Opposition Brief — Russell v. Chattanooga-Hamilton County Hospital Authority

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TABLE OF AUTHORITIES

Cases CITED

Betkerur v. Aultman Hosp. Ass'n, 78 F.3d 1079 (6th

eT Sh Rh OS a ee ol Me brand

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

a Oe See oe ft Sn a oO eS Se Be

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

(1973)

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). .

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th

Cir. 1986), cert. denied, 481 U.S. 1041 (1987) ...

Runyon v. McCrary, 427 U.S. 160 (1976)..........

St. Mary's Honors Center v. Hicks, 509 U.S. 502

Ba AO aR SE Die OBS Eek es Bete ote See ne eee

Stancil v. Claytor, 30 F.E.P. (BNA) 730 (D.D.C. 1978) ....

Texas Dep't of Community Affairs v. Burdine, 450

EIS) CRO st ce tas are ae ets

Youakim v. Miller, 425 U.S. 231 (1976) ...........

Statutes CITED

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42 US.C.

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RESPONDENT’S BRIEF IN OPPOSITION

PRIOR COURT OPINIONS

lhe Respondent requests that the Court deny this

Petition for Writ of Certiorari seeking review of a pet

curlam decision of the United States Court of Appeals for

the Sixth Circuit (hereinafter “Sixth Circuit”) issued on

September 8, 1998. The opinion of the Sixth Circuit has

not been reported and is not recommended for full text

publication pursuant to the rules of that Court. The

unpublished memorandum of the Sixth Circuit is repro-

duced at Respondent's Appendix pages 1-2. The decision

of the United States District Court for the Eastern District

of Tennessee (hereinafter “District Court”) issued on May

14, 1997 also has not been published. The unpublished

memorandum of the District Court is reproduced at

Respondent's Appendix pages 3-14.

STATEMENT OF JURISDICTION

[he jurisdiction of the Supreme Court to hear this

petition is not contested.

STATEMENT OF THE CASE

The Respondent respectfully opposes the Petition for

Writ of Certiorari (hereinafter “the Petition”) which is

based upon numerous misstatements of the facts and the

law in this case.

oe

effort, or responsibility that is required for those jobs. The

Plaintiff failed to present any evidence that she received

less pay than any employee who was performing a job

that required substantially equal skill, effort and respon-

sibility as compared to any job that the Plaintiff held.

(Kespondent’s App. pp. 3-14)

The Petitioner appealed this decision to the Sixth

Circuit. The Sixth Circuit subsequently affirmed in a pel

curiam opinion the decision rendered by the District

Court. The appellate court specifically found that Ms.

Russell had not demonstrated clear error by the District

Court in its findings of facts, or any commission of an

error of law that would warrant reversal. (Respondent's

App. pp. 1-2)

B. Statement of Facts

The memorandum opinion of the District Court cor-

rectly sets forth the {acts of this case and the Respondent

respectfully directs this Court’s attention to that opinion

Additionally, the Respondent’s Statement of Facts sub-

mitted in its appellate brief to the Sixth Circuit includes

citations to the record and is reproduced at Respondent's

Appendix pages 21-32

C. Correction of Misstatements of Facts and Law in the

Petition.

Pursuant to Rule 15.2, Rules of the United States

Supreme Court, the Respondent brings to the Court's

attention the following misstatement of facts and law

contained in the Petition.

a

In Section I of the Petition, page 3, (and Section IV,

page 7), the Petitioner’s statements that separate Site

Administrators were required for the two separate sites

of the health centers, and that the proposed Site Adminis-

trator position required previous management experience

and a Master’s Degree, are incorrect. In 1992, a represen-

tative trom the Department of Health and Human Ser-

vices recommended that a separate Site Administrator be

appointed for the Dodson Avenue Community Health

Center. (Albert Head, TR 277).! Mr. Head initially agreed

with this recommendation, but then decided that he

needed Ms. Russell to remain in her position as Patient

Financial Services Manager rather than reassigning her to

the Site Administrator’s position. (Albert Head, TR 278,

281, 284). At no time, however, was it required that a Site

Administrator be named and no one was ever appointed

to this position. (Albert Head, TR 294). Furthermore,

there was never a job description prepared for the Site

Administrator position (other than one prepared by Ms.

Russell herself on her own initiative) ard no job require-

ments for this position were ever set. (Marlena Russell,

TR 113; Albert Head, TR 292).

In Section II of the Petition, page 4, the Petitioner

claims that the grant application required Ms. Russell to

move to the Dodson Avenue Center site before December

1, 1992. Again, this statement misrepresents the evidence

in this case. Mr. Head told Ms. Russell in Novernber,

1992, that he needed her to remain in the position of

| The trial transcript is designated “TR,” and is preceded by

the name of the witness testifying and followed by the specific

page number in the transcript at which the reference occurs.

Patient Financial Services Manager because of changes in

the information management systems within her depart-

ment and that he would review the decision to place her

in the Site Administrator position by March 1. (Albert

Head, TR 285-86, 323). Ms. Russell asked Mr. Head if she

could move her office to the Dodson Avenue site and he

allowed her to do so, but Mr. Head did not tell her, nor

did he intend, that the change of offices would mean her

taking the position of Site Administrator. (Albert Head,

rR 286). Ms. Russell was never required, nor even

requested, to move her office to the Dodson Avenue site

She was allowed to do so at her own suggestion.

Ms. Russell further asserts in Section II, page 4, that

Mr. Head did not intend at any time to place her in the

position of Site Administrator. Again, this is not correct.

In the summer of 1992, Mr. Head expressed to Ms. Russell

his intentions to name her to the new Site Administrator

position, effective December 1, 1992. (Albert Head, TR

278, 281). In October, 1992, Mr. Head was informed by the

Chief Executive Officer of Erlanger Medical Center that

the health centers were to adopt the Erlanger Medical

Center computerized information management system,

known as the BHIS system. (Albert Head, TR 284). The

BHIS conversion, scheduled to be completed by Decem-

ber 1, 1992, impacted the operations and functioning of

the patient accounts and medical records areas of the

health center managed by Ms. Russell. (Albert Head, TR

284-85; Marlena Russell, TR 110). Mr. Head determined

that he needed Ms. Russell to remain in her present

position as Patient Financial Services Manager to oversee

the implementation of the BHIS system, and that he

would review the decision to place her in the Site

6

Administrator position by March 1. (Albert Head, TR

284-86, 323).

In January, February and March, 1993, Mr. Head

began receiving complaints concerning Ms. Russell.

These complaints included concerns expressed by other

senior management personnel at the health centers that

Ms. Russell had improperly conveyed sensitive and confi-

dential information (Albert Head, TR 286-87; Marlena

Russell, TR, 114-15); a report by the Erlanger Accounting

Department severely criticizing the management of Ms.

Russell (Albert Head, TR 285-90, Lois Uren, TR 421-27);

and a complaint from a disabled employee concerning

improper treatment by Ms. Russell. (Albert Head, TR

281-84; Charlesetta Woodard-Thompson, TR 450-53). In

February or March, 1993, Mr. Head determined that Ms.

Russell should remain in the Patient Financial Services

Manager position rather than being transferred to the

Dodson Avenue Site Administrator position. (Albert

Head, TR 291). Mr. Head informed Ms. Russell of this

decision on March 4, 1993, and told her that she would be

supervised directly by the Director of Finance, Derrek

Jones. (Albert Head, TR 291).

The Petition, at page 4, also asserts that 42 U.S.C.

§ 1981 provides a remedy for sexual discrimination or

harassment. (Petition pp. 4-5). Clearly, this statement of

law is incorrect. Section 1981 prohibits racial discrimina-

tion in the formation and enforcement of contracts and

does not address sexual discrimination. Runyon v. Mc-

Crary, 427 U.S. 160, 167 (1976).

In Section III of the Petition, page 6, Ms. Russell

claims that she was demoted from the position of Site

LLL

Administrator in retaliation for filing a grievance on

March 22, 1993 through the Hospital Authority’s internal

grievance procedure for alleged sex discrimination and

harassment. This claim is not supported by the evidenc«

and is a logical impossibility. The subject of which Ms

Russell grieved on March 22, was that she had never

received the anticipated promotion to the Site Adminis

trator’s position. (TR, Plaintiff's Exhibit 19).* Therefore, it

is not possible that she was demoted from the Site

Administrator position in response to the filing of the

grievance, when the failure to promote her to the position

was the subject of her original grievance. Furthermore

her assertion that she was placed in the Site Administra

tor position is contrary to the evidence. There was never

a job description formalized for this position, there wer

never any personnel documents prepared reflecting that

Ms. Russell would be or had been transferred to the

2 Ms. Russell’s Statement of Condition Leading to

Grievance as submitted by her on the March 22 grievance is as

follows: “Albert Head is consistently guilty of causing

grievances because of making incorrect decisions and sufficient

lack of competence. In the grievance which I have filed, Albert

Head is guilty of misleading The Alton Park Board of Directors,

Mr. Wayne Cutchins of The Office of Grants Management and

Marlena Russell by deliberately signing an Institutional File and

Programmatic Assurance. In signing this document Albert Head

committed not only to promoting Marlena Russell to the

position of Administrator, but, assured that documentation

(such as job description) exist on-site and comply with sections

329/330 Program expectations. Albert Head admitted in a

meeting on March 17, 1993 with Sheryl Gould, Charlesetta

Woodard-Thompson that he had never prepared a job

description for the Administrators’ position, and he had no

intention of filling that position.” (TR, Plaintiff's Exhibit 19)

position of Site Administrator, there were never any wage

or benefit documents prepared reflecting such a change,

and there was never any change in the wages paid to Ms.

