author: GESELL, District Judge.

text:
    Ann B. HOPKINS, Plaintiff, v. PRICE WATERHOUSE, Defendant.
    Civ. A. No. 84-3040.
    United States District Court, District of Columbia.
    Sept. 20, 1985.

      Douglas B. Huron, James H. Heller, Washington, D.C., for plaintiff.
    Stephen E. Tallent, Wayne A. Schrader, and Kathy Davidson Ireland, Washington, D.C., for defendant.
   MEMORANDUM

GESELL, District Judge.

Plaintiff was proposed for partnership in Price Waterhouse, a nationwide professional partnership, but was held for further consideration at the next annual partnership selection. The following year the partners in the unit where she worked decided not to propose her a second time. Plaintiff then resigned and filed this suit alleging sex discrimination in violation of Title VII. 42 U.S.C. § 2000e-2. The Court is asked to order that she be made a partner and to award back pay and other monetary relief. A bench trial lasting four and one-half days followed extensive discovery. After receiving proposed findings of fact, further briefs, and hearing full argument, the Court reaches the following findings of fact and conclusions of law.

Background

Price Waterhouse is a partnership that specializes in providing auditing, tax and management consulting services primarily to private corporations and government agencies. At the time this action was filed, Price Waterhouse had 662 partners operating in 90 offices scattered across the nation. Its partners are certified public accountants and other specialists.

Despite its size and geographic dispersal, Price Waterhouse has consistently sought to maintain the traditional characteristics of a professional partnership both in its management and partnership selection practices. Partners manage the firm through a Senior Partner and Policy Board elected by all the partners. New partners are regularly selected from the ranks of the partnership’s senior managers through an elaborate recommendation and review process that culminates in a partnership-wide vote in which the successful candidates are approved. There is no limitation on the number of partners who may be selected in any one year.

The admissions process takes place annually and begins when the partners of each local office may propose that one or more senior managers from their office be considered as partnership candidates. Partners in the local offices draft written recommendations based on a detailed consideration of the candidates’ qualifications. These proposals are distributed to all of the firm’s 662 partners and each partner is invited to submit evaluation forms on any candidate about whom the partner may have information. Partners who have significant and recent contact with the candidate submit “long-form” evaluations and partners who only have a limited basis upon which to evaluate the candidate submit “short form” evaluations. These forms ask the partners to rank the candidates relative to other recent partnership candidates in 48 different categories ranging from practice development and technical expertise to interpersonal skills and participation in civic activities. The numerical rankings in this exhaustive list of relevant, neutral criteria is supplemented by asking the partners to indicate whether they believe the candidate should be admitted to the partnership, denied partnership or held for further consideration and asking them to provide a short comment explaining their assessment.

The Admissions Committee reviews each candidate’s personnel file and members of the Committee make visits to some local offices to interview partners who have commented in order to determine more precisely the basis for their views on the candidates. The Admissions Committee then prepares a summary of the evaluations and other information and makes its recommendations to the Policy Board. If the recommendation is to “hold” a candidate for reconsideration in a later year or a “no” recommendation denying admission, the Committee prepares a short written statement summarizing its reasons.

The Policy Board reviews the recommendations of the Admissions Committee and votes to include a candidate on the partnership ballot, to “hold” the candidate, or to deny partnership. While the Admissions Committee’s recommendations focuses primarily on the qualifications of the individual candidate, the Policy Board may occasionally interject business considerations and decide to recommend a candidate because of the firm’s need for a particular type of partner or a particular skill. The candidates recommended by the Policy Board are submitted to the entire partnership for election, and candidates who are not included on the ballot are informed of the Board’s reasons for rejecting their candidacy. Candidates who have been held may be reproposed in later years and the review process begins again. Price Water-house made every document generated by this admissions process on candidates proposed for admission in 1982, 1983 and 1984 available to the plaintiff during the course of discovery in this ease.

In 1982 the plaintiff was proposed for partnership by her office, the Office of Government Services (OGS), which specializes in designing and implementing consulting and management projects for government agencies. Plaintiff was the only woman among the 88 candidates for partnership that year. All of the partners in OGS at that time were men. Indeed, as of July, 1984 only seven of the 662 partners at Price Waterhouse were women.

Plaintiff had had a successful career as a senior manager in OGS and had played a significant role in developing business for the firm. She played a key role in Price Waterhouse’s successful effort to win a multi-million dollar contract with the Department of State. Afterwards, she helped prepare a proposal and manage a project for a computerized system to handle the State Department’s real property worldwide and successfully managed the preparation of a competitive proposal for a computer system to track loans of the Farmers’ Home Administration. She had no difficulty dealing with clients and her clients appear to have been very pleased with her work. None of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership. The partners in the OGS office fully endorsed her proposal for partnership. She was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked.

The comments submitted to the Admissions Committee, however, indicated that plaintiff had problems with her “interpersonal skills;” specifically, she had trouble in dealing with staff members. Eight of the thirty-two partners who submitted evaluations recommended that she be denied admission, three favored holding her for reconsideration, and eight indicated that they had insufficient basis for an opinion. Supporters and opponents of her candidacy indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with and impatient with staff. She sometimes used profanity and appeared to be insensitive to others. These negative comments and the significant number of “no” votes, most of which were by partners filing short forms because of their limited contact with the plaintiff, were determinative in the Admission Committee’s decision to recommend “that she should be HELD at least a year to afford time to demonstrate that she has the personal and leadership qualities required of a partner.” After a full discussion the Policy Board adopted this recommendation.

After learning that her candidacy had been put on hold plaintiff, at the urging of the Senior Partner, underwent a Quality Control Review in order to improve her chances of making partner the next year. Several partners indicated that they planned to give the plaintiff opportunities to demonstrate her abilities and receive more exposure. However, these partners. never followed through on their plans and the favorable results of the Quality Control Review came too late because just four months after the Policy Board’s recommendation the partners in OGS decided not to repropose the plaintiff for partnership. By that time, two partners in the OGS office strongly opposed her candidacy. Without strong support within that office, it was felt that her candidacy could not possibly be successful.

After the decision not to repropose, the plaintiff was advised that it was very unlikely that she would be admitted to partnership. Rather than waiting to try again or accepting an offer to remain as a senior manager, she resigned from Price Water-house in January, 1984. After pursuing the appropriate administrative remedies she brought this action.

Discussion

From the outset Price Waterhouse has conceded that plaintiff was qualified to be considered for partnership and probably would have been admitted but for the complaints about her interpersonal skills. Consequently, there is no dispute that the plaintiff has presented a prima facie case under Title VII by showing that she was a qualified partnership candidate, she was rejected, and Price Waterhouse continues-to seek partners with her qualifications. See Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & n. 6, 101 S.Ct. 1089, 1094 & n. 6, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The only dispute between the parties is whether Price Waterhouse’s concerns about the plaintiff’s interpersonal skills present a legitimate, nondiscriminatory reason to deny partnership or constitute a pretext to disguise sex discrimination.

Plaintiff advanced three arguments for maintaining that the decision was discriminatory: (1) the criticisms of plaintiff’s interpersonal skills were fabricated; (2) even if the firm believed her interpersonal skills were deficient, Price Waterhouse has routinely admitted male candidates with interpersonal skills problems if they had strong qualifications in other areas and would have admitted her if she had not been a woman; (3) the criticisms of the plaintiff’s interpersonal skills were a product of sexual stereotyping by male partners and the firm’s partnership selection process improperly gave full weight to these discriminatory evaluations. Price Waterhouse denies these allegations and claims that plaintiff was properly denied partnership because the firm, for legitimate business reasons, seeks to avoid having abrasive partners who might jeopardize morale and be incapable of successfully supervising staff as they move among different locations in response to work demands. Although plaintiff’s arguments are closely interrelated, it is necessary to examine them separately.

