Reidt v. County of Trempealeau, 91-3168

• Citation: 975 F.2d 1336
• Decision Date: 23 September 1992
• Docket Number: No. 91-3168,91-3168
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1426, 59 Empl. Prac. Dec. P 41,772 Debra A. REIDT, a/k/a Debra A. Marsolek, Plaintiff-Appellant, v. COUNTY OF TREMPEALEAU and County of Trempealeau Sheriff's Department, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1336

975 F.2d 1336

59 Fair Empl.Prac.Cas. (BNA) 1426,

59 Empl. Prac. Dec. P 41,772

Debra A. REIDT, a/k/a Debra A. Marsolek, Plaintiff-Appellant, v. COUNTY OF TREMPEALEAU and County of Trempealeau Sheriff's Department, Defendants-Appellees.

No. 91-3168.

United States Court of Appeals Seventh Circuit.

Argued June 1, 1992.

Decided Sept. 23, 1992.

William A. Mattka, Whitehall, Wis. (argued), for plaintiff-appellant.

Bruce J. Kostner (argued), Kostner, Ward & Koslo, Richard A. Radcliffe, Arcadia, Wis., for defendants-appellees.

Before CUMMINGS, FLAUM, and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Debra A. Reidt sued the Sheriff's Department of Wisconsin's Trempealeau County ("the Department") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She contends that the Department delayed her promotion from half-time traffic officer to full-time traffic officer because of her sex. After a bench trial, the district court dismissed with prejudice Reidt's disparate treatment claim, and dismissed without prejudice any claims based upon a disparate impact theory. Reidt subsequently filed a motion "for leave to amend complaint and supplementary trial." The court denied this motion and at the same time dismissed Reidt's disparate impact claim with prejudice. Reidt appeals the dismissal of her disparate impact claim, but does not challenge the dismissal of her disparate treatment claim.

I.

Reidt's central complaint concerns the effect of a new position created by the Department ¹ known as a "hybrid" position, which is a half-time jailer and half-time road officer. Since its creation, the hybrid position has been filled only by males. Reidt contends that this new position, as it was applied, denied her advancement within the Department because of her sex. Reidt was hired as a part-time road officer, and her goal was to become a full-time road officer. Since road officers earned more than jailers, apparently some jailers also aspired to become road officers. "Hybrids" earned more than jailers but less than road officers.

There is some confusion in the record about whether the hybrid position was initially intended to be a male-only position, or whether it just happened that way in practice. The ambiguity in the record is caused largely by the Department's use of the term "jailer" in the description of the hybrid position. Some evidence in the record indicates that a jailer could be either male or female. For example, the statement of uncontested facts in the Joint Final Pre-Trial Report states that the Department employs four and one-half "female jailers" and four and one-half "male jailers." At trial, Lieutenant Daniel Schreiner testified that the hybrid position was meant to be sex-neutral. However, Schreiner also testified that "I recognize that the term 'jailer' as being a male term." Tr. at 123. Several other witnesses testified that a jailer was by definition male, and female employees with jail duties were known as "matrons." The Union agreements also distinguish between jailers and matrons. The district court stated that the "hybrid positions * * * were for male jailer positions as defined by the union contract." Tr. at 175.

Reidt was hired on December 1, 1984, as a half-time traffic officer. On or about January 1, 1986, the defendants created the hybrid position. This new position was initially filled by Greg Anderson, who had previously been a full-time jailer. ² Because of Anderson's seniority, Reidt does not complain about his placement in the initial hybrid position. On September 30, 1986, a full-time traffic officer position opened because of a retirement. Anderson was hired for this job and therefore his hybrid position became vacant. Reidt expressed interest in the vacant hybrid position, but was advised that she was ineligible for the job because of her sex.

Reidt was denied the opportunity to apply for the hybrid position because the Department maintained a strict policy of employing four and one-half female jailers (or matrons) and four and one-half male jailers. If Reidt had been hired to replace Anderson after his promotion to full-time traffic officer, this balance would have been upset. The Department apparently maintained this strict equality between male and female jailers in order to comply with the following state law:

Whenever there is a prisoner in any jail there shall be at least one person of the same sex on duty who is wholly responsible to the sheriff or keeper for the custody, cleanliness, food and care of such prisoner.

Wis.Stat., § 302.41.

