United States Court of Appeals,
Eleventh Circuit.
No. 93-9191.
Patricia HAYNES, Plaintiff-Appellant,
v.
W.C. CAYE & COMPANY, INC., Defendant-Appellee.
May 19, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-CV-2844-JEC), Julie E. Carnes,
Judge.
Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and PAINE,*
Senior District Judge.
ANDERSON, Circuit Judge:
Patricia Haynes, a white female in her late fifties, brought
this action against her employer W.C. Caye & Co., a Georgia
corporation. Haynes sued pursuant to the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and the Civil
Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. (Title
VII). A bench trial was held before a magistrate judge pursuant to
Local Rule 920-2 which requires that all Title VII cases be
referred at the time of filing to full time magistrate judges under
the authority of 42 U.S.C. Section 2000e-5(f)(5), Local Rule 920-2,
Internal Operating Procedures, Northern District of Georgia.
This opinion will address two of the issues raised by
appellant in this appeal;1 with respect to each, we set out the
*
Honorable James C. Paine, Senior U.S. District Judge for
the Southern District of Florida, sitting by designation.
1
Haynes' allegations regarding the unconstitutionality of
Local Rule 920-2's delegation of authority to the magistrate
judge was not raised before appeal and, thus, will not be heard
facts and background necessary for an understanding of our
decision. First, we address Haynes' claim that the district court
improperly denied her a jury trial on her age discrimination claim.
We hold that Haynes consented to trial by the magistrate judge
sitting without a jury. Second, we address Haynes' claim that the
court below erred in its consideration of her Title VII sex
discrimination claim by failing to recognize that certain evidence
could be direct evidence of discrimination. We agree with Haynes
in this regard, and therefore vacate the judgment with regard to
the sex discrimination claim and remand.
I. HAYNES' CLAIM TO A JURY TRIAL ON HER AGE DISCRIMINATION CLAIM
Haynes argues on appeal that she retains a right to a jury
trial on her age discrimination claim because she filed a valid
jury demand pursuant to Rule 38, Fed.R.Civ.P. Federal Rule of
Civil Procedure 39(a) provides in relevant part:
When trial by jury has been demanded as provided in Rule 38,
the action shall be designated upon the docket as a jury
action. The trial of all issues so demanded shall be by jury,
unless (1) the parties or their attorneys of record, by
written stipulation filed with the court or by an oral
stipulation made in open court and entered in the record,
consent to trial by the court sitting without a jury....
On November 6, 1992, the parties, through their attorneys of
record, signed and filed with the court a Joint Preliminary
Statement and Scheduling Order [R1-15-3] which provided in relevant
part:
here. Haynes argument that the magistrate judge's credibility
findings are not supported by the record as well as her
contention that the magistrate judge failed to recognize that any
beliefs allegedly held by Caye, Jr. regarding Haynes' performance
were not in good faith are both without merit and warrant no
discussion.
(c) The legal issues to be tried are as follows:
The issue presented to the Court is whether the Defendant
discriminated against the Plaintiff by reason of age or sex
with respect to compensation, terms, conditions, and
privileges of employment.
The parties' Joint Preliminary Statement and Scheduling Order was
filed on November 6, 1992, almost a year after the case was
referred to the magistrate judge. Immediately thereafter, on
November 19, 1992, the magistrate judge scheduled the case for
trial before him. It is clear that this order was based upon the
parties Joint Preliminary Statement and Scheduling Order, and thus
contemplated a trial before the magistrate judge of both the Title
VII sex discrimination claim and the age claim. Moreover, the
trial was conducted before the magistrate judge with no objection
from Haynes. Haynes did not object to the nonjury trial of her age
claim until after the magistrate judge issued his report and
recommendation; Haynes' first raised the issue in her objections
to the magistrate judge's report and recommendation.2
Under these circumstances, we conclude that Haynes consented
to nonjury trial of both her sex discrimination and her age
discrimination claims before the magistrate judge. The
aforementioned Joint Preliminary Statement and Scheduling Order was
signed by the attorneys of record for both parties and filed with
the court. That Joint Preliminary Statement and Scheduling Order
clearly submitted to the magistrate judge for decision both the sex
claim and the age claim. In the language of the Joint Preliminary
Statement and Scheduling Order itself, "[t]he issue presented to
2
Even at that late stage, her objection was vague.
the Court is whether the defendant discriminated against the
plaintiff by reason of age or sex." In context, the language
"presented to the Court" clearly submitted the age claim as well as
the Title VII sex claim to the magistrate judge for a bench trial.