1. Fabrication of Complaints About Interpersonal Skills.

The interpersonal skills of prospective partners was properly an important part of Price Waterhouse’s written partnership evaluation criteria. Inability to get along with staff or peers is a legitimate, nondiscriminatory reason for refusing to admit a candidate to partnership. Cf. Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 37 Fair Empl.Prac.Cas. (BNA) 1862 (3d Cir.1985); Johnson v. Align & Bacon, Inc., 731 F.2d 64, 73 (1st Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984); Burras v. United Telephone of Kansas, 683 F.2d 339, 342-43 (10th Cir.1982), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982).

It is clear that the complaints about the plaintiff’s interpersonal skills were not fabricated as a pretext for discrimination. Even the plaintiff admitted that she is a “hard-driving” manager who pushes her staff and occasionally uses profanity. Contemporaneous records of counseling sessions and evaluations conducted well before the plaintiff was proposed for partnership indicate that partners found her too assertive, overly critical of others, impatient with her staff, and counselled her to soften her image. At the time, plaintiff indicated that she agreed with many of these criticisms. Even partners who strongly supported her partnership candidacy acknowledged these deficiencies, although in more muted tones, when emphasizing the high quality of her work and her value to the firm. Staff members who testified on the plaintiff’s behalf indicated that she was an effective manager but her hard-driving style might be regarded as “controversial” and it required “diplomacy, patience and guts” to work with her. Plaintiff’s conduct provided ample justification for the complaints that formed the basis of the Policy Board’s decision.

Plaintiff also alleges that the two OGS partners who blocked reproposing her after the Policy Board held her candidacy for reconsideration falsified their reasons to hide their discriminatory motives. There is not sufficient proof to support this allegation. One partner recommended that she be put on hold when she was first proposed and apparently opposed reproposal because he found her disagreeable to work with and had reservations about her technical skills and dedication to the firm. Although there is some suggestion that this partner may have held a personal grudge against the plaintiff, there is no proof that his position was animated by animosity toward her sex.

The second partner supported the plaintiff when she was first proposed, but changed his position after receiving additional criticism of her management style from staff members, having several conversations with the plaintiff, and reflecting on his previous experience with her work. His decision to oppose the plaintiff’s candidacy put him in the uncomfortable position of being in direct conflict with the head partner in the office, who was one of the plaintiff’s biggest boosters. Although the plaintiff disputes his version of the events that led him to change his vote, the Court found him to be a credible witness and accepts his account of these events. Plaintiff has failed to satisfy her burden of proving that the explanations given by these two partners were pretextual.

As a result, plaintiff has failed to show that the decision of the OGS partners not to repropose her was discriminatory. While offers from several partners to arrange assignments which might have improved her chances for partnership never materialized and no one made any effort to check on the plaintiffs current relationship with staff members after she was placed on hold, the evidence before the Court indicates that this was due to the timing of the partnership evaluation process rather than any discriminatory motives. Only a few months separated the announcement that plaintiff had been placed on hold and the vote not to repropose her so the firm had little opportunity to change plaintiffs assignment or do a thorough investigation into her subsequent relationships with staff. The decision not to repropose was due to the unexpected position taken by the two partners discussed above and plaintiff has not proven that their actions were discriminatory.

2. Balancing Interpersonal Skills Against Other Qualifications.

Plaintiff alleges that even if there were problems with her interpersonal skills she was so highly qualified in every other respect that the firm would have made her a partner if it had not discriminated against her because of her sex. She claims that the Policy Board invariably admits men who have interpersonal skills problems and comparing her “superb” record with that of these men shows that she is a victim of classic disparate treatment. Price Water-house does not concede that interpersonal skills were the plaintiffs sole deficiency, but it admits that they were the principle and determinative reason for the firm’s decision. Nonetheless, Price Waterhouse claims that the male candidates that the plaintiff points to are not comparable and do not indicate disparate treatment.

Fortunately the Court does not have to engage in the difficult task of second-guessing the Policy Board’s balancing of professional skills of candidates from different years in order to resolve this allegation. The contemporaneous records generated by the partnership selection procedure demonstrate that Price Waterhouse had legitimate, nondiscriminatory reasons for distinguishing between the plaintiff and the male partners with whom she compares herself.

From past partnership admissions records the plaintiff has identified two male candidates who were criticized for their interpersonal skills because they were perceived as being aggressive, overbearing, abrasive or crude, but were recommended by the Policy Board and elected partner. Price Waterhouse points out that in both cases the Policy Board expressed substantial reservations about the candidates’ interpersonal skills but ultimately made a “business decision” to admit the candidates because they had skills which the firm had a specific, special need and the firm feared that their talents might be lost if they were put on hold. In one case the Policy Board rejected a “hold” recommendation by the Admissions Committee because of business considerations. In addition, these candidates received fewer evaluations from partners recommending that they be denied partnership and the negative comments on these candidates were less intense than those directed at the plaintiff.

The significance of “no” votes and negative comments warrants some further comment. In the course of this trial, Price Waterhouse has been very forthcoming in providing information on its partnership section process. The evidence as a whole indicates that over the years the firm has consistently placed a high premium on candidates’ ability to deal with subordinates and peers on an interpersonal basis and to promote cordial relations within a firm which is necessarily dependent on team effort. Not only are candidates regularly held because of concerns about their interpersonal skills — the Policy Board takes any evaluations recommending denial of partnership or a negative reaction on this basis very seriously. Despite the fact that the negative comments of short form evaluators are often in sharp contrast to the glowing reports of partners who have had extensive contact with the candidate, such comments are treated as serious reservations and given great weight. “No” votes, even from short form commentors who may only have had very limited contact with the candidate, often result in a “no” or “hold” decision.

Thus, while plaintiff argues that her accomplishments in generating business, management and client satisfaction were so far above average that she would have been admitted despite any interpersonal skills problems if Price Waterhouse had honestly balanced all her qualifications, Price Waterhouse responds by pointing out that she received .very few “yes” votes and more “no” votes than all but two of the 88 candidates that year. These no votes and negative comments, largely from partners outside OGS, effectively placed the plaintiff toward the bottom of the candidate pool. Regardless of its wisdom, the firm’s practice of giving “no” votes great weight treated male and female candidates in the same way. “The issue in a case of alleged failure to hire or promote is not the objective superiority or inferiority of the plaintiff’s qualifications, but rather whether the defendant’s selection criteria — be they wise or foolish — are nondiscriminatory.” Mitchell v. Baldrige, 759 F.2d 80, 85 n. 3 (D.C.Cir.1985). The Court finds that the firm’s emphasis on negative comments did not, by itself, result in any discriminatory disparate treatment.

Plaintiff tried to reinforce her claim of disparate treatment with a number of statistics that proved wholly inconclusive. Plaintiff attempted to show that the small number of women partners at Price Water-house indicates discrimination but her proof lacked sufficient data on the number of qualified women available for partnership and failed to take into account that the present pool of partners have been selected over a long span of years during which the pool of available qualified women has changed. Women have only recently entered the accounting and related fields in large numbers and there is evidence that many potential women partners were hired away from Price Waterhouse by clients and rival accounting firms.

