979 F.2d 1462 (10th Cir. 1992), 90-1043, Kenworthy v. Conoco, Inc.

Docket Nº:90-1043.
Citation:979 F.2d 1462
Party Name:, 24 Fed.R.Serv.3d 610, 1 Wage & Hour Cas.2d (BNA) 479 Patricia J. KENWORTHY, Plaintiff-Appellee, v. CONOCO, INC., Defendant-Appellant.
Case Date:November 19, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1462

979 F.2d 1462 (10th Cir. 1992)

, 24 Fed.R.Serv.3d 610,

1 Wage & Hour Cas.2d (BNA) 479

Patricia J. KENWORTHY, Plaintiff-Appellee,


CONOCO, INC., Defendant-Appellant.

No. 90-1043.

United States Court of Appeals, Tenth Circuit

November 19, 1992

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[Copyrighted Material Omitted]

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Bruce A. Hubbard, of Lapin and Herrick-Stare, P.C., Denver, Colo. (David L. Lenyo, with him on the brief), for defendant-appellant.

Valerie McNaughton, McNaughton & Rodgers, Denver, Colo. (Tim Correll, The Correll Law Office, P.C., Denver, Colo., with her on the brief), for plaintiff-appellee.

Before SEYMOUR and ANDERSON, Circuit Judges, and OWEN, District Judge. [*]

SEYMOUR, Circuit Judge.

Patricia Kenworthy brought this action against Conoco, Inc., asserting, inter alia, violations of 29 U.S.C. § 206(d)(1) (Equal Pay Act) and 42 U.S.C. §§ 2000e et. seq. (1988) (Title VII), arising from her failure to be promoted and her eventual discharge. 1 Ms. Kenworthy's Equal Pay Act claim was tried to a jury, which found in her favor and awarded her backpay. In her Title VII claims, which were tried to the court, Ms. Kenworthy alleged that Conoco discriminated against her on the basis of her sex and Hispanic national origin, and retaliated against her for filing discrimination charges. The court found that Conoco did not discriminate against Ms. Kenworthy with respect to either the denial of her promotion or her discharge. Although the court also ruled against Ms. Kenworthy on her retaliatory discharge claim, it found in her favor on her claim that Conoco's failure to promote her was in retaliation for her filing the discrimination claim.

Conoco appeals, arguing that the verdict on the Equal Pay Act claim was not supported by the evidence and, alternatively, that the district court erred with respect to the award of prejudgment interest on that claim. Conoco also contends that the district court was clearly erroneous in finding that Conoco's refusal to promote Ms. Kenworthy was retaliatory. Ms. Kenworthy asserts that Conoco's notice of appeal was not timely.


Because the timely filing of a notice of appeal is a jurisdictional requirement, see Browder v. Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978), we address that issue first. The disposition by the lower court of the claims in this case occurred in several stages. On November 17, 1988, a judgment on the jury verdict in favor of Ms. Kenworthy's Equal Pay Act claim was entered on the docket. On January 5, 1989, the court issued findings and conclusions resolving the merits of the Title VII issues without awarding damages on Ms. Kenworthy's successful retaliation claim. On July 11, 1989, the court issued an order that set the amount of damages on this claim.

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On December 4, 1989, the parties filed a joint motion for entry of final judgment. In support of this motion, the parties asserted that judgment had never been entered on the July 11 order awarding Ms. Kenworthy damages on her Title VII claim, and that the court had not ruled on the parties' stipulation as to prejudgment interest on the Equal Pay Act claim. Two days later on December 6, the court entered an order awarding Ms. Kenworthy prejudgment interest on her Equal Pay Act claim in accordance with the stipulation of the parties. This action by the court resolved the last remaining issue in the case aside from the amount of costs and attorneys' fees. 2

Finally, on January 25, 1990, in accordance with an order for entry of final judgment issued by the court on January 19, a final judgment was entered on the docket. The court's order recited that it incorporated "by reference the Partial Judgment [on the Equal Pay Act claim] and addresses the remaining Title VII issues which the court had taken under advisement." Rec., vol. I, doc. 19. The order awarded Ms. Kenworthy damages plus interest on her two successful claims. Conoco filed a notice of appeal within thirty days of this order.

Ms. Kenworthy now asserts that the December 6, 1989 order directing the award of prejudgment interest on the Equal Pay Act claim resolved the only outstanding issue in the case and that, contrary to the understanding of the parties when they filed their joint motion for entry of final judgment, judgment on the Title VII claim had in fact already been entered on the docket at the time the December 6 order was docketed. Accordingly, Ms. Kenworthy argues that the December 6 order was the final judgment and that the time for appeal began to run from entry of that order. Under this analysis, the February 23 notice of appeal would be untimely.

