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Case 42:  Court Ruling in Dr. Stanley Dea vs. Washington Suburban Sanitary Commission

Racial Preferences = Racial Discrimination
WSSC guilty of retaliation In this decision, the Fourth Circuit found that District Judge Deborah Chasanow was in error regarding a number of her determinations.  The Court found that "the record allows no other conclusion" than that the WSSC retaliated against Dea.

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U.S. Court of Appeals Ruling
in Dea v. WSSC

June 15, 2001

To facilitate legal research and citations, we have attempted to preserve the pagination and line breaks as they appear in the original opinion.  Any errors in this regard are ours.   Footnotes have been moved to the end of the document to facilitate readability.   --Editor


UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

STEPHANIE W. DEA and ROGER M. H.
CHAN, as personal representatives of
the Estate of Stanley J. Dea,

Plaintiffs-Appellants,

No. 97-1572

v.

WASHINGTON SUBURBAN SANITARY
COMMISSION,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(CA-93-3677-DKC)

Argued: October 29, 1998

Decided: June 15, 2001

Before WIDENER and MURNAGHAN,* Circuit Judges,

and Samuel G. WILSON, Chief United States District Judge

for the Western District of Virginia, sitting by designation.


Reversed and remanded by unpublished opinion. Judge Widener

wrote the opinion, in which Judge Wilson joined.


*Judge Murnaghan heard oral argument in this case but died prior to

the time the decision was filed. The decision is filed by a quorum of the

panel. 28 U.S.C. 46(d).

COUNSEL

ARGUED: Douglas C. Herbert, Jr., LAW OFFICE OF DOUGLAS

C. HERBERT, Washington, D.C., for Appellants. Bruce Stephen Har-

rison, SHAWE & ROSENTHAL, Baltimore, Maryland, for Appellee.

ON BRIEF: Mary Chlopecki, LAW OFFICE OF DOUGLAS C.

HERBERT, Washington, D.C.; Clint D. Bolick, Richard D. Komer,

INSTITUTE FOR JUSTICE, Washington, D.C., for Appellants. Eliz-

abeth Torphy-Donzella, SHAWE & ROSENTHAL, Baltimore, Mary-

land; Nathan J. Greenbaum, General Counsel, Robert H. Drummer,

Associate Counsel, WASHINGTON SUBURBAN SANITARY

COMMISSION, Laurel, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).


Page 2

OPINION

WIDENER, Circuit Judge:

Stanley J. Dea brought suit against his employer, the Washington

Suburban Sanitary Commission, under the Opposition Clause of Title

VII, 704(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-3(a),

alleging retaliation based on his refusal to comply with affirmative

action policies that Dea believed to be unlawful. (1)  The court entered

judgment in favor of the Commission, and Dea appeals. Dea argues

that the district court relied on clearly erroneous factual findings in

entering judgment against him. We agree that the district court erred


Page 3

regarding those factual determinations and that, in light of those

errors, Dea is entitled to judgment in his favor. Accordingly, we

reverse and remand this case to the district court to ascertain appropri-

ate damages.

 

I.

The Commission oversees the water and sewer systems for Prince

George's and Montgomery Counties in Maryland. With a population

to serve of about 1 million, the Commission's service is big business.

Dea, a registered professional engineer holding a Ph.D in environ-

mental engineering, joined the Commission as the Director of the

Bureau of Planning and Design within the Department of Engineering

in 1977. His responsibilities included planning and designing water

and waste water treatment facilities as well as overseeing some 250

employees. Dea held that position until his transfer on April 2, 1990,

to Director of the Office of Engineering Programs. It is this transfer

which gave rise to this litigation. At all relevant times, Dea's direct

supervisor was Stephen Profilet, and the Commission's General Man-

ager was Richard Hocevar. The record does not disclose any other

employee superior in rank to Dea.

 

In September 1989, Mike Ruddo, the Project Development Divi-

sion Head who reported directly to Dea, retired, leaving Dea with the

responsibility of making a recommendation to Profilet regarding the

vacancy. Out of seven applicants for the Division Head position, only

one, a woman named Diane Lucci, was not a white male. This pre-

sented a problem in light of the Commission's affirmative action pol-

icy, which effectively defined minority as all employees except white

males.

 

Dea interviewed all seven candidates and ranked them based on a

variety of criteria. He ranked Miss Lucci fourth of the seven candi-

dates. Dea then reinterviewed the top three candidates and chose one,

Dave Coe, to recommend for the Division Head position. Difficulty

arose, however, when Profilet learned that Miss Lucci was not on his

short list for second interviews. The Commission believed that this

decision did not comport with its affirmative action policy, which was

to promote a qualified minority candidate if one was available even

though that candidate was not the best qualified for the job.


Page 4

Aware that Dea and Hocevar had disagreed over the application of

this policy in the past, Profilet met with Richard Haddad, Director of

the Commission's Offices of Management and Budget, to discuss the

situation. Haddad recommended that Dea be transferred to a new

position which would not involve any responsibility regarding person-

nel decisions. Profilet proposed this solution to Hocevar, and Dea was

transferred in April 1990 to a newly created position, Director of

Engineering Programs. Profilet then recommended the promotion of

Miss Lucci to the Division Head position.

