GOODWIN, Circuit Judge.
Naomi Wrighten, Wilma Graham and Jesse Blocker, Jr., appeal from the district court's judgment for the defendants in plaintiffs' employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981.
On appeal plaintiffs argue that the district court erred in (1) denying class certification; (2) granting summary judgment for Red Top and Metro; (3) ruling that Blocker's claims were time-barred, granting partial summary judgment against him and finding that he was not terminated as a pretext for racial discrimination; (4) ruling that Emanuel did not discriminate against Graham and Wrighten nor improperly discharge them in retaliation for protests against unlawful employment practices; and (5) affirming the clerk's assessment of costs against plaintiffs. We affirm the district court on all issues except those arising out of Wrighten's termination. The district court should reassess her costs in light of this opinion.
Naomi Wrighten is a black registered nurse, employed by Emanuel Hospital from 1974 until her termination in 1976. She worked as a staff nurse. Wilma Graham is a black licensed practical nurse employed by Emanuel for more than 14 years before her termination in 1976. Jesse Blocker, Jr., is a black man, employed in Emanuel's housekeeping department from 1971 until his termination in 1977. He was the union steward for Local 49 of the Service Employees International Union at Emanuel.
In 1975 Emanuel instituted two important changes in personnel administration. It contracted with Red Top, Inc., to provide management and supervisory services in the housekeeping department. It also instituted "primary nursing care" in place of "team nursing," which altered the duties of registered nurses and gave them fewer administrative duties than before.
Some of Wrighten's claims stemmed from the change in nursing duties. She believed her workload under the new primary patient care system was disproportionately heavy. She also believed that she should have been promoted to a head nurse position when that job became vacant in 1975.
In late 1975 and early 1976 Wrighten wrote letters to Emanuel's personnel director stating dissatisfaction with black patient care and her employment situation. Early in March 1976, she and Graham had three unproductive meetings with Emanuel's personnel director and its president, Roger Larson. Several members of the black community
The day after the press conference, Barbara Weleber, Wrighten's supervisor, criticized Wrighten's job performance because of the charges and the press conference. Weleber directed Wrighten to stop discussing personal matters during her duty time, to stop accepting so many personal phone calls while on duty, and to remain on the hospital grounds during her half-hour breaks. Weleber's orders upset Wrighten and she and Graham again met with Larson. They were unable to settle the controversy. Larson then appointed a committee of members of the black community to look into matters. The committee's actual mission is unclear. Larson suspended both Wrighten and Graham from patient care duties and assigned them to work, at regular pay, with the committee. He denied both of them access to the hospital grounds during the committee's work.
The committee met sporadically. On April 16, 1976, its chairman informed Larson that Wrighten and Graham had not cooperated and had not provided information to substantiate their complaints. Larson then informed Wrighten that he was terminating her employment as of April 23.
Blocker's complaints of racial discrimination began long before Red Top took over management and supervisory services in the housekeeping department. He perceived a consistent pattern of discrimination against him. He asserts that he was not informed about Red Top management employment opportunities nor accepted by Red Top in his union steward capacity because of his race and because he had often advocated the causes of other black employees who had protested discriminatory employment practices. He contends that his unfavorable job evaluations were unfair and were a mere pretext for firing him in 1977. He claims that he should have been promoted to the position of supervisor of housekeeping, a position filled instead by a black woman. He claims that he was disfavored because he had been active in complaining about discriminatory practices while the person who received the promotion had not complained or protested.
Blocker, Graham and Wrighten filed timely Title VII charges with the E.E.O.C. in March 1976. The E.E.O.C. deferred the charges to the State of Oregon. Some thirty days later, Blocker, Graham and Wrighten filed this action in federal district court. In April 1978, the E.E.O.C. issued each plaintiff a "right to sue" letter because "more than 180 days have expired since the filing of the charge." The case went to trial in October 1978.
The trial court found correctly that the subsequent issuance of the "right to sue" letters cured any jurisdictional defects.
Blocker, Graham and Wrighten initially sought to bring this action as a class action. The trial court refused to certify the class, primarily because it doubted that plaintiffs' counsel would adequately represent the class. The court enumerated a number of deficiencies on the part of counsel. Counsel did not move for class certification until 90 days after the case had been filed, when the motion should have been filed within 60 days;
The court cited other reasons for its decision, including the difficulty that Blocker, Graham and Wrighten had in furnishing factual information about discrimination against other members of the class; their lack of the minimum financial ability to carry a class action until it could generate other support; and their response to Emanuel's detailed attack on their ability to serve as class representatives with bare assertions reciting the language of Fed.R.Civ.P. 23(a)(4).
