Appendix — Scales v. George Washington University

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

941671 APR 1 2 1995

OBLIGE BE IME CLERK

In She

Sufreme Coudl of lhe United Hlales

Deborah Quick Scales,

Petitioner,

Vv.

The George Washington University,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

For the District of Columbia Circuit

PETITIONER’S APPENDIX

Wendu Mekbib

Attorney and Counsel of Record for Petitioner

2155 Evans Court # 304

Falls Church, Virginia 22043-2129

Telephone (703) 734-1025

PETITIONER’S APPENDIX

TABLE OF CONTENTS

DESCRIPTION PAGE

1. USCA Judgment filed November 28, 1994 .. 1

2. USCA Order filed January 17, 1995

(denying Petition for Rehearing) ....... 3

3. USCA Order filed January 17, 1995 (denying

Suggestion for Rehearing en banc ....... 4

4. USCA Order filed January 4, 1994

(denying Motion for Summary Reversal) .. 5

5. USDC Order and Memorandum filed

EGR Bes SEER K 6 eed eek a bnh hse edanrneee ees 6

6. USDC Order and Memorandun filed

BOVGHEIOE 10, LOPE sececevevdtsetnvaveeess 26

7. USDC Order and Memorandum filed

AUQGUSE 21, TODS ccccccervecssevacseccsacs 47

8. USDC Order and Memorandum filed

Pebruary 9, 1993 wcccvcccccccesceseseses 60

9. USDC Order and Memorandum filed

SGLY B71 i LOPS Cesc Coda tetaessinsdweeunes 70

10. Partial Transcript of the April 19, 1993

Trial Proceeding...... TETTVT CLOT CT 122

ae oor

12.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

Partial Transcript of the April 22, 1993

BONGCRH TIGL PLOCHOGING .cccccceccccscsss 166

Partial Transcript of the May 5, 1993

MORGR TEALGL PFOCHOGING ...cssccccceneses 170

Partial Transcript of the May 4, 1993

MOG TEAGL PEOCOGGING «oc cccccccccesecs 173

Affidavit of DR. JOHN W. WORK, IV filed

CE Oy EPPS sevedeocecesseccesusenes 175

Partial Transcript of the April 30, 1993

MENGE ZTELBL PEOCOOGIAG caccccscancacneers 193

Partial Transcript of the April 30, 1993

MORGCE TEAMS PEGCOOGLNG 2 ccc vacccsvsveren 200

Partial Transcript of the April 26, 1993

es EE EMS PE OOCOOGLES cc ccccavuvesecces 207

Partial Transcript of the April 26, 1993

DOC TEARL PEGCHOGARG 2c ccc cccsceaecese 251

Partial Transcript of the April 21, 1993

BOCK TLiGl PLOCSOGING .. nc cccvccsscceves 262

Supplemental Statement of Genuine Issues

of Material Facts Which, Plaintiff

Contends, Need to be Litigated - filed

Dis OOS eee ieee eeseravnvsecers 268

Plaintiff's Statistical Evidence as

proffered during the bench trial

RECUR Cees ec ee eer eeseceseesevesenes 272

George Washington University, Manual

OF POCSONNO] DIFOCCAVED wc ccc csecccescces 287

x ae

24.

25.

27.

28.

29.

30.

. +

32.

Plaintiff's Comparative Evidence

(Charts) as proffered during the

DONCH CLLIG1] PTOCEOGINGS .ccccccessccsace 290

Chart of the Interview Process ......... 302

Referral Memorandum re Joan Michaels

BOGS BERGE EAST OIOS acs ste harkiobsbenedas 303

Referral Memorandum re Joan Michaels -

offer of position on 09/19/86 .......... 304

Schmidt & Hunter, The Future of

Criterion Related Validity, Personnel

POPCHOLOGT 60s ce ree heeedeseerebecebencas 305

Schmidt & Hunter, Statistical Power in

Criterion Related Validation Studies,

Journal of Applied Psychology .......... 306

Assurance of Compliance signed by the

George Washington University Hospital on

January 21, 1977 with the Department of

Health, Education and Welfare .......... 309

Market Dynamics, Inc., Positioning

Focus Groups Final Report, dated

January 23, 1987, submitted to the

George Washington University

MOGLCOL CORUEE cic ie seeeensewiswsaes ean 311

BEST AVAIL

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1994

NO. 93-7151

(89cv00796)

DEBORAH QUICK SCALES

APPEALANT

THE GEORGE WASHINGTON UNIVERSITY,

APPELLEE

FILED NOVEMBER 28, 1994

RON GARVIN, CLERK

Appeal from the United States District Court

for the District of Columbia

Before: WALD, SILBERMAN, and RANDOLPH, Circuit

Judges

JUDGMENT

This appeal was cons:dered on the record

from the United States D.strict Court for the

District of Columbia and on the briefs filed by

and oral argument of the parties. The court has

determined that the issues presented occasion no

need for an opinion. See D.C. Cir. Rule 36(b).

It is

ORDERED AND ADJUDGED that the district

court’s orders of November 18, 1991, August 21,

1992, February 9, 1993, and July 27, 1993, be

affirmed substantially for the reasons given by

the district court. In the remaining order,

issued on March 25, 1991, the district court

dismissed appellant’s claim under 42 U.S.C. §

1981 because "[t]here is no indication that a

promotion to NUC "B01 create ‘a new and

BLE COPY

apeneenenn neta eeneaenO

distinct relation between the employee and the

employer . - +'" March 25, 1991 Memorandum

Opinion ac 10 (citation omitted). Regardless of

whether the court correctly so ruled, the claim

fails. Appellant did not establish

discrimination in her Title VII claim. She

therefore could not have succeeded on her

section 1981 claim. Similarly, appellant would

also have had to establish discrimination to

succeed in her common law breach of contract

claim. Because she could not have done so, the

breach of contract claim was also properly

dismissed.

The Clerk is directed to withhold issuance of

the mandate herein until seven days after

disposition of any timely petition for

rehearing. See D.C. Cir. Rule 41(a).

Per Curiam

For the Court

Ron Garvin, Clerk

002

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1994

NO. 93-7151

USDC CV 89-0796

DEBORAH QUICK SCALES

APPEALANT

Vv,

THE GEORGE WASHINGTON UNIVERSITY,

APPELLEE

FILED JANUARY 17, 1995

RON GARVIN, CLERK

BEFORE: Wald, Silberman and Randolph, Circuit

Judges

Upon consideration of appellant’s Petition

for Rehearing, filed December 16, 1994, it is

ORDERED, by the Court, that the petition is

denied.

Per Curiam

FOR THE COURT:

RON GARVIN, CLERK

BY:

Robert A. Bonner

Deputy Clerk

003

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1994

NO. 93-7151

usDC CV 89-0796

DEBORAH QUICK SCALES

APPEALANT

Vv,

THE GEORGE WASHINGTON UNIVERSITY,

APPELLEE

FILED JANUARY 17, 1995

RON GARVIN, CLERK

BEFORE: Edwards, Chief Judge; Wald, Silberman,

Buckley, Williams, Ginsburg, Sentelle,

Henderson, Randolph, Rogers and Tatel, Circuit

Judges

ORDER

Appellant’s Suggestion For Rehearing In

Banc has been circulated to the full Court. No

member of the Court requested the taking of a

vote thereon. Upon consideration of the

foregoing it is

ORDERED, by the Court in banc, that the

Suggestion is denied.

Per Curiam

FOR THE COURT:

RON GARVIN, CLERK

BY:

Robert A. Bonner

Deputy Clerk

Circuit Judge Tatel did not participate in this

matter.

004

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1994

NO. 93-7151

89cv00796

DEBORAH QUICK SCALES

APPEALANT

Vy,

THE GEORGE WASHINGTON UNIVERSITY,

APPELLEE

FILED JANUARY 04, 1994

RON GARVIN, CLERK

BEFORE: Silberman and Ginsburg, Circuit Judges

ORDER

Upon consideration of the motion for

Summary reversal, the opposition thereto and the

reply, it is

ORDERED that the motion be denied. The

district judge did not abuse his discretion, see

United States v. Pollard, 959 F.2d 1011, 1031

(D.C. fir.), cert. denied, 113 S- Ct. 322

(1992), in failing to disqualify himself

pursuant to 28 U.S.C. Sec. 455. Because this

issue has been fully considered and disposed of

by the court, the parties shall limit their

subsequent submissions to matters not decided by

this panel. It is

FURTHER ORDERED that appellant’s request

for sanctions be denied.

Per curiam

005

TOE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED MARCH 25, 1991

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

MEMORANDUM

Plaintiff Deborah Quick Scales was employed

as a nurse by defendant George Washington

University Hospital from 1966 to 1987. In 1973,

she was assigned to a unit known as 5-South. In

1981, she was promoted to the position of

Assistant Nurse Coordinator (ANC). In October,

1986, Scales sought promotion from ANC to the

position of Nursing Unit Coordinator (NUC) of

5-South. Scales is black. In count one, claiming

both disparate impact and disparate treatment,

Scales alleges that she was denied the WUC

position on the hasps Of race discrimination in

006

violation of Title VII, 42 U.S.C. § 2000e, et.

seqS In count two, she alleges that defendant

retaliated against her for filing an EEO

complaint by issuing a performance evaluation

containing falsehoods and malicious accusations,

awarding her a smaller salary increase than that

granted to her coworkers, directing Scales to

alter performance appraisals she had written,

making false statements about her work, failing

to provide her with leadership and support, and

denying her the opportunity to attend meetings

important to her work. In counts three and four,

Scales alleges that defendant violated 42 U.S.C.

§ 1981 and the Thirteenth Amendment by

discriminating against her in contracting with

her and retaliating against her. Plaintiff also

alleges the following common law charges in

counts five through nine: (5) that as a result

of defendant’s discrimination she was

constructively discharged from her employment on

December 8, 1987; (6) that defendant breached an

implied provision of the employment contract

-007

that she would not be discriminated against; (7)

that defendant defrauded her by representing in

its employment manual that employment decisions

would be non-discriminatory; (8) that by

discriminating against her defendant breached

implied covenants of good faith and fair dealing

in its employment contract with her; and (9)

intentional infliction of emotional distress.

Defendant moves for summary judgment on all

counts. See Defendant’s Motion for Partial

Summary Judgment (filed October 15, 1990);

Defendant’s Supplemental Motion for Summary

Judgment (filed January 11, 1991). For the

following reasons, summary judgment will be

granted in favor of defendant on counts three

through nine. However, defendant’s motion must

be denied in part with respect to counts one and

two.

Plaintiff and defendant agree that

plaintiff has established a prima facie case of

008

disparate treatment discrimination under Title

VII. See McDonnell Douglas Corn. v. Green, 411

U.S. 792, 802 (1973). The parties also agree

that defendant has articulated non-

discriminatory reasons for its decision not to

promote plaintiff. Defendant explains that,

following a series of interviews, defendant

first selected Joan Michaels for the NUC

position. When Michaels declined the offer,

defendant selected Ann Cooley. Defendant

contends that both of those candidates were

better qualified than Scales because they each

had more education and supervisory experience

than Scales. With respect to educational

qualifications, Michaels was within one semester

of obtaining a Masters of Science in Nursing

degree (M.S.N.) and Cooley had obtained an

M.S.N., whereas Scales (who had enrolled in an

M.S.N. program in September, 1986) had completed

no credits towards a M.S.N. With respect to

experience, Michaels had three years of

experience as head nurse at Sibley Memorial

009

Hospital and Cooley had one to two years of

experience as a head nurse at National

Rehabilitation Hospital and several months of

experience as an acting NUC at George Washington

University Hospital, whereas plaintiff’s only

experience in comparable supervisory positions

was that she began serving as acting NUC on

November 2, 1986, at approximately the same time

her application was under consideration.

Plaintiff asserts that these reasons are a

pretext for discrimination. Plaintiff argues

that defendant’s educational requirements for

the NUC position have no rational relationship

to the job’s requirements and have a

discriminatory impact on blacks and other

minorities. ' Plaintiff offers no direct

| Plaintiff does not concede that an M.S.N.

is a required qualification for the NUC

position. Instead, she asserts that defendant

maintains a multiplicity of educational

requirements and that this multiplicity has an

adverse impact on blacks. See Plaintiff’s

Supplemental Opposition to Defendant’s

Supplemental Motion for Summary Judgement (filed

January 25, 1991) at 14-17. In support,

plaintiff alleges that defendant established

010

- 3

evidence to controvert defendant’s assertion

that Michaels and Cooley were selected and

plaintiff was not selected on the basis of

education and supervisory experience. However,

plaintiff filed an affidavit by Gina Marie

Brooks, a staff nurse who worked in §-South.

Brooks was asked to serve as one of four group

interviewers of Michaels and Scales for the NUC

position sought by Scales. Brooks interviewed

Michaels but has no recollection of interviewing

Scales. Brooks Aff. at I 6. Brooks states that,

in her opinion, Scales was by far the best

qualified candidate for the NUC position. Id. at

s 8. She explains that Scales had over twenty

years of experience, including fourteen in

5-South, and seven as ANC for that unit. She

also contends that Scales had “demonstrated

three separate educational criteria for the

position she sought: an internal, confidential,

memorandum set the minimum requirement to be a

B.A./B.S. degree; a job description stated that

an M.S.N. or the equivalent was required; and a

Washington Post advertisement stated: "M.S.N."

Id. at 14-16.

011

EE a a aaa

outstanding leadership and management capacity”

and had “outstanding working, supervisory and

interpersonal relationships" with coworkers. Id.

Brooks also attested in contravention of certain

statements made by defendant’s employers at

depositions. Her testimony disputes several

additional non-discriminatory reasons offered at

those depositions for not promoting Scales. See

Plaintiff's Supplemental Opposition to

Defendant’s Supplemental Motion ‘or Summary

Judgment (filed January 25, 1991) at 17-25. For

example, Michael Tillman, plaintiff's

supervisor, stated in his deposition testimony

that one reason for not promoting Scales was

that, while serving as acting NUC, she kept the

door to her office closed and was thus less

communicative than the former NUC. Brooks stated

that Scales’ door was less frequently closed

than her predecessor’s door. See Brooks

Affidavit at q 19. It appears unlikely that

Brooks’ affidavit, in the absence of additional

evidence in support of plaintiff’s claim, will

‘

012

satisfy Scales’ burden of showing at trial that

defendant’s reliance on educational and

supervisory experience and other stated reasons

for nonselection of Scales was a pretext for

discrimination. Nevertheless, this evidence is

not so inconsequential that no reasonable trier

of fact could find for plaintiff. Accordingly,

defendant’s motion for summary judgment on the

question of whether defendant intentionally

discriminated against plaintiff in denying her

the promotion she sought must be denied.

Plaintiff also asserts that defendant’s

policies, patterns, and practices have an

adverse impact on blacks and other minorities.

To establish a Drima facie claim for disparate

impact, plaintiff must show that “the

application of a specific or particular

employment practice [{] has created the disparate

impact under attack." Wards Cove Packina Co. v.

Atonio, 109 S. Ct. 2115, 2124-25 (1989). Thus,

a plaintiff is required not only to show that

013

- I,

statistical disparities exist but also to

identify the specific employment practice that

is responsible for statistical disparities and

to demonstrate a causal link between the

practice and the disparities. Id.; see also

Watson v. Fort Worth Bank & Trust, 108 U.S.

2777, 2788 (1988). Plaintiff alleges that

statistical disparities exist and submits an

affidavit from John W. Work, VI, plaintiff’s

expert, attesting to such disparities. See

Complaint at qq 47-50; Affidavit of John W. Work

VI. Though defendant disputes the findings of

Work, a genuine issue of material fact exists

with respect to statistical disparities.

However, plaintiff identifies only general,

rather than specific, discriminatory policies

and practices. Plaintiff alleges that defendant

maintained discriminatory promotional policies,

educational requirements and preferences, and

salary increases and caps placed on salary

following a certain number of years of

employment. Complaint at qq 51-54. It is

014

unlikely that these vague allegations satisfy

the requirement established by Wards Cove and

Watson for identification of specific employment

policies and practices. But, in any event,

plaintiff’s disparate impact claim cannot be

sustained because plaintiff assumes, rather than

alleges or demonstrates, a causal link between

these general practices and any disparate

impact. Wards Cove and Watson expressly require

a plaintiff to allege and establish causation to

Survive a summary judgment motion. 109 S. Ct. at

2124-25; 108 S. Ct. at 2787-88. Plaintiff failed

to provide any explanation of a causative link.

Accordingly, plaintiff has not made out a claim

of discriminatory disparate impact under Title

VII.

Cc.

In her second count, Scales alleges that

defendant retaliated against her for filing an

EEO complaint. Scales states that she filed a

discrimination charge with the Equal Employment

Opportunity Commission on April 13, 1987.

Complaint at 1 60. She asserts that on June 30,

1987, Michael Tillman, her supervisor, issued a

performance evaluation containing falsehoods and

malicious accusations. She also asserts that

Tillman awarded her a smaller salary increase

than the increases awarded to her coworkers. In

addition, Scales alleges that Tillman directed

her to alter performance evaluations she had

prepared for ANCs, offering irrational reasons

for doing so. She further alleges that Tillman

falsely identified problems on 5-South during

her tenure as acting NUC, refused to provide her

with the supervisory leadership and support she

needed, and denied her the opportunity to attend

divisional and departmental meetings important

to her job performance.

Defendant moves to dismiss this claim,

arguing that plaintiff has failed to establish

a grima facie case of retaliation. To make out

a claim of retaliation, plaintiff must show “(1)

that she engaged in a statutorily protected

activity; (2) that the employer took an adverse

016

employment action; and (3) that a causal

connection existed between the two." See McKenna

v. Weinberaer, 729 F.2d 783, 790 (D.C. Cir.

1984); see also Barnes v. Small, 840 F.2d 972,

976(D.C. Cir. 1988). Defendant argues that,

although plaintiff clearly established that she

engaged in a statutorily protected activity, she

failed to demonstrate that she suffered an

adverse employment action. First, defendant

contends that since the allegedly adverse

employment evaluation shows that plaintiff was

awarded the highest overall rating available,

and that for all subsidiary categories,

plaintiff was awarded either the highest or the

next highest rating available, plaintiff’s claim

that the evaluation was prepared in retaliation

must fail. However, defendant does not address

plaintiff’s claim that the performance

evaluation contained falsehoods. Second,

defendant asserts that plaintiff’s claim that

she received a lower pay raise than coworkers is

not supported by the evidence. Defendant notes

017

that plaintiff received a raise while serving as

acting NUC. When Cooley took the NUC position

and plaintiff returned to her position as ANC,

her salary was lowered to its previous rate.

Defendant notes that subsequently, as ANC,

plaintiff was given a 7% pay raise. Defendant

contends that the average pay raise for ANC’s

eligible for a pay raise higher than 5% was 6.8%

and that, therefore, plaintiff’s claim that her

raise was awarded in retaliation for filing of

her EEO complaint is without merit. Furthermore,

defendant asserts that plaintiff does not

demonstrated any causal relationship between her

filing of a discrimination charge and any

employment action. However, the court in McKenna

found that the plaintiff there had made out a

Drima facie case where the only evidence of

causation indicated that the employer was aware

of the protected activity and the adverse action

followed closely on its heels. 729 F.2d at 791.

Therefore, plaintiff’s claim of retaliation

018

cannot be disposed of on summary judgment for

failure to establish causation here.

Defendant does not address plaintiff’s

claims that Tillman directed her to alter

performance evaluations, that he falsely

identified problems on 5-South, that he refused

to provide her with supervisory leadership and

Support, and that he denied her the opportunity

to attend divisional and departmental meetings.

Moreover, plaintiff failed to address in her

opposition to defendant’s motion any aspect of

defendant’s motion for summary judgment on count

two, nor does defendant discuss plaintiff's

failure to oppose the motion in its reply to the

opposition. Since defendant did not address

these additional claims of retaliatory acts,

defendant’s motion for summary judgment with

respect to plaintiff’s claims of retaliatory

action stemming from these alleged retaliatory

acts must be denied.

019

In her third count, Scales alleges a

violation of 42 U.S.C. § 1981. Scales claims

that defendant discriminated against her by

denying her a new employment contract when it

failed to select her for promotion. In count

four, Scales alleges that the retaliation

alleged in count two violated § 1981 as well. In

its motion for partial summary judgment,

defendant argues that the promotion plaintiff

sought, from ANC to NUC, did not involve the

denial of a new employment contract. The Supreme

Court stated in Patterson v, McLean Credit

Union, 109 S. Ct. 2363, 2373 (1989) that

“postformation conduct unrelated to an

employee’s right to enforce her contract...

could not violate § 1981. Moreover, the Court

stated:

The question of whether a promotion

Claim is actionable under § 1981

depends upon whether the nature of

the change in position was such that

it involved the opportunity to enter

into a new contract with’ the

employer.

