Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 23 EPD ¶31,108, Magdalena Garcia et al., Plaintiffs v. Rush-Presbyterian-St. Luke’s Medical Center et al., Defendants., (June 30, 1980), (Jun. 30, 1980)

Magdalena Garcia et al., Plaintiffs v. Rush-Presbyterian-St. Luke’s Medical Center et al., Defendants.

United States District Court, Northern District of Illinois, Eastern Division.Civil Action No. 77 C 323, June 30, 1980

Title VII--Civil Rights Act of 1964

Hospitals--Latin Origin Discrimination--Individual Claim--Harassment and Discharge.

--An individual claimant, who alleged discriminatory personnel actions were the result of retaliation for the assertion of Latin rights and her Latin background generally, was in fact disciplined and discharged for fundamentally disruptive conduct and the violation of important and legitimate hospital policies.

Back references.-- ¶622 , 730.

Hospitals--Latin Origin Discrimination--Individual Claims--Refusal of Job and Transfer.

--Proof that two individual claimants, alleging respectively that they were refused an entry job and a transfer due to their Latin background, were in fact rejected due to a lack of qualifications, served to defeat their allegations of bias.

Back reference.-- ¶730.

Hospitals--Latin Origin Discrimination--Class Claims--Across the Board.

--Class claims against a hospital on behalf of its Latin workers for general across-the-board discrimination against their members are rejected for failure of proof. Claimants’ statistics failed to reflect applicant flow data over the relevant time period and contained factual errors pointed out by the hospital. No credible evidence, statistical or testimonial, indicated the presence of bias against Latins, especially in light of superior statistical evidence and general rebuttal by the hospital.

Back references.-- ¶730, 2330 .

Stephen G. Seliger, Julian Birnbaum, for Plaintiffs.

Richard H. Schnadig, Lawrence L. Summers, Charles B. Wolf (Vedder, Price, Kaufman & Kammholz), Chicago, Illinois, for Defendants.

Leighton, D.J.; I. Findings of Fact; A. Pretrial events: 1. This suit was commenced on January 31, 1977. The complaint to which an amendment was filed on September 29, 1978 contains two counts; it alleged claims for relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and 42 U.S.C. §1981 .

2. Plaintiffs are Magdalena Garcia, Fernando Romero, and Victoria Perez who sue on their own behalf and on behalf of other persons similarly situated. They asked that this suit proceed as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.

3. Defendants are Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, President of Rush, and Charles A. Freeman, who, at various times from 1973 to October, 1979, was Associate Director of Human Resources, Assistant Vice President, Legal Affairs/Labor, Assistant Vice President of Human Resources, and Director of Rush’s Office of Affirmative Action.

4. The claims of the individual Plaintiffs against Rush are as follows:

(a) Discrimination against Garcia by harassment, discipline and discharge because of her race or national origin in violation of Section 703 of Title VII, 42 U.S.C. §2000e-2 .

(b) Retaliatory discharge of Garcia because she opposed practices made unlawful by Title VII in violation of the retaliation section of the Act, Section 704(a), 42 U.S.C. §2000e-3(a) .

(c) Purposeful and intentional discrimination in harassment, discipline and discharge of Garcia because she opposed Rush’s alleged employment discrimination against “Latinos” in violation of 42 U.S.C. §1981 .

(d) Discrimination against Perez in denying her transfer to the position of Lab Liaison Technician (“LLT”) at Rush in violation of Title VII and 42 U.S.C. §1981 . She also alleged discrimination and retaliation by her discharge on August 17, 1976 in violation of Section 703 and 704(a) of Title VII, 42 U.S.C. §2000e-2 and §2000e-3(a) and in violation of 42 U.S.C. §1981 , but at the conclusion of plaintiffs’ evidence, plaintiffs’ counsel withdrew this discharge claim under both statutes.

(e) Purposeful and intentional discrimination against Romero by Rush’s refusal to hire him because he was a Latino, in violation of 42 U.S.C. §1981 . The individual claims under 42 U.S.C. §1981 are also asserted against Campbell and Freeman.

5. The class claims against Rush under Title VII of the Civil Rights Act of 1964 are as follows:

(a) Discrimination in refusing to hire qualified Latinos.

(b) Making discriminatory assignments to Latino employees.

(c) Utilizing discriminatory performance standards for Latino employees with respect to promotion, assignment and tenure.

(d) Discriminating against Latino employees by restraining and coercing them in the exercise of their rights to complain of discriminatory employment practices.

6. The class claims against Rush, Campbell and Freeman under 42 U.S.C. §1981 are as follows:

(a) Purposeful and intentional discrimination by refusing to hire qualified Latinos.

(b) Purposeful and intentional discrimination by making discriminatory assignments to Latino employees.

(c) Purposeful and intentional discrimination by utilizing discriminatory performance standards for Latino employees with respect to promotion, assignment and tenure.

7. In a memorandum issued by this Court on September 11, 1978, Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, 80 F.R.D. 254 (N.D. Ill. 1978), plaintiffs’ motion for class certification was granted pursuant to Rule 23(a) and (b)(2). The class was described as:

all Latinos who, because of their race, national origin or opposition to defendants’ unlawful employment practices have been or are denied equal employment opportunities by the defendants....

8. In ruling on whether the suit shall proceed as a class action, the court, over defendants’ objections to class certification, accepted plaintiffs’ definition of “Latino” as being “any Spanish surnamed person or individual of Hispanic ancestry residing in the City of Chicago”. 80 F.R.D. at 259, text and n.1.

9. The court also ruled on statute of limitations questions. It held, first, that Garcia’s and Perez’s individual and class claims under Title VII “must be limited to events occurring not more than 300 days prior to the date on which plaintiffs filed their [EEOC] charges: May 3, 1975 (Garcia) and February 16, 1976 (Perez).” See 80 F.R.D. 254 at 262. Second, it ruled that all plaintiffs’ individual and class claims under 42 U.S.C. §1981 must be limited to acts occurring within five years prior to the filing of the complaint, i.e., January 31, 1972, “although to the extent pre-limitations period evidence of discrimination constitutes relevant background evidence regarding, for example, the motivation for post-limitation period practices, it will not be excluded.” 80 F.R.D. at 265.

B. The trial.

10. Trial of this cause commenced, without a jury, on May 27 and was concluded on June 23, 1980, 18 days during which evidence was heard. For a little more than ten days, plaintiffs put on their case in chief, calling 13 witnesses, using excerpts from four depositions, offered and had received in evidence 70 exhibits. After they rested, defendants, pursuant to Rule 41(b), Fed. R. Civ. Proc., 28 U.S.C., moved for dismissal of all of plaintiffs’ claims. The court heard the parties in argument and considered the authorities cited. The standard which it was bound to apply in determining whether plaintiffs had made a prima facie case was that as trier of the facts it was “not bound to view [the evidence] in the light most favorable to the plaintiff, with all attendant favorable presumptions, but [is] bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as [the Court believes] it is entitled to receive.” However, because this was not a case which could mislead a jury, since it was being heard without one, and relying on the guidance of decisions in this and other circuits, this court decided it best to take the motion with the case, hear both sides, make findings of fact, reach conclusions of law, and resolve this controversy. Accordingly, defendants were called on to put on their case which they did by calling 11 witnesses, offering and having received in evidence 102 exhibits. Plaintiffs put on rebuttal at which they recalled the lead plaintiff and offered three exhibits. There was no surrebuttal by defendants. From this evidence, the court finds that the facts material to this controversy are as follows:

C. In general

11. Rush is a not-for-profit corporation which operates both a medical university and an 864-bed tertiary care hospital. A “tertiary care hospital” is a highly specialized medical facility which secures a significant portion of its patient population through referrals from community hospitals, clinics and physicians in order that the patients may receive more sophisticated diagnostic services and treatment than that which normally can be provided by secondary and primary care facilities.

