USCA1 Opinion

UNITED STATES COURT OF APPEALS

_________________________

No. 95-1522

SHARON C. FOSTER,

Plaintiff, Appellant,

v.

JOHN H. DALTON, SECRETARY OF THE NAVY,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

Before

Selya, Cyr and Stahl, Circuit Judges.

____________________

Robert B. Mann, with

whom Mann & Mitchell was on brief, for

appellant.
Jennifer H. Zacks, Attorney,
__________________
whom

Frank W. Hunger,
_________________

Whitehouse,
__________

United

States

U.S. Dep't of

Assistant
Attorney,

Attorney
and

Justice, with

General,

Sheldon
_______

Marleigh D. Dover,
___________________

Attorney, U.S. Dep't of Justice, were on brief, for appellee.

____________________

December 11, 1995

____________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Plaintiff-appellant

Sharon C.

Foster, an African-American woman, sued the Secretary of the Navy

on

the ground

that

the Newport

Naval Hospital

denied her a job due to her race.1

Following a bench trial, the

district court rendered judgment for the Secretary.

record

away

(the Hospital)

Although the

makes it painfully clear that this episode is light years

from the Navy's finest

hour, we have

no principled choice

but to affirm.

I.
I.

BACKGROUND
BACKGROUND

The

United States

Rhode

Island.

subsidiary

facts

are

largely undisputed.

Navy maintains a substantial

In the

summer

of

1989,

presence in Newport,

the appellant

civilian employment at the Naval War College.

through

the

ranks,

she

The

assiduously applied

found

Seeking to advance

for

other,

more

attractive jobs in the

facilities located at

vacancies

by

Newport naval establishment.

the base

selecting

adhered to a

internal

policy of

candidates

already employed within the particular facility)

the appellant

had no luck

until the

professional affairs coordinator.

She

Since

most

filling

(i.e., candidates

where possible,

Hospital hired her

as its

reported for duty in July

of 1990.

Shortly

after

the

appellant

came

Hospital's director of administration, Commander

sought

on

board,

the

William Travis,

to fill a newly created opening for a management analyst.

____________________

1The
action.

Secretary is the appropriate defendant in this type of

2000e-16(c) (1988).

Because he

believed that available funding

if the position

year

remained open

(October 1,

1990),

at the start

Commander Travis

would be jeopardized

of the next

fiscal

eschewed the

hiring

procedure ordinarily used to recruit civilian staff and undertook

non-competitive

culling

files

the names

and

search.

of

assembling a

This

process

aspirants for

list

consisted mainly

advancement from

of potential

candidates.

of

existing

Staff

personnel compiled

the

appellant).

a roster

As among

twice distinguished:

person already

Travis

to

candidates (including

the five nominees,

the appellant was

she was the only non-Caucasian and the only

employed at

adhered

of five such

the

the Hospital.

usual

aspirants, the appellant

policy

Thus,

of

had Commander

preferring

in-house

who was plainly qualified for the post

would have been selected.

When

specialist,

inquired

why

George

Warch,

presented Commander

James Berry's

informed Travis that Berry

acquaintance

could not

specified for

the position.

rewrite

the Hospital's

the job

civilian

program

with

the list,

Travis

omitted

from it.

Warch

Travis

name was

Warch's "fishing buddy" and Travis's

be

description,

offered employment

at

Travis promptly directed

specify a

lower grade

the grade

Warch to

(at which

Berry

little

would

be eligible),

to chance, Travis

and generate

also decreed

position should have certain

Berry possessed

new list.

that candidates

computer expertise

Leaving

for the

expertise that

and intimated that he would invoke the Veterans

Readjustment Act (VRA), 38

U.S.C.

4214 (1988 &

in filling the management analyst vacancy.2

Supp. V 1993),

The modified job description

only one name on it:

revisions made it

preselect Berry

James Berry.

yielded a fresh list with

Although Warch mused that the

appear that the powers-that-be had connived to

for the

vacancy, Travis brushed

these concerns

aside and named Berry to the management analyst position.

In the wake of

administrative

Berry's hiring, the appellant

complaint

with

the

Hospital had discriminated against

and gender.

Island's

alleging

her on the basis of

that

the

her race

Receiving no satisfaction, she brought suit in Rhode

federal

district

contravention of Title VII

U.S.C.

Navy,

filed an

2000e (1988).

court,

charging

of the Civil

discrimination

in

Rights Act of 1964,

42

Following a

bench trial that focused on

allegations of race discrimination,3

the district court ruled in

the Secretary's

proved a prima

No. 93-0509,

thought

favor.