020

SN ee Smee

eR "Ri eh le ate week,

A ma

a a ee ee ~

Id. at 2377. Copies of job descriptions of the

ANC position and the NUC position show that,

while an NUC is responsible for more supervisory

duties than an ANC, the responsibilities of an

ANC and a NUC are substantially similar. See

Affidavit of Sheila A. McCarthy, exhibits A and

B. There is no indication that a promotion to

NUC would create “a new and distinct relation

between the employee and the employer .. ."

Patterson, 109 S. Ct. at 2377. See also Bvrd v.

Pyle, 728 F. Supp. 1, 2-3 (D.D.C. 1989).

Scales’ claim that defendant’s alleged

retaliation against her violated § 1981 also

cannot succeed. The alleged retaliatory acts did

not relate to the formation or enforcement of a

contract, and are thus not actionable under §

1981 pursuant to Patterson. See. ego, Chambers

v. Southwestern Bell Telephone Co., 917 F.2d 5,

7 (Sth Cir. 1990); see also Lvtle v. Household

Mfa.. oT 430 $.Ce. 1331, 1339 (1990)

(O’Connor, J., concurring). Accordingly,

defendant’s motion for summary judgment on

021

RN as

Scales’ § 1981 claims in counts three and four

will be granted.

In counts five through nine, plaintiff

alleges numerous common law claims, each

stemming from the same alleged discrimination

that gave rise to the Title VII claim. Defendant

argues that counts five through eight fail to

state a cause of action under District of

Columbia law. Moreover, defendant notes that the

Court’s jurisdiction over pendant state claims

is discretionary. A trial court’s decision to

decline jurisdiction over pendant state law

claims that are related to a Title VII claim has

been upheld as appropriate in this circuit,

especially when the relief sought under the

pendant claims is substantially broader than the

equitable relief available under Title VII. See

Bouchet v. National Urban Leaque. Inc., 730 F.2d

799, 805-06 (D.C. Cir. 1984). In counts five

through nine, Scales seeks compensatory and

EW RSE OU TIN Aact annie Cire a Nien

punitive damages totalling $29 million. She has

022

not quantified her request for lost wages and

back pay under Title VII. However, the pendant

requests for $29 million dwarf any possible

claim for monetary damages she could make under

Title VII. Therefore, and because of the

relative merit of counts five through nine and

defendant’s arguments for dismissal of counts

five through eight, on authority of §80uchet,

defendant’s motion for summary judgment on the

pendant claims alleged in counts five through

nine will be granted.

For the reasons stated herein, an

accompanying Order denies defendant’s

Supplemental Motion for Summary Judgment on the

disparate treatment claim in count one, grants

defendant’s motion on the disparate impact claim

in count one, denies defendant’s motion on

plaintiff’s claim for retaliation in count two,

and grants defendant’s Motion for Partial

Summary Judgment on counts three through nine.

023

ON _W"”——-- TTT Tera rcacaccaaasaaascsaa scams

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED MARCH 25, 1991

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

ORDER

For the reasons stated in the accompanying

Memorandum, it is this 22nd day of March, 1991,

hereby

ORDERED: that defendant’s Supplemental Motion

for Summary Judgment is hereby DENIED as to

plaintiff’s disparate treatment claim alleged in

count one, GRANTED as to plaintiff’s disparate

impact claim alleged in count one, and DENIED as

to plaintiff’s claim of retaliation alleged in

count two; and it is further

ORDERED: that defendant’s Motion for

Partial Summary Judgment is hereby GRANTED; and

it ic further

ORDERED: that judgment shall be entered for

defendant on counts three through nine.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED NOVEMBER 18, 1991

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

MEMORANDUM

On March 25, 1991, the Court granted

Summary judgment in févor of defendant on

plaintiff’s section 1981 counts (III and IV) and

on all of her common law counts (V through IX).

In addition, summary judgment was granted on

plaintiff's disparate impact claim under Title

VII. On April 8, 1991 plaintiff filed a motion

requesting reconsideration of the Order granting

partial summary judgment. For the reasons

discussed below, an accompanying Order: denies

plaintiff’s motion for reconsideration with

ee Te

TON Oe eT Ok one ere en ae aad

respect to counts III and IV and the disparate

impact claim reaffirms the Order granting

defendant’s dispositive moticn on counts V, VI,

VIII and IX; vacates the Order granting

defendant’s motion on count VII; and denies

defendant’s motion on this count.

Defendant’s Supplemental Motion for Summary

Judgment on plaintiff’s disparate impact claim

was granted because plaintiff “assumes, rather

than alleges or demonstrates, a causal link

between the[] general practices [alleged] and

any disparate impact." Memorandum of March 25,

1991 [hereinafter Memorandum at 6. In her motion

for reconsideration, plaintiff simply restates

earlier unsuccessful arguments. On the section

1981 counts, plaintiff claims the Court relied

On a nonexistent deposition transcript of

Michael Tillman, plaintiff’s supervisor, and the

affidavit of Sheila McCarthy, whose credibility

she questions, to conclude that "[t]here is no

indication that a promotion to NUC [Nursing Unit

Coordinator] would create ‘a new and distinct

027

relation between the employee and employer . .

."' Motion for Expedited Reconsideration at 4

(quoting Memorandum at 10). This is simply

incorrect. The Memorandum did not rely on either

affidavit in its discussion of the section 1981

counts.' There is no reference to Michael

Tillman’s deposition and the only reference to

the Sheila McCarthy’s deposition was to the

"{cjopies of job descriptions of the ANC

[Assistant Nurse Coordinator] position and the

NUC position" that were attached as exhibits to

the deposition. Memorandum at 10. Accordingly,

plaintiff's motion for reconsideration with

respect to these claims is denied.

Plaintiff also challenges the Court’s

exercise of its discretionary authority in

lThe Memorandum does refer to Michael

Tillman’s deposition testimony in the section

that denies defendant’s motion for summary

judgement on the question of whether defendant

intentionally discriminated against plaintiff;

however, this section is not at issue here. See

Memorandum at 5.

dismissing her pendant common law claims alleged

in counts V through IX of the complaint.

Plaintiff points out, correctly, that the

original complaint alleged diversity of

citizenship and $10,000? in controversy,

providing these claims with an independent basis

of jurisdiction. The claims, therefore, are not

pendant and there is no discretionary authority

to dismiss them. Defendant’s counsel,

overlooking the diversity allegation in the

complaint, had moved for summary judgment on the

common law counts on the theory that they were

pendant. Plaintiff failed to raise the diversity

basis of jurisdiction in her opposition to

defendant’s motion for summary judgment and the

*The Judicial Improvements and Access to

Justice Act, Pub. L. No. 100-702, §201(a), 102

Stat. 4646, enacted November 19, 1988, amended

28 U.S.C. §1332 (a) to raise the jurisdictional

amount from $10,000 to $50,000. By the terms of

the Act, the revision took effect on or after

the 180th day after the enactment, or

approximately May 18, 1989. See Commentary on

the 1988 Revision, Davis D. Siegel, 28 U.S.C.A.

§1332, (West Supp. 1990), at 4. Consequently,

the relevant jurisdictional amount pertaining to

plaintiff’‘s claims remains $10,000.

029

Court ruled on the issue so drawn without

referring sua sponte to the complaint (although

jurisdiction is an issue which can be resolved

sua sponte). The Court, however, did not rely

exclusively on its discretionary authority to

dismiss pendant claims in disposing of

plaintiff’s common law counts.

The March 25, 1991 Memorandum identified

three grounds for granting defendant’s Motion

for Partial Summary Judgment on these counts:

the court’s discretionary authority to deny

pendant state claims; the relative merits of the

counts; and defendant’s arguments for dismissal.

Memorandum at 11. The court granted defendant’s

motion for summary judgment on the merits as

well as on jurisdictional grounds. Nevertheless,

in light of the oversights by all concerned it

is necessary to address more fully the merits of

defendant’s challenge to the common law counts.

Accordingly, the court will treat plaintiff’s

Motion for Expedited Reconsideration based on

diversity alone as a general request for

reconsideration.

Count V of plaintiff’s complaint asserts a

claim for constructive discharge on the theory

that defendant subjected her to such intolerable

working conditions that she was forced to

resign. However, in the District of Columbia "an

employment contract of indefinite duration may

be terminated for any reason by any party." Hall

v. Ford, 856 F.2d 255 (D.C. Cir. 1988). Although

the District of Columbia Court of Appeals has

recently created a public policy exception to

the at-will employment doctrine “when the sole

reason for the discharge is the employee's

refusal to violate the law," the Court

emphasized that this is a "very narrow

exception." Adams _v. George W. Cochran & Co.

Inc., No. 89-374, slip op. at 8 (decided

4 September 17, 1991). In fact, the Court,

following the Texas Supreme Court, noted that

the exception does not extend to an employee

discharged for reporting the illegal activities

5 RRA. NM REMMI AOI a

j of other employees to his employer because the

031

eesti hatte LY lh

employee "‘was not forced to choose between

risking criminal liability {and} being

discharged from his livelihood."’ Id. (quoting

Winters v. Houston Chronicle Publishing Co., 795

S.W.2d 723, 724 (Tex. 1990)). See also Sorrells

v. Garfinckel’s Brooks Brothers Miller & Rhoads

Inc., 565 A.2d 285, 289 (D.C.App. 1989), Ivy v.

Army Times Publishing Co., 428 A.2d 831

(D.C.App. 1981)(en banc). Since the Court of

Appeals did not extend this limited exception to

unlawful acts by an employer, plaintiff's claim

of constructive discharge is barred by the

general at-will employment doctrine.

Plaintiff relies on Clark v. Marsh, 665

F.2d 1168 (D.C. Cir. 1981), to support her

constructive discharge claim. This reliance,

however, is misplaced. Clark specifically

addressed constructive discharge in the Title

VII context. Id. at 1173. The question on appeal

involved the propriety of a backpay award under

Title VII for the period of time following the

plaintiff’s resignation. See id. at 1172-77. The

032

Beterec

li S05 SEO ET i AS

ie oe ao

Wy eos

Witt

United States court of Appeals did not purport

to address District of Columbia law. Therefore,

plaintiff has identified no legal basis for her

position.

Instead, plaintiff claims as a matter of

fact that, given her twenty-year employment by

defendant, she was not an at-will employee.

However, beyond her conclusory assertion that an

employee of twenty years cannot be terminable

at-will, plaintiff has offered no evidence to

Support her contention that she was not an

at-will employee -- i.e., that a contract

existed, either express or implied, for a fixed

period of employment. In Litteil v. Evening Star

Newspaper Co., 120 F.2d 36, 37 (D.C. Cir. 1941),

plaintiff was hired by defendant to develop an

advertising sales plan. After a failed attempt,

she successfully developed a plan that was

adopted by the defendant and she was hired on a

“permanent” basis. Id. She continued to work for

defendant for a “number of years," during which

plaintiff’s plan was implemented by defendant

033

and became very profitable. Id. On these facts,

the Court of Appeals ruled that Littell was an

at-will employee and enunciated the standard for

at-will employment, which is still the law in

the District of Columbia: “The rule is that

unless the parties reveal an intent to enter

into a contract for permanent employment, it

will be regarded as terminable.” In its opinion,

the Court observed

that where no such intent is clearly

expressed, and absent evidence which

shows other consideration than a

promise to render services, the

assumption will be that -- even

though they speak in terms of

“permanent” employment -- the parties

have in mind merely the ordinary

business contract for continuing

employment, terminable at the will of

either party.

Id. Plaintiff need not establish an exact period

of time over which it was agreed the contract

034

BRED Ps

;

would be in force, but simply produce some other

evidence that the parties intended the

relationship to be permanent, even Le

indefinite. See Hodae v. Evans Financial Corp.,

707 F.2d 1566 (D.C. Cir. 1983) (employee who left

job in another city, relocated family, and

accepted lower compensation based on defendant’s

representation of “permanent employment"--i.e.,

that plaintiff was “entitled to stay on unless

the circumstances within the company have

changed"--not at-will). However, an extended

period of employment absent other factors

evidencing the parties’ intent -- e.a., "express

terms of the contract, evidence of surrounding

Circumstances, or the existence of additional

consideration,” id. at 1569, -- does not

transform an at-will arrangement into permanent

employment. Cf. Schoen v. Consumers United

Group. Inc., 670 F. Supp. 367 (D.D.C. 1986)(14

years), Smith v. Chamber of Commerce, 645 F.

Supp. 604 (D.D.C. 1986)(17 or 18 years).

039

SE SS~CN NT TTT a

This presumption that a hiring

unaccompanied by an expression of time or

conditions of employment is at-will, is

rebuttable by circumstantial evidence, gleaned

from the facts and circumstances of the case and

the conduct of the parties, that the parties

Originally intended employment to be for some

measurable duration. See Sullivan v. Heritage

Foundation, 399 A.2d 856, 860 (D.C. 19798(even

employees who left prior employment on

representation that defendant’s by-laws set

annual contracts are employed at will).

Plaintiff proffers no such evidence. See, €.a.,

Transcript cof December 11, 1990 Motion’s Hearing

at 49-52, Plaintiff’s Pretrial Statement at

22-25, Plaintiff’s Opposition to Defendant’s

Motion for Partial Summary Judgment at 19-21;

Statement of Genuine Issues of Material Fact

Which the Record Supports and the Plaintiff

Contends Need to be Litigated at 19-20. “More

than conclusive allegations in the pleadings or

appellants’ belief in the permanence of

11 |

036

FR ne ea a bee tan ae ee

employment are necessary to raise a material

issue of fact precluding the grant of summary

judgment." Sullivan, 399 A.2d at 859. Here the

undisputed facts and applicable District of

Columbia law require the conclusion that she was

an at-will employee. Accordingly, the Order

granting defendant’s motion for summary judgment

on this issue is reaffirmed.

Plaintiff asserts that her employment

contract with defendant "contain[ed] an

implied-in-law provision that the plaintiff

would not be subjected to intentional

discrimination because of her race and in

violation of, inter alia, the statutes on which

Counts I through IV, hereinabove, are

predicated." Complaint at 40. Counts I through

IV are based on Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et. sex, and the

Civil Rights Act of 1866, 42 U.S.C. § 1981.

Plaintiff does not point to any authority to

Support her claim that Title VII and section

1981 create common law causes of action for

037

ESS _”’S:’~S'S:~=S TT

breach of contract.

In a recent opinion, Judge Hogan discussed

the danger of incorporating into employment

contracts, by implication, provisions of

statutes which do not prescribe such

incorporation, saying:

If the Court were to read an implied

contract into the terms of the Mental

Health Services Act, there is no

reason why every statute that grants

a right should not be read that way.

The effect would be widespread--

hundreds of statutes would be

interpreted to create legally

enforceable contract rights.

Russell v. District of Columbia, 747 F. Supp.

72, 79 (D.D.C. 1990). Although Judge Hogan

addressed a different statutory scheme, his

reasoning is equally applicable here. Since

plaintiff has failed to provide any indication

Tle a ad ase le tN NES ay "

that Congress intended Title VII or section 1981

to create common law contract rights, the Order

038

Ne dl Bin EN

SEEN Sea en te ia Ld

granting defendant’s motion for summary judgment

On this issue is likewise reaffirmed.

Plaintiff also alleges that defendant

engaged in fraudulent activity. In particular,

plaintiff claims that defendant falsely

represented itself as an equal opportunity

employer, when in fact, plaintiff alleges, it

was not. Plaintiff claims that her reliance on

these statements resulted in lost opportunities

for career advancement and caused her to apply

for the promotion to the NUC position, which

precipitated this law suit. On re-examination of

the pleadings and other filings in this case, it

appears defendant has failed to establish that

plaintiff’s fraud claim is deficient as a matter

of law. Accordingly, defendant’s motion for

summary judgment on count VII of the complaint

is denied without prejudice. Defendant may

rebrief this issue, allowing adequate time under

the Local Rules for plaintiff to respond, prior

to the pretrial conference.

039

Next, plaintiff alleges that defendant

breached an implied covenant of good faith and

fair dealing. Complaint at 42-43. heaves, <be

District of Columbia does not recognize such a

cause of action. See Minihan v. American

Pharmaceutical Association, 812 F.2d 726, 729

n.2 (D.C. Cir. 1987); Downey v. Firestone Tire

& Rubber Company, 630 F. Supp. 676 (D.D.C.

1986); IVY v. Arms Times Pub. Co., 428 A.2d 831

(D.C. 1981). In her pretrial statement,

plaintiff claims that "([pjurely for the purposes

of judicial economy of time and resources, the

plaintiff hereby dismisses her eighth cause of

action. ..." Id. at 34. Treating this as a

motion to dismiss count VIII of the complaint,

it is granted with prejudice.

E. |

Finally, plaintiff asserts a claim for

intentional infliction of emotional distress. To

prevail on such a claim, plaintiff must show

that “extreme and outrageous" conduct on the

040

BS eas Shia iain al (Mis ncete et Ae Or -

a US Do RO IO att

part of the defendant caused her “severe

emotional distress." See Sere Vv. Group

Hospitalization. Inc., 443 A.2d 33, 37 (D.C.

App.) (quoting Restatement (Second) of Torts §

46 (1965)), cert. denied, 459 U.S. 912 (1982).

The law, however, does not impose liability for

all conduct causing mental distress. The conduct

must be “‘’so outrageous in character, and so

extreme in degree, as to go beyond all possible

bounds of decency."’ District of Columbia v.

Thompson, 570 A.2d 277, 290 (D.C. App. 1990)

(quoting Jackson v. District of Columbia, 412

A.2d 948, 957 (D.C. App. 1980) (quoting

Restatement (Second) of Torts § 46 comment d

(1965), cert. denied, 60 U.S.L.W. 3342 (1991).

Although defendant’s conduct, absent any racial

animus would not rise to this level as a matter

of law, the District of Columbia Court of

Appeals recognizes a public policy exception for

041

conduct that offends the D.C. Human Rights Act.?

It is unnecessary, however, to decide whether

the wrongful act alleged is assault, battery, or

libel. Hunter v. The District of Columbia, No.

88-7265 (decided August 30, 1991). Likewise, if

the wrongful acts alleged by plaintiff violate

3Compare District of Columbia v. Thompson,

570 A.2d 277, 290 (D.C. App. 90) (Court held the

following conduct by supervisor not sufficiently

outrageous to warrant recover: “[he] criticized

her in memorandum after memorandum; he approved

her leave and then changed here status to absent

without leave; he refused to consider her for

promotion to the next grade level or to give her

the computer test she asked for; he isolated her

from other employees; he requested statements

from her doctor as to her limited hours; he

wrote memoranda on her excessive leave; and he

assaulted her and lied about it, resulting in

her job loss") with Howard University v. Best,

484 A.2d 958, 986 (D.C. App. 1984) ("“[a]ctions

which violate public policy [e.g.], the D.C.

Human Rights Act] may constitute outrageous

conduct sufficient to state a cause of action

for infliction of emotional distress:). See

also id. at 986 ("“employer-employee conflicts do

not, as a matter of law, rise to the level of

outrageous conduct"); Hogan v. Forsyth Country

Club, Co., 340 S.E.2d 116, 122-123 (N.C. 1986)

(supervisor’s screaming and shouting at an

employee, calling her names, interfering with

her supervision of subordinates, throwing menus

at her, and finally firing her not extreme and

Outrageous conduct) (quoted in District of

Columbia v. Thompson, 570 A.2ds 277, 290-291

(D.C. 1990)).

042

PW aad hag Was 4 5

setae, Pha bcbg ine aed bes oS Nai DE eM AE RnR 8 9

the D.C. Human Rights Act, then the one-year

period of limitation for this Act would apply

and not the three-year residuary period. See

D.C. Code § 1-2544, Prouty v. National R.R.

Passenger Corp., 572 F. Supp. 200 (D.D.C. 1983).

Neither plaintiff’s complaint nor her other

pleadings alleges facts or proffers evidence

that defendant intentionally caused her

emotional distress by conduct “independent” of

the alleged violations of Title VII and section

1981, and ostensibly the D.C. Human Rights Act.

Hunter, slip op. at 3 (quoting Sanders, 580 A.2d

at 665). Therefore, the one-year statute of

limitation applicable to claims under this Act

applies to plaintiff’s claim. Since the last

discriminatory act plaintiff alleges occurred in

November of 1987 -- i.e>, her constructive

discharge -- and the complaint was filed in

043

March of 1989, sixteen months later, her

emotional distress claim is time barred.

Date: November 15, 1991

UNITED STATES DISTRICT JUDGE

044

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED NOVEMBER 18, 1991

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

ORDER

For the reasons stated in the accompanying

memorandum, it is this 15th days of November,

1991, hereby

ORDERED: that plaintiff's Motion for

Expedited Reconsideration of counts III and IV

of the complaint and the disparate impact claim

is DENIED; and it is further

ORDERED: that the portion of the March 25,

1991 Memorandum and Order granting defendant's

dispositive motion on counts V, VI, VIII and Ix

of plaintiff’s complaint is REAFFIRMED; and it

is further

0495

ORDERED: that the portion of the March 25,

1991 Memorandum and Order granting defendant’s

dispositive motion on count VII of the complaint

is VACATED; and it is further

ORDERED: that defendant’s dispositive

motion on count VII is DENIED without prejudice;

and it is further

ORDERED: that defendant may file a

Supplemental motion on count VII, allowing

adequate time under the Local Rules’ for

plaintiff to respond, prior to the pretrial

conference.

