Mildred L. ANDERSON, Plaintiff-Appellee, v. METHODIST EVANGELICAL HOSPITAL, INC., Defendant-Appellant ( 1972 )

KENT, Circuit Judge

(dissenting).

The majority recognizes that the “Board of Directors and the high management of the hospital have an outstanding record in regard to fair and ■impartial treatment of the races.” The majority reasons, “where a discharge by a person in authority at a lower level of management is racially motivated, Title 7 provides the aggrieved employee with a remedy.”

I am in entire accord with the quoted statements but not with the conclusion reached by the other members of the panel.

Mildred Anderson was discharged by Dr. Fadell, and the District Judge made an affirmative finding as follows: “I do not believe Dr. Faded was in the slightest degree motivated by racial prejudice or bias.” The District Judge thereafter found that certain subordinates of Dr. Faded, “had knowledge that ad was not right in paradise insofar as race relations were concerned; * * *.” The District Judge found that certain of the supervisory personnel had knowledge that there was conflict between Mrs. Anderson and other employees allegedly resulting from racial bias. I am not satisfied that the findings of the District Judge justify the conclusion that the discharge was based upon racial bias within the meaning of Title 42 U.S.C. § 2000e-2:

“(a) It shad be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;”

As I read the statute it requires that the discrimination necessary to constitute an “unlawfull employment practice” must be discrimination on the part of the employer, and the District Judge in this case found affirmatively that there was no racial bias on the part of the employer.

I would reverse the District Court.