# Appendix — Scales v. George Washington University > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1561%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1104 ## 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 vy 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 2 002 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 1 006 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 2 -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. I. A. Plaintiff and defendant agree that plaintiff has established a prima facie case of 3 008 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 4 009 ny 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 2 010 % - 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. 6 011 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. B. 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 8 013 - 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 ee 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 9 014 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. 10 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 11 016 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 12 017 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 13 018 en et 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. 14 019 D. 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. 15 020 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 16 021 RN as Scales’ § 1981 claims in counts three and four will be granted. E. 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 4 z | 17 022 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. 18 023 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 a 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 1 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 2 027 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. II 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. 4 029 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 5 | 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 6 031 Bn eesti hatte LY lh as 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 7 032 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 8 033 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 9 034 BRED Ps ; : | a | 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). 10 039 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 12 037 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 13 038 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. 14 039 aT D. Next, plaintiff alleges that defendant breached an implied covenant of good faith and fair dealing. Complaint at 42-43. heaves, , her constructive discharge -- and the complaint was filed in 18 043 ge March of 1989, sixteen months later, her emotional distress claim is time barred. Date: November 15, 1991 UNITED STATES DISTRICT JUDGE 19 044 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 V. 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 20 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 21 046 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 1 j ‘ z : 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 2 045 Aa WA eg below, an accompanying Order will =§ grant defendant’s motion for summary judgment and dismiss plaintiff’s common law fraud claim.! I. 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. 3 049 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. 4 050 eA Te oy 2 Dn ri een ee ee Ac G ; + ) 4 3 i 3 3 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. A. 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 3 051 CO 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. 6 052 OO (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 7 053 eT 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). B. 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 8 054 j 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 9 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 10 056 claim of fraudulent concealment sufficient to toll the statute of limitations. Date: August 21, 1992 UNITED STATES DISTRICT JUDGE | ; 3 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! 11 057 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 12 058 Columbia rules on the retroactive application of the Civil Rights Act of 1991. UNITED STATES DISTRICT JUDGE 13 059 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 1 060 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. I. 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 2 061 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 3 062 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 4 063 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. 6 065 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 4 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. 9 068 : ; ~ : 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 10 069 Ce 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 2 4 $ iE) 3 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 2 071 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. 3 072 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’ 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 8 129 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. 9 130 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? 10 131 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). 11 132 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 12 133 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 13 134 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 14 135 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 15 136 a 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. 