Although women partnership candidates have been elected to partnership at a slightly lower rate than men (60% versus 68%), the difference is not statistically significant. The other statistical studies presented by plaintiff only bear an indirect relationship to Price Waterhouse’s practice in partnership selection, and when corrected to examine the appropriate comparisons, lack statistical significance. No conclusion can be drawn from this fragile data.

3. Stereotyping and the Partnership Selection Process.

Plaintiff’s final argument begins with the allegation that the male partners who criticized her interpersonal skills applied a double standard. She claims that she was not evaluated as a manager, but as a woman manager, based on a sexual stereotype that prompts males to regard assertive behavior in women as being more offensive and intolerable than comparable behavior in men because some men do not regard it as appropriate “feminine” behavior.

Plaintiff claims that this type of sexual stereotyping is reflected in comments about her aggressiveness and profanity that indicate she was being evaluated as a woman and not simply as a partnership candidate. One commentor said “she may have overcompensated for being a worn-an.” Another suggested that she needed to take a “course at charm school.” Supporters indicated that her critics judged her harshly due to her sex. One acknowledged “Ann has a clearly different personality,” but “[m]any male partners are worse than Ann (language and tough personality),” and people were only focusing on her profanity “because its a lady using foul language.” Another conceded that she initially came across as “macho” but said, “if you get around the personality thing she’s at the top of the list or way above average.” Another defended her by saying, “she had matured from a tough-talking, somewhat masculine hard-nosed mgr. to an authoritative, formidable, but much more appealing lady partner candidate.” When plaintiff consulted with the head partner at OGS, who was her strongest supporter and responsible for telling her what problems the Policy Board had identified with her candidacy, she was advised to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.

Some comments on other women partnership candidates in prior years support the inference that the partnership evaluation process at Price Waterhouse was affected by sexual stereotyping. Candidates were viewed favorably if partners believed they maintained their feminity while becoming effective professional managers. To be identified as a “women’s liber” was regarded as negative comment. Nothing was done to discourage sexually biased evaluations. One partner repeatedly commented that he could not consider any woman seriously as a partnership candidate and believed that women were not even capable of functioning as senior managers — yet the firm took no action to discourage his comments and recorded his vote in the overall summary of the evaluations. Besides the plaintiff, the Admissions Committee rejected at least two other women candidates because partners believed that they were curt, brusque and abrasive, acted like “ ‘Ma Barker’ ” or tried to be “ ‘one of the boys’.” Comments suggesting that sex stereotypes may have influenced the partners’ evaluations of interpersonal skills were not frequent, but they appear as part of the regular fodder of the partnership evaluations.

Plaintiff presented a well qualified expert, Dr. Susan Fiske, who has done extensive research and study in the field of stereotyping. Dr. Fiske examined the partners comments about the plaintiff and other partnership candidates and gave opinions as to the possible presence of sex stereotyping. Dr. Fiske did not purport to be able to determine whether or not any particular reaction was determined by the operation of sex stereotypes. However, she did identify comments that she believed were influenced by sex stereotypes. Dr. Fiske stated that in her opinion unfavorable comments by male partners, slanted in a negative direction by operation of male stereotyping, were a major factor in the firm’s evaluation of the plaintiff. But she could not pinpoint the degree to which stereotyping had influenced the selection process.

That deep within males and females there exist sexually based reactions to the personal characteristics of one of the opposite sex surely comes as no surprise. It is well documented that men evaluating women in managerial occupations sometimes apply stereotypes which discriminate against women. Indeed, the subtle and unconscious discrimination created by sex stereotyping appears to be a major impediment to Title VIPs goal of ensuring equal employment opportunities. Dr. Fiske testified that situations, like that at Price Waterhouse, in which men evaluate women based on limited contact with the individual in a traditionally male profession and a male working environment foster stereotyping. One common form of stereotyping is that women engaged in assertive behavior are judged more critically because aggressive conduct is viewed as a masculine characteristic.

Establishing a claim of disparate treatment based on subjective evaluations requires proof of discriminatory motive or purpose. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The Court finds that while stereotyping played an undefined role in blocking plaintiffs admission to the partnership in this instance, it was unconscious on the part of the partners who submitted comments. The comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose. A far more subtle process is involved when one who is in a distinct minority may be viewed differently by the majority because the individual deviates from an artificial standardized profile. Even in examining the comments months later at trial, it is impossible to label any particular negative reaction as being motivated by intentional sex stereotyping. Business women who earn a place at the highest ranks of their profession by combining ability with a strong persistent effort to succeed frequently sense antagonism from some male colleagues whose contact with the working female as an equal has been limited. However, considering the infinite variety of work conditions; differences in experience, education and perceptions among individuals in working encounters; as well as the fact that the interactions of personalities of either sex are as complex and inscrutable and as infinite as combinations of genes will produce, it is impossible to accept the view that Congress intended to have courts police every instance where subjective judgment may be tainted by unarticulated, unconscious Congress intended to have courts police every instance where subjective judgment may be tainted by unarticulated, unconscious assumptions related to sex.

But plaintiff takes her argument one step further and stresses that the Price Waterhouse partnership evaluation system permitted negative comments tainted by stereotyping to defeat her candidacy, despite clear indications that the evaluations were tainted by discriminatory stereotyping. All the evaluators were men. The Policy Board gave great weight to the negative views of individuals who had very little contact with the plaintiff. Several of the negative comments allude to the plaintiffs sex and many might be attributed to sex stereotyping. Despite the fact that the comments on women candidates often suggested that the male evaluators may have been influenced by a sex bias, the Policy Board never addressed the problem. The firm never took any steps in its partnership policy statement or in the evaluation forms submitted to partners to articulate a policy against discrimination or to discourage sexual bias. The Admissions Committee never attempted to investigate whether any of the negative comments concerning the plaintiff were based on a discriminatory double standard.

Whenever a promotion system relies on highly subjective evaluations of candidates by individuals or panels dominated by members of a different sex, there is ground for concern that such “high level subjectivity subjects the ultimate promotion decision to the intolerable occurrence of conscious or unconscious prejudice.” Robinson v. Union Carbide Corp., 538 F.2d 652, 662 (5th Cir.1976), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977). Such procedures “must be closely scrutinized because of their capacity for masking unlawful bias.” Davis v. Califano, 613 F.2d 957, 965 (D.C.Cir.1979). This scrutiny comprehends examination of evaluation procedures that permit or give effect to sexual stereotyping. Differential treatment on account of sex, even if it is not obviously based on a characteristic of sex, violates Title VII. McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir.1985). An employer who treats a woman with an assertive personality in a different manner than if she had been a man is guilty of sex discrimination. See Craik v. Minnesota State University Board, 731 F.2d 465, 481-84 (8th Cir.1984); Skelton v. Balzano, 424 F.Supp. 1231, 1235 (D.D.C.1976). A female cannot be excluded from a partnership dominated by males if a sexual bias plays a part in the decision and the employer is aware that such bias played a part in the exclusion decision.

Although the stereotyping by individual partners may have been unconscious on their part, the maintenance of a system that gave weight to such biased criticisms was a conscious act of the partnership as a whole. There is no direct evidence of any determined purpose to maliciously discriminate against women but plaintiff appears to have been a victim of “omissive and subtle” discrimination created by a system that made evaluations based on “outmoded attitudes” determinative. Marimont v. Califano, 464 F.Supp. 1220, 1226 & n. 15 (D.D.C.1979). As noted above, the firm accorded substantial weight to negative comments and recommendations, even if they came from partners who had limited contact with a candidate. The evidence indicates that Price Waterhouse should have been aware that women being evaluated by male partners might well be victims of discriminatory stereotypes. Yet the firm made no efforts to make partners sensitive to the dangers, to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes.