12. Rush University, the educational component of the Medical Center, consists of Colleges of Medicine, Nursing and Health Sciences. The health care institution consists of the Main Campus located at 1725 West Harrison Street in Chicago, the Johnston R. Bowmann Health Center for the Elderly and the Sheridan Road Pavilion, a small hospital located at 6130 North Sheridan Road in Chicago.

13. Rush’s delivery of health care, research activities, and education of physicians, nurses and health scientists and administrators requires a highly specialized level of skill and training among most employees in its workforce.

14. In 1979, the faculty of the various Rush Colleges and its registered nurses numbered approximately 1,800 employees and accounted for approximately 28% of Rush’s workforce.

15. The managerial, professional and technical employees at Rush in 1979 totaled 3,994 persons, or 62% of Rush’s workforce.

D. The individual claims.

With respect to the plaintiff Magdalena Garcia--[Harassment and Discharge]

16. She was hired by Rush as a laboratory technician trainee in the Pathology Department on August 21, 1958. She was promoted to a Senior Technician position in that department on February 2, 1959, was reclassified to tissue technician on September 1, 1960 and again reclassified to histology technician on January 15, 1973.

17. On numerous occasions since at least 1971, Garcia, acting as a self-appointed spokesman, complained to Rush officials concerning alleged discrimination against other Latinos employed by Rush. Her activities included translating for a number of Latino employees concerning transfers, discipline, discharges, and other employee disagreements with supervision. This conduct included:

(a) translating for Nicholas Rodriguez in 1973 regarding union grievances with respect to alleged verbal abuse by supervision and job assignments;

(b) translating for an employee named Thelma in 1972 or 1973 regarding her transfer request;

(c) translating for Jose Davila in 1972 regarding alleged verbal abuse by supervision; and

(d) translating for Yolanda Garcia in 1973 regarding her transfer request and an alleged dispute with a housekeeping supervisor; in the latter case, she also complained about the lack of Spanish supervisors in the department.

18. Garcia testified that she referred several Rush employees to the Equal Employment Opportunity Commission or to Casa Central, a local Latino community group. None of these employees filed any charge of discrimination against Rush.

19. Garcia’s personnel and disciplinary records as a 17 1/2 year employee with Rush, up to and including her discharge on February 6, 1976, show the following:

(a) A June 9, 1971 memorandum from James Aiello, then Rush’s Director of Employee Relations, to Rush’s Associate Executive Director, summarizing complaints by Rush employees, including Aiello’s, with respect to Garcia’s conduct in (i) interrupting employee work, (ii) demeaning their jobs, (iii) urging “rebellion” against Rush, and (iv) not working in her own department.

(b) A letter dated March 24, 1972 from employee Gloria Quarles to Rush’s Associate Administrator concerning certain alleged threats and complaints made by Garcia to and against Quarles because of Quarles’ selection of persons to participate in a Rush-sponsored fashion show. It appears from the letter that Garcia objected to the number of Blacks so selected and the under-representation of Latinos. Garcia denied making the statements attributed to her by Quarles, claiming that she merely had time to exchange greetings with Quarles and “mentioned something about how come no Latinos were in the program.”

(c) A Petition of Awareness dated October 26, 1973 and signed by over 30 Spanish surnamed Rush employees, disavowing Garcia as their representative and complaining of her non-work-related activities toward them.

(d) A November 2, 1973 memo from Aiello to Freeman, who had recently become Associate Administrator of Human Resources, complaining of Garcia’s conduct in intervening in union grievance meetings, and again reporting on employee complaints of Garcia’s interfering and intimidating behavior toward employees in various Medical Center Departments.

(e) A November 27, 1973 memorandum of an oral warning from Rush official Silas Weir to Garcia. In it, Weir summarized his admonishments to Garcia that her time should be spent on Pathology Department work and not in seeking to represent Latino employees in grievance activities.

(f) A notice dated June 23, 1975 showing that Garcia was suspended for three days for events occurring on June 17, 1975.

(g) Garcia’s discharge notice of February 6, 1976 for a series of events occurring on December 31, 1975 and in January, 1976, some of which were testified to by Theodous Johnson, a Black Unit Clerk, summarized in a January 21, 1976 security report, and a memorandum dated January 26, 1976 from Rush’s then Director of Personnel Relations, John Barrett, to Garcia’s supervisors. Based on the reports Barrett had received from a social worker named Jose Sans, and following a review of Garcia’s prior disciplinary record, Barrett recommended that Garcia be discharged for engaging in the following misconduct:

1. Presenting herself as a Social Worker to patients when in reality she is a Laboratory Technician in the Pathology Department.

2. Giving advice and counsel to patients on personal matters which is direct interference with the objectives of the Social Service Department.

3. Violating the confidentiality of patients’ condition policy which is explicitly stated in the Employee’s Handbook (p. 5, ¶2).

4. Threatening and intimidating another employee who is attempting to perform his assigned duties.

5. Providing false information to the family and boyfriend of the patient, which caused undue alarm and anxiety.

6. Possibly being out of her designated work area without permission or notification to the Pathology Department.

Barrett also related the facts and circumstances within his knowledge to Charles Freeman, who reviewed Garcia’s disciplinary record and advised Barrett that Garcia’s discharge would be within all legal grounds. Garcia denied many of the above allegations, but admitted going to the Intensive Care area of the Maternity Ward during non-visiting hours even though no aspect of her job required her to do so.

20. Following her discharge, Garcia engaged the assistance of counsel and appealed pursuant to Rush’s internal grievance procedure then in effect for nonunion employees. This appeal process included a hearing with counsel before John Barrett, and a further internal appeal to the Office of the Vice-President for Administrative Affairs, Howard Jones, both of whom upheld the discharge decision.

21. No other employee of Rush was ever accused of or engaged in conduct similar to Garcia’s, as shown in Rush’s records; no other Rush employee was ever similarly disciplined and discharged.

With respect to the plaintiff Fernando Romero--[Hiring]

22. On July 20, 1976, he applied for the position of housekeeping supervisor at Rush. Romero did so after seeing advertisements for the position in both a local Spanish language newspaper and The Chicago Sun Times. He previously had worked at Western Electric Company as a pipefitter, where he obtained a journeyman’s mechanic card and had seven years experience in refrigeration work. Romero had some past janitorial experience at another company but none in a supervisory capacity.

23. On the same day that Romero applied, he was interviewed by Robert Lewandowski, the Employment Manager, who reviewed his application and experience with him. Lewandowski then recommended to Romero that, because his experience and training were better suited to higher paying maintenance mechanic positions in the physical plant department than to housekeeping supervisor, Romero should consider and apply for the former job. Romero, who had not even been interviewed for mechanic positions by numerous other employers where he sought such work, readily agreed to Lewandowski’s suggestion, and an appointment was made for Romero with Anton Dorner, Superintendent of the physical plant department.

