Rasimas v. Michigan Department of Mental Health

HOFFMAN, Senior District Judge,

concurring in part and dissenting in part.

I agree with the majority that the judgment 1 entered by the District Court on September 16, 1980, must be vacated and remanded. The reason is that the District Court relied upon the Supreme Court decision in Mohasco Corp. v. Silver, 447 U.S. 807 , 100 S.Ct. 2486 , 65 L.Ed.2d 532 (1980), an opinion filed not quite three months prior to the judgment entered by the District Court in this case. A later opinion of the Supreme Court, Zipes v. Trans World Airlines, Inc., 455 U.S. 385 , 102 S.Ct. 1127 , 71 L.Ed.2d 234 (1982), held that the statutory filing of charges with the Equal Employment Opportunity Commission (EEOC) was not a jurisdictional prerequisite, but was in the nature of a statute of limitations. Since the District Court never had the opportunity to consider the Zipes case, 2 I would vacate and remand to permit the *629 District Court to make specific findings and conclusions on this phase of the case, together with other matters mentioned herein. At this point my agreement with the majority ends.

In Zipes , the Supreme Court said:

By holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title YII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.

The majority opinion reverses the District Court and deprives it of the opportunity to consider waiver and tolling. While the ultimate result may be in accordance with the majority’s views, this is a function of the District Court and not the appellate court. Of course, if neither Mohasco nor Zipes are to be considered retroactive, then the Sixth Circuit holdings in Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir.1982), and Jones v. AIRCO Carbide Chemical Co., 691 F.2d 1200 (6th Cir.1982) 3 are applicable.

In Zipes , the Supreme Court could have readily disposed of the retroactive effect occasioned by any change in the law by simply holding that the charges filed with the EEOC were long prior to Mohasco and hence nonretroactive. The Supreme Court in Zipes did not discuss any issues of retro-activity. I believe that Zipes now compels a finding on waiver and/or tolling to be made by the District Court, although the tolling issue has been specifically decided against the plaintiff by the District Court’s findings of fact and conclusions of law (See, Conclusions of Law (2)).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

My concern with the findings of fact and conclusions of law rests with the conclusions of law. The findings are, of course, binding upon this court unless clearly erroneous.

Under Conclusion (6) the District Court describes the type of discrimination which existed among the females who worked under plaintiff, and who were under his supervision. The findings do not point the finger of discriminatory practice against the persons who were superior to Rasimas, i.e., Rosen (Director), McDonald (Administrative Officer in charge of personnel), Nagy (a female Director of the Nursing Home program), and Swietec, known as Caron Bender during the pertinent period involved, (a female mental retardation supervisor 10). The most that can be said with respect to plaintiff’s superiors is that (1) they paid too much attention to the complaints of the staff working under Rasimas, and (2) before making the final decision to discharge Rasimas, the superiors did not discuss the Belle Isle incident with Rasimas although, as the District Court noted, there are essentially no factual disputes — the differences between Rasimas and his staff were matters of judgment as to whether he should have returned to the Hoover Nursing Home when Donna, the very young child, became ill. 4

In discussing the type of discrimination to which Rasimas was subjected, the District Court had this to say:

However, in the case of a white male, not a member of any readily identifiable ethnic minority, common sense may balk at a presumption that adverse treatment of him is the result of an alleged discriminatory motive, even where that treatment is at the hands of the opposite sex, and even where there is no objectively verifiable legitimate motivation. Simply put, the difficulty is this: why should anyone presume that women would treat a man less favorable than another woman? The historical context of discrimination of this *630 sort is not as readily apparent as that of discrimination against Blacks or women.

Nonetheless, the Court deems that an inference of sexual discrimination can be drawn from the facts constituting the prima facie case described above. The same sexual role stereotypes that have caused women to be channeled either away from the job marketplace altogether, or into lower-paying jobs than men, necessarily have their counterparts in male sexual role stereotypes. Thus, as women are stereotypically expected to be sexually passive or submissive, men are, according to stereotypes, expected to be aggressive and dominant. Further, as women are stereotypically expected to be less suited to the business world and more suited to domestic roles, similarly men are stereotypically expected to be better in business related roles and less suited for domestic roles. In other words, hypothetically, a woman reacting to a man in a stereotypical manner would be more inclined to view him as insensitive to children than she would viewing another woman in the same circumstances.

Based upon the evidence adduced at trial, the Court believes that the plaintiff in this case was victimized by exactly such a stereotypical view.

The “stereotypical” theory has not, according to my research, been injected into any theory of intentional discrimination. As this is a disparate treatment case, it is now well-settled that a finding of “intentional discrimination” is necessary to support the ultimate finding of illegal discrimination.