Under 28 U.S.C. § 1291 (1988), this court has jurisdiction only of appeals from final decisions of the district court. Rule 58 of the Federal Rules of Civil Procedure sets out the requirements for the entry of a judgment that is final for purposes of section 1291. 3 A final judgment entered in compliance with Rule 58 begins the time period for the filing of a notice of appeal. See Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 754 (9th Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986).

We have held that a district court order which contains no discussion of the reasoning behind the court's decision and cannot be considered to be an opinion or memorandum, is clearly intended to be the final directive of the court disposing of all the claims, and is properly entered on the docket, meets the requirements of Rule 58.

Kline v. Dep't of Health & Human Servs., 927 F.2d 522, 523-24 (10th Cir.1991) (citing Laidley v. McClain, 914 F.2d 1386, 1390 (10th Cir.1990)).

The December 6 order, simply styled "order", was entered while the parties' motion for entry of final judgment was pending and did not address all the deficiencies raised in that motion. In contrast, the January 25 entry, styled "CLERK'S ENTRY OF FINAL JUDGMENT", specifically

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addressed all the issues the parties then considered unresolved. Under these circumstances, we do not believe the December 6 order can be viewed as "clearly intended to be the final directive of the court disposing of all the claims." Id. at 524. Even if we were to conclude that the December 6 order met the requirements of Rule 58, we would be presented with circumstances analogous to those at issue in Kline. We held there that a timely appeal from the later order, "which clearly [met] the requirements of Rule 58," id., was sufficient to confer appellate jurisdiction. We conclude accordingly that we have jurisdiction over this appeal.


The facts giving rise to this litigation may be briefly set out as follows. Patricia Kenworthy was hired by Conoco in April 1975 as an accounting clerk in the payroll office. She began at a salary grade three and was raised to a level four after she had worked a few months. In October 1978, Ms. Kenworthy was transferred to the warehouse and began working as a warehouse accounting clerk. She continued in salary level four.

In 1981, Ms. Kenworthy filed a charge with the EEOC alleging that she was being paid at level four for performing accounting work substantially equal to the work performed by men paid at level six. She and Conoco reached a settlement agreement on this charge whereby Conoco raised her to a level five and she agreed to release any Equal Pay Act claims against Conoco for violations occurring up to the settlement date of July 27, 1981.

In September 1983, the warehouse supervisor, Bill Harrison, left that position and Ms. Kenworthy applied for the job. At that point, she had worked for five years as warehouse accounting clerk and had occasionally filled in as acting warehouse supervisor. The position was originally offered to Ray Sanders, who had been a payroll accounting clerk and was currently a yield accountant. He declined the offer. The position was filled by Jim Peterson, a pipefitter/welder. Although Peterson had a college degree, supervisory experience, and a technical background, he had no experience in either purchasing or accounting, functions which Conoco personnel conceded were important to the warehouse supervisor's position. Ms. Kenworthy then filed a second EEOC charge asserting that her failure to be promoted to warehouse supervisor was in retaliation for the 1981 charge, and that she had been denied equal pay.

In April 1985, Ms. Kenworthy was transferred back to the payroll accounting clerk position, under the supervision of Julia Giller. In December of that year, Ms. Kenworthy obtained possession of a thank-you note written by one employee to another. The note had been placed in the trash when the employee's file had been cleaned out. Although the facts surrounding this incident are in some dispute, evidence in the record indicates that Giller considered this note to be confidential information, that the note could have been embarrassing to the writer, and that Ms. Kenworthy showed the note to at least two other Conoco employees. When Giller confronted Ms. Kenworthy with what Giller considered a breach of Ms. Kenworthy's duty as a payroll clerk to keep confidential information confidential, Ms. Kenworthy at first denied any breach. Later, when Ms. Kenworthy realized that Giller was referring to the thank-you note, she admitted showing the note to others but stated that she did not think the note was confidential and that she had shown it in an attempt to improve relations between the note-writer and other employees. Giller terminated Ms. Kenworthy as a result of this incident.

Ms. Kenworthy instituted this lawsuit, contending that Conoco violated the Equal Pay Act by failing to pay her wages equal to those it paid men performing substantially equal work. Ms. Kenworthy also charged that her failure to be given the warehouse supervisor's job and her discharge were the result of sex and national origin discrimination and/or in retaliation for her...

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