24. Dorner interviewed Romero and, at the former’s request, a subordinate employee toured the plant with Romero, and asked him questions with respect to his mechanical knowledge and experience concerning equipment commonly serviced by journeymen in the physical plant. At the conclusion of the tour, Romero met with Dorner who told him to go home and that he would be contacted. Dorner informed Lewandowski that Romero was a possible candidate for hire, but that other candidates also had been interviewed and additional applicants were scheduled for interview, and he would make a hiring decision later. Romero subsequently spoke to Lewandowski several times to determine the status of his application for the mechanic position, but was told that no decision had been reached.

25. Romero was not hired as a journeyman in Rush’s physical plant, and a Caucasian applicant was hired. Other applicants for the physical plant position also were interviewed but not hired in the summer of 1976, approximately the same period that Romero’s application was under consideration. From July through September, 1976, however, Rush hired one Latino, two Blacks and seven whites as journeymen in its physical plant department. Overall, out of approximately 56 employees who report to Dorner’s Rush physical plant department, eight to ten (14.3% to 17.2%) are Latino. Two of these Latino employees were offered employment by Dorner without being referred through Rush’s Employment Office, and Dorner similarly rehired a Latino employee, Nicholas Rodriguez, who had earlier quit and moved to Texas. Dorner could not recall Romero’s application, he testified that he has never taken race or national origin into account as a factor in making hiring decisions.

With respect to the plaintiff Victoria Perez--[Transfer]

26. Perez was hired by Rush from among ten applicants in the spring of 1975 as an interviewer for the Multiple Risk Factor Intervention Trial (“MRFIT”) program at Rush’s Oak Brook, Illinois location. In that capacity, she interviewed out-patients who were being evaluated and identified as possible “Type A” heart attack risks. She had performed similar work previously at Northwestern University’s Department of Preventative Medicine. In early 1976, Perez became a health counselor in the MRFIT program. In that job, she counselled out-patient program participants with respect to smoking and also began drawing blood from their veins, taking white counts and performing hemotocrits, common laboratory procedures.

27. In May, 1976, for reasons of personal commuting convenience, Perez sought a transfer to a position at the Medical Center’s Main Campus. Perez completed a transfer request form in response to one or more Medical Center postings, and called Phillip Olson, an employment interviewer with responsibility for technical positions, for an appointment.

28. Olson interviewed Perez on May 21, 1976, and Perez expressed interest in transferring to a Laboratory Liaison Technician (“LLT”) position. Olson determined that Perez’s blood drawing experience, being primarily with out-patients, was limited. He informed Perez that the LLT job paid less than her current position, that it was not then available, and that she lacked the requisite blood drawing and laboratory experience needed for the job, incumbents of which often work with sick and elderly hospitalized patients. As technical position interviewer, Olson had received instruction on LLT job requisites from Doris Smith, and had previously interviewed many other LLT applicants, rejecting a number of persons who, like Perez, did not have adequate in-patient blood drawing experience. Olson did not refer Perez to the LLT hiring department, but asked whether Perez would be interested in clerical jobs. Perez subsequently took a typing test and was interviewed for clerical jobs by another employment interviewer, but was not offered a position.

29. Early in August, 1976, Perez again called Olson regarding an LLT position, and Olson set up an interview for Perez with Doris Smith, Director of LLTs and the person responsible for hiring. She arrived late for her scheduled appointment with Smith on August 11, 1976, and was rescheduled for the next day.

30. On August 12, Perez joined a group of 25-30 Latinos picketing in front of the Medical Center and, approximately twenty minutes later, went to Freeman’s office on the third floor of the Professional Building, where she participated in a tumultuous and disruptive sit-in for which she was arrested and, subsequently, on August 17, 1976, released from custody.

31. The undisputed facts with respect to Perez’s August 12, 1976 misconduct, and the court’s frank, strongly worded comments about them, led plaintiffs’ counsel to withdraw Perez’s discharge claims at the close of plaintiffs’ evidence.

32. On either August 12, 1976, or August 13, 1976, Perez met with Smith. Smith described the LLT position in detail, including the hours of work and venapuncture requirements. During that conversation, Perez expressed concern about possible child care problems resulting from the normal LLT working hours. Further, after discussing Perez’s qualifications and contrasting them to the requirements of the LLT position, Smith and Perez agreed that Perez was not then qualified. Perez next inquired about the possibility of on-the-job training, and Smith explained that such training was possible only when Rush had a full staff of LLTs, so Perez should check back in the future regarding such training possibilities. Following Smith’s meeting with Perez, Smith informed Olson that it had been mutually agreed with Perez that she did not have the requisite experience for the position.

33. There were no hires for the LLT position during the month of May, 1976 when Perez first contacted Olson. Thereafter, from June through October, 1976, two Latino and seven Black LLTs were hired. The first person hired after Perez made known her interest in an LLT position was Milagros Peralta, a Latino, on June 1, 1976. Smith, as the person responsible for hiring of LLTs at Rush, has never taken race or national origin into account as a factor in making hiring decisions.

34. In reaching her conclusion that Perez did not have the qualifications for the LLT position, Smith was not influenced in any way by the fact that Perez was a Latino.

E. The class claims--[Statistics]

35. Establishment of classwide discrimination under Title VII in this case requires proof that defendants have engaged in a pattern or practice of discriminatory treatment of Latinos. The evidence must show that the defendant medical center maintained some employment practices which either actually treated Latinos less favorably because of their national origin or, although neutral on their face, adversely affected Latinos.

36. Under 42 U.S.C. §1981 , a plaintiff charging racial discrimination, individually or as a class, must make a showing of purposeful discrimination before the burden shifts to the defendant to rebut the charge.

37. With respect to plaintiffs’ allegations under the Title VII and §1981 counts of their complaint, the evidence, as a whole, shows that defendant Rush, or its agents, has never made discriminatory assignments to Latinos, utilized discriminatory performance standards for Latinos with respect to promotion, assignment and tenure, or retaliated against Latino employees. There is no evidence that any Rush employment practice, all of which are facially neutral, adversely affects Latinos with respect to hiring or that any such practice was either motivated by a discriminatory aim or was conceived with a purpose and intent of discriminating against Latinos.

38. Rush’s hiring and transfer practices are standardized, published and under the control of Rush’s Employment Department. Hiring is principally done at the Main Campus, although a smaller employing unit exists at the Sheridan Road facility, which does its own hiring and adheres to the same practices. At all times relevant to this case, the procedure has been as follows: When a vacancy arises or a new position is created, a personnel requisition is prepared by the hiring department and submitted to Rush’s Wage and Salary Division as a “control” against budgeted positions. If the position is budgeted, the requisition is authorized and sent to the Employment Department, which prepares a job posting.

39. The posting, which usually contains a brief summary description of the job and of the desired qualifications, is then placed on bulletin boards at Rush’s Main Campus, including those places specified in Rush’s union cointracts. Copies of the postings are also sent to various referral agencies and schools including those with Hispanic constituents and student bodies. Depending on the nature of the job and the availability of internal and external candidates, the Employment Office also may place ads with local, regional or national newspapers and journals. Employees wishing to seek promotion or transfer from their current position complete a request for transfer form and an appointment is arranged with an employment interviewer. Candidates from outside the Medical Center who come to the Employment Office are furnished with an application and an interview appointment may be arranged wth an employment interviewer. In many cases, however, such walk-in applicants are not interviewed because a vacancy no longer exists or a sufficient pool of applicants has already been identified. Walk-in applications are retained by the Medical Center for one year and are consulted by the Employment Department as vacancies occur.