Although a waiver of a valid jury demand " "is not to be
lightly inferred' ", Dell'Orfano v. Romano, 962 F.2d 199, 202 (2d
Cir.1992) (citation omitted), and waivers should be scrutinized "
"with the utmost care' ". Banff, Ltd. v. Colberts, Inc., 996 F.2d
33, 36 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 599, 126
L.Ed.2d 564 (1993), we have no difficulty in this case finding a
clear consent to a nonjury trial before the magistrate judge.3
II. HAYNES' CLAIM OF DIRECT EVIDENCE OF DISCRIMINATION IN HER
TITLE VII SEX DISCRIMINATION CASE
A. Facts4 and Proceedings Below
After Charles G. (Pete) Caye, Jr. ("Caye, Jr.") became
president of appellee, he decided to create a position with the
sole function of overseeing collections. The case involves Haynes'
promotion to this new position. Caye, Jr. sought the advice of
long time employee Nelson. Nelson recommended Haynes for the
3
Other circuits have indicated that the conditions of Rule
39 were met even in situations less obvious than the one at bar.
For example, the requirements of Rule 39 have been interpreted to
" "encompass orders entered by the court and not objected to.' "
Sewell v. Jefferson Co. Fiscal Court, 863 F.2d 461, 464 (6th
Cir.1988), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d
42 (1989) (citation omitted). In addition, failure to object to
a nonjury factfinding proceeding might waive a valid jury demand
as to any claims decided in that proceeding, "at least where it
was clear that the court intended to make fact determinations."
Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987).
4
Although only the facts necessary to an understanding of
our decision are set out, the crucial facts are for the most part
taken verbatim from the magistrate judge's report and
recommendation.
position, but Caye, Jr. was hesitant to accept the recommendation,
asking Nelson if he thought it would require a man to do the job.
Nelson persisted in his recommendation and a meeting was held
between Caye, Jr., Nelson and Haynes. At the meeting, Caye, Jr.
asked Haynes whether "a sweet little old lady could get tough
enough with the customers and collect the money." Haynes assured
Caye, Jr. that she could handle the job, and the job was offered to
her on a trial basis. During Haynes' tenure in the new position,
Caye, Jr. stated to her: "You know, Pat, I felt that a woman was
not competent enough to do this job, but I think maybe you're
showing me that you can do it." Haynes sought clarification of his
meaning, and Caye, Jr. stated that he meant that women were simply
not tough enough.
Amongst his other findings, the magistrate judge held that
Caye, Jr.'s comments did not constitute direct evidence of
discrimination. The magistrate judge also found that plaintiff had
failed to satisfy her ultimate burden of proving discriminatory
intent and that plaintiff had not been constructively discharged.5
In addition, the magistrate judge assumed arguendo that Caye, Jr.'s
chauvinistic attitudes played some role in the decision, but then,
in conclusory fashion, found that the decision to remove Haynes
from the new position would have been made regardless of these
chauvinistic attitudes. The magistrate judge's report and
recommendation was adopted by the district court.
5
The courts below did not address Haynes' claim that even if
she were not constructively discharged, she was demoted based on
gender discrimination. This claim should be addressed on remand.
B. Analysis
We conclude, contrary to the magistrate judge's conclusion,
that some of Caye, Jr.'s comments could constitute direct evidence
of discrimination. Because we are unable to ascertain whether or
not, and the extent to which, this error affected the magistrate
judge's other findings, we conclude that it is appropriate to
vacate the judgment of the district court and to remand for further
consideration in light of this opinion.
We conclude that at least two of Caye, Jr.'s comments could
constitute direct evidence of discriminatory intent, his statement
to Haynes that women were simply not tough enough to do the job,
and his earlier suggestion to Nelson that it would require a man to
do the job.6 The direct evidence in the instant case is
indistinguishable from some of the evidence which the Supreme Court
in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104
L.Ed.2d 268 (1989), considered as direct evidence. One item of
evidence relied upon by the Supreme Court in that case—"one partner
repeatedly commented that he could not consider any woman seriously
as a partnership candidate and believed that women were not even
capable of functioning as senior managers", id. at 236, 109 S.Ct.
at 1783—cannot be distinguished from the evidence in this case.
Indeed, a statement that members of a racial minority in general or
6
Because binding precedent clearly indicates that these two
comments are direct evidence, see infra, we need not address
whether Caye, Jr.'s "sweet little old lady" comment also could
constitute direct evidence. Similarly, with respect to Caye,
Jr.'s comments about another position—i.e. Kathy Carr's statement
that she really had to fight for her position because Caye, Jr.,
wanted a man in that role—we need not address whether that could
constitute direct evidence of discrimination in this case.
women in general are simply not competent enough to do a particular
job would seem to be a classic example of direct evidence.7 With
respect to the quoted evidence and other similar evidence, the
Supreme Court held that once a plaintiff "shows that gender played
a motivating part in an employment decision, the defendant may
avoid a finding of liability only by proving that it would have
made the same decision even if it had not allowed gender to play
such a role." Id. at 244-45, 109 S.Ct. at 1787-88.8
In Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th Cir.1990), a
white plaintiff had occupied the position of director of a
particular program in the Fulton County Health Department. She was
terminated, and brought a discrimination claim. This court held
that a statement by one of the black decision makers that "the ...
program needed a black director," id. at 1555, constituted direct
evidence of discrimination.