This court will not overturn denial of class certification unless the trial court abused its discretion. Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983). Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977). A trial court correctly considers the competence of counsel when deciding to grant or deny class certification. Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir.1975). See also, Al-Jundi v. Rockefeller, 88 F.R.D. 244, 248 (W.D.N.Y.1980); Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 486 (N.D.Cal.1978).
The magistrate's findings and recommendation, adopted by the trial court, displayed considerable sympathy towards the plaintiffs and potential class members. The decision to recommend noncertification was in part a decision to preserve the possibility of successful subsequent class litigation if members of the proposed class could engage the services of competent counsel. The court correctly perceived a danger that the counsel then in the case could take a good case and lose it for a large class.
DISMISSAL OF METRO
The trial court adopted the magistrate's finding that Metro should be dismissed because plaintiffs did not allege that any Metro employee had discriminated against them. Uncontroverted affidavits stated that Metro and Emanuel were separate entities and that Metro was not a co-owner with Emanuel. Although Metro and Emanuel had a management contract under which Metro performed certain services for Emanuel, ultimate control over the personnel policies and practices of the hospital remained with the Emanuel board.
The record contains no evidence that Metro was involved in any discrimination against Wrighten, Graham or Blocker. While Emanuel's president, Roger Larson, also was a Metro employee, he acted in his capacity as president of Emanuel during the incidents at issue in this case. The trial court properly entered summary judgment for Metro dismissing it as a defendant.
The trial court adopted the magistrate's recommendation that Blocker's claims against Red Top be dismissed because Red Top was not named in the charge filed with the E.E.O.C. This was error. E.E.O.C. charges should be construed liberally. Title VII charges can be brought against persons not named in an E.E.O.C. complaint as long as they were involved in the acts giving rise to the E.E.O.C. claims. Chung v. Pomona Valley Community Hospital, 667 F.2d 788, 792 (9th Cir.1982). Blocker's claims against Red Top were virtually identical to those against Emanuel, and Emanuel was named in the E.E.O.C. complaint.
The trial judge, however, did permit plaintiffs to file a supplemental brief alleging Red Top's retaliatory discharge of and failure to promote Blocker. The court found Red Top to be an agent of Emanuel, and made findings on Blocker's allegations against Emanuel. Given the confused nature of Blocker's claims against Emanuel and Red Top, the trial court performed an unnecessarily difficult task in separating the claims. Furthermore, because of plaintiffs' total lack of statistical evidence, the trial court was forced to evaluate statistical evidence presented by defendants to determine whether plaintiffs had made a prima
We conclude that the trial court's error in dismissing Red Top was harmless. The court made substantial inquiries into and findings about both Red Top and Emanuel regarding their dealings with Blocker. It also considered Blocker's contention that Emanuel refused to deal with him as a union steward because of his race. There is no evidence to suggest that the result in Blocker's case would have been different if Red Top had not been dismissed.
The trial court also adopted the magistrate's finding that Blocker's claims under Title VII and 42 U.S.C. § 1981 were barred by the statute of limitations. On appeal the only challenge is to the § 1981 claim.
The controlling limitation period for § 1981 is the most appropriate statute of limitations under state law. The trial court applied the two-year statute of limitations of O.R.S. 12.110(1). This court has applied the six-year period of O.R.S. 12.080(2) ("liability created by statute") as the controlling time period for § 1981 challenges. Plummer v. Western International Hotels Co., Inc., 656 F.2d 502, 506 (9th Cir.1981). The trial court thus erred in granting partial summary judgment on Blocker's claims of discrimination in 1972 and 1973 on the grounds that they were time barred.
The trial court's error here, however, as with the dismissal of Red Top, was harmless. There is no evidence to suggest that the result in Blocker's case would have been any different had a six-year statute of limitations period been applied. The trial court's findings and conclusions on disparate impact and discriminatory intent regarding Blocker are affirmed.
Graham contended that she was improperly discharged, but the trial court found against her on the facts. The trial court's findings are supported by evidence and withstand reversal under Fed.R.Civ.P. 52. The trial court found that the defendant hospital offered to restore Graham to her regular employment. An offer was made by registered mail and by telephone calls from authorized representatives. The court found that she refused to accept the registered letter and refused to answer the telephone. The court's findings that she voluntarily refused to return to work answer her claim that the hospital wrongfully discharged her. The judgment on that point is affirmed.