UNITED STATES DISTRICT COURT

046

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED AUGUST 21, 1992

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

MEMORANDUM

This matter is before the Court’ on

‘ defendant’s second supplemental motion for

Summary judgment. Plaintiff, a former employee

of the George Washington University Medical

Center, filed a nine count complaint against

defendant on March 27, 1989, seeking relief

under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2003, et seou (Counts I and II); the

Civil Rights Act of 1866, 42 U.S.C. § 1981

(Counts III and IV); and five common law causes

of action (Counts V through IX). On October 15,

1990, defendant filed a motion for partial

‘

summary judgment relating to all of plaintiff’s

causes of action except those arising under

Title VII and on January 11, 1991, plaintiff

filed a supplemental motion for summary judgment

on the Title VII claims. A March 25, 1991 Order

dismissed the Title VII disparate impact claim,

the 42 U.S.C. § 1981 claims, and all of the

common law causes of action, leaving only the

Title VII disparate treatment claim under Count

I and the Title VII retaliation claim under

Count II.

On April 8, 1991, plaintiff filed oe motion

requesting reconsideration of the grant of

partial summary judgment. A November 18, 1991

Order granted plaintiff's motion only with

respect to Count VII, her common law fraud

claim, denied plaintiff’s motion in all other

respects, and invited defendant to file a

supplemental motion addressing the fraud count.

Defendant filed a motion for summary judgment as

to the remaining common law count and plaintiff

filed an opposition. For the reasons stated

045

Aa WA eg

below, an accompanying Order will =§ grant

defendant’s motion for summary judgment and

dismiss plaintiff’s common law fraud claim.!

The facts of this case are set out in

the November 18, 1991 Memorandum and only a few

relevant facts bear repeating here. Plaintiff

was hired by defendant’s medical center on

October 3, 1966, as a Licensed Practical Nurse.

Over the course of her employment with defendant

prior to 1985 she applied for. several

promotions: some she received, others she did

not. See Scales Deposition at 142-52. In 1986

the position of Nursing Unit Coordinator for

plaintiff’s unit became vacant. Plaintiff was

named Acting Nursing Unit Coordinator in October

' Plaintiff also filed a second motion for

reconsideration, requesting reinstatement of the

section 1981 and the Title VII disparate impact

portions of her complaint in light of the

passage of the Civil Rights Act of 1991. Since

our Court of Appeals has already heard argument,

but has not yet ruled, on the retroactive

application of the Civil Rights Act of 1991, the

accompanying Order will stay consideration of

plaintiff’s motion.

049

1986 and she formally applied for the permanent

position by letter dated October 28, 1985.

Plaintiff was not offered the position. Instead

it was offered to Joan K. Michaels. Ms.

Michaels declined the offer and the position was

readvertised in the Washington Post in February

and March of 1987. The position was then offered

to Ann Cooley in March 1987. On November 24,

1987, plaintiff tendered her resignation, which

became effective on December 8, 1987.

II.

The essential elements of common law fraud

are: (1) a false representation (2) in reference

to a material fact, (3) made with knowledge of

its falsity, (4) with intent to deceive, and (5)

action is taken in reliance on the

representation. Bennett v. Kiaains, 377 A.2d 57,

59 (D.C. 1977), cert. denied, 434 U.S. 1034

(1978). To withstand defendant’s motion for

summary judgment, plaintiff must demonstrate the

existence of disputed material facts as to each

of these five elements. See Celotex v. Corn. v.

050

eA Te oy 2

Dn ri een ee ee Ac G

;

)

Catrett, 477 U.S. 317 (1986). The burden of

proof for a claim sounding in fraud is even

greater, requiring proof "by clear’ and

convincing evidence, which is not equally

consistent with either honesty or deceit."

Bennett v. Kiagins, 377 A.2d at 59.

Plaintiff’s fraud claim has two components.

First, she claims she relied on defendant’s

assertions that it was an equal opportunity

employer in remaining at the University

throughout the time that she was employed there,

resulting in lost opportunities for career

advancement. Second, plaintiff claims that she

specifically applied for the position of Nursing

Unit Coordinator in 1986 in reliance on these

representations.

With respect to the second element, plaintiff

Claims she applied for the Nursing Unit

Coordinator position based on defendant’s

representations that it was an equal opportunity

employer. In her opposition to defendant's

051

motion for summary judgment, plaintiff claims

that she “trusted her employer completely

without any suspicion that she was being

discriminated against because of her race.”

Defendant’s Opposition to Plaintiff’s Second

Supplemental Motion for Summary Judgment at 56.

However, plaintiff’s allegations that she was

not aware of the alleged discrimination by

defendant’s medical center until she applied and

was rejected for the Nursing Unit Coordinator

position are not supported by her own deposition

testimony.

Plaintiff testified that from 1974 to 1984

she had conversations her supervisor, Nursing

Unit Coordinator Edna Hamilton, in which

she would always tell [plaintiff]

about the problems she was having

because she was black and how

[plaintiff] as a black staff nurse

. would have to do or work twice as

hard in order to better [{her]jself or

to do better in whatever profession

[she] took. . . . [O]ver the period

of time she did refer to the fact

that being black, you just had to

work harder and it was a big problem.

052

(iiRvea ena Acie SH inetd ie a

DRE eeCLerMe ttotee Shae re

Scales Deposition at 156. With respect to

‘defendant’s medical center in particular,

plaintiff testified that Ms. Hamilton told her

that because [plaintiff was] black,

{she] would have to work harder if

([she] wanted a promotion, [she] would

have to do better on the unit, [she]

would have to exceed in [her]

evaluation, [{she] would have to excel

in [her] performance in order to get

promotions, or what have you.

Id. at 157. Hamilton also told plaintiff that

she “would have to perform better than [her]

white counterparts in order to better [her]self,

in order to get the promotion." Ids Finally,

plaintiff testified that in July of 1984 she

received a performance appraisal that she felt

was "“unfair" and was motivated by "racial

animus." Id. at 157-61. Plaintiff proffered no

probative evidence to the contrary.

This uncontroverted testimony, out of

plaintiff's own mouth, establishes that

regardless of what plaintiff may have believed

regarding defendant’s assertions that it was an

equal opportunity employer when she was hired in

053

1966, at some time between 1974 and 1984, and

certainly no later than July of 1984, plaintiff

was not acting or forebearing in reliance on

such assertions. Without reliance, plaintiff

cannot establish her claim that defendant’s

representations that it was an equal opportunity

employer was a material factor in her decision

to apply for the Nursing Unit Coordinator

position in 1986. See Hercules & Co. v. Shama

Restaurant Corp., 566 A.2d 31, 39 n.16 (D.C.

App. 1989).

Plaintiff filed her complaint on March 27,

en eee Ree en ee eee, Le en ee ee

1989. Since the remaining allegations of fraud

occurred prior to March 27, 1986, plaintiff's

claim is governed by the three years statute of

limitations. See D.C. Code § 12-301(8).

ey ee ee

Plaintiff argues that the statute of limitations

was tolled by defendant’s fraudulent concealment

of its discriminatory practices. "The doctrine

of fraudulent concealment applies only when the

defendant does ‘something of an affirmative

054

nature designed to prevent discovery of the

cause of action."’ Woodruff v. McConkey, 524

A.2d 722 (D.C. App. 1987)(citing William J.

Davis. Inc. v. Young 412 A.2d 1187, 1191, 1192

(D.C. App. 1980)). Plaintiff has failed to

allege any such affirmative concealment by

defendant. Moreover, "a well established defense

to a claim of fraudulent concealment is that the

plaintiff knew, or by the exercise of due

diligence could have known, that [s]Jhe may have

had a cause of action." Estate of Chappelle v.

Sanders, 442 A.2d 157, 158 (D.C. App.

1982)(citing Weisberq v. Williams. Connells &

Califano, 390 A.2ad 992 (D.C.App. 1978).

Plaintiff had conversations with Ms. Hamilton

which revealed defendant’s alleged

discriminatory practices as early as 1974.

Hamilton was plaintiff’s supervisor and Nursing

Unit Coordinator and it is reasonable to infer

that Hamilton had apparent authority vis a vis

plaintiff to make representations on behalf of

defendant. In addition, plaintiff was

0509

necessarily aware of any decisions or actions

adverse to her contemporaneously with their

being made. Thus, it is apparent and beyond

material dispute that plaintiff knew, or by the

exercise of due diligence could have known, that

she had a cause of action more than three years

before she filed the Complaint.

Plaintiff argues that she was unaware of

the discrimination around her until after her

second rejection for the Nursing Unit

Coordinator position because outside work she

was "“‘in a very insulated environment.’

Defendant’s Opposition at 6 (quoting Deposition

of Lennox E. Joseph, Ph.D. at 72-73). But the

fact that she was unaware of some of the

discrimination allegedly practiced by defendant,

or the full extent of it, does not overcome the

uncontroverted direct evidence that her

Supervisor, Ms. Hamilton, advised plaintiff of

specific discrimination in her work environment

more than three years before plaintiff filed

this suit. This undisputed fact defeats any

056

claim of fraudulent concealment sufficient to

toll the statute of limitations.

Date: August 21, 1992

UNITED STATES DISTRICT JUDGE

;

at * . 2. ,

8. RGA be Be bee athe Wed ae DD i den hh CM orndan) Ml

eee a ee

bho atateiss

iat seat MSA as tpt!

057

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED AUGUST 21, 1992

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

ORDER

For the reasons stated in the accompanying

Memorandum, it is this 20th day of August, 1992,

hereby

ORDERED: that defendant’s motion to dismiss

is GRANTED; and it is further

ORDERED: that Count VII of the complaint is

DISMISSED; and it is further

ORDERED: that consideration of plaintiff’s

second motion for reconsideration is stayed

until the Court of Appeals for the District of

058

Columbia rules on the retroactive application of

the Civil Rights Act of 1991.

UNITED STATES DISTRICT JUDGE

059

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED FEBRUARY 9, 1993

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

MEMORANDUM

This matter is before the Court on

plaintiff's "Motion For Reinstatement of Counts

III, IV and the Disparate Impact Portion of Her

Complaint," and plaintiff’s "Supplemental Motion

For Reconsideration of the Order Filed August

21, 1992 Dismissing Plaintiff’s Seventh Count."

Plaintiff, a former employee of the George

Washington University Medical Center, filed a

nine-count complaint against defendant seeking

relief under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et sect, the Civil

Rights Act of 1866, 42 U.S.C. § 1981, and five

060

common law causes of action. The facts and

procedural background of this case are set out

in Memoranda filed on March 25, 1991, November

18, 1991, and August 21, 1992. All of

plaintiff’s claims have been dismissed on

motions for summary judgment with the exception

of the disparate treatment and retaliation

claims under Title VII alleged in Counts I and

II.

In the first of the motions presently

before the Court, plaintiff seeks reinstatement

of her Title VII disparate impact claims and her

§ 1981 claims. These claims were dismissed on

March 25, 1991 for the reasons stated in the

Memorandum filed on that date. Plaintiff's first

motion for reconsideration was denied on

November 18, 1991. Consideration of the present

motion, which seeks reconsideration a second

time, was stayed on August 21, 1992 pending a

ruling by the Court of Appeals on _ the

retroactive application of the Civil Rights Act

061

of 1991. See Memorandum at 2 n.1l (Aug. 21,

1992).

Plaintiff’s § 1981 claims were dismissed on

the authority of Patterson v. McLean Credit

Union, 491 U.S. 164 (1989). Plaintiff argues

that the § 1981 claims should be reinstated

because Patterson has been overruled by the

Civil Rights Act of 1991. Plaintiff’s argument

is foreclosed by the Court of Appeals’ decision

in Gersman v. Group Health Ass’n. Inc., 975 F.2d

886, 900 (D.C. Cir. 1992), which held that the

“substantive” provisions of the Civil Rights Act

of 1991 do not apply retroactively. The fact

that the conduct at issue here occurred before

the Patterson decision is “of no legal effect.”

Ids at 899.

The same fate befalls plaintiff’s disparate

impact claims. Those claims failed to meet the

requirements articulated in Wards Cove Packing

Co. v. Atonio, 490 U.S. 2115 (1989), which has

also been overruled by the Civil Rights Act of

1991. The relevant amendments here are clearly

062

substantive, and therefore cannot save

plaintiff’s claims under Gersman. Plaintiff's

further arguments fail to overcome the original

basis for dismissal of the disparate impact

claims: plaintiff has failed to show specific

employment practices causally linked to any

disparate impact upon her. See Memorandum at 5-7

(March 25, 1991); Memorandum at 1-2 (Nov. 18,

1991).

For these reasons, plaintiff’s Motion For

Reinstatement of Counts III, IV and the

Disparate Impact Portion of Her Complaint will

be denied.

Il.

Plaintiff’s second motion seeks

reinstatement of Count VII, a common law claim

for fraud, which was dismissed on August 21,

1992. As explained in the Memorandum filed on

that date, the five elements of common law fraud

are: (1) a false representation, (2) in

reference to a material fact, (3) made with

knowledge of its falsity, (4) with intent to

063

deceive, and (5) action is taken in reliance on

the representation. Bennett v. Kiagins, 377 A.2d

57, 59 (D.C. 1977), cert. denied, 434 U.S. 1034

(1978). Plaintiff claims that she relied on

defendant’s representations that it was an equal

opportunity employer in remaining at the

University and in applying for the position of

Nursing Unit Coordinator.

In the August 21, 1992 Memorandum, the

second and fifth elements of fraud were found

lacking for purposes of surviving defendant’s

motion for summary judgment. In her deposition,

plaintiff testified that from 1974 to 1984 she

had conversations with her supervisor, Nursing

Unit Coordinator Edna Hamilton, in which

Hamilton “would always tell me about’ the

problems she was having because she was black

and how. . . I as a black staff nurse...

would have to do or work twice as hard in order

to better myself or to do better... ." Scales

064

ye a wee oe

iio Pek hah

Dep. at 155. Such statements reveal that

regardless of what plaintiff may have

believed regarding defendant’s

assertions that it was an equal

opportunity employer when she was

hired in 1966, at some time between

1974 and 1984, and certainly no later

than July of 1984, plaintiff was not

acting or forebearing in reliance on

such assertions.

Memorandum at 5 (Aug. 21, 1992).

In the present motion for reconsideration,

plaintiff raises several objections to this

conclusion. First, plaintiff suggests that the

Statements made by Hamilton were made only

recently. But plaintiff’s testimony clearly

states that the discussions occurred “[o]ver the

course of [her] employment with" Hamilton, which

lasted only to 1984.! Second, plaintiff

suggests that Hamilton’s statements were merely

general statements not specifically directed at

the University. Plaintiff’s suggestion is belied

by her deposition testimony. A careful

‘tn addition, plaintiff testified to a July

1984 performance evaluation that she believed at

the time was “unfair” because of “racial

animus." Scales Dep. at 157-60. Thus,

plaintiff believed by 1984 not only that the

University discriminated on the basis of race,

but that the University had discriminated

against her on the basis of race.

065

examination of that testimony reveals that the

discussions of racial discrimination were, at

least in part, specifically focused on the

University.’

Plaintiff argues finally, and most

vigorously, that the statements from her

deposition were nothing more than an expression

of a viewpoint fundamental to her cultural

heritage and values as a Black American. She

attaches affidavits explaining this point and

purporting to reconcile the disputed statements

with the contention that she relied on

defendant's representations that it was an equal

opportunity employer. There are several

responses to plaintiff’s argument. First, when

read in context, it is clear that at least some

*For example, defense counsel asked

plaintiff: “What specific problems at the

University did [Hamilton] discuss with you?"

Plaintiff responded: “She discussed the problem

that because I’m black, I would have to work

harder, if I wanted a promotion, I would have to

do better on the Unit... ." Defense counsel

proceeded to inquire: "Did she tell you that you

would have to perform better than the whites

within your unit for her to give you a better

evaluation?" Plaintiff responded: “She told me

that I would have to perform better than my

white counterparts in order to better myself, in

order to get the promotion.” Scales Dep. 156-

57; see also supra note l.

‘

066

of the statements in plaintiff's deposition do

reveal her awareness of discrimination at the

University (and, in fact, affecting her). To the

extent that plaintiff now attempts to contradict

that conclusion in her newly filed affidavits,

such an effort to create a genuine issue of fact

must fail. Pyramid Securities Ltd. v. IB

Resolution. Inc., 924 F.2d 1114, 1123 (D.C. Cir.

1991). It is noteworthy in this regard that

plaintiff reviewed her deposition testimony

after giving it and declined to make any

corrections to the passages at issue here,

although she corrected other portions of her

testimony. Any attempt to create a genuine issue

of fact in this manner is particularly

inappropriate on a motion for reconsideration,

given that the recent affidavits were not

presented in plaintiff's original opposition to

defendant’s motion for summary judgment on the

fraud count.

Second, if the plaintiff's broader

explanation of her deposition testimony does not

contradict that testimony, it also does not

establish a genuine issue of material fact as to

the second and fifth elements of a fraud claim.

Plaintiff’s explanation conveys the idea that

plaintiff, as a Black American, was always

O67

taught that she had to work twice as hard as

whites in order to advance equally. That

proposition implies a belief that discrimination

is ubiquitous in our society, and such a belief

tends to undermine an assertion of reliance on

any institution’s representation that it is an

equal opportunity employer. In any event,

plaintiff fails to undermine in a credible

manner the evidence that she was made aware of

discrimination at the University.

Finally, even if plaintiff had shown that

genuine issues of material fact exist as to the

second and fifth elements of fraud, the instant

motion would have to be denied on separate

grounds. Plaintiff has also failed to meet her

burden under Velotex Corn. v. Catrett, 477 U.S.

321 (1986), of demonstrating disputed facts as

to the third and fourth elements of fraud.

Plaintiff has not presented evidence showing

that defendant’s representations that it was an

equal opportunity employer were made with

knowledge of their falsity or with the intent to

deceive.

Accordingly, plaintiff’s Supplemental

Motion For Reconsideration of the Order Filed

August 21, 1992 Dismissing Plaintiff’s Seventh

Count will be denied.

068

;

Tit.

One final point deserves brief mention.

Plaintiff’s filings with the Court contain

repeated invocations of plaintiff's right

to a trial by a jury of her peers "consisting of

members of the plaintiff’s race." Counsel for

the plaintiff may wish to bear in mind the

Supreme Court’s admonition that a private

litigant in a civil case may not use peremptory

challenges to exclude jurors on account of their

race. Edmonson v. Leesville Concrete Co., 111 S.

ct. 2077 (1991).

* 2 &# 2 €

For the foregoing reasons, it is this 8th

day of February, 1993, hereby

ORDERED: that plaintiff's Motion For

Reinstatement of Counts MIITI, Iv and the

Disparate Impact Portion of Her Complaint should

be, and is hereby, DENIED; and it is further

ORDERED: that plaintiff's Supplemental

Motion For Reconsideration of the Order Filed

August 21, 1992 Dismissing Plaintiff’s Seventh

Count should be, and is hereby, DENIED.

UNITED STATES DISTRICT COURT

069

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED JULY 27, 1993

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

MEMORANDUM

This action was brought under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

it sect, and was tried to the bench for twelve

days from April 19, 1993 through May 5, 1993. In

Count I, plaintiff alleges disparate treatment

in connection with her nonselection for the

position of Nursing Unit Coordinator at

defendant’s Medical Center. In Count II, she

alleges unlawful retaliation for her filing of

charges with the Equal Employment Opportunity

070

iE)

Pl at A

Commission (EEOC).!

After the close of Plaintiff’s case,

counsel presented extensive arguments on

defendant’s motion for judgment pursuant to

Federal Rule of Civil Procedure 52(c).? On the

basis of the findings and for the reasons stated

below, defendant’s motion will be granted: the

defendant failed to select Plaintiff as a

Nursing Unit Coordinator not as €@a result of

intentional discrimination, but because both

‘Several additional claims raised in

plaintiff’s complaint were dismissed in previous

rulings on summary judgement. See Memoranda and

Orders dated March 25, 1991, November 18, 1991,

August 21, 1992 & February 9, 1993.

"Effective 1991, Rule 52(c) replaced a

portion of the former Rule 41(b), which

authorized a dismissal at the close of the

plaintiff’s case if the plaintiff had failed to

Carry an essential burden of proof. See

Advisory Committee Note to Fed. R. Civ. P. 52

(1991 Amendment). Rule 52(c) provides in

relevant part: If during a trial without a jury

a party has been fully head with respect to an

issue and the court finds against the party on

that issue, the court may enter judgement as a

matter of law against that Party on any claim

that cannot under the controlling law be

maintained or defeated without a favorable

finding on that issue

071

i |

persons selected were better qualified for the

job; nor has she carried her burden of proving

that she was the victim of retaliation.

