Luna v. City & County of Denver, 90-1275

• Decision Date: 01 November 1991
• Docket Number: No. 90-1275,90-1275
• Citation: 948 F.2d 1144
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 325, 57 Empl. Prac. Dec. P 41,070 Rolando R. LUNA, Plaintiff-Appellee, v. CITY & COUNTY OF DENVER, Department of Public Works, Stapleton International Airport; Jack W. Brennan, in his official capacity as Airport Engineer, Stapleton International Airport; Robert Storck, in his official capacity as Chief Construction Engineer, Stapleton International Airport; and William E. Smith, in his official capacity as Assistant Director of Aviation (Engineering), Stapleton International Airport, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1144

948 F.2d 1144

57 Fair Empl.Prac.Cas. (BNA) 325,

57 Empl. Prac. Dec. P 41,070

Rolando R. LUNA, Plaintiff-Appellee, v. CITY & COUNTY OF DENVER, Department of Public Works,

Stapleton International Airport; Jack W. Brennan, in his

official capacity as Airport Engineer, Stapleton

International Airport; Robert Storck, in his official

capacity as Chief Construction Engineer, Stapleton

International Airport; and William E. Smith, in his

official capacity as Assistant Director of Aviation

(Engineering), Stapleton International Airport, Defendants-Appellants.

No. 90-1275.

United States Court of Appeals, Tenth Circuit.

Nov. 1, 1991.

George C. Aucoin (Richard Hipp and Patrick W. Johnson, with him on the brief) of Hackethal, McNeill & Aucoin, P.C., Lakewood, Colo., for plaintiff-appellee.

Geoffrey S. Wasson, Asst. City Atty. (Patricia L. Wells, City Atty., with him on the briefs), Denver, Colo., for defendants-appellants.

Before McKAY, Chief Circuit Judge, and BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This appeal arises from the district court's finding that the City and County of Denver unlawfully discriminated against an employee on the basis of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Plaintiff Rolando Luna, a thirteen-year employee with the City and County of Denver, brought suit alleging defendants failed to promote him on the basis of his Asian descent and promoted instead a less qualified Anglo-American. The district court granted defendants' summary judgment motions in an unpublished order dated July 18, 1988, dismissing Luna's civil rights claim under 42 U.S.C. § 1983, and a companion claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The district court also granted defendant's motion for summary judgment on Luna's civil rights claim under 42 U.S.C. § 1981. See Luna v. City & County of Denver, 718 F.Supp. 854 (D.Colo.1989). A two-day bench trial resolved the remaining Title VII discrimination claim in Luna's favor. The trial court ordered defendants to promote Luna to the first available vacancy of Engineer III and to pay Luna the difference between his current salary and Engineer III during the interim. Additionally, the trial court awarded Luna back pay stipulated at $18,642, as well as attorney fees and costs.

The City and County of Denver now appeals, claiming Luna failed to present evidence from which the court could find that defendants' legitimate, nondiscriminatory reason for not promoting plaintiff was a pretext for discrimination. Because we find the district court's ultimate finding of intentional discrimination is not clearly erroneous, we affirm.

FACTUAL BACKGROUND

The basic facts are not in dispute. Luna, an American-Filipino of Asian race, was born in the Philippine Islands where he acquired his initial education and eventually received a bachelor of science degree from Feati Institute of Technology in Manila in 1950.

Luna later obtained a master of science degree in aeronautical engineering from the University of Notre Dame and a master of business administration degree from St. Louis University. Luna also undertook advanced nondegree courses in structural engineering and mathematics at the University of Washington. He began his professional career in 1958 as an engineer for Boeing Corporation and received two promotions in a five-year period. He became a After receiving high ratings from the Denver Career Services Authority (CSA), a centralized personnel agency that recruits employees for municipal positions, the City of Denver hired Luna in 1972 as a Project Inspector for the Department of Public Works. Throughout his thirteen years with the City and County of Denver, Luna performed a variety of functions. He spent much of his first year evaluating all of the city's bridges and viaducts after receiving specialized technical training from the Federal Highway Administration and Colorado State Highway Commission. Thereafter he served as a Project Engineer I at Stapleton International Airport, evaluating airport facilities, waste and noise pollution, and overseeing a variety of special projects related to airport construction and management. Evidence presented at trial indicated that Luna often performed duties above those normally required of a project engineer. Projects assigned to Luna often required him to utilize his experience in structural, mechanical, electrical, and civil engineering. He was also required to evaluate technical, legal and economic factors affecting certain projects. Luna had an "unblemished record" and consistently maintained an evaluation of "strong or better."