Russell. (Marlena Russell, TR 113). Ms. Russell was never

placed in this position. (Albert Head, TR 292; Albert

Barnett, TR 439, 444).

Ms. Russell’s reliance on the statement by Ms. Wood-

ard-Thompson also is misplaced. Ms. Woodard-

Thompson’s testimony at trial was that she was acting as

a mediator in an effort to resolve the dispute between Ms.

Russell and Mr. Head. Ms. Woodard-Thompson’s state-

ment cited by Ms. Russell was made after the mediation

effort had failed and Ms. Woodard-Thompson was

attempting to clarify the job responsibilities of Ms.

Russell. Ms. Woodard-Thompson was not attempting to

state in her letter that Ms. Russell was or was not in the

Site Administrator position. (Charlesetta Woodard-

Thompson, TR 457-58).

In Section IV of the Petition, page 7, Ms. Russell

claims that the Respondent produced no evidence that

disputed the change in Ms. Russell’s salary or job title.

The Petition’s version of this highly-contested issue is

simply wrong. Ms. Russell testified herself that there was

never a job description formalized for this position, there

was never any personnel documents prepared reflecting

that Ms. Russell would be or had been transferred to the

Site Administrator position, and there was never any

change in the wages paid to Ms. Russell. (Marlena

Russell, TR 113). Albert Head and Albert Barnett also

testified that Ms. Russell was never placed in the Site

Administrator position. (Albert Head, TR 292; Albert Bar-

nett, TR 439, 444).

In Section V of the Petition, pages 9-10, Ms. Russell

pag

attributes several commenis to Mr. Head. At trial, Mr.

Head denied making these comments or placed the com-

ments in the context in which they were made. (Albert

Head, TR 298-99, 311-15). None of these comments, even

if accepted as true, relate to Mr. Head’s decision not to

place Ms. Russell in the Site Administrator’s position.

In Section VII, pages 13-14, the Petition claims that

Mr. Head conspired with Ms. Uren and Ms. Johnson

concerning the criticism of Ms. Russell. This allegation is

contrary to all evidence in the case. Mr. Head and Ms.

Uren both testified that Mr. Head did not discuss or

attempt to influence the contents of the report. (Albert

Head, TR 290; Lois Uren, TR 426-27). There is no evidence

supporting this allegation.

In Section VIII of the Petition, pages 16-17, Ms

Russell claims that she was unable to pick up the bank

bags for the daily deposit of funds from the Dodson

Avenue Health Center because she was dealing with the

hysterical daughter of a heart patient and was unable to

leave the site. Ms. Russell’s formulation of events is

incorrect. Ms. Russell’s job responsibilities as Patient

Financial Services Manager required her to ensure that

bank bags were collected from the bank each day so that

daily deposits of cash receipts at the Dodson Avenue

Community Health Center could be made. (Derrek Jones,

TR 360-61; Marlena Russell, TR 128). This daily deposit of

cash and receipts was important, so that cash would not

have to be held by the health center overnight, and to

maintain a sufficient cash flow in the administration of

the health center. (Derrek Jones, TR 360-61, 384). Ms.

Russell’s claim that the bank deposit could not be made

10

even if the bag had been picked up is incorrect, since

another guard could have dropped the bags off in the

night deposit drop box. (Derrek Jones, TR 384).

Ms. Russell knew that it was her responsibility to see

that the bank bags were picked up. (Marlena Russell, TR

128; Detendant’s Exhibit 28). Ms. Russell knew that she

was the only individual present at the Dodson Avenue

Community Health Center on May 25, 1993, who was

authorized to pick up the bank bags. (Marlena Russell,

TR 123). Ms. Russell made a conscious decision at that

time, however, that she would not do so. (Marlena

Russell, TR 87, 123, 132, 134). At 12:00 noon, Ms. Russell

wrote a memorandum to her supervisor, Derrek Jones,

stating that the health center would have to retain cash

on site that night because Mr. Jones had failed to add

another employee’s name to the bank’s list of employees

authorized to collect the bank bags. (Marlena Russell, TR

125-26; Defendant’s Exhibit 28). At approximately 3:30

p.m., Mr. Jones telephoned Ms. Russell and instructed her

on three separate times to collect the bags. (Derrek Jones,

TR 363-65). Ms. Russell first argued incorrectly that she

was not authorized to pick up the bank bags, then she

stated that she had too much paperwork to do, and then

she flatly refused to pick up the bags, stating to Mr. Jones,

her direct supervisor, “I’m not going to argue with you,

I’ll pick them up tomorrow.” (Derrek Jones, TR 362-65).

At no time did Ms. Russell state that she was assisting

with the hysterical daughter of a patient. Ms. Russell

testified that even though she considered this heart

patient to be an emergency and a matter of life or death,

she admits that she never checked to see if the patient

was on the health center premises or what her condition

1]

might be, never checked to see that the heart patient was

examined by a doctor, and never checked to ensure that

the daughter got the medication allegedly needed by her

mother. (Marlena Russell, TR 136-40).

Ms. Russell also claims that her discharge was the

result of a conspiracy and was ordered by Mr. Head

(Petition, p. 18). Again, this is a misstatement of the facts.

Mr. Jones made the decision that Ms. Russell should be

dismissed from her employment after he received the

memo from Ms. Russell attempting to place the blame on

him for her refusal to pick up the -ank bags. (Derrek

Jones, TR 368). Mr. Head did not advise Mr. Jones con-

cerning any action that should or should not be taken,

but instead referred Mr. Jones to the Human Resources

Department at Erlanger Medical Center. (Derrek Jones,

TR 366-67; Albert Head, TR 293-94). Mr. Jones then pre-

pared the personnel record notation dismissing Ms.

Russell, and presented it to Ms. Russell on May 26, 1993

for her review and comments. (Derrek Jones, TR 370-71).

The dismissal notice was then given to Mr. Head for his

signature following Ms. Russell’s opportunity to make

any comments on the discharge notice. (Albert Head, TR

294). Ms. Russell’s characterization of Mr. Head’s signa-

ture as ordering the discharge completely misrepresents

the evidence presented at trial, and even contradicts Ms.

Russell’s own contention at trial that her dismissal was

improper because the dismissal notice that she was pre-

sented at the time of her discharge did not have Mr.

Head’s signature. (Marlena Russell, TR 99-101, 146-47).

The Respondent also objects to the documents

attached in the Petition’s Appendix on the grounds that

such documents are inaccurate and do not reflect the

12

documents which they allege to represent, or are docu-

ments that were never admitted into evidence at trial.

Specifically, the Petition represents Appendix D as being

Rule 52(a) of the Federal Rules of Civil Procedure,

although significant portions of Rule 52(a) are omitted.

Critically, Appendix D omits the following sentence:

“Findings of fact, whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous,

and due regard shall be given to the opportunity of the

trial court to judge of the credibility of the witnesses.”

This sentence, added in the 1985 amendments to the Rule

52(a), specifically addresses and resolves the issue raised

by the Petition concerning the standard of review by an

appellate court.

Additionally, Appendix D inaccurately reproduces

the Advisory Committee notes for the 1985 Amendments

to Rule 52(a). Again, concerning the specific issue of

appellate review raised in the Petition, the Appendix

omits the pertinent portion of the Advisory Committee

notes stating, “Rule 52(a) has been amended (1) to avoid

continued confusion and conflict among the circuits as to

the standard of appellate review of findings of fact by the

court, (2) to eliminate the disparity between the standard

review as literally stated in Rule 52(a) and the practice of

some courts of appeals, and (3) to promote nationwide

uniformity.” Rule 52(a) and the Advisory Committee

notes for the 1985 Amendments are reproduced in the

Respondent’s Appendix, pages 15-18.

The Respondent further objects to those documents

found at Appendix E and Appendix H (and quoted at

length at pages 20-21) in the Petition. These documents

13

were never admitted into evidence at trial and are not

part of the record.

——..--¢

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT AMONG THE CIRCUITS

CONCERNING THE APPROPRIATE STANDARD

OF REVIEW UNDER RULE 52(a) AND SUCH CON-

FLICT, EVEN IF ASSUMED TO EXIST, WOULD

NOT BE AT ISSUE IN THIS CASE.

The Petition asserts that there exists a conflict among

the Circuit Courts of Appeal regarding the appropriate

standard of review under Rule 52(a) when court findings

are based solely on documentary evidence.

First, it should be noted that even if one were to

assume that such a conflict did exist, the conflict would

not be at issue in this case because the District Court's

findings followed and were based upon three days of live

testimony by witnesses. The trial judge saw and heard

the witnesses and was able to observe the witnesses’

demeanors, and did not base his findings entirely on

documentary evidence.