 

Dea alleges that the district court committed clear error in deter-

mining 1) that he lacked both a good faith belief and a reasonable

basis for a good faith belief that the Commissions's affirmative action

policies were unlawful under Title VII; 2) that his means of opposing

those policies was unreasonable; and 3) that Profilet's uncontradicted

testimony regarding his own motive for transferring Dea was not

credible. The correction of those errors, Dea argues, compels the

determination that the Commission disciplined him for refusing to

violate Title VII and entitles him to judgment as a matter of law pur-

suant to Title VII's Opposition Clause.(2)


Page 5

II.

The Opposition Clause of Title VII makes it "an unlawful employ-

ment practice for an employer to discriminate against any of its

employees . . . because he has opposed any practice made an unlawful

employment practice by this subchapter . . . ." 42 U.S.C. 2000e-

3(a). The series of proofs and burdens outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973), apply to retaliation claims

under 704(a). See Karpel v. Inova Health Sys. Servs., 134 F.3d

1222, 1228 (4th Cir. 1998). To establish a prima facie claim of retali-

ation under Title VII, a plaintiff must establish (1) that he engaged in

protected activity, (2) that he was subject to an adverse employment

action, and (3) that there was a causal link between the two. Beall v.

Abbot Labs., 130 F.3d 614, 619 (4th Cir. 1997). The burden then

shifts to the employer to articulate a legitimate non-retaliatory reason

for the adverse action. Beall, 130 F.3d at 619. If the employer does

so, the plaintiff must then demonstrate that the employer's reason was

pretext for retaliation by proving both that the reason was false, and

that retaliation was the real reason for the challenged conduct. Beall,

130 F.3d at 619. However, under appropriate circumstances, "a plain-

tiff's prima facie case, combined with sufficient evidence to find that

the employer's asserted justification is false, may permit the trier of

fact to conclude that the employer unlawfully discriminated." Equal

Employment Opportunity Comm'n v. Sears Roebuck and Co., 243

F.3d 846, 852 (4th Cir. 2001) (quoting Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000)).

 

In order to make such a case, Dea first must demonstrate that his

failure to recommend Miss Lucci was protected opposition activity,

second that his transfer constituted an adverse employment action,

and finally that his failure to recommend Miss Lucci was causally


Page 6

connected to his transfer. Then, Dea must overcome the Commis-

sion's present assertion that he was transferred because of his inaction

with respect to the job vacancy by showing that this proffered reason

is pretextual and that he was in fact transferred because of his unwill-

ingness to comply with an affirmative action policy that he believed

violated Title VII.

 

A.

We first consider whether Dea's refusal to recommend Miss Lucci

for the Division Head position was opposition activity protected by

Title VII. The scope of the opposition clause hinges both on the

employment practice opposed by an employee's opposition conduct

and on the nature of that conduct.

 

Dea must establish that he opposed an employment practice "made

. . . unlawful" by Title VII. 42 U.S.C. 2000e-3(a). A Title VII plain-

tiff bringing a claim for retaliation need not establish that the employ-

ment practice he opposed in fact violated Title VII. See Ross v.

Communications Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir.

1985). At a minimum, however, a plaintiff bringing a claim for retali-

ation must have held a reasonable, good faith belief that the employ-

ment practice he opposed was violative of Title VII. See Biggie v.

Albertsons, 894 F.2d 1497, 1503 (11th Cir. 1990) (finding that plain-

tiff must "prove that he opposed an unlawful employment practice

which he reasonably believed was occurring"). This belief must be

objectively reasonable in light of the facts and record presented. See

Little v. United Techs., 103 F.3d 956 (11th Cir. 1997) (ruling that

employee's opposition to remark by coworker was not protected

where, because the remark could not be attributed to the employer,

there was no objectively reasonable belief that it violated Title VII).

Dea testified that he "believed it was illegal and discriminatory" to

recommend Miss Lucci solely on the basis of her gender when he did

not believe her to be the most qualified candidate. In its abbreviated

analysis of this issue, the district court indicated only that Dea "is

opposed to all affirmative action and did not have, and had no basis

for, a good faith belief that whatever policies were in effect were ille-

gal" and concluded that Dea's testimony to the contrary was "not

credible." "A finding is `clearly erroneous' when, although there is

evidence to support it, the reviewing court on the entire evidence is


Page 7

left with the definite and firm conviction that a mistake has been com-

mitted." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quot-

ing United States v. United States Gypsum Co. , 333 U.S. 364, 395

(1948)).  We have reviewed the record and, in light of the extensive

evidence corroborating Dea's testimony as to his good faith belief and

supporting the reasonableness of that belief, we are left with the defi-

nite and firm conviction that a mistake has been committed and find

the ruling of the district court to be clearly erroneous.(3)

 

The District court concluded that Dea was "opposed to all affirma-

tive action" but did not have a good faith belief that the Commission's

policies as applied to his recommendation for the Division Head posi-

tion violated Title VII. Although Dea opposes affirmative action, he

testified that he did not believe the Commission's affirmative action

policies were illegal until May of 1989. Prior to May of 1989, Dea

complied with the affirmative action policy because, although he

objected to it, he did not understand it to be illegal. In fact, as a

department manager, he signed off on new drafts of the Commis-

sion's affirmative action policies, indicating approval of them. Dea

also testified that, on at least one prior occasion, he promoted a lesser

qualified minority employee over other applicants at the direction of

his superiors because he had no reason to believe at that time that the

Commission's policies were illegal. The Commission offered no evi-

dence contradicting this testimony even though General Manager

Hocevar, Profilet, and Haddad, the Commission's current Director of

Human Resources, each testified at trial.

