extra credit

DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986)

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Page 304

807 F.2d 304 42 Fair Empl.Prac.Cas. 921,

42 Empl. Prac. Dec. P 36,785, 55 USLW

2348 Anthony J. DeCINTIO, Peter A. Piazza,

Michael A. Garayua,

Jose P. Gomes, Angel A. Garayua,

Winston P. David

and Daniel A. Samuels, Plaintiffs-

Appellees,

v.

WESTCHESTER COUNTY MEDICAL

CENTER; County of Westchester,

Defendants- Appellants. No. 161, Docket 86-7522.

United States Court of Appeals,

Second Circuit. Argued Sept. 15, 1986.

Decided Dec. 15, 1986.

Page 305

Anne Golden, White Plains, N.Y.

(Silverman & Sapir, White Plains, N.Y.,

Donald L. Sapir, White Plains, N.Y., of

counsel) for plaintiffs-appellees.

Colleen Lundwall Kellman, Asst. County

Atty., White Plains, N.Y. (Kenneth E. Powell,

Deputy County Atty., Henry J. Logan,

Westchester County Atty., White Plains, N.Y.,

of counsel), for defendants-appellants.

Before OAKES, MINER and MAHONEY,

Circuit Judges.

MINER, Circuit Judge:

Appellees Anthony J. DeCintio, Peter A.

Piazza, Michael A. Garayua, Jose P. Gomes,

Angel A. Garayua, Winston P. David and

Daniel A. Samuels, seven male respiratory

therapists employed by appellant Westchester

County Medical Center ("WCMC"), brought

suit in the United States District Court for the

Southern District of New York (Brieant, J.),

alleging that WCMC and appellant

Westchester County had discriminated

against them on the basis of sex in violation of

Title VII of the Civil Rights Act of 1964, 42

U.S.C. Sec. 2000e-2 (1982), and the Equal

Pay Act, 29 U.S.C. Sec. 206(d)(1) (1982). The

gravamen of their complaint was that they

had been unfairly disqualified from

promotion to the position of Assistant Chief

Respiratory Therapist. They alleged that

when the Program Administrator of the

Respiratory Therapy Department, James

Ryan, initiated the suggestion that

registration by the National Board of

Respiratory Therapists ("NBRT") be required

of all applicants for the Assistant Chief

position, he did so in order to disqualify them

and to enable him to hire Jean Guagenti, a

woman with whom he was engaged in a

romantic relationship. The district court held

that the provisions of both Title VII and the

Equal Pay Act were violated and awarded

damages to appellees and legal fees to their

attorneys. We reverse.

I. BACKGROUND

In April 1982, WCMC opened a regional

Neonatal Intensive Care Unit ("Neonatal

ICU") for the treatment of critically ill

newborns. The unit was staffed under the

direction of Dr. Harry Dweck, who was also

Chief of the Division of Neonatal Perinatal

Medicine at New York Medical School. The

staff consisted of nurses, therapists and lab

technicians. WCMC decided to supplement

the staff of the Neonatal ICU by adding a

respiratory therapist with supervisory

responsibilities, at a higher salary than other

staff respiratory therapists. To that end,

WCMC announced the creation of a position

for an additional "Assistant Chief of

Respiratory Therapy," to be assigned to the

Neonatal ICU. Specifications for the position

included a "special requirement" that the

applicant be registered with the NBRT. 1

Registration by the NBRT previously had not

been a requirement for the Assistant Chief

position, nor was it required of the head of

the Respiratory Therapy Department.

DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986)

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None of the appellees, all of whom were

male staff respiratory therapists at WCMC,

was registered by the NBRT. Consequently,

none was qualified to apply for the position.

On April 26, 1982, Jean Guagenti, a female

respiratory therapist registered by the NBRT,

was hired for the new position by the

Westchester County Commissioner of

Hospitals. The express recommendation of

Ryan, the Program Administrator of the

Respiratory Therapy Department, brought

about her employment. Guagenti formerly

had been employed at WCMC as a staff

respiratory therapist until January 1982,

when she left WCMC for a position at

Danbury Hospital. After her return in April

1982, she worked in the Neonatal ICU until

October 1982, when she was reassigned to

another department. She resigned from

WCMC on August 14, 1983.

Page 306

On May 17, 1982, appellee Anthony

DeCintio filed a complaint with the Equal

Employment Opportunity Commission

("EEOC"), charging Westchester County with

sex discrimination arising from the hiring of

Guagenti for the Assistant Chief Respiratory

Therapist position. He alleged, inter alia, that

the registration requirement was created in

order to exclude him from consideration for

the position and that the position specifically

was created for Guagenti. The EEOC referred

the complaint to the New York State Division

on Human Rights ("State Division") for

review of the merits of the case. On March 24,

1983, the other six appellees filed similar

complaints with the State Division. The State

Division's investigation resulted in dismissal

of the complaint, based on a lack of credible

evidence that the certification requirement

was pretextual. The EEOC adopted this

finding.

