Hawkins v . Mary Hitchcock Memorial CV-99-113-M 01/30/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Georgeanna Hawkins, Plaintiff

v. Civil N o . 99-113-M Opinion N o .

Mary Hitchcock Memorial Hospital, Defendant

O R D E R

Pursuant to Title VII of the Civil Rights Act of 1964, see

42 U.S.C. § 2000e, et seq. (1994) (Title V I I ) , Georgeanna Hawkins

alleges Mary Hitchcock Memorial Hospital (the Hospital)

discriminated against her because of her race when it failed to

hire her for a position on the Hospital’s housekeeping staff.

The Hospital moves for summary judgment (document n o . 9 ) .

Factual Background

The relevant undisputed facts can be summarized as follows:

Georgeanna Hawkins applied for a housekeeping position at

the Hospital on three separate occasions in 1996, 1997, and 1998. 1 When she first applied, Hawkins was living in New York

City, but planned to move to New Hampshire. She completed a

standard application form and mailed it to the Hospital. The

form did not seek information about an applicant’s race or color.

Hawkins was not interviewed relative to her 1996 application.

She reapplied a year later and was again not granted an

interview.

In March 1998, Hawkins wrote to Wayne Weiner, Director of

Employee Relations at the Hospital and complained that she was

not hired because of her race. See Plaintiff’s Objection to

Summary Judgment, Ex. K (document n o . 1 0 ) . Weiner responded,

informing her that the Hospital is “an equal opportunity

employer” and that “race, nationality, sex, religion and

disability status are not used to screen applicants.” See P l .

O b j . to Sum. J., Ex. L . He went on to explain that work

experience, relative education, and past employment history are

1 The complaint states that Hawkins applied to the Hospital on two occasions, not three. Complaint ¶ 4 . However, the record reveals she applied in 1996, as well as in 1997 and 1998. See Plaintiff’s Objection to Summary Judgment ¶ 14 (document n o . 1 0 ) .

2 major criteria the Hospital considers when selecting applicants

for interviews. See id.

In late September 1998, Hawkins applied a third time, noting

on her application:

P.S. And I [sic] not going to fill anymore applications out, or update them, because your office is not looking at the records, or is discriminating, and I am going to write the head of the hospital about how you’ll [sic] are doing m e . [A]nd I will file a claim against your hospital for discrimination, if something is not done about my application.

P l . O b j . to Sum. J., Ex. M . At the same time, she wrote to

William Geraghty, Vice President of Human Resources for the

Hospital, expressing her belief that the Hospital was

discriminating against her based on race.

On September 2 4 , shortly after submitting her third

application, Hawkins was interviewed by David Hughes, an

employment counselor at the Hospital. Later, on October 1 5 , she

was interviewed by Raymond Bill, Assistant Director of

Housekeeping. By letter dated October 2 6 , 1998, Geraghty wrote

to Hawkins. Referencing her earlier letter, received on

September 2 1 , Geraghty informed her that she was “not

appropriately qualified for a position . . . based on the

3 evaluation of [her] two interviews, how [she] interacted with the

staff, and [her] references.”

On December 1 8 , 1998, Hawkins filed a charge of

discrimination with the Equal Employment Opportunity Commission

(EEOC). The EEOC issued a Right to Sue letter, and she filed

this suit on March 1 9 , 1999.

Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). When ruling upon a party’s motion for summary judgment,

the court must view the entire record “in the light most

favorable to the nonmoving party, and draw all reasonable

inference in the nonmoving party’s favor.” LeBlanc v . Great

American Insurance Co.,

(1st Cir. 1993). The

court need not, however, credit conclusory allegations,

improbable inferences, or unsupported speculation. Medina-Munoz

v . R.J. Reynolds Tobacco Co.,

, 8 (1st Cir. 1990).

4 The burden is initially on the moving party to show “an

absence of evidence to support the nonmoving party’s case.”

(internal quotation marks and citation omitted). Once such a

showing is made, the burden shifts to the nonmoving party who

must present facts showing a “genuine issue for trial.” Anderson

v . Liberty Lobby, Inc.,

4 2 , 256 (1986). “Only disputes

over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary

judgment.” Id. at 248.