The court

thought

that the

appellant

facie case, see Foster v. Secretary of the Navy,

slip op. at

that she

was

Berry, see id. at 8.

12 (D.R.I.

Apr. 13,

better qualified

for

1995), and

also

the position

than

But the court determined that the Secretary

____________________

2Under

the

VRA,

veterans

governmental employment.
793

F.2d 293, 295

See,
___

receive preference
e.g., Jakes v.
____ _____

(Fed. Cir. 1986)

in

certain

Veterans Admin.,
_______________

(elucidating VRA preference

system); see also Keyes v. Secretary of the Navy, 853 F.2d 1016,
___ ____ _____
______________________
1020-21

(1st

Cir.

1988)

generally); 5 C.F.R.
the responsibility
advancement

(discussing

veterans'

preferences

307.102(a) (1995) ("Federal agencies have

opportunities to eligible veterans

employment and job

.").

Not

coincidentally, Berry had served in the United States Navy.

3The

appellant

did

discrimination at trial,
appeal.

not
and does

press

her

not seek to

The claim is therefore waived.

claim

of

gender

resurrect it

on

had successfully rebutted

the prima facie

nondiscriminatory, if unsavory, reason

case by proffering

for the personnel action:

preselection of a friend of

the appointing officer.

14.

and Warch's

Overriding

cronyism

played

Travis's

no

role

in

Berry's

pious

See id.
___ ___

assurances

recruitment,

the

at

that

court

concluded that this was a near-classic case of an old boy network

in

operation,

but

not

situation in

which

decision was motivated by racial animus.4

II.
II.

the

employment

This appeal ensued.

ANALYSIS
ANALYSIS

The

district

court wrote

thoughtful, meticulously

reasoned opinion dealing

with many of the

Foster voices on appeal.

Having carefully explored the nooks and

crannies of the case,

basis

same contentions that

we affirm the judgment essentially

of Judge Pettine's rescript.

on the

We embellish only in certain

limited respects.

First:
First:
_____

We start at a

high level of generality.

The

appellant does not seriously dispute the district court's account

of

the facts,

court saw fit

but vigorously

to draw from

attacks the

them.

Although

inferences that

the

she denies it,

her

jeremiad essentially asks

and substitute a new

that we reweigh the

evidence de novo,

set of inferences for the

inferences drawn

____________________

4Though
district

entering judgment

court

expressed its

ichthyophagous hiring
chastised Travis for

in

the

distaste

practices.

he

Foster,
______

rejected
slip op.

for Commander

Among other

his "ignorance of EEO

calloused attitude toward the hiring of

Secretary's favor,

[Warch's]
at 14.

well-founded.

Travis's

things, the court

hiring policies, his

minorities, and the fact

pre-selection

The court's

the

concern

criticism appears

. .

."

to be

by the

trier.

Our standard of

review, however,

is much

more

circumscribed.

Following a

warranted

court.

bench trial, an appellate

in substituting

its judgment

tribunal is not

for that

of

the trial

This rule is composed of equal parts of common sense and

practical wisdom:

it is difficult to gain a full appreciation of

controversy

fact-sensitive

district judge

hearing the

reject

ordinarily

witnesses in

from

has had

person.

either his findings of

the

paper

record,

benefit of

Hence,

fact or the

we are

and

the

seeing

and

not free

to

conclusions he draws

therefrom unless they are clearly erroneous, that is, "unless, on

the whole of the record, we form a strong, unyielding belief that

a mistake has been

made."

Cumpiano v. Banco Santander P.R., 902

F.2d 148, 152 (1st Cir. 1990).

intent

Findings concerning an employer's

are subject to review under this standard, and can be set

aside only for clear error.

This

case is

See id. (citing authorities).

troubling in

pristine page, might well have

to the impetus behind the

test.

that we,

if writing

reached a different conclusion as

refusal to hire.

But that is

See Keyes v. Secretary of the Navy, 853

(1st

Cir. 1988).

the

district

on a

not the

F.2d 1016, 1027

While the record, read objectively, shows that

court

could

have

drawn

an

inference

of

discriminatory intent, it does not show that such an inference is

compelled.

ground

That

that,

raises the

"when

there

stakes appreciably.

are

two permissible

It is

views

common

of

the

evidence, the factfinder's choice

between them cannot be clearly

erroneous."

(1st

Johnson v.
_______

Watts Regulator Co., 63 F.3d

Cir. 1995) (citing Anderson

U.S. 564, 574 (1985)).

Second:
Second:
______

1129, 1138

v. City of Bessemer City, 470

So it is here.