16 137 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 17 138 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 18 139 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 19 140 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: I THOUGHT YOU HAD FURTHER QUESTIONS RELATED SPECIFICALLY TO HIS 20 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? 21 142 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? A 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. 22 143 (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. 23 144 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. 24 145 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? 25 146 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? 26 147 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 27 148 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 28 149 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? 29 150 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. 30 151 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. 31 152 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 32 153 (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 33 154 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? 34 155 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. 36 157 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 2 4 | 4 3 4 J i § % 3 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? 38 159 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 39 160 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. 40 161 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 41 162 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. 42 163 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 43 164 WITH AN INDIVIDUAL? > f % A PROSPECTIVE JUROR: REPEAT THAT AGAIN, PLEASE? THE COURT: WOULD ANYBODY HERE BE RELUCTANT TO "J 44 165 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. 2 & ‘s ee 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. we 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 BEFORE THE HONORABLE LOUIS F. OBERDORFER UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF: WENDU MEKBIB, ESQ. FOR THE DEFENDANT: JACK M. H. FRAZIER, ESQ. COURT REPORTER: WILLIAM D. MC ALLISTER OFFICIAL COURT REPORTER ROOM 4806-B, U.S. COURTHOUSE 333 CONSTITUTION AVENUE, N.W. WASHINGTON, D.C. 20001-2803 (202) 371-6446 PROCEEDINGS REPORTED BY STENOMASK; TRANSCRIPT PRODUCED FROM DICTATION. PAGES 12-1 THROUGH 12-156 170 i 2 x 1 3 8 2 a (FROM ORIGINAL PAGE 12-43) MR. MEKBIB: Good morning, Your Honor. At the outset, Your Honor, I would like to indicate that when Mr. Frazier brought forth his expert witnesses to testify out of turn, you inquired that the reason why those experts would not be allowed to testify out of turn is because that would disrupt the defendant’s ability to bring forth its current motion, and you indicated at that time that even if such a motion is brought, you were going to deny it anyway, and predicated on that, you proceeded THE COURT: I said I was going to deny the motion? MR. MEKBIB: I believe you stated that. THE COURT: I couldn’t have said that. If I did, that’s impossible. MR. MEKBIB: At least that’s what I think I heard. THE COURT: I don’t remember saying anything like that, Mr. Mekbib. I’m going to decide the motion on the merits of it. 171 MR. MEKBIB: I’ll show it to be entirely meritless. Over the past 11 days that we have been presenting the case, the plaintiff has established three independent, separate prima facie cases. The first one of those cases, the prima facie case, is the one predicated on Davis versus Califano, cited at 613 F.2d 957, 1979. It’s a decision by the United States Court of Appeals for the District of Columbia Circuit. And I quote from page 962 of that decision. It states, 172 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEBORAH QUICK SCALES, DOCKET NO. CA 89-0796 LFO PLAINTIFF, WASHINGTON, D.C. Vv. TUESDAY, MAY 4, 1993 9:53 A.M. GEORGE WASHINGTON UNIVERSITY, DEFENDANT. EXCERPT VOLUME 11A TRANSCRIPT OF BENCH TRIAL BEFORE THE HONORABLE LOUIS F. OBERDORFER UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF: WENDU MEKBIB, ESQ. FOR THE DEFENDANT: JACK M. H. FRAZIER, ESQ. COURT REPORTER: WILLIAM D. MC ALLISTER OFFICIAL COURT REPORTER ROOM 4806-B, U.S. COURTHOUSE 333 CONSTITUTION AVENUE, N.W. WASHINGTON, D.C. 20001-2803 (202) 371-6446 PROCEEDINGS REPORTED BY STENOMASK; TRANSCRIPT PRODUCED FROM DICTATION. PAGES 11A THROUGH 11-14 173 (FROM ORIGINAL PAGE 11A-2) PARTIAL PROCEEDINGS MR. FRAZIER: Let me just preface my remarks. In the course of the proceedings up until now we did have testimony of several defense witnesses. Your Honor has indicated that for these purposes here we are not going to consider that testimony and I’m not going to argue based upon what Dr. Seberhagen or Ms. Carl had to say regarding what they did or regarding what Ms. McCarthy had to say, not on Mr. Mekbib’s direct or my cross or his redirect. That I’ll talk about, and what she said on my direct, I won’t talk about. If I inadvertently say something -- you know, it’s very easy for me to separate out what Dr. Seberhagen and Ms. Carl had to say, but it’s not that easy for Ms. McCarthy because it is the same person. Now, Your Honor, at this point ordinarily we would be at that stage of the trial where we would be looking at the McDonnell-Douglas test to ascertain whether the plaintiff has 174 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEBORAH QUICK SCALES, Plaintiff, Vv. GEORGE WASHINGTON UNIVERSITY, Defendant. Civil Action No. 89-796-LFO FILED JANUARY 25, 1991 AFFIDAVIT OF DR. JOHN W. WORK, IV I, John W. Work, IV, PH.D., make this affidavit under the penalties of perjury and on the understanding that it is being submitted in connection with the above-captioned civil case. I also make this affidavit with the understanding that I will be called upon to testify, and am willing to testify, at the trial of the case as scheduled in March 1991. 