
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1522                                  SHARON C. FOSTER,                                Plaintiff, Appellant,                                          v.                        JOHN H. DALTON, SECRETARY OF THE NAVY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                        Selya, Cyr and Stahl, Circuit Judges.                                              ______________                                 ____________________               Robert B. Mann, with  whom Mann & Mitchell was on brief, for               ______________             _______________          appellant.                Jennifer H.  Zacks, Attorney,  U.S. Dep't of  Justice, with                __________________          whom   Frank  W.  Hunger,  Assistant  Attorney  General,  Sheldon                 _________________                                  _______          Whitehouse,  United  States  Attorney,  and  Marleigh  D.  Dover,          __________                                   ___________________          Attorney, U.S. Dep't of Justice, were on brief, for appellee.                                 ____________________                                  December 11, 1995                                 ____________________                    SELYA,  Circuit Judge.   Plaintiff-appellant  Sharon C.                    SELYA,  Circuit Judge.                            _____________          Foster, an African-American woman, sued the Secretary of the Navy          on  the ground  that  the Newport  Naval Hospital  (the Hospital)          denied her a job due to her race.1   Following a bench trial, the          district court rendered judgment for the Secretary.  Although the          record  makes it painfully clear that this episode is light years          away  from the Navy's finest  hour, we have  no principled choice          but to affirm.          I.  BACKGROUND          I.  BACKGROUND                    The  subsidiary  facts  are  largely undisputed.    The          United States  Navy maintains a substantial  presence in Newport,          Rhode  Island.    In the  summer  of  1989,  the appellant  found          civilian employment at the Naval War College.  Seeking to advance          through  the  ranks,  she  assiduously applied  for  other,  more          attractive jobs in the  Newport naval establishment.  Since  most          facilities located at  the base  adhered to a  policy of  filling          vacancies  by  selecting  internal  candidates  (i.e., candidates          already employed within the particular facility)  where possible,          the appellant  had no luck  until the  Hospital hired her  as its          professional affairs coordinator.  She  reported for duty in July          of 1990.                    Shortly  after   the  appellant  came  on   board,  the          Hospital's director of administration, Commander  William Travis,          sought  to fill a newly created opening for a management analyst.                                        ____________________               1The  Secretary is the appropriate defendant in this type of          action.  See 42 U.S.C.   2000e-16(c) (1988).                   ___                                          2          Because he  believed that available funding  would be jeopardized          if the position  remained open  at the start  of the next  fiscal          year  (October 1,  1990),  Commander Travis  eschewed the  hiring          procedure ordinarily used to recruit civilian staff and undertook          a  non-competitive  search.   This  process  consisted mainly  of          culling  the names  of  aspirants for  advancement from  existing          files  and  assembling a  list  of potential  candidates.   Staff          personnel compiled  a roster  of five such  candidates (including          the  appellant).  As among  the five nominees,  the appellant was          twice distinguished:  she was the only non-Caucasian and the only          person already  employed at  the Hospital.   Thus,  had Commander          Travis  adhered  to  the  usual  policy  of  preferring  in-house          aspirants, the appellant   who was plainly qualified for the post            would have been selected.                    When  George  Warch,  the Hospital's  civilian  program          specialist,  presented Commander  Travis  with  the list,  Travis          inquired  why  James Berry's  name was  omitted  from it.   Warch          informed Travis that Berry   Warch's "fishing buddy" and Travis's          acquaintance     could not  be  offered employment  at  the grade          specified for  the position.   Travis promptly directed  Warch to          rewrite  the job  description,  specify a  lower grade  (at which          Berry  would  be eligible),  and generate  a  new list.   Leaving          little  to chance, Travis  also decreed  that candidates  for the          position should have certain  computer expertise   expertise that          Berry possessed   and intimated that he would invoke the Veterans          Readjustment Act (VRA), 38  U.S.C.   4214 (1988 &  Supp. V 1993),                                          3          in filling the management analyst vacancy.2                    The modified job description  yielded a fresh list with          only one name on it:  James Berry.  Although Warch mused that the          revisions made it  appear that the powers-that-be had connived to          preselect Berry  for the  vacancy, Travis brushed  these concerns          aside and named Berry to the management analyst position.                    In the wake of  Berry's hiring, the appellant  filed an          administrative  complaint  with  the   Navy,  alleging  that  the          Hospital had discriminated against  her on the basis of  her race          and gender.  Receiving no satisfaction, she brought suit in Rhode          Island's  federal  district  court,  charging  discrimination  in          contravention of Title VII  of the Civil  Rights Act of 1964,  42          U.S.C.    2000e (1988).  Following a  bench trial that focused on          allegations of race discrimination,3  the district court ruled in          the Secretary's  favor.   