I. FINDINGS OF FACT

Plaintiff, a black female, was first hired

by defendant’s Medical Center in 1966 as a

Licensed Practical Nurse I (LPN I). In 1972,

plaintiff was promoted to Licensed Practical

Nurse II (LPN II).

Plaintiff received an Associate of Arts

degree in 1974. She was promoted to Staff Nurse

I (SN I) in June of 1974, and to Staff Nurse II

(SN II) in July of 1976.

In 1979, plaintiff received the degree of

Bachelor of Science in Nursing. In 1981, she was

promoted to Assistant Nurse Coordinator (ANC).

The position of Nursing Unit Coordinator

(NUC) is equivalent to a Head Nurse position for

a unit of a medical center or hospital. The

position entails supervisory responsibility over

all nurses on the unit.

072

ay a, See a Oe ane art eT ae “

In 1985, the NUC position for plaintiff's

unit, 5-South, became vacant with the departure

of Edna Hamilton, a black female. Janet

Vickery, a white female, was appointed to the

position of Acting NUC for 5-South. Plaintiff

did not apply for the position of Acting NUC at

that time. Shortly thereafter, Tammy Sparks-

Jenet, a white female, was appointed to the

permanent position of NUC for 5-South.

Plaintiff did not apply for the permanent NUC

position.

In 1985, the NUC position for plaintiff’<

unit, 5-South, became vacant with the departure

of Edna Hamilton, a black female. Janet Vickery,

a white female, was appointed to the position of

Acting NUC for 5-South. Plaintiff did not Apply

for the position of Acting NUC at that time.

Shortly thereafter, Tammy Sparks-Jenet, white

female, was appointed to the permanent position

of NUC for 5-South. Plaintiff did not apply for

the permanent NUC position.

073

In October 1986, the position of NUC for

5-South again became vacant when Tammy

Sparks-Jenet was promoted to the position of

Associate Director of Nursing.

Plaintiff formally applied for the

permanent position of NUC for 5-South by letter

dated October 28, 1986. Plaintiff was named

Acting NUC for 5-South effective November 2,

1986.

When plaintiff applied for the NUC

position, the principal decisionmaker charged

with selecting an applicant for the position was

Michael Tillman, 4 white male, who was then

Associate Director of Nursing for defendant’s

Medical Center. Selection for the position was

made in consultation with and with the approval

of Sheila McCarthy, 4 white female, who was

Director of Nursing for the Medical Center.

The factors considered by Tillman and

McCarthy in filling the NUC position were: (1)

education; (2) experience; and (3) performance

during the interview process. In addition,

074

Tiilman and McCarthy took into consideration the

fact that 5-South was the largest unit in the

Medical Center and historically had been a

difficult unit to manage properly. As a result,

they deemed it important to select an individual

with strong management skills.

The minimum qualifications for the position

of NUC were: (1) a Master's degree in Nursing or

the equivalent combination of education and

experience; (2) three years of current clinical

experience in the particular clinical area; (3)

at least one year of supervisory experience; and

(4) current District of Columbia licensure as a

Registered Nurse. Plaintiff met the minimum

qualifications for the position of NUC.

Plaintiff was interviewed for the 5-South

NUC position on November 20, November 21,

November 24 and November 26, 1986. Plaintiff's

interviews did not include a lunchtime interview

with personnel in NUC positions of other units.

At the time of her interviews, plaintiff

had served as an ANC for approximately 5 years

075

(from 1981 to 1986), and had served as Acting

NUC for a few weeks.

At the time of her interviews, plaintiff

had no credits toward a Master’s degree and was

not admitted into an M.S.N. program. She was,

however, enrolled in a Personnel Management

course at defendant’s School of Continuing

Education.?

Joan Michaels, a white female and outside

applicant for the 5-South NUC position, was

interviewed on November 10, 1986.

Michaels’ interviews included a lunchtime

interview with personnel in NUC positions of

other units.

Michaels previously had been considered and

rejected for the position of NUC for an oncology

3During the early 1980's, defendant had

established an M.S.N. program for its nurses in

conjunction with Marymount University. In July

1987, after the 5-South NUC position was filled

(as described infra), plaintiff was admitted

into an M.S.N. program at Marymount University.

She began taking courses there in September

1987.

076

unit (2-East) at the Medical Center in September

1986.

Michaels was recommended for the NUC

position for 5-South by all of the interviewers

with the exception of Gina Brooks. Brooks, a

black female, recommended that the position be

given to plaintiff. Tillman and McCarthy

considered Michaels’ performance in the

interview process to be substantially superior

to that of plaintiff. The interviewers gave

Michaels “rave reviews" and considered her

"dynamite," while most were “lukewarm" about

plaintiff’s performance in the interviews.

Testimony of Tillman; accord Testimony of

McCarthy.‘

“This testimony of Tillman and McCarthy was

elicited in plaintiff’s case, and, like the bulk

of their testimony, was uncontradicted by any

evidence offered by plaintiff.

Plaintiff’s assertion that she performed

very well during her interviews is not supported

by any evidence in the record aside from her own

personal opinion. Her opinion on this point is

inherently unreliable as well as irrelevant.

Gina Brooks, one of the interviewers, testified

that she did not recall plaintiff’s interview.

077

Michaels was within a semester of

completing her M.S.N. degree, while plaintiff

had not completed any credits toward an M.S.N.

and had not been admitted into an M.S.N.

program. Thus, Michaels’ educational

qualifications were substantially superior to

those of plaintiff.

ie Michaels’ work experience was also superior

to that of plaintiff. In particular, Michaels

had held the position of Head Nurse -- which is

equivalent to the position of NUC -- at Sibley

Memorial Hospital for three years. Plaintiff had

been Acting NUC for only a few weeks.

On or about December 11, 1986, Michaels was

offered the position of NUC for 5-South.*° The

decision of Tillman and McCarthy to offer the

position to Michaels was based upon the

determination that Michaels exceeded plaintiff

StThe statement by Gina Brooks that Michaels

told her during her interview that she

(Michaels) had been offered the position of NUC

for 5-South is inadmissible hearsay and is

stricken.

078

in all three categories of education, experience

and interview performance.® The evidence shows

that plaintiff’s race did not play a part in the

decision to offer the job to Michaels instead of

plaintiff.

In mid-January 1987, Michaels turned down

the position of NUC for 5-South.

Tillman subsequently decided to

re-advertise the position rather than to allow

‘Plaintiff pointed to certain elements of

the interview process as indicative of

discriminatory animus. however,

nondiscriminatory and credible explanations for

each of the elements were provided by

defendant's decisionmakers during plaintiff’s

case, and those explanations were essentially

unrefuted. Thus, Michaels’ and Cooley’s

interviews took place during a single day

because they were outside candidates and such an

arrangement was necessary to accommodate their

schedules. The two outside candidates had

lunchtime interviews for the same because of

Tillman’s desire to avoid a "popularity contest"

judged by the internal candidate’s peers.

Finally, Tillman’s directives to the

interviewers to avoid questions that presupposed

know\ledge about dependant’s Medical Center in

no way indicates improper bias; rather, it was

a reasonable means of maintaining a level

playing field amount the applicants. Any

anomaly shown by plaintiff in the interview

process was not probative of discrimination.

079

plaintiff to be promoted to NUC by default. The

decision to re-advertise, in which McCarthy

participated and concurred, was based on several

considerations. First, Tillman desired to have

more than one qualified applicant in the

selection pool.

Second, Tillman and McCarthy considered

plaintiff’s prior performance in the interview

process to be less impressive than they would

like to see in a candidate for the position. For

example, in Tillman's view, plaintiff had shown

a lack of sensitivity to the importance of

process in communication and had failed to

propose ways of encouraging staff involvement.

Third, Tillman gave Rome consideration to

plaintiff's performance as Acting NUC for

5-South, which he had a reasonable opportunity

to observe by January 1987. Although not ruling

out plaintiff as a viable candidate, Tillman did

have some concerns based on her performance,

including her communication style, which he

080

thought tended to cut off discussion and the

exchange of ideas.

The decision to re-advertise the position

of NUC for 5-South was not racially motivated.

The position was re-advertised in the

Washington Post in early 1987. In response to

the advertisement, Ann Cooley (subsequently Ann

Cooley Pierpont), a white female and outside

applicant, submitted an application.

Cooley was interviewed for the 5-South NUC

position on March 13, 1987. Her interviews

included a lunchtime interview with personnel in

NUC positions of other units.

Cooley was recommended by all of the

interviewers with the exception of Gina Brooks,

who recommended against offering the position to

Cooley. Tillman and McCarthy considered Cooley's

performance in the interview process to

be-substantially superior to that of plaintiff.

At the time of her interviews, Cooley

already had received an M.S.N. degree in nursing

administration. Plaintiff had not been admitted

081

into an M.S.N. program and had completed only a

single course in personnel management. Cooley

also had a medical-surgical certification that

plaintiff did not have. Thus, Cooley’s

educational qualifications were substantially

superior to thosé of plaintiff.’

Both plaintiff and Cooley had several years

of ANC experience at defendant’s Medical Center,

as well as experience as Acting NUC with the

Medical Center. In addition, however, Cooley had

held the NUC-equivalent position of Head Nurse

at National Rehabilitation Hospital for the past

two years. In that role, Cooley had started up

a new unit at the Hospital, experience that

Tillman and McCarthy considered particularly

important for the management of the large and

challenging 5-South unit. Tillman and McCarthy

reasonably deemed Cooley’s work experience

superior to that of plaintiff.

7See supra note 4.

082

HO RN AD A iy WA ak AE UN ml iW RO toe Rin Hal okie wAtatiaes ies a

Se CT

In addition to education, experience and

interview performance, Tillman considered

-plaintiff’s performance as Acting NUC, which, by

March 1987, he had observed for four months. In

his view, plaintiff’s performance was less than

fully satisfactory. Tillman noted plaintiff's

inability to understand concepts discussed

during staff meetings, her lack of leadership

ability in handling staff concerns about

providing nursing care for a critical care

patient in a general unit, her style of keeping

her office door closed and her continued

tendency to cut off discussions rather than

encourage open-ended communication.°

8 The only competent and reliable evidence

offered by plaintiff that arguably traverses

these specific concerns regarding plaintiff’s

performance was the testimony of Gina Brooks.

However, Brooks’ testimony did not Specifically

contradict several of the concerns expressed by

Tillman. Moreover, to the extent that Brooks

expressed a different view regarding plaintiff’s

performance -- in her statement that plaintiff

had strong leadership abilities -- her testimony

is not inconsistent with Tillman’s reasonable

belief to the contrary, particularly given that

Tillman was charged with supervising and

evaluating plaintiff. Even as to the one

083

In April 1987, Cooley was offered the

position of NUC for 5-South. The decision to

offer the position to Cooley was based on the

candidates’ education, experience and interview

performance and plainciff’s performance as

Acting NUC; it was not based on race.

In mid-April 1987, plaintiff filed a charge

of discrimination with the EEOC, claiming that

the denial of the NUC position was racially

discriminatory. She notified Tillman of the

filing of the discrimination charge.

Seemingly "objective" point on which there is

direct disagreement -- whether plaintiff

frequently kept her office door closed -- the

dispute may be largely a matter of perception.

In any event, plaintiff has not Shown that

these concerns about plaintiff's performance

were not sincerely believed by defendant's

decisionmakers. Further, the testimony of

Tillman and McCarthy is more reliable than that

of Brooks, for it is more specific, it is

supported by the documentary evidence, and

Tillman and McCarthy were in 4 superior position

to review plaintiff’s work.

Finally, even without the concerns

regarding plaintiff’s performance as Acting NUC,

Cooley’s superior qualifications in the three

areas of education, experience and interview

performance were sufficient to justify the

selection of Cooley instead of plaintiff.

084

BR Cadre ran teh att SARE tee

On May 19, 1987, Cooley began her

employment with defendant’s Medical Center.

By letter dated May 25, 1987, plaintiff

complained to McCarthy about a lack of support

from Tillman in the performance of her duties as

Acting NUC for 5-South. In her letter, plaintiff

stated that Tillman had not permitted her to

attend meetings on May 21 and May 22, 1987. The

letter did not mention any refusal to allow

plaintiff to attend earlier meetings, or her

assertion that the lack of support was due to

retaliatory animus on Tillman’< part.

McCarthy met with plaintiff after receiving

the letter. During that meeting, plaintiff did

not mention any retaliatory or discriminatory

motive, and McCarthy told plaintiff to attempt

to resolve her difficulties directly with

Tillman.

On June 14, 1987, plaintiff was officially

returned to her previous position as ANC.

On June 26, 1987, Tillman asked plaintiff

to reconsider the performance appraisals of the

085

other ANC; that she had prepared while Acting

NUC. Tillman expressed concern that all of the

ANCs had been rated as “exceeds requirements” in

all categories, and that no areas of improvement

had been identified for any of the ANCs. Such

ratings appeared particularly inappropriate, in

Tillman's view, because of a series of narcotics

violations on 5-South reflecting the ANCs’

failure to supervise properly the handling of

narcotics by lower-level employees.’

Plaintiff's own performance evaluation for

1986-87, which was prepared by Tillman,

reflected an overall rating of “exceeds

requirements. In each specific category

plaintiff was rated either “meets requirements”

or “exceeds requirements.”

Tillman submitted a copy of plaintiff’s

1986-87 evaluation to the Payroll office before

%Pillman’s explanation of his directive to

reconsider the evaluations was uncontradicted.

Tillman issued the directive for the reasons

stated and not in retaliation for plaintiff’s

filing of a discrimination charge.

086

EEE

showing it to plaintiff in order to ensure that

her pay raise would be processed promptly.!°

Tillman had left the "position title” and other

sections of the first page of the evaluation

form blank when he showed it to plaintiff on

July 14, 1987. Upon being provided with oral

comments by plaintiff, Tillman completed the

first page of the evaluation and submitted the

Original to Personnel. Plaintiff refused to sign

the evaluation and told Tillman that she would

provide written comments.

There is no reliable evidence that Tillman

treated plaintiff differently or took any

adverse action because of plaintiff's filing of

a discrimination charge with the EEOC.!!

Plaintiff has failed to introduce any

Support for her repeated suggestion that Tillman

diverged from common practice in the manner in

which he forwarded a copy of plaintiff's 1986-87

evaluation to Payroll to ensure timely receipt

of her pay raise.

"plaintiff alleged a lack of support from

Tillman both before and after the filing of her

discrimination charge, negating the inference of

a@ causal connection between the filing and the

alleged lack of support. The meetings from which

087

Plaintiff testified to some difficulties

she experienced with Cooley, the new NUC ‘for

5-South, involving plaintiff's work schedule and

the placement of some negative information in

plaintiff’s file. Plaintiff initially testified

that these incidents reflected retaliatory

motivation on Cooley’s part. Upon further

examination, however, plaintiff effectively

retracted her earlier statement and admitted

that the problems were simply due to Cooley’s

lack of familiarity with defendant’; personnel

procedures. |

In any event, there is no evidence of a

causal connection between Any adverse action of

Cooley and plaintiff’s filing of the

discrimination charge.

plaintiff allegedly was excluded took piace

after Cooley’s arrival, and there is no

indication that plaintiff should have been

present in addition to Cooley. Similarly, there

is no reliable evidence that any of the other

actions put forward by plaintiff had anything to

do with the filing of plaintiff’s EEOC charge.

088

oe Lt wana ae Fa dant sa

On November 24, 1987, plaintiff tendered

her resignation, effective December 8, 1987.

Plaintiff resigned voluntarily. There is no

evidence that plaintiff faced circumstances in

her employment under which a reasonable employee

would have felt forced to resign.

Plaintiff presented statistical evidence

reflecting the racial composition of the Medical

Center’s workforce between January 1981 and

August 1989. For example, of the 532 individuals

in nursing management positions during this

period, 84.9 percent were white, while 10.8

percent were black. Of the Medical Center’; 60

NUCS (within the nursing management category),

86.7 percent were white and 8.3 percent were

black. In the combined total of nursing

management and professional positions requiring

an R.N. license, 82.7 percent of the 3,085

individuals were white, while 10.6 percent were

black.

Of the 2,967 individuals in nonmanagement,

non-R.N.-required positions (including patient

089

escort, secretarial and clerical positions), 69

percent were black and 19 percent were white.

There is no reliable evidence that the

‘MedicAl Center’s workforce was intentionally

segregated on the basis of race. The evidence

reveals that defendant administered Equal

Employment Opportunity and Affirmative Action

policies in employment decisions for its Medical

Center before, during and after the events

directly at issue in this case. Defendant

engaged in efforts to recruit black nurses for

the Medical Center’s professional and management

positions.”

plaintiff repeatedly refers to 4 statement

of an unnamed doctor in * January 1987 report

that the Medical Center has “an understructure

of Black underpaid workers who have a

camaraderie among themselves, but who do not

give a damn about the hospital institution as a

whole" and that "“[racial Separation on the basis

of race is extremely strong." Plaintiff's use of

these statements is inadmissible hearsay, and

the document in question was expressly admitted

not for the truth of the matter asserted, but to

show McCarthy's knowledge of the document.

McCarthy testified not only that defendant

engaged in efforts to recruit blacks prior to

issuance of the 1987 report, but that defendant

intensified its recruitment efforts after

0390

The ultimate facts are that both Michaels

and Cooley were better qualified to be NUC for

5-South than was plaintiff, defendant had

nondiscriminatory reasons to re-advertise the

position when Michaels proved not to be

available, and defendant ultimately selected

Cooley instead of plaintiff for the position for

nondiscriminatory reasons.

II. CONCLUSIONS OF LAW

Plaintiff has attempted to meet the burden

of proof on her discrimination claim in three

ways. First, she offered statistical evidence

purporting to establish disparate treatment of

plaintiff and other black employees. Second, she

attempted to show patterns and practices of

discrimination through the use of comparative

charts. Finally, she attempted to. prove

individual disparate treatment using the

indirect method of proof established by

issuance of the report.

091]

McDonnell Douglas Coast. v. Green, 411 U.S. 792

(1973).

As explained more fully below, because

plaintiff has failed to carry her burden of

proving discrimination against her, and because

of the order in which The presented her case, it

is ultimately unnecessary to decide whether she

has established a prima facie case; in any

event, plaintiff has offered insufficient

evidence -in the form of either direct evidence

Or circumstantial evidence that defendant's

offered reasons were pretextual -- that

defendant’s action in not selecting plaintiff

for the 5-South NUC position was based on race.

Reliakle and probative statistical evidence

may be used to establish a prima facie case of

disparate treatment under Title VII. See Davis

v. Califano, 613 F.2d 957, 962 (D.C. Cir. 1979).

Cn April 19, 20 and 21, 1993, plaintiff

presented testimony from and a variety of charts

prepared by Dr. Jonathan W. Work, who was

educated and has worked for several years on

092

684d saiontehaeieeke Biey

om iirc set eat Mine toi

issues of discrimination in the workplace and in

the field of econometrics. Work was

conditionally qualified to testify as an expert

on the racial composition of defendant’s

workplace and how that composition came about.

Initially, Dr. Work presented his findings

regarding the employment of blacks at

defendant’s Medical Center. Dr. Work’s analysis

purported to show that they were s bstantially

underutilized in management and professional

positions with the Medical Center.

It soon became apparent, however, that Dr.

Work’s analysis was seriously flawed and

therefore unreliable and of limited probative

value. It is settled that such employment

Statistics must be considered in the context of

the relevant labor market. See Wards Cove

Packina Co. v. Atonio, 490 U.S. 642, 650-51

(1989); Davis _v. Califano, 613 F.2d at 963

(statistics must compare "the relevant work

force and the qualified population in the

relevant labor market"). Dr. Work attempted to

093

perform an analysis based on the 1980 Bureau of

the Census Characteristics of the Population,

Detailed Population Characteristics for the

District of Columbia.

A fair reading of that report makes clear

that the labor market data used in Dr. Work’s

analysis were limited to the geographical

confines of the District of Columbia, rather

than the Washington metropolitan area or the

area including the District, Virginia and

Maryland.'3 Because the Medical Center's

nurses do not come exclusively from the District

of Columbia, Dr. Work’s utilization analysis was

premised on an incorrect labor market. See

Hammon _v. Barry, 826 F.2d 73, 77 (D.C. Cir.

1987) (relevant labor market is Washington

metropolitan area, not confines of D.C.).

3See 1980 Census of Population, U.S.

Department of Commerce, Bureau of the Census,

Appendix B at B-12. This document was used by

defendant during the voir dire of Dr. Work as

Defendant’s Exhibit 96. Further, as an official

government publication, it may by judicially

noticed by the Court.

094

& sa sheet tel Yi Delete aba: red

“ haw AT, LI ele an ae ee a tin.

IE RE ES TES alee

PRT OI IED

PNT deri om NS" Be os Wed ste

In any event, when the labor market problem

with Dr. Work’< analysis came to light during

presentation of plaintiff’s case, plaintiff

withdrew it.