The Court is aware that this case involves applying Title VII to a professional partnership. Partnership consideration was clearly a privilege of plaintiffs employment covered by Title VIL Hishon v. King and Spaulding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Title VII does not bar a partnership from considering subjective evaluations of interpersonal skills as significant criteria in the partnership selection process. Subjective evaluations in high-level, professional jobs have received particular deference in Title VII cases. See Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir.1984); Harris v. Group Health Insurance, 662 F.2d 869, 873 (D.C.Cir.1981); Bartholet, Application of Title VII to Jobs in High Places, 95 Harv.L.Rev. 945, 973-78 (1982); Waintroob, The Developing Law of Equal Employment Opportunity at the White Collar and Professional Level, 21 Wm. & Mary.L.Rev. 45, 48-62 (1979). However, while partnerships must be given freedom to evaluate the qualifications of employees who seek to become partners, they are not free to inject stereotyped assumptions about women into the selection process. Neither a partnership nor any other employer can remain indifferent to indications that its evaluation system is subject to sex bias, as Price Waterhouse did in plaintiffs case. Price Waterhouse’s failure to take the steps necessary to alert partners to the possibility that their judgments may be biased, to discourage stereotyping, and to investigate and discard, where appropriate, comments that suggest a double standard constitutes a violation of Title VII in this instance.

Price Waterhouse had every reason and legal right to come down hard on abrasive conduct in men or women seeking partnership. But “ ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ ” County of Washington v. Gunther; 452 U.S. 161, 180, 101 S.Ct. 2242, 2253, 68 L.Ed.2d 751 (1981), quoting Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13, 98 S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978). This is not a case where “standards were shaped only by neutral professional and technical considerations and not by any stereotypical notions of female roles and images.” Craft v. Metromedia, Inc., 766 F.2d 1205, 38 Fair Empl.Prac.Cas. (BNA) 404, 412 (8th Cir.1985). Discriminatory stereotyping of females was permitted to play a part. Comments influenced by sex stereotypes were made by partners; the firm’s evaluation process gave substantial weight to these comments; and the partnership failed to address the conspicuous problem of stereotyping in partnership evaluations. While these three factors might have been innocent alone, they combined to produce discrimination in the case of this plaintiff. The Court finds that the Policy Board’s decision not to admit the plaintiff to partnership was tainted by discriminatory evaluations that were the direct result of its failure to address the evident problem of sexual stereotyping in partners’ evaluations.

Remedy

Because plaintiff had considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board’s decision had not been tainted by sexually biased evaluations. Even supporters of the plaintiff viewed her style as somewhat offensive and detrimental to her effectiveness as a manager. However, once a plaintiff proves that sex discrimination played a role in an employment decision, the plaintiff is entitled to relief unless the employer has demonstrated by clear and convincing evidence that the decision would have been the same absent discrimination. Williams v. Boorstin, 663 F.2d 109, 117 (D.C.Cir.1980); Day v. Mathews, 530 F.2d 1083, 1085-86 (D.C.Cir.1976). Price Waterhouse has not done so. Where sex discrimination is present, even if a promotion decision is a mixture of legitimate and discriminatory considerations, uncertainties must be resolved against the employer so that the remedial purposes of Title VII will not be thwarted by saddling an individual subject to discrimination with an impossible burden of proof.

However, plaintiff must carry the burden of proof on another issue. She has the burden of proving that she was constructively discharged. If the plaintiff resigned voluntarily, and not because Price Waterhouse made working conditions intolerable and drove her to quit, she is not entitled to an order that she be made a partner. Clark v. Marsh, 665 F.2d 1168, 1172-73 (D.C.Cir.1981). The fact that discrimination has occurred does not, by itself, provide the “aggravating factors” required to prove a constructive discharge. Id. at 173-74. Plaintiff has not shown any history of discrimination, humiliation or other aggravating factors that would have compelled her to resign. She dropped her allegations of harassment and retaliation before trial. Aside from Price Waterhouse’s denial of partnership, plaintiff’s experience at the firm appears to have been quite normal and amicable. The one incident in which a project managed by the plaintiff was unfavorably evaluated appears to have involved a disagreement over the appropriate technical standards rather than an improper effort to pressure plaintiff to resign. Price Waterhouse offered to retain her as an employee and some partners even encouraged her to take this option rather than resign when it appeared unlikely that she would become a partner. Being denied partnership was undoubtedly a professional disappointment and it may have been professionally advantageous for plaintiff to leave the firm when it was unlikely she would not obtain her ultimate goal. Disappointments do not constitute a constructive discharge, however. See Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65-66 (5th Cir.1980); Sparrow v. Piedmont Health Systems Agency, Inc., 593 F.Supp. 1107, 1117-18 (M.D.N.C.1984). Recognizing that in partnerships, as in other employment contexts, “society and the policies underlying Title VII will be best served if, wherever possible, unlawful discrimination is attacked within the context of exiting employment relationships.” 617 F.2d at 66, plaintiff’s failure to show a constructive discharge requires the Court to deny plaintiffs request for an order directing Price Waterhouse to make her a partner.

Because plaintiff has failed to prove a constructive discharge, she is not entitled to any monetary relief for the period subsequent to her resignation. Clark v. Marsh, 665 F.2d at 1172. Nevertheless, plaintiff has satisifed her burden of proving discrimination under Title VII and established the predicate for an award of backpay from the date she would have been elected partner, July 1, 1983, until her voluntary resignation on January 17, 1984. Backpay for these few months, limited to the difference between plaintiff’s compensation as a senior manager during that period and what her compensation would have been if elected to partnership, might have been appropriate if proof had been presented. However, no evidence has been presented on what compensation plaintiff would have received if she had been elected partner. The parties have represented that, without the knowledge or consent of the Court, they agreed to defer resolving the amount of backpay until the issue of liability was resolved. But the parties do not have the authority to structure a trial for their own convenience. Issues can only be separated for a separate trial by order of the Court. Fed.R.Civ.P. 42(b). No such order was ever requested or granted in this case. A party who makes an “unauthorized determination not to go forward on issues that were properly in the case does so at his own peril.” U.S. Industries Inc. v. Blake Construction Co., Inc., 765 F.2d 195, 209-10 (D.C.Cir.1985). Under the circumstances the Court can do no more than recognize plaintiff as the prevailing party on the issue of liability, grant judgment in favor of the plaintiff, and award attorneys fees. No other equitable relief is appropriate on this record.

An appropriate order is entered contemporanenous with the filing of this memorandum.

ORDER

It appearing for reasons set forth in a memorandum filed this day that plaintiff has prevailed on the merits of her claim that denial of partnership in her specific situation was caused, in part, by defendant’s failure to protect against the presence of sex discrimination in evaluations of her qualifications for partnership, but that plaintiff has failed to establish any basis for granting equitable relief in the form of backpay or other relief, it is hereby

ORDERED, that the complaint shall be and hereby is dismissed; and it is further

ORDERED, that plaintiff shall be and hereby is awarded her reasonable attorneys fees plus costs to be set by the clerk; and it is further

ORDERED, that the parties shall attempt to agree on an amount to compensate for such reasonable attorney fees and advise the Court in writing on or before September 30, 1985, whether further proceedings to establish the fee award will be necessary.

      . Plf.Ex. 21.

      . Plf.Ex. No. 19; Tr. 267-68.

      . Tr. 44, 52.

      . Def.Ex. No. 10. 11. 12. 13. 14. 17. 24. 25.