Turning to

specifics, the appellant says that

preselection (which,

adverse

according to the court

employment

decision)

decisionmaker learned

to

occurred

below, dictated the

only

that the management analyst

after

the

post would go

an African-American woman, virtually by default, if he failed

to adopt an alternative means of candidate selection.

plausible rendition of

one.

Though

received an

along

to

the facts, but

not the only

Berry's name first surfaced

initial list, Travis

see Berry

in that

dashed,

attempted to regain

Because

both scenarios

trial judge's choice between them.

permissible

have expected

and, when

lost ground by

are plausible,

is a

after Commander Travis

could well

lineup

This

his

all

hopes were

altering the rules.

we will not

disturb the

See Johnson, 63 F.3d at 1138;

Cumpiano, 902 F.2d at 152; Keyes, 853 F.2d at 1019-20.

Third:
Third:
_____

abandonment

of the

house candidates

of racial

with

The appellant

animus.

Hospital's wonted

itself gives rise to

The

policy of

preferring in-

an irresistible inference

appellant weaves a

complicated tapestry

the threads of this argument, hinting that the policy often

operated

in

the

past

elevation, thus making the

where

insists that Commander Travis's

to

exclude

minority

candidates

Hospital's disregard of it in

that policy would redound

candidate all the more cruel.

to the advantage

from

a case

of a minority

In her view, this abrupt departure

from past practice

bias.

suspicious,

ordinary

is

the basis of racial

We do not agree.

The

person

can only be explained on

district

but

praxis

of color.

court

concluded

treated

that

to benefit

Two obvious

this

Commander

a friend

rather

departure

as

Travis tweaked

the

than to

thwart a

propositions spring to mind.

One

that cronyism is deplorable, especially when it is allowed to

infect

public sector

proposition

reach.

An

employment decisions.

The

other obvious

is that Title VII does not have a limitless remedial

employer can hire one

person instead of

another for

any reason, fair

or unfair, without transgressing

long as the hiring

some

1026.

and,

decision is not

other protected

Title VII, as

spurred by race, gender,

characteristic.

See Keyes,
___ _____

853

or

F.2d at

As we explain infra, Title VII does not outlaw cronyism

in this

case, cronyism

provides a

sufficient alternative

explanation for the challenged deviation from the standard hiring

protocol.

Thus, the district court's assessment of the proffered

evidence was not clearly erroneous.

Fourth:
Fourth:
______

maintained

aspirant.

testimony.

At

trial,

Commander

Travis

stalwartly

that he hired Berry because he was the best qualified

Judge

See
___

Pettine

Foster,
______

slip

understandably

op.

at

14-15.

discounted

Although

this

the

appellant concedes that a court is not legally bound to find

a Title

VII plaintiff simply

proffered reason for an

here,

because it rejects

for

the employer's

employment decision, she maintains that,

the court's disbelief of the explanation, coupled with the

deviation

from

the

standard

policy

of

in-house

preferment,

compels an inference that the decision was race-driven.

To shore

up this contention, the appellant points to the

repeated

denials of favoritism.

declined to credit these

naval officials'

Noting that the district court

denials because they were self-serving,

see id. at 14, the appellant asseverates that, since preselection

was the only alternative rationale that could sidetrack a finding

of racial

of

discrimination, the district court

preselection were,

in fact,

erred; the denials

against self-interest,

and the

employer should be held to them.

This argument is too clever by half.

it

is implausible that veteran

bureaucrats

We do not believe

and,

in our view,

"bureaucrat" and "naval officer" are not mutually exclusive terms

would deny preselection to avoid the stigma of having failed to

follow neutral

hiring procedures.

Indeed,

Travis's and Warch's

on-the-stand

district judge

collogued to

denials

are

replete

reasonably could

with clues

from

have deduced that

tilt the process in Berry's favor.5

actions speak louder than words.

the

the two

men

In all events,

In a bench trial "what an actor

says is not conclusive on a state-of-mind issue.

which

Notwithstanding

person's disclaimers, a contrary state of mind may be inferred

from what he does and from a factual mosaic tending

to show that

he really meant to accomplish that which he professes not to have

intended."

Anthony v.
_______

Sundlun, 952
_______

F.2d

603, 606

(1st Cir.

____________________

5To
invoking

cite

one

the VRA

example,
as

a means

Warch admitted
to

forefront.

that

getting Berry's

he
name

proposed

to the

1991).

In one sense, the district

boy

network was

in

court's finding that an old

operation though

amounts to a credibility call.

the

old boys

By and large, such

the district court, not for the court of appeals.

