United States District Court, Northern District of Illinois, E. D
January 12, 1982
MINERVA H. SANDERS, PLAINTIFF,
GENERAL SERVICES ADMINISTRA TION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
This case came on for trial on March 2, 1981. The plaintiff
has presented all evidence in support of her claim that she
was discriminated against in her employment with the General
Services Administration (GSA) on the basis of her race and
sex. After the plaintiff rested her case, the defendant moved
for involuntary dismissal pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure. The court denied the motion
from the bench and the defendant then called three witnesses.
At the end of the first day at trial, the court adjourned the
trial until May 8, 1981. On May 8, 1981, the court was
informed that plaintiff's attorney would be unable to appear
to represent the plaintiff because of illness. The court
continued the trial to May 29, 1981.
Since May 8, 1981, the court has carefully reviewed its
notes relating to plaintiff's testimony as well as the
verbatim transcript of plaintiff's testimony and the exhibits
introduced at trial. The court has reached the conclusion that
it was in error in not granting defendant's motion to dismiss
at the close of plaintiff's case. Therefore the court is
entering this order of dismissal pursuant to Rule 41(b).*fn1
After careful consideration, the court can see no reason to
require the appearance of the parties, witnesses, and the
attorneys for further hearing since this court simply has not
been persuaded that plaintiff's race or sex was ever a factor
in her employment at GSA. See Weissinger v. United States,
423 F.2d 795, 797-98 (5th Cir. 1970); Armour Research Foundation of
Illinois Institute of Technology v. Chicago, R. L & P. R. Co.,
311 F.2d 493, 494 (7th Cir. 1963). ("A denial of defendant's
motion amounts to nothing more than a refusal to enter judgment
at that time. At most it constitutes a tentative and
inconclusive ruling on the quantum of plaintiff's proof.
Certainly it did not preclude the trial judge from later making
considered findings and determinations not
altogether consistent with his prior tentative ruling.")
The standard to be applied on a motion to dismiss at the
close of plaintiff's evidence in a non-jury case is set forth
and explained in the Advisory Committee's Note to the 1948
amendments of the civil rules.
In some cases tried without a jury, where at the
close of plaintiff's evidence the defendant moves
for dismissal under Rule 41(b) on the ground that
plaintiff's evidence is insufficient for
recovery, the plaintiff's own evidence may be
conflicting or present questions of credibility.
In ruling on the defendant's motion, questions
arise as to the function of the judge in
evaluating the testimony and whether findings
should be made if the motion is sustained. Three
circuits hold that as the judge is the trier of
the fact in such a situation his function is not
the same as on a motion to direct a verdict,
where the jury is the trier of facts, and that
the judge in deciding such a motion in a non-jury
case may pass on conflicts of evidence and
credibility, and if he performs that function of
evaluating the testimony and grants the motion on
the merits, findings are required. . . . Gary
Theatre Co. v. Columbia Pictures Corp.,
120 F.2d 891 (7th Cir. 1941). . . . The added sentence in
Rule 41(b) incorporates the view of the Sixth,
Seventh and Ninth Circuits.
5 F.R.D. 466.
The court is not bound to consider the evidence in a light
most favorable to the plaintiff, 5 Moore's Federal Practice
§ 41.13, n. 18 and cases cited therein, rather
[i]n evaluating a Rule 41(b) motion for
involuntary dismissal at the close of plaintiff's
evidence, the district court is "bound to take an
unbiased view of all the evidence, direct and
circumstantial, and accord it such weight as [the
court] believe[s] it entitled to receive."
Patterson v. General Motors Corp., 631 F.2d 476
at 487 (7th
Cir. 1980) (quoting Allied v. Sasser, 170 F.2d 233
, 235 (7th
This case presents a federal employee's complaint of
employment discrimination based on race and sex. The court has
jurisdiction over the plaintiff's complaint and the
Administrator of the General Services Administration pursuant
to 42 U.S.C. § 2000e-16. Pursuant to Brown v. GSA,
425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), this
court dismissed all the defendants but Rowland Freeman III,
Administrator of GSA. The court does not consider plaintiff's
claim for relief pursuant to 42 U.S.C. § 1981 since Brown makes
it clear that Title VII is plaintiff's exclusive remedy.
The evidence introduced during plaintiff's case in chief
shows that plaintiff filed a formal administrative complaint
of discrimination with GSA on April 26, 1979 and made the
I believe that I have been discriminated against
because of my race (Black), sex (Female) and as
retaliation of [sic] my involvement in the
Carolyn King discrimination complaint since my
opinion differed from that of my supervisor.
I have been continually restrained from any
involvement in the King complaint from Feb. 8,
1979 to the present date. From Dec. 12, 1978 to
Feb. 7, 1979, I have been restrained from
"certain" activities relative to the complaint.
