

                  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 &amp; 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 &amp;  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