Following Price Waterhouse and Caban-Wheeler, we conclude that
the above-identified comments by Caye, Jr. in the instant case
could constitute direct evidence of discrimination. See also
Thompkins v. Morris Brown College, 752 F.2d 558, 561, 563-64 (11th
7
Of course, this case involves and our reference is to a job
with respect to which it is not claimed that gender is a bona
fide occupational qualification (BFOQ). The Supreme Court in
Price Waterhouse referred to the BFOQ situation as analogous;
there also the burden of persuasion is upon the employer to show
why it must use gender as a criterion. Id. at 247-48, 109 S.Ct.
at 1789.
8
To the same effect, see Price Waterhouse, 490 U.S. at 276,
109 S.Ct. at 1804 (O'Connor, J., concurring) ("Once a Title VII
plaintiff has demonstrated by direct evidence that discriminatory
animus played a significant or substantial role in the employment
decision, the burden shifts to the employer to show that the
decision would have been the same absent discrimination.").
Cir.1985) (statement by decisionmaker that he saw no need for a
woman to have a second job constituted direct evidence of
discriminatory intent); Bell v. Birmingham Linen Service, 715 F.2d
1552, 1557 (11th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct.
2385, 81 L.Ed.2d 344 (1984); Wilson v. City of Aliceville, 779
F.2d 631 (11th Cir.1986) (citing Miles v. M.N.C. Corp., 750 F.2d
867, 873-76 (11th Cir.1985) for proposition that racial slurs made
by employment decisionmakers can constitute direct evidence of
discrimination).
In a discrimination case in which a plaintiff adduces direct
evidence of discrimination, the trial judge must initially make a
credibility finding as to whether or not plaintiff's proffered
direct evidence of discrimination is to be believed. Caban-
Wheeler, 904 F.2d at 1555 (quoting Thompkins, 752 F.2d at 1564).
The trial court must also make a finding of fact as to whether or
not the decision maker "relied upon sex-based considerations in
coming to its decision." Price Waterhouse, 490 U.S. at 242, 109
S.Ct. at 1786. In other words, the fact finder must determine
whether "gender played a motivating part in an employment
decision." Id. at 244, 109 S.Ct. at 1787. See also id. at 276,
109 S.Ct. at 1804 (O'Connor, J., concurring) (Once plaintiff "has
demonstrated by direct evidence that discriminatory animus played
a significant or substantial role in the employment decision, the
burden shifts to the employer to show that the decision would have
been the same absent discrimination."). If the trial court both
credits the direct evidence and finds that the evidence played a
substantial role in the employment decision at issue, then the
defendant can avoid liability only by proving that it would have
made the same decision even if it had not allowed such
discrimination to play a role. Id. at 243-46, 109 S.Ct. at 1787-
88.
It is clear in this case that the court below did make a
credibility finding that the above-identified direct evidence of
discrimination was credible. However, it is also clear that the
court below erroneously failed to treat the aforesaid comments of
Caye, Jr., as direct evidence of discrimination. Because we cannot
ascertain the extent to which this error affected the court's other
crucial findings, we vacate the judgment of the district court with
respect to Haynes' gender discrimination claim, and remand for
further consideration in light of this opinion. For example, the
court on remand must take into consideration the direct evidence of
discrimination along with all the other evidence, and then make
findings of fact as to whether such direct evidence played a
substantial role in Caye, Jr.'s decision to remove Haynes from the
new position. 9 If the court finds in the affirmative, i.e., that
gender discrimination played a substantial role, then appellee may
avoid liability only by proving its affirmative defense; in other
words, after plaintiff has proved intentional discrimination,
appellee "may avoid a finding of liability only by proving that it
would have made the same decision even if it had not allowed gender
9
The court below will have to determine, inter alia, whether
Caye, Jr., put aside his chauvinistic attitudes such that they
did not play a substantial role in the decision. For example,
the opinion that women are simply not tough enough came in the
context of Caye, Jr.'s indication of efforts to overcome such
chauvinistic attitudes.
to play such a role." Price Waterhouse, 490 U.S. at 244-45, 109
S.Ct. at 1787-88. The court should make full findings of fact in
that regard.
III. CONCLUSION
For the foregoing reasons, the judgment in favor of appellee
on Haynes' age discrimination claims is affirmed, but the judgment
on the sex discrimination claim is vacated and the case is remanded
for further proceedings consistent with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.