In addition to being a genuine dispute, the disputed fact or

facts must be material, which is determined by the substantive

law. Id. The substantive law of Title VII discrimination

claims, whether at trial or on a motion for summary judgment,

involves the well-known burden-shifting scheme set out in

McDonnell Douglas Corp. v . Green,

9 2 , 802 (1973), which

places the initial burden on the plaintiff to establish a prima

facie case of discrimination. This is not an onerous task and

once it is accomplished, the burden shifts to the employer to

articulate a non-discriminatory reason for the action taken.

Texas Dept. of Community Affairs v . Burdine,

4 8 , 254

5 (1981). The burden on the employer is one of production – a

minimal burden under which the employer is not required to prove

that the proffered reason was the actual reason for the action

taken, but must merely state a valid reason. Id. at 255. If the

employer is able to articulate a valid reason, the burden shifts

back to the plaintiff who must put forth specific evidence

supporting a claim that the articulated reason is more likely

than not a pretext for discrimination. Id. at 258. At all

times, the burden on the plaintiff is one of persuasion.

Discussion

The Hospital moves for summary judgment claiming Hawkins has

failed to make out a prima facie case of discrimination. In the

alternative, the Hospital asserts that it has articulated

legitimate business reasons for refusing to hire Hawkins and that

she has failed to meet her resulting burden to show the

Hospital’s reasons are more likely than not a pretext for race

discrimination.

To make out a prima facie case of race discrimination,

plaintiff must assert four elements:

6 (1) she belongs to a protected class; (2) she applied for and was qualified for a job for which the defendant was seeking applicants; (3) she was rejected; and (4) after rejecting the plaintiff, the position remained open and the defendant continued to seek applications with the same qualifications.

See, e.g., McDonnell Douglas, 411 U.S. at 802. It is undisputed

that Hawkins is an African-American woman, and a member of a

protected class. It is also undisputed that she applied for an

open position on the Hospital’s housekeeping staff; that she was

rejected; and that the Hospital continued to seek qualified

applicants for that open position (or similar positions). The

dispute here relates to whether the Hospital rejected Hawkins

based on her race or because it found her unqualified.

Pointing to Hawkins’ admission that she experienced back

pains while performing some housekeeping tasks while working at a

hotel, the Hospital initially contends that she cannot make out a

prima facie case because she is not qualified for the position.

Additionally, although Hawkins argues that the minimum

qualifications for the job are “an eighth grade education; some

related experience; [and] the ability to read and write,” Pl.

O b j . to Sum. J. at 13-14, Hughes’ deposition testimony reveals

7 that, in addition to some education and the ability to read and

write, the Hospital’s screening process includes looking for “a

good solid continual work background, something that may be

related experience.” P l . O b j . to Sum. J., Ex. S at 2 0 .

Hawkins’ application, and her deposition testimony, reveal

that she was not employed between November of 1989 and November

1 7 , 1997. P l . O b j . to Sum. J., Ex. M ; Pickett First Aff., Ex. A

at 8 8 . Before November of 1989, she had been employed by South

Bronx Housekeeper Vendor (South Bronx) for approximately eight

months. Moreover, according to her 1998 application, before

working for South Bronx, she last worked between 1983 and 1984.

She allegedly left that position because she “got a job

. . . with better benefits,” P l . O b j . to Sum. J., Ex. M , but she

did not list that job on any job applications. Therefore, the

Hospital’s rejection based on qualifications would appear

plausible, and it is certainly arguable that plaintiff has not

met her initial burden to make out a prima facie case, because

she has not shown that she is “qualified” for the position (i.e.

absence of a “good solid continual work background”).

8 However, since the initial prima facie burden is so low, and

the qualifications for the position are fairly basic, for

purposes of this motion the court will assume plaintiff

established a prima facie case. That assumption operates to

shift the burden to the Hospital to articulate a legitimate (non-

discriminatory) reason for failing to hire Hawkins. The Hospital

has articulated many such reasons.

