Heim v. State of Utah, 92-4134

• Decision Date: 16 November 1993
• Docket Number: No. 92-4134,92-4134
• Citation: 8 F.3d 1541
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 1008, 63 Empl. Prac. Dec. P 42,712 Debbie HEIM, Plaintiff-Appellant, v. STATE OF UTAH; Utah Department of Transportation; Dale Tischner, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1541

8 F.3d 1541

63 Fair Empl.Prac.Cas. (BNA) 1008,

63 Empl. Prac. Dec. P 42,712

Debbie HEIM, Plaintiff-Appellant, v. STATE OF UTAH; Utah Department of Transportation; Dale

Tischner, Defendants-Appellees.

No. 92-4134.

United States Court of Appeals, Tenth Circuit.

Nov. 16, 1993.

Roger H. Hoole of Nebeker & Hoole, P.C., Salt Lake City, UT, for plaintiff-appellant.

L.A. Dever, Asst. Atty. Gen. (R. Paul Van Dam, Atty. Gen., Debra J. Moore, Asst. Atty. Gen., with him on the brief), Salt Lake City, UT, for defendants-appellees.

Before BRORBY, McWILLIAMS, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

In this sex discrimination case, plaintiff Debbie Heim appeals the district court's factual findings that gender was not a factor in her denial of desired training for job advancement. Presented at trial were her claims alleging appellees violated Title VII of the Civil Rights Act of 1964, and alleging the Utah Department of Transportation and Mr. Tischner, her supervisor, sexually harassed her in the form of a hostile work environment and quid pro quo sexual harassment. ¹

Specifically, Ms. Heim challenges, as clearly erroneous, the trial court's findings that (1) she was primarily assigned to work in the office; (2) she had not been treated differently than a male coworker also assigned to work in the office area; (3) her employer was not required to provide the desired "cross-training" because appellant sought field assignments on only a temporary and not on a permanent basis; (4) she had not been denied cross-training and overtime work based upon her gender; and (5) the denial of cross-training did not result in delayed advancement and loss of accompanying past and future income and benefits. We affirm the trial court's findings.

I

This court reviews the trial court's findings of fact under the clearly erroneous standard. Fed.R.Civ.P. 52(a). "A finding of fact is not clearly erroneous unless '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.' " Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.1990) (quoting LeMaire ex rel. LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987)).

We defer to the trial court's determination of the credibility of witnesses and other determinations of disputed facts. Hauptli v. Commissioner of Internal Revenue, 951 F.2d 1193, 1195 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1955, 118 L.Ed.2d 558 (1922).

Debbie Heim is a construction technician employed by the Utah Department of Transportation. She worked on a crew composed of eleven construction technicians. She was the only female member of the crew. The Department of Transportation subclassified construction technicians into construction office technicians, survey technicians, and construction inspectors. On Ms. Heim's particular crew, the various classifications of construction technicians worked in four main areas--office, field lab, survey, and inspection. Ms. Heim was hired for a position in the office area under the supervision of Dale Tischner. She alleges that she was denied the opportunity to cross-train in field positions in other areas solely because of her gender.

In this case, Ms. Heim uses the term "cross-training" to mean actual experience in the field in areas other than those in which she was experienced as part of her duties in the office. The trial court noted that the Department and its employees sometimes used the term in this sense as synonymous with "field experience" or "on-the-job training a Construction Technician obtains in another specialty."

The trial court noted the term cross-training was also used within the Department of Transportation to refer to the situation where an employee was deemed capable of performing specialized skills that were needed to work in another area of a project. In this sense, cross-training occurred where an employee passed a segment of the National Institute for Certification in Engineering Technologies (NICET) exam. The NICET test, a nationally recognized testing program for construction technicians, has been adopted by the Department as part of its job classification and promotion procedures.

Construction technicians are assigned a grade, which determines their base salary. When an employee passes a certain level of the NICET test, he or she is then deemed cross-trained and qualified for either a within-grade pay increase or a promotion to a higher paying grade--depending upon the level of the test passed and the availability of positions in the higher grades. Construction technicians can advance from a beginning grade of 13 to top grades of 21 to 23. Ms. Heim was hired at a beginning grade of 13.

