Sorensen v. City of Aurora

Citation984 F.2d 349
Decision Date19 January 1993
Docket NumberNo. 91-1348,91-1348
Parties60 Fair Empl.Prac.Cas. (BNA) 1147, 60 Empl. Prac. Dec. P 41,991, 36 Fed. R. Evid. Serv. 1293 Mary J. SORENSEN, Plaintiff-Appellant, v. CITY OF AURORA, Defendant-Appellee, John Speed, in his official and individual capacity, Mark Wildey, in his official and individual capacity, Radford Moore, in his official and individual capacity, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Richard C. LaFond, Arnold M. Woods, Law offices of Richard LaFond, and Richard J. Banta, Denver, CO, for plaintiff-appellant.

Peter Ruben Morales, Charles H. Richardson, Christopher K. Daly, of the Office of Aurora City Atty., Aurora, CO, for defendant-appellee.

BALDOCK and EBEL, Circuit Judges, and LUNGSTRUM, District Judge. 1

LUNGSTRUM, District Judge.

On February 23, 1990, plaintiff-appellant Mary J. Sorensen ("plaintiff") filed a complaint with the U.S. District Court for the District of Colorado against defendant-appellee City of Aurora ("City") and others alleging that defendants had violated Title VII, 42 U.S.C. § 2000(e), et seq., and 42 U.S.C. § 1983 in terminating her employment as a fire dispatcher. The City filed a motion for summary judgment as to plaintiff's Section 1983 claims, which was granted by the District Court on February 8, 1991, 1991 WL 17775. The dismissal also included all individually named defendants.

Trial to the court on plaintiff's two remaining claims, concerning alleged sexual discrimination and retaliation by the City, was had on July 22-24, 1991. On September 10, 1991, the district court issued its findings of fact and conclusions of law in a Memorandum Opinion and Order, 1991 WL 183897, ruling (1) that plaintiff had not met her burden in establishing a prima facie case of sexual discrimination, and (2) that plaintiff had established a prima facie case of retaliation, but that the City had articulated valid, nondiscriminatory reasons for discharging her and plaintiff had failed to prove that the City's articulated reasons for discharging her were pretextual. Accordingly, the district court entered final judgment for the City in an Amended Judgment filed September 11, 1991. We affirm the findings of the district court.

"A finding of intentional discrimination, or a finding of no intentional discrimination, is subject to the clearly erroneous standard of review." Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1237 (10th Cir.1991). A finding of fact is clearly erroneous only "if it is without factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made." LeMaire By and Through LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Id. at 573-74, 105 S.Ct. at 1511-12; Ortega v. Safeway Stores, 943 F.2d 1230, 1237 (10th Cir.1991).

Plaintiff asserts that the district court erred (1) in finding that plaintiff failed to prove discriminatory motive or intent as required by her Title VII disparate treatment claim; (2) in finding that plaintiff failed to prove retaliatory animus as required by her Title VII retaliation claim; and (3) in excluding certain witness testimony offered by plaintiff, which plaintiff contends would have shown discriminatory animus.

Title VII Sex Discrimination Claim

When alleging disparate treatment on the basis of sex, the plaintiff must prove by a preponderance of the evidence that the defendant had a discriminatory motive or intent. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). This may be done either by direct proof of discriminatory intent, or, more commonly, through the "series of shifting evidentiary burdens that are 'intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.' " Id. (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1095 n. 8, 67 L.Ed.2d 207 (1981)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Thus, pursuant to the shifting burden of proof scheme of McDonnell Douglas and subsequent cases, plaintiffs must first establish a prima facie case of discrimination. Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir.1991). Once plaintiffs establish a prima facie case of discrimination, "the burden of production shifts to defendants to rebut the presumption of discrimination." Drake v. City of Fort Collins, 927 F.2d 1156, 1160 (10th Cir.1991) (citing Carey v. United States Postal Service, 812 F.2d 621, 624 (10th Cir.1987)). A defendant can rebut that presumption by producing "some evidence that it had legitimate, nondiscriminatory reasons for the decision." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). Its articulation of those reasons must be "clear and specific." Drake, 927 F.2d at 1160.

If the defendant succeeds in rebutting the presumption of discrimination raised by the plaintiff's prima facie case, then the inquiry returns, as in any civil case, to whether or not the plaintiff has met its burden of persuasion. In that event, the plaintiff must prove by a preponderance of all the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Watson, 487 U.S. at 986, 108 S.Ct. at 2784.

The Supreme Court has cautioned that this shifting burden of proof scheme is only intended to assist in marshalling and presenting relevant evidence. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Watson v. Fort Worth Bank & Trust, 487 U.S. at 986, 108 S.Ct. at 2784 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Further, the ultimate question in a Title VII disparate treatment case is whether the defendant intentionally discriminated against the plaintiff. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Thus, when such a case is fully tried, as here, we need only consider that ultimate question--whether plaintiff proved that the defendant intentionally discriminated against her. The subsidiary steps in the McDonnell Douglas proof scheme become irrelevant. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1237 (10th Cir.1991); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. at 715, 103 S.Ct. at 1482 ("Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant"); McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir.1988) ("[T]his court need not review whether McAlester made a prima facie case where the district court did not dismiss McAlester's claim on United's motion at the conclusion of McAlester's case."); Pitre v. Western Elec. Co., 843 F.2d 1262, 1266 (10th Cir.1988) ("Once the district court makes the ultimate determination as to whether the employer violated [Title VII], its legal conclusions in regard to the first two stages of evaluating the evidence become irrelevant on appeal.").

The crux of plaintiff's sex discrimination claim is a comparison of the treatment of her and the treatment of Mr. Mann for their handling of the Hanlon call. 2 Plaintiff was eventually terminated for her actions regarding the call while Mann did not receive discipline. Plaintiff contends that Mann had shared responsibility and some degree of culpability for the alleged errors in the handling of the Hanlon call. Plaintiff also contends that the district court failed to properly analyze her sex discrimination claim, improperly categorizing it as a sexual harassment claim.

We cannot conclude that the district court's ultimate finding that plaintiff failed to prove that the City had a discriminatory motive or intent in discharging the plaintiff was clearly erroneous. A review of the district court's Memorandum Opinion and Order reveals that there was no confusion by the district court as to the claim presented by plaintiff. The district court begins its analysis of plaintiff's disparate treatment claim with a quotation of the relevant statutory language, proceeds through a proper description of the applicable legal standards and an analysis of the evidence that it found might support plaintiff's disparate treatment claim, and then concludes specifically that plaintiff was not "a victim of disparate treatment." The district court in its Memorandum Opinion and Order does twice incorrectly refer to plaintiff's claim as one for sexual harassment. However, we find it apparent from the evidence presented to the district court regarding plaintiff's claim and the district court's use of the applicable legal standards for the disparate treatment claim in its Memorandum Opinion and Order that the district court properly analyzed plaintiff's claim under the applicable standards for a disparate treatment sex discrimination claim.

Similarly, we find no clear error in the district court's failure to find plaintiff and Mann to be similarly situated employees. The burden is on plaintiff to demonstrate that plaintiff and Mann were similarly situated employees. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). Plaintiff admitted in her brief, and in oral...

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