Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

MEMORANDUM^** 

Helen Francis Pittman ("Pittman"), who was formerly employed as an Associate National Bank Examiner ("ANBE") with the Office of the Comptroller of the Currency ("OCC"), timely appeals from a judgment entered in favor of the Secretary of the Treasury, after trial to the court in this individual disparate treatment action under Title VII of the Civil Rights Act of 1964.

In her complaints Pittman, who is a black woman, claimed that because of her race and gender she was denied training and promotional opportunities equal to those provided to her white male co-workers, issued false performance evaluations, and unjustifiably subjected to three periods of "special probation," before finally terminating her employment with the OCC. Pittman also claimed in the proceedings below that she was subjected to a racially hostile work environment, and that the defendants retaliated against her for filing three Equal Employment Opportunity ("EEO") complaints. On appeal, Pittman contends that certain of the factual findings of the district court are clearly erroneous, and that the court erred in concluding that she did not carry her burden of proving that she was a victim of intentional employment discrimination.

* The challenged factual findings of the district court in a Title VII action are reviewed for clear error. Anderson v. Bessemer City, 470 U.S. 564 (1985) (finding of intentional discrimination is question of fact reversible only if clearly erroneous); see also United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (whether defendant intentionally discriminated against plaintiff is a "factual inquiry"). " 'A finding is "clearly erroneous" when, although there is evidence to support it, a reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Id. at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We may not reverse a factual finding, however, if the district court's account of the evidence is plausible in light of the record viewed in its entirety. Anderson, 470 U.S. at 573-74.

Although the decision after trial of a Title VII case is reviewed only for clear error, we review de novo whether the district court has applied correct legal principles and properly allocated the evidentiary burdens during the trial. See Kimbrough v. Secretary of the United States Air Force, 764 F.2d 1279, 1281-82 (9th Cir. 1985); see also Aikens, 460 U.S. at 717 (remanding for reevaluation of evidence because district court's factual findings may have been influenced by its mistaken view of the applicable law).

II

Pittman argues that the district court clearly erred in making several of the findings underlying its conclusion that she was not subjected to retaliation for filing her lawful complaints of discrimination. Specifically, she contends that retaliatory intent should be inferred from evidence that each of her three periods of "closely monitored status" followed within a short period of time after the filing of one of her three EEO complaints.

Pittman undoubtedly made out a prima facie case of retaliation as required by Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). There is no dispute that the OCC was aware of Pittman's three EEO complaints. It is striking, moreover, that each of these three episodes of "protected activity" was followed within a short period of time by a Notice of Opportunity to Improve Performance ("NOIP") and a 120-day term of "closely monitored status." Pittman also presented evidence that one of her supervisors referred to her during this period as "tainted meat" to be "avoided."¹ 

It is also clear, however, that the Secretary satisfied his evidentiary burden. See id. (defendant bears burden of producing evidence of a legitimate, non-retaliatory reason for the adverse employment decision sufficient to dispel the inference raised by the plaintiff's prima facie case). The record is clear, for example, that the OCC actually knew about Pittman's first EEO complaint when it was originally filed in May 1979, four months before the first NOIP issued. The second NOIP in May 1981 followed within a month of Pittman's second EEO complaint, but it also issued shortly after two less-than-satisfactory evaluations in March and April of that year. Pittman received her third NOIP in October 1982, within a month after filing her civil complaint in district court, but also within a month after returning to work from disability leave.

Once the Secretary satisfied his burden of production, Pittman was required to prove that the asserted reason was a pretext for retaliation. Id. at 796-97. The district court ultimately concluded that Pittman was not subjected to any retaliatory "close scrutiny," because she had begun to receive substandard evaluations two years prior to the filing of any EEO complaint. The district court's account of the retaliation evidence is plausible when the record is viewed as a whole. After a thorough review of the evidence, we conclude that the district court did not clearly err in rejecting Pittman's retaliation claim.