In his letter, dated September 2 6 , 1998, Geraghty informed

Hawkins she would not be hired based on her interviews, her

interaction with hospital staff, and her references. Geraghty

Aff., Ex. J. The Hospital also points to her “sporadic work

history with large gaps in employment,” and it elaborates on the

reasons given in Geraghty’s letter.2 For example, the Hospital

documents two unfavorable references: one from South Bronx,

Hawkins’ last known employer before moving to New Hampshire, and

one from the local Radisson Inn where Hawkins was briefly

employed in 1997. The former, a form reference card received in

connection with Hawkins’ 1996 application, rated Hawkins “below

2 The Hospital also points out that Hawkins’ race was unknown when she applied in 1996, yet she was similarly rejected (not invited to interview).

9 average” regarding work quantity and interpersonal skills and

“unsatisfactory” regarding work quality, independence,

attendance, and initiative. Hughes Aff., Ex. A . Hughes has

submitted, by affidavit, a similarly negative telephonic

reference from the Radisson Inn where Hawkins was employed for

three weeks in 1997. 3 Hughes Aff., Ex. D.

The record also includes copies of email messages, the

veracity of which have been attested to by affidavit, written by

Hughes and Bill following their interviews of Hawkins. Hughes

describes his impression of Hawkins’ apparent inability to

concentrate on questions for very long and found her “scattered

in her responses.” Hughes Aff., Ex. C . He also reported that

she “tended to give contradictory answers” and concluded that

“[s]he would do better in a more self controlled (time and

duties) type of job similar to what she is doing now.” Id. Bill

noted his “concern[] that she seemed very deliberate when talking

3 During Hawkins’ September 1998 interview, Hughes became aware of Hawkins’ employment at the Radisson Inn (which was not mentioned in her application). Hughes Aff., ¶ 1 1 , Ex. C , D. Following the interview, Hughes telephoned the hotel and was informed that she was considered a “voluntary quit” because she had failed to show up for work, or call i n , three shifts in a row. Id.

10 about tasks and how sometimes she would skip things to get

through her assignment.” Bill Aff., Ex. A . He also related her

disclosure of having had prior back pain experiences when she was

required to change beds while working at a hotel, “a task that

she would be required to do on weekends.” Id.

The Hospital’s articulated reasons for rejecting Hawkins’

application are valid, non-discriminatory business reasons for

not hiring someone. The burden thus shifts back to Hawkins to

demonstrate that it is more likely than not that the Hospitals’

given reasons are pretextual, and that discriminatory animus

played a role in the decision not to hire her.

This case raises issues similar to those resolved in Gadson

v . Concord Hospital,

(1st Cir. 1992). In Gadson, an

African-American man alleged discrimination when he was not hired

as a dishwasher at Concord Hospital, purportedly because of

conflicting applications, a history of short-term employment, and

poor references.

at 3 4 . The plaintiff in that case sought

to prove pretext by arguing that he had satisfactorily explained

his employment history, that he was “purposely put off” when he

followed up on his application, and was led to believe he was

11 going to be hired.

. He further argued that,

statistically speaking, Concord Hospital only needed to hire two

minorities to satisfy its non-discrimination policy.

at 3 5 .

The Court of Appeals affirmed an order granting summary

judgment, finding Gadson’s arguments insufficient to meet his

burden to show pretext, and noting that the burden cannot be met

“simply by questioning [the] articulated reason.” Gadson,

5 . Gadson’s offered statistics also failed to satisfy

his burden because there was no “indication of a connection

between the statistics, the practices of Concord Hospital and

Gadson’s case.”

Similarly, in this case, Hawkins offers the following

“evidence” of pretext:

3. she was never allowed to meet any of the staff; 4. she was absent from the work force for several years to raise her son and to take care of an ailing aunt; 5. she has positive references; 6. there is only “mere paper compliance with EEOC guidelines” at the Hospital; 7. her back pain is only associated with hotel work; 8. she meets the minimum requirements for the job; 9. the interview went so well she believed she had the job; and 10. statistics show very few minorities on the Hospital housekeeping staff.

12 Plaintiff’s contention that she never met any staff members

- thus challenging Geraghty’s statement that her interaction with

staff was a factor in the decision not to hire - is contradicted

by her own deposition testimony. Pickett First Aff., Ex. A . at

165. 4 And, while plaintiff did obtain some positive

recommendations, including a 1997 recommendation from South Bronx

more favorable than the 1996 recommendation by the same

supervisor, the fact still remains that the Hospital did receive

and consider poor references. The favorable recommendations are

factors to be considered as well, but some favorable references,

along with negative ones, does not go very far in establishing

that the hiring decision was a pretext for race discrimination.