Moreover, any historical conflict that may have exis-

ted concerning the deference given to factual findings by

the trial court based entirely on documentary evidence

was resolved by the amendment to Rule 52(a) in 1985,

which clearly states, “Findings of fact, whether based on

oral or documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge of the cred-

ibility of the witnesses.” Rule 52(a), Fed. R. Civ. P. The

14

detailed history of this issue concerning the appropriate

deference to be given to trial court findings based entirely

upon documentary evidence and the issue’s resolution

are provided in 9A Wright & Miller, Federal Practice and

Procedure: § 2587 (1995). Indeed, while the Petitioner does

cite several cases in support of her position, she fails to

offer any case law following the 1985 Amendments. There

is no legal support for the Petition’s claim that there

exists a continuing conflict among the Circuits.

Furthermore, it is not clear whether the Petitioner is

claiming that the Sixth Circuit erred by applying, or by

failing to apply, the clearly erroneous standard to the

factual findings of the trial court. (See Petition, pages 1, 7

and 26). Nevertheless, the Sixth Circuit decision expressly

states that it applied the clearly erroneous standard to the

District Court’s findings of facts, as was appropriate and

correct under Rule 52(a). (Respondent’s App. p. 1).

il, THE PETITIONER SEEKS REVIEW OF ALLEGED

ERRORS CONCERNING CLAIMS THAT WERE

NEVER ASSERTED.

The Petitioner asks this Court to review alleged

errors concerning legal claims that were not even

asserted by her at the trial court or on appellate review.

There being no such legal claims made, there can be no

legal errors for this Court to review. In the final pretrial

order, Ms. Russell listed her claims as follows: “The

Plaintiff theory is (1) that, pursuant to 42 U.S.C.

§ 2000e-2, the defendant discriminated against the Plain-

tiff because of her sex; (2) that, as prohibited by 42 U.S.C.

~

§ 2000e-3, the defendant retaliated against the Plaintiff

_

15

because she filed grievances; and (3) that the defendant

violated the Equal Pay Act, 29 U.S.C. § 206.” (RE 51, Final

Pretrial Order, p. 2). The final pre-trial order supplants

the pleadings and controls the subsequent course of the

action. (RE 51, Final Pretrial Order, p. 7; Rule 16(e), Fed.

R. Civ. P.)

Furthermore, during the opening statements at trial,

the court asked the Plaintiff’s counsel to elaborate upon

his claim that the Defendant had discriminated against

the Plaintiff because of her sex. Ms. Russell’s attorney

stated that her claims are that she was discriminated

against in her demotion and that her termination from

employment was a result of retaliation.*

* THE COURT: Let me ask you this. I’ve got your final

pre-trial order here this morning. The first claim is that the

defendant discriminated against plaintiff because of her sex?

MR. BERKE: Right

THE COURT: In what way? Elaborate on that.

MR. BERKE: Well, Your Honor, I think the first way they

discriminated against her, Ms. Russell, we’ve got two separate

claims, one is the demotion, and one is the firing. So they

discriminated against her because of, through her demotion we

believe that the -

THE COURT: Demotion from what to what?

MR. BERKE: From the administrator at Dodson Avenue to

the patient financial services manager at Dodson Avenue.

(Plaintiff's Attorney, TR 10).

THE COURT: So really you’re saying that, your main

claim with respect to her termination is the fact that she was

retaliated against for filing these grievances and filing the

EEOC?

MR. BERKE: That’s correct, Your Honor.

16

Additionally, the issues raised by Ms. Russell in her

appeal to the Sixth Circuit are found at pages 19-20 of the

Respondent’s Appendix.

Now, for the first time, the Plaintiff claims that error

was made in the adjudication of her Section 1981 claim

(Petition, pages 4-5) even though the Petitioner did not

have a Section 1981 claim nor did she even assert racial

discrimination to support it; a due process claim under

the 14th Amendment (Petition, pages 19-22 and Appen-

dix C) against her former employer for alleged deficien-

cies in its internal grievance procedures, even though,

again, the Petitioner has never previously asserted such a

claim; a disparate impact claim under Title VIi (Petition,

page 24) which also is being asserted for the first time;

and a sexual harassment/hostile work environment claim

THE COURT: Okay. Well, so you're not saying then or are

you saying that her termination was because of her gender?

MR. BERKE: Well, Your Honor, that the actions that Mr.

Head took and the proof will show that all of his actions were

laced with gender references and that she was constantly

treated as if she were, he constantly looked at her as a woman

and thought he could treat her certain ways because of that, but

I would say that our main claim regarding the firing would be

retaliation.

THE COURT: Now, you mentioned certain things,

comments made. Are you talking — do you have an allegation of

sexual harassment here or not?

MR. BERKE: No, we don’t believe that the comments

amount to what is sexual harassment.

THE COURT: Then your other claim is what, the equal pay

claim?

MR. BERKE: Equal pay claim.

(Plaintiff’s Attorney, TR 11-12).

17

(Petition, pages 6, 11), which is another new claim and

which the Plaintiff’s counsel at trial specifically denied

that she was bringing. (See supra note 3).

This Court does not decide questions not raised or

resolved in the lower court. Youakim v. Miller, 425 U.S.

231, 233-34 (1976). It is improper for the Petitioner to now

raise claims for the first time that were never brought

before the trial court for determination or before the

appellate court for review. Certainly, there can be no error

made in the adjudication of a claim for this Court to

review if there has been no previous claim.

Ill. THE ELEMENTS OF A PRIMA FACIE CASE IS

NOT AT ISSUE BECAUSE THE TRIAL COURT

ASSUMED THAT A PRIMA FACIE CASE WAS

ESTABLISHED AND THEN EVALUATED

WHETHER THE PLAINTIFF HAD PROVEN THE

ULTIMATE QUESTION OF DISCRIMINATION.

The Petitioner asserts that the trial court erred by

incorrectly stating the fourth element of the prima facie

case in a failure to promote claim. First, it should be

noted that the Petitioner did not raise this issue as error

before the Sixth Circuit (Respondent’s App. pp. 19-20).

Second, even assuming that this issue had been raised

before the Sixth Circuit, the appellate court would not

have reached this issue because the trial court in its

decision assumed that a prima facie case had been estab-

lished and then evaluated whether the Plaintiff had met

her overall burden of establishing discrimination. Under

the McDonnell Douglas —- Burdine framework, the Plaintiff

has the initial burden of proving a prima facie case of

discrimination. If the Plaintiff establishes a prima facie

18

case, the burden of production shifts to the Defendant to

articulate the legitimate non-discriminatory reason for

the employment action. The burden then shifts back to

the Plaintiff to prove by a preponderance of the evidence

that the reasons offered by the Defendant were not its

true reasons but were a pretext for discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973); Texas Dep’t of Community Affairs v. Burdine, 450

U.S. 248, 252-53 (1981). This burden on the Plaintiff

“merges with the ultimate burden in persuading the court

that [the Plaintiff] had been the victim of intentional

discrimination.” Burdine, 450 U.S. at 256. In St. Mary's

Honors Center v. Hicks, 509 U.S. 502, 510 (1993), the

Supreme Court stated that once “the defendant had suc-

ceeded in carrying its burden of production, the McDon-

nell Douglas framework — with its presumptions and

burdens - is no longer relevant.”

In the present case, the trial court first discussed the

failure of the Plaintiff to establish a prima facie case.

(Respondent's App. pp. 8, 10-11). The court then assumed

that a prima facie case was established and weighed the

evidence in terms of whether the Plaintiff had established

the ultimate issue of discrimination. (Respondent's App.

pp- 9-10). The District Court found that Ms. Russell failed

to carry the ultimate burden of establishing discrimina-

tion by a preponderance of the evidence. (Respondent's

App. p. 10).

The Petition claims that the elements of the prima

facie case as stated by the District Court are incorrect: but

this point, even if assumed to be true, is moot. The

District Court assumed that the Plaintiff had established

a prima facie case and then continued to consider the

19

evidence in the terms of whether Ms. Russell had carried

her ultimate burden of proving discrimination by a pre-

ponderance of the evidence.

Finally, the District Court’s formulation of the prima

facie case is correct. This is the same formulation estab-

lished by this Court in McDonnell Douglas v. Green, 411

U.S. 792, 802, n.13 (1973). See also Betkerur v. Aultman

Hosp. Ass'n, 78 F.3d 1079, 1093 (6th Cir. 1996). The case

cited by the Petitioner in support of her position, Stancil

v. Claytor, 30 F.E.P. (BNA) 730 (D.D.C. 1978) is a District

Court opinion and not a Supreme Court decision, as is

represented in the Petition. The Stancil case also in no

way supports the Petitioner’s argument.

The Petition also argues that it was error for the court

to use the McDonnell Douglas-Burdine formula at all

because of the direct evidence of discrimination. The

Petition relies upon the alleged statements of Mr. Head to

supply the purported direct evidence. Although Mr.

Head denied making those statements, even if they are

accepted as true, the statements are not related to his

decision whether to promote Ms. Russell and are not

direct evidence. Price Waterhouse v. Hopkins, 490 U.S. 228,

277 (1989) (O’Connor, J., concurring) (“statements by

decision makers unrelated to the decisional process

itself” do not suffice to shift the burden to the employer).

As previously discussed, the District Court weighed all

the evidence and found that the Plaintiff had not estab-

lished discrimination. The Petition’s argument is without

merit.

20

IV. THE COURT DID NOT ERR BY DENYING MS.

RUSSELL’S EQUAL PAY ACT CLAIM BECAUSE

SHE PROVIDED NO EVIDENCE TO SUPPORT IT.