The court  thought  that the  appellant          proved a prima  facie case, see Foster v. Secretary  of the Navy,                                      ___ ______    ______________________          No. 93-0509,  slip op. at  12 (D.R.I.  Apr. 13,  1995), and  also          thought  that she  was  better qualified  for  the position  than          Berry, see id. at 8.  But the court determined that the Secretary                 ___ ___                                        ____________________               2Under  the  VRA,  veterans  receive preference  in  certain          governmental employment.   See,  e.g., Jakes v.  Veterans Admin.,                                     ___   ____  _____     _______________          793  F.2d 293, 295  (Fed. Cir. 1986)  (elucidating VRA preference          system); see also Keyes v. Secretary of  the Navy, 853 F.2d 1016,                   ___ ____ _____    ______________________          1020-21  (1st   Cir.  1988)  (discussing   veterans'  preferences          generally); 5 C.F.R.    307.102(a) (1995) ("Federal agencies have          the responsibility  to provide the maximum of  employment and job          advancement  opportunities to eligible veterans  . . .  .").  Not          coincidentally, Berry had served in the United States Navy.                3The   appellant  did   not  press   her  claim   of  gender          discrimination at trial,  and does  not seek to  resurrect it  on          appeal.  The claim is therefore waived.                                          4          had successfully rebutted  the prima facie  case by proffering  a          nondiscriminatory, if unsavory, reason  for the personnel action:          preselection of a friend of  the appointing officer.  See id.  at                                                                ___ ___          14.    Overriding  Travis's  and Warch's  pious  assurances  that          cronyism  played  no  role  in  Berry's  recruitment,  the  court          concluded that this was a near-classic case of an old boy network          in  operation,  but  not  a  situation in  which  the  employment          decision was motivated by racial animus.4  This appeal ensued.          II.  ANALYSIS          II.  ANALYSIS                    The  district  court wrote  a  thoughtful, meticulously          reasoned opinion dealing  with many of the  same contentions that          Foster voices on appeal.  Having carefully explored the nooks and          crannies of the case,  we affirm the judgment essentially  on the          basis  of Judge Pettine's rescript.  We embellish only in certain          limited respects.                    First:   We start at a  high level of generality.   The                    First:                    _____          appellant does not seriously dispute the district court's account          of  the facts,  but vigorously  attacks the  inferences that  the          court saw fit  to draw from  them.  Although  she denies it,  her          jeremiad essentially asks  that we reweigh the  evidence de novo,          and substitute a new  set of inferences for the  inferences drawn                                        ____________________               4Though  entering judgment  in  the  Secretary's favor,  the          district  court  expressed its  distaste  for Commander  Travis's          ichthyophagous hiring  practices.  Among other  things, the court          chastised Travis for  his "ignorance of EEO  hiring policies, his          calloused attitude toward the hiring of  minorities, and the fact          that  he  rejected  [Warch's]  pre-selection  concern  .  . .  ."          Foster,  slip op.  at 14.   The court's  criticism appears  to be          ______          well-founded.                                          5          by the  trier.   Our standard of  review, however,  is much  more          circumscribed.                    Following a  bench trial, an appellate  tribunal is not          warranted  in substituting  its judgment  for that  of  the trial          court.   This rule is composed of equal parts of common sense and          practical wisdom:  it is difficult to gain a full appreciation of          a  fact-sensitive  controversy  from  a  paper  record,  and  the          district judge  ordinarily  has had  the  benefit of  seeing  and          hearing the  witnesses in  person.   Hence,  we are  not free  to          reject  either his findings of  fact or the  conclusions he draws          therefrom unless they are clearly erroneous, that is, "unless, on          the whole of the record, we form a strong, unyielding belief that          a mistake has been  made."  Cumpiano v. Banco Santander P.R., 902                                      ________    ____________________          F.2d 148, 152 (1st Cir. 1990).  Findings concerning an employer's          intent  are subject to review under this standard, and can be set          aside only for clear error.  See id. (citing authorities).                                       ___ ___                    This  case is  troubling in  that we,  if writing  on a          pristine page, might well have  reached a different conclusion as          to the impetus behind the  refusal to hire.  But that is  not the          test.   See Keyes v. Secretary  of the Navy, 853  F.2d 1016, 1027                  ___ _____    ______________________          (1st  Cir. 1988).  While the record, read objectively, shows that          the   district   court  could   have   drawn   an  inference   of          discriminatory intent, it does not show that such an inference is          compelled.  That  raises the  stakes appreciably.   It is  common          ground  that,  "when  there  are  two permissible  views  of  the          evidence, the factfinder's choice  between them cannot be clearly                                          6          erroneous."  Johnson v.  Watts Regulator Co., 63 F.3d  1129, 1138                       _______     ___________________          (1st  Cir. 1995) (citing Anderson  v. City of  Bessemer City, 470                                   ________     ______________________          U.S. 564, 574 (1985)).  So it is here.                    