      . Tr. 423, 434.

      . Def.Ex. Nos. 73, 83, 84; Plf.Ex. No. 20. In post-trial briefing, the plaintiff sought to raise two additional examples. The evidence before the Court on these candidates is fragmentary, at best, consisting of comments taken out of context, statistical summaries of their evaluation forms and brief notes. From this limited evidence it appears that these candidates also evoked fewer and less intense negative comments than the plaintiff. The Court finds that the plaintiff has not provided sufficient proof to demonstrate disparate treatment based on these candidates.

      . Plf.Ex. No. 21; Def.Ex. No. 30, 31; Tr. 321.

      . Tr. 102, 316.

      . Def.Ex. No. 63.

      . See, e.g. Ruble, Cohen and Ruble, Sex Stereotypes: Occupational Barriers for Women, 27 Amer.Behav.Sc. 339 (1984) (surveying literature); R.M. KANTER, MEN AND WOMEN OF THE CORPORATION 206-42 (1977) (reporting results of study); Rosen and Jerdee, Perceived Sex Differences in Managerial Relevant Characteristics, 4 Sex Roles 837 (1978) (same); Rosen and Jerdee, Influence of Sex Role Stereotypes on Personnel Decisions, 59 J.Appl.Psych. 9 (1974) (same); Schein, The Relationship Between Sex Role Stereotypes and Requisite Management Characteristics, 57 J.App.Psych. 95 (1973) (same).

      . See Taub, Keeping Women in Their Place: Stereotyping Per Se As A Form of Employment Discrimination, 21 B.C.L.Rev. 345, 349-61 (1980).

      . See, e.g. Wiley and Eskilson, Coping in the Corporation, Sex Role Constraints, 12 J.App.Soc. Psych. 1, 8 (1982); Prather, Why Can't Women Be More Like Men: A Summary of the Sociopsychological Factors Hindering Women’s Advancement in the Professions, 15 Am.Beh.Sc. 172 (1971).

      . Price Waterhouse submitted evidence to show it had promulgated a general policy of equal employment opportunities in employment for all minorities. Def.Ex. Nos. 88, 89. However, the exhibits before the Court only reflect a policy statement issued sometime in 1983. More importantly, the statement is directed generally at staff employment. It is not clear whether it applies to the partnership selection process at all and it does not address any special concerns with discrimination against women in an overwhelmingly male partnership.

      . Def.Ex. No. 23; Tr. 280-81; Connor Dep. at 103.

      . Common sense is confirmed by the literature on the problem of sex stereotyping which suggests that making evaluators aware of the risk of biased evaluations and inquiring as to whether generalizations are supported by concrete incidents can be effective in eliminating or minimizing stereotyping. See Taub, supra note 7, at 3600, 395-97; Wiley and Eskilson, supra note 8, at 9.

      . There is currently a split among the circuits as to whether a subjective evaluation process may be challenged based on disparate impact and disparate treatment theories or may only be challenged on disparate treatment theory. Compare Pouncy v. Prudential Insurance Company of America, 668 F.2d 795, 799-801 (5th Cir.1982) (discriminatory impact model inappropriate for challenging subjective evaluation procedures) with Griffin v. Carlin, 755 F.2d 1516, 1522-25 (11th Cir.1985) (both models may be used to challenge subjective evaluations); Segar v. Smith, 738 F.2d 1249, 1288 n. 34 (D.C.Cir.1984) (disparate impact applied to evaluation process with some subjective elements). We need not become involved in this dispute. Plaintiff cannot show the substantial statistical disparity ordinarily required to show that a subjective evaluation process produces a discriminatory disparate impact. See Yartzoff v. State of Oregon, 745 F.2d 557 (9th Cir.1984). This decision is based on disparate treatment where the employer maintained a subjective evaluation process which, based on the proof presented in the comments on the plaintiff, resulted in plaintiff's evaluation being tainted by a discriminatory bias.

      . Tr. 112.


source: Caselaw Access Project

author: SWEET, District Judge.

license: Public Domain

text:
    Reginald D. STAMPS-BEY, Plaintiff, v. Dale THOMAS, Warden; Leonard W. Graves, Associate Warden; W. Stephen Harmison, Unit Manager; John Sanders, Unit Counselor, Defendants.
    No. 83 Civ. 1220 (RWS).
    United States District Court, S.D. New York.
    Sept. 20, 1985.

      John P. Cooney, Jr., George B. New-house, Jr. and Felicia A. Mennin, New York City, for plaintiff.
    Rudolph W. Giuliani, U.S. Atty. for Southern Dist. of New York, New York City (Robert W. Gaffry, Asst. U.S. Atty., New York City, of counsel), for defendants.
   OPINION

SWEET, District Judge.

Defendants Dale Thomas (“Thomas”), Leonard W. Graves (“Graves”), W. Stephen Harrison (“Harrison”) and John Sanders (“Sanders”), officials at the Metropolitan Correctional Center (“MCC”) in New York, have moved pursuant to Fed.R.Civ.P. 12(b)(6) and 56 for an order dismissing the amended complaint of plaintiff Reginald D. Stamps-Bey (“Stamps-Bey”) for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment. Stamps-Bey has cross-moved for partial summary judgment. Stamps-Bey’s motion is denied and the defendants’ motion for summary judgment is granted.

Facts

Stamps-Bey was sentenced on September 27, 1978 in Superior Court for the District of Columbia to an indeterminate term of ten years under § 5015(c) of the Youth Corrections Act, 18 U.S.C. §§ 5005-5017, repealed, Pub.L. 98-473, Title II, § 218(a)(8), 98 Stat. 2027, effective October 12, 1984 (“YCA”), for assault with intent to commit armed robbery. From February 1, 1982 until December 27, 1982, Stamps-Bey was incarcerated at the Federal Correctional Institution, Petersburg, Virginia (“FCI Petersburg”), which had been designated as the most secure of the All-Youth Corrections Act facilities. From May 23, 1982 to December 27, 1982 as a consequence of misconduct Stamps-Bey was held in FCI Petersburg’s disciplinary segregation unit. Because of Stamps-Bey’s alleged involvement in various disruptive incidents while at FCI Petersburg, the warden of FCI Petersburg had requested authorization from the Bureau of Prisons to remove Stamps-Bey from the YCA program. In November of 1982 the Bureau of Prisons applied to the Washington, D.C. Superior Court Judge who had sentenced Stamps-Bey for a “no further benefit” ruling which would have allowed his removal from the YCA program and his placement in a non-YCA facility.

On December 25, 1982 a major disturbance took place at the FCI Petersburg resulting in a fatality. Because of the numbers of inmates involved, the Special Housing unit capacity of FCI Petersburg’s disciplinary segregation unit was exceeded by the numbers of inmates to be held in administrative detention. This emergency condition required the transfer of Stamps-Bey and approximately twenty other YCA inmates from FCI Petersburg’s disciplinary segregation unit (the “YCA inmates”) to the MCC in New York. These inmates were considered to require a higher level of security than could be provided in other YCA facilities. The delegated authority to transfer the inmates was exercised by Z. Stephen Grzegorek, Regional Director, Northeast Region of the Bureau of Prisons (“Grzegorek”), who “in conjunction with others in the Bureau of Prions, determined that the best alternative would be to send inmate Stamps Bey and the others to the MCC, N.Y.”, (Grzegorek Affidavit, ÍI9), a determination that was accomplished on December 27, 1982. While at the MCC, the YCA inmates were placed in a separate wing in the administrative detention area. On January 4, 1983 Associate Warden Graves of the MCC, issued a memorandum (the “Graves Memorandum”) attached hereto as Appendix A, subsequently approved by Warden Thomas setting forth the conditions of confinement for the YCA inmates at the MCC.