1. Since 1979, I have served as the President and Senior Principal of John W. Work Associates, Inc., 276 Fifth Avenue, Suite 905, New York, New York, 10001. My prior work 1 175 experience and positions include the following: Vice President for Human Resources, Equitable Life Assurance Society, New York Director, Urban Center, State University of New York; Adjunct Associate Professor, at City College of New York and Bernard Baruch College; Manager, Economics Studies Unit, Dayton-Hudsons, Inc., Minneapolis, Minnesota. 2. My educational background includes a Doctor of Business Administration (with major in Management Economics), Indiana Northern University; Marshall Field Fellow, Economics, University of Chicago; Master of Science, Economics, University of Tennessee. 3. I have authored and published several books, papers and articles on a variety of subjects in labor economics, human resources management, equal employment opportunity, cultural diversity plans and programs and associated subjectsc. These include my books: Race, Economics, and Corporate America, Scholarly Resources, tae. (1984); Toward 2 176 Affirmative Action and Racial/Ethnic Pluralism: How to Train in Organizations, The Belvedere Press, (1989); and The Econometrics of Racial Discrimination an ual Employment Opportunity for Blacks: An Econometric Approach, (PH.D. thesis, May 1973). 4. My firm, John W. Work Associates, Inc., is a management consulting firm engaged in providing services in the field of human resources management with a specialized focus on minority work force dynamics [from training, to recruitment, to EEO/AA plans and programs, cultural diversity management, work force developmental integration, and an array of related subjects.] Our clients include IBM, Revlon, Equitable Life, Mutual of New York, American Red Cross, United Way of America, Camp Fire, Girl Scouts of America, et. al. 3 177 PAGES 3 - OF O INAL _O 27. Our analysis and the results thereof lead to the inescapable conclusion that any requirement for a Master’s degree for Nursing Unit Coordinator positions at the Department of Nursing is a requirement [a] that is not supported by job performance related criteria, and [b] that has a direct and substantial adverse impact on the opportunities of Black R/Ns to compete for these positions. Furthermore, considering the fact that the predominant number of NUCs at the Department of Nursing have Bachelor’s degrees and have performed very well, the suggestion that Ms. Scales, the plaintiff, was denied a promotion to a NUC position due to her lack of a Master's degree is merely a camouflage for her racially motivated exclusion. After all, there is no better measure of the educational qualification needed for the Nursing Unit Coordinator jobs than the Nursing Department’s own performance experience with nurses of diverse educational 4 178 qualifications. That performance experience base of the Department of Nursing leaves no doubt that a Master’s degree credential has _ no relevance to, and is not shown to contribute anything to, the ability to perform the duties and responsibilities of NUC. IV. A COMPARATIVE ASSESSMENT OF NURSING UNIT COORDINATOR AND ASSISTANT NURSE COORDINATOR POSITIONS AT GWU HOSPITAL, DEPARTMENT OF NURSING 28. Finally, my firm was requested to compare and contrast the job duties and responsibilities of Nursing Unit Coordinator (NUC1 and Assistant Nurse Coordinator [ANC] in order to respond to the question: whether or not the plaintiff’s move from the position of an ANC to that of an NUC would have entailed Significant changes to constitute a promotion." Put differently, what would have been the relational changes that would have taken place had the plaintiff’s position changed from ANC to NUC? s 179 29. To address this question, we proceeded on the premise that each organization is different and would have its own unique internal organizational structure. Therefore, the starting point is the organizational chart of the Department of Nursing. We were provided a four-page document (including an organizational chart and a list of the incumbents) showing the management structure of the Department of Nursing. This document is attached hereto as Exhibit 24. The chart leaves very little to _ the imagination - NUCS occupy a conspicuous and prominent position in the top management hierarchy and appear to be the critical link between the top executives of the department and the lower echelons of supervisory personnel and Support staff. The Nursing Department is essentially a composite of specialized nursing units each headed by a NUC. The nursing units are not the sub-functions of the department but rather the primary functional components of the - 180 department. Without the nursing units, there are no replacement or alternative structures one could look for. The nursing units are the Nursing Department. By contrast, the chart does not show or make any reference to ANCs. This indicates to us that, at least, from the stand point of the top management and executive structures, ANCs are unimportant and, certainly, not part of the high level management and executive positions. Therefore, the chart itself provides the first major distinction which exists between the NUC and ANC positions. In effect, it tells us that the two positions are not at comparable levels of significance and that the ANC position is outside the ambit of the top level executive and management positions in the Department of Nursing. 