40. Prospective candidates, from whatever source, are interviewed with respect to prior employment, related experience and qualifications, including licensure and certification where necessary, and are told about the job, its duties, responsibilities, hours, wages, and other relevant facts. In attempting to match the person to the job, interviewers rely on the application presented, discussions with the requisitioning departments, qualifications listed on the requisitions, and detailed statements of job duties contained in approximately 1,000 job descriptions. If the interviewer determines that the applicant is apparently qualified, an additional interview with the requisitioning department is arranged. The department head or his delegate then makes the final hiring decision and candidates are advised of the result by the employment interviewer.

41. A variation on this procedure is followed with respect to the recruitment and hiring of registered nurses, a group which constitutes approximately 17% of Rush’s current workforce. Here, principally because of a chronic shortage of nurses, the Medical Center recruits nationally through journal advertisement, attendance at job fairs and nurse recruitment days at universities, colleges and junior colleges throughout the United States, including schools in Texas with a substantial Latino student representation. Rush’s nurse recruitment efforts in the Southwest were not successful largely because potential candidates did not wish to move to the Chicago climate. Interviewees seen initially at schools and those responding to advertisements are encouraged to visit the Medical Center, where they are again interviewed by the nurse recruiter or her assistant. Virtually every registered nurse applicant subsequently interviewed at the Medical Center is referred to the hiring departments (which vary widely because of the highly differentiated practice of nursing care at Rush). Thus, with respect to registered nurses, the interviewing process is largely pro forma. Of those referred to the departments, approximately 85% are offered a position. The remainder are rejected due to insufficient licensure, background in a particular, specialized area, or communication skills.

43. Rush’s uniformly applied hiring and transfer practices are, and have always been, racially neutral. There have been occasions when there has been a departure from procedure, but these few exceptions appear to have benefitted Latinos as much as anybody else. For example, plaintiff Perez was apparently hired by the Chairman of MRFIT before going to the Employment Office. Thus, the procedure described above, or any part of it, did not, and does not adversely affect Latinos; nor were Latinos treated differently than other ethnic or national origin groups.

44. Rejection by Rush of those Latinos who, the evidence shows, were not hired, resulted from the two most common [nondiscriminatory] reasons on which an employer can rely to reject a job applicant: an absolute or relative lack of qualifications.

Specifically:

a. From 1971 to approximately August, 1975, Rev. Jose Ramon Rodriguez was a job developer at Casa Centrale, and at the American Spanish Institute (“A.S.I.”) from September 1977 to September 1980, both of which organizations attempt to place applicants who speak and read little English. Rodriguez, while at Casa Centrale, referred approximately 50 applicants for food service, janitorial and secretarial jobs and none were hired, but he could not recall the name of any applicant or the name of any employee of Rush with whom he dealt. Plaintiffs did not produce any evidence which could show the qualifications of such applicant, or those of any non-Latino person who was hired.

b. While at A.S.I., Rodriguez referred approximately 100 applicants for similar jobs and only two of those applicants were offered positions.

c. Many of the referrals and rejections were of candidates who did not adequately speak or read English, a characteristic of A.S.I. and Casa Centrale clientele, even though Rush requires some ability to speak or read English in virtually every job it has.

d. Some persons referred by A.S.I. and Rodriguez did not show up for interviews; and others, such as Maria Molina and Ms. Baez, appeared to be obviously unqualified for the jobs they sought. Only six A.S.I. files were introduced by plaintiffs and they fail to show requisite job skills or who, if anyone, was selected by Rush for the vacancy.

e. Obedio Villanueva applied to Rush for a position as an accountant in June, 1975 but was rejected based on his limited command of the English language. Rebecca Cruz, a social worker at Casa Centrale, referred Villanueva to the EEOC, but he did not file a charge.

f. Andrea O’Malley Munoz (“O’Malley”), a job developer with the Archdiocesan Latin American Committee from July, 1976 to April, 1979, referred a number of people to Rush, approximately 15 of whom were offered jos. O’Malley received weekly lists of job openings from Rush. She testified that one applicant, possibly named Lopez, did not show up for his scheduled interview and was not hired by Rush.

g. Edward Sunshine, a member of the Association Pro Derechos Obreros (“APO”) had conversations with Rush officials and referral agency personnel in the period after the filing of the complaint in this case. Sunshine, whose organization has approximately 20 members (including plaintiffs Romero and Garcia) and has been closely associated with this case, had no first hand knowledge concerning any Rush employee or applicant or any employment policy or practice at Rush. He, in the company of APO representatives, held six meetings with Rush officials, who explained the Medical Center’s jobs and community programs, and developed a recruitment program with Latino referral agencies. In addition, John Barrett and other Rush officials periodically apprised Sunshine of the recruitment program results and consulted him concerning specific applicants. At least 23 Latinos were hired through the recruitment project.

45. Relying primarily on the testimony of Rodriguez and O’Malley, plaintiffs assert that Rush engaged in an unlawful “runaround” practice designed to prevent Latino hiring. This contention rests on Rodriguez’s and O’Malley’s testimony that Cheryl Silas, one of Rush’s employment interviewers, periodically failed to return telephone calls promptly, and that delays of two to four weeks were encountered. Silas candidly acknowledged that some delays did occur but she attributed such to her workload and job.

46. Silas’ deficiencies resulted from the demands of her job and not from any animus toward Latinos individually or as a group. Her conduct was not part of a policy or practice undertaken by Rush with a motive or intent of preventing Latinos from being hired. The “APO Project” tends to show the opposite. Both Silas and her supervisor were solicitous and responsive to agency complaints, and numerous applicants from the agencies continued to be referred to Silas and ultimately were hired by Rush. The preponderance of the evidence does not support plaintiffs’ “run-around” theory.

47. Rush requires employees in nearly all job classifications to speak and read English in some fashion. Plaintiffs contend that this requirement results in unlawful discrimination against Latinos. They did not produce evidence, nor is there any in the record to show that Latinos were excluded from Rush’s workforce at a greater rate than persons of other national origins, by virtue of such requirement standing alone, or in connection with other employee selection procedures. The requirement that an employee speak and read English in some fashion did not have an adverse impact on Latinos; nor were Latinos treated differently than all other persons with regard to the requirement. The ability to speak and read some English is a necessary, job-related requirement for virtually every job in this highly sophisticated medical care institution.

48. An applicant’s employment history or work record may have been considered by Rush in making hiring decisions. Such practice did not adversely affect any Latino; nor did Rush apply such practice to Latinos in a manner different from that applied to all other racial or ethnic groups.

49. Certain Rush job descriptions list a high school degree as a qualification. Rush does not, and did not, require a high school diploma as a condition of employment for those positions. Applicants who possess skills equivalent to those possessed by someone holding a high school diploma also could meet the requirement listed on the job descriptions; a summary of personnel file information establishes that numerous incumbents in the positions do not possess a high school diploma notwithstanding the job descriptions.