The other statistical evidence offered

through Dr. Work consisted of internal Medical

Center data intended to demonstrate a racial

imbalance in the workforce. Although these

exhibits and testimony were admitted for what

they are worth, they probably do not constitute

reliable evidence sufficient to establish a

prima facie case of discrimination.

First, Dr. Work merged data for the period

1981 through 1989, rather than focusing on the

specific period in question, December 1986

through March 1987. While such an approximation

does not render the data completely irrelevant,

it does diminish their probative value.

Second, individuals were counted multiple

times if they held different positions during

the surveyed period, further tending to skew the

results.

095

Third, and most important, Dr. Work’s

comparative analysis Bailed to account for the

specific qualifications for the different

positions. Thus, the comparison of lower-level

positions such as LPN, patient escort and

clerical jobs -- which have no R.N. licensure

requirement -- with positions that do require an

R.N. license is not a relevant comparison. The

case law indicates that only individuals with

the relevant qualifications may provide the

basis for a comparison that is probative of

discrimination. §ee Wards Cove, 490 u.8. 2s

651-52; Hammon, 813 F.2d at 427 n.31. Plaintiff

failed to show that employees at higher and

lower levels in the employment hierarchy

possessed qualifications and experience

sufficiently similar to the NUC position to

justify comparison.

In the final analysis, or. Work’s

statistical evidence showed merely that there

were greater numbers of whites in certain

positions than there were blacks. From this

096

HO a ha A AE MNS BR ha AG Na ln ca aa eae

cenbstt bia Sehird

RMA. ay

Rel tet AAD

fact, coupled with his determination that the

disparity was not attributable to chance, Dr.

Work concluded that intentional discrimination

by the defendant was the explanation. That

ultimate conclusion, however, was not bared on

reasonably reliable scientific analysis; it

failed to consider alternative determinants

(such as socio-economic factors, licensing

requirements and educational qualifications), as

we]l As the lack of any reliable comparison to

the relevant labor market and the other problems

identified above.

The Supreme Court has recently addressed

the trial court’ 6 role in deciding whether to

admit “expert” scientific evidence in a federal

trial. In Daubert Vv. Merrell Dow

Pharmaceuticals, Inc., 61 U.S.L.W. 480S, 1993

U.S. LEXIS 4408, *8 (June 28, 1993), the Court

made clear that “under the Rules [of Evidence]

the trial judge must ensure that any and all

scientific testimony or evidence admitted is not

only relevant, but reliable." In particular, the

09%

Court instructed that the “helpfulness” standard

of Federal Rule of Evidence 702’ “requires &

valid scientific connectien to the pertinent

inquiry as 4 precondition to admissibility.” Id.

at *10. From these teachings it follows that Dr.

Work’s ultimate opinion that the workforce data

evidence intentional discrimination by defendant

is not derived from a _ reliable scientific

analysis. Accordingly, if this issue were

dispositive, that opinion would be inadmissible

under Rules 702 and 403 as explicated by

Daubert, and it would be disregarded.

The workforce data themselves, which

reflect the racial breakdown of variou

categories of positions within the Medical

l4Rule 702 provides:

If scientific, technical, or other

specialized knowledge will assist the trier of

fact to understand the evidence or to determine

a fact in issue, a witness qualified as an

expert by knowledge, skill, experience,

training, or education, may testify thereto in

the form of an opinion or otherwise.

The Court held in Daubert that the

“general acceptance” test of Frye v. United

States, 293 F. 1013 (1923), was superseded by

the adoption of the Federal Rules of Evidence.

098

Center between 1981 and 1989, are admissible.

However, for the reasons stated previously, they

have very limited probative value and, if the

issue were dispositive, would be insufficient to

| establish a prima facie case of discrimination.

Even if the Statistical evidence offered by

plaintiff were sufficient to establish a prima

facie Vase of disparate treatment, plaintiff has

failed to present sufficient evidence to survive

defendants Rule 524c) motion. In Order to have

standing to challenge the disputed conduct,

plaintiff must make a Showing that she was

injured by that conduct. See generally Allen yv.

Wright, 468 U.S. 737, 751 (1984). See also East

Texas Motor Freight SYS. Anc. vy. Rodriquez, 431

U.S. 395, 403-05 (1977) (unqualified applicants

lacked standing to represent class in Title VII

action). Even if some employees suffered from

impermissible discrimination, there is no

credible evidence, or in any event, insufficient

evidence, that plaintiff’s nonselection for the

039

position of NUC for 5-South was racially

motivated.

Nor can plaintiff's attempts to show

individual disparate treatment through the

indirect method of proof prevail. As

demonstrated hereafter, she has failed to carry

her burden of establishing that defendant’s

reasons for nonselection were pretextual (and

discriminatory). Rather, plaintiff has adduced

evidence from the direct and cross-examination

of witnesses whom she called that supports

defendant’s position that the reasons were not

pretextual, but were legitimate and

nondiscriminatory.

In support of her claim that defendant

engaged in a “pattern or practice" of

discrimination, plaintiff's principal evidence

consisted of a series of “comparative charts"

purporting to show that whites were promoted to

NUC positions more often than blacks. Again,

however, serious deficiencies in plaintiff’s

evidence preclude the establishment of a prima

100

facie case, or the carrying of her burden of

proof on the merits.

| First, the comparative charts conspicuously

omit any experience gained from employment other

than with defendant. While all of plaintiff’s

professional experience (including pre-R.N.

experience) was at defendant’s Medical Center,

it is clear that many of the other nurses have

experience prior to their employment with

defendant that is not reflected in the charts.

Second, the charts lack information on the

educational credentials of several of the

nurses, and thus are incomplete in this

important aspect as well.

Third, the charts include information about

a number of nurses who were not within the

Department of Nursing of the Medical Center.

Because the employment of these nurses was not

under the control of the decisionmakers involved

in this case, Tillman and McCarthy, this

information is irrelevant.

101

Because of these defects, plaintiff’s

comparative charts are neither reliable nor

probative. Further, plaintiff’s evidence fails

to show, through an analysis of the

qualifications of the applicants for any

particular NUC position or through analysis of

personnel files, that whites were promoted

routinely when they were not the best qualified

applicants for the positions involved. The

information contained in plaintiff's comparative

charts aside from being incomplete) is

essentially anecdotal in nature.

In contradiction to plaintiff’s assertion

of a pattern of discrimination in the selection

of NUCs, McCarthy testified that she had hired

several black employees for the position of NUC,

from both inside and outside the Medical Center,

and that the black applicants had white

competitors. McCarthy also testified that the

NUC positions were advertised outside the

Medical Center, and that in each instance the

most qualified applicant was selected,

102

Noh te dif:

irrespective of race. Plaintiff has provided

insufficient probative evidence to refute

McCarthy’s testimony.

Even if the comparative charts were

adequate to make out a prima facie case of a

pattern or practice of discrimination by the

defendant, plaintiff has nevertheless failed to

carry her burden of showing redressable

discrimination. As noted above, plaintiff, to

have standing, must show that she was denied the

position of NUC because of discrimination.

However, plaintiff has not shown that she was

better qualified for the 5-South NUC position

than her competitors, nor has she shown that

defendants reasons for not selecting her were

pretextual or ultimately discriminatory. Rather,

her own evidence sustains defendant’s portion

that the reasons were legitimate and

nondiscriminatory.

In order to establish a prima facie case of

individual race discrimination, a plaintiff must

Show: (1) that she belongs to a racial minority;

103

(2) that she applied and was qualified for a

vacant position; (3) that she was rejected for

the position; and (4) that a white applicant

with equivalent credentials was offered the

position, or alternatively, that the position

remained open and the employer continued to seek

applicants with the plaintiff’s qualifications.

See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973).

Once these facts are established, the

employer must then produce evidence that the

plaintiff was rejected, or someone else was

preferred, for a legitimate, nondiscriminatory

reason.” Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 254 (1981). When the

employer’s nondiscriminatory reason has been

presented, the presumption of discrimination

"drops from the case.” St. Mary’s Honor Center

v. Hicks, 61 U.S.L.W. 4782, 1993 U.S. LEXIS

4401, *11 (June 25, 1993) (quoting Burdine, 450

U.S. at 255) (emphasis added).

104

The plaintiff then has the opportunity to

demonstrate that the employer’s proffered reason

was not the true reason for the decision. A

demonstration that the employer’s proffered

reason was pretextual permits the trier of fact

to infer the ultimate fact of intentional

discrimination; however, as the Supreme Court

held last month in St. Mary’s Honor Center, a

showing of pretext does not compel either a

finding of discrimination or a judgment for the

plaintiff. Id. at *16. The plaintiff at all

times retains the ultimate burden of persuading

the trier of fact that she was the victim of

intentional discrimination. Ids at *11; Burdine,

450 U.S. at 253, 256.

At the point when the employer has offered

its nondiscriminatory reason for the employment

decision, the trier of fact is in a position "to

decide the ultimate question: whether plaintiff

has proven that the defendant intentionally

discriminated against [him]’ because of his

105

race." St. Mary’s Honor Center, 1993 U.S. LEXIS

4401, at *15 (quoting Burdine, 450 U.S. at 253).

In this case, defendant has conceded the

first three elements of a prima facie case: that

plaintiff (1) belongs to a racial minority, (2)

applied and was qualified for the NUC position,

and (3) was rejected for the position. Defendant

also concedes that the candidates offered the

position, Michaels and Cooley, were white;

defendant does not concede, however, that those

candidates were only as qualified for the

position as plaintiff. As set forth in the

Findings of Fact, supra, defendant’s

decisionmakers reasonably determined that

plaintiff was not as qualified for the NUC

position as either Michaela or Cooley. It

appears, therefore, that plaintiff has not

established a prima facie case of individual

disparate treatment based on race.

At the same time, it must be recognized

that many cases treat the plaintiff’s prima

facie case under McDonnell Douglas as relatively

106

easy to establish, and it may be that

plaintiff’s minimal qualification for the NUC

position is sufficient to satisfy the fourth

prong of the prima facie case. Accordingly,

defendant’s Rule 52(c) motion is considered on

the hypothesis that plaintiff has established a

prima facie case.

Ordinarily under such circumstances, it

would be difficult for a defendant to prevail on

a Rule 52(c) motion. Following the presentation

of plaintiff’s prima facie case, defendant would

be obliged to come forward in its case with

proof of nondiscriminatory reasons for the

decision in question, and the plaintiff, in

rebuttal, would present her evidence of pretext.

This case, however, is different. Plaintiff

chose to proceed by calling the decisionmakers

in her case-in-chief And eliciting from them the

reasons for the disputed decisions. Thus, the

employer’s legitimate, nondiscriminatory reasons

for the decisions were presented during

plaintiff’s case. Plaintiff then attempted, in

107

her case, to show that those reasons were

pretextual. As plaintiff stated, she “offered

her evidence of pretext during her case in

chief."}9

Because, at the close of plaintiff’s case,

defendant’s nondiscriminatory reasons have been

presented, the presumption of discrimination

“drops from the case” under St. Mary’s Honor

Center and Burdine. This leaves for resolution

the ultimate issue of intentional discrimination

” Plaintiff’s Proposed Findings of Fact

and Conclusions of Law, at 39. The strategy

adopted by plaintiff’s counsel appeared to be

the risky one of putting defendant’s

decisionmakers on the stand and examining them

at length in an attempt to extract a4 confession

or catch them in a contradiction. The risks of

such a strategy became clear at the trial: the

witnesses did not confess to discrimination on

the basis of race, nor did they make any

material contradictions; they did, however,

explain their nondiscriminatory reasons for not

selecting plaintiff for the NUC position.

Plaintiff chose to proceed in this manner

despite strong urging by the Court during two

pretrial conferences that the trial should

proceed in the order established by McDonnell

Douglas’s indirect method of proof.

108

vel non.!

As explained below, plaintiff has presented

insufficient probative evidence to Carry her

burden of showing that defendant's offered

reasons for the decisions in question were

pretextual or that plaintiff’s nonselection was

the result of discrimination based on race:

rather, plaintiff's proof establishes that

defendant employed a person better qualified for

the position.”

‘As the Court explained in st. Mary’s Honor

Center: “If... the defendant has Succeeded in

carrying its burden of production, the McDonnell

Douglas framework -- with its presumptions and

burdens -- is no longer relevant." 1993 U.S.

LEXIS 4401, at *15,

"The one reason that a court might hesitate

to grant a defendant’s Rule 52(C) motion even

after the plaintiff has offered her evidence of

pretext in her case-in-chief is the following:

theoretically, a defendant might offer in its

case a previously undisclosed nondiscriminatory

reason for the disputed decision, and a

plaintiff might benefit from the Opportunity in

rebuttal to demonstrate that new reason is

pretextual. This possibility, while perhaps

Significant in other cases, is not of concern

here for several reasons.

First, this case has seen 12 days of trial,

as well as extensive discovery and numerous

Substantive motions over the course of four

109

The testimony of Tillman and McCarthy

clearly established that they reasonably

considered plaintiff to be less qualified for

the 5-South NUC position than Michaels and

Cooley. The latter two applicants exceeded

plaintiff in each of-the three areas to be

considered: experience, education and interview

performance. In addition, with respect to the

decision to re-advertise the position (after

years. There is no secret or genuine dispute

about which nondiscriminatory reasons were going

to be offered by the defendant; it is simply

implausible that previously undisclosed

nondiscriminatory reasons would be put forward

in defendant’s case. It is noteworthy in this

regard that "[t]he McDonnell Douglas methodology

was never intended to be rigid, mechanized, or

ritualistic." St. Mary’s Honor Center, 1993

U.S. LEXIS 4401, at %*31-32 (citation and

internal quotations omitted).

Second, as St. Mary’s Honor Center makes

clear, a finding of pretext does not necessitate

a finding of discrimination. Even if an

additional nondiscriminatory reason offered by

defendant were shown to be pretextual,

intentional discrimination would not be found in

this Base. Rather, the finding would still be

that plaintiff’s nonselection was because she

was less qualified than the other applicants,

not because of her race.

Finally, plaintiff has not argued this

point in its filings or oral argument on

defendant’s motion.

110

OO oC OO ee:

Michaels had declined it) and the decision to

offer the position to Cooley, the decisionmakers

took into consideration genuine concerns they

had about plaintiff's performance as Acting NUC

for 5-South. These reasons for defendant’s

decision not to select plaintiff for the NUC

Position are plainly legitimate,

nondiscriminatory reasons, and they are

Supported by documentary evidence as well as the

consistent testimony of Tillman And McCarthy.

Plaintiff attempted to establish that the

M.S.N. degree was not a valid educational

requirement for the NuUC position by proffering

further testimony of Dr. Work and two exhibits

Prepared by him. Dr. Work utilized one fact

(Overall performance) derived from multi-page

annual performance evaluations of 42 incumbent

NUCS, and compared it to the educational level

Of each of the NUCs. He concluded that there was

no statistically Significant difference in the

average overall performance ratings of NUCs

associated with educational attainment. As with

111

Dr. Work’s other evidence, his analysis of the

M.S.N. degree qualification is fatally flawed.

First, Dr. Work utilized different years

and different numbers of years for each surveyed

NUC. Thus, the analysis is not based on a

uniform pool of data and therefore is

unreliable.

Second, he did not control for the

different supervisory personnel who prepared the

evaluations of each individual.

Third, Dr. Work utilized a mingle

educational level for each NUC, even though some

of them changed educational levels while in the

NUC position.

Fourth, the analysis did not consider

partial advancement toward the next educational

level.

Fifth, the sample size used in Dr. Work’s

analysis is too small to yield scientifically

112

reliable conclusions for the type of analysis

‘performed. '®

Finally, Dr. Work’s analysis fails to

control for the work experience of the incumbent

NUCs, either in the NUC role or prior to that

role. Prior experience obviously would be

expected to have a major impact upon

performance.

Taken together, these deficiencies in Dr.

Work’s analysis render it inaccurate and without

genuine probative value. Moreover, McCarthy

testified persuasively and without contradiction

that the M.S.N. degree is given great weight in

the professional nursing community for nursing

management positions. She had overseen the

establishment of an M.S.N. program for

defendant’s nurses in conjunction with Marymount

See Schmidt & Hunter, The Future of

Criterion-Related Validity, Personnel Psychology

33 (1980); Schmidt, Hunter & Urry, Statistical

Power _ in Criterion-Related Validation Studies,

J. Applied Psych., Vol. 61, No. 4, at 473-85

(1976). The Court takes judicial notice of these

scholarly publications.

113

University. McCarthy also indicated that it was

important to encourage attainment of that

educational degree in order to maintain the

skills level required for continued

competitiveness, and she cited support for the

validity of the M.S.N. qualification in the

professional literature. In any event, the

evidence in persuasive that defendant applied

the M.S.N. qualification in good faith as a

valid criterion, and there is no competent

evidence showing that it was applied as a

pretext for discrimination.”

plaintiff contends that the M.S.N.

requirement was manipulated by the defendant and

points out that the degree was variously

“required” and "preferred" for NUC positions at

different times. As explained by the

uncontradicted testimony of McCarthy, however,

the M.S.N. qualification changed only in

response to the needs of the Medical Center and

the limitations of the labor market. At all

times, McCarthy desired to have an M.S.N.

requirement for NUC positions, but such a

requirement was not feasible during shortages of

nursing personnel.

Plaintiff also Argues that she met the

educational qualification because she _ had

experience that was equivalent to an M.S.N.

Plaintiff confuses the entry-level qualification

-- “A Master’s degree in Nursing or the

114

Plaintiff suggests that Michaels was

preselected for the 5-South NUC position. She

relies on a selection document bearing the date

of September 19, 1986. It is clear from the

document itself, however (as well as the

uncontested testimony of Tillman), that the same

document was used for the earlier denial of

Michaels’ application for NUC of 2-East and for

offering her the 5-South position.”® There is

no competent evidence supporting plaintiff's

suggestion of Michaels’ preselection.

Plaintiff asserts that defendant violated

its own policies by failing to promote plaintiff

before considering outside applicants. The

relevant provision of defendant’s Manual of

Employment Directives states: “Before outside

equivalent combination of education and

experience" -- with being the best qualified for

the position. Other things being equal, it is

permissible for an employer to consider greater

educational attainment a positive factor in an

employment decision.

*°Gina Brook’s statement regarding Michael’s

alleged preselection is inacmissible hearsey.

See supra note 5.

115

recruitment sources are explored, Personnel

Services will review its applicant files,

including those previously screened for

University employment. This directive simply

ensures that Personnel identifies existing

sources of applicants (including prior outside

candidates for other positions, such as

Michaels). It does not preclude the

consideration of outside applicants or the

hiring of better qualified outside applicants.

Moreover, the policy is imposed on Personnel

Services, not the decisionmakers involved here,

and no evidence has been offered that Personnel

Services violated the policy.

Plaintiff also points to differences in the

interview process as proving discriminatory

animus. However, anomalies in personnel

procedures do not necessarily show unlawful

discrimination. See Oates v. District of

Columbia, 824 F.2d 87, 93 (D.C. Cir. 1987):

Ledoux v. District of Columbia, 820 F.2d 1293,

1306-07 n.22 (D.C. Cir. 1987). As set forth in

116

the Findings of Fact, the differences were

credibly explained and suggest no improper

motivation. All supra note 6.

Plaintiff has failed to offer evidence

sufficient to shuw that defendant’s

nondiscriminatory reasons for its employment

decisions are unworthy of credence, or that

those decisions were racially motivated. Rather,

she adduced evidence supporting defendant’s

position that its reasons were legitimate and

nondiscriminatory. Accordingly, she has failed

to carry her burden under Rule 52(c).

There remains for consideration plaintiff’s

retaliation claim. To establish a prima facie

case of retaliation, a plaintiff must show: (1)

that she engaged in protected activity; (2) that

the defendant took an adverse personnel action

against the plaintiff; and (3) that the adverse

personnel action was causally related to the

plaintiff's exercise of protected rights. Berger

v. Iron Workers Reinforced Rodmen Local 201, 843

F.2d 1395, 1423 (D.C. Cir. 1988).

117

Following plaintiff’s filing of an EEOC

charge in April 1987, she received a favorable

evaluation (an overall “exceeds requirements")

as well as a pay raise. Such an evaluation and

pay increase cannot possibly be construed as an

adverse personnel action. Nor did Tillman’s

directive to plaintiff to reconsider her

evaluations of other ANCs, or his temporary

failure to complete the front page of an

evaluation form, constitute an adverse

employment action.

Plaintiff’s principal assertion with

respect to Tillman appears to be that he

prevented her from attending certain meetings in

April or May of 1987.7! However, such minor

"IAs set forth in the Findings of Fact,

Supra, plaintiff initially suggested that some

problems she experienced with Cooley were also

in retaliation for her filing of an EEOC charge.

Plaintiff conceded on the stand, however, that

the problems were merely the result of Cooley's

lack of familiarity with defendant’s personnel

procedures. In any event, these alleged actions

on Cooley’s part do not constitute adverse

personnel actions, and there is no evidence that

they were causally related to plaintiff's

protected activities (or even that Cooley was

118

events with little or no concrete impact on

plaintiff’s employment situation do not rise to

the level of adverse personnel actions. See,

e.g., Pinar v. Dole, 747 F.2d 899, 912 (4th Cir.