I have been harassed, intimidated, and treated
extremely unfairly in comparison with Mr. Mario
Longario, the Hispanic Employment Manager. In
this regard, I have been provided an
over-abundance of work assignments which are
primarily `special' or priority items, assigned
clerical-type functions, excluded from various
EEO activities in the office which directly
affect me and for which I am responsible and
refrained [sic] from attending meetings relative
to the Women's Program while Mr. Longoria is
allowed to attend meetings at least once a week.
I have been accused of slanderous acts and have
been informed that documentation is being written
up on me concerning these acts.
Plaintiff's Exhibit 1, p. 2.
On May 30, 1979 plaintiff filed an addendum to her
administrative complaint which
was introduced in evidence during plaintiff's case in chief by
stipulation. Exhibit 2 to Government Exhibit A. The complaint
was investigated during September and October, 1979 and
January, 1980. The report of that investigation with attached
exhibits is included in Government Exhibit A.
On March 7, 1980 the plaintiff filed her complaint in this
case. On July 8, 1980 GSA advised plaintiff of the results of
its investigation of the administrative complaint. Plaintiff's
Exhibit 11, Government Exhibit C. (These exhibits were
admitted in evidence by stipulation during plaintiff's case in
Minerva Sanders is a black female presently employed by the
GSA. Since June 8, 1980 she has been a Customer Relations
Specialist, GS-11. She was initially hired by the Region V GSA
Office on May 15, 1978 and was assigned to the Equal
Employment Opportunity Office as an Equal Opportunity
Specialist, GS-9. Ms. Sanders also acted as manager of the
Regional Federal Women's Program.
As an EO specialist, Ms. Sanders' duties included providing
technical guidance and assistance in equal employment
opportunity matters to the management of two GSA regional
service offices and one regional staff office. She was also
responsible for accumulating and updating data necessary to
review compliance with the regional affirmative action plan.
She was specifically assigned as the liaison officer to the
Public Building Service, the National Archives and Record
Service and the Office of Administrative Division. During her
service with the Equal Employment Opportunity Office, Ms.
Sanders took part in the investigation and processing of at
least one employee discrimination complaint at the direction
and under the supervision of the head of the EEO office, Mrs.
Jeanette Gibson. Mrs. Gibson is also black. At the Equal
Employment Opportunity Office for Region V, Mrs. Gibson was in
charge of the EEO office and was Ms. Sanders' immediate
supervisor. Mrs. Gibson's immediate supervisor was Mrs. Carmel
Kernohan, the regional personnel manager. Mrs. Kernohan is
Ms. Sanders was one of the two EO specialists assigned to
GSA's Region V Office in 1978. The other EO specialist was a
Hispanic male, Mr. Mario Longaria. Mr. Longaria's duties were
generally the same as Ms. Sanders except that Mr. Longario was
the liaison officer for different GSA staff and service
offices in Region V and acted as manager of the Regional
The plaintiff encountered no difficulties with Mrs. Kernohan
or Mrs. Gibson when she started work at GSA. As noted above,
it was not until April 26, 1979 that Ms. Sanders filed her
administrative complaint of discrimination. That complaint
included a ten-page single spaced typewritten "chronological
record of the actions taken by Mrs. Jeanette Gibson, Regional
EEO officer, and/or Ms. Carmel Kernohan, Regional Personnel
Officer that support my allegations." This chronological
record contains a detailed recital of thirty-seven separate
instances of alleged racial or sexual discrimination occurring
between December 12, 1978 and April 25, 1979. However, on the
witness stand Ms. Sanders supplemented her charges by
recounting two incidents occurring prior to December, 1978.
Ms. Sanders testified that Mrs. Gibson told her on or about
October 19, 1978, that "one of the black women that I invited
[to speak on a panel at a Women's Week program] had made the
comment in the open meeting that `All black women should stick
together,' and she said that Mrs. Kernohan wanted to talk to
me about that." Shortly thereafter, the plaintiff, Gibson and
Kernohan had a discussion in the EEO office about what was
said at the Women's Week program. Ms. Sanders testified that:
[Mrs. Kernohan] mentioned that she was riding up
on the elevator the previous day and that a woman
brought to her attention a remark made by a black
woman on the panel stating that `All women should
stick together,' and I, you know, stated to Mrs.
Kernohan that that statement was true. Then she
asked me who was the black woman and I mentioned
it was Mrs. Lillie English. She asked me what was
Lillie English's position. I mentioned that
Lillie English was a chairperson of the Federal
Executive Board's Federal Women's Program
Committee, and I mentioned that the statement
that `All women should stick together' is one
that all of the members were promoting because we
felt that women generally were not as supportive
of each other as they should be. Mrs. Kernohan
then agreed with this statement. In fact, she
mentioned the difficulties that she encountered
in movement in her professional field. At that
time, nothing was said — she did not mention about
a black woman made the statement about black women.
Transcript of Trial, pp. 15-16.
Ms. Sanders also testified that on November 17, 1978, she
was told by a Mrs. Hearns, a GSA employee who also acted as an
EO counselor for one of GSA's regional offices, that Mrs.
