Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


January 12, 1982


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 Cir. 1948).

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 following charges:

  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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.