1984), cert. denied, 471 U.S. 1016 (1985): Gold

v. Gallaudet College, 630 F. Supp. 1176, 1189

(D.B.C. 1986); Johnson v. University of

Pittsburgh, 435 F. Supp. 1328, 1360 (W.D. Pa.

1977).

Plaintiff presented no reliable evidence

that the defendant “deliberately made

working conditions intolerable and drove [her]

into an involuntary quit.” Retail Store

Employees Union Local 880 v. NLRB, 419 F.2d 329,

332 (D.C. Cir. 1969). Thus, there is no basis

for a conclusion that plaintiff's decision to

resign involved a “constructive discharge." See

also Yates v. Avco Corn., 819 F.2d 630, 636-37

(6th Cir. 1987).

aware of such activities).

119

——————E——————————

In addition, there is insufficient evidence

of a causal connection between any of the

alleged adverse actions and plaintiff’s filing

of her discrimination charge. Indeed, the

evidence presented in plaintiff’s case negated

an inference of causation, for plaintiff

complained of a lack of support from Tillman

before as well as after the filing of the

charge.

Because plaintiff has failed to establish

a prima facie case of retaliation for her

protected activity, or to carry her burden of

proof on the merits, her retaliation claim fails

under Rule 52(c).

*® &£ @& ®

For the foregoing reasons, an accompanying

Order enters judgment for defendant pursuant to

Federal Rule of Civil Procedure 52(c).

Dated: July 27, 1993

UNITED STATES DISTRICT JUDGE

120

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FILED FEBRUARY 9, 1993

CLERK, U.S. DISTRICT COURT

DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES

Plaintiff

Vv.

THE GEORGE WASHINGTON UNIVERSITY

Defendant

Civil Action No. 89-0796-LFO

ORDER

For the reasons stated in the accompanying

Memorandum, it is this 27th day of July, 1993,

hereby

ORDERED: that defendant’s motion for

judgment as a matter of law under Fed. R. Civ.

P. 52(c) should be, and is hereby, GRANTED; and

it is further

ORDERED: that judgment is hereby entered in

favor of defendant on all remaining counts.

UNITED STATES DISTRICT JUDGE

121

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES,

PLAINTIFF,

-~VERSUS- DOCKET NO. CA 89-796

GEORGE WASHINGTON UNIVERSITY,

WASHINGTON, D.C.

DEFENDANT APRIL 19, 1993

ree: er er ar ie 9:30 A. M.

TRANSCRIPT OF TRIAL BEFORE

THE HONORABLE LOUIS F. OBERDORFER,

UNITED STATES DISTRICT JUDGE,

AND A JURY.

APPEARANCES:

FOR THE PLAINTIFF: WENDU MEKBIB, ESQ.

FOR THE DEFENDANT: JACK M.H. FRAZIER, ESQ.

THOMAS D. QUINN, ESQ.

COURT REPORTER: SANTA THERESA ZIZZO,

U. S. DISTRICT COURT,

ROOM 4800 C

3RD & CONSTITUTION AVE.

N.W.

(COMPUTER-AIDED TRANSCRIPTION OF STENOTYPE

NOTES)

122

(FROM ORIGINAL PAGE 6)

THE COURT: I DON’T SEEM TO HAVE IT, DO YOU

HAVE ANOTHER SET OF IT?

MR. MEKBIB: YES, I COULD PROBABLY FIND IT,

YES.

THE COURT: THANK YOU. THAT’S ALL.

(BENCH CONFERENCE CONCLUDED)

(PROSPECTIVE JURY PANEL PRESENT).

THE DEPUTY CLERK: THIS IS THE MATTER OF

DEBORAH SCALES VERSUS GEORGE WASHINGTON

UNIVERSITY. CIVIL ACTION 89-796. MR. MEKBIB FOR

THE PLAINTIFF. MR. FRAZIER AND MR. QUINN FOR THE

DEFENDANTS.

WOULD THE MEMBERS OF THE JURY PANEL PLEASE

STAND AND RAISE YOUR RIGHT HANDS?

(PROSPECTIVE JURY PANEL SWORN).

THE DEPUTY CLERK: LADIES AND GENTLEMEN, AS I

CALL YOUR JUROR NUMBER PLEASE STAND, ANSWER

PRESENT, AND THEN BE SEATED. JUROR NUMBER 3275.

3147. 4142. 3878. 4049. 3106. 2846. 2823. 3419.

2808. 3183. 4045. 4162. 4168. 3253. 2737. 4010.

4098. 3960. 2812. 3771. 3630. 4057.

(ALL PROSPECTIVE JURORS ANSWERED PRESENT).

THE DEPUTY CLERK: IS THERE ANY MEMBER OF THE

JURY PANEL WHOSE NUMBER WAS NOT CALLED? THANK

YOU.

THE COURT: GOOD MORNING, LADIES AND

GENTLEMEN.

(FROM ORIGINAL PAGE 13)

IS NURSING UNIT COORDINATOR AT THE GEORGE

WASHINGTON UNIVERSITY, ARTHUR WILSON, WHO IS AN

INVESTIGATOR FOR THE HOSPITAL AND FROM THERESA

EVERHART-MC GOWAN WHO WAS A NURSE RECRUITER FOR

THE GEORGE WASHINGTON UNIVERSITY.

THE COURT: DOES ANYONE RECOGNIZE ANY OF

THOSE POTENTIAL WITNESSES BY NAME? I GATHER NONE

DOES.

NOW, LADIES AND GENTLEMEN, WE NEED TO KNOW

WHETHER ANY OF YOU HERE OR YOUR IMMEDIATE FAMILY

MEMBERS ARE NOW OR HAVE IN THE PAST BEEN

ASSOCIATED WITH GEORGE WASHINGTON UNIVERSITY,

AND PARTICULARLY THE HOSPITAL AS AN EMPLOYEE,

STUDENT, ALUMNUS, ALUMNA, ANY OTHER CONNECTION.

WOULD THOSE WHO HAVE THOSE CONNECTIONS PLEASE

124

STEP

‘OUT IN THE AISLE AND THE CLERK WILL FURNISH

YOU WITH A MIKE.

IF YOU CAN STATE YOUR JUROR NUMBER AND THEN

ANSWER MY QUESTION.

A PROSPECTIVE JUROR: 2323.

THE COURT: 2323.

THE DEPUTY CLERK: NUMBER EIGHT ON PAGE ONE.

THE COURT: ALL RIGHT. WHAT IS YOUR ANSWER TO

MY QUESTION?

A PROSPECTIVE JUROR: MY WIFE FORMERLY WORKED

(FROM ORIGINAL PAGE 14)

FOR GW HOSPITAL.

THE COURT: IN WHAT CAPACITY?

A PROSPECTIVE JUROR: SHE STARTED AS

HOUSEKEEPING AND I THINK SHE ENDED UP AS A

CLERK, FILE CLERK.

THE COURT: ALL RIGHT. I THINK I’LL ASK YOU

TO COME IN AND SIT DOWN AND WE’LL TALK TO YOU AT

THE BENCH IN A MOMENT.

LET’S GET THE REST OF THEM. THE NEXT PERSON,

YOUR NUMBER PLEASE, MA‘AM.

129

' "i

THE COURT: YES, MA’AM, AND YOU'RE -- LET’S

A PROSPECTIVE JUROR: 2737.

SEE.

A PROSPECTIVE JUROR: I DIDN’T HEAR YOU. I'M

NOT SURE IF THIS IS APPLICABLE BUT I HAVE A

HEALTH PLAN WITH GEORGE WASHINGTON UNIVERSITY

AND ALSO I HAVE A COUSIN WHO WORKS THERE.

THE COURT: DOES THE HEALTH PLAN REQUIRE YOU

TO USE THE SERVICES OF THE UNIVERSITY HOSPITAL?

A PROSPECTIVE JUROR: YES.

THE COURT: DO YOU GO THERE OFTEN?

A PROSPECTIVE JUROR: EXCUSE ME?

THE COURT: HAVE YOU HAD OCCASION TO GO THERE

AND BE SEEN?

A PROSPECTIVE JUROR: FOR YEARLY CHECK-UPS.

(FROM ORIGINAL PAGE 15)

THE COURT: IS THERE ANYTHING ABOUT “ZHOSE

RELATIONSHIPS THAT WOULD MAKE IT DIFFICULT FOR

YOU TO DECIDE THIS CASE ON THE FACTS AND THE LAW

AS THEY DEVELOP?

A PROSPECTIVE JUROR; NO, YOUR HONOR.

126

La INL a ork Sac ad lt we .

THE COURT: DOES EITHER COUNSEL WISH TO

INQUIRE OF THIS JUROR?

MR. MEKBIB: I’M INTERESTED IN FINDING OUT

WHAT HER COUSIN ACTUALLY DOES AT GEORGE

WASHINGTON UNIVERSITY.

THE COURT: WHAT WHO DOES?

MR. MEKBIB: COUSIN.

THE COURT: WHAT DOES YOUR COUSIN DO AT THE

UNIVERSITY. A PROSPECTIVE JUROR: I’M NOT SURE

WHAT CAPACITY SHE’S EMPLOYED. I KNOW SHE DOES

CLERICAL WORK.

THE COURT: DO YOU TALK TO HER ABOUT HER

WORK?

A PROSPECTIVE JUROR: NO, I DON’T.

THE COURT: ANYTHING THAT YOU KNOW ABOUT HER

SITUATION THERE THAT COULD HAVE A BEARING ON THE

QUESTION OF THE EMPLOYMENT PRACTICES IN THE

HOSPITAL?

A PROSPECTIVE JUROR: NO, YOUR HONOR.

THE COURT: YOU MAY BE SEATED.

MR. MEKBIB: THANK YOU. I HAVE NO FURTHER

QUESTIONS.

(FROM ORIGINAL PAGE 16)

THE COURT: WHY DON’T YOU STAY THERE.

MR. MEKBIB: ALL RIGHT.

THE COURT: YOUR NUMBER PLEASE, MA’AM?

A PROSPECTIVE JUROR: 3253.

THE COURT: ALL RIGHT. YES, MA’AM.

A PROSPECTIVE JUROR: MY MOTHER WORKS THERE

AT GILMAN'S LIBRARY AT GW.

THE COURT: SHE WORKS AT THE LIBRARY.

A PROSPECTIVE JUROR: YES.

THE COURT: DOES EITHER COUNSEL HAVE

QUESTIONS?

MR. MEKBIB: HOW LONG HAS SHE WORKED THERE?

A PROSPECTIVE JUROR: SIX YEARS.

MR. MEKBIB: 16 YEARS.

A PROSPECTIVE JUROR: SIX.

MR. MEKBIB: WHAT IS HER POSITION?

A PROSPECTIVE JUROR: SHE WORKS IN

HOUSEKEEPING.

MR. MEKBIB: NO MORE Q'IESTIONS.

THE COURT: DOES SHE TALK TO YOU ABOUT HER

WORK?

een Uae dal ree neat ar ale

A PROSPECTIVE JUROR: YES.

THE COURT: MAYBE YOU’D BETTER SIT DOWN THERE

ON THE FRONT BENCH AND WE’LL TALE TO YOU

PRIVATELY.

(FROM ORIGINAL PAGE 17)

YOUR NUMBER?

A PROSPECTIVE JUROR: 4098.

THE COURT: ALL RIGHT, SIR.

A PROSPECTIVE JUROR: I WORK FOR THE

DEPARTMENT OF HEALTH CARE SCIENCES ON THE SECOND

FLOOR IN THE ACC BUILDING.

THE COURT: DO YOU HAVE ANY EXPERIENCE WITH

THE GEORGE WASHINGTON UNIVERSITY HOSPITAL?

A PROSPECTIVE JUROR: YES, I GO BACK AND

FORTH.

THE COURT: WHAT IS YOUR RELATIONSHIP WITH

THE HOSPITAL?

A PROSPECTIVE JUROR: I'M A MEDICAL SECRETARY

FOR THE DEPARTMENT OF HEALTH CARE SCIENCES ON

THE SECOND FLOOR.

THE COURT: PERHAPS YOU’D BEST SIT DOWN, IF

YOU DON’T MIND, ON THE FRONT ROW THERE AND WE’LL

129

TALK TO YOU UP HERE.

YES, MA‘AM, YOUR NUMBER.

A PROSPECTIVE JUROR: 4168.

THE COURT: YES, MA’AM.

A PROSPECTIVE JUROR: I WAS A STUDENT AT

GEORGE WASHINGTON.

THE COURT: UNIVERSITY.

A PROSPECTIVE JUROR: YES.

(FROM ORIGINAL PAGE 18)

THE COURT: DID IT HAVE ANY CONNECTION WITH

THE HOSPITAL?

A PROSPECTIVE JUROR: NO.

THE COURT: DOES EITHER COUNSEL WITH TO

INQUIRE?

MR. MEKBIB: WHAT FIELD DID YOU STUDY IN?

A PROSPECTIVE JUROR: ANTHROPOLOGY.

MR. MEKBIB: ARE YOU AN ALUMNA OF THE

UNIVERSITY?

A PROSPECTIVE JUROR: NO, I DIDN'T GET A

DEGREE.

MR. MEKBIB: HOW LONG DID YOU STUDY THERE?

A PROSPECTIVE JUROR: A YEAR.

130

na A ag tl sa eC

MR. MEKBIB: WHY DID YOU NOT FINISH YOUR

STUDIES THERE?

A PROSPECTIVE JUROR: BECAUSE IT WASN’T A

GRADUATE DEGREES PROGRAM. IT WAS ESPECIALLY FOR

TEACHERS.

MR. MEKBIB: DID YOU FINISH THE PROGRAM YOU

WERE IN?

A PROSPECTIVE JUROR: NO.

MR. MEKBIB: WERE YOU UNHAPPY WITH THE

EDUCATION THAT YOU RECEIVED THERE?

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: YOU WERE.

(FROM ORIGINAL PAGE 19)

A PROSPECTIVE JUKOR: YES.

MR. MEKBIB: THANK YOU, I HAVE NO FURTHER

QUESTIONS.

THE COURT: WHY WERE YOU UNHAPPY?

A PROSPECTIVE JUROR: I WAS NOT UNHAPPY. I

WAS PLEASED. I’M SORRY, I MUST HAVE

MISUNDERSTOOD YOU.

MR. MEKBIB: YOU WERE HAPPY WITH THE

EDUCATION YOU RECEIVED THERE?

131

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: WOULD THAT BIAS YOUR VIEWS ABOUT

THE PLAINTIFF’S CAUSES AGAINST THE DEFENDANT?

A PROSPECTIVE JUROR: WELL, I DON’T THINK I

CAN ANSWER THAT WITHOUT KNOWING MORE ABOUT IT

BUT I DOUBT THAT WOULD.

THE COURT: WOULD YOU BE ABLE TO FOLLOW THE

INSTRUCTIONS AND DECIDE THIS CASE ON THE FACTS

AND THE LAW AS THEY'RE DEVELOPED IN THE

COURTROOM?

A PROSPECTIVE JUROR: WELL, YES, I HOPE SO. I

THINK SO.

THE COURT: THANK YOU.

MR. MEKBIB: YOUR HONOR, I MUST OBJECT TO

THIS WITNESS.

THE COURT: MAKE YOUR OBJECTIONS AT THE

BENCH, AND YOUR OBJECTION IS OVERRULED. YOU MAY

BE SEATED.

NOW, IF YOU'D COME TO THE BENCH I’LL SEE

FROM ORIGINAL PAGE 20)

THESE PARTICULAR PEOPLE AT THE BENCH.

(BENCH CONFERENCE).

132

THE COURT: TELL ME AGAIN WHAT -- YOU HAVE A

RELATIVE WHO WORKS AT THE UNIVERSITY.

A PROSPECTIVE JUROR: MY WIFE USED TO WORK

THERE. SHE WAS A HOUSEKEEPER.

THE COURT: AT THE UNIVERSITY OR AT THE

HOSPITAL.

A PROSPECTIVE JUROR: AT THE HOSPITAL.

THE COURT: AND SHE WAS THERE FOR HOW LONG?

A PROSPECTIVE JUROR: I THINK SHE WAS THERE

FOR MAYBE EIGHT YEARS.

THE COURT: EIGHT YZARS.

A PROSPECTIVE JUROR: YES.

THE COURT: AND WHY DID SHE LEAVE?

A PROSPECTIVE JUROR: SHE GOT

TERMINATED.

THE COURT: AND DO YOU KNOW WHY?

A PROSPECTIVE JUROR: YES. SHE GOT INTO AN

ALTERCATION WITH A NURSE AND THEY BOTH GOT

TERMINATED.

THE COURT: BOTH WERE TERMINATED?

A PROSPECTIVE JUROR: BOTH WERE TERMINATED.

THE COURT: DO YOU THINK THAT SHE WAS TREATED

133

UNFAIRLY?

A PROSPECTIVE JUROR: YES, BECAUSE SHE FILED

(FROM ORIGINAL PAGE 21

A SUIT AND IT WENT THROUGH A CLASS ACTION BUT

THEY RULED AGAINST HER.

THE COURT: SHE BROUGHT IT IN COURT.

A PROSPECTIVE JUROR: EQUAL OPPORTUNITY.

THE COURT: EEOC.

A PROSPECTIVE JUROR: EEOC. RIGHT. SHE WENT

FOR A HEARING AND THEY VOTED AGAINST HER.

THE COURT: DO YOU THINK THAT THE DECISION

THEY ENTERED WAS UNFAIR?

A PROSPECTIVE JUROR: YES.

THE COURT: ALL RIGHT.

DOES EITHER COUNSEL WISH TO INQUIRE.

MR. MEKBIB: I HAVE NO FURTHER QUESTIONS.

THE COURT: DO YOU WANT TO STEP OVER THERE BY

THE BOX, SIR?

MR. FRAZIER: I WOULD ASK, YOUR HONOR, THAT

THIS WITNESS BE DISQUALIFIED FOR CAUSE.

THE COURT: YES, TELL HIM QUIETLY -- JUST

WALK OVER THERE AND TELL HIM TO GO BACK TO THE

134

JURY LOUNGE.

THE NEXT PERSON, PLEASE.

COME UP HERE, PLEASE, MA’AM, AROUND HERE.

THE DEPUTY CLERK: STAND RIGHT HERE, PLEASE,

MA’ AM.

THIS IS 3253.

(FROM ORIGINAL PAGE 22)

A PROSPECTIVE JUROR: YES.

RIGHT HERE? YES,

GOOD MORNING.

THE COURT: DO YOU WANT TO TELL ME MORE ABOUT

WHAT YOU SAID? IS IT YOUR MOTHER WHO IS WORKING

THERE?

A PROSPECTIVE JUROR: SHE WORKS AT GILMAN’S

LIBRARY. SHE WORKS AT HOUSEKEEPING.

THE COURT: AND THIS WAS THE UNIVERSITY

LIBRARY, NOT THE HOSPITAL.

A PROSPECTIVE JUROR: UNIVERSITY HOSPITAL.

THE COURT: AND SHE DOESN’T WORK THERE NOW.

A PROSPECTIVE JUROR: YES, SHE DOES.

THE COURT: DO YOU KNOW WHETHER SHE’S

SATISFIED OR DISSATISFIED.

A PROSPECTIVE JUROR: SHE’S GOING THROUGH A

135

LITTLE PROBLEM TRYING TO GET OUT ON DISABILITY

| OR SOMETHING LIKE THAT.

THE COURT: SHE’S TRYING TO ESTABLISH THAT

SHE’S DISABLED AT WORK, IS IT THAT?

A PROSPECTIVE JUROR: YES.

THE COURT: AND FOR COMPENSATION.

A PROSPECTIVE JUROR: YES.

THE COURT: AND WHO IS SHE DEALING WITH, THE

HOSPITAL OR SOMEBODY ELSE?

A PROSPECTIVE JUROR: WITH PERSONNEL AND -

SHE’S ALSO TRYING TO GET HER SOCIAL SECURITY.

(FROM ORIGINAL PAGE 23)

SHE’S DEALING WITH THEM ALSO. I DON’T THINK THE

HOSPITAL.

THE COURT: HOW OLD IS SHE, IF YOU DON’T MIND

TELLING ME. JUST IN THE BALLPARK.

A PROSPECTIVE JUROR: SHE’LL BE 60 SATURDAY.

THE COURT: DO YOU HAVE ANY REASON TO BELIEVE

THAT SHE IS BEING TREATED UNFAIRLY BY THE

UNIVERSITY?

A PROSPECTIVE JUROR: WELL, SHE’S BEEN -- NOT

REALLY, BUT SHE THINKS SHE HAS BECAUSE SHE’S

136

BEEN OUT SICK AND THEY'VE BEEN WRITING HER UP

YOU FOR, YOU KNOW, TRYING TO GET HER FIRED AND

ALL THAT STUFF BECAUSE SHE’S BEEN OUT A LOT SICK

BECAUSE SHE FELL ON THE JOB AND YOU, KNOW, WHEN

YOU FALL YOU’RE SUPPOSED TO GET COMPENSATION OR

WHATEVER. THEY DIDN'T GIVE HER COMPENSATION, SO

THAT’S WHY SHE’S TRYING TO GET AWAY FROM THERE.