William Gilbertson, a full-time jailer, was hired to fill the hybrid vacancy created by Anderson's promotion on November 1, 1986. Terrence Daffinson, a part-time traffic officer hired on the same day as Reidt, had also applied for this vacancy. Because Gilbertson changed from a full-time jailer position to a position with half-time jail responsibilities, a half-time jailer opening remained. Daffinson was promoted to a hybrid position that incorporated this half-time jailer position on December 1, 1986. Reidt was told that she did not qualify for the hybrid positions filled by Gilbertson and Daffinson because of her sex.

Because of budget cuts, Reidt was laid off from January 1, 1987, through May 31, 1987. Gilbertson was returned to a full-time jailer position during this period because of the budget cuts. Daffinson was not laid off, despite being hired on the same date and for the same position as Reidt, because he had accumulated more seniority with his new hybrid position. Reidt returned to her part-time traffic officer position, and Gilbertson returned to his hybrid position, in June 1987. In July 1987, two new full-time jailers were hired, apparently to replace retiring jailers. In December 1987, a full-time traffic officer position became available. Reidt and Daffinson both applied for this position. Daffinson received the job, because of his seniority earned in the hybrid position. On January 1, 1988, one of the jailers was promoted to a hybrid position to replace Daffinson, a position for which Reidt applied despite being told again she did not qualify because of her sex. Reidt was eventually promoted to a full-time road officer position on March 1, 1989.

No female jailer resigned or requested a new position within the Department between December 1, 1984, and March 1, 1989. At the time of trial, 11 of the Department's 31 employees were female. Reidt was the only female employee with traffic or highway responsibilities during the period in question.

Reidt filed this class-action complaint in January 1991 after exhausting her administrative remedies. She alleged that the male-only hybrid position adopted by the Department "has had a disparate and discriminatory effect against females" and caused her to be passed over for promotions, all in violation of 42 U.S.C. § 2000e-5(f). On May 14, 1991, the district court denied the Department's motion for summary judgment but granted its motion to deny certification of a class.

After a one-day trial on June 6, 1991, the district court made oral findings of fact and law. The court found that the hybrid position was created by the Trempealeau County Board of Supervisors in order to comply with state law and the union contract, and because it thought the new position would allow for greater flexibility and for cost savings. The district court found that these reasons, even if they were perhaps misguided, were not pretextual and therefore Reidt had failed to prove that sex played a motivating factor in the decision to create the various hybrid positions. The court then stated:

Having said all of that, the Court dismisses the Complaint without prejudice at this point because the Court has a nagging concern about this case and the way perhaps the Court has mistakenly believed it to be tried. * * * [A]lthough a disparate impact case may have been tried to this Court, it certainly wasn't recognizable by that evidence which was submitted today.

And for the opportunity of counsel to address that position, if, indeed, that position is a viable position * * *, the Court at this time is dismissing the Complaint against the Defendants for disparate treatment with prejudice, but * * * at this time, all [other claims set forth in the Complaint], whatever they might be, are dismissed without prejudice. * * *

The other claims that there may very well be in that file, in that Complaint, which either to the Court's satisfaction were not tried before it today or which, indeed, were tried but the Court didn't recognize them, the Court on those other matters will dismiss without prejudice and allow counsel to pursue their own devices.

Tr. at 182-185. Reidt subsequently filed notice of a motion for leave to amend complaint and supplementary trial, which attached a proposed amended complaint and an affidavit by Reidt. The papers submitted by Reidt did not indicate what additional facts she intended to prove in a supplementary trial, nor did they indicate how the evidence already in the record supported her claim under a disparate impact theory.

The district court denied Reidt's request and dismissed all her claims with prejudice in a written order filed August 13, 1991. The court stated that "Had plaintiff been of the opinion that she had presented evidence to support a disparate impact claim at trial, she would certainly have moved for a new trial under Rule 59, Federal Rules of Civil Procedure, presenting those reasons which she believed sufficient to persuade the court * * *." R. 46 at 2. Citing Rossini v. Ogilvy & Mather, 798 F.2d 590 (2d Cir.1986), and Johnson v. Allyn & Bacon, Inc., 731 F.2d 64 (1st Cir.1984), certiorari denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 the court concluded that Reidt was attempting to change her factual allegations, in that disparate impact involves practices facially neutral in practice and in intent, whereas disparate...