Wrighten argues that she should have been promoted to the head nurse position when it became available at Emanuel; that institution of the primary patient care system in 1976 was a demotion for her; that under the new system her workload was disproportionately heavy; that she was denied educational and travel funds; that she was generally harassed and intimidated by her Emanuel superiors; and that she was fired in retaliation for her advocacy of issues relating to black staff and patients. We consider the termination issue separately.
Applying the tests of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the court found that Wrighten made a prima facie case on the issue of promotion, but
Wrighten's termination, however, poses a more difficult factual and legal problem. Title 42 U.S.C. § 2000e-3 provides that an employer cannot discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter," or "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
A plaintiff bringing an action under this section is required to establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and that there was a causal link between the two. Cohen v. Fred Meyer, 686 F.2d 793, 796 (9th Cir.1982).
This orderly method of evaluating evidence in cases of alleged retaliatory discharge never was intended to be rigid, mechanistic, or ritualistic. The critical question is whether a plaintiff has proven by a preponderance of the evidence that the defendant intentionally discriminated or retaliated against the plaintiff for engaging in protected activity. U.S. Postal Service v. Aikens, 460 U.S. 711, ___, 103 S.Ct. 1478, 1483, 75 L.Ed.2d 403 (1983). In the simpler language of this circuit, it must be established by a preponderance of the evidence that engaging in protected activity under § 2000e-3 was one of the reasons for termination, and that but for such activity a plaintiff would not have been fired. Kauffman v. Sidereal Corp., 695 F.2d 343, 345 (9th Cir.1982).
If a plaintiff engages in activity not protected by § 2000e-3, the analysis is different. A plaintiff's participation in unprotected activity is itself a legitimate, nondiscriminatory reason for an employer to take a negative employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The defendant employer is responsible for introducing evidence at trial that a plaintiff's actions were unprotected under § 2000e-3. Payne v. McLemore's Wholesale, 654 F.2d 1130 at 1143-1144 (5th Cir.
In this action the trial court assumed without proof that Wrighten directed her opposition at unlawful employment practices at Emanuel Hospital. See Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978). Her activities were entirely lawful. See McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824. The court concluded, however, that Wrighten exceeded the protection of § 2000e-3 because she went "too far in her activities and general deportment." This conclusion is essentially a factual one and must be reviewed under Fed.R.Civ.P. 52.
The trial court held that Wrighten's means of opposition were unreasonable in view of Emanuel's interest in maintaining a harmonious and efficient operation. Similar language appeared in Silver v. KCA, 586 F.2d at 141, which adopted a concept conceived in Hochstadt v. Worcester Foundation, 545 F.2d 222, 233 (1st Cir.1976). In Silver, the court upheld the termination of an employee who had protested the racial slurs of a fellow employee on the grounds that Title VII extends protection only to employees protesting the unlawful practices of their employers. 586 F.2d at 141. That case is inapposite here because Wrighten's protests were aimed at her employer's alleged discriminatory practices, not at those of a co-worker.
Hochstadt is a closer case to Wrighten's. Hochstadt involved a research biologist who raised havoc in her laboratory for three years and then protested her termination on Title VII grounds. She interrupted regular staff meetings, circulated rumors, commissioned a covert affirmative action survey, invited a newspaper reporter to examine confidential salary information, misused secretarial and copying services, ran up a $500 personal bill on the laboratory's telephone, was reprimanded on several occasions for poor work, and was the cause of two other research assistants leaving the laboratory. Hochstadt v. Worcester Foundation, 545 F.2d at 227-229. In the face of Hochstadt's obstreperous behavior over a prolonged period of time, the court upheld her termination as legitimate and nondiscriminatory. Id. at 233. It adopted a balancing test for determining whether an employee's conduct is protected under § 2000e-3: a court must balance "the purpose of the Act to protect persons engaging reasonably in activities opposing ... discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel." Id. at 231 (footnote omitted).
Hochstadt must be read narrowly lest legitimate activism by employees asserting civil rights be chilled.
Having concluded that Wrighten's activities did not exceed the protection of § 2000e-3, we return to the method of analysis set forth earlier for evaluating claims of retaliatory discharge. The trial court found that Wrighten was successful in shifting the burden of production to Emanuel to articulate some legitimate, nondiscriminatory reason for her termination. The trial court held that Emanuel articulated legitimate nondiscriminatory reasons for terminating Wrighten and that Wrighten did not succeed in showing that Emanuel's proffered explanation was mere pretext. We must conclude, in light of the record, that this holding is clearly erroneous.