50. Rush has had, and has maintained, an equal employment opportunity policy in form and substance. Long before this controversy with the plaintiffs, it has at all relevant times, publicized its equal employment opportunity policy to the public generally, to its supervisory executives and all employees through employee handbooks, bulletins, and personnel policy and procedure manuals. This policy has been published and disseminated for many years in the Medical Center’s employee newsletters, orientation programs and seminars. Rush has publicized and implemented its grievance procedures for both union and nonunion personnel as a means of correcting any supervisory action shown to be unfair or inconsistent with the Center’s declared equal employment opportunity policy. Union contracts covering approximately 1,000 employees contain clauses prohibiting discrimination on the basis of race, color, national origin, sex and religion as covered by Title VII. Latino employees, including those mentioned by Garcia and the witness Cruz, used the grievance procedures; and, in several cases, obtained favorable dispositions thereby. These facts, shown by unrebutted evidence, undermine the unproved allegations in plaintiffs’ complaint that Rush engaged in a pattern or practice of discrimination against Latinos employed at the Medical Center.

51. Rush is a contract provider; it is required to comply with Executive Order 11246 and agency guidelines thereunder. Sometime before this lawsuit was filed by plaintiffs, Rush’s affirmative action program was approved by HEW.

52. The affirmative action program is consistent with the declared policy of equal employment opportunity that Rush has administered for many years. Consistent with its declared policy, and its affirmative action programs, Rush has made efforts to recruit and increase the availability of Latinos and other minorities for its workforce, both before and after this suit was filed. These efforts include the Inroads Program in 1973 and 1974, the Boy Scout Explorer Program from 1971 to 1974, the Youth Motivation Program from 1974 to the date of the trial in this case, Health Care Career Opportunity Program from 1978 to the date of trial, the Secretarial and Clerical Opportunities Program from 1975 to the date of trial, and other continuing CETA programs for students and adults. Some participants in these programs have become full time employees of Rush. For many years prior to and after the filing of this complaint, Rush recruited employees through predominently Latino referral agencies such as Gads Hill and Ser. After this suit was filed, Rush voluntarily participated in a formal recruitment program specifically directed to Latinos. Rush also has extensively recruited at schools and universities whose student bodies are predominently Latinos and Negros. Rush advertises its equal opportunity policy, and its job openings in Spanish periodicals. It maintains a tuition reimbursement and continuing education program for all employees which includes courses in English and Spanish. At all relevant times, Rush has provided health care programs for the benefit of Latinos and other minorities in the surrounding west side Chicago area; and it has published a Spanish language patient handbook and a brochure on its community relations program in Spanish. Rush has actively responded to the special needs of Latinos in its workforce and in the community; this response is inconsistent with the allegations contained in plaintiffs’ complaint that Rush’s employment practices were motivated by discriminatory purpose.

53. The testimony of the individual plaintiffs does not support the class claims because none identified or was able to testify about any hiring, employment, assignment, promotion, transfer or discharge policy or practice of Rush which disparately treated or disparately impacted Latinos because of their national origin under Title VII, or their race under §1981, or because they had engaged in any protected activity in opposition to allegedly discriminatory employment practice by Rush. Romero and Perez were able to testify only regarding facts and circumstances unique and particular to their individual claims: the failure to hire Romero and the failure to transfer Perez and Rush’s discharge of her. Neither of these two plaintiffs knew of another Latino, except each other and Garcia. They did not know of any other Latino who was treated adversely in any employment or hiring by Rush or by the individual defendants. Garcia testified regarding her individual claims of alleged discriminatory and retaliatory discipline and discharge.

54. No other member of the conditionally certified class testified, although several were on plaintiffs’ witness list and are employed by Rush or reside in Chicago. The Casa Centrale social worker Rebecca Cruz testified concerning an incident in which she said a Rush supervisor in the cafeteria yelled at a Latino employee who made a mistake while the supervisor did not take similar action against a non-Latino. She could not state the name of either the employee or the supervisor; she did not refer the Latino to EEOC to vacate a charge or proceed under grievance procedures provided by Rush. In her testimony she mentioned (1) a Ms. Rojas whose complaint concerning the location of her desk was resolved by the defendant Freeman; (2) a Ms. Garcia (not the named plaintiff) who was reinstated as a result of Cruz’s intercession and is still employed by Rush; and (3) a security guard whose name she could not recall, who was discharged, reinstated on Cruz’s request to Freeman, and subsequently discharged again for theft and poor work performance. Cruz’s testimony is not probative of any of plaintiffs’ class allegations.

55. Plaintiffs called two expert witnesses: Dr. William G. Fischer, a clinical psychologist; and Dr. Wayne J. Villemez, a University of Illinois Assistant Professor in the Department of Sociology.

56. Dr. Fischer testified with respect to certain Rush job descriptions. He is not an expert in the field of job evaluation, analysis, description or classification. He had never undertaken industrial psychology, job analysis or job evaluation as a major field of study, and was not a member of the American Psychological Association, Division of Industrial and Organizational Psychology, which specifically addresses these specialties. He had not prepared job descriptions in the past twelve years; he had never provided any consulting services to hospitals; he had no familiarity with the EEOC Uniform Guidelines or employee selection; and he had never conducted any validation study with respect to issues of discrimination on the basis of race or national origin.

57. Dr. Fisher could not cite any authority, or authorities in the context of a Title VII or §1981 discrimination issue to support any of his opinions or analyses with respect to Rush’s job descriptions. He stated that even as to his own opinion and theory, the “potential for buyers” was not greater for Latinos than for other persons. He reviewed 950 to 1,000 Rush job descriptions and compared them to four published works, at least two of which contained narrative descriptions of potentially similar jobs. He admitted on cross examination that he had not consulted any of the three most current sources until after he had already formed his opinions and made his characterizations based on a 1966 supplement to the United States Department of Labor’s Dictionary of Occupational Titles, a publication which contains no comparative descriptions at all. Dr. Fischer’s testimony was neither meaningful nor probative of plaintiffs’ claims.

58. Rush’s actual use of job descriptions in its hiring process was very limited. It was Dr. Fischer’s opinion that the qualifications or requirements set forth in certain Rush job descriptions were deficient because some were too vague, others were too high for the job, and still others permitted subjectivity and potential for bias because no qualifications as such were contained thereon. Dr. Fischer’s testimony is of little assistance to this court in its discharge of the function of deciding the issues in this case.

59. The separating of those job descriptions which in Dr. Fischer’s opinion have a potential for bias is not probative of plaintiffs’ class claim of discrimination against Latinos. Illustrative of the deficiency in Dr. Fischer’s testimony is his attempted comparison between the required qualifications of an animal caretaker working in Rush’s experimental and research laboratory with a caretaker for farm animals provided mentally handicapped persons at Lamb’s Farm in Libertyville, Illinois. Based on this comparison, Dr. Fischer concluded that Rush’s requirements as stated in its job description for an animal caretaker were excessive. He thought that the job description for a senior apprentice pharmacist was vague because it failed to specify the requirement of a high school diploma, did not set forth that licensure be obtained in the State of Illinois and did not specify the precise type of Illinois license required.

60. In assessing the characteristic of a job for analysis or evaluation, it is sound practice to observe that job being performed, talk to the employee actually performing it, talk to such employee’s supervisor, talk to the personnel director in charge of the job classification at the institution, obtain information on the employee’s educational background, and determine how long it takes an employee to learn the job. Dr. Fischer did none of these things with respect to the jobs at Rush; he had no knowledge of the duties performed by employees at Rush, or how the job descriptions were used in the hiring process.

61. Statistical studies of Rush’s workforce prepared by expert witnesses for the parties have been introduced in the attempt to prove or negate the existence of classwide employment opportunity discrimination at Rush’s Medical Center. Defendants’ expert was Dr. George R. Neumann, Assistant Professor, Graduate School of Business, University of Chicago. Dr. Neumann’s report, prepared by him, and described in his testimony, is a more probative study.