 

Dea testified that he came to believe that the Commission's affir-

mative action policies were illegal on May 24, 1989, prior to the

vacancy in the Division Head position at issue in this case, when a

meeting was held at the Commission to discuss the impact of the

Supreme Court's decision in City of Richmond v. Croson, 488 U.S.


Page 8

469 (1989), on the Commission's affirmative action policies.(4)  The

meeting was attended, among others in attendance, by the commis-

sioners and officers of the Commission, the Commissions's in-house

counsel, General Manager Hocevar, Dea, and outside counsel retained

by the Commission to review the legality of its affirmative action pol-

icies. Dea testified that the Commission's outside counsel gave his

opinion that the Commission's affirmative action policies did not sat-

isfy the requirements set by Croson for a lawful affirmative action

program. Specifically, outside counsel advised the Commission that,

after Croson, an affirmative action program must be narrowly tailored

for use only in a specific area and to cure a specific problem and that

a predicate study must evaluate prior discrimination and its impacts

to develop the statistical support required to justify the program. Dea

testified that he was shocked by the Commission's proposed response

to outside counsel's advice which consisted of cosmetic changes to

the program rather than efforts to comply with the requirements of

Croson. Dea's account of this meeting was not contradicted by Hoce-

var or anyone else present at the meeting. The only evidence offered

by the Commission relating to Dea's testimony on this point was a

stipulation that Nathan Greenbaum, the Commission's general coun-

sel does not recall that he discussed at that meeting either the Com-

mission's employment practices, or the applicability of Croson, or

that he made "any statements" about such employment procedure.

Dea's good faith belief in the illegality of the Commission's poli-

cies was also bolstered by an article he read in the December 1989

issue of the Journal of the American Water Works Association, circu-

lated to him by the Commission, entitled "Racial Preferences in Con-

tracting and Employment." Written by an attorney, this article stated

that, after the Supreme Court's decision in Croson, "a racial prefer-


Page 9

ence in any aspect of employment . . . is suspect and subject to strict

scrutiny." The article also noted that racial preferences will be upheld

only if they are supported by "detailed and specific findings based on

evidence of past discrimination sufficient to make the remedy a mat-

ter of `compelling public interest' and then only by a plan `narrowly

tailored' to correct and remove the effects of past discrimination."

The article instructed that evidence of "general`societal discrimina-

tion' will not suffice" to support racial preferences and that a study

supporting such preferences "should be specific to particular races

and should discard the notion that discrimination against one minority

is discrimination against all." In closing, the article noted that

although the Croson decision dealt with minority set aside contracting

programs, "the decision also has implications for affirmative action

programs."

 

Furthermore, Dea's personal counsel at the time, in a letter to the

Commission on Dea's behalf appealing the General Manager's deci-

sion to discipline him because of his handling of a prior hiring deci-

sion, characterized the Commission's affirmative action policies as

"out-of-date considering the most recent pronouncements of the

Supreme Court." The official letter of reprimand issued to Dea by the

Commission in January of 1990, after Dea's appeal of that matter but

before Dea's decision not to recommend Lucci for the Division Head

position, recognized that "Dr. Dea argues that the Commission's poli-

cies are out-of-date in light of recent Supreme Court decisions . . . ."

Finally, two of the commissioners testified that they believed Dea's

opinion as to the illegality of the Commission's policies was held in

good faith.

 

Given the evidence explaining Dea's good faith belief, the lack of

evidence contradicting it, and the lack of explanation on behalf of the

district court for discrediting it, we hold the district court's finding

that Dea lacked a good faith belief to be clearly erroneous.

 

