U.S. v. Gregory

• Decision Date: 20 July 1989
• Docket Number: No. 88-2839,88-2839
• Citation: 871 F.2d 1239
• Parties: 50 Fair Empl.Prac.Cas. 1568, 49 Empl. Prac. Dec. P 38,902, 27 Fed. R. Evid. Serv. 1297 UNITED STATES of America, Plaintiff-Appellant, v. Jay GREGORY, Sheriff of Patrick County, a Constitutional Officer of the Commonwealth of Virginia and elected under the laws of the Commonwealth, Defendant-Appellee, and Jesse Williams, Sheriff of Patrick County, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1239

871 F.2d 1239

50 Fair Empl.Prac.Cas. 1568,

49 Empl. Prac. Dec. P 38,902,

27 Fed. R. Evid. Serv. 1297

UNITED STATES of America, Plaintiff-Appellant, v. Jay GREGORY, Sheriff of Patrick County, a Constitutional Officer of the Commonwealth of Virginia and elected under the laws of the Commonwealth, Defendant-Appellee and Jesse Williams, Sheriff of Patrick County, Defendant.

No. 88-2839.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1988.

Decided April 14, 1989.

Rehearing and Rehearing In Banc Denied July 20, 1989.

Irving Gornstein (William Bradford Reynolds, Asst. Atty. Gen., Jessica Dunsay Silver, U.S. Dept. of Justice, on brief), for plaintiff-appellant.

Anthony Paul Giorno, County Atty., for defendant-appellee.

Before HALL and MURNAGHAN, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

MURNAGHAN, Circuit Judge:

In June 1983, the United States filed suit against Jesse W. Williams, the Sheriff of Patrick County, Virginia, complaining that he had followed and continues to follow a practice of refusing to consider women for deputy sheriff positions in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ¹ The Government sought prospective relief to prevent further discrimination through the active recruitment of women to deputy sheriff positions. It also sought back pay and jobs for those denied employment on the basis of their sex.

In November 1983, Sheriff Williams suffered defeat in a reelection bid and was replaced by Jay Gregory, who was then substituted as the defendant.

After a full trial without a jury, the Honorable Jackson L. Kiser dismissed the complaint, ruling that deputy sheriff positions in Patrick County are not covered under Title VII because they fall within the "personal staff" exemption. ² United States v. Gregory, 582 F.Supp. 1319 (W.D.Va.1984). We vacated the decision and remanded in light of Curl v. Reavis, 740 F.2d 1323 (4th Cir.1984). ³ On remand, Judge Kiser held that the positions of road deputy, investigator and shift supervisor fell within the "personal staff" exemption, as he had originally concluded. He also held that with respect to the fourth deputy position, that of a corrections officer, maleness was a BFOQ. ⁴

On appeal, the Fourth Circuit once again reversed, holding that the "personal exemption" did not apply and that the defendant had failed to prove that a female corrections officer could not be accommodated by reasonably rearranging job responsibilities within the jail. United States v. Gregory, 818 F.2d 1114 (4th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 143, 98 L.Ed.2d 99 (1987). We remanded the case to the district court for consideration of the merits.

Upon remand, Judge Kiser evaluated the sufficiency of the evidence presented by the Government and held that the Government had failed to carry its burden of showing that the Sheriff exercised a discriminatory practice of refusing to hire women who but for their gender would have been hired in deputy positions. More specifically, Judge Kiser discredited the statistical evidence presented by the Government and characterized the women witnesses' testimony as merely anecdotal and insufficient. Although Judge Kiser appeared to credit the Sheriff with making certain admissions regarding his practice of never hiring a woman for deputy positions, Judge Kiser characterized the Sheriff's statement on one occasion as a joke and ignored its significance at other times. Because the district court applied an incorrect legal standard in assessing the statistical evidence presented by the Government and because it did not accord proper weight to the Sheriff's admissions and the testimony of the complainants, reversal is warranted.

The case presents three issues:

A. Whether the district court erred in refusing to consider the admissions which the Sheriff made concerning his policy of refusing to hire women for deputy positions in violation of Title VII.

B. Whether the district court erred in refusing to consider the Government's statistical evidence offered to support its burden of showing that the Sheriff had a practice or policy of refusing to consider and hire women for deputy positions in violation of Title VII.