62. First, he compared the representation of Latinos in specific skilled and licensed jobs at Rush with their availability as measured by their representation in identical jobs in the national health field labor force. Second, he divided the Rush workforce into three groupings according to broad definitions of skill requirements for the various jobs within each group, and compared the Latino representation in these occupational groups with their availability as measured by a weighted average of the City of Chicago and the Chicago Standard Metropolitan Statistical Area (SMSA) census data. In making this comparison, Dr. Neumann used the conservative assumption that a wide range of jobs at Rush (those in his “other” category) required skills no different than those possessed by members of the labor force in general. Finally, Dr. Neumann compared Latino representation in Rush’s applicant flow with their representation in new hires for the years 1973-74 through 1978-79 in four broad job categories. In all comparisons, Dr. Neumann found no evidence of any statistically significant underemployment of Latinos or adverse hiring of Latinos at Rush.

63. Dr. Wayne J. Villemez provided the statistical analysis of Rush’s work force on which plaintiff had relied in their attempt to make out a prima facie case of classwide discrimination. He compared the percentage of representation of Latinos in Rush’s workforce based on EEOC-1 reports filed by Rush for the years 1972-78 with the expected percentage representation of Latinos at Rush based on his estimate of Latino availability, and thereby found evidence of statistically significant underemployment of Latinos in Rush’s workforce as a whole, and in certain occupational groups. Dr. Villemez also prepared a supplemental report based on workforce summaries prepared by Rush from the COMSHARE data base and found no evidence of statistically significant underemployment in the Rush workforce as a whole or in any job category except professional and technical. Dr. Villemez’s reports, either taken alone or together with other evidence in the record are insufficient in reliability and probative value; they do not support plaintiffs’ claims of discrimination of Latinos by Rush in its employment opportunity practices.

64. The reports by Dr. Villemez suffer from serious shortcomings which vitiate their probative value. For the purposes of comparison, he divided the Rush workforce into eight broad job categories (corresponding to the job categories used in EEO-1 reports) and compared the actual percentage representation of Latinos in each category at Rush with various estimates drawn from census data of Latino availability for such categories. He used various census data, including national, Chicago SMSA, City of Chicago and CES Area I, but provided no rationale for their selection and claimed no expertise in doing so. CES Area I is an inappropriate labor market for any jobs at Rush. The area bore no relation to any determinence of labor supply; the area was too small to be used even for blue collar jobs.

65. Dr. Villemez failed to establish any foundation that the definitions of availability used in his Reports measured the availability of Latinos who were qualified for the jobs in question at Rush. He conceded that his availability estimates were based on personal assumptions only, and that he did not know whether the census data he used in estimating Latino availability for jobs at Rush were based on comparable jobs in terms of skill requirements and qualifications. Dr. Villemez chose national employment data for the hospital industry as the most appropriate “proxy population” for the professional and technical jobs at Rush; he did not know whether the jobs designated as professional and technical at Rush were comparable in terms of skill requirements and qualifications. Unlike Dr. Neumann who testified for the defendants, Dr. Villemez compared Rush’s nurses to all U. S. hospital industry professional and technical workers, and thereby included many jobs unrelated to nursing in his comparison. Any availability analysis must be based upon a labor pool restricted to those individuals who qualify to form the jobs in question. Therefore, it cannot be found that Dr. Villemez’s findings of Latino underemployment in broad occupational categories are probative of the discrimination in employment opporunities alleged by the plaintiffs. The confidence of this court in Dr. Villemez’s reports is further undermined by his method of adding the employment figures at Rush for each year between 1972 and 1978 and then using cumulative totals for comparative purposes. This procedure, Dr. Neumann for the defendants testified, is incorrect because it keeps counting as independent statistical events, an individual’s continued employment in successive years under study, when such employment is not in fact independent for each year. This methodological error results in findings of statistically significant underemployment, when under correct statistical techniques, none will be found. Thus, when Dr. Neumann for the defendants replicated Dr. Villemez’s analysis using average rather than cumulative employment figures for 1972-79, with one exception, he found no evidence of statistically significant underemployment. That one exception was in the professional and technical job category using EEOC-1 reports as a data source, which for reasons of noncomparability of data as discussed above, is of no probative worth.

66. Dr. Villemez’s study did not include any analysis of applicant flow or new hire data for Rush during the limitations period relevant to this proceeding, although he and Dr. Neumann agreed that applicant hire data was the most probative availability data for determining whether there is statistical evidence of discrimination in employment. Courts recognize applicant flow data to be the preferred basis for statistical inquiry into possible employment opportunity discrimination because it does not include pre-statute of limitations period conduct by an employer. Statistical studies which do not exclude the effects of pre-limitation period employment practices cannot be relied upon for establishing actionable discrimination. Unlike Dr. Villemez, Dr. Neumann for the defendants compared the percentage of Latino applicants interviewed with the percentage of Latino hires for the years 1973-1979, and found no evidence of discrimination. For this case, complete applicant flow data does not exist because “walk-in” applicants at Rush are not coded by race or ethnicity. There is no evidence in this record which would show that Latino applicants were disproportionately and discriminatorily excluded from the interview process. Dr. Neumann used the best measure of applicant flow data available in this case; his analysis is entitled to substantial weight under the authorities and decisions construing rights, duties and liabilities under Title VII.

67. Dr. Neumann’s report contained analyses that were based on Latino employment figures obtained from COMSHARE data, that was the result of recoding of certain employees to a Hispanic designation undertaken by defendants after this lawsuit was commenced. The recoding or reclassification of some persons in Rush’s workforce based on surname and on other evidence of Hispanic ancestry where available was proper. The recoding was undertaken in direct response to this court’s class definition which adopted plaintiffs’ complaint definition that the class consisted of “any Spanish-surnamed person or individual of Hispanic ancestry residing in the City of Chicago,” And, in response to plaintiffs’ discovery requests, the recoding methodology was disclosed to plaintiffs by defendants’ lead counsel beginning at least in January of 1979, long before trial. Neither the recoding nor the source of the COMSHARE data was challenged by plaintiffs until the time of the trial in this case. It is reasonably to be inferred that plaintiffs accepted both the purpose and the method of the recoding. Moreover, the recoding was conservative in that it did not designate as Latino some persons who could so have been considered.

68. Filipinos were not recoded to Latino by Rush but do originate from a country colonized by Spain and could be considered as of Hispanic ancestry. Plaintiffs’ and this court’s original class definition was reasonably appropriate in determining with some degree of accuracy the actual number of Latinos in the general population and in Rush’s employ. This was the substance of Dr. Neumann’s testimony on the point. He noted that while not all Spanish-surnamed persons are Hispanic, many persons who do not have Spanish surnames are of Hispanic ancestry. In his expert opinion, the over- or under-count effects of both aspects of the definition would cancel each other out.

69. The employment data in Rush’s EEO-1 reports are not an accurate portrayal of the number of Latinos in its workforce. Rush’s record keeping with respect to Latinos (and probably other groups) was not done with surgical precision, even assuming such was possible given conflicting and confusing definitions of Hispanic persons promulgated by agencies of the United States government. The EEO-1 reports contained inacurate figures and understated the number of Latinos employed at defendants’ Medical Center.

