Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. H 74-232 - Allen Sharp, Judge.
Cummings, Pell and Bauer, Circuit Judges.
Plaintiff Barnes brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging, inter alia, that the defendant hospital terminated her employment because of her race and color. After a bench trial, the district court entered a judgment denying relief and dismissing the action with prejudice. The plaintiff noticed an appeal from the adverse judgment of July 7, 1976, and from the order of July 23, 1976, denying her motion for a new trial.
Verna L. Barnes, a black, female, licensed practical nurse (LPN), was employed by St. Catherine's Hospital from July 1966 until August 1968, and again from October 1970 to August 1971, when she was discharged. The precipitating incident leading to her termination was her failure or refusal to report for work on August 8, 1971. Two versions of the incident were presented at trial, and the trial judge essentially accepted the hospital's version.*fn1
The plaintiff's version of the events of August 8th was set forth in her charge to the Equal Employment Opportunity Commission (EEOC) and in her testimony at trial. On the day in question, she was tired, fatigued, and unable to perform her required job assignment of passing medication. She called the hospital and notified her supervisor that she would not be able to work that day. Although the supervising nurse urged the plaintiff to come to work, the plaintiff indicated that she was physically unable to do so and remained at home and in bed that evening.
The hospital's version differs. A Personnel Performance Report Form indicates that Mrs. Barnes stated during her telephone call that she would be in for work.*fn2 After discovering that the plaintiff had not reported for work, supervisor Sadewasser recommended that the plaintiff be discharged. Other supervisors concurred in, and Schride, the Director of Nursing Services, accepted, that recommendation.
Similarly, there is a dispute regarding the reason for the plaintiff's discharge. Plaintiff Barnes was orally notified by nurse Martinsen on August 9, 1971, that she had been terminated for failure to work the previous day. The plaintiff then and afterwards thought that she was being discharged for excessive absenteeism and tardiness. Her charge to the EEOC expressed this view,*fn3 and her trial testimony subsequently reflected the theory that she had been subjected to disparate treatment by virtue of the fact that she had never received written warnings or suspensions for her absences and tardinesses in accordance with the procedures outlined in the hospital's handbook. The plaintiff compiled a statistical compilation drawn from the personnel files of employees discharged by the hospital in an attempt to demonstrate that white employees were consistently given more written warnings and were permitted more infractions of the hospital rules prior to any suspension or termination against them.
The defendant hospital introduced evidence intended to establish its theory, i.e., that the compelling reason for the termination was her insubordination, as shown by her disregard of the order to come to work on August 8th. Moreover, it was essentially undisputed that after the termination of Mrs. Barnes, the defendant hospital advised other medical institutions that the plaintiff had been terminated for insubordination. The hospital's Termination of Employment form gave "Insubordination" as the reason for her discharge.
The different views regarding the alleged insubordination impinge directly upon the parties' theory of the case. Plaintiff Barnes submits that there is no evidence of insubordination in the personnel records and employment of the plaintiff and argues that the false and misleading evaluations prepared by the hospital interfered with her ability to obtain new employment, resulted in loss of wages, and indicated a continued pattern of racial discrimination against her. The hospital, she argues, in essence, is using its claim of insubordination as a shield against the Barnes claim of racial discrimination and as a sword to attack the relevance of statistics relating to three employees (Orto, Rincon, and Caporale) whose attendance records were facially worse than that of Barnes.
The first issue in this appeal is whether the trial court's findings of fact are clearly erroneous. The plaintiff contends that Findings Nos. 4, 7, 10, 11, and 22 are contrary to and unsupported by the evidence introduced at trial.
We are not disposed to ignore the district court's findings unless, upon review of the evidence in the case, we are of the opinion that they are clearly erroneous. We have reviewed the evidence in the case and are of the firm opinion that the aforementioned ...