Dea must also establish that he reasonably believed that the

employment practice which he opposed was an unlawful employment

practice under Title VII. Biggie v. Albertsons , 894 F.2d at 1503. On

these facts, the same evidence that bolsters the existence of Dea's

good faith belief supports its reasonableness. Dea cited as a basis for

his belief the conclusions of the Commission's outside counsel, of his


Page 10

own attorney, and of the author of the article he read in the Journal

of the American Water Works Association that affirmative action pro-

grams must be narrowly tailored to address prior discrimination and

must be supported by a study indicating that affirmative action is nec-

essary for a specific minority with regard to a specific position. He

also testified without contradiction that no such study had been done

at the Commission and that there was no specific affirmative action

goal set for the application of affirmative action policies to Division

Head positions with respect to white females. Dea noted, however,

that there was a pervasive understanding at the Commission, at the

direction of General Manager Hocevar, that affirmative action should

be applied to all management-level positions. Hocevar's testimony, as

well as the testimony of other Commission employees, corroborates

Dea's statements on this point. In fact, Dea had been disciplined by

the Commission in a prior instance for his failure to be "sufficiently

sensitive" to the Commission's affirmative action policies in a situa-

tion when no goal or directive from his supervisors mandated that

affirmative action be applied to the particular position in question. On

this evidence, Dea reasonably could have believed to be unlawful the

Commission's policy which required promotion of a lesser-qualified

minority to the Division Head position without first having conducted

the evaluation of prior discrimination that the Commission's outside

counsel, his attorney, and the article he reviewed, told him was

required. Indeed, he hardly could have concluded otherwise and we

conclude, without deciding the legality of the Commission's affirma-

tive action policies, that Dea's belief was reasonable that application

of the Commission's affirmative action policies to the Division Head

position for which he was making a recommendation would violate

Title VII and that the district court's finding to the contrary was

clearly erroneous.

 

To be protected under Title VII's Opposition Clause, Dea must

also establish that the nature of his opposition conduct was reason-

able. This court has applied a balancing test to distinguish between

protected opposition activity and unprotected, disruptive behavior.

Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 413-

14 (4th Cir. 1999). The balancing test in question pits "the purpose

of the Act to protect persons engaging reasonably in activities oppos-

ing . . . discrimination, against Congress' equally manifest desire not

to tie the hands of employers in the objective selection and control of


Page 11

personnel." Laughlin v. Metro. Washington Airports Auth., 149 F.3d

253, 259-60 (4th Cir. 1998). The law is clear that protected opposition

activity is not limited to an employee's participation in the formal

processes associated with the official adjudication of discrimination

claims. See Armstrong v. Index Funds Co., 647 F.2d 441, 448 (4th

Cir. 1981). On the contrary, informal expressions of one's views,

whether through established grievance procedures or alternative

forms of protest are protected by the statute so long as the employer's

business interest in preventing those expressions does not surpass the

overriding interests embodied in the Opposition Clause. Laughlin,

149 F.3d at 259-60; Armstrong, 647 F.2d at 448. Nevertheless, Title

VII does not protect "insubordinate, disruptive, or nonproductive

behavior at work."(5)   Armstrong, 647 F.2d at 448. The district court

concluded that Dea had failed to prove that "his method of complain-

ing about affirmative action was reasonable within the context of his

duties and responsibilities." We find this conclusion, largely factual,

to be clearly erroneous.

 

Dea was charged with making a personnel recommendation which

he sought to do within the boundaries of Title VII as he understood

them. Dea carefully evaluated the candidates for the open Division

Head position in order to make his recommendation. His evaluation

led him to rank Lucci fourth among the seven candidates. Profilet,

Dea's supervisor and the person who recommended the promotion of

Miss Lucci and transferring Dea, testified that he agreed with Dea's

assessment that Miss Lucci was not the most qualified candidate for

the position and that her qualifications placed her comparatively in

the middle third of the applicants. General Manager Hocevar testified


Page 12

only that -- in hindsight, as he was uninvolved with the initial hiring

decision, and he mentioned no characteristics of any applicant -- he

believed the applicants ranked by Dea as the top four were equally

qualified. Even now the Commission does not argue that Miss Lucci

was more qualified than the other candidates.(6)  It is undisputed that

Dea had thirty-four years of water and waste water management expe-

rience and seventeen years of experience as a Director at the Commis-

sion with responsibility for employment decisions. As noted, two

hundred and fifty employees were under his supervision. While per-

sonnel recommendation decisions are subject to some level of objec-

tivity, many inherently remain, in large part, subjective. Such

decisions essentially require a decisionmaker to put his own name and

reputation at stake by endorsing a candidate's potential for perfor-

mance. The Commission hired Dea, at least in part, to exercise his

discretion and to evaluate candidates for personnel recommendations,

which is what he did in this instance.

 

Dea's actions more closely resemble those deemed by the courts to


Page 13

be legitimate, protected opposition activities than those disruptive,

disorderly acts that have been denied Title VII protection. In Equal

Employment Opportunity Comm'n v. St. Anne's Hosp. , 664 F.2d 128,

132 (7th Cir. 1981), for example, the Seventh Circuit approved a

claim under the Opposition Clause contesting the discharge of Bar-

bara Herzon, a hospital employee who "used her authority to hire a

black employee because she considered him the most qualified appli-

cant for the job." Like Dea, Herzon did nothing more than comply

with what she reasonably believed to be the requirements of Title VII

in the execution of her personnel responsibilities. Cf. Armstrong, 647

F.2d at 444, 448 (finding that an employee's refusal of an instruction

to handle an undesirable sales account which was assigned to her

because she was female was protected opposition activity).

