Charles ROBERTS, Plaintiff-Appellee, v. GADSDEN MEMORIAL HOSPITAL, Defendant-Appellant. Gadsden County, Florida, Defendant , 835 F.2d 793 ( 1988 )

HILL, Circuit Judge,

specially concurring:

My review of this case leads me to believe that, had I been burdened with the task of determining discrimination vel non, I should have found none. However, that burden was properly upon the district judge who heard the evidence, observed the witnesses and employed fact finding skills sharpened by bearing the burden in case after case. I cannot say that the trial judge’s finding of discrimination in 1981 is without support in the evidence. I concur, therefore, in the result of Part A of Judge Spellman’s opinion and concur in all said in the rest of the opinion. See Pullman-Standard v. Swint, 456 U.S. 273, 290, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982) (court of appeals may reverse district court’s finding of discriminatory intent only if clearly erroneous).

My concerns are along these lines. Federal law controls and denounces racial discrimination in employment. One who gets a “raw deal” because of race — or, in other cases, sex, age, etc. — may find relief in federal courts.

Nevertheless, an individual employee may be given a “raw deal” in a personnel action in the absence of any discrimination forbidden by law. Most people outside the employing unit never hear of the unfair personnel action. Fair minded people who do learn of it naturally yearn to correct it. Given power to do so, one might correct the injustice even though the exercise of power exceeds authority.

Federal judges are fair minded people. They have impressive power. In the area of employment, promotion, discharge, demotion, etc., their authority is not plenary. Federal courts must correct injustices resulting from violations of federal law. The temptation to decide, in other cases, who is “right”, the boss or the employee, should be resisted. This is so, I submit, even where the employee who is unfairly treated is a member of a protected group. If the “raw deal” was not related to (in this case) race, federal law and federal courts are not implicated. Members of protected groups are not “wards of the court”; federal judges are not guardians to correct injustices wherever they involve minority races, the elderly, or those of a mistreated sex. Nevertheless, where the victim of personnel action which is the proverbial “raw deal” is a member of a minority race, there are some valid implications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (evidence that a deserving member of a suspect class lost a job opportunity to a person not part of such a class establishes a prima facie case of unlawful discrimination). History has been acknowledged; because racial discrimination in employment has been so pervasive, the employer is required to come forth with an explanation. That is as it should be.

Taking the above, then, as the “... right point of view,”¹ my review of this case is troubling.

Mr. Roberts may well have been handed “a raw deal.”² Clearly, under the McDonnell Douglas analysis, he presented a pri-ma facie case. My concern stems from the fact that the hospital made out a strong case that, whatever motivated its administrator in his personnel action, it was not race. The hospital presented uncontrovert-ed proof of the following personnel actions by its administrator, Ken Arnold:

(a) On October 31, 1981, he promoted Archie Albritton, a black male, from staff registered nurse to head nurse in the emergency room.

(b) On October 19, 1981, he promoted Ann Knight, a black female, to the position of House Supervisor, which is third in the chain of command at the hospital.

(c) On October 13, 1981, he promoted Amanda Stevens, a black female, to the position of House Supervisor for the third shift. During her shift, Ms. Stevens had operational command of the hospital.

(d) On November 20, 1981, he promoted Deborah Yates, a black female, from registered nurse to House Supervisor for the second shift.

(e) He was responsible for recruiting one of the county’s first black physicians, Dr. Jessie Furlow, to the area. Arnold set up interviews with the hospital staff and helped Dr. Furlow arrange financing to open her practice in Quincy.

Perhaps in this case the administrator foolishly placed too much emphasis on the college degree held by the person hired as supervisor; perhaps he chose a supervisor at barbecues or from among his “drinking buddies.” If this sort of management ill serves the hospital, the hospital may wish to make other arrangements. Unless, though, the administrator has been shown, by direct or circumstantial evidence, to have taken the action he did as an act of discrimination against Roberts on account of Roberts’ race, it is not a federal court matter.

By finding that the prima facie case coupled with the informal, secretive and subjective decision process constitutes circumstantial evidence of discrimination sufficient to overcome the direct evidence that the administrator harbored no such intent, the case was carried. I cannot say that the trial judge could not have so found, whether I should have or not.

Therefore, I concur.

1 . See Ellison v. Georgia R.R. Co., 87 Ga. 691, 706-707, 13 S.E. 809 (1891) (Bleckley, Chief Justice) (“When the right point of view is discovered, the problem is more than half solved.”).

2 . Such a finding is far from demanded. Roberts had been, for years, a member of a maintenance department which had a deplorable record of non-performance or faulty performance.