70. Plaintiffs’ evidence regarding the numbers of persons promoted at Rush by race and sex from 1973 to 1978 does not establish that any Rush employment practices discriminated against Latinos. There is no showing as to either the comparative number of Latinos and non-Latinos who applied for promotion, or the number of Latinos qualified for promotion to the various non-entry level jobs at Rush. The uncontradicted testimony of Dr. Neumann and common sense establish that no meaningful statistical analysis of promotions can be performed without such information. Although plaintiffs introduced Rush’s EEO-6 reports for the years 1976 and 1978, no showing was made by them as to the availability of Latinos who qualified for the positions covered; and without such data, the EEOC reports have no probative value with respect to the issues in this case.

71. There is no direct or statistical evidence to prove plaintiffs’ class allegations. Even if plaintiffs made out a prima facie case, the court finds that Dr. Neumann’s report and testimony rebut any inference of discrimination which can be drawn from the evidence. The burden of persuasion in proving classwide discrimination remains on the plaintiffs; and from all the evidence adduced at trial, the court finds plaintiffs have failed to establish any such discrimination by defendants.

72. There is no evidence in this record to support the individual or class claims against Rush. There is no evidence to support the individual or class claims of purposeful and intentional discrimination under 42 U.S.C. §1981 against defendants Campbell and Freeman. There is no evidence to show that either individual defendant knowingly engaged or participated in any unlawful discriminatory act against any Latinos, or in the formulation or application of any discriminatory policy or practice which could give rise to personal liability under 42 U.S.C. §1981 .

II. Conclusions of Law

A. In general

1. This court has jurisdiction of the parties hereto and of this action pursuant to 28 U.S.C. §§1343(3)(4), 42 U.S.C. §2000e-5(f)(3) (Title VII), and 42 U.S.C. §1981 .

2. The time limitation relative to plaintiffs’ claims alleged in Count I (Title VII) is a date 300 days prior to the date a charge of discrimination was filed with EEOC. In the case of the plaintiff Garcia, the date is May 3, 1975; in the case of the plaintiff Perez, the date is February 16, 1976. Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, 80 F.R.D. 254, 262 (N.D. Ill. 1978).

3. The opening date for the inquiry relative to plaintiffs’ claims alleged in Count II ( §1981), is controlled by the most appropriate Illinois statute of limitations. This is the Illinois general five year statute which has been held applicable to statutory civil rights claims of employment-related racial or national origin discrimination. Beard v. Robinson, 563 F.2d 331 (7th Cir. 1977); Teague v. Caterpiller Tractor Co., [15 EPD ¶7889 ] 566 F.2d 7 (7th Cir. 1977).

4. The jurisdiction of this court over the defendant Rush-Presbyterian-St. Luke’s Medical Center is pursuant to 28 U.S.C. §1343(3)(4); 42 U.S.C. §1981 , and 42 U.S.C. §2000e-5(f)(3). The jurisdiction of this court over the individual defendants, James A. Campbell and Charles A. Freeman is limited to 28 U.S.C. §1343(3)(4) and 42 U.S.C. §1981 since no EEOC charge was filed against these defendants.

B. With respect to the plaintiff Garcia

5. The legal standard for determining whether the plaintiff has established a prima facie case of discriminatory discharge under §703 of Title VII has been set forth by the United States Court of Appeals for this circuit in Flowers v. Crouch-Walker Corp. [14 EPD ¶7510 ], 552 F.2d 1277 (7th Cir. 1977), as follows:

(1) that the plaintiff was a member of a racial minority; (2) that he was qualified for the job he was performing; (3) that he was satisfying the normal requirements in his work; (4) that he was discharged; and (5) that after his discharge the employer assigned white employees to perform the same work. (552 F.2d at 1282)

6. An analogous standard applies to a claim of retaliatory discharge under §704(a) of Title VII. In McDonnell Douglas Corp. v. Green, [5 EPD ¶8607 ] 411 U.S. 792 (1973), the Supreme Court stated, with respect to such claims, that a plaintiff must show:

(i) the employee engaged in activity protected by Title VII, such as participation in EEOC proceedings; (ii) the employer knew that the employee participated in protected activity; and (iii) the employee was discharged following participation in protected activities within such period of time and in such a manner that the court can infer retaliatory motivation. (411 U.S. at 802 n.2)

7. Not all forms of employee conduct are “protected” and insulted from employer disciplinary action. This principle was recognized by the Supreme Court in McDonnell Douglas Corp. (411 U.S. at 803) and by the First Circuit Court of Appeals in Hochstadt v. Worcester Foundation [11 EPD ¶10,644 ], 545 F.2d 222 (1976). The point was emphasized by the court when it stated:

[w]hether plaintiff’s overall conduct was so generally inimical to her employer’s interests, and so ‘excessive,’ as to be beyond the protection of Section 704(a) even though her actions were generally associated with her complaints of illegal employer conduct. (545 F.2d at 233)

8. Actions which are neither illegal nor physically damaging to persons or property may be disruptive, and constitute valid reasons for discharge despite a claim that the discharge violated §704(a). Garrett v. Mobil Oil Corp. [11 EPD ¶10,744 ], 531 F.2d 892, 896 (8th Cir. 1976).

9. The plaintiff Garcia has failed to make out either a prima facie case or prove a case of discriminatory or retaliatory discipline or discharge under Title VII because the documentary evidence from her personnel and disciplinary file, upon which the decisions were made, shows that Rush officials disciplined her, and later discharged her, not because she was a Latino or seeking to protect Latino rights, but because they concluded that her conduct, at least as reported by other employees and evaluated against the facts of her employment history, was disruptive and violated many fundamental institutional policies, contrary to Garcia’s obligations as a Rush employee. The documents in Garcia’s personnel and disciplinary file were introduced by her and were admitted without restriction as to the truth of their contents. More important, these documents in their entirety go to defendants’ nondiscriminatory motive in discharging Garcia. Board of Trustees of Keene College, et al. v. Sweeney [18 EPD ¶8673 ], 439 U.S. 24, 25 n. 2 (1978); Woods v. North American Rockwell Corp. [6 EPD ¶8685 ], 480 F.2d 644, 645-6 (10th Cir. 1973).

10. As to Garcia’s burden of proof, under both her §703 and §704(a) claims, the evidence conclusively shows that Rush’s discipline and discharge decisions were not motivated by her race, national origin, or her interest and activity on behalf of Latino employees. The decisions were based on the well-found belief that Garcia was a meddlesome, fractious employee who consistently broke Medical Center rules and policies, including those concerning patient care and confidentiality. Rush’s proffered reasons for discharging Garcia were not pretextual. Garcia, as required by case law, failed to adduce any evidence so showing; but contented himself with partial denials of certain insignificant aspects of the misconduct of which she was accused. The record shows that Garcia engaged in disruptive misconduct which warranted her discipline and discharge for reasons having nothing to do with her race, national origin, or her representational activities. Hochstadt v. Worcester Foundation, supra at 231, 233; Garrett v. Mobil Oil Corp., supra; Brown v. Ralston-Purina Co. [14 EPD ¶7665 ], 557 F.2d 570 (6th Cir. 1977); Ammons v. Zia Co., [3 EPD ¶8329 ] 448 F.2d 117, 120-21 (10th Cir. 1971).