After the appropriate review of the

administrative determinations, appellees

brought this action in the district court,

alleging violations of Title VII and the Equal

Pay Act. After a two-day trial, the district

court determined that: 1) "[p]ersons other

than" Ryan concluded that a respiratory

therapist was needed in the Neonatal ICU; 2)

Ryan initiated the creation of a second

Assistant Chief position; 3) Ryan initiated the

addition of a registration requirement for that

position; 4) the new requirement was "a

pretext and a part of a scheme or plan" on

Ryan's part to obtain the position for

Guagenti; 5) Ryan and Guagenti had been

engaged in an ongoing, consensual, romantic

relationship at the time Guagenti was hired to

be an Assistant Chief at WCMC; and 6)

appellants paid Guagenti more than appellees

for equal work when the performance of their

respective jobs required substantially equal

skill, effort, or responsibilities performed

under similar working conditions. Based on

these findings, the district court held that

appellants had violated the Equal Pay Act, 29

U.S.C. Sec. 206(d), and Title VII, 42 U.S.C.

Sec. 2000e. The court awarded damages and

attorney's fees to each appellee. This appeal

followed.

II. DISCUSSION

The dispositive issue in this action is

whether, under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Sec. 2000e (1982), the

phrase "discrimination on the basis of sex"

encompasses disparate treatment premised

not on one's gender, but rather on a romantic

relationship between an employer and a

person preferentially hired. The meaning of

"sex," for Title VII purposes, thereby would be

expanded to include "sexual liaisons" and

"sexual attractions." Such an overbroad

definition is wholly unwarranted.

Title VII of the Civil Rights Act of 1964

prohibits discrimination in employment

"against any individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or

national origin." 42 U.S.C. Sec. 2000e-

2(a)(1). As the Supreme Court noted in

DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986)

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Meritor Savings Bank, FSB v. Vinson, --- U.S.

----, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986),

because the word "sex" was added to Title VII

shortly before passage, "we are left with little

legislative history to guide us in interpreting

the Act's prohibition against discrimination

based on 'sex.' " Id. at ----, 106 S.Ct. at 2404.

However, the other categories afforded

protection under Title VII refer to a person's

status as a member of a particular race, color,

religion or nationality. "Sex," when read in

this context, logically could only refer to

membership in a class delineated by gender,

rather than sexual activity regardless of

gender. As the Supreme Court noted in Trans

World Airlines v. Hardison, 432 U.S. 63, 97

S.Ct. 2264, 53 L.Ed.2d 113 (1977), "[t]he

emphasis of both the language and the

legislative history of [Title VII] is on

eliminating discrimination in employment;

similarly situated employees are not to be

treated differently solely because they differ

with respect to race, color, religion, sex, or

national origin." Id. at 71, 97 S.Ct. at 2270

(emphasis added). The proscribed

differentiation under Title VII, therefore,

must be

Page 307

a distinction based on a person's sex, not on

his or her sexual affiliations. See 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) (quoting Sprogis v.

United Air Lines, 444 F.2d 1194, 1198 (7th

Cir.) (Title VII was intended to "strike at the

entire spectrum of disparate treatment of

men and women"), cert. denied, 404 U.S. 991,

92 S.Ct. 536, 30 L.Ed.2d 543 (1971)); see also

Meritor, 106 S.Ct. at 2404 (quoting same).

In King v. Palmer, 778 F.2d 878

(D.C.Cir.1985), the D.C.Circuit implicitly

recognized a Title VII action alleging

discrimination premised on a voluntary

sexual relationship. The court noted,

however, that the question whether a

consensual sexual relationship can form the

basis of a Title VII claim had not been

presented on appeal. Id. at 880. Additionally,

six judges of that court, in denying a

suggestion for rehearing en banc and a

motion by the government regarding the

filing of an amicus brief, emphasized that the

applicability of Title VII to the facts before

them was not raised on appeal, and thus was

not the proper subject of a rehearing en banc.

Id. at 883. To the extent that King and cases

following King, e.g., Kersul v. Skulls Angels

Inc., 130 Misc.2d 345, 495 N.Y.S.2d 886

(Sup.Ct.1985), can be interpreted as

recognizing Title VII claims for non-gender

based sex discrimination, we decline to adopt

such a broad extension of Title VII protection.

Title VII claims have been employed

successfully to combat instances of sex

discrimination with respect to terms and

conditions of employment, e.g., Mills v. Ford

Motor Co., 800 F.2d 635 (6th Cir.1986), as

well as sexual harassment in the workplace,

e.g., Meritor, --- U.S. ----, 106 S.Ct. 2399, 91

L.Ed.2d 49 (1986) ("hostile environment"

sexual harassment); see generally Annot., 78

A.L.R.Fed. 252 (1986). In all of these cases,

however, there existed a causal connection

between the gender of the individual or class

and the resultant preference or disparity.

