trial that for some six months after her transfer to Valley College, she was quartered in inconvenient temporary space in the college cafeteria and moved to the central administrative...