According to this record, Thomas and his subordinates had no authority to transfer Stamps-Bey or to assign him to another institution, a power exercised elsewhere in the Bureau of Prisons. Thomas and the remaining defendants were responsible for the treatment accorded Stamps-Bey while at the MCC in what Thomas believed to be an emergency status.

In February of 1983 all of the YCA inmates except Stamps-Bey were returned to FCI Petersburg. Stamps-Bey was kept at the MCC pending a ruling on his status as a YCA inmate, the Superior Court not having yet ruled on the application by the Bureau. According to Grzegorek, Stamps-Bey was not returned to FCI Petersburg while the Bureau of Prisons awaited the Judge’s decision “because of his extremely disruptive background.” (Grzegorek Affidavit If 11).

On January 25, 1983 Stamps-Bey filed a petition for habeas relief with this court, challenging certain conditions of his confinement at the MCC. In particular, he alleged that he was restricted from getting exercise, attending religious services, and using the prison law library, and challenged his segregation from other prisoners. This court treated Stamps-Bey’s petition as a motion for preliminary injunction which was denied in an opinion dated February 18, 1983 on the grounds that his segregation was not “impractical” under the YCA and that his other complaints did not rise to the level of constitutional violations. The habeas corpus petition was dismissed on April 8, 1983 following the government’s representation that Stamps-Bey would shortly be transferred back to FCI Petersburg. Stamps-Bey was returned to FCI Petersburg on April 15, 1983.

Stamps-Bey filed his first complaint in this action on February 16, 1983, seeking injunctive relief and money damages from defendants Thomas and Graves for various restrictions placed on him at the MCC, in particular, the denial of visits with his common-law wife, Christine Bethea (“Bethea”) and others and the denial of access to the law library, paper and typewriters. In an opinion dated October 19, 1983, this court granted the defendants’ motion to dismiss for failure to state a claim and for summary judgment, holding that the restrictions did not violate his constitutional rights. However, the opinion left open the question whether a “lack of treatment” under the YCA stated a constitutional claim against the defendants. The parties were directed to brief the issue, and counsel was appointed for Stamps-Bey.

On October 2, 1984 an amended complaint was filed in lieu of a briefing of the treatment issue. In the amended complaint, which added two defendants, Harrison, Unit Manager at MCC and Sanders, Unit Counselor at MCC, Stamps-Bey claimed that Sanders and Harrison denied him access to religious and psychological counselling, reading materials, educational opportunities, and visits from family members. In addition, he alleges that he was held in “solitary confinement” for four months and that he was not allowed to socialize or congregate with an alleged group of YCA inmates. As to Thomas and Graves, he alleges that the procedures implemented in the Graves’ memorandum were violative of the YCA and his constitutional rights.

Discussion

In their motion to dismiss or in the alternative for summary judgment, the defendants contend that they are immune from liability under either the qualified immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) or in the alternative on the grounds that the acts which they are alleged to have committed were committed in the course of their official duties and did not rise to the level of constitutional violations. In response, Stamps-Bey contests the assertions of immunity and asserts that he is entitled to partial summary judgment on his claim that the defendants’ deliberate disregard of the treatment mandate of the YCA constitutes a violation of his constitutional rights.

In the amended complaint, Stamps-Bey delineates numerous acts on the part of the defendants which he contends constitute violations of his constitutional rights. The crux of his complaint, however, is his allegation that he is entitled to relief for the alleged deprivation of his right to treatment and rehabilitation under the YCA, which provides that YCA inmates “shall undergo treatment” and insofar as practical “shall be segregated according to their needs” for such treatment. 18 U.S.C. § 5011. The Third Circuit has convincingly held that this language creates a legitimate expectation or right that rises to the level of a liberty interest protectible under the due process clause and enforceable through an action for damages. Micklus v. Carlson, 632 F.2d 227, 237-39 (3d Cir.1980). Despite the defendants’ attempt to distinguish Micklus as addressing only the segregation aspect of the YCA, Stamps-Bey’s allegation that the defendants deprived him of treatment under the YCA states a cognizable claim under the Fifth Amendment.

However, even if Stamps-Bey’s claim under the YCA is of constitutional stature, the defendants urge that they are protected by the doctrine of qualified immunity. The liability of a government official for claims arising under the Constitution has been sharply curtailed by the Supreme Court. In Harlow v. Fitzgerald, supra, the Court reformulated the doctrine of qualified immunity by establishing an objective standard against which to measure the actions of a federal official accused of constitutional torts. As noted in the October 19, 1983 opinion, prior to Harlow, government officials were entitled to qualified immunity from such claims only upon a showing of a subjective good faith belief in the legality of their actions, a standard that often permitted insubstantial claims to proceed to trial. See, e.g., Wood v. Strickland, 420 U.S. 308, 321-22, 95 S.Ct. 992, 1000-01, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). Recognizing that the benefits of a remedy for the vindication of constitutional guarantees may be significantly counterbalanced by the social costs of allowing non-meritorious claims to proceed to trial, the Court in Harlow excluded the subjective element of the defense in order to “avoid excessive disruption of government and permit the resolution of many insubstantial claims or summary judgment.” 457 U.S. at 817, 102 S.Ct. at 2737-38. The Court held that:

government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Id. at 817-18, 102 S.Ct. at 2737-38. Under the holding of Harlow, a government official’s immunity from liability depends on the objective reasonableness of his conduct as measured by reference to clearly established law. In order to resolve the question of the defendants’ immunity from liability, the issue of what the applicable law was at the time of the occurrences, and the degree to which it was settled, must first be determined.

The YCA was enacted in 1950 in order to provide an effective method of rehabilitating youths convicted in federal courts. The intent of the YCA was to substitute rehabilitative treatment for retribution as a sentencing goal. Caballery v. US Parole Commission, 673 F.2d 43, 45 (2d Cir.1982). The Act conferred special benefits such as evaluation, treatments and review on the YCA offender and at the same time imposed additional burdens in the form of indeterminate, and often longer sentences. Treatment is defined as “corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders.” 18 U.S.C. § 5006(g).

Section 5011 of the Act provides:

Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, hospitals, farms, forestry and other camps, and other agencies that will provide the essential varieties of treatment. The Director shall from time to time designate, set aside, and adapt institutions and agencies under the control of the Department of Justice for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.

18 U.S.C. § 5011. The requirement of segregation is an essential element of the YCA. In Watts v. Hadden, 651 F.2d 1354 (10th Cir.), reh. denied, 686 F.2d 841 (1981), the Tenth Circuit invalidated the prior Bureau of Prisons program allowing for the housing of some YCA inmates at non-YCA institutions, and held that “the YCA requires the Bureau of Prisons to establish complete segregation of youth offenders from other offenders as the norm.” 651 F.2d at 1366. In response, the Bureau of Prisons established new regulations for the treatment of YCA offenders which provided for the establishment of “all YCA institutions” and the development of an individualized treatment program for each YCA inmate. 28 CFR § 524.20-30; Federal Bureau of Prison Program Statement No. 5215.3, July 13, 1982 (“Program Statement”).