[he trial court properly dismissed Ms. Russell's

Equal Pay Act claim because she presented no evidence

that her rate of pay was below that of a male in a

substantially similar position. Ms. Russell argued at trial?

and before the Sixth Circuit that her duties in the Site

Administrator position should ~be compared to those

responsibilities as a Finance Director. First, as the trial

court noted, it is improper for Ms. Russell to compare the

position of Site Administrator to that of the Finance

Director because Ms. Russell was never placed in the

position of the Site Administrator. Second, even assuming

that Ms. Russell was the Site Administrator, she produced

no evidence establishing that this position required sub-

stantially equal skill, effort, and responsibility with that

+ THE COURT: Well, okay. So on the equal pay thing,

you're saying then that she should be compared with the

administrator?

MR. BERKE: With the finance director, which is somebody on

that level

[HE COURT Sut, back to equal pay. What are we - I still don’t

know what two job titles are we comparing here.

MR. BERKE: We're comparing administrator with the finance

director. And we're comparing, we're comparing the salary

raises between the employees, between the various administr-

ation people at Dodson, I mean, at the health center

THE COURT: Even though she was never finance director?

MR. BERKI That’s correct, Your Honor. That is correct, Your

Honor

(Plaintiff's Attorney, TR 269-70)

+ ‘

talr

of the Finance Director position, as is required to su

such a claim. Rabidue v. Osceola Refinine Co., 805 F.2d 611

623, (6th Cir. 1986), cert. denied, 481 U.S. 1041 (1987). M

Russell conceded at trial that there was never a job

description prepared for the position of Site Administra

tor. (Marlena Russell, TR 113). Therefore, it is not possibl

for her to identify the nonexistent responsibilities of the

Site Administrator position with those of the Director of

Finance position. Furthermore, Ms. Russell failed to pro

duce any evidence of the skill, effort, and responsibility

of the Finance Director position during the time that Ms

Russell claims to have been the Site Administrator. Ms

Russell offers only the testimony of a previous Director of

Finance, Austin Swett, who left the position in August,

1992, before Ms. Russell even was to have assumed the

Site Administrator position as initially planned. (Austin

Swett, TR 220). Therefore, Ms. Russell is unable to

describe the job responsibilities of the Site Administrator

position, and fails to describe the skill, effort, and respon

sibility of the Finance Director position during the perti

nent period. Mr. Head testified that the job duties of th

two positions (Site Administrator and Finance Director

would be dramatically different, and Ms. Russell pr

duces absolutely no evidence that they were comparable

(Albert Head, TR 280).

Now, for the first time, Ms. Russell argues that her

Patient Financial Services Manager position should bes

compared to other unnamed manager positions, but

again, Ms. Russell fails to provide any evidence concern

ing which manager positions she is comparing; the skill

effort, and responsibility of the respective position; or the

22

pay for each position. Certainly, this argument is without

merit.

V. THE PETITION PRIMARILY SEEKS TO HAVE

THIS COURT SETTLE FACTUAL DISPUTES, AND

NOT ISSUES OF LAW.

The questions presented for review in the Petition

raise purported legal issues to be addressed by the Court.

As the previous discussion has shown, however, these

legal issues invariably concern non-existent conflicts

between the circuits, legal arguments that are not reached

by the court’s analyses, or legal claims that are never

even asserted. A review of the Petition shows that sub-

stantially all of the Petitioner’s arguments deal primarily

with factual issues. The issue of whether Ms. Russell was

promoted to the Site Administrator’s position or

remained in her original position of Patient Financial

Services Manager, the intent of Mr. Head in not promot-

ing Ms. Russell to the Site Administrator’s position, or

the motivation of Mr. Jones in dismissing Ms. Russell

following her refusal to pick up the bank bags, are all

issues of facts that were appropriately determined by the

trial court and reviewed by the appellate court.

As this Court has stated, “A court of law, such as this

Court is, rather than a court for correction of errors in

tactfinding, cannot undertake to review concurrent find-

ings of fact by two courts below in the absence of a very

obvious and exceptional show of error.” Goodman v.

Lukens Steel Co., 482 U.S. 656, 665 (1987), quoting Graver

Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275

(1949). Further review by this Court is not warranted

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NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

{ARI ENA ? RUSSEL]

LNLEINA IN. KRUDSSELI

Plaintiff- Appellant

ON APPEAL FROM

UNITEI rAT}

CHATTANOOGA UNITED STATI

77 . TTR DISTRI COURT FO

‘a \MII TON ( ( | NT , | | | | | 4 | i

7 ITA , 17 fH ASTERN DIST]

HOSPITAL AUTHORITY LHE |

OF TENNESSEI

Defendant-Appellee

MEMORANDUM

OPINION

Filed Sept

BEFORI KRUPANSKY, NORRIS, and SILER, Circuit

Ait

Judges

PER CURIAM. Plaintiff, M

udgment render

iOowlin a tr t { rt

tende i tl t she i t

nd retaliati The

lit OF | { al

Having had the benefit

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Pull considered tne re

the rties, and the applicabl.

f PI

App. 2

Because the reasoning supporting judgment for

defendant, Chattanooga-Hamilton County Hospital

Authority, has been articulated by the district court, the

issuance of a detailed written opinion by this court would

be duplicative and serve no useful purpose.

Accordingly, the judgment of the district court is

affirmed upon the reasoning employed by that court in

its Memorandum Opinion filed on May 14, 1997.

App. 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

MARLENA N. RUSSELL, )

Plaintiff, )

) 1:94-cv-001

v. Edgar

CHATTANOOGA-

HAMILTON COUNTY

HOSPITAL AUTHORITY, )

)

Defendant. )

MEMORANDUM OPINION

(Filed May 14, 1997)

This case was tried before this Court without a jury

on May 1, 2, and 5, 1997. This memorandum is the

Court’s findings of fact and conclusions of law.

Defendant Chattanooga-Hamilton County Hospital

Authority operates, among other things, two health cen-

ters in the Chattanooga, Tennessee area; the Alton Park

Community Health Center and the Dodson Avenue Com-

munity Health Center. The health centers are managed

together as a unit.

Plaintiff Marlena N. Russell (“Russell”) was hired by

the defendant in 1990 as Finance Manager for the health

centers. She was physically located at Alton Park, but her

job encompassed finance matters at both the Alton Park

and Dodson Avenue locations. At first, Russell reported

to the Director of Finance, Austin Swett. However, when

App. 4

Albert Head (“Head”) became Director of the health cen-

ters in 1991, and after Mr. Swett resigned in August 1992,

Russell reported to Head. During this time her job duties,

but not her compensation, expanded, and her job title

changed to Patient Financial Services Manager.

The health centers provide medical services in low

income geographical areas. The centers are funded in part

by federal grants. In the spring or summer of 1992, fed-

eral officials reviewed the operations of the health centers

and made certain recommendations as to how they might

be operated more effectively. Among the recommenda-

tions was that a “Site Administrator” be placed at the

Dodson Avenue location. Albert Head discussed this

position with Russell, and there seems to have been a

fairly clear understanding between Head and Russell in

the fall of 1992 that Russell would eventually be placed in

the Dodson Avenue Site Administrator slot. The target

date was December 1, 1992, which at that time was the

beginning of the fiscal year for the centers. The salary for

this new position was to be $39,000 per annum. Russell

was making $32,000 per annum as Patient Financial Ser-

vices Manager.

In 1992 the defendant directed that the health centers

integrate their bookkeeping and records with that of the

defendant hospital. The hospital’s system was known as

the “BHIS” system. This integration proved to be diffi-

cult, and was not anywhere near completion by Decem-

ber 1, 1992. Russell, in her financial job, was important to

this effort. Thus, Mr. Head decided that he needed

Russell to perform her current job more than he needed a

Site Administrator at that time. Therefore, sometime

around December 1, 1992, he advised Russell that he was

A pp. 5

postponing the job change, and would take another look

at the situation around March 1, 1993. Meanwhile, Russell

kept pressuring Head by asking for a job description of

the Site Administrator’s job, and even preparing one

herself. At Russell’s request, Head did allow Russell to

move her office to the Dodson Avenue location in late

November 1992. The delay irritated Russell and affected

her attitude toward her job. This attitude, and a few other

matters, caused Head to become disenchanted with

Russell. These other matters included his perception that

Russell had mishandled a problem with an employee

with a disability; her sharing of confidential information

with other employees; and problems that Russell had

with the BHIS conversion.

At the beginning of March 1993, the plaintiff was not

put in the administrator’s position. Derrek Jones

(“Jones”) was hired as Director of Financial Operations,

and plaintiff was to report to him. This caused Russell,

who was already disgruntled, to become even more dis-

gruntled. On March 22, 1993, Russell filed a grievance

which was handled within the defendant’s in-house

grievance procedures. In this grievance, she complained

that actions taken by Head amounted to “sexual discrimi-

nation, harassment, deliberate deception, and dishon-

esty.” Before this grievance could be resolved, the

plaintiff on May 4, 1993, filed a charge with the Equal

Employment Opportunity Commission (“EEOC”) alleg-

ing that Mr. Head and the defendant hospital authority

discriminated against her because of her sex. This charge,

as subsequently amended in October 1993, forms the

jurisdictional predicate for this case.