THE COURT: DOES EITHER COUNSEL HAVE ANY

QUESTIONS?

MR. MEKBIB: I HAVE NO FURTHER QUESTIONS FOR

HER.

MR. FRAZIER: YOUR MOTHER HAD A WORKERS

COMPENSATION CLAIM.

A PROSPECTIVE JUROR: YES.

MR. FRAZIER: AND THAT WAS DENIED.

A PROSPECTIVE JUROR: SHE NEVER RECEIVED HER

MONEY FOR IT.

MR. FRAZIER: SHE NEVER RECEIVED MONEY FROM

(FROM ORIGINAL PAGE 24)

THE UNIVERSITY.

A PROSPECTIVE JUROR: NO.

MR. FRAZIER: AND SHE WAS UPSET ABOUT THAT.

137

A PROSPECTIVE JUROR: YES.

MR. FRAZIER: AND SHE’S TALKED TO YOU ABOUT

THAT.

A PROSPECTIVE JUROR: SHE’S SHOWN ME THE

PAPERWORK AND EVERYTHING.

MR. FRAZIER: SHE’S BEEN TRYING TO RETIRE ON

DISABILITY.

A PROSPECTIVE JUROR: YES.

MR. FRAZIER: AND THE UNIVERSITY DOESN’T

THINK SHE'S DISABLED.

A PROSPECTIVE JUROR: SHE HAS TO GO TO A

MEETING THIS MORNING. I DON’T KNOW WHAT THE

OUTCOME WILL BE.

MR. FRAZIER: DOES IT APPEAR AT THIS POINT

THAT THEY ARE GOING ALONG WITH THAT OR THAT THEY

ARE NOT GOING ALONG WITH THAT?

A PROSPECTIVE JUROR: I THINK THEY ARE GOING

ALONG WITH HER BUT SHE'S NOT HAVING ANY PATIENCE

AND, YOU KNOW, SHE’S JUST TRYING TO -- IT SEEMS

LIKE SHE'S TRYING TO RUSH THINGS AND THEY'RE

GOING ABOUT IT TOO SLOWLY I GUESS FOR HER BUT I

THINK THEY'RE TRYING TO, YOU KNOW, BECAUSE IF

138

THEY WASN'T THEY WOULDN’T HAVE HER

{FROM ORIGINAL PAGE 25)

GOING TO MEETINGS AND SENDING HER FORMS IN THE

MAIL.

MR. FRAZIER: DO YOU FEEL THAT THE UNIVERSITY

TREATED HER -- YOUR MOTHER UNFAIRLY WITH DENIAL

OF THE WORKERS COMPENSATION CLAIM? A PROSPECTIVE

JUROR: YES, BECAUSE SHE FELL AND HURT HER BACK.

NO, SHE FELL AND HURT HER KNEE, SORRY. AND THEN

THEY SERVED HER THESE PAPERS TELLING HER SHE’LL

BE SUSPENDED OR FIRED AND SHE NEVER GOT PAID FOR

THE, YOU KNOW, WHEN SHE FELL AND HURT HER LEG.

SO I THINK THAT WAS UNFAIR, YOU KNOW, AND SHE

WAS OUT OF WORK BECAUSE MAINLY OF HER LEG AND

PLUS SHE HAS HIGH BLOOD PRESSURE AND THAT’S WHY

ONE -- TWO OF THE REASONS SHE’S BEEN OUT. SO I

THINK THEY HAVE. THEY WON’T SLAP HER WITH THE

PAPERS TERMINATING HER BECAUSE SHE’S BEEN OUT

BECAUSE OF HER LEG BUT YET NOT PAID HER.

MR. FRAZIER:

I HAVE NO FURTHER QUESTIONS.

THE COURT: DO YOU MIND STEPPING OVER THERE?

MR. FRAZIER: YOUR HONOR, I WOULD ASK THAT

139

THIS WITNESS BE DISQUALIFIED FOR CAUSE.

MR. MEKBIB: I AGREE WITH HIM.

THE COURT: THE NEXT PERSON, PLEASE?

YOUR NUMBER PLEASE,, SIR?

A PROSPECTIVE JUROR: 4098.

THE COURT: AND WHAT WAS YOUR ANSWER TO MY

QUESTION?

(FROM ORIGINAL PAGE 26

A PROSPECTIVE JUROR: I WORK FOR THE

DEPARTMENT OF HEALTH CARE SCIENCES IN THE ACC

BUILDING. IT’S RIGHT ACROSS THE STREET FROM THE

MEDICAL CENTER.

THE COURT: AND DO YOU WORK IN THE MEDICAL

CENTER? DOES IT TAKE YOU IN THERE?

A PROSPECTIVE JUROR: TIME TO TIME. NOT FOR

ANYTHING REALLY SIGNIFICANT.

THE COURT: DOES YOUR WORK INVOLVE -- HAVE TO

DO WITH THE PEOPLE WHO WORK THERE?

A PROSPECTIVE JUROR: FROM TIME FOR TIME. NOT

ALWAYS.

THE COURT: DO YOU HAVE AN IMPRESSION OF THE

EMPLOYMENT SITUATION THERE, WORKING CONDITIONS

140

AND THAT SORT OF THING?

A PROSPECTIVE JUROR: NOT REALLY.

THE COURT: DOES EITHER COUNSEL HAVE ANY

QUESTIONS FOR THIS GENTLEMAN?

MR. FRAZIER: YOUR HONOR, THERE ARE QUESTIONS

THAT WOULD BE ASKED LATER IN THE VOIR DIRE.

THE COURT: WHY DON’T YOU ASK THEM NOW. ASK

THEM OF HIM NOW.

MR. FRAZIER: OKAY. HAVE

YOU EVER BEEN

INVOLVED IN AN EMPLOYMENT DISPUTE WITH GEORGE

WASHINGTON UNIVERSITY?

A PROSPECTIVE JUROR: NO.

(FROM ORIGINAL PAGE 27)

MR. FRAZIER: HAS ANYBODY THAT YOU'VE WORKED

WITH BEEN INVOLVED IN AN EMPLOYMENT DISPUTE?

A PROSPECTIVE JUROR: NO.

MR.

FRAZIER: HAS ANYBODY YOU KNEW BEEN

INVOLVED IN AN EMPLOYMENT DISPUTE WITH SOMEBODY

ELSE, SOME OTHER EMPLOYER?

A PROSPECTIVE JUROR: NONE AT ALL.

THE COURT:

THOUGHT YOU HAD FURTHER

QUESTIONS RELATED SPECIFICALLY TO HIS

14]

RELATIONSHIP TO THE UNIVERSITY.

MR. FRAZIER: OH, YES, YOUR HONOR.

THE COURT: ARE THERE ANY OF THOSE?

MR. FRAZIER: I’LL JUST ASK WITH RESPECT TO

THE UNIVERSITY. DO YOU HAVE ANY FAMILIARITY WITH

ANY OF THE PEOPLE THAT ARE IN THE EMPLOYMENT

DIVISION, THE PEOPLE WHO DO THE HIRING AT GEORGE

WASHINGTON UNIVERSITY?

A PROSPECTIVE JUROR: NO, SIR.

MR. FRAZIER: HOW LONG HAVE YOU BEEN EMPLOYED

BY GW?

A PROSPECTIVE JUROR: 18 MONTHS.

MR. FRAZIER: SO YOU'RE NOW A PERMANENT

EMPLOYEE.

A PROSPECTIVE JUROR: YES.

MR. FRAZIER: I HAVE NO FURTHER QUESTIONS.

(FROM ORIGINAL PAGE 28)

THE COURT: ARE YOU SATISFIED WITH YOUR JOB?

A PROSPECTIVE JUROR: IT’S TREATING ME GOOD

SO FAR.

THE COURT: ALL RIGHT. DO YOU HAVE ANY

FURTHER QUESTIONS?

142

MR. MEKBIB: SO YOU WORK FOR THEM. YOU GET

PAID BY THE UNIVERSITY, IS THAT CORRECT?

A PROSPECTIVE JUROR: I’M EMPLOYED BY THEM.

MR. MEKBIB: AND YOU’RE HAPPY WITH YOUR JOB?

A PROSPECTIVE JUROR: I’M CONTENT.

MR. MEKBIB: WHAT IS THE POSITION YOU HAVE

THERE?

PROSPECTIVE JUROR: I’M A MEDICAL

SECRETARY.

MR. MEKBIB: AND YOU’RE HAPPY WITH THAT.

A PROSPECTIVE JUROR: I’M CONTENT.

MR. MEKBIB: WAS THAT A PROMOTION TO ANY

PREVIOUS POSITION YOU HAD, WAS THAT

ADVANCEMENT ON YOUR PREVIOUS EMPLOYMENT?

A PROSPECTIVE JUROR: NO, HIRED.

MR. MEKBIB: THANK YOU, I HAVE NO OTHER

QUESTIONS.

THE COURT: STEP OVER THERE, PLEASE.

MR. MEKBIB: YOUR HONOR, I MUST SEEK

DISQUALIFICATION.

THE COURT: HE’LL HAVE TO BE EXCUSED.

143

(FROM ORIGINAL PAGE 29)

MR. FRAZIER: I HAVE NO OBJECTION YOUR HONOR.

THE COURT: YOU ALL CAN GO BACK TO THE WELL

OF THE COURT NOW.

MR MEKBIB: THANK YOU.

(BENCH CONFERENCE CONCLUDED).

THE COURT: DO ANY OF YOU OR ANY OF YOUR

CLOSE FAMILY MEMBERS HAVE TRAINING IN THE LAW,

PRACTICE LAW?

WOULD YOU PLEASE COME TO THE AISLE, MA‘AM?

A PROSPECTIVE JUROR: 3275.

THE COURT: YES, MA’‘AM.

A PROSPECTIVE JUROR: AND MY COUSIN IN

MINNEAPOLIS PRACTICES LAW.

THE COURT: ALL RIGHT. THANK YOU VERY MUCH.

YOU MAY BE SEATED.

IS ANYONE HERE WHO HAS BEEN HOSPITALIZED OR

TREATED AS A PATIENT AT GW?

IF YOU WILL COME BACK AGAIN, I’M SORRY.

JUROR 3275: I'VE BEEN A PATIENT AT GW

HOSPITAL AND MY DOCTOR IS ON THE STAFF.

144

THE COURT: HOW LONG AGO WERE YOU TREATED

THERE?

A PROSPECTIVE JUROR: WITHIN THE LAST TEN

YEARS.

THE COURT: WERE YOU HOSPITALIZED OR AN

OUTPATIENT?

(FROM ORIGINAL PAGE 30)

A PROSPECTIVE JUROR: I HAD AN OPERATION.

THE COURT: WELL, I THINK I’LL ASK YOU TO BE

SEATED IN FRONT AND I’LL TALK TO YOU UP HERE IN

A FEW MINUTES.

A PROSPECTIVE JUROR: 2737.

THE COURT: YES, MA’AM.

A PROSPECTIVE JUROR: I WAS AN OUTPATIENT AT

GW IN THE LAST EIGHT MONTHS.

THE COURT: DID YOU HAVE A CHANCE TO OBSERVE

THE EMPLOYEES AND EMPLOYMENT PRACTICES AT THE

TIME YOU WERE THERE?

YES, YOUR HONOR.

THE COURT: WILL YOU BE SEATED UP IN THE

FRONT THERE?

A PROSPECTIVE JUROR: 4010.

145

THE COURT: YES, MA’AM.

A PROSPECTIVE JUROR: MY SON HAD SURGERY AT

GW IN 1989 AND IS CURRENTLY STILL BEING TREATED

THERE.

THE COURT: WERE YOU THERE WHEN HE WAS

HOSPITALIZED?

A PROSPECTIVE JUROR: YES, I WAS.

THE COURT: DID YOU HAVE AN OPPORTUNITY TO

OBSERVE THE EMPLOYMENT PRACTICES THERE?

A PROSPECTIVE JUROR: YES, I DID.

THE COURT: WILL YOU BE SEATED UP FRONT?

(FROM ORIGINAL PAGE 31

A PROSPECTIVE JUROR: 4045.

THE COURT: YES, MA‘AM.

A PROSPECTIVE JUROR: I WAS TREATED IN THE

EMERGENCY ROOM AT GW TWO MONTHS AGO.

THE COURT: HOW LONG WERE YOU THERE?

A PROSPECTIVE JUROR: JUST FOR FIVE OR SIX

HOURS.

THE COURT: DID YOU HAVE AN OPPORTUNITY THERE

TO OBSERVE IN THAT TIME THE WORKING

ARRANGEMENTS?

146

A PROSPECTIVE JUROR: YES.

THE COURT: WHY DON’T YOU HAVE A SEAT IN THE

FRONT ROW.

NOW, COUNSEL IF YOU WOULD COME UP AND THE

FIRST LADY PLEASE, MA‘AM. THE LADY IN THE BLUE

SWEATER.

(BENCH CONFERENCE)

THE DEPUTY CLERK: THE NUMBER IS 3275.

THE COURT: WERE YOU SATISFIED WITH THE

MEDICAL SERVICE YOU RECEIVED AT THE HOSPITAL?

A PROSPECTIVE JUROR: YES.

THE COURT: AND WHAT WERE YOUR OBSERVATIONS

ABOUT THE PEOPLE WHO WORKED THERE, IF ANY?

A PROSPECTIVE JUROR: THEY WERE SHORT

STAFFED.

THE COURT: YES? AND THE ONES WHO WERE THERE,

WERE THEY SATISFACTORY?

YES.

(FROM ORIGINAL PAGE 32)

THE COURT: DO COUNSEL HAVE ANY QUESTIONS?

MR. MEKBIB? MR. MEKBIB: YOU WERE HAPPY WITH

THE TREATMENT YOU RECEIVED, CORRECT?

147

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: YOU WERE HAPPY WITH THE DOCTORS

THAT YOU HAD, CORRECT?

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: I HAVE NO FURTHER QUESTIONS.

MR. FRAZIER: I HAVE NO QUESTIONS, YOUR

HONOR.

THE COURT: YOU MAY BE SEATED OVER BY THE

JURY BOX. STAND OVER THERE JUST A MINUTE.

MR. MEKBIB: I MOVE TO DISQUALIFY, YOUR

HONOR.

THE COURT: I THINK WE’LL HAVE TO ELIMINATE

PEOPLE WHO HAVE BEEN PATIENTS THERE.

MR. FRAZIER: WELL, I DISAGREE, YOUR HONOR,

BUT I DON’T THINK THAT IT WOULD AFFECT HER

TESTIMONY - HER DECISION WITH REGARD TO THIS

DISCRIMINATION CLAIM.

THE COURT: THAT BRINGS UP A QUESTION. I

SHOULD HAVE TOLD YOU THIS BEFORE. BUT I WAS A

PATIENT AT GW HOSPITAL SOME THREE YEARS AGO.

I DON’T KNOW WHETHER I BROUGHT THIS’ UP

BEFORE, BUT IT SHOULD BE BROUGHT UP. I DON’T

148

CONSIDER IT A DISQUALIFYING FACTOR.

(FROM ORIGINAL PAGE 33)

MR. MEKBIB: WELL, YOUR HONOR, THAT WOULDN’T

CONCERN ME SO LONG -

THE COURT: DON’T SAY ANYTHING NOW. I AN NOT

GOING TO RECUSE MYSELF. YOU MAY NEED THIS ON

APPEAL. THE DECISION ABOUT WHETHER

Iv I%3

DISQUALIFYING IS MINE. YOU DON’T WAIVE ANY CLAIM

ABOUT IT, BUT I WANT YOU TO KNOW IT.

MR.MEKBIB: THANK YOU, YOUR HONOR.

THE COURT: IT SEEMS TO ME A JURY IS IN A

DIFFERENT SITUATION, JURORS ARE IN A DIFFERENT

SITUATION. I THINK PEOPLE WHO HAVE -- THERE MUST

BE ENOUGH PEOPLE IN THIS TOWN WHO HAVE NOT BEEN

EMPLOYED BY OR PATIENTS OF THE HOSPITAL AND CAN

LOOK AT THIS IN A FRESH WAY. I’M GOING TO EXCUSE

THIS LADY.

MR. MEKBIB: THANK YOU, YOUR HONOR.

THE COURT: WE MAY HAVE TO SEAT ANOTHER PANEL

ANOTHER DAY. WE WON’T BE ABLE TO START.

THE DEPUTY CLERK: THE NEXT PERSON?

THIS IS JUROR 2737

149

STAND RIGHT THERE, PLEASE.

THE COURT: WHAT IS YOUR EXPERIENCE AGAIN?

A PROSPECTIVE JUROR: I WAS AN OUTPATIENT AT

GW. MY HUSBAND WAS ALSO, WITHIN THE LAST EIGHT

MONTHS.

THE COURT: AN OUTPATIENT.

(FROM ORIGINAL PAGE 34)

A PROSPECTIVE JUROR: YES.

THE COURT: HOW LONG WERE YOU THERE?

A PROSPECTIVE JUROR: JUST IN AND OUT. I WENT

IN FOR A ROUTINE CHECK-UP, ROUTINE TESTS I HAD

TO HAVE RUN ON MYSELF AND --

THE COURT: FOR HOW LONG WERE YOU THERE, HOW

LONG WAS YOUR APPOINTMENT? WERE YOU PUT TO BED?

A PROSPECTIVE JUROR: OH, NO.

THE COURT: OKAY. ANYTHING ABOUT THAT

EXPERIENCE THAT GAVE YOU AN OCCASION TO OBSERVE

THE RELATIONSHIP BETWEEN PEOPLE WHO WORK THERE

IN THE HOSPITAL?

A PROSPECTIVE JUROR: YES, I SAW INTERACTION

_AND DISCUSSIONS.

THE COURT: LIKE WHAT?

150

A PROSPECTIVE JUROR: WELL, DIRECTIONS FROM

THE STAFF, SUPERIOR STAFF.

THE COURT: ANYTHING UNUSUAL ABOUT IT?

A PROSPECTIVE JUROR: NO.

THE COURT: ALL RIGHT. WHY DON’T YOU STEP

OVER -- I'M SORRY, GENTLEMEN. DO EITHER OF HAVE

YOU ANY QUESTIONS?

MR. MEKBIB: WERE YOU HAPPY WITH THE MEDICAL

TREATMENT YOU RECEIVED?

A PROSPECTIVE JUROR: YES.

(FROM ORIGINAL PAGE 35)

MR. MEKBIB: WAS YOUR HUSBAND TREATED WELL,

WERE YOU HAPPY WITH THAT?

A PROSPECTIVE JUROR: WELL, HE WASN’T HAPPY

WITH SOME OF THE TREATMENT THAT HE EXPERIENCED.

HE BROKE TWO BONES IN HIS ANKLE AND I HAD TO

TAKE HIM UP TO THE EMERGENCY ROOM AND WE WAITED

A LONG TIME AND HE WAS GIVEN DIFFERENT SETS OF

INFORMATION ABOUT HIS TREATMENT AND HOW LONG HE

WOULD BE DETAINED THERE BY TWO DIFFERENT

DOCTORS AND HE WAS NOT HAPPY WITH THAT UNTIL THE

ISSUE WAS RESOLVED.

151

MR. MEKBIB: BUT THAT ISSUE WAS RESOLVED.

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: THEN HE WAS HAPPY.

A PROSPECTIVE JUROR: HE WAS -- HE WASN'T

HAPPY THAT HE HAD TO SIT THERE AND WAIT THROUGH

THE LONG PROCESS BEFORE IT WAS RESOLVED, BUT

WITH THE OUTCOME, YES, HE WAS. I’VE BEEN WITH

THE ORGANIZATION A LONG TIME SO IT’S NOTHING

THAT --

MR. MEKBIB: WITH WHAT ORGANIZATION?

A PROSPECTIVE. JUROR: GEORGE WASHINGTON

HEALTH FOR YEARS, AND IT’S JUST DIFFERENT

CIRCUMSTANCES, BUT I HAVE-

THE COURT: LET ME ASK YOU THIS, WOULD THOSE

EXPERIENCES IMPAIR YOUR ABILITY TO DECIDE THIS

CASE ON THE FACTS ABOUT MISS SCALES’ SITUATION

(FROM ORIGINAL PAGE 36)

AND THE HOSPITAL'S EMPLOYMENT PRACTICES ON THE

BASIS OF WHAT YOU HEAR IN THE COURTROOM AS

DISTINGUISHED FROM WHAT YOU MIGHT HAVE LEARNED

SITTING AROUND THERE?

A PROSPECTIVE JUROR: NO.

152

THE COURT:

WHY DON’T YOU STEP ASIDE A

MOMENT?

