Hagans v. Clark
| Citation | 752 F.2d 477 |
| Decision Date | 03 May 1985 |
| Docket Number | No. 84-3675,84-3675 |
| Parties | 36 Fair Empl.Prac.Cas. 1781, 38 Fair Empl.Prac.Cas. 1863, 36 Empl. Prac. Dec. P 34,979 Joan A. HAGANS, Plaintiff-Appellant, v. William CLARK, Secretary of the Department of Interior, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, Alaska, for plaintiff-appellant.
Sue Ellen Tatter, Asst. U.S. Atty., Anchorage, Alaska, for defendant-appellee.
Appeal from the United States District Court for the District of Alaska.
Before WRIGHT, SNEED, and ALARCON, Circuit Judges.
This is an appeal from the district court's final judgment dismissing the plaintiff's Title VII employment discrimination suit pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. We affirm.
This is the third time this case has been before us. The litigation began on July 12, 1978, when the plaintiff, Joan Hagans, brought suit claiming a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. (1982). Her complaint alleged that the Secretary of the Interior, by his agents and employees (the government), unlawfully discriminated against her on the basis of sex by hiring a male for a position for which she claims to have been more qualified.
The district court heard the plaintiff's evidence and at its conclusion granted the government's motion of dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
The evidence presented established that the plaintiff began her government service in 1955 in a GS-4 position with the Bureau of Land Management. By 1974, she had risen to the GS-13 position of Chief of Operations of the Alaska Outer Continental Shelf (OCS) Office. Edward Hoffmann, the manager of the Alaska OCS Office, selected the plaintiff for the OCS job. Hoffman was the immediate supervisor of both the plaintiff and Donald Henninger, the chief of the Environmental Assessment Division. The plaintiff and Henninger alternated as acting manager whenever Hoffmann was absent.
In 1977, a new GS-14 level position of assistant manager was created for the OCS Office, and the plaintiff applied for the position. From a list of eleven candidates submitted to Hoffmann by a promotion panel in Washington, D.C., he was to select the top three candidates. Although the plaintiff was one of the three finalists, Hoffmann made Robert Brock his first choice. In December of 1977, the Washington office followed Hoffmann's recommendation and selected Brock for the job.
In the initial proceedings below, the plaintiff offered testimony from Hoffmann's deposition taken in 1978 discussing documents which Hoffmann claimed were his original notes explaining the criteria he used to assess the top three candidates and his reasons for selecting Brock. At that time Hoffmann testified that he had not altered the notes. The plaintiff, however, introduced a copy of the notes, identical to the claimed "original," except that the copy was undated and contained a reference to Hoffmann's planned retirement and the need for effective continuity. The plaintiff had obtained her copy of the notes by taking and reproducing, without permission, documents from a folder on Hoffmann's desk. The alteration deleted the reference to the desire for an "heir apparent" from which it arguably could be inferred that Hoffmann wanted a white male for the job.
The plaintiff also presented evidence of several conflicts between Henninger and her, some of which occurred because of Henninger's apparent hostility toward women in the workplace and, more specifically, his hostility toward women in supervisory positions. Although Hoffmann and the plaintiff enjoyed a good, close working relationship, Hoffmann, in his 1978 deposition, testified that he thought that a woman supervisor would cause Henninger a great deal of stress.
During the plaintiff's attempt to make out a prima facie case, however, there was As already indicated, at the conclusion of the plaintiff's case in the initial proceeding before the district court, the district court granted the government's Rule 41(b) motion, finding that she had failed to establish a prima facie case of discrimination. On appeal, we held that the lower court had applied an improper legal standard, and reversed and remanded. See Hagans v. Andrus, 651 F.2d 622 (9th Cir.) (Hagans I ), cert. denied, 454 U.S. 859, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981). A fairly complete statement of the facts appears in Hagans I.
considerable evidence introduced to show that Brock was chosen for nondiscriminatory reasons, including his multiple-resource management experience, his degree in forestry, and his experience in Washington, D.C. In addition, Hoffmann's 1978 deposition testimony included legitimate reasons for not selecting the plaintiff, including her narrow, provincial outlook, her problems communicating in group situations, and her difficulty in being a team member. The plaintiff, however, introduced testimony that she was a good communicator and an excellent team player.
On remand, without reviewing additional evidence or making new findings of fact, the district court again entered a judgment of dismissal. The plaintiff appealed for the second time, and this court, 705 F.2d 467, in an order dated March 21, 1983 (Hagans II ), again remanded the case to the district court, stating only:
This cause is remanded to the district court for trial on the remaining issues under Lynn v. Regents of the University of California, 656 F.2d 1337 (1981), unless the court establishes by specific written findings of fact that plaintiff did not make a prima facie case under the four elements set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)]; Lynn v. Regents of the University of California, 656 F.2d at 1341.
On the second remand, the plaintiff filed two motions requesting that the case be set for trial. The government then deposed Hoffmann for the second time, and the plaintiff's attorney confronted him, for the first time, with the original and altered sets of notes. Again without a trial, the district court, on September 19, 1983, issued a memorandum and an order, including sixty-two findings of fact, as well as several conclusions of law. The district court found that the plaintiff failed to make out a prima facie case because she had not offered sufficient evidence of discriminatory intent to make it likely that sex was the reason for her lack of promotion. As an alternate ground, the district court held that, even assuming a prima facie case had been made out, the plaintiff had not carried her ultimate burden of persuasion.
On appeal, the plaintiff argues that the district court erred once again in its formulation of the legal standard to be employed in determining whether a prima facie case has been established. She also argues that the district court's finding, that in any event she had not carried her ultimate burden of persuasion, was made without permitting her to demonstrate that the allegedly nondiscriminatory reason for failing to appoint her was pretextual. Finally, the plaintiff argues that the district court erred in refusing to determine whether Hoffman perjured himself in his first deposition and in refusing to draw an inference of discrimination from the alteration of Hoffmann's notes.
We shall address each of these contentions.
The decision to apply a particular legal standard, and to interpret case law to require a particular prima facie showing, is a legal judgment freely reviewable on appeal. Fleury v. Harper & Row, Publishers, Inc., 698 F.2d 1022, 1026 (9th Cir.1983); Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). Thus, whether the district court applied the correct legal standard is subject to de novo review.
Title VII cases consider whether an employer treated certain employees "less favorably than others because of their race, color, religion, sex, or national origin." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The disparate treatment model is used where the plaintiff claims that an employer is intentionally discriminating against an employee. Under this model, the plaintiff must show, through direct or circumstantial evidence, the employer's intent to discriminate. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977).
In the leading case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the basic allocation of burdens and the order of presentation of proof in a Title VII case alleging disparate treatment. First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. If she succeeds, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision. Third, if the defendant is successful, the plaintiff must have a full and fair opportunity to prove by a preponderance of the evidence that the proffered reasons are a pretext for discrimination. This burden merges with the plaintiff's ultimate burden of persuading the court that she has been the victim of intentional discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).
A prima facie case of intentional discrimination, identifying the discriminatory criterion "as the likely reason for the denial of a job opportunity," White v. City of San Diego, 605 F.2d 455, 458 (...
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