As stated in the recent case of United States Postal Service Board of Governors v. Aikens, - U.S. -, 103 S.Ct. 1478 , 75 L.Ed.2d 403 (1983), in which the Supreme Court remanded the case to the District Court for further findings because the District Court erroneously focused on the question of the prima facie case rather than on the question of discrimination, I would remand this case to the District Court for further findings as to “discriminatory intent.” At no point in the factual findings has the District Court mentioned “discriminatory intent.” 5 In Aikens , the Supreme Court was careful to note that once the trial court had determined that a prima facie case had been established, the McDonnell-Burdine presumption “drops from the case” and “the factual inquiry proceeds to a new level of specificity”. Likewise, in Aikens , the Supreme Court reiterates its previous rulings that the factual inquiry in a Title VII case is “whether the defendant intentionally 6 discriminated against the plaintiff”, citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981). Other than by inference derived from the legal conclusion of the District Court, I find no suggestion of intentional discrimination, especially with respect to the superiors of Rasimas who had the authority to hire and fire. 7

For these reasons, and in accord with the principles set forth in Aiken, supra, I would *631 remand this case to the District Court for additional findings as to the existence of intentional discrimination and with whom such intent existed. I have grave doubts as to whether such intent, if it existed, is chargeable to the supervisors of Rasimas who had the authority to recommend his discharge to McDonald, the Administrative Officer in charge of personnel. The discharge action may have been neither discriminatory nor praiseworthy. The action may have been the result of poor employee relations, but nevertheless not constitute discriminatory treatment. 8 Similarly, I entertain a doubt that an employer is required to interview an employee charged with poor judgment in an isolated incident (the Belle Isle’s trip) where the facts are not in substantial disagreement, and that such failure to interview Rasimas in this case is any indication of discriminatory intent, 9 either with respect to one on probationary status as was Rasimas or as to any permanent employee.

MITIGATION OF DAMAGES

I agree with the majority that the actions of Rasimas, in declining to be interviewed in response to the letter of April 20, 1976 requesting same, should not, standing alone, diminish the damages to which Rasimas would be entitled, if he is entitled to any damages in this action. Assuming arguendo that the sole reason found by the District Court for mitigating the damages is predicated upon the actions of Rasimas in declining to be interviewed, this was error. However, on remand if it were possible under the majority opinion to consider findings on mitigation, I think that it would be permissible for the District Court to consider the age factor (Rasimas was 34 when he was discharged, and 39 at the time of trial in 1980); the fact that he had applied for comparable employment in Chicago (trial testimony), San Francisco (deposition testimony), and other locations not immediately in the area he lived; that he was unmarried, his family status, and why he could not accept employment in other areas; along with other related factors.

As the Supreme Court said in Ford Motor Company v. Equal Employment Opportunity Commission, 458 U.S. 219, 226 , 102 S.Ct. 3057, 3063 , 73 L.Ed.2d 721 (1982),

*632 Under § 706(g), then, “backpay is not an automatic or mandatory remedy[.] ... it is one which the courts ‘may’ invoke” in the exercise of their “discretion [which] is equitable in nature.”

Citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 416 , 95 S.Ct. 2362, 2370, 2371 (1975).

While this case is being remanded to the District Court to determine damages, the majority opinion is written in such a manner as constituting a direction for the District Court to award full backpay, at least to the date of the District Court’s opinion rendered in September, 1980 — an award then in excess of $81,000.

UNEMPLOYMENT INSURANCE

The majority adopts a rule established by the majority opinion in E.E.O.C. v. Ford Motor Co., 645 F.2d 183 , 195-196 (4th Cir.), rev'd on other grounds, 458 U.S. 219 , 102 S.Ct. 3057 , 73 L.Ed.2d 721 (1982), thus making it mandatory on all district judges in the circuit to disregard the receipt of employment benefits in computing damages in discrimination cases. The District Court, in the present case, made no findings on this issue as it found for MDMH because of the time limitations. For the reasons expressed in my dissenting opinion in E.E.O.C. v. Ford Motor Co., 645 F.2d at 200, 210 (4th Cir. 1981), I feel that the Supreme Court, in N.L.R.B. v. Gullett Gin Co., 340 U.S. 361, 364 , 71 S.Ct. 337, 339-340 , 95 L.Ed. 337 (1951), has held that this issue should be left solely to the discretion of the District Court.

It may be argued that in Ford Motor Co. v. E.E.O.C., supra, the Supreme Court did not discuss this issue and, therefore, tacitly approved the ruling of the Fourth Circuit majority. The fact is that any such ruling by the Supreme Court was wholly unnecessary to the decision in that case as the two women involved who had received unemployment insurance were cut off from any backpay long prior to the receipt of unemployment benefits in accordance with the Supreme Court’s ruling that they were required to accept an unconditional offer of employment to an equivalent position.

More significantly, the ruling of the majority in this case will create a conflict in the Sixth Circuit. In Satty v. Nashville Gas Company, 522 F.2d 850, 855 (1975), vacated and remanded on other grounds, 434 U.S. 136 , 98 S.Ct. 347 , 54 L.Ed.2d 356 (1977), a panel of this court upheld the action of a District Court in reducing a discrimination award by the receipt of unemployment insurance. Thus, the majority in the instant case is changing the discretionary rule vested in district judges contrary to the Supreme Court in Gullett Gin Co. and the Sixth Circuit in Satty .

For the foregoing reasons, and with great respect, I am obliged to concur in part and dissent in part.