III

Pittman also argues that the district court clearly erred in making subsidiary findings that led to a conclusion that she was not subjected to a racially hostile work environment. Pittman presented nine examples to establish that the atmosphere of the Portland, Oregon office of the OCC was pervaded by racism. Although it credited some of Pittman's evidence, the district court rejected her "racially hostile work environment" claim.

Because the district court did not apply the correct law in its analysis of this claim, we are not in a position to assess the propriety of its factual findings. In its Conclusions of Law, the court cited a First Circuit case, Sweeney v. Bd. of Trustees of Keene State College, 604 F.2d 106 (1st Cir.), cert. denied, 444 U.S. 1045 (1979), for the proposition that

"Proof of a general atmosphere of discrimination is not the equivalent of proof of discrimination against an individual, but evidence of such an atmosphere may be considered along with any other evidence bearing on motive in deciding whether a Title VII plaintiff has met her burden of showing that the defendant's proffered reasons are pretexts."

Id. at 113. Although Pittman did not specifically challenge this conclusion in her brief, she does argue that the district court erred in concluding, despite its finding of "some circumstantial evidence of a hostile racial atmosphere," that she "failed to carry her ultimate burden of persuasion that she has been the victim of intentional discrimination...."

The Supreme Court recently recognized that subjecting employees to a "racially hostile work environment" can be an independent violation of Title VII. Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2374 (1989). In Patterson, the Court declared that " [r]acial harassment in the course of employment is actionable under Title VII's prohibition against discrimination in the 'terms, conditions, or privileges of employment.' " Id. The Court further noted the long-held view of the Equal Employment Opportunity Commission ("EEOC") that " 'harassment on the basis of race ... is an unlawful employment practice in violation of Sec. 703 of Title VII of the Civil Rights Act,' " id. (quoting EEOC Compliance Manual Sec. 615.7 (1982)), and observed that the EEOC position has been upheld uniformly by all the lower federal courts that have considered it. Patterson, 109 S. Ct. 2374, 2374 n. 3. See e.g., Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-15 (8th Cir.), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977); and Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972). Finally, in his majority opinion, Justice Kennedy acknowledged that the Supreme Court had previously implicitly approved a cause of action under Title VII for "harassment [which is] sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Patterson, 109 S. Ct. at 2374 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (sex-based harassment)).

The first court to recognize a cause of action based upon a racially discriminatory work environment, held that "a discriminatory and offensive work environment so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers" may constitute a violation of Title VII. Rogers, 454 F.2d at 238. Other federal courts of appeals subsequently recognized a Title VII cause of action under similar circumstances. See e.g., Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987); Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986); Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982); Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir. 1982).

To establish a racially hostile atmosphere, "a plaintiff must prove more than a few isolated incidents of racial enmity." Snell, 782 F.2d at 1103 (quoting Gilbert, 722 F.2d at 1394). Similarly, casual comments, or accidental or sporadic racially-charged conversation, will not suffice. Snell, 782 F.2d at 1103. The alleged racial harassment must be "sufficiently pervasive," as determined from the "totality of the circumstances," to create an abusive working environment. Snell, 782 F.2d at 1103; Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982). Evidence of racial harassment directed at employees other than the Title VII plaintiff may also be considered to show hostile work environment. See Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1015 (8th Cir. 1988) (sexual harassment).

We remand this case to the district court to consider the evidence as a whole, i.e., the totality of the circumstances in which Pittman worked during her tenure at the OCC, under the standard of proof for the Title VII claim of "racially hostile work environment" as herein described and as recognized by the Supreme Court in Patterson.² 

IV

On remand, the district court should also consider the effect of the recent Supreme Court case regarding the order and allocation of burdens of proof in Title VII "mixed motive" cases. Price Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). Price Waterhouse may have materially changed the law applied by the district court, at least with respect to Pittman's discriminatory training and evaluation claims.