Wrighten was fired by Emanuel's president himself, at the height of controversy over the quality of black patient care at Emanuel and in the midst of upsetting organizational changes in nursing at the hospital. President Larson testified at trial that it was "highly unusual" for him to take personnel actions directly and that he could not recall personally terminating anyone at the hospital in the two years before he terminated Wrighten. He testified that prior to March 1, 1976, he was not aware of either Wrighten or Graham, and that he knew of no problems with either of them. He admitted that except for the events between March 1 and March 11, 1976, he knew of nothing to justify the suspension of Graham and suspected the same was true of Wrighten. He testified that he perceived Wrighten as the "leader" of the protest over black patient care.
One of the reasons Larson gave for Wrighten's termination was her "generally poor work performance." The record, however, indicates that Wrighten received only one reprimand prior to calling the press conference: in 1975 she failed to call in early enough on a day when she was home sick. After the press conference she was criticized by her supervisor for too many personal phone calls and for meetings in the hallway. The trial court found that these interruptions probably were related to issues raised by the press conference. No evidence was introduced that Wrighten continued to receive calls or have hallway meetings after she was told not to. Emanuel never claimed that she refused or failed to do her work during this episode.
The second reason for Larson's decision to terminate Wrighten was her failure to co-operate with the committee he appointed. Larson suspended Wrighten with pay from her nursing duties, denied her access to the hospital grounds and ordered her to work with the committee. Larson claimed it was a "fact finding" committee. Its chairman, however, testified that it was not clear to him what the committee was to do and that he never felt it was the committee's role to investigate charges of discrimination at the hospital. He thought the committee was to act as an "intermediary" between "two groups." Wrighten testified that she was unclear as to the role the committee was to play. She thought it was to contact her with questions about her allegations and claims that is why she did not go to it with specific information. The status of the committee is also confused by Larson's testimony that he also instructed members of the hospital staff to investigate Wrighten's complaints. He made no memorandum record of the instructions and his testimony at trial was unclear as to whom he instructed to investigate what.
In arriving at his conclusion to terminate Wrighten, Larson testified that he consulted several persons, including his so-called fact-finding committee. The committee chairman testified that he was reluctant to suggest that Wrighten be reinstated following her suspension because he did not think her situation at the hospital had been resolved. Wrighten had no knowledge when she was suspended that the committee would be called upon to make personnel recommendations. President Larson's asking
The final reason Larson gave for terminating Wrighten was her "general insubordination." This criticism did not surface until after the press conference at which she alleged poor black patient care at the hospital. By advocating the proper care of her patients, however, Wrighten was fulfilling her duty as a nurse. Patient advocacy by a nurse is not insubordination. Larson perhaps believed that Wrighten was insubordinate because he was upset by her allegations and her refusal to be specific about her complaints. Perhaps he felt her abrasive personality to be insubordination.
We are not persuaded that Wrighten's "general insubordination" was a legitimate ground for termination, however. The trial court noted that a potential for tension and lack of communication existed in 1976 at Emanuel due to changes in hospital routine and practice, as well as for general social and economic reasons. Wrighten reacted to a situation that the trial judge found to be "unusual." In evaluating witnesses the trial court noted that Wrighten was not the only employee with an abrasive personality. The court said of Weleber, Wrighten's supervisor, that she was "given to a terse and concise manner of expression, even to the point of brusqueness. Such an approach to subordinates might well cause confusion, especially in light of the rather fundamental changes in duties then being implemented."
On the record before us, we are persuaded that Wrighten would not have been terminated when she was if she had not engaged in activities protected by § 2000e-3. Kauffman v. Sidereal Corp., 695 F.2d at 345. Despite conflict in the testimony and the inartful presentation of plaintiffs' case, a preponderance of the evidence indicates that Emanuel Hospital retaliated against her for engaging in activity protected by 42 U.S.C. § 2000e-3.
ASSESSMENT OF COSTS
The district court assessed defendants' costs of the suit against plaintiffs in the amount of $7,397.95.
Costs are awarded to the prevailing party in civil actions as a matter of course, unless otherwise directed by an express statutory provision, unless the district court directs otherwise. National Organization
Affirmed in part, reversed in part, and remanded for reassessment of costs for plaintiff Wrighten.