Neither the Act nor the regulations authorize Bureau officials or employees to remove YCA status from an individual, Ralston v. Robinson, 454 U.S. 201, 213, 102 S.Ct. 233, 241-42, 70 L.Ed.2d 345 (1981), cert. denied, 455 U.S. 929, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982); Micklus v. Carlson, supra, and a YCA inmate may only be removed from the program upon receipt of a judicial “no benefit” ruling from the sentencing judge. See King v. Kenney, 671 F.2d 1053, 1055 (7th Cir.1982). However, the Act does empower the Director of the Bureau of Prisons to transfer a youth offender from one institution to another. 18 U.S.C. § 5015(b). The regulations implementing this section provide in pertinent part that:

A YCA inmate may be considered for transfer to a non-YCA setting under the following conditions:
‡ ‡ # sH %
(d) A YCA inmate may be confined temporarily in a non-YCA setting on “holdover” status (en route to another institution). The YCA inmate who is confined temporarily on “holdover” status is to be physically separated from non-YCA inmates.
(e) A YCA inmate, upon approval of the Director, Bureau of Prisons, may be confined in a non-YCA setting for other compelling reasons.

28 CFR 524.30. The Program Statement setting forth Bureau policy and rules applicable to all YCA inmates provides that:

(approval of the Assistant Director, Correction Programs Division is required for a YCA inmate'on “holdover” status to be housed in any non-YCA setting over 30 days. Approval of the Director, Bureau of Prisons’ is required for a YCA inmate on “holdover” status to be housed in any non-YCA setting over 60 days.

Program statement at 14.

The issue of the degree of treatment under the YCA which must be accorded YCA inmates temporarily confined to a non-YCA institution is apparently one of first impression. Although the Warden of a YCA institution is plainly obligated to provide treatment in accordance with the YCA to a YCA inmate confined to that institution, even if the YCA inmate is in administrative detention, see Johnson v. Rodgers, 756 F.2d 79 (10th Cir.1985); see also Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), the Regulations appear to assume that all treatment will be provided in YCA institutions and were directed only towards Wardens at YCA institutions. The only Regulation directly pertaining to non-YCA institutions is 28 CFR 524.30(d), which requires that a YCA inmate confined in a non-YCA setting on “holdover” status must be physically segregated from non-YCA inmates. In addition, although the YCA affirmatively mandates treatment to all YCA offenders, neither the YCA nor the Regulations specifically address the question of the manner in which that obligation must continue to be fulfilled at those times during which a YCA inmate is temporarily placed in a non-YCA institution as a holdover or on an emergency basis. There is no specific indication as to the amount of treatment a YCA inmate in a non-YCA setting should receive or the amount of time during which a YCA inmate could properly go without any treatment, nor is there any indication as to who should bear the burden of ensuring that YCA inmates held in a non-YCA institution receive treatment.

The general issue of the right to treatment of temporarily placed YCA inmates, however, need not be addressed because this case presents only the more narrow issue of the objective reasonableness, when measured against settled law, of the alleged failure of these particular defendants to provide such treatment. In light of the applicable regulations and guidelines, the defendants’ conduct was reasonable. Given that the one regulation specifically pertaining to YCA inmates at non-YCA institutions makes reference only to segregation and not treatment, a conclusion that the Warden at a non-YCA institution had no obligation to provide treatment during the temporary confinement of the YCA inmates, whether as holdovers or not, is not unreasonable. Even though the defendants may be charged with the knowledge that the YCA requires that all YCA inmates receive treatment, in light of the Regulations they need not be charged with an understanding that this requirement carries over to all situations at all times. In choosing to segregate Stamps-Bey from all MCC inmates and to provide him with allegedly limited treatment, the defendants acted reasonably in light of existing law and thus are immune from liability for any failure of Stamps-Bey to receive treatment while at the MCC.

This conclusion is not altered by the possibility that Stamps-Bey may have been confined at the MCC in violation of the Bureau of Prison regulations quoted above. Although it appears that given the emergency situation at FCI Petersburg, Stamps-Bey could legitimately have been transferred to the MCC in accordance with 28 C.F.R. 524.30(e), which permits the transfer of a YCA inmate to a non-YCA setting for “compelling reasons” upon approval of the Director, Bureau of Prisons, the record does not establish whether the transfer was conceived to be under § 524.30(b) or whether the Director’s approval was sought or obtained. From the affidavit of Grzegorek it could be concluded that the Bureau chose to classify Stamps-Bey as a holdover under 28 C.F.R. 524.30(d). However, § 524.30(d) specifically defines a YCA inmate on holdover status as one “en route to another institution”. The designation process has not been described in this record, nor has any documentation been supplied with respect to it. Even if Stamps-Bey did qualify as a holdover initially, the record does not establish whether the Bureau of Prisons followed the requirements set out in the Program Statement for obtaining approval in order to keep a YCA inmate on holdover status for more than thirty days.

However, whether Stamps-Bey was legitimately placed at the MCC as a holdover or at some point no longer had holdover status, the obligation of the defendants to provide him with treatment is not altered. Stamps-Bey contends that as the officers charged with responsibility for enforcing the law pertaining to prisoners incarcerated at the MCC, the defendants had the obligation to recognize that Stamps-Bey’s confinement at the MCC was not in accordance with Bureau of Prison regulations and thus to treat him as a YCA inmate rather than a holdover inmate. However, the law pertaining to the obligations of officials at non-YCA institutions to provide treatment had not been developed, and at the time of the decisions' giving rise to this case, and perhaps even today, was far from clear. It was not unreasonable for the defendants to look to the law pertaining to holdovers for guidance as to the manner in which to treat Stamps-Bey, even if he were determined to be inappropriately classified as a holdover. Because the defendants had no authority over Stamps-Bey’s placement within the prison system, they cannot be held accountable for violations arising from his transfer from PCI Petersburg, a YCA facility. Their only responsibility lay in the treatment accorded Stamps-Bey while confined at MCC, and as noted above, the manner in which they provided him with treatment was not unreasonable in light of the existing regulations.

The conclusion that these defendants acted reasonably in light of their situation and the existing regulations in denying Stamps-Bey YCA treatment does not necessarily imply any further conclusion that the Bureau acted reasonably, or otherwise, in the initial or continued assignment of Stamps-Bey to the MCC. In the present case, however, Stamps-Bey has chosen to complain against the MCC officials and that complaint will be dismissed for the reasons stated.

In addition to charging the defendants with violating Stamps-Bey’s constitutional rights by depriving him of treatment under the YCA, the amended complaint also stated a claim under the due process clause for the wrongful administrative detention of Stamps-Bey without a hearing and in violation of Bureau of Prison regulations. As noted above, Stamps-Bey has failed to show that the defendants have any responsibility for Stamps-Bey’s placement within the prison system in general. As to his placement in administrative detention within the MCC, the decision to place him in administrative detention has just been declared reasonable for the reasons stated. Stamps-Bey also contends that the defendants violated the appropriate procedures as to administration detention. 28 C.F.R. § 541.22(d) prescribed “Conditions of Administrative Detention” and provided in part:

If consistent with available resources and the security needs of the unit, the Warden shall give an inmate housed in administrative detention the same general privileges given to inmates in the general population. This includes, but is not limited to, providing an inmate with the opportunity for participation in an education program, library services, social services, counseling, religious guidance and recreation.

Stamps-Bey contends that he was not afforded any of these privileges and that the defendants’ failure to comply with their own regulations represents a constitutional violation.