Actual field experience is helpful in passing the NICET tests. However, it is not a necessary prerequisite and technicians are permitted to take tests in areas in which they have no field experience. If a technician passes the portion of the NICET test in an area in which he or she has no actual field experience, the Department considers that person nonetheless cross-trained in that area and eligible for grade advancement.

Ms. Heim wanted cross-training, in the sense of actual experience in various field jobs, for two reasons. One, such field position provided an opportunity to work overtime hours for extra pay. Two, it provided experience that helped an applicant pass the various parts of the NICET test.

In August of 1989, Ms. Heim arranged a temporary transfer out of the office to a field position. To obtain permission for this temporary transfer, Ms. Heim had to bypass her supervisor because he resisted allowing her to leave her duties in the office area. She received extra pay for the overtime hours she worked during the field assignment. She later arranged permission for another such temporary transfer, again by bypassing her immediate supervisor. This permission was almost immediately withdrawn because Mr. Tischner, her supervisor, complained she had not completed her office duties.

II

A

Ms. Heim first challenges the trial court finding of her office work assignment. Ms. Heim's own testimony established she was hired to work in the office area, and therefore, this finding is not clearly erroneous.

Second, the trial court found Ms. Heim was not treated differently than the only other construction technician on the crew to be assigned primarily to the office--Mr. Gail Leary. The evidence established Mr. Leary was even more limited to strictly office functions than Ms. Heim. The testimony established Ms. Heim's immediate supervisor, Mr. Tischner, wanted to keep his office area technicians in the office area in order to exercise control over them. In seeking to tightly control the technicians assigned to office duties under him, Mr. Tischner was not treating Ms. Heim differently due to her gender; instead, he treated the male and the female workers "generally the same."

The fact both a male employee and a female employee were subclassified as having primarily office area duties and were treated no differently within the subclassification, weakens the appellant's theory that she was singled out for different treatment because she was the only female construction technician on the crew.

Again, the court's finding Ms. Heim had not been treated differently than her male coworker assigned to office duties was not clearly erroneous.

Third, the trial court found the lack of overtime received by Ms. Heim was the result of her assignment to duties in the office area. The record shows the field construction technicians had an opportunity to work extra hours and receive overtime pay. As Mr. Leary testified, the "bulk of overtime was worked in the field and a minute part from office personnel." Mr. Leary received far less overtime hours than did Ms. Heim because he had not worked outside the office area.

The record fully supports the trial court's finding that overtime work was not available to Ms. Heim because her duty station was in the office. Therefore, its finding that her gender was not the reason for her receiving less overtime is not clearly erroneous.

Fourth, appellant mischaracterizes the trial court's findings as stating she "could not cross-train because she was 'sub-classified' " as an "office" construction technician. The trial court did not find she was prevented from cross-training by her sub-classification. Instead, it found the method of cross-training she sought--temporary field assignments for the purpose of expanded work experience--was not available.

No male construction technician was allowed to cross-train by the temporary assignment to another area for the sole purpose of providing an employee with expanded work experience. Cross-training, in the sense of varied field experience, was only available either by "helping out" in other jobs in the same area during slack time (called cross-utilization) or by a permanent transfer to another area. Ms. Heim did not seek a permanent transfer to another area where field experience would be available on a regular basis. In addition to informal occasions of "helping out" on job sites, temporary transfers were available for the purpose of helping out in areas where they were shorthanded.

Appellant argues that the policy of the Department was to allow and encourage cross-training. Although this is true, the record shows no policy of temporary transfers for the sole purpose of allowing employees to gain experience in other fields. Additionally, for all purposes, the Department of Transportation considered passing the NICET exam to be the cross-training they encouraged.

Each side in this case points to different statements in the same testimony as supporting their positions. It appears the use of the term cross-training resulted in some inconsistencies in the testimony because it had different meanings depending upon...