Mortensen v. Callaway

• Decision Date: 18 March 1982
• Docket Number: No. 80-1726,80-1726
• Citation: 672 F.2d 822
• Parties: 29 Fair Empl.Prac.Cas. 111, 28 Empl. Prac. Dec. P 32,528 Jewel M. MORTENSEN, Plaintiff-Appellant, v. Howard H. CALLAWAY (Martin Hoffman), Secretary, United States Department of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 822

672 F.2d 822

29 Fair Empl.Prac.Cas. 111,

28 Empl. Prac. Dec. P 32,528

Jewel M. MORTENSEN, Plaintiff-Appellant, v. Howard H. CALLAWAY (Martin Hoffman), Secretary, United

States Department of the Army, Defendants-Appellees.

No. 80-1726.

United States Court of Appeals, Tenth Circuit.

March 18, 1982.

Brad L. Swaner of Swaner & Taylor, Salt Lake City, Utah, for plaintiff-appellant.

Ralph H. Johnson, Asst. U. S. Atty., Salt Lake City, Utah (Wallace Boyack, Asst. U. S. Atty., and Ronald L. Rencher, U. S Atty., Salt Lake City, Utah, on brief), for defendants-appellees.

Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Jewel Mortensen, a civilian chemist working for the United States Army's Dugway Proving Ground in Utah, asserts she was passed over for a position as supervisory chemist because she is a woman, in violation of the equal rights guarantees of Title VII, specifically 42 U.S.C. § 2000e-16(a) (employment discrimination in federal government). Further, Mortensen argues that after she complained of discrimination she suffered retaliatory harassment, in violation of 42 U.S.C. § 2000e-3(a), that was not fully remedied in administrative proceedings she pursued. On appeal we agree with her contention that she made a prima facie showing of sexual discrimination, but we affirm the trial court's conclusions denying Mortensen relief.

Sitting without a jury, the trial court held that Mortensen had failed to make a prima facie case; but that even if Mortensen had established a prima facie case, the Army had satisfactorily rebutted it by showing a legitimate reason for choosing another for the position. As to Mortensen's claim of retaliatory harassment, the trial court found that the incidents of which she complained were not the product of retaliation, but had resulted from the new supervisor's efforts to enforce the installation's work rules and from a clash of personalities between Mortensen and the new supervisor. Our review of the trial court's factual findings is limited to whether they were clearly erroneous. Williams v. Colorado Springs School Dist., 641 F.2d 835, 843 (10th Cir. 1981).

Relying on McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the trial court held that to establish a prima facie case of disparate treatment, Mortensen had to show (1) she belonged to a class protected by Title VII; (2) she applied for a promotion for which she was qualified; (3) she was rejected for that position; and (4) after her rejection, the position remained vacant. Because Mortensen failed to show that the position had remained open, the trial court found that she had not established a prima facie case. But the McDonnell Douglas criteria are "not necessarily applicable in every respect to differing factual situations." Id. at 802 n.13, 93 S.Ct. at 1824. Under the circumstances of this case, Mortensen established a prima facie case by fulfilling McDonnell Douglas's first three criteria and showing that the position was filled by another. See Aikens v. United States Postal Serv., 642 F.2d 514, 517 (D.C.Cir.1980), cert. denied, --- U.S. ----, 101 S.Ct. 3135, 69 L.Ed.2d 989 (1981); Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 281 (4th Cir. 1980); Ambush v. Montgomery County Gov't Dep't of Finance, 620 F.2d 1048, 1052 (4th Cir. 1980).

The trial court also found that even if Mortensen had established a prima facie case, thus shifting to the employer the burden of articulating a legitimate, nondiscriminatory reason for her rejection, see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), the Army had met its burden by showing "a legitimate basis for concluding that the party selected was relatively more qualified and had a higher probability of success in that position." Considerable evidence supports that conclusion. Doctor Kenneth Brauner, head of the Chemical Laboratory Division, was responsible for recommending a new branch supervisor. The civilian personnel office gave him a list of three individuals qualified for the position. One of them, he learned, was not interested in the position. The other two candidates were Mortensen and John Van Liere. Brauner had known and worked with Mortensen for approximately ten years and with Van Liere for six years. To assess their suitability for the position, Brauner assigned each of them to the position of branch supervisor for sixty days. At the end of that time he interviewed them both, asking the same nine questions which ranged from why they wanted the position to what changes in branch organization they would recommend. Brauner evaluated them according to forty-two attributes he believed were important for the managerial position, and as to each attribute he gave them a numeric rating from zero to four. These attributes were grouped under the general...