LET ME ASK YOU THIS, GENTLEMEN, ISN’T THERE

A GOOD REASON TO DRAW A LINE BETWEEN SOMEBODY

WHO HAS BEEN THERE AS AN OUTPATIENT AND SOMEBODY

WHO HAS BEEN HOSPITALIZED AND HAD OCCASION TO

REALLY

OBSERVE NURSING CARE AND NURSES

OPERATING?

MR. MEKBIB: THERE MAY BE, THOUGH IN THIS

PARTICULAR SETTING I SEE DIFFERENT THINGS. HER

COUSIN IS AN EMPLOYEE OF THE UNIVERSITY.

THE COURT: I DIDN’T HEAR THAT.

MR. MEKBIB: YES.

THE COURT: LET ME ASK HER THAT.

THE DEPUTY CLERK: MA’AM, CAN YOU COME BACK

HERE?

THE COURT: DO I UNDERSTAND THAT THERE’S ALSO

A RELATIVE OF YOURS EMPLOYED THERE?

A PROSPECTIVE JUROR: YES.

THE COURT: WHAT IS HE OR SHE EMPLOYED AS?

A PROSPECTIVE JUROR: WELL, I’M NOT SURE OF

HER TITLE BUT I BELIEVE SHE WORKS IN A CLERICAL

153

(FROM ORIGINAL PAGE 37)

CAPACITY.

THE COURT: HOW LONG HAS SHE BEEN THERE?

A PROSPECTIVE JUROR: SEVERAL YEARS.

THE COURT: AND DO YOU TALK TO HER ABOUT HER

WORK?

A PROSPECTIVE JUROR: NO, I DON’T.

THE COURT: DO YOU TALK TO HER ABOUT THE

SITUATION THERE AT ALL?

A PROSPECTIVE JUROR: NO, I DON'T.

THE COURT: IS THERE ANY OTHER RELATIONSHIP

THAT YOU WANT TO INQUIRE ABOUT?

MR. MEKBIB: YOUR HEALTH PLAN IS WITH GEORGE

WASHINGTON.

A PROSPECTIVE JUROR: YES, GEORGE WASHINGTON

HEALTH PLAN.

MR. MEKBIB: HOW LONG DID YOU HAVE THAT

HEALTH PLAN?

A PROSPECTIVE JUROR: I KNOW AT LEAST TEN

YEARS.

MR. MEKBIB: IS IT A PLAN THAT HAS BEEN

SUBSCRIBED TO BY YOUR EMPLOYER OR IS IT A

154

PRIVATE PLAN THAT YOU HAVE?

A PROSPECTIVE JUROR: IT’S A PLAN -- I WORK

FOR THE DISTRICT GOVERNMENT SO IT’S A PLAN

THROUGH THEM.

MR. MEKBIB: I SEE. THANK YOU.

(FROM ORIGINAL PAGE 38)

THE COURT: THANK YOU. WOULD YOU GO BACK

THERE, MA‘’AM?

MR. MEKBIB: YOUR HONOR, IT SEEMS TO ME THAT

WORKING FOR THE DISTRICT GOVERNMENT WITH THE

MULTITUDE OF OPTIONS, MEDICAL CARE PLANS SHE

HAS, SHE CHOSE THE GEORGE WASHINGTON UNIVERSITY.

SHE OBVIOUSLY HAS INCLINATIONS, THOUGH SHE MAY

NOT BE CONSIDERED AS BIASED, THAT IS

OBVIOUSLY -- THAT IS THAT CONTACT AND LEANING

WHICH IS ONGOING AND DIFFERENT IN MY VIEW TO

LEAD TO DISQUALIFY THIS PERSON.

MR. FRAZIER: I HAVE NO OBJECTION.

THE COURT: LET HER GO.

WILL THE NEXT PERSON COME BACK, PLEASE?

ARE EITHER OF THE TWO SPECTATORS WITNESSES?

155

MR. FRAZIER: DR. WORK IS MR. MEKBIB’S

WITNESS.

THE COURT: IS THAT A WITNESS SITTING THERE?

MR. MEKBIB: YES.

THE COURT: LET’S HAVE A RULE ON WITNESSES.

THE DEPUTY CLERK: IF THERE’S ANY PERSON IN

THE COURTROOM WHO WILL BE APPEARING AS A

WITNESS IN THIS MATTER PLEASE STEP INTO THE

HALLWAY.

THIS IS JUROR NUMBER 4010.

THE COURT: YES, MA’AM.

(FROM ORIGINAL PAGE 39)

A PROSPECTIVE JUROR: OKAY. MY SON WAS

HOSPITALIZED AT GW IN 1989.

THE COURT: YES, AND WERE YOU THERE A GOOD

DEAL WHILE HE WAS THERE?

A PROSPECTIVE JUROR: YES.

THE COURT: DID YOU HAVE OCCASION TO OBSERVE

THE WORK OF THE STAFF?

A PROSPECTIVE JUROR: YES, I DID.

THE COURT: WERE YOU SATISFIED WITH THE WAY

THEY WORK?

A PROSPECTIVE JUROR: YES, I WAS.

THE COURT: AND DID YOU OBSERVE THE

RELATIONSHIP BETWEEN THE STAFF AND THE

MANAGEMENT AT ALL?

A PROSPECTIVE JUROR: THE STAFF AND THE

MANAGEMENT? |

THE COURT: YES.

A PROSPECTIVE JUROR: NO.

THE COURT: DO COUNSEL HAVE ANY QUESTIONS?

MR. MEKBIB: WHAT KIND OF MEDICAL NECESSITY

DID YOUR SON HAVE? WHAT WAS THE REASON WHY YOUR

SON WENT THERE?

A PROSPECTIVE JUROR: HE HAD A PITUITARY

TUMOR.

THE COURT: HOW LONG WAS HE HOSPITALIZED?

(FROM ORIGINAL PAGE 40)

A PROSPECTIVE JUROR: OH, MAY 22ND, 1989

UNTIL JUNE, JUNE ‘HE 3RD OR THE 4TH, ‘89. THEN

HE WENT BACK IN FOR ABOUT 30 DAYS ON JUNE THE

7TH AROUND THE 1ST OF JULY, ‘89 AND NOW HE’S

GOING FOR TREATMENT ONLY.

THE COURT: HE WASN‘T IN BED ALL THAT TIME.

157

A PROSPECTIVE JUROR: HE WASN'T IN BED?

THE COURT: I MEAN HE WASN’T HOSPITALIZED ALL

THAT TIME, OR WAS HE?

A PROSPECTIVE JUROR: HE WAS HOSPITALIZED

FROM MAY THE 22ND, ‘89 UNTIL JUNE THE 3RD OR

4TH, ‘89.

THE COURT: FOR THE 30 DAYS, WAS HE ALSO

HOSPITALIZED FOR THE 30 DAYS?

A PROSPECTIVE JUROR: YES.

THE COURT: HE WAS ACTUALLY IN BED IN THE

HOSPITAL.

A PROSPECTIVE JUROR: YES.

THE COURT: AND YOU VISITED HIM.

A PROSPECTIVE JUROR: EVERY DAY, ALL DAY

LONG, UNTIL THEY PUT ME OUT.

THE COURT: THANK YOU. MA‘’AM.

DO YOU HAVE ANY FURTHER QUESTIONS?

MR. MEKBIB: NO.

THE COURT: DO YOU WANT TO STEP OVER THERE.

WHAT’S YOUR FEELING ABOUT THAT?

MR. MEKBIB: CLEARLY, YOUR HONOR, SHE HAS A

FR ORIGIN GE 41

PASSIONATE ATTACHMENT TO THE HOSPITAL.

THE COURT: THAT’S A LITTLE OVERSTATEMENT,

BUT I’LL HAVE TO HONOR YOUR MOTION.

MR. QUINN: SHE’S DISQUALIFIED?

THE COURT: THE NEXT PERSON, PLEASE?

WHY DON’T YOU TRY TO FIND OUT IF THERE’S

ANOTHER PANEL UP THERE?

THE DEPUTY CLERK: COME RIGHT OVER HERE,

MA’AM. AND THIS IS JUROR NUMBER 4045.

THE COURT: YES, MA’AM.

A PROSPECTIVE JUROR: I JUST WENT INTO THE

EMERGENCY ROOM.

THE COURT: HOW LONG?

A PROSPECTIVE JUROR: TWO MONTHS AGO. I HAD A

BROKEN TOE.

THE COURT: FOR HOW LONG WERE YOU THERE?

A PROSPECTIVE JUROR: MAYBE FIVE HOURS IN THE

EMERGENCY ROOM.

THE COURT: AND DID YOU HAVE OCCASION TO

OBSERVE THE RELATIONSHIP BETWEEN THE STAFF AND

THE MANAGEMENT?

159

A PROSPECTIVE JUROR: NO, NO, YOUR HONOR.

THE COURT: ANY QUESTIONS BY EITHER COUNSEL?

MR. FRAZIER: DID YOU -- WERE YOU HAPPY WITH

THE TREATMENT YOU RECEIVED?

(FROM ORIGINAL PAGE 42)

A PROSPECTIVE JUROR: YES.

MR. FRAZIER: DID YOU THINK THAT IT WAS

UNREASONABLE FOR YOU TO HAVE TO BE THERE FOR

FIVE OR SIX HOURS TO HAVE YOUR TOE TREATED?

A PROSPECTIVE JUROR: I THOUGHT IT WAS A LONG

TIME.

MR. FRAZIER: WOULD THAT AFFECT YOUR DECISION

IN THIS CASE?

A PROSPECTIVE JUROR: NO.

THE COURT: MR. MEKBIB?

MR. MEKBIB: IF YOU WERE TO HAVE, GOD FORBID,

ANOTHER EMERGENCY, WOULD YOU BE GOING BACK TO

THAT HOSPITAL?

A PROSPECTIVE JUROR: I DIDN’T UNDERSTAND THE

QUESTION.

MR. MEKBIB: IF YOU, GOD FORBID, IF YOU HAVE

ANOTHER EMERGENCY, WOULD YOU GO BACK TO THAT

160

HOSPITAL?

A PROSPECTIVE JUROR: YES, I WOULD.

MR. MEKBIB: FOR TREATMENT.

A PROSPECTIVE JUROR: YES.

MR. MEKBIB: SO YOU ARE CONTENT WITH THE

SERVICE YOU RECEIVED THERE.

A PROSPECTIVE JUROR: YES.

THE COURT: YOU MAY BE SEATED OVER THERE JUST

A MOMENT, MA’AM.

(FROM ORIGINAL PAGE 43)

HOW DO YOU FEEL ABOUT THAT?

MR. MEKBIB: I THINK THE SAFEST APPROACH

WOULD BE TO EXCLUDE HER.

THE COURT: IT SEEMS TO ME HER -- THAT’S A

MARGINAL CONTACT. SHE DIDN’T SORT OF LIVE THERE

AND REALLY DIDN’T HAVE OCCASION TO OBSERVE THE

WORKING ARRANGEMENTS. THE FACT -- IT’S LIKE

SAYING THAT SOMEBODY CAN’T BE INVOLVED IN A

LAWSUIT INVOLVING WOODWARD & LOTHROP BECAUSE

THEY BOUGHT A DRESS THERE AND WERE DISSATISFIED

WITH IT. THE MOTION IS DENIED WITH RESPECT TO

THIS JUROR.

161

THE DEPUTY CLERK: MA’AM, YOU CAN TAKE YOUR

SEAT IN COURT.

THE COURT: OKAY. WHY DON’T YOU STEP ASIDE

WITHOUT TAKING YOUR SEAT AND LET’S SEE WHAT WE

GET HERE. JUST GIVE ME A LITTLE ROOM.

(BENCH CONFERENCE CONCLUDED).

THE COURT: DOES ANYONE HERE HAVE A JOB

ADMINISTERING CLAIMS AS IN AN INSURANCE COMPANY

OR FOR A GOVERNMENT AGENCY? I TAKE IT THAT NONE

DOES.

HAS ANYBODY HERE BEEN HIMSELF OR HERSELF OR

HAVE A CLOSE FAMILY MEMBER OR CHOICE FRIEND WHO

HAS BEEN INVOLVED IN AN INFORMAL OR FORMAL

ADMINISTRATIVE OR JUDICIAL PROCEEDING INVOLVING

A CLAIM OF DISCRIMINATION, DISCRIMINATION BASED

ON AGE OR GENDER OR RACE OR QUESTIONS THAT ARE

(FROM ORIGINAL PAGE 52)

BEING ASKED. I’LL ASK YOU TO AVOID COMING IN ANY

CONTACT WITH ANY OF THE PEOPLE YOU SEE IN THE

ROOM HERE AND THEY WILL AVOID CONTACT WITH YOU.

WE DON’T WANT ANY CONVERSATION BETWEEN A JUROR

AND A LAWYER OR POTENTIAL WITNESS. THERE’S A

162

Rte Reid eet

POTENTIAL WITNESS OUTSIDE. BUT JUST COME BACK IN

TEN MINUTES.

( RECESS).

THE COURT: THE JURY IS ALL PRESENT?

THE DEPUTY CLERK: SHALL I CALL THEM AGAIN?

THE COURT: HAS ANY MEMBER OF YOUR FAMILY

BEEN INVOLVED IN ANY KIND OF A LAWSUIT OR

CONTROVERSY ON ANY SUBJECT? HAVE YOU PERSONALLY?

NONE HAVE.

HAVE ANY OF YOU BEEN INVOLVED IN A DISPUTE

WITH YOUR EMPLOYER, OR IF YOU’RE AN EMPLOYER,

WITH AN EMPLOYEE THAT YOU CONSIDER BRINGING TO

OUR ATTENTION?

NOBODY HERE HAS BEEN DENIED A PROMOTION YOU

FELT YOU SHOULD HAVE GOTTEN OR A JOB THAT YOU

THOUGHT YOU SHOULD HAVE GOTTEN?

OKAY. DO ANY OF YOU BELIEVE THAT A BLACK

PERSON IS MORE LIKELY TO BE THE VICTIM OF RACIAL

DISCRIMINATION THAN PEOPLE OF OTHER RACES?

WOULD YOU COME UP TO THE BENCH PLEASE?

(BENCH CONFERENCE) .

THE DEPUTY CLERK: TELL US YOUR NUMBER AGAIN.

163

FROM ORIGINAL PAGE 53

A PROSPECTIVE JUROR: 6148.

THE COURT: YES, MA’AM.

A PROSPECTIVE JUROR: DID I MISUNDERSTAND

YOUR QUESTION? DID YOU NOT SAY THAT DID I NOT

THINK THAT BLACK PEOPLE WERE MORE LIKELY TO BE

DISCRIMINATED AGAINST?

THE COURT: THE QUESTION WAS DO YOU THINK

BLACK PEOPLE WOULD BE -- WOULD BLACK PEOPLE BE

MORE LIKELY TO BE THE VICTIM OF DISCRIMINATION

THAN WHITE PEOPLE.

A PROSPECTIVE JUROR: I THINK GIVEN THE

HISTORY OF THIS COUNTRY, YES.

THE COURT: YOU MAY RETURN TO YOUR SEAT.

MR. QUINN: WHAT WAS YOUR NUMBER AGAIN?

THE DEPUTY CLERK: YOU SAID 6148?

A PROSPECTIVE JUROR: YES.

THE DEPUTY CLERK: THERE IS NO NUMBER HERE.

A PROSPECTIVE JUROR: I’M SORRY, 4168.

(BENCH CONFERENCE CONCLUDED).

THE COURT: WOULD ANYBODY HERE BE RELUCTANT

TO DECIDE IN FAVOR OF A CORPORATION IN A DISPUTE

164

WITH AN INDIVIDUAL?

A PROSPECTIVE JUROR: REPEAT THAT AGAIN,

PLEASE?

THE COURT: WOULD ANYBODY HERE BE RELUCTANT

165

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES, CIVIL ACTION NO. 89-796

PLAINTIFF, WASHINGTON, D.C.

APRIL 22, 1993

V. 9:30 A.M.

GEORGE WASHINGTON UNIVERSITY,

DEFENDANT.

EXCERPT

TESTIMONY OF MICHAEL TILLMAN

TRANSCRIPT OF BENCH TRIAL

BEFORE THE HONORABLE LOUIS F. OBERDORFER

SENIOR UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF: WENDU MEKBIB, ESQ.

FOR THE DEFENDANT: JACK M. H. FRAZIER, ESQ.

COURT REPORTER: CARRIE LUCINA GANSLE, CVR-CM

OFFICIAL COURT REPORTER

6808 U.S. DISTRICT COURT

3RD & CONSTITUTION AVE., N.W.

WASHINGTON, D.C. 20001

(202) 289-6791

PAGES 1 - 99

PROCEEDINGS REPORTED BY STENOMASK; TRANSCRIPT

PRODUCED FROM DICTATION.

166

(FROM ORIGINAL PAGE 92)

THE -- TO ONE OF THE MOTIONS.

‘s

wah tek uta

THE COURT: IS THERE ANYTHING HE COULD ADD

TO THE DOCUMENT?

MR. FRAZIER: HE CAN EXPLAIN THE DOCUMENT

FOR THE BENEFIT OF THE COURT.

THE COURT: WELL, ISN’T THAT A MATTER OF

ARGUMENT?

MR. FRAZIER: WELL, YOUR HONOR, I DON’T

KNOW WHETHER MR. MEKBIB IS GOING TO CONCEDE

THAT HE’S QUALIFIED AS AN EXPERT. BUT SEPARATE

AND APART FROM THAT, GIVEN THE CONFUSING

NATURE OF STATISTICAL EVIDENCE IN GENERAL, I

DO NOT KNOW HOW UNDERSTANDING YOUR HONOR IS IN

STATISTICS.

THE COURT: IT’S CONSIDERABLE. I HAVEN‘T

BEEN HERE FOR 15 YEARS AND IN PRACTICE FOR 45

FOR NOTHING.

MR. FRAZIER: YOUR HONOR, I’VE TAKEN

STATISTICS TWICE AND I’M STILL VERY MUCH IN

THE DARK.

THE COURT: WELL, I’M NOT IN THE DARK.

167

MR. FRAZIER: VERY WELL, YOUR HONOR. THE

OTHER EXPERT, YOUR HONOR, IS LINDA CARL. SHE‘’S

BEING PROFFERED AS AN EXPERT WITH REGARD TO

NURSING, NURSING PRACTICES AND PROCEDURES,

NURSING QUALIFICATIONS. SHE HAS PERFORMED

NUMEROUS SITE REVIEWS OF HOSPITALS IN WHICH

THAT BECOMES AN ISSUE WITH REGARD TO STAFF OF

THOSE HOSPITALS FOR VARIOUS --

THE COURT: DID SHE SUBMIT AN AFFIDAVIT IN

SUPPORT OF YOUR -

MR. FRAZIER: SHE HAS NOT SUBMITTED AN

AFFIDAVIT.

(FROM ORIGINAL PAGE 93)

THE COURT: WHERE IS SHE GOING TO BE?

MR. FRAZIER: SHE’S GOING TO BE OUT OF

TOWN, BUT I’M NOT SURE WHERE. BUT SHE’S

INDICATED TO ME THAT SHE IS LEAVING WEDNESDAY

THROUGH APRIL 6TH.

THE COURT: MAY 6TH.

MR. FRAZIER: MAY 6TH.

THE COURT: IS THAT WHAT YOU MEAN?

MR. FRAZIER: YES, YOUR HONOR.

168

THE COURT: IS THERE ANY REASON WHY, MR.

MEKBIB, THAT WE COULD NOT EXAMINE HER OUT OF

ORDER?

MR. MEKBIB: NO. AS A MATTER OF FACT, I

WAS GOING TO SUGGEST THAT; THAT BOTH

WITNESSES, IF NEED BE, BE TESTIFYING ON

TUESDAY.

THE COURT: NOW, THAT WILL PERHAPS CLOUD

YOUR ABILITY, THE DEPENDANT’S ABILITY TO MOVE

AT THE COMPLETION OF PLAINTIFF’S CASE, BUT I

THINK WE’D BETTER PUT THIS WHOLE -- PUT YOUR

STORY ON THE RECORD, TOO. I PROBABLY WOULDN’T

GRANT THAT MOTION ANYWAY.

MR. FRAZIER: YES, YOUR HONOR.

THE COURT:

SO LET’S TAKE THOSE WITNESSES

OUT OF ORDER.

MR. MEKBIB: ALL RIGHT.

THE COURT: WOULD YOU PREPARE THEM TO THE

FULLEST EXTENT POSSIBLE SO THAT THEIR

TESTIMONY IS IN BRIEF FORM AND IN THE CASE OF

THE STATISTICIAN, FOCUSED ON THE DOCUMENTS

THAT ARE

169

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DEBORAH QUICK SCALES, DOCKET NO. CA 89-0796

LFO

PLAINTIFF, WASHINGTON, D.C.

Vv. WEDNESDAY, MAY 5, 1993 F

GEORGE WASHINGTON UNIVERSITY, :

DEFENDANT.

VOLUME 12

TRANSCRIPT OF BENCH TRIAL

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.