30. In Table 1 (Exhibit 1), the nursing management positions in the Department of Nursing are listed in their hierarchial order of Significance. The NUC job is the top third position in the department, while the ANC . 181 position is listed at number 11. In addition, the ANC position has undergone reclassification in 1988 resulting in the splitting of the job between a higher Clinical Nurse V and a lower Clinical Nurse IV positions. The Table also reflects the grade differentials between the NUC and ANC jobs. The NUC is the second top graded position in the department, while the ANC job, though not shown by grade, stands at a lower grade level. Thus, Table 1 reinforces our inference from the organizational chart that the two positions are not at comparable levels of Significance and that the ANC position is outside the ambit of the top level executive and management positions in the Department of Nursing. 31. The next step in our analytical approach was a comparative examination of the job descriptions for the NUC and ANC positions. The job description for the NUC position, issued on 8/11/95, is provided here with as Exhibit 25. The job description for the ANC position, issued 8 182 on 5/16/83, is attached as Exhibit 26. Absent weighted factors provided for analysis, our standard methodology for comparisons of job descriptions begins with an assessment of the stipulated entry-level qualifications, if any, set forth in the job descriptions. This gives us a pretty good idea as to the relative value the employer attaches to a given job in terms of what it perceives to be the minimal education, experience and other requirements needed for the given job relative to others. Noticeable differences in stipulated entry-level qualifications between jobs provides a reliable measure of the differences in levels of responsibility and significance the employer attaches to varying positions. There are clear, distinct and substantial differences between the entry-level qualifications stipulated for the NUC and ANC positions at the Department of Nursing. Hence: a. In terms of education, the stipulated requirement for the NUC job is “a _Master’s 9 183 degree in Nursing or the equivalent combination of education and experience.” By contrast, the ANC job only requires “a Bachelor’s degree in Nursing or an equivalent-combination of training and experience.” Thus, the Department of Nursing perceives the NUC position as much higher level position relative to the ANC in terms of the educational level it expects from entry-level candidates. The two jobs are clearly distinct and different. b. In terms of level of experience, the NUC job requires “three years of current clinical experience in the particular clinical area.” By contrast, the ANC job merely requires “two years of nursing experience." Beyond the number of years of experience required, the distinction is critical in establishing the "type" of experience required. Thus, the NUC is not only required to have experience which is Current, but his/her experience is expected to be to be specific in terms of its Clinical" base and also particular in terms of the Clinical areas 10 184 itself. By contrast, the ANC job does not state any need for a specialized, specific or particular experience. Suffice it that the individual has two years Nursing experience regardless of clinical field or, indeed, outside ef the clinical field. c. In terms of supervisory experience, the NUC position requires “at least one year of supervisory experience.” No actual supervisory experience is stated for the ANC job other than demonstration of Supervisory ability.” 32. Another critical element of the job descriptions we examined are the definitions of "Basic Function and Responsibility” stipulated for the NUC and ANC positions. Here again, the differences are distinct, clear and substantial: a. In terms of basic functions and responsibility, the NUC serves as the “operational head of an assigned unit, has twenty four hour responsibility for the clinical and administrative functioning of the unit area." In short, the NUC is the head of the 11 185 unit responsible for its operations and administrative functioning. This role of the NUC is consistent with what was projected in the organizational chart, i.e. the NUC occupies the top management and administrative position linking the executive group of the Nursing Department with the rest of the department’s operational facets. Again, the NUC is not a sub-functional leader, but a functional authority. b. By contrast, the ANC’s basic function and responsibility is limited to “providing nursing care for individual and groups of patients and assisting the Nursing Unit Coordinator in the clinical and administrative management of the unit." It is quite apparent that the ANC is fundamentally a staff person providing individual nursing care. He/she hes no operational responsibility. He/she has no administrative or management responsibility other than assisting the NUC as assigned. Therefore, we perceive no similarity whatsoever 12 186 between the NUC and the ANC in terms of their basic functions and responsibilities. The NUC is a leadership and management position, while the ANC is a staff position with the additional duty of providing assistance to the NUC. The leader and the assistant are not one and the same. They are distinct and different. 