Opinion
No. 83-1692. Summary Calendar.
June 25, 1984. Rehearing and Rehearing En Banc Denied August 3, 1984.
Waterman Schwartz, Leonard J. Schwartz, Austin, Tex., Katherine L. Moore, Houston, Tex., for plaintiff-appellant.
Jim Mattox, Atty. Gen., Evelyn S. Tatum, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
Appeal from the United States District Court for the Western District of Texas.
Before GEE, POLITZ and JOHNSON, Circuit Judges.
This appeal concerns whether Ms. Gwendolyn Macpherson was dismissed from her position with an agency of the State of Texas for a wrong reason: being female. In a bench trial, the court gave judgment for the defendant, entering detailed findings of fact and conclusions of law. On the peculiar facts of the case, we conclude that one of his findings — which is supported by the record evidence — is dispositive, so that we need not look beyond it to affirm.
The record indicates that Ms. Macpherson is a graduate geologist of high intelligence, independent mind and — one may infer — somewhat venturesome spirit. Employed by a predecessor department of the defendant agency in March 1976, she established an enviable work record, marred by only a single verbal reprimand for climbing a fence to examine certain deposits on private property without obtaining the landowner's permission. During her brief tenure with the state, she received more promotions and merit raises than any other employee in her section.
In September 1977, her department was merged with two other state water agencies to become the present defendant agency and defendant Harvey Davis became executive director of the new entity. One may infer from the record that in the months immediately following the merger Davis was strained by the inevitable tensions consequent to his new position and the effort to harmonize his amalgamated charges into a functional entity.
In January 1978, Mr. Davis circulated a memorandum over his signature to his division directors within the agency. The memo had actually been prepared by a staff attorney and was entitled "Outside Requests of [sic] Staff Testimony at Administrative and Judicial Hearings." Like the title, portions of it were poorly worded. Ms. Macpherson determined that it required grammatical and stylistic improvement. She therefore proceeded to correct Mr. Davis's memo in searching detail, appending both specific and general comments calculated to bring home to the author his literary ineptitude. Her final observation fairly gives the flavor of the whole:
You frequently leave out articles (a, an, the) in front of nouns. You tend to obfuscate by using long, unwieldy phraseology. Simplify! Simplify! This will help correct your tendency to misplace modifiers. The content of this memo is confusing. It is obvious to me that when one is subpoenaed one must appear, regardless of the opinion of the Department. Furthermore, one must tell the truth when under oath.
Please rewrite and resubmit.[]
The memo and Ms. Macpherson's corrections and comments are reproduced in full at the foot of our opinion.
She then anonymously mailed her revision to Mr. Davis in an envelope marked "Personal," and thus it came directly to his hand.
While adhering to the ceiling of his office, revised memo in hand, Mr. Davis determined to fire the reviser, whomever he or she might be. As the trial court chastely put it in Finding of Fact No. 16, "The termination decision was made prior to the discovery of the identity of the employee who revised the memo and anonymously sent it to Mr. Harvey Davis." After an investigation in the course of which she readily admitted the revision and anonymous return of the memo, and a meeting between Mr. Davis and the director of Ms. Macpherson's division, her immediate supervisor, and the agency general counsel, Davis reiterated his decision that the reviser, her identity now known, should be dismissed and she was.
Adding, according to the testimony of her immediate supervisor, that "she just could not stand the idea that an Executive Director of an agency like that putting out a memo that was in such bad form grammatically and that something to the effect that she really didn't like to work for anybody like that." (Tr. 135).
As we note above, the trial court, to whose opportunity to hear and view the witnesses we must defer, concluded that a final decision to discharge the reviser was made before her identity became known. The record contains evidence that supports this finding, as well as evidence tending to support a determination that the initial decision was tentative and became final only after she was discovered. It is not for us, however, to second-guess the trial court's credibility choices among differing pieces of testimony — even those coming from the same witness or witnesses — unless a review of the record leaves us "with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948), reh'g denied, 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147. That is not the case today, and the finding must stand.
Since the decision to fire Ms. Macpherson was taken when her identity, and perforce her gender, were unknown and merely carried out after they were discovered, there can be no question of sex discrimination on this record. There it ends.
In closing, we observe that although the unique facts of today's case lend themselves irresistibly to somewhat ironic treatment, we do not view lightly the small bureaucratic tragedy that the record reveals: a harried executive has lost his temper and a valuable — if somewhat pert — state employee has lost her position. On this record, however, we cannot hold the trial judge clearly erroneous in finding that it was Ms. Macpherson's pertness and not her gender that cost her the job she held. We do not sit to revise employment decisions taken hastily or for insufficient reasons, only those taken for illegal ones. And so, with all sympathy and good wishes for the future to Ms. Macpherson, we conclude that the trial court's judgment must be
In anticipation of a critical review of our remarks, we have been at some pains with their style and grammar.