Many courts have limited the word "sex" to its

"traditional definition," Sommers v. Budget

Marketing, Inc., 667 F.2d 748, 750 (8th

Cir.1982), and refused to extend Title VII

proscriptions beyond gender-based

discrimination. See, e.g. Ulane v. Eastern

Airlines, 742 F.2d 1081 (7th Cir.1984)

(transsexuality), cert. denied, 471 U.S. 1017,

105 S.Ct. 2032, 85 L.Ed.2d 304 (1985);

Sommers v. Budget Marketing, Inc., 667 F.2d

748 (8th Cir.1982) (same); DeSantis v. Pacific

Telephone & Telegraph Co., 608 F.2d 327

(9th Cir.1979) (homosexuality); Smith v.

Liberty Mutual Insurance Co., 569 F.2d 325

(5th Cir.1978) (effeminacy). We can adduce

no justification for defining "sex," for Title VII

purposes, so broadly as to include an ongoing,

voluntary, romantic engagement.

DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986)

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Toscano v. Nimmo, 570 F.Supp. 1197

(D.Del.1983), relied on by appellees, does not

mandate a contrary result. In Toscano, a

female employee alleged, and the district

court found, that the granting of sexual favors

was a condition to receiving promotion, in

violation of Title VII. Although the district

court permitted the female employee to prove

her claim with circumstantial evidence of the

sexual relationship between the employer and

the successful applicant, the claim itself was

premised on the coercive nature of the

employer's acts, rather than the fact of the

relationship itself. The Title VII action at

issue in Toscano, therefore, was the

substantial equivalent of a "sexual

harassment" suit. The decision in Toscano

lends no support to the contention that a

voluntary amorous involvement may form the

basis of a Title VII claim.

The EEOC's guidelines fail to buttress

appellees' contentions. The guidelines provide

that "[w]here employment opportunities or

benefits are granted because of an

individual's submission to the employer's

sexual advances or requests for sexual favors,

the employer may be held liable for unlawful

sex discrimination against other persons who

were qualified for but denied that

employment opportunity or benefit." 29

C.F.R. Sec. 1604.11(g) (1986) (emphasis

added). The word "submission," in this

context, clearly involves a

Page 308

lack of consent and implies a necessary

element of coercion or harassment. In

addition, the EEOC has indicated that sexual

relationships between coworkers should not

be subject to Title VII scrutiny, so long as they

are personal, social relationships. See

Preamble to Interim Guidelines on Sex

Discrimination, 45 Fed.Reg. 25024 (1980).

While appellees do claim that the liaison

between Ryan and Guagenti became more

than a private affair when it affected their

professional lives, appellees do not claim that

they or any other staff members, including

Guagenti, were forced to submit to Ryan's

sexual advances in order to win promotion.

Even assuming that appellees' allegations

are true and that the district court's findings

are correct, appellees have not set forth a

cognizable Title VII claim for sex

discrimination. Appellees allege, and the

district court found, that Ryan and Guagenti

were engaged in a romantic partnership; that

Ryan established a special requirement for

the Assistant Chief position solely as a pretext

to enable him to cause Guagenti to be hired;

that appellees were precluded from applying

for the position due to the special

requirement; and that Guagenti was hired on

the recommendation of Ryan. Ryan's conduct,

although unfair, simply did not violate Title

VII. Appellees were not prejudiced because of

their status as males; rather, they were

discriminated against because Ryan preferred

his paramour. Appellees faced exactly the

same predicament as that faced by any

woman applicant for the promotion: No one

but Guagenti could be considered for the

appointment because of Guagenti's special

relationship to Ryan. That relationship forms

the basis of appellees' sex discrimination

claims. Appellees' proffered interpretation of

Title VII prohibitions against sex

discrimination would involve the EEOC and

federal courts in the policing of intimate

relationships. Such a course, founded on a

distortion of the meaning of the word "sex" in

the context of Title VII, is both impracticable

and unwarranted.

Appellees' Equal Pay Act claim suffers the

same fatal defect. The Equal Pay Act prohibits

an employer from discriminating between

employees "on the basis of sex by paying

wages ... at a rate less than the rate at which

he pays wages to employees of the opposite

sex ... for equal work on jobs the performance

of which requires equal skill, effort, and

responsibility, and which are performed

under similar working conditions...." 29

U.S.C. Sec. 206(d)(1) (1982). Again, the

DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2nd Cir. 1986)

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problem confronting appellees is the proper

definition of sex discrimination. The Supreme

Court, in discussing the Equal Pay Act, made

clear that the fundamental purpose of the Act

was to remedy disparities in pay arising from

traditional concepts of gender. Corning Glass

Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct.

2223, 2228, 41 L.Ed.2d 1 (1974). We perceive

no valid justification for defining "sex" for

Equal Pay Act purposes in a manner

inconsistent with the word's meaning under

Title VII. Accordingly, appellees' Equal Pay

Act claim must fail as well.

In sum, we hold that voluntary, romantic

relationships cannot form the basis of a sex

discrimination suit under either Title VII or

the Equal Pay Act. Because that

determination is dispositive of this appeal, we

need not address the other issues raised by

appellants.

III. CONCLUSION

For the reasons stated above, the

judgment of the district court is reversed.

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1 There are two requirements for registration:

prior experience as a respiratory care

practitioner and successful completion of an

examination given by the NBRT. Special

knowledge or experience in neonatal care is

not required.