. The judgment was in favor of the Michigan Department of Mental Health (MDMH). The judgment reads:

“For the reasons set forth in the Memorandum Opinion and Order issued this date: IT IS ORDERED AND ADJUDGED that the plaintiffs (sic) take nothing, and that the action be dismissed on the merits. Each party is to pay its own costs of action.”

The judgment was entered pursuant to a motion to dismiss filed by MDMH a few days prior to the scheduled trial date. After hearing argument on the motion, the District Court reserved its ruling and decided to proceed with the trial as the witnesses were then available. Whether treated as a motion to dismiss or a motion for summary judgment, it is apparent that the final ruling in favor of the defendant was due to the jurisdictional question presented.

. I agree that this Circuit had previously ruled in accordance with Zipes that the filing requirement was, like a statute of limitations, subject to waiver, estoppel and equitable tolling. See: Leake v. Cincinnati, 605 F.2d 255 (6th Cir. 1979). The District Court did, however, make an express conclusion of law that “plaintiff has alleged no facts which would justify the tolling of the 300-day period on equitable grounds,” citing the Leake case and Fox v. Eaton Corp., 615 F.2d 716 (6th Cir.1980). Since “equitable tolling” requires reasonable reliance upon defendant’s conduct or representations, Lawson v. Burlington Industries, Inc., 683 F.2d 862, 864 (4th Cir. 1982), cert. denied,- U.S. -, 103 S.Ct. 257 , 74 L.Ed.2d 201 (1982), it would appear that the District Court is correct as to this legal conclusion. Nevertheless, the District Court may wish to review its conclusions on this issue by reason of Zipes .

. Jones v. AIRCO did not rule upon the retroactive effect of Mohasco as the filing with the EEOC was subsequent to Mohasco. See: 669 F.2d at 399 , footnote 3.

. The prior experience of Rasimas dealing with young children was at Northville where the children were young adults. The Hoover Nursing Home accepted much younger children, all of whom were under 16 years of age. Understandably, a child age 5 or thereabouts must be accorded different treatment than that accorded an 18 year old.

. I fully recognize that the second portion of 42 U.S.C. § 1985 (2) provides: “[OJr if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny any citizen the equal protection of laws, or to injure him or his property for unlawfully, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws”, provides an actionable basis for a suit predicated upon the private employment of “equal protection of the laws” and “equal privilege and immunities under the laws”, but the District Court made no express finding that any conspiracy existed between the females who were working under Rasimas and the females who were his supervisors; nor did the amended complaint allege this issue. Kush v. Rutledge, - U.S. -, 103 S.Ct. 1483 , 75 L.Ed.2d 413 (1983).

. I concede that direct evidence of discriminatory intent is not required. The evidence may be direct or circumstantial. International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 358 n. 44, 97 S.Ct. 1843 , 1866 n. 44, 52 L.Ed.2d 396 (1977); Aiken, supra, n. 3 .

. In Board of Trustees v. Sweeney, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978), the Supreme Court had the occasion to distinguish between the employer’s duty to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection” and “proving absence of discriminatory motive”. In remanding *631 Sweeney , the Supreme Court held that only articulation was required of the employer and, because the Court of Appeals had imposed a heavier burden on the employer, the case was remanded for reconsideration. The same situation exists in this case.

. See: Smith, Employer Defenses in Employment Discrimination Litigation: A Reassessment of Burdens of Proof and Substantive Standards Following Texas Department of Community Affairs v. Burdine, 55 Temple U.L.R. 372, at 379.

. Not mentioned in the findings and conclusions, nor in the majority opinion, is an incident pertaining to the safety and well-being of the children — -obviously a primary factor as to all aides and supervisors in the operation of a nursing home for mentally retarded and physically handicapped children of a young age— which incident occurred on June 14, 1975, well before the Belle Isle trip on July 12, 1975. The staff supervised by Rasimas, along with other concerned aides, signed a report of the incident which essentially alleges that Rasimas grabbed the back of a child’s pants, the child fell to the floor crying and, after he was picked up and was returning to the East wing, Rasimas grabbed the child’s leg and began to pull on it, thus causing the child to scream louder. While Rasimas did not testify at trial as to the specifics of this incident, his discovery deposition taken on May 28, 1980 (included in the record on appeal) gives this explanation (p. 49) “I recall — if I recall correctly, that was the incident involving a young resident, young black male resident, who I used to play around with, I liked him, and the incident occurred on the comer of one of the nursing stations. I came up from behind him and tickled him in the side, and then moved around him the other direction quickly so he wouldn’t see me, and the little— the child, he was maybe eight or ten, turned to see who it was, and he lost his balance, and he slipped on the floor onto his butt. There were two nurses aids (sic) standing on the nurses station that saw this, and they jumped up and said: ‘You shouldn’t do that to him’. I didn’t do anything to him, and why 13 signed it, I don’t know, because only one or two were there.”

While this incident, even assuming the truth of Rasimas’ statement under oath, may not have justified any discharge at that time, his admitted act constituted, in my opinion, poor judgment in dealing with the safety and well-being of a young, mentally retarded, physically handicapped child.