Second:  Turning to  specifics, the appellant says that                    Second:                    ______          preselection (which,  according to the court  below, dictated the          adverse   employment   decision)    occurred   only   after   the          decisionmaker learned  that the management analyst  post would go          to  an African-American woman, virtually by default, if he failed          to adopt an alternative means of candidate selection.  This  is a          plausible rendition of  the facts, but  not the only  permissible          one.  Though  Berry's name first surfaced  after Commander Travis          received an  initial list, Travis  could well  have expected  all          along  to  see Berry  in that  lineup  and, when  his  hopes were          dashed,  attempted to regain  lost ground by  altering the rules.          Because  both scenarios  are plausible,  we will not  disturb the          trial judge's choice between them.  See Johnson, 63 F.3d at 1138;                                              ___ _______          Cumpiano, 902 F.2d at 152; Keyes, 853 F.2d at 1019-20.          ________                   _____                    Third:   The appellant  insists that Commander Travis's                    Third:                    _____          abandonment  of the  Hospital's wonted  policy of  preferring in-          house candidates  itself gives rise to  an irresistible inference          of racial  animus.  The  appellant weaves a  complicated tapestry          with  the threads of this argument, hinting that the policy often          operated  in  the  past   to  exclude  minority  candidates  from          elevation, thus making the  Hospital's disregard of it in  a case          where  that policy would redound  to the advantage  of a minority          candidate all the more cruel.  In her view, this abrupt departure                                          7          from past practice  can only be explained on  the basis of racial          bias.  We do not agree.                    The   district   court   treated  this   departure   as          suspicious,  but  concluded  that  Commander  Travis tweaked  the          ordinary  praxis  to benefit  a friend  rather  than to  thwart a          person  of color.  Two obvious  propositions spring to mind.  One          is  that cronyism is deplorable, especially when it is allowed to          infect  public sector  employment decisions.   The  other obvious          proposition  is that Title VII does not have a limitless remedial          reach.  An  employer can hire one  person instead of  another for          any reason, fair  or unfair, without transgressing  Title VII, as          long as the hiring  decision is not  spurred by race, gender,  or          some  other protected  characteristic.   See Keyes,  853  F.2d at                                                   ___ _____          1026.   As we explain infra, Title VII does not outlaw cronyism                                  _____          and,  in this  case, cronyism  provides a  sufficient alternative          explanation for the challenged deviation from the standard hiring          protocol.  Thus, the district court's assessment of the proffered          evidence was not clearly erroneous.                    Fourth:     At   trial,  Commander   Travis  stalwartly                    Fourth:                    ______          maintained  that he hired Berry because he was the best qualified          aspirant.     Judge   Pettine   understandably  discounted   this          testimony.   See  Foster,  slip  op.  at  14-15.    Although  the                       ___  ______          appellant concedes that a court is not legally bound to find  for          a Title  VII plaintiff simply  because it rejects  the employer's          proffered reason for an  employment decision, she maintains that,          here,  the court's disbelief of the explanation, coupled with the                                          8          deviation  from  the  standard  policy  of  in-house  preferment,          compels an inference that the decision was race-driven.  To shore          up this contention, the appellant points to the  naval officials'          repeated  denials of favoritism.   Noting that the district court          declined to credit these  denials because they were self-serving,          see id. at 14, the appellant asseverates that, since preselection          ___ ___          was the only alternative rationale that could sidetrack a finding          of racial  discrimination, the district court  erred; the denials          of  preselection were,  in fact,  against self-interest,  and the          employer should be held to them.                    This argument is too clever by half.  We do not believe          it  is implausible that veteran  bureaucrats   and,  in our view,          "bureaucrat" and "naval officer" are not mutually exclusive terms            would deny preselection to avoid the stigma of having failed to          follow neutral  hiring procedures.  Indeed,  Travis's and Warch's          on-the-stand  denials  are  replete  with clues  from  which  the          district judge  reasonably could  have deduced that  the two  men          collogued to  tilt the process in Berry's favor.5  In all events,          actions speak louder than words.  In a bench trial "what an actor          says is not conclusive on a state-of-mind issue.  Notwithstanding          a  person's disclaimers, a contrary state of mind may be inferred          from what he does and from a factual mosaic tending  to show that          he really meant to accomplish that which he professes not to have          intended."    Anthony v.  Sundlun, 952  F.2d  603, 606  (1st Cir.                        _______     _______                                        ____________________               5To  cite  one  example,  Warch admitted  that  he  proposed          invoking  the VRA  as  a means  to  getting Berry's  name  to the          forefront.                                          9          1991).                    In one sense, the district  court's finding that an old          boy  network was  in  operation though  the  old boys  denied  it          amounts to a credibility call.  By and large, such  calls are for          the district court, not for the court of appeals.  