App. 6

The Dodson Avenue Center has daily cash receipts.

They fall in the range of $800 to $1,100 per day. It is

defendant's policy, for daily accounting and security rea-

sons, that these receipts be brought to the bank approxi-

mately four blocks away after the close of business each

day. The receipts must be locked in cloth bank bags and

placed in the bank’s night deposit. Each business day the

bags must be picked up at the bank for use in that night’s

deposit.

On May 25, 1993, Russell, along with two other

employees, was registering patients at the Dodson Ave-

nue Center. She sent another employee, Rosetta Price, to

pick up the bank bags. Price, however, was unable to pick

up the bags because her name and signature were not on

the bank’s authorization list. At this point, Russell made

up her mind that she would not pick up the bags on that

day, May 25th. In a telephone call later that afternoon

with her supervisor, Derrek Jones, who was at the Alton

Park Center, Russell told Jones that she could not pick up

the bags because the bank did not have her signature.

Jones, after checking, advised Russell that the bank did

indeed have her signature and that she was authorized to

pick up the bags. (Later Russell was to assert that she

could not leave the center because at 3:30 p.m., about the

time she talked to Jones on the phone, an hysterical

woman came into the clinic needing attention.)

Jones, over the phone, directed plaintiff three times

to pick up the bags, advising her that she had plenty of

time to do it, the bank being only four blocks away. Yet,

plaintiff refused to pick up the bags, finally telling Jones

that she wasn’t going to “argue” about it, and that the

day’s cash receipts would be kept in the center’s safe that

App. 7

night, and not placed in the bank. The bags were not

picked up that evening. Instead, Russell drafted a mem-

orandum to Jones wherein she complained that the bank

bags would not be picked up because the center had not

done the necessary paperwork to authorize Rosetta Price

to pick up the bags. |

After Russell had refused to pick up the bags on May

25th, Jones checked with the defendant’s human

resources office and was advised that a refusal to follow

job instructions was a Class IV offense under the defen-

dant’s discipline policies, and that Jones had the option of

terminating the plaintiff for this. Jones pondered what to

do. He knew about Russell’s March 22, 1993 grievance,

but not about the EEOC charge that had been filed on

May 4th. While he discussed the situation with Al Head,

it was left to Jones to make the decision about firing the

plaintiff. When he viewed Russell’s May 25, 1993 mem-

orandum the next morning, Jones decided to terminate

Russell. He viewed this memorandum, by its omissions,

as materially misrepresenting the reasons for the non-

pickup of the bank bags. The next day Jones terminated

Russell for refusal to follow instructions.

Analysis

Russell makes three claims. They are dealt with

herein below seriatim.

A. Demotion-Failure to Promote

Russell claims that the defendant violated 42 U.S.C.

§ 2000e-2 by demoting her from the position of Site

App. 8

Administrator at the Dodson Avenue Center. Actually

this should be viewed as a failure to promote claim, since

Russell was never actually given the Sire Administrator

position. Thus, the plaintiff’s claim is that she was not

promoted to Site Administrator because of her gender,

female, in violation of 42 U.S.C. § 2000e-2. To prove a sex

or gender discrimination “disparate treatment” claim in a

failure to promote context, the plaintiff must first estab-

lish as a prima facie case:

(1) that she belongs to a protected group;

(2) that she was qualified for and applied for

and applied for a promotion;

(3) that she was considered for and denied the

promotion; and

(4) that other employees of similar qualifica-

tions who are not members of the protected

group were indeed promoted at the time

the plaintiff’s request for promotion was

denied.

Brown v. Tennessee, 693 F.2d 600, 603 (6th Cir. 1982). The

plaintiff has not made out a prima facie case. She has

established the first three, but not the fourth, element of a

prima facie case. The Site Administrator position was

never filled. No one to this day has ever been promoted

or otherwise placed in that position. In short, there are no

circumstances here which give rise to an inference of

unlawful discrimination.

If Russell has established a prima facie case, the defen-

dant has indeed satisfied its burden of production to

produce evidence that its failure to promote plaintiff was

for legitimate, nondiscriminatory reasons. See Texas

App. 9

Department of Community Affairs v. Burdine, 450 U.S. 248,

254 (1981). The defendant hospital determined that,

despite the recommendations of the federal grant admin-

istrators, it did not need to fill the position. In addition,

there were matters relating to the plaintiff's job perfor-

mance that gave Albert Head some second thoughts

about placing plaintiff in the Site Administrator position.

Among such matters were Russell’s continually pestering

Head about a jo» description; Russell’s handling of a

disabled emp vyee at Dodson Avenue; and difficulties

plaintiff was having with the BHIS system. Since defen-

dant has not met its burden of production, it is incumbent

upon plaintiff Russell to prove by a preponderance of the

evidence that the real reason she wasn’t given the Site

Administrator job is her gender. St. Mary's Honor Center v.

Hicks, 509 U.S. 502, 506-07 (1993); Burdine, 450 U.S. at 256.

She has not met this burden.

Russell cites, in support of her discrimination conten-

tion, several statement made by Mr. Head in 1992 and

1993. Among these statements are the following:

(1) Head remarked on one occasion that he

did not want to hear plaintiff “bitch.”

(2) When discussing the job description,

Head say, “Why is it that a black woman has to

have a piece of paper to trust a black man?”

(3) Head told her that as a black woman

she should support Head as a black man.

(4) Head said at a meeting of employees

that, “Brown people will rule the world.”

(5S) Head at one point observed that plain-

tiff must be “on her period.”

App. 10

[hese remarks, or something similar to them, may well

have been made by Mr. Head. However, they do not lead

to a conclusion that he did not make Russell Site Admin-

istrator because of her gender. Some of the remarks may

have been inappropriate, but they generally reflect

Head's growing aggravation with Russell. The derivation

of this aggravation had nothing to do with Russell's

gender. Head would doubtless have had the same reac-

tion had Russell been a male.

“Liability in a disparate treatment case depends on

whether the protected trait actually motivated the

employer’s decision.” Hartsel v. Keys, 87 F.3d 795, 800 (6th

Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct. 683, 136 L.

Ed. 2d 608 (1997). Plaintiff has not proved such motiva-

tion by a preponderance of the evidence

B. Reta liration

Plaintiff claims that her termination on May 26, 1993,

was in retaliation for her having engaged in protected

activity, and thus in violation of 42 U.S.C. § 2000e-3. The

four elements of a prima facie retaliation case are:

(1) that she engaged in activity protected by

Title VII;

(2) that this exercise of protected civil rights

was known to the defendant;

(3) that defendant thereafter took an employ-

ment action adverse to the plaintiff; and

(4) that there was a causal connection between

the protected activity and the adverse

employment action.

App. 11

Canitia v. Yellow Freight System, Inc., 903 F.2d 1064, 1066

(6th Cir.), cert. denied, 498 U.S. 984 (1990).

Plaintiff has established the first three elements of a

prima facie case, but not the fourth element. She did

engage in protected activity (filing the grievance and the

EEOC charge); this was known to the defendant; and

plaintiff's employment was indeed terminated. At issue

here is the causation. Other than the circumstantial fact

that her discharge came after Russell’s protected activity,

the only evidence which might be construed as indicating

a retaliatory motive is plaintiff’s testimony that Mr. Head

at some point said that plaintiff would “not leave in good

standing.” This statement is, at best, ambiguous.

Assuming, however, that plaintiff has made out a

prima facie case of retaliation, the defendant has satisfied

its burden of production to articulate a non-retaliatory

motive for its action. Defendant says that plaintiff was

terminated for refusing to comply with instructions given

her by her supervisor, /.e., the instructions to pick up the

bank bags. Much of the proof in this case swirls around

the “bank bag” incident of May 25, 1993. The facts com-

prising this incident are recited above. What happened

here was that Russell was so angry and disgruntled with

the defendant hospital, with Mr. Head, and especially

with having to report to Jones, she just decided that she

was not going to comply with Jones’ instructions to pick

up the bags. Russell’s insubordinate conduct gave Jones

ample cause to terminate her.

Having the bank bags available for the night deposit

was indeed important to the health centers. The instigator

of Russell’s departure was Derrek Jones, not Albert Head

App. 12

Jones had no reason to retaliate against Russell for filing a

grievance. He did not even know about the EEOC charge.

In sum, Russell has not proved that her discharge was the

result of retaliatory motive. Canitia, 903 F.2d at 1067.

Finally, plaintiff claims that the defendant violated

the Equal Pay Act, 29 U.S.C. § 206. To establish a prima

facie case, the plaintiff must show that “she performed a

job that required substantially equal skill, effort, and

responsibility, but that she received less than equal pay.

Rabidue v. Osceola Refining Co., 805 F.2d 611, 623 (6th Cir.

1986), cert. denied, 481 U.S. 1041 (1987). Russell has made

no such showing. Russell points to a discussion that she

had with Albert Head about the proposed pay scale for

the health centers. She asserts that she complained to

Head that the Dodson Avenue Site Administrator should

have a higher salary than that of the Finance Director for

the centers, instead of vice versa. Head reportedly

responded something to the effect that his finance person

would be a man, and men needed to feed their families.