 

The Commission argues that Dea's opposition to its affirmative

action policies was disruptive because it ignored warnings given to

him which instructed how such concerns should be raised. The Com-

mission indicates that Dea failed to raise his concerns about its affir-

mative action policies directly with General Manager Hocevar, as it

instructed in a disciplinary letter to Dea regarding a previous employ-

ment decision. The disciplinary letter in question, however, indicates

only that Dea should "review all Commission policies relating to hir-

ing practices" and "arrange to meet with the General Manager" if he

has "any questions whatsoever concerning these policies." Dea did

not have questions about the affirmative action policy. Dea under-

stood both the formal and informal policies -- his understanding of

what the policies required was confirmed by the Commission's own

evidence at trial -- and reasonably believed them to violate Title VII.

Furthermore, Hocevar and the Commission were aware of Dea's con-

cerns about the legality of their formal and informal affirmative action

policies. Dea raised those concerns with Profilet, his direct supervisor,

and in the disciplinary hearing regarding his previous employment

decision.

 

The Commission's written decision after Dea appealed the previ-

ous disciplinary action imposed by General Manager Hocevar states

only that he "should have raised questions concerning such policies,

without challenging the same through a specific hiring practice" and

that "prior to finally making the hire in question, he should have dis-

cussed this matter with Mr. Hocevar." Dea did not violate this prohi-


Page 14

bition. Dea did not flaunt the Commission's affirmative action

policies by making a final hiring decision that contradicted them.

Instead, Dea opposed the policies through a nonbinding recommenda-

tion which was subject to Hocevar's review. Dea's obligation was to

recommend a candidate for the Division Head position, not to make

the final hiring decision. Dea knew that his recommendation was sub-

ject to review by Profilet and ultimately by Hocevar, who was always

involved in the selection of Commission Division Heads. Profilet tes-

tified that he could have hired Miss Lucci himself, but that he wanted

to give Dea a chance to comply with the affirmative action policies

and that, if Dea recommended anyone other than Miss Lucci, Profilet

would "check [the recommendation] out with the General Manager,"

who would most likely disapprove the recommendation.

 

Neither did Dea's recommendation contradict an express instruc-

tion with respect to how the position should be filled. The Commis-

sion's affirmative action plan did not contain a written affirmative

action goal with respect to the Division Head position, and Dea

received no direct orders regarding how it should be filled. Nonethe-

less, Dea knew that General Manager Hocevar wanted with regard to

high-level positions "that a qualified minority should be selected if

one was available." Indeed, Hocevar testified that, in order to achieve

the objectives of the Commission's affirmative action policy, he was

willing to run the risk of being accused of reverse discrimination or

being sued by a non-minority employee who was denied a position.

The Commission believed that its employees should assume that its

affirmative action policies had been reviewed by legal counsel and

that they complied with Title VII.

 

Title VII does not require Dea to take risks or to accept blindly that

his employer's policies comply with Title VII. Faced with an obliga-

tion to make a recommendation for a position that he knew would be

reviewed before implementation, Dea chose to recommend the candi-

date he considered to be best qualified. Although this recommenda-

tion did not comply with Hocevar's pervasive affirmative action

policy, which Dea believed to be violative of Title VII, the recom-

mendation did not contradict the Commission's written affirmative

action policy and it did not bind the Commission to Dea's recom-

mended course of action. We are of opinion that such a non-binding

recommendation is not disruptive, unprotected activity. Neither are


Page 15

Dea's actions unprotected as the disloyalty of a manager with hiring

authority to the Commission's affirmative action policies.

Almost every form of "opposition to an unlawful employ-

ment practice" is in some sense "disloyal" to the employer,

since it entails a disagreement with the employer's views

and a challenge to the employer's policies. Otherwise the

conduct would not be "opposition." If discharge or other

disciplinary sanctions may be imposed simply on"disloyal"

conduct, it is difficult to see what opposition would remain

protected under 704(a).

 

EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1014 (9th Cir.

1983). After balancing Title VII's purpose to protect persons engag-

ing reasonably in activities opposing discrimination against Congress'

desire to leave employers in control of the selection and control of

their personnel, we find that Dea's opposition activity was reasonable

in these circumstances and that the district court's finding to the con-

trary is clearly erroneous.

 

B.

Next, we turn to the second element of Dea's unlawful retaliation

claim and consider whether or not his transfer constituted an adverse

employment action. We believe that it did, and there appears to be lit-

tle disagreement between the parties in this regard. Counsel for the

Commission conceded at oral argument that "if you look at certain

indicia, supervisors, responsibilities, number of people below you, et

cetera . . . it can be characterized as a demotion." Thus, the district

court properly found that Dea's transfer did constitute an adverse

employment action. See Munday v. Waste Mgt., Inc., 126 F.3d 239,

243 (4th Cir 1997) (relying on DiMeglio v. Haines, 45 F.3d 790, 804

n.6 (4th Cir. 1995), for the proposition that reassignment may consti-

tute an adverse employment action).

 

C.

The final element of an illegal retaliation claim requires that Dea

establish a causal link between the protected activity, his refusal to


Page 16

recommend Miss Lucci, and the adverse employment action, his

transfer. See Beall, 130 F.3d at 619. A prima facie showing of causa-

tion requires little proof. See Karpel v. Inova Health System Services,

134 F.3d 1222, 1229 (4th Cir. 1998) (finding that fact of adverse

employment actions following filing of EEOC claim met the prima

facie burden for causation); McNairn v. Sullivan , 929 F.2d 974, 980

(4th Cir. 1991) (plaintiff stated a prima facie case even though there

was no evidence of causal connection other than the fact that plaintiff

was fired after bringing a lawsuit).