See, e.g., id.                                                             ___  ____  ___          (warning  that  the  court  of  appeals  "ought  not  to  disturb          supportable  findings, based  on witness  credibility, made  by a          trial judge who has seen and heard the witnesses at first hand").          There is no reason to apply a different rule in this case.                    Fifth:  The appellant  argues passionately that even if                    Fifth:                    _____          Commander  Travis fished  Berry  from the  applicant pool  simply          because he  was spawned  by the old  boy network,  such a  hiring          decision itself  contravenes the  mandate of  Title VII.   Though          this construct, which rests  on the premise that cronyism  is the          primary means by which  employers perpetuate workplace apartheid,          possesses a certain superficial appeal, it cannot withstand close          perscrutation.                    Indeed, the construct lacks any vestige of precedential          support.  The very cases on which the appellant relies explicitly          reject it.  See, e.g.,  Holder v. City of Raleigh, 867  F.2d 823,                      ___  ____   ______    _______________          825-26  (4th  Cir.  1989) (rebuffing  plaintiff's  assertion that          nepotistic hiring practices, even  when denied by defendant under          racially   charged    circumstances,   constitute   impermissible          discrimination under Title VII); Autry v. North Carolina Dep't of                                           _____    _______________________          Human Resources, 820 F.2d  1384, 1385 (4th Cir.  1987) (similar).          _______________          Thus,  her argument amounts to  nothing more than  a plea that we                                          10          impose  the construct  by judicial  fiat.   But  that is  not our          province.   Given  the state  of the  law, appellant's  construct          should  be debated  before  the Congress,  not argued  before the          courts.                    Relatedly, the  appellant suggests that  Title VII must          be read  to bar  cronyism because  that  tawdry practice  assures          continued white domination in the workplace.  But this suggestion          challenges   as  discriminatory   a  facially   race-neutral  (if          offensive)  policy, and  necessarily  depends for  support on  an          examination  of multiple  hiring  decisions.   It is,  therefore,          better tailored to cases alleging  disparate impact as opposed to          disparate  treatment.  See Autry, 820 F.2d at 1385; see generally                                 ___ _____                    ___ _________          Furnco  Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-80 (1987)          _____________________    ______          (explaining  the  basic  dichotomy between  disparate  impact and          disparate treatment);  cf. EEOC v. Steamship  Clerks Union, Local                                 ___ ____    ______________________________          1066,  48 F.3d 594, 606  (1st Cir.) (holding  in disparate impact          ____          case  that a policy of nepotism can, under certain circumstances,          constitute evidence of race discrimination in  employment), cert.                                                                      _____          denied, 116 S. Ct. 65 (1995).          ______                    Where, as  here, a  disappointed applicant has  made no          systematic effort  to prove pervasive  cronyism or  to show  that                                      _________          cronyism,  when practiced  in a  particular workplace,  regularly          yields a racially discriminatory result, a disparate impact claim          goes by the  boards.   So here:   at trial, appellant's  counsel,          responding   to  the  district  court's  insightful  questioning,          characterized the suit as  one involving disparate treatment, not                                          11          disparate impact.   That characterization binds  the appellant in          the present venue as well.                    This  brings us full circle.   While the  facts of this          disparate   treatment   case   can   support   an  inference   of          discriminatory  intent, they  can  equally support  a finding  of          undiluted favoritism,  unmixed with  racial animus.    On such  a          record, it  is the trial court's prerogative   indeed, its duty            to  select the inference that  it deems appropriate.   Because we          cannot accept the appellant's  invitation to create a presumption          that  the use of an old boy  network in hiring constitutes per se          racial discrimination,  we are powerless to  subvert the district          court's election between conflicting inferences.          III.  CONCLUSION          III.  CONCLUSION                    We  need go no further.6   Title VII  "does not presume          to  obliterate all manner of inequity, or to stanch, once and for          all,  what  a Scottish  poet  two centuries  ago  termed `[m]an's          inhumanity to man.'"   Keyes,  853 F.2d at  1026 (quoting  Robert                                 _____          Burns, Man Was  Made to Mourn (1786)).  Like  the court below, we                 ______________________          find  the conduct  of  the naval  hierarchy in  this  case to  be          deserving  of opprobrium,  but two  wrongs seldom  make a  right.          Discerning no  clear error in  the district court's  finding that          favoritism,    not    racism,    tainted    Commander    Travis's          decisionmaking, we reject Foster's appeal.                                        ____________________               6This appeal concerns only  Foster's claims under Title VII.          We  take no  view  of  what  remedies, if  any,  federal  law  or          regulations   governing  personnel   practices  may   afford  the          appellant to redress this seeming injustice.                                          12          Affirmed.  No costs.          Affirmed.  No costs.          ________   ________                                          13