This mindset is indeed the kind of thing against which

the Equal Pay Act is undoubtedly directed. However, we

cannot here compare the Finance Director position with

the Site Administrator position because plaintiff was

never placed in either job. Moreover, we know nothing

about the skill, effort, and responsibility that is required

for those jobs. In short, the plaintiff has not presented any

evidence that she received less pay than any employee,

male or female, who was performing a job that required

App. 13

substantially equal skill, effort, and responsibility as com-

pared to any job that plaintiff held. Therefore, her equal

pay claim fails.

A judgment will enter for the defendant.

/s/ R. Allan Edgar

R. ALLAN EDGAR

UNITED STATES

DISTRICT JUDGE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

MARLENA N. RUSSELL,

Plaintiff, 1:94-cv-001

V. Edgar

CHATTANOOGA-

HAMILTON COUNTY

HOSPITAL AUTHORITY,

Defendant.

eee eee eee eee Ne

JUDGMENT

(Filed May 14, 1997)

This action came on for trial before this Court with-

out a jury on May 1, 2 and 5, 1997, and the issues having

been duly tried, and a decision having been rendered,

which decision is embodied in the Court’s memorandum

filed herewith, it is ORDERED and ADJUDGED that the

DISMISSED

+

App. 15

Rule 52. Findings by the Court; Judgment on

Partial Findings

(a) Effect. In all actions tried upon the facts with-

out a jury or with an advisory jury, the court shall find

the facts specially and state separately its conclusions of

law thereon, and judgment shall be entered pursuant to

Rule 58; and in granting or refusing interlocutory injunc-

tions the court shall similarly set forth the findings of fact

and conclusions of law which constitute the grounds of

its action. Requests for findings are not necessary for

purposes of review. Findings of fact, whether based on

oral or documentary evidence, shall not be set aside

unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge of the cred-

ibility of the witnesses. The findings of a master, to the

extent that the court adopts them, shall be considered as

the findings of the court. It will be sufficient if the find-

ings of fact and conclusions of law are stated orally and

recorded in open court following the close of the evi-

dence or appear in an opinion or memorandum of deci-

sion filed by the court. Findings of fact and conclusions of

law are unnecessary on decisions of motions under Rule

12 or 56 or any other motion except as provided in

subdivision (c) of this rule.

ADVISORY COMMITTEE NOTES

1985 Amendment

Rule 52(a) has been amended (1) to avoid continued

confusion and conflicts among the circuits as to the stan-

dard of appellate review of findings of fact by the court,

(2) to eliminate the disparity between the standard ot

review as literally stated in Rule 52(a) and the practice of

App. 16

some courts of appeals, and (3) to promote nationwide

uniformity. See Note, Rule 52(a): Appellate Review of Find-

ings of Fact Based on Documentary or Undisputed Evidence,

49 Va. L.Rev. 506, 536 (1963).

Some courts of appeal have stated that when a trial

court’s findings do not rest on demeanor evidence and

evaluation of a witness’ credibility, there is no reason to

defer to the trial court’s findings and the appellate court

more readily can find them to be clearly erroneous. See,

e.g., Marcum v. United States, 621 F.2d 142, 144-45 (5th

Cir.1980). Others go further, holding that appellate

review may be had without application of the “clearly

erroneous” test since the appellate court is in as good a

position as the trial court to review a purely documentary

record. See, e.g., Atari, Inc. v. North American Philips Con-

sumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert.

denied, 459 U.S. 880 (1982); Lydle v. United States, 635 F.2d

763, 765 n. 1 (6th Cir.1981); Swanson v. Baker Indus., Inc.,

615 F.2d 479, 483 (8th Cir.1980); Taylor v. Lombard, 606 F.2d

371, 372 (2d Cir.1979), cert. denied, 445 U.S. 946 (1980);

Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d

755, 758 (2d Cir.1979); John R. Thompson Co. v. United

States, 477 F.2d 164, 167 (7th Cir.1973)

A third group has adopted the view that the “clearly

erroneous” rule applies in all nonjury cases even when

findings are based solely on documentary evidence or on

inferences from undisputed facts. See, e.g., Maxwell v.

Suniner, 673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459 U.S.

976 (1982); United States v. Texas Education Agency, 647

F.2d 504, 506-07 (5th Cir.1981), cert. denied, 454 U.S 1143

(1982); Constructora Maza, Inc. v. Banco de Ponce, 616 F.2d

573, 576 (1st Cir.1980):; In re Sierra Trading Corp., 482 F.2d

App. 17

333, 337 (10th Cir.1973): Case v. Morrisette, 475 F.2d 1300,

1306-07 (D.C.Cir.1973).

The commentators also disagree as to the proper

interpretation of the Rule. Compare Wright, The Doubtful

Ommniscience of Appellate Courts, 41 Minn.L.Rev. 751, 769-70

(1957) (language and intent of Rule Support view that

“clearly erroneous” test should apply to all forms of

evidence), and 9 C. Wright & A. Miller, Federal Practice and

Procedure: Civil § 2587, at 740 (1971) (language of the Rule

is clear), with 5A J. Moore, Federal Practice Y 52.04, 2687-88

(2d ed. 1982) (Rule as written supports broader review of

findings based on non-demeanor testimony).

The Supreme Court has not clearly resolved the

issue. See, Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485, 104 S.Ct. 1949, 1958 (1984): Pullman

Standard v. Swint, 456 US. 273, 293 (1982); United States v.

General Motors Corp., 384 U.S. 127, 141 n. 16 (1966); United

States v. United States Gypsum Co., 333 U.S. 364, 394-96

(1948).

The principal argument advanced in favor of a more

searching appellate review of findings by the district

court based solely on documentary evidence is that the

rationale of Rule 52(a) does not apply when the findings

do not rest on the trial court’s assessment of credibility of

the witnesses but on an evaluation of documentary proof

and the drawing of inferences from it, thus eliminating

the need for any special deference to the trial court’s

findings. These considerations are outweighed by the

public interest in the stability and judicial economy that

would be promoted by recognizing that the trial court,

not the appellate tribunal, should be the finder of the

r2

Db)

App. 19

STATEMENT OF 'SSUES

PETITIONER ON APPEAL TO THE SIXTH CIRCUIT)

IN EACH ISSUE THE LOWER COURT DISCUSSED

IN ITS MEMORANDUM OPINION, IT ERRO-

NEOUSLY FOCUSED ON THE QUESTION OF A

PRIMA FACIE CASE RATHER THAN ON THI

QUESTION OF RETALIATION OR DISCRIMINA

TION. BECAUSE THE LOWER COURT APPLIED

THE WRONG VIEW OF THE LAW, ITS DETER

MINATIONS ARE REVIEWABLE DE NOVO.

RUSSELL ESTABLISHED A CAUSAL CONNECTION

BETWEEN THE FILING OF HER GRIEVANCE AND

HER DEMOTION.

RUSSELL ESTABLISHED A CAUSAL CONNECTION

BETWEEN THE FILING OF HER CLAIM WITH THI

EQUAL EMPLOYMENT OPPORTUNITY COMMIS

SION AND HER FIRING

IN DETERMINING THAT THE HOSPITAL DID NO]

RETALIATE AGAINST RUSSELL THE LOWER

COURT FAILED TO ADDRESS THE ISSUE OF PRE-

TEXT. THIS FAILURE TO APPLY THE APPROPRI

ATE LAW IS REVIEWABLE DE NOVO.

THE TRIAL COURT’S FINDING THAT RUSSELI

WAS NEVER ACTUALLY GIVEN THE SITE ADMIN-

ISTRATOR POSITION IS NOT SUPPORTED BY THE

RECORD. IT IS AN INCORRECT FINDING OF FAC

AND THEREFORE SHOULD BE SET ASIDE AS

CLEARLY ERRONEOUS.

THE TRIAL COURT ERRONEOUSLY APPLIED THI

WRONG RULE OF LAW WHEN IT CHARAC-

fERIZED THIS ISSUE AS A FAILURE TO PROMOTE

RATHER THAN A DEMOTION ISSUE. THE

COURT’S DETERMINATIONS ARE THEREFOR]

REVIEWABLE DE NOVO.

pe ee ge ee

App. 20

N

RUSSELL CAN SHOW, BY A PREPONDERANCE OF

THE EVIDENCE, THAT HER DEMOTION WAS DUE

TO HER GENDER.

8. THE COURT BELOW ERRED IN DENYING

RUSSELL’S EQUAL PAY ACT CLAIM BY RELYING

ON JOB TITLES RATHER THAN ACTUAL DUTIES

PERFORMED AND BY DETERMINING THAT SHE

HAD NEVER HELD THE POSITION IN QUESTION.

9. THE LOWER COURT FAILED TO PROPERLY PRE-

SERVE EVIDENCE FOR THE RECORD OF APPEAL.

App. 21

STATEMENT OF THE FACTS

(BY RESPONDENT TO THE SIXTH CIRCUIT)

Ms. Russell is a former employee of the Chattanooga-

Hamilton County Hospital Authority (“Hospital Author-

ity”). The Hospital Authority operates Erlanger Medical

Center, the Alton Park Health Center and the Dodson

Avenue Community Health Center (“Health Centers”),

and other entities. (Opening Statements, Andrew Berke at

TR 4, Apx. at p.161; Albert Head at TR 336, Apx. at

p.401). Ms. Russell was hired as the Finance Manager of

the Health Centers on December 17, 1990, and at the time

of her employment termination, her job title was Patient

Financial Services Manager. (Marlena Russell at TR 27,

Apx. at p.170).