C. Whether the government would be entitled to prospective relief to prevent further discrimination and make-whole relief for Doris Scales and Kathy Sheppard.

I.

The Government's theory of discrimination was simply that the Sheriff, in violation of Title VII, ⁵ regularly and purposely treated women less favorably than men when making hiring decisions for deputy vacancies. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 1854, 52 L.Ed.2d (1977). The alleged disparate treatment resulted from the Sheriff's acceptance of the proposition that women were incapable of performing the duties of deputies. ⁶ The Government further alleges that the Sheriff refused seriously to consider any female applicants for deputy positions, and that the applicants were otherwise superbly qualified and scored significantly higher on the written examination than the male applicants who were ultimately hired. ⁷

It is usually a rare case where the district court, under the clearly erroneous standard of review, is reversed. See Beatty v. Chesapeake Center, Inc., 835 F.2d 71 (4th Cir.1987) (en banc ). That is so because the district court's factual findings must be affirmed if there is evidence to support them and cannot be reversed unless the reviewing court is left with a definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). After a review of the entire evidence, we are convinced that such mistakes were made here.

As plaintiff with the burden of proving a prima facie case of discrimination, Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), the Government offered three types of evidence: (1) the Sheriff's admissions that he had a policy not to hire women for deputy positions; (2) statistical evidence; and (3) the testimony of the complainants. We separately consider the issues raised on appeal.

II.

A. The Sheriff's Admissions

The Government presented testimony indicating that at least on four separate occasions the Sheriff had admitted that he had a policy of discriminating against women when considering them for deputy positions. First, Wanda Hylton, though Sheriff Williams denied ever making the statement, asked Sheriff Williams if he would consider hiring a woman as a deputy. According to her testimony, the Sheriff "chuckled and said, no, that he didn't hire women deputies; he didn't think they could handle the job; they couldn't handle the men."

Hylton did not actually apply for a deputy position, but was hired as a dispatcher. The district court thought it was particularly noteworthy that she did not hear Sheriff Williams make any other negative statement about women during her 7-month tenure at the Sheriff's Department and that she failed to apply for any other position while there. However, Hylton did testify, and Sheriff Williams confirmed, that the two of them did not get along. She also testified that after her initial discussion with Sheriff Williams, she considered it futile to apply for a deputy position. The Supreme Court has recognized that when an employer's discriminatory policy is known, subjecting oneself to the humiliation of explicit and certain rejection is not required to make out a case of discrimination. Teamsters, 431 U.S. 324, 365, 97 S.Ct. 1843, 1869, 52 L.Ed.2d 396 (1977). ⁸

The district court further discounted Hylton's testimony by characterizing Sheriff Williams' statement as a joke. Here the district judge clearly erred. There was no evidence to support such a finding. The characterization established that the statement had been made. Sheriff Williams did not testify that he was joking when the statement was made; he only denied making the statement. The district court deduced its finding from the testimony of Hylton, who said that the Sheriff chuckled when he admitted to his policy of not hiring female deputies. Yet, contradictorily, it was assumed that Sheriff Williams was being "serious" when he next told Hylton that if she were truly interested in law enforcement, she should apply with the state police. The real point is that the district court erratically refused to recognize the Sheriff's bold admission of discrimination because the Sheriff was good-humored when he made it.

The second admission was made to Doris Scales at several different times during her application, interview and followup discussions with Sheriff Williams. Scales testified that Sheriff Williams stated that he did not "have any plans now, or in the near future, to hire any women for deputies" because he did not "feel like they're capable of handling the job as a deputy." In effect, the district court simply ignored testimony to that effect, because it failed to make any finding concerning these admissions. In that it was in error.

The third admission was made by Sheriff Williams while he testified. He admitted on the stand to having a policy of refusing to hire women as corrections officers. He claimed that his policy was justified because of his concern for the inmates' privacy. However, the evidence also showed that the jail used video cameras to supervise and observe the inmates in their cells and that the cameras were viewed by the dispatchers, many of whom were women. Furthermore, we had in a prior opinion in this oft recurring case found that Sheriff Williams' concern about inmate privacy was not a justification for his discriminatory policy against women with respect to the corrections officer positions. United States v. Gregory, 818 F.2d at 1117-18.

Finally, Mr. Giorno, the county attorney who...