However, the record reveals that he received the benefit of the defendants’ interpretation of their obligations under the YCA, an interpretation expressed in the Graves’ memorandum. For the reasons already stated, the measures outlined in the Graves’ memorandum and Stamps-Bey’s subsequent treatment do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, supra. This same reasoning is equally applicable to Stamps-Bey’s claim that he was denied access to religious counseling by a member of his faith in violation of his First Amendment rights. Given the unusual circumstances with which the defendants were confronted, the defendants’ manner of dealing with Stamps-Bey, as evidenced by the Graves Memorandum, was a reasonable response.

For the reasons discussed above, the defendants’ motion for summary judgment is granted and the case will be dismissed in its entirety.

IT IS SO ORDERED.

APPENDIX A

DATE: January 4, 1982

REPLY TO: L. Graves, Associate Warden (Program)

ATT OP:

SUBJECT: YCA Holdovers — 9 North TO: All Concerned

The following revised procedures will be implemented immediately and will remain in effect until further notice:

STAFFING: A Special Unit Officer will be assigned to 9 North during day and evening watches, in addition to regular Unit Officer coverage. This officer will be stationed on E and F range and will be responsible for supervision of this group of inmates. This officer will shower, recreate and feed this group.

SEPARATION: These inmates, as YCA’s, are to have no contact with other inmates. Whenever moving into or out of the Unit, the entire Unit will be locked down.

RECREATION: Roof recreation is authorized. Inmates will be taken to the roof by the Special Unit Officer during the morning hours, 7 days a week. No more than 16 inmates will be allowed on the roof at one time. Each recreation period shall be 1 hour in length.

FEEDING: This group will receive their meals in their cells, prior to the feeding of the rest of the Unit. One Food Service staff member will assist the Special Unit Officer in preparation and distribution of these meals. NO INMATES will be utilized in preparation of these meals in the Unit.

CLOTHING EXCHANGE: Each Tuesday and Friday the Clothing Room Officer will make a clothing exchange including, jumpsuits, underwear, socks, sheets, and towels for these inmates. (Weeks 1 and 3 of Month — Monday/Thursday).

LAW LIBRARY: Use of law library materials shall be at the request of the inmate by “copout” to the Education Supervisor, describing the materials needed. Materials shall then be delivered in a timely fashion to the inmate by the Education Department.

GENERAL READING MATERIAL: The Education Department will, each Monday and Thursday, provide for book exchange on a one for one basis, of up to two books for each of these inmates. Each inmate will be allowed to possess up to 4 books at any time.

SHOWERS: Each inmate will be offered a daily shower between the hours of 8:00 a.m. and 4:00 p.m. The Special Unit Officer shall be responsible for scheduling and supervision.

VISITING: This group of inmates will be allowed visits from 5:30 p.m. to 8:30 p.m. on Monday, Thursday and Saturday. A special Visiting Officer will be assigned, and visits will take place in the 9 North Visiting Room. Visiting will be limited to immediate family and other visitors on approved visiting lists. Unit Team shall prepare a list of approved visitors for each of these inmates, a copy of which shall be maintained in the Lobby, 9 North Visiting Room, Unit Team Office, and Central File. Approval of non-family visitors may require submission of a written request from the inmate and appropriate investigation of the proposed visitor.

CORRESPONDEN CE: Regular correspondence privileges will be permitted. Each inmate will receive 3 free stamps per week from the Unit Team.

MEDICAL SERVICES: A Physician’s assistant will see each inmate in this group daily, will advise each of his presence, and of the availability of medical services should the inmate desire such services.

RELIGIOUS SERVICES: The institution Chaplain shall visit each of these inmates at least twice weekly, shall provide religious materials, and shall provide individual religious counseling. Congregate services for this group shall not be authorized.

DOCUMENTATION: A special Housing Unit Record Form, Form BP-IS-IIT shall be maintained by the Special Unit Officer for each inmate in this group. These records shall be reviewed each shift by the Shift Lieutenant and daily by the Unit Manager. Any questions regarding these procedures, or other matters involving these inmates should be directed to the Unit Manager.


author: STANLEY S. HARRIS, District Judge.

text:
    ASSOCIATION OF RETIRED RAILROAD WORKERS, Plaintiff, v. UNITED STATES RAILROAD RETIREMENT BOARD, et al., Defendants.
    Civ. A. No. 84-3258.
    United States District Court, District of Columbia.
    Sept. 20, 1985.
    John Hardin Young, Washington, D.C., for plaintiff.
    Thomas J. McIntyre, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case is before the Court on cross-motions for summary judgment. The plaintiff Association of Retired Railroad Workers seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, the names and addresses of all persons who have retired or will retire from the railroad industry. The defendants, the United States Railroad Retirement Board, its three members, and two of its officials, have declined to disclose such information, asserting that it is exempt from disclosure under 5 U.S.C. § 552(b)(3) and (b)(6).

Information sought pursuant to the FOIA must be made available unless it can be shown by the agency withholding the information to fall within any of nine exceptions. Lykins v. United States Department of Justice, 725 F.2d 1455, 1456 (D.C.Cir.1984). In refusing to provide the plaintiff with the requested information, defendants rely, inter alia, on 5 U.S.C. § 552(b)(3), which reads:

[The FOIA] does not apply to matters that are—

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

Section 12(d) of the Railroad Unemployment Insurance Act, 45 U.S.C. § 362(d) (1976, Supp. VIII), is the statute which forms the basis for the defendants’ invocation of exemption 3. It states, in pertinent part:

Information as confidential
(d) Information obtained by the Board in connection with the administration of this chapter shall not be revealed or open to inspection nor be published in any manner revealing an employee’s identity: Provided, however, That ... (ii) the Board may disclose such information in cases in which the Board finds that such disclosure is clearly in furtherance of the interest of the employee or his estate;
s{c * * sjs

When an agency claims an exemption under 5 U.S.C. § 552(b)(3), it is the Court’s duty to determine, first, whether the statute upon which the exemption 3 claim is founded actually fits within the guidelines set forth in that section, and second, whether the information sought after falls within the boundaries of the nondisclosure statute. Irons & Sears v. Dann, 606 F.2d 1215 (D.C.Cir.1979).

The Court concludes that the information sought by the plaintiff falls squarely within § 12(d). The information requested of the defendants would “reveal[] an employee’s identity.” Release of this type of information is proscribed by this section.

It is obvious that § 12(d) does not satisfy exemption (3)(A). However, it is equally obvious that it “refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(B). Of the plethora of information collected and stored by the Board, § 12(d) limits only the publication or release of information which would reveal employees’ identities. This is sufficient to bring § 12(d) within the (3)(B) exemption. The requirements of this exemption are stated in the disjunctive, and, if either prong is satisfied, the statute precluding disclosure applies. Irons & Sears v. Dann, supra, at 1220. The fact that the exempting statute, § 12(d), gives the Board discretionary authority to release information upon finding “disclosure [to be] clearly in furtherance of the interest of the employee” does not prevent this statute from fitting within exemption (3)(B). Id.

For the foregoing reasons, the Court finds that 45 U.S.C. § 362(d) falls within the ambit of the exemption set forth in 5 U.S.C. § 552(b)(3)(B), and that defendants’ refusal to release the requested information was justified. The Court concludes that there is no genuine issue as to any material fact, and that the defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Accordingly, it hereby is

ORDERED, that plaintiffs motion for summary judgment is denied and the defendants’ motion for summary judgment is granted.

SO ORDERED.

      . That statute is incorporated by reference in the Railroad Retirement Act by § 7(b)(3) of that Act, 45 U.S.C. § 23 If(b)(3).

      . Having reached that conclusion, it is unnecessary to discuss the parties’ contentions with respect to the personal privacy exemption set forth in 5 U.S.C. § 552(b)(6).