In September, 1991, Albert M. Head, was appointed

by the Hospital Authority Board of Trustees to be the

Executive Director of the Health Centers. (Albert Head at

TR 273-75, Apx. at pp.338-40). Mr. Head was hired as a

“change agent” and was assigned the task of reorganizing

the Health Centers to streamline costs and increase utili-

zation of Erlanger Medical Center management in the

Health Centers’ operations. (Albert Head at TR 275, 305,

Apx. at pp.340, 370; Marlena Russell at TR 110, Apx. at

p.248).

The Health Centers receive a substantial amount of

their funding from federal grants received from the

United States Department of Health and Human Services.

(Albert Head at TR 275-76, Apx. at pp.340-41; Marlena

Russell at TR 34-35, Apx. at pp.177-78). In Spring, 1992,

one of the representatives from the Department of Health

and Human Services recommended that a site administra-

tor be appointed to the Dodson Avenue Community

App. 22

Health Center. (Albert Head at TR 277, Apx. at p.342). Mr.

Head decided during the Summer of 1992, to accept this

recommendation, and expressed to Ms. Russell his inten-

tion to name her as the new site administrator, effective

December 1, 1992. (Albert Head at TR 278, 281, Apx. at

pp.343, 346).

In October, 1992, Mr. Head was informed by James

Pickle, then Chief Executive Officer of Erlanger Medical

Center, that the Health Centers were to adopt the

Erlanger Medical Center computerized management

information system, known as the BHIS system. (Albert

Head at TR 284, Apx. at p.349). The BHIS conversion was

supposed to be completed by December 1, 1992. (Albert

Head at TR 285, Apx. at p.350). The BHIS system would

connect the Health Centers’ accounting system, medical

records systems, and pharmacy with Erlanger Medical

Center’s Information System. (Albert Head at TR 284,

Apx. at p.349). The conversion by the Health Centers to

the BHIS system directly impacted the operations and

functioning of the patient accounts and medical records

areas of the Health Centers that were managed by Ms.

Russell. (Albert Head at TR 284, Apx. at p.349; Marlena

Russell at TR 110, Apx. at p.248). Mr. Head determined

that he needed Ms. Russell to remain in her present

position as Patient Financial Services Manager to oversee

the implementation of the BHIS system. (Albert Head at

TR 284, Apx. at p.349).

In November, 1992, Mr. Head told Ms. Russell that he

needed her to remain in the position of Patient Financial

Services Manager because of the BHIS conversion and

that by March 1 he would review the decision to place her

in the Site Administrator position. (Albert Head at TR

App. 23

285-86, 323, Apx. at pp.350-51, 388). Ms. Russell asked Mr.

Head if she could move her office to the Dodson Avenue

Health Center site and he told her that she could, but Mr.

Head did not say, nor did he intend, that she take the

position of Site Administrator. (Albert Head at TR 286,

Apx. at p.351). Mr. Head further did not know that Ms.

Russell intended to move into an office already occupied

by the Medical Director, instead of into a vacant office.

(Albert Head at TR 354-55, Apx. at pp.419-20). Ms.

Russell began asking Mr. Head repeatedly and persis-

tently for a job description of the Site Administrator

position and this request became a “prerequisite for

everything that we did.” (Albert Head at TR 286, 326,

Apx. at pp.351, 391; Marlena Russell at TR 45, 53-54,

63-64, Apx. at pp.188, 196-97, 206-07; Plaintiff’s Exhibits

13 and 14, Apx. at pp.516-17). There was never a job

description formalized for this position (except for one

that was prepared by Ms. Russell), there were never any

personnel documents prepared reflecting that Ms. Russell

would be or had been transferred to the position of Site

Administrator, there were never any wage or benefits

documents prepared reflecting such a change, and there

was never any change in the wages paid to Ms. Russell.

(Marlena Russell at TR 113, Apx. at p.250). Ms. Russell

was never placed in this position. (Albert Head at TR 292,

Apx. at p.357; Albert Barnett at TR 439, 444, Apx. at p.488,

Supp. Apx. at p.573).

In January, February and March, 1993, Mr. Head

began receiving complaints from other staff members

concerning Ms. Russell. These complaints included a

complaint from Dr. Harris, the Medical Director, that Ms.

Russell had begun to move her personal belongings into

App. 24

the office at the Dodson Avenue Community Health Cen-

ter that was occupied by him, and that she had begun

removing his belongings out of that office without giving

him prior notice. (Albert Head at TR 287, Apx. at p.352;

Marlena Russell at IR 315-17. Apx. at pp.252-54; Char-

lesetta Woodard-Thompson at TR 453-55, Apx. at

pp.499-501). Additionally, Mr. Head shared confidential

Information with Ms. Russel] concerning the supervisory

roles that he was considering, and Ms. Russel] subse-

quently and mistakenly told Dr. Harris and Wanda Rob-

inson, the Director of Clinica] Nursing, that they would

be reporting to her in the future. (Albert Head at TR

286-87, Apx. at pp-351-52). Dr. Harris and Ms. Robinson

then brought their concerns to Mr. Head regarding Ms.

Kussell’s supposed supervision of them. (Albert Head at

IR 287, 315 Apx. at pp.352, 380; Marlena Russell at TR

114-15 Apx at pp.251-52).

Mr. Head also began hearing that the Patient

\ccounts area of the Health Center, under Ms. Russell’s

management, was experiencing numerous problems in

adopting the new BHIS system. (Albert Head at TR

“55-90, Apx. at pp.350-55). In February, 1993, Lois Uren. a

representative from Erlanger’s Accounting Department,

Came to assist the Health Centers in the conversion.

(Albert Head at TR 288-290), Apx. at pp.353-55; Lois Uren

at TR 421, Apx. at p.473). Following a month long evalua-

tion of the Patient Accounts area of the Health Centers,

reports prepared by the Erlanger Accounting Department

were submitted concerning the operations of the Patient

Accounts area and severely criticizing the performance of

Ms. Russell. (Lois Uren at TR 421-27, Apx. at pp.473-79:

Defendant Exhibits 59 and 61, Apx. at PP.562-63, 566-67).

App

Mr. Head did not suggest or attempt to influence th

contents of this report. (Albert Head at TR 290 \p>

p.355; Lois Uren at TR 426-27. Apx. at pp.478-79). M

Russell filed a grievance concerning the tone of th:

)

reports. (Marlena Russell at TR 149. Apx. at p.28

Finally, Mr. Head received complaints from a di

abled employee and from tie Erlanger Human Resourc:

Department concerning the treatment by Ms. Russel] of

this employee, who had requested certain accommoda

tions because of a mental disability. (Albert Head at Tk

281-84, Apx. at pp.346-49). Mr. Head met with Erlanger

Medical Center’s Human Resources Department and

received specific instructions concerning the transfer

the disabled employee and the a commodation steps that

needed to be taken. (Albert Head at rR 281-84, Ap

PX. a

pp.346-49; Charlesetta Woodard-Thompson at TR 450-5

Apx. at pp.496-99). Mr. Head instructed Ms. Russel]

regarding the actions that were needed, but Ms. Russell

completely disregarded his instructions (Albert Head at

'R 281-84, Apx. at pp.346-49). The employee again com

plained to the Human Resources Department and threat

ened legal action. (Albert Head at TR 282-83, Apx. at

pp-347-48; Charlesetta Woodard-Thompson at TR 453

Apx. at p.499). Mr. Head was required to intervene again

and removed Ms. Russell from the situation in order to

avoid legal liability. (Albert Head at TR 284, 315-16, Ap»

at pp.349, 380-81).

In February or March, 1993, Mr. Head determined

that Ms. Russell should remain in the Patient Financia]

Services Manager position, rather than being transferred

to the Dodson Avenue Site Administrator position

(Albert Head at TR 291, Apx. at p.356). Ms. Russell was

App. 26

informed by Mr. Head of his decision, and on March 4,

1993, she was told that she would be directly supervised

by the Director of Finance, Derrek Jones. (Albert Head at

TR 291, Apx. at p.356).

On March 22, 1993, Ms. Russell filed another griev-

ance, this time against Mr. Head, alleging sexual discrimi-

nation in his decision not to transfer her to the Dodson

Avenue Site Administrator position. (Albert Head at TR

292, Apx. at p.357; Marlena Russell at TR 71, Apx. at

p.214). On May 4, 1993, Ms. Russell filed a charge with

the Equal Employment Opportunity Commission alleging

sex discrimination by Mr. Head and the Hospital Author-

ity in the decision not to transfer her into the Site Admin-

istrator position. (Marlena Russell at TR 75, Apx. at

p.218).

On May 25, 1993, Ms. Russell was performing her

duties as a Patient Financial Services Manager at the

Dodson Avenue Community Health Center by registering

patients at the Health Center. Employees Evelyn Moore

and Willie Rosetta Price were also registering patients at

the Dodson Avenue Community Health Center on that

date. (Derrek Jones at TR 359-60, Apx. at pp.424-25; Mar-

lena Russell at TR 119-20, Apx. at pp.256-57; Willie Rose-

tta Price at TR 172-75, Apx. at p.302, Supp. Apx. at

pp.569-71; Evelyn Moore at TR 413, Apx. at p.466; Defen-

dant Exhibit 29, Apx. at pp.542-45).