“It is not a court’s role to second guess the business decisions

of an employer.” LeBlanc v . Great American Insurance Co.,

(1st Cir. 1993) (internal quotation marks and citations

omitted). Further, that plaintiff provided a plausible

4 That portion of Hawkins’ deposition reads as follows: Q : But my only question i s , [y]ou did have interaction with staff. Whether or not you would characterize it as polite or not polite, you did have interaction with them, right? A : Just those secretaries behind the desk.

13 explanation for her absence from the work force for roughly seven

years also does little to support her claim that the hiring

decision was pretextual.

Hawkins’ different impression of her interviews, and her

contention that her back problems would not interfere with

housekeeping work, also add little support to a claim of pretext.

Even if the interviewers’ impressions were wrong, Hawkins’

contrary and “correct” impressions still do not show pretext.

See Gadson,

(“Indeed, even if the hospital were

wrong in its interpretation of Gadson’s work record and even

assuming it unfairly disregarded Gadson’s explanation concerning

his prior employment, this would be insufficient to show pretext

of a discriminatory intent.”)

Plaintiff’s allegation that “mere paper compliance with the

EEOC guidelines” exists at the Hospital is similarly unhelpful in

meeting her burden. In addition to some statistical evidence

(discussed below), Hawkins relies on the following to support her

allegation:

1. Bill, a supervisory employee, could not define a minority and was not aware of any affirmative action workshops at the hospital; and

14 2. a portion of Hughes’ deposition “clearly demonstrates” that “there is no discernable [sic] implementation plan.”

P l . O b j . to Sum. J. at 3-5.

A fair reading of Hughes’ and Bill’s depositions suggests

Hawkins’ interpretation of the testimony is flawed. But even

assuming the absence of an “implementation plan,” and that Bill

was unable to define a minority and was unaware of affirmative

action workshops at the Hospital, the record still would not

support a claim that the reasons given for not hiring Hawkins

were pretextual for discriminatory animus.

Finally, while Hawkins’ statistical evidence is not as

readily comparable to the statistical evidence offered in Gadson,

it is similarly lacking in persuasive value. The “usefulness [of

statistical evidence] depends on all of the surrounding facts and

circumstances.” International Bhd. of Teamsters v . United

States,

2 4 , 339 (1977). The completeness of the

evidence is also a factor to be considered. See, e.g., McMillan

v . Massachusetts Soc’y for the Prevention of Cruelty to Animals,

8 8 , 303 (1st Cir. 1998).

15 The statistics offered by Hawkins purport to disclose the

number of minorities employed in the Hospital’s housekeeping

department, the number of overall employees in that department in

1996, 1997, 1998, and 1999 (to July 1999), and the number of

minorities in housekeeping hired or terminated during the same

period, compared to the overall number of housekeeping employees

hired or terminated. Apparently, between 1996 and July 1999,

minorities comprised approximately 1 - 2.5%5 of the housekeeping

staff. During the same time, although no new minorities were

hired in the housekeeping department until sometime in 1999, no

minority employees were terminated from the housekeeping

department. While 1 - 2.5% is a small portion of the workforce,

the record is silent regarding both the relative size of the

minority population in the area, and the number of minority

applicants for housekeeping positions. Without comparative

information, the significance of plaintiff’s statistical

presentations cannot be meaningfully evaluated. And, it does not

show that the Hospital’s articulated business reasons for not

5 Neither party presents the numbers in percentages. However, the number of minorities employed in housekeeping and the total number of employees in that department are presented.

16 hiring Hawkins are either false or pretextual for racial

discrimination.

Conclusion

For the reasons given, Hawkins has failed to meet her burden

of showing that the reasons given by the Hospital for not hiring

her were pretextual, and that racial discrimination played a role

in the hiring decision. Accordingly, the Hospital’s motion for

summary judgment is granted.

The Clerk shall enter judgment in favor of the defendant and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 3 0 , 2001

cc: Nancy S . Tierney, Esq. Jeffrey S . Brody, Esq.

17