 

The record in this case contains ample evidence of the link between

Dea's transfer and his refusal to recommend Miss Lucci. Profilet tes-

tified that "the decisive event" that led him to institute Dea's transfer

was "[t]he fact that he hadn't chosen a minority to fill the Project

Development Division Head position." Haddad then testified that

when he proposed Dea's transfer to Hocevar he explained that it

would "eliminate [the] potential for another confrontation over affir-

mative action." While the district court found, without explanation,

that what it called Profilet's "after the fact statement" that the transfer

was based on the Project Manager position was not credible, there is

no evidence contradicting Profilet's testimony and Haddad's testi-

mony corroborates it. While Hocevar's testimony suggested other rea-

sons for the transfer, he did not testify that the reason for Dea's

transfer was that Dea was late with his recommendation. Thus there

is no evidence to support the district court's finding that Dea has

failed to show causation and that holding of the district court is

clearly erroneous.

 

D.

With his prima facie case established, Dea must show that the

Commission's present contention on appeal that he was transferred

because of his delay in filling the Division Head is pretext.(7)  See Beall,


Page 17

130 F.3d at 619. Once an employer offers a non-retaliatory explana-

tion for an adverse employment action, "the McDonnell Douglas

framework -- with its presumptions and burdens-- disappear[s], and

the sole remaining issue [is] discrimination vel non." Reeves, 530

U.S. at 142-43 (internal quotations omitted). Then, the plaintiff "must

be afforded the `opportunity to prove by a preponderance of the evi-

dence that the legitimate reasons offered by the defendant were not

its true reasons, but were a pretext for discrimination.'" Reeves, 530

U.S. at 143 (quoting Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

516 (1993)). We find that Dea has successfully shown the Commis-

sion's explanation for his transfer is pretextual.

 

There is no evidence in the record supporting the Commission's

argument on appeal or the district court's conclusion on this point.

The Commission has conceded that it did not argue before the district

court that delay was the reason for Dea's transfer. The district court

reached that conclusion on its own. The Commission's attorney

argued in his opening statement that Haddad and Profilet decided to

transfer Dea because of the "potential for another conflict between Dr.

Dea and the General Manager based on Dr. Dea's likely refusal to

apply affirmative action in filling the Division Head position." Again,

in closing argument, counsel for the Commission emphasized that

Dea was transferred "to avoid this conflict [over affirmative action]

and get on with the Commission's business, because Dr. Dea could

not do his job, as Profilet put it, which was to select Miss Lucci . . . ."

Before the district court, the Commission did not challenge the fact

that Dea was transferred because of his position on affirmative action

but instead argued that Dea's conduct was not protected opposition

activity. When the district court noted to defense counsel that

"[y]ou're suggesting that the Court resolve this case on [the grounds]

either that it wasn't protected activity or that the manner of opposition

was disorderly or disruptive and therefore not protected," counsel for


Page 18

the Commission conceded that those arguments had been "the essence

of [its] defense." We have already explained why Dea's conduct is

protected by the Opposition Clause of Title VII.

 

Dea testified that the reason Profilet gave him for the transfer was

that he had not recommended a minority for the Division Head posi-

tion. And Profilet, his supervisor, agreed. Furthermore, Dea sent two

letters to Profilet and to the Commission protesting his transfer and

arguing that the transfer was in retaliation for his opposition to the

Commission's unlawful affirmative action policy. No one responded

to Dea's letters by offering another reason for his transfer. While it

is true that Profilet believed Dea was slow in making a recommenda-

tion for the vacant position and that he had urged Dea to get the posi-

tion filled, Profilet did not testify that Dea's delay in making a

recommendation was the basis for the decision to transfer Dea but

that Dea was transferred because he refused to recommend Miss

Lucci for the vacant Division Head position. Profilet testified that the

notion to transfer Dea originated with Haddad, who first had dis-

cussed the matter with General Manager Hocevar and then suggested

to Profilet that Dea be transferred because of his reluctance to fill the

Division Head vacancy with a minority applicant.

 

Haddad corroborated Profilet's testimony, indicating that he sug-

gested the transfer to General Manager Hocevar and, subsequently, to

Profilet, in order to avoid a confrontation with Dea over the Commis-

sion's affirmative action policies. Hocevar did not contradict Haddad

with respect to their meeting, he indicated only that he could not

recall whether they had met or what they discussed. Even if Haddad

thought that Dea was delaying a recommendation for the Division

Head his concern when he went to Hocevar was that"Dea had a short

list which did not include the candidate that [the Minority Affairs

office] wanted." Haddad stated that his motive for recommending the

transfer was to eliminate the potential for a confrontation with Dea

over affirmative action.