One of Ms. Russell’s job responsibilities as Patient

Financial Services Manager was to ensure that bank bags

were collected from the bank each day so that daily

deposits of cash receipts at the Dodson Avenue Commu-

nity Health Center could be made. (Derrek Jones at TR

App. 27

360-61, Apx. at pp.425-26; Marlena Russell at TR 128,

Apx. at p.265). This daily deposit of cash and receipts was

important, so that cash would not have to be held in the

Health Center overnight, and to ensure a sufficient cash

flow in the administration of the Health Center. (Derrek

Jones at TR 360-61, 384, Apx. at pp.425-26, 449; Earlene

Goodwyn at TR 181-82, Apx. at pp.303-04; Austin Swett

at TR 223-24, Apx. at p.324, Supp. Apx. at p.572; Evelyn

Moore at TR 414, Apx. at p.467).

During the morning of May 25, 1993, Ms. Russell told

Ms. Rosetta Price that Ms. Price’s name had been added

to the bank’s list of employees that were authorized to

collect the bank bags from the bank, and Ms. Russell

instructed Ms. Price to go to the bank to collect the bags.

(Marlena Russell at TR 85-86, 122, Apx. at pp.228-29, 259).

When Ms. Price arrived at the bank, she was informed

that she had not been added to the list of Health Center

employees authorized to collect the bank bags and could

not do so, so she returned to the Health Center without

the bank bags. (Marlena Russell at TR 87, 123, Apx. at

pp-230, 260). Following Ms. Price’s return, Ms. Russell

knew that she was the only individual present at the

Dodson Avenue Health Center on May 25, 1993 who was

authorized to pick up the bank bags. (Marlena Russell at

TR 123, Apx. at p.260). Ms. Russell also knew that it was

her responsibility to see that the bank bags were picked

up. (Marlena Russell at TR 128, Apx. at p.265; see Defen-

dant Exhibit 28, Apx. at p.541). Ms. Russell made a con-

scious decision at that time, however, that she would not

do so. (Marlena Russell at TR 87, 123, 132, 134, Apx. at

p-230, 260, 269, 271). Ms. Russell was not registering any

App. 28

patients from 12:30 p.m. until 4:00 p.m. (Marlena Russell

at TR 128, Apx. at p.265).

At 12:00 noon, Ms. Russell wrote a memorandum to

her supervisor, Derrek Jones, stating that the Health Cen-

ter would have to retain cash on site that night because

Mr. Jones had failed to add Ms. Price’s name to the bank’s

list of employees authorized to collect the bank bags.

(Marlena Russell at TR 125-26, Apx. at pp.262-63; Defen-

dant Exhibit 28, Apx. at p.541). Ms. Russell further stated

that the Health Centers could probably expect a call from

the Accounting Department at Erlanger Medical Center

concerning their failure to make the bank deposit. (Defen-

dant Exhibit 28, Apx. at p.541). Ms. Russell sent a copy of

this memo to Mr. Jones’ supervisor, Mr. Head, and to the

Accounting Department at Erlanger Medical Center.

(Defendant Exhibit 28, Apx. at p.541).

At approximately 3:20 p.m., before he had received

the memo, Mr. Jones was informed by Al Barnett, the

Assistant Director of Planning and Evaluation of the

Health Centers, that the bank bags had not yet been

picked up for the Dodson Avenue Community Health

Center. (Derrek Jones at TR 362-63, Apx. at pp.427-28).

Mr. Jones telephoned Ms. Russell and instructed her to

collect the bags herself. (Derrek Jones at 363, 373, Apx. at

pp.428, 438). Ms. Russell first responded that she was not

authorized to collect the bank bags and that there was a

copy of a memo so indicating. (Derrek Jones at TR 364,

Apx. at p.429). Mr. Jones told Ms. Russell he was looking

at a copy of the same memo in question and that her

name was still on the authorization list. (Derrek Jones at

YR 364, Apx. at p.429). Mr. Jones then instructed Ms.

Russell a second time to collect the bank bags. (Derrek

App. 29

Jones at TR 364, Apx. at p.429). Ms. Russell then told him

that she could not pick up the bank bags because she had

too much paperwork to do. (Derrek Jones at TR 364, Apx.

at p.429). Mr. Jones told Ms. Russell that since she did not

get off work until 5:00 p.m., and since the bank was only

three blocks away, that she could go to the bank and pick

up the bags, and then complete her paperwork after the

bank’s closing time of 4:00 p.m. (Derrek Jones at TR 365,

Apx. at p.430). Mr. Jones then instructed Ms. Russell for

the third time to collect the bank bags. (Derrek Jones at

TR 365, Apx. at p.430). Ms. Russell again refused to pick

up the bags, and stated to Mr. Jones, her direct super-

visor, “I’m not going to argue with you, I'll pick them up

tomorrow.” (Marlena Russell at TR 135, Apx. at p.272;

Derrek Jones at TR 365, Apx. at p.430). Ms. Russell con-

cluded the call by saying that she knew that Mr. Jones

would impose a disciplinary action against her for her

refusal. (Derrek Jones at TR 374, Apx. at p.439). The bank

bags were not picked up that day and the Health Center’s

cash receipts had to be housed overnight at the Health

Center. (Derrek Jones at TR 366, Apx. at p.431). This is the

only day of which Mr. Jones was aware that the bank

bags were not picked up during his tenure as the Director

of Finance. (Derrek Jones at TR 360-61, Apx. at

pp.425-26).

Mr. Jones then informed Mr. Head regarding Ms.

Russell’s refusal to follow his instructions concerning the

bank bags. (Derrek Jones at TR 366, Apx. at p.431; Albert

Head at TR 293-94, Apx. at pp.358-59). Mr. Head did not

advise Mr. Jones concerning any action that should be

taken, but instead referred him to the Human Resources

Department of Erlanger Medical Center. (Derrek Jones at

App. 30

TR 366-67, Apx. at pp.431-32; Albert Head at TR 293-94,

Apx. at pp.358-59). The Human Resources Department

informed Mr. Jones that this action by Ms. Russell could

be classified as a Class IV violation of the Hospital

Authority’s disciplinary policy, refusal to follow a direct

order, which would result in termination of employment.

(Derrek Jones at TR 366-67, Apx. at pp.431-32). The

Human Resources Department also informed Mr. Jones

that he, as the supervisor, had the options of ignoring the

situation, talking privately with the employee, or impos-

ing a lesser disciplinary action. (Charlesetta Woodard-

Thompson at TR 460, Apx. at p.506).

During the night of May 25, Mr. Jones considered

what disciplinary action he would take with respect to

Ms. Russell. (Derrek Jones at TR 368, 375-76, Apx. at

pp.433, 440-41). Mr. Jones was concerned regarding the

impact that his actions would have, given that Ms.

Russell had a grievance currently pending against Mr.

Head. (Derrek Jones at TR 368, 391, Apx. at pp.433, 456).

When he arrived at his office on the next morning, May

26, 1993, Mr. Jones saw for the first time the memo that

had been prepared by Ms. Russell the previous day alleg-

ing that Mr. Jones’ failure to change the names on the

bank card resulted in the Health Center receipts being

housed overnight. (Derrek Jones at TR 368, Apx. at

p.433). Mr. Jones noted that the memorandum completely

omitted any suggestion that Ms. Russell was authorized

to pick up the bank bags, but had refused to do so.

(Derrek Jones at TR 368-70, Apx. at pp.433-35). Mr. Jones

felt that Ms. Russell in this memo was attempting to place

the blame on him for the consequences of her own refusal

to pick up the bags. (Derrek Jones at TR 368, Apx. at

App. 31

p.433). Mr. Jones concluded that Ms. Russell’s behavior

had gone too far, and decided that Ms. Russell should be

dismissed. (Derrek Jones at TR 368, Apx. at p.433). Mr.

Jones knew there was a grievance against Mr. Head at

this time, but he did not know that Ms. Russell had filed

an EEOC charge. (Derrek Jones at TR 372-73, Apx. at

pp.437-38).

Ms. Russell claims that she was unable to pick up the

bank bags when instructed to do so because she was

assisting with an hysterical woman who came into the

Health Center complaining that her mother needed heart

medicine. (Marlena Russell at TR 94, Apx. at p.237). Ms.

Russell stated that this woman was screaming and rant-

ing in the Health Center and that she attempted to calm

her down. (Marlena Russell at TR 94, Apx. at p.237). Ms.

Russell further testified that she considered this situation

to be a matter of life or death for the lady’s mother, and

felt that if something was not done, then something

serious would happen. (Marlena Russell at TR 136, Apx.

at p.273).

Ms. Russell subsequently filed a claim for unemploy-

ment compensation benefits with the Tennessee Depart-

ment of Employment Security. (Marlena Russell at TR

142-45, Apx. at pp.279-82). Ms. Russell stated in her ini-

tial claim that she could not go to the bank to collect the

bank bags because she would be required to leave her

department “unmanned.” She made this assertion despite

the fact that Evelyn Moore and Willie Rosetta Price were

present on the day in question. (Marlena Russell at TR

142-45, Apx. at pp.279-82; Defendant’s Exhibit 6 and 7,