33. No less significant is the distinction between the NUC and the ANC in terms of the degree and level of supervision received. Fence the job descriptions stipulate: a. The NUC receives direction and supervision on a "weekly or biweekly" basis from "the appropriate Associate Director of Nursing." The NUC is not subject to supervision on a day-to-day basis and her supervisory authority is the Associate Director, one of the top executives. The frequency of supervision is a measure of the significance of a position - a more spaced (such as a weekly or biweekly) Supervision implies a higher level of authority and responsibility while a routine (daily) 13 187 supervision implies less authority and lesser confidence by the employer in the supervisee. b. The ANC receives supervision “daily to weekly by Nursing Unit Coordinator or his/her designee." Further, the ANC receives “functional supervision ... daily to weekly from Nursing Educational Coordinator [NEC].”" Clearly, the ANC is a much lower level position where routine (daily) supervision is envisioned. More importantly, the ANC is the subject of dual Supervision both by the NUC and NEC. Therefore, Our comparison boils down to an assessment of the position of a supervisory and management personnel (NUC) with the position of a Supervisee (ANC). It is no small wonder that the positions we try to compare are proving to be incomparable. 34. Examination of the "Characteristic Duties and Responsibilities" of the NUC, as stated on the job description, with that of the ANC provides the final yardstick to demonstrate the differences, rather than the similarities, 14 188 > Seaport ‘ in the two jobs. Numerically alone, the NUC has 20 separate and distinct characteristic duties and responsibilities as opposed to the ANC for whom 190 such characteristic duties and responsibilities are stated. Beyond numerical differences, the NUC’s duties and responsibilities envision high level management, administrative and leadership roles. These include budgetary, planning, personnel management, policy enforcement, staff Supervision, staff and policy evaluation, unit-department coordination and related decision-making and other executive responsibilities. All these responsibilities are Carried out at the unit level. None of these responsibilities are, in part Or in whole, uniquely associated with the ANC other than the assistance he/she is expected to provide the NUC as_ assigned. Even the Supervisory authority the ANC is expected to provide over a limited staff is described as “functional.” Again, our comparison of the two 15 .189 positions merely reinforces the substantial and distinct differences which exist between the positions rather than their similarities. 35. Finally, we examined whether the University’s own personnel policies could assist us in what may or may not be considered "“a promotion" as perceived by the department itself. The Manual of Personnel Directives [Directive I] of the University does provide a specific definition of “promotion." Hence: "Promotion is the movement of an employee to a position - with a higher minimum and maximum rate of pay, either within the same department or to another department." Considering the grade differences which exist between the NUC and ANC positions (please see Table 1) and on the premise that those grade differences reflect different rates of higher minimum and maximum rates of pay, we submit that a move from the ANC to the NUC_ position constitutes a promotion by the University’s own definition. 36. CONCLUSIONS; On the basis of the 16 190 | foregoing analysis, we conclude that, had Ms. Scales been successful in her bid to become a NUC from her ANC position, she would have formed 4 new, clear, distinct, substantial and fundamentally different relationship with her employer. She would have been the subject of a | Significant promotion. We firmly reject the view that the NUC and ANC positions are similar in scope, levels, or nature of duties and responsibilities. They simply are not. Ms. Scales was one of four ANCs on her unit providing "assistance" to her NUC as directed. The NUC was her supervisor. Bad she been promoted co the NUC job, Ms. Scales would have attained the position of her supervisor. It cannot be suggested that such a move would not have amounted to @ promotion only because the NUC is expected to have the knowledge and experience base to supervise her ANCs and other staff. That would be ridiculous. In any hierarchy of positions, the incumbent in Supervisory or management authority is expected 17 191 to know and be able to perform the jobs of those he/she manages or _ supervises. Guidance, direction and supervision are a function of such knowledge and experience. AFFIANT’S SIGNATURE: DATE: JOHN W. WORK, IV, PH.D. Subscribed and sworn before me in the State/County/City of _ on this day of , 1991. NOTARY PUBLIC: My Commission expires on: 18 192 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CA NO. 89-796 DEBORAH QUICK SCALES, PLAINTIFF, -~VERSUS- GEORGE WASHINGTON UNIVERSITY, DEFENDANT WASHINGTON, D.C. FRIDAY, APRIL 30, 1993 9:46 a.m. Volume 9B TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE LOUIS F. OBERDORFER UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF: WENDU MEKBIB, ESQ. FOR THE DEFENDANT: JACK M.H. FRAZIER, ESQ. THOMAS D. QUINN, ESQ. COURT REPORTER: WILLIAM D. MCALLISTER OFFICIAL COURT REPORTER Room 4806-B, U.S. Courthouse WASHINGTON, D.C. 20001-2803 (202) 371-6446 Proceedings reported reported by stenomask, transcript produced from dictation Pages 9B-1 through 9B-14 1 193 (FROM ORIGINAL PAGE 9B-2) PARTIAL PROCEEDINGS THE COURT: You may inquire, Mr. Mekbib. MR. MEKBIB: Thank you. GINA M. BROOKS, PLAINTIFF'S WITNESS SWORN DIRECT EXAMINATION BY MR. MEKBIB: Q Good morning Ms. Brooks. A Good morning. Q For the record, please state your full name and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1561%3A2. Public record. Not legal advice.