 

Hocevar testified that he approved Dea's transfer because he was

dissatisfied with some of the work product coming out of Dea's

department. Hocevar did not testify, however, that he approved the

transfer because of Dea's delay in making a recommendation for the

vacant Division Head position.


Page 19

We conclude, in light of corroborating testimony from Haddad and

Dea and the lack of conflicting testimony, that the district court was

clearly erroneous when it found that Dea was transferred because of

delay in making a recommendation for the Division Head position.

Dea has shown that the Commission's present suggestion that delay

was the reason for the transfer is pretextual.

 

E.

The only question remaining is whether Dea was transferred as a

result of his protected opposition conduct. Again, the relevant evi-

dence is uncontroverted. Hocevar, the general manager, had to

approve the transfer, which was recommended by Profilet.

Hocevar did not testify that he approved the transfer because of

lateness or because of Dea's opposition to affirmative action policy,

but because he "was not completely satisfied with things that were

going on in Project Planning and Design." As just noted, neither affir-

mative action nor lateness were the reasons testified to by Hocevar.

Profilet, on the other hand, testified that he made the recommendation

to transfer Dea because Dea did not recommend Miss Lucci to fill the

vacancy.

 

Q: Who made the recommendation to remove Stan Dea

from the position as Director of the Bureau of Planning

and Design?

A. Well, I did.

Q: And what was the decisive event that lead you to

remove Dr. Dea from his Bureau of Directors (sic)

position?

A: The fact that he hadn't chosen a minority to fill the

project development position.

 

Haddad, the personnel man, and Profilet testified that Haddad had

come to Profilet at the instance of Hocevar to effect the transfer of

Dea on account of the affirmative action problem. But Hocevar testi-


Page 20

fied that he did not remember the conversation with Haddad and that

the first thing that he knew about the transfer was the recommenda-

tion from Profilet.

 

All of the above testimony serves, of course, to corroborate the tes-

timony of Dea, who was told by Profilet he was being transferred

because he would not recommend Miss Lucci to fill the vacancy. We

have held in a case on facts so similar as to be indistinguishable that

the testimony of Hocevar as to the reason for the transfer is "simply

not probative." In Rowe v. The Marley Co., 233 F.3d 825 (4th Cir.

2000), when a question arose as to whether or not a reduction in force

was the cause of Rowe's discharge, rather than Rowe's age or disabil-

ity, the testimony of one Garber, who was the decision maker, was

held to control rather than the contrary testimony of Moore, Garber's

supervisor, who had to approve the discharge. Here, Profilet's testi-

mony, which corroborates Dea's, must be held to control over Hoce-

var's testimony. Profilet was the decision maker and Hocevar had

merely to approve the transfer, so his testimony is"simply not proba-

tive." Rowe, 233 F.3d at 825. The rule is even more pronounced in

this case because Hocevar did not remember the conversation with

Haddad, which Haddad and Profilet both testified had initiated the

problem on which this case is based.

 

Although the general rule requires an appellate court to remand for

further findings when a factual issue has not been resolved below,

"where a thorough review of the record permits only one resolution

of the factual issue -- i.e., where any other resolution by the district

court would be clearly erroneous -- the appellate court may make the

appropriate finding in the first instance." Patterson v. Greenwood

School Dist., 696 F.2d 293, 295-96 (4th Cir. 1982) (finding that

record was sufficiently clear to allow appellate court to rule in first

instance that interviewing authorities would have chosen another

female applicant over plaintiff even if she had not been subject to sex-

based discrimination and thus that damages were not warranted).

Under these circumstances, Dea's showing that the Commission's

explanation for his transfer is pretextual, in combination with the evi-

dence establishing his prima facie case of retaliation, warrants judg-

ment in his favor. See Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 148 (2000). In fact, the record allows no other conclu-

sion.


Page 21

There is simply no evidence worthy of credit in this case that Dea

was transferred for any other reason except the fact that he recom-

mended Coe for the promotion rather than Miss Lucci, a less qualified

applicant.

 

Finally, the Commission argues that Dea's claims are speculative

and that his damage claims are moot. We are of opinion and find that

Dea's damage claims are not moot but express no opinion as to

whether or not they are speculative. That particular argument should

first be made to the district court on remand.

 

Accordingly, the judgment of the district court is reversed. On

remand the district court will enter judgment for Dea's estate and

ascertain damages.

 

REVERSED AND REMANDED WITH INSTRUCTIONS


-- END of OPINION --

U.S. Court of Appeals for the Fourth Circuit in
Stephanie W. Dea and Roger M.H. Chan, as personal representatives of the Estate of Stanley J. Dea
v.
Washington Suburban Sanitary Commission

Docket No. 97-1572, Decided June 15, 2001

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FOOTNOTES:

Footnote Number: Text of Footnote: Return to Text:

1

 

Dea originally sued the Commission both for injunctive relief, with regard to an earlier disciplinary warning, and monetary damages, associated with his eventual involuntary transfer. During the pendency of his appeal, however, Dea died and his estate was substituted as the appellant pursuant to Fed. R. App. Proc. 43.

Thus, as claims for such injunctive relief do not generally survive the death of the plaintiff, see Fariss v. Lynchburg Foundry, 769 F.2d 958, 964 n.8 (4th Cir. 1985), Dea on appeal asserts only a claim for money damages.