(warning

that

supportable

the

court

findings, based

of

appeals

on witness

"ought

denied

it

calls are for

See, e.g., id.

not

to

disturb

credibility, made

by a

trial judge who has seen and heard the witnesses at first hand").

There is no reason to apply a different rule in this case.

Fifth:
Fifth:
_____

The appellant

Commander

Travis fished

because he

was spawned

decision itself

Berry

from the

by the old

contravenes the

this construct, which rests

primary means by which

argues passionately that even if

applicant pool

boy network,

mandate of

such a

Title VII.

simply

hiring

Though

on the premise that cronyism

is the

employers perpetuate workplace apartheid,

possesses a certain superficial appeal, it cannot withstand close

perscrutation.

Indeed, the construct lacks any vestige of precedential

support.

The very cases on which the appellant relies explicitly

reject it.

825-26

(4th

See, e.g.,
___ ____

Cir.

Holder v. City of Raleigh, 867

1989) (rebuffing

plaintiff's

F.2d 823,

assertion that

nepotistic hiring practices, even

racially

charged

when denied by defendant under

circumstances,

constitute

impermissible

discrimination under Title VII); Autry v. North Carolina Dep't of

Human Resources, 820 F.2d

Thus,

1384, 1385 (4th Cir.

her argument amounts to

nothing more than

10

1987) (similar).

a plea that we

impose

the construct

province.

should

Given

by judicial

the state

be debated

before

fiat.

of the

But

that is

law, appellant's

the Congress,

not argued

not our

construct

before the

courts.

Relatedly, the

be read

to bar

appellant suggests that

cronyism because

that

tawdry practice

continued white domination in the workplace.

challenges

offensive)

examination

as

discriminatory

policy, and

of multiple

treatment.

facially

necessarily

hiring

better tailored to cases alleging

disparate

Title VII must

But this suggestion

race-neutral

depends for

decisions.

assures

support on

It is,

(if

an

therefore,

disparate impact as opposed to

See Autry, 820 F.2d at 1385; see generally

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 579-80 (1987)
_____________________
______

(explaining

the

basic

disparate treatment);

1066,
____

case

dichotomy between

disparate

impact and

cf. EEOC v. Steamship Clerks Union, Local

48 F.3d 594, 606

(1st Cir.) (holding

in disparate impact

that a policy of nepotism can, under certain circumstances,

constitute evidence of race discrimination in

employment), cert.
_____

denied, 116 S. Ct. 65 (1995).

Where, as

systematic effort

cronyism,

here, a

disappointed applicant has

to prove pervasive
_________

when practiced

in a

cronyism or

made no

to show

particular workplace,

that

regularly

yields a racially discriminatory result, a disparate impact claim

goes by the

boards.

responding

to

the

So here:

district

at trial, appellant's

court's

insightful

counsel,

questioning,

characterized the suit as

one involving disparate treatment, not

11

disparate impact.

That characterization binds

the appellant in

the present venue as well.

This

disparate

brings us full circle.

treatment

discriminatory

case

intent, they

can

can

While the

support

an

equally support

facts of this

inference

a finding

of

of

undiluted favoritism,

record, it

to

unmixed with

is the trial court's prerogative

select the inference that

cannot accept the appellant's

that

racial animus.

the use of an old boy

racial discrimination,

On such

indeed, its duty

it deems appropriate.

Because we

invitation to create a presumption

network in hiring constitutes per se

we are powerless to

subvert the district

court's election between conflicting inferences.

III.
III.

CONCLUSION
CONCLUSION

We

to

all,

need go no further.6

Title VII

"does not presume

obliterate all manner of inequity, or to stanch, once and for

what

a Scottish

inhumanity to man.'"

poet

two centuries

Keyes,
_____

853 F.2d at

Burns, Man Was Made to Mourn (1786)).

Like

ago

termed `[m]an's

1026 (quoting

Robert

the court below, we

find

the conduct

deserving

of

the naval

of opprobrium,

hierarchy in

but two

Discerning no

clear error in

favoritism,

not

this

wrongs seldom

make a

the district court's

racism,

tainted

case to

be

right.

finding that

Commander

Travis's

decisionmaking, we reject Foster's appeal.

____________________

6This appeal concerns only

take no

regulations

view

of

governing

what

Foster's claims under Title VII.

remedies, if

personnel

any,

practices

appellant to redress this seeming injustice.

12

federal
may

law

afford

or

the

Affirmed.
Affirmed.
________

No costs.
No costs.
________

13