11. Although Garcia engaged in certain activities within the ambit of §704, and Rush knew of them, her suspension and discharge, four years or more after she began to engage in these activities, does not support an inference of retaliatory motive so as to satisfy the third element of the McDonnell-Douglas test. To the contrary, in light of Garcia’s open and even notorious involvement in Latino employment problems, the fact that she engaged in written communications with her employer concerning her views, for more than four years prior to her discharge, it is difficult to conclude that Rush suddenly acted from a retaliatory motive.

12. There is no evidence in the record to show that any other non-Latino was treated less favorably than was Garcia, or was permitted to engage in the same or similar conduct without discipline or discharge. The absence of such evidence which, as noted, is the “central focus of the [discrimination] inquiry,” Furnco Construction Co. v. Waters [17 EPD ¶8401 ], 438 U.S. 567 (1978), is fatal to Garcia’s §703 claim.

13. Therefore, as to the individual claims Garcia alleges in Count I under Title VII and in Count II under §1981, the evidence does not establish, by the standard of proof required by law, that she was subjected to any disparity of treatment, or to any discrimination against her, because of her race, color, national origin, or because she is a Latino. For these reasons, defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, and Charles A. Freeman are entitled to judgment in their favor and against the plaintiffs as to each individual claim of the plaintiff Garcia.

C. With respect to the plaintiff Romero

14. His claim for relief is based solely on 42 U.S.C. §1981 . He must satisfy the elements of prima facie proof laid down by the Supreme Court in McDonnell Douglas v. Green [5 EPD ¶8607 ], 411 U.S. 792 (1973) and discharge his burden of proof. He must show that Rush’s failure to offer him a job resulted from an intent to discriminate against him on the basis of his race. An essential element of a §1981 claim is “purposeful racial discrimination,” i.e., that the employer’s “decision was motivated by an intent to exclude [racial minorities].” Stewart v. Hannon [20 EPD ¶30,223 ], 469 F.Supp. 1142 (N.D. Ill. 1979).

15. The evidence does not prove that Romero was subject to purposeful racial discrimination by Rush or any of the other two defendants. Rush’s declared and enforced policy was to afford every person full employment opportunity without discrimination based on race, color, national origin, sex, or religion. None of the individual defendants subjected Romero to any invidiously discriminatory treatment.

16. Romero’s testimony establishes that Rush, through its agents who dealt with him, treated him better than other possible employers had, none of whom would ever entertain an application from him when he sought an employment opportunity. It was Rush’s Employment Manager Lewandowski who suggested to Romero that he apply for the maintenance mechanic position, one more suited to his background and experience and which paid more than the housekeeping job that initially led him to the Medical Center. It is significant that Romero applied to Rush for a job partly in response to an ad which defendants had placed in a Spanish-language newspaper. Consequently, these facts compel the conclusion that Rush was a nondiscriminatory, solicitous prospective employer; one who at no time acted with the unlawful intent required for a showing of a §1981 violation.

17. Therefore, as to the individual claims Romero alleges in Count I under §1981, the evidence does not establish by the standard of proof required by law, that he was subjected to any disparity in treatment, or to any discrimination against him, because of his race, color, or because he is a Latino. For these reasons, defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell and Charles A. Freeman are entitled to judgment in their favor and against the plaintiffs as to each individual claim of the plaintiff Romero.

D. With respect to the plaintiff Perez

18. She was not discriminatorily denied a transfer to the LLT position. Perez was not qualified for the job she was seeking. Doris Smith, a Negro woman who had the responsibility to make the employment decision, did not in any way take into account Perez’s race, color, national origin, or the fact that she was a Latino. Perez’s blood drawing experience was limited to the healthy out-patients she saw at MRFIT. She was manifestly unfamiliar with the variety of patients seen in a hospital setting, and the circumstances under which blood is drawn from those patients. Both Olson, who had interviewed many candidates previously, and Smith, under whose supervision LLTs worked, concluded that Perez’s background was only minimally useful in the in-hospital setting involved, and sought the most experienced and qualified candidates available. Given those independent evaluations, which Perez did not overcome in any respect, she plainly has not met her burden of proof under the McDonnell-Douglas standard as applied by the Seventh Circuit in Holder v. Old Ben Coal Co.,--F.2d--, 21 F.E.P.Cases 1462, 1465 (1980). In fact, the evidence disproves her claims.

19. It shows that the next position following Perez’s initial application was given to a Latino; that two of the next nine positions were given to Latinos, with the remainder going to persons who were Negroes. The evidence shows, without dispute, since it consists mainly of her own testimony under oath, that Perez engaged in dischargeable conduct on August 12, 1976, either the same day or the day before she had a conversation with Smith regarding an LLT position, and it appears to the court that the discharge therefore was an intervening occurrence which prevented Perez from being offered any LLT position which she was then pursuing. The evidence did not support a finding of discriminatory denial of transfer to Perez to the LLT position under Title VII, or, a fortiori, under §1981.

20. Although the court accepted evidence with respect to alternative clerical job opportunities as relevant background, it is clear that Perez had not claimed discrimination regarding those opportunities in either her judicial complaint or her underlying EEOC charge. The court must conclude that no evidence of discrimination exists with respect to clerical opportunities on the basis of the few facts adduced because, among other things, there is no evidence in this regard regarding any specific clerical jobs, or who might have received them.

21. Therefore, as to the individual claims Perez alleges in Count I under Title VII and in Count II under §1981, the evidence does not establish, by the standard of proof required by law, that she was subjected to any disparity of treatment, or to any discrimination against her, because of her race, color, national origin, or because she is a Latino. For these reasons, defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, and Charles A. Freeman are entitled to judgment in their favor and against the plaintiffs as to each individual claim of the plaintiff Perez.

E. With respect to the class claims

22. With respect to the class claims alleged in Count I and Count II of the complaint, plaintiffs have failed to sustain their burden of proof on the issues of disparate treatment or disparate impact; and even if it can be said that plaintiffs made some kind of a prima facie case, defendants’ evidence, which focused on the alleged acts of discrimination, is more probative and overwhelmingly proved that no discrimination on the basis of race, color, national origin, or the fact that members of the class were Latinos, occurred during the time periods relevant to this action.

23. Therefore, as to the class claims which the representative plaintiffs allege on behalf of “all Latinos who, because of their race, national origin or opposition to defendants’ unlawful employment practices have been or are denied equal employment opportunities by the defendants” in Count I under Title VII and in Count II under §1981, the evidence does not establish, by the standard of proof required by law, that they, or any of them, were subjected to any disparate treatment or were the object of any disparate impact, because of their race, color, national origin, or because any of them were Latinos. For these reasons, defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, and Charles A. Freeman are entitled to judgment in their favor and against the plaintiffs as to all of the class claims alleged by the representative plaintiffs in this civil action.

III. Order To Be Entered

Based on these Findings of Fact and Conclusions of Law, judgment will be entered in favor of the defendants Rush-Presbyterian-St. Luke’s Medical Center, James A. Campbell, and Charles A. Freeman and against plaintiffs Magdalena Garcia, Fernando Romero, and Victoria Perez, and the class on whose behalf they bring this action. Costs to follow as by law provided. An appropriate judgment order will be entered.

Judgment

This civil action came on for trial before the court without a jury. The evidence adduced by the parties having been heard, the issues having been duly tried, and the court having made its Findings of Fact and Conclusions of Law and entered the same simultaneously herewith,

It is Ordered and Adjudged that the plaintiffs take nothing by their complaint, that judgment be and the same is entered on the merits in favor of each and every defendant, with costs as provided by law to be taxed against the plaintiffs.