York v. American Tel. & Tel. Co.

Decision Date27 August 1996
Docket NumberNo. 95-6068,No. 2021,2021,95-6068
Citation95 F.3d 948
Parties73 Fair Empl.Prac.Cas. (BNA) 1654, 70 Empl. Prac. Dec. P 44,710 Patricia YORK, Plaintiff-Appellant, v. AMERICAN TELEPHONE & TELEGRAPH CO.; International Brotherhood of Electrical Workers, Local Union; Robert Lee, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Joseph R. Weeks, Oklahoma City University School of Law, Oklahoma City, Oklahoma (Marilyn D. Barringer, Oklahoma City, Oklahoma, with him on the briefs), for Appellant.

Debra B. Cannon, McKinney, Stringer & Webster, Oklahoma City, Oklahoma (Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, Oklahoma, and Marc E. Manly, Law Vice President and Solicitor General, AT & T Corp., Basking Ridge, New Jersey, with her on the brief), for Appellee AT & T.

Loren F. Gibson (George J. McCaffrey with her on the brief), Lampkin, McCaffrey & Tawwater, Oklahoma City, Oklahoma, for Appellee IBEW Local 2021.

Before SEYMOUR, Chief Judge, TACHA, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Patricia York sued the American Telephone and Telegraph Company ("AT & T"), the International Brotherhood of Electrical Workers, Local Union No. 2021 ("IBEW"), and Robert Lee under Title VII, alleging sex-based disparate treatment and disparate impact discrimination. A jury found for the defendants, and the district court denied York's motion for a new trial. York now appeals the district court's (1) refusal to give particular jury instructions, (2) grant of summary judgment to IBEW on her disparate treatment claim, (3) rulings on her motions in limine, (4) refusal to take judicial notice of the disparate impact of AT & T's two-year experience requirement for the position in question, (5) refusal to grant a new trial, and (6) grant of summary judgment in favor of the defendants on her public policy claim. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

In July 1992, AT & T posted an advertisement for the position of Group I Operating Engineer in the powerhouse of the AT & T plant in Oklahoma City, Oklahoma. The position involved the operation and maintenance of a variety of powerhouse machinery, including steam turbines, boilers, chillers, and compressed air systems, as well as the monitoring of a control panel to prevent an explosion from occurring in the boilers and steam-driven machinery. The position entailed considerable responsibility for the safety of property and other workers.

AT & T's collective bargaining agreement with IBEW required AT & T to fill vacancies in the Operating Engineer position through the use of a bid procedure, by which interested employees submitted bids, or applications, for the job. The agreement obliged AT & T to accept the bid of the most senior applicant meeting the job qualifications described in the agreement. The job qualifications for the Operating Engineer position, as replicated in the advertisement for the position, were:

(1) Completion of an accredited trades training course or equivalent knowledge and skill acquired by means of practical experience.

(2) Demonstrated ability of basic skills associated with this trade.

In 1989, three years prior to applying for the advertised Operating Engineer position, York asked Joe Srejma, the powerhouse supervisor at the time, how she could "get in the boilerhouse." He stated that she would have to complete a vocational training course and obtain a Class I license for boiler operation. Although he did not specifically mention the requirement of prior practical experience, at the time of their conversation two years of experience was a prerequisite for obtaining a Class I license in Oklahoma City.

Initially, AT & T only advertised the job opening within the Oklahoma City facility. York and seven other employees submitted bids for the position. York was the only woman among the eight applicants. Robert Lee, the first line supervisor over the Operating Engineers, interviewed the applicants and determined that none of them possessed the stipulated minimum qualifications for the position. York, who had worked for approximately twenty-three years in the Maintenance Department at the Oklahoma City plant, was the most senior applicant. She had also completed two vocational courses on low- and high-pressure boilers and had received a Class I license for boiler operation from the City of Oklahoma City. However, by the time she received her Class I license two years experience was no longer a requirement. Consequently, she possessed no practical experience in the area and thus failed to meet the job qualification of "skill acquired by means of practical experience." AT & T's longstanding hiring practice had been to require Operating Engineer candidates to possess two years of experience in order to satisfy this requirement.

After Lee determined that there were no qualified candidates within the Oklahoma City facility, AT & T human resources personnel placed the job advertisement on AT & T's Automated Transfer System ("ATS"), a computer system that advertises positions nationally within AT & T. Two AT & T employees from outside Oklahoma City submitted bids on the ATS. One of these applicants, R.D. Matthews, had nine years of previous experience as an Operating Engineer at another AT & T facility and met all of the posted qualifications. AT & T ultimately selected him for the position.

Prior to the hiring of Matthews, Lee informed York that the experience requirement was absolute and that she did not meet the posted qualifications for the position. York then asked her IBEW representatives to file a grievance on her behalf protesting the determination that she was not qualified. The union representatives refused to do so, agreeing with AT & T's view that the collective bargaining agreement required Operating Engineers to possess practical experience. At that point, York asked her union representatives to speak with company management on her behalf to induce them to discontinue the search for an Operating Engineer and instead create a powerhouse trainee position. York would then apply for that position. Testimony offered at trial conflicts as to whether IBEW representatives ever made such a request on York's behalf. In any event, IBEW declined to file a grievance against AT & T or officially contest the company's decision on this issue. York also made her request directly to Lee. Lee refused to stop the search for an Operating Engineer and create a trainee position because he believed that the collective bargaining agreement required AT & T to first readvertise the Operating Engineer position on the ATS. York then brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, alleging sex-based disparate treatment and disparate impact discrimination in AT & T's hiring practices. After a four-day trial, the jury returned a verdict in favor of the defendants on all claims.

York maintains that she understood the first qualification in the advertisement for the Operating Engineer position to state two alternative, rather than mandatory, requirements. The qualification reads: "Completion of an accredited trades training course or equivalent knowledge and skill acquired by means of practical experience." York interpreted this language with emphasis on the word "or" as the division point between the two alternatives. That is, she believed that either (1) the completion of an accredited training course or (2) equivalent knowledge and skill acquired by means of practical experience would have satisfied the qualification. However, the drafters of the agreement, AT & T and IBEW, intended the emphasis to fall on the word "and." Understood this way, the qualification contained two requirements, both of which had to be satisfied: (1) completion of a training course or equivalent knowledge and (2) practical experience.

II. The Jury Instructions

We review a district court's refusal to give a requested jury instruction for abuse of discretion. United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 247, 133 L.Ed.2d 173 (1995). However, we review de novo the question of whether the court's instructions, considered as a whole, properly state the applicable law and focus the jury on the relevant inquiry. Id. York challenges the instructions offered by the court on four grounds. First, she contends that the court erred by only presenting the fact-finding framework for assessing indirect evidence of discrimination laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and not also instructing the jury that a plaintiff may alternatively show that sexually discriminatory reasons motivated an employer by presenting direct evidence of discrimination. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985); Long v. Laramie County Community College Dist., 840 F.2d 743, 748-49 (10th Cir.), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 50 (1988). York did not raise this objection at trial. In the absence of a proper objection, we review a district court's instructions for plain error. Palmer v. Krueger, 897 F.2d 1529, 1532-33 (10th Cir.1990).

York maintains that she submitted direct evidence of discrimination in the form of testimony from two witnesses, Patricia Giddens and Mark Sloan. Giddens testified that prior to the posting of the Operating Engineer advertisement, she asked Lee whether he was going to hire York for a position in the powerhouse. Lee answered, "No, I'm not," and then explained that there was not an opening at that time and that York did not yet possess a Class I license. Sloan testified that, in a conversation with Lee that occurred after York had already been informed that she was not qualified for the position, he...

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