The rule of Price Waterhouse applies to mixed motive cases, i.e., those in which the relevant employment decision "resulted from a mixture of legitimate and illegitimate motives." 109 S. Ct. 1781 (Brennan, J., plurality op.). In such a case, the burdens of proof are as follows. " [A] disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the [adverse employment] decision." 109 S. Ct. at 1804 (O'Connor, J., concurring op.); see also 109 S. Ct. at 1795 (White, J., concurring op.). Once the plaintiff has carried this burden, the burden of proving causation then shifts to the employer to "convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor." 109 S. Ct. at 1804 (O'Connor, J., concurring op.).³ 

If the district court were to find Pittman's proof sufficient to establish that an illegitimate criterion--i.e., gender stereotyping or race-based animus--was a "substantial" factor in evaluation or training opportunity decisions, the burden would shift to the Secretary to prove by a preponderance of the evidence that legitimate employment considerations would have justified the adverse decisions without reference to any impermissible motive. We remand these causes of action to the district court to reexamine the evidence of discriminatory training and evaluation under the guidelines, as announced by the Supreme Court in Price Waterhouse, for trial of Title VII "mixed motive" cases.

V

The findings and conclusions of the district court with respect to Pittman's retaliation claim are AFFIRMED. The case is REMANDED for reconsideration of Pittman's "racially hostile work environment" claim under the principles recognized by the Supreme Court in Patterson, and to afford the district court an opportunity to enter appropriate findings and conclusions on Pittman's discriminatory training and evaluation claims, utilizing the allocation of burdens of proof for a "mixed motive case" as announced by the Supreme Court in Price Waterhouse if appropriate.

AFFIRMED in part and REMANDED. The parties shall bear their own costs.

WALLACE, Circuit Judge, concurring in part and dissenting in part:

I agree with the proposed disposition except for part III. There, the majority reaches out to reverse on an issue not presented to us. Pittman specifically agreed with the law applied by the district judge. Appellant's Brief at 27. She only challenged whether the factual findings which led to the conclusions of law were clearly erroneous. The majority does not suggest that Pittman was right on this issue. I agree with this tacit determination: the findings were not clearly erroneous. That should end our consideration of the issue.

But the majority concludes that the district court did not apply the correct standard of law to Pittman's claim that she was subjected to a racially hostile work environment. Although the majority concedes that Pittman did not specifically challenge the legal standard applied by the district court (Disposition at 6), it remands these claims for reconsideration in light of the Supreme Court's decision in Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2374 (1989). Yet the Court in Patterson was not presented with and did not decide the issue of whether "a 'racially hostile work environment' can be an independent violation of Title VII." (Disposition at 6.) Rather, the issue in Patterson was whether 42 U.S.C. § 1981 applies to postformation conduct in a contractual relationship. See Patterson, 109 S. Ct. at 2374-75. While the Supreme Court has recognized a claim under Title VII for sexual harassment in the workplace, see Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-66 (1986), it has not recognized a claim for racial harassment. Indeed, in Patterson the Court explicitly states that it "has not yet had the opportunity to pass directly upon this interpretation of Title VII...." 109 S. Ct. at 2374. In short, the Supreme Court's utterances concerning racial harassment in the workplace are not binding precedent--they are rank dicta. Nor are the cases from other circuits on this issue binding on this court, since they have not been followed in this circuit.

The First Circuit case cited by the district court suggested that " [p]roof of a general atmosphere of discrimination" may be used along with other evidence in showing that a defendant's justification for termination is a pretext. Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106, 113 (1st Cir.), cert. denied, 444 U.S. 1045 (1979). I do not see how this standard conflicts with the case law of this circuit, or even the Supreme Court's dicta in Patterson: it simply permits the plaintiff to introduce additional evidence in order to meet his burden. Absent the presence of clear, binding authority upon which to reverse the district court's application of this legal standard, I do not think it proper to disturb the district court's ruling on this issue. This is especially true in this case, where Pittman has never objected to the legal standard adopted by the district court. I therefore would not remand the claim considered in part III of the disposition.