Gibson had failed to take any action in response to Hearns'
complaint about a supervisor's racist behavior. Nothing in the
record corroborates this self-serving recital of hearsay. In
fact, Ms. Sanders did not call a single witness to corroborate
any of her testimony. Most of her testimony consists of the
recital of what other people told her about what Mrs. Gibson
had said on various occasions.
This court accords no weight to Ms. Sanders' subjective
judgments about Mrs. Gibson's motivations. The court believes
that Sanders' testimony does not lend the slightest support to
an inference that either Mrs. Gibson, a black female, or Mrs.
Kernohan, a white female, had the slightest "anti-black,
The plaintiff's completely unexplained failure to call a
single witness to support any of her charges relating to
specific incidents of what she concludes were "anti-black,
anti-women" employment decisions by Gibson weighs heavily
against this court drawing any inferences favorable to
In McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth an
outline of the elements of a prima facie case of employment
discrimination in a Title VII action.
The complainant in a Title VII trial must carry
the initial burden under the statute of
establishing a prima facie case of racial
discrimination. This may be done by showing (i)
that he belongs to a racial minority; (ii) that
he applied and was qualified for a job for which
the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position
remained open and the employer continued to seek
applicants from persons of complainant's
Id. at 802, 93 S.Ct. at 1824.
In a footnote at the end of the above quoted text the Court
[T]he facts necessarily will vary in Title VII
cases, and the specification above of the prima
facie proof required from respondent is not
necessarily applicable in every respect to
differing factual situations.
Id. at 802 n. 13, 93 S.Ct. at 1824.
In Furnco Construction Corp. v. Waters, 438 U.S. 567 at
576-577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), the Court
stated that the plaintiff's initial burden requires a showing
actions taken by the employer from which one can
infer, if such actions remain unexplained, that
it is more likely than not that such actions were
based on a discriminatory criterion illegal under
The method suggested in
McDonnell-Douglas for pursuing this inquiry,
however, was never intended to be rigid,
mechanized, or ritualistic. Rather, it is merely a
sensible, orderly way to evaluate evidence in light
of common experience as it bears on the critical
question of discrimination. A prima facie case
under McDonnell-Douglas raises an inference of
discrimination only because we presume these acts,
if otherwise unexplained, are more likely than not
based on the consideration or impermissible
v. United States [431 U.S. 324] at 358 n. 44 [97
S.Ct. 1843, 1866, 52 L.Ed.2d 396]. And we are
willing to presume this largely because we know
from our experience that more often than not people
do not act in a totally arbitrary manner, without
any underlying reasons, especially in a business
setting. Thus, when all legitimate reasons for
rejecting an applicant have been eliminated as
possible reasons for the employer's actions, it is
more likely than not that the employer, who we
generally assume acts only with some reason, based
his decision on an impermissible consideration such
as race. (emphasis added).
Recently the Court reiterated the reasoning of
Furnco in Texas Department of Community Affairs v. Burdine,
450 U.S. 248
, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and stated that
[e]stablishment of the prima facie case in effect
creates a presumption that the employer
unlawfully discriminated against the employee. If
the trier of fact believes the plaintiff's evidence
and if the employer is silent in the face of the
presumption, the court must enter judgment for the
plaintiff because no issue of fact remains in the
case. (emphasis added).
Id. at 254, 101 S.Ct. at 1094.
Establishment of a prima facie case of discrimination gives
rise to a legally mandatory, rebuttable presumption which
requires that the defendant produce evidence that "the
plaintiff was rejected, or someone else preferred, for a
legitimate, nondiscriminatory reason." Id. at 254, 101 S.Ct.
In considering the evidence in this case, the court accords
Ms. Sanders' judgments about Mrs. Gibson's motivation no
weight whatsoever. The court believes that Sanders' testimony
does not indicate the slightest likelihood of "anti-black,
anti-women" bias on the part of Gibson or Kernohan.
This court did not find Ms. Sanders' testimony credible. Her
demeanor on the witness stand left this court with the
unshakeable impression that Ms. Sanders' exaggerated events
and their significance and that the source of her troubles and
disagreements with Mrs. Gibson stemmed from a clash of
personalities completely unrelated to the plaintiff's race or
sex. Ms. Sanders has offered no believable testimony that Mrs.
Gibson treated any other black or female employee in a manner
which would indicate bias on her part. The court believes Ms.
Sanders tailored her testimony to fit what she believed would
establish her case. She even went so far as to state that she
"liked" Mrs. Gibson. Her demeanor on the witness stand did not
indicate that this statement resulted from politeness or
kindness on her part but from a reluctance to admit what was
apparent from her testimony, i.e. that she does indeed dislike
The foregoing memorandum opinion is hereby adopted as
findings of fact and conclusions of law in this proceeding.
For the reasons stated, defendant's motion to dismiss,
pursuant to Rule 41(b), Fed.R.Civ.P., is granted.
IT IS SO ORDERED.