 

 

[Return to Text]

2

 

Dea testified that he was familiar with that part of the affirmative action plan which states in pertinent part:

nor is an employer required to hire a less qualified person in preference to one better qualified, providing the qualifications used to make such relative judgements realistically measure the personal ability to do the job in question.

The meaning of that part of the plan is perfectly plain. It is directly contrary to the affirmative action enforced by Hocevar that a qualified minority applicant should receive a vacant job although better qualified applicants were at hand. No justification for the departure from the literal wording of the plan was offered at trial in the district court nor is it offered now. In view of that, even questioning that Dea had a good faith belief that he was protesting a violation of law is itself doubtful, at best, and on this record is not justified. A simple recognition of this provision of the plan at the outset of the trial would have vastly shortened this proceeding with the resulting laborious, lengthy and painstaking McDonnell Douglas analysis. As the case has turned out, to affirm the judgment of the district court it would be necessary to base such affirmance almost entirely on the fact that the district court believed that Dea, and Profilet, and probably Haddad, were not truthful, which position the record does not support.

Indeed, the brief of the Commission in this court states plainly:

Hocevar's policy was that if a qualified minority (a term that in WSSC parlance included women) was available for a high level position that person should be selected.

 

 

[Return to Text]

3

 

Dea correctly argues that he can prevail either by showing that he held a reasonable, good faith belief that the Commission's affirmative action policy violated Title VII or that the policy did, in fact, violate Title VII. Because we find the district court's conclusion that Dea lacked a reasonable good faith belief to be clearly erroneous, we do not reach the legality of the Commission's affirmative action policy.

 

 

[Return to Text]

4

 

At trial, the Commission objected to this testimony on the grounds of attorney-client privilege. The district court overruled the Commission's objection and admitted the testimony under seal. Because the Commission has not appealed this evidentiary ruling, we do not need to address the applicability of attorney-client privilege to this testimony and appropriately may treat Dea's testimony regarding the meeting as part of the record on appeal. We find, however, that there is no basis to maintain this aspect of the record under seal on appeal and accordingly order the seal removed.

 

 

[Return to Text]

5

 

An example of such unprotected activity can be found in Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998). Without authorization, Karen Laughlin removed relevant, confidential documents from her supervisor's desk, copied and replaced them without his knowledge and sent them to a former co-worker to aid in that former co-worker's pursuit of a discrimination complaint. Laughlin, 149 F.3d at 256. Upon learning of this breach of trust, MWAA fired Laughlin. Laughlin, 149 F.3d at 256.

On balance, we held that "MWAA's strong interest in protecting sensitive records outweigh[ed] Laughlin's interest" and thus "Laughlin, as a matter of law, did not engage in protected oppositional activity . . . ." Laughlin, 149 F.3d at 260.

 

 

[Return to Text]

6

 

Such lack of opposition to the ranking of Dea is understandable.  When the vacancy opened up, a list of seven applicants was sent to Dea through Profilet, by William Key, a senior personnel specialist. The Commission does not claim that Dea had anything to do with making up this list of seven. Dea interviewed all seven, making extensive notes on each, all of which are a part of the record. Following these interviews, he then prepared a short list of three and re-interviewed them. He found one Dave Coe to be the best qualified and James Shabelski and Dominic Tiburzi to be second and third. Miss Lucci was ranked fourth by Dea.

Coe was not only the senior of the seven, having been employed by the Authority for some 20 years, he was rated as superior by the personnel department, with the others rated fully satisfactory. A detailed item-by-item score sheet, with points awarded from 1 to 20, was prepared by Dea considering some nine characteristics which Dea considered related to the job and were: technical competence, managerial capability, experience, leadership/administration, initiative/resourcefulness, communication skills, judgement, cooperation, and team building.

Coe scored a total of 88, while Miss Lucci scored 69. Tiburzi scored 77 and Shabelski scored 75. Not one of these figures for any applicant has been contested by the Commission by way of evidence, although the Commission's brief takes issue with Dea's work. The district court made no finding in this respect.

 

 

[Return to Text]

7

 

Pretext is not quite the correct word to use, but it is the best we can do in view of its use in the cases. By definition, the word means "a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs." Webster's New Int'l Dictionary 1797 (3d Ed. 1971). Thus, the word may have less than wholesome overtones.

Neither Hocevar nor Profilet, however, gave lateness as the reason for Dea's transfer, and the Commission did not take that position in the district court, as we demonstrate. The district court's opinion giving lateness as the reason is sought to be justified in the brief filed here by the Commission, but that reason was not presented by the Commission to the district court.

 

 

[Return to Text]


END CASE 42:  Court Ruling in Dr. Stanley Dea vs. Washington Suburban Sanitary Commission

See Also:
Case 42 Summary and Overview - Deas v. WSSC

Related Story:
Case 40: WSSC Racial Politics Threatens Water Saftey

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*  We use the term reverse discrimination reluctantly and only because it is so widely understood.  In our opinion there really is only one kind of discrimination.