                naturalized citizen of the United States in 1963, and thereafter held a variety of engineering positions.   He worked two years as an aeronautical engineer for McDonnell Douglas Aircraft Corporation.   He also worked over four years as a civil engineer and consultant for private corporations in the Philippines and the United States, including a six-month assignment to the National Aeronautics and Space Administration's Apollo and Saturn space projects
                

This dispute arose in 1985, when CSA announced a vacancy for the position of Engineer III at Stapleton International Airport. The initial job description required a bachelor of science degree in civil engineering from an accredited university or equivalent work experience in civil engineering. The vacancy also required four years' work experience in engineering, as well as registration by the State of Colorado as a professional engineer. Advanced education could substitute for the required work experience. Although the position initially called for two years' experience in airport construction and project management, the city later deleted this requirement to attract additional candidates. At the time, the applicant pool numbered less than the five required for CSA certification.

Two city employees--William Shirk, a white male, and plaintiff Luna--were among those who submitted applications. Although Shirk's application was facially deficient for failure to include all required forms detailing his work experience, CSA nonetheless certified him as eligible along with the five highest scoring applicants on its preliminary oral examination. CSA rejected Luna's application, however, on the erroneous assumption that a civil engineer degree was prerequisite for the position. CSA failed to recognize that civil engineering work experience could substitute for the lack of a formal civil engineer degree.

Two airport engineers conducted the pre-appointment interviews and hired one male and two females at the Engineer III level, all Caucasian. Shirk was not selected for any of the available slots since he lacked the design engineering experience sought by the department. Shirk had only two years' experience working for the city Public Works Department as an engineer on roads, bridges and related projects. He had no experience in the airport engineering field. Nor did he have the two years' airport construction and project management experience originally sought by Stapleton International Airport.

Nevertheless, both hiring engineers believed Shirk was a strong candidate for the construction section of the engineering department and recommended the city create a position for him. The construction supervisor met with Shirk on December 20, 1985, to review his qualifications and discussed the anticipated opening with him on at least two additional occasions. Soon thereafter, the city granted the airport authority to create the additional Engineer III position for the purpose of hiring Shirk.

Meanwhile, Luna inquired why CSA found him not qualified for the Engineer III position when he had been certified as eligible for the more stringent Engineer IV slot four years earlier, as well as for airport engineer in 1977 and assistant airport engineer in 1978. He was not hired for any of the three positions. CSA reexamined Luna's record, discovered its processing error on his application, and ultimately certified Luna to the airport hiring authority in January 1986. Neither of the hiring engineers was aware of Luna's application until this date.

Since two qualified candidates now existed for the newly-approved Engineer III position, city hiring policy required interviews of both Luna and Shirk. At trial, defendants introduced testimony that had Shirk been the only candidate, he would likely have been awarded the position automatically without an interview.

At this juncture, the parties diverge slightly on their recall of the events. However, the district court found that on the evening of February 20, 1986, Luna was told to report to the airport engineer's office the following day but was not aware until he arrived that the meeting was in fact an interview for the Engineer III position. A hiring committee comprised of the two hiring engineers and two other department heads asked Luna a series of questions related to engineering principles, construction management, scheduling, contracts, and correspondence. Luna testified he was totally surprised and felt unfairly treated because he was unable to prepare for the meeting. He also testified that many of the questions asked were unrelated to the skills needed to perform at the Engineer III level.

Shirk responded to the identical questions asked of Luna during his interview and the committee found his responses "more appropriate" overall than Luna's. However, the trial court found Shirk had advance notice of the interview schedule. Shirk received the promotion and this suit followed.

Defendants conceded at trial, and the district court agreed, that Luna established a prima facie case of employment discrimination on the basis of national origin under Title VII. The evidence presented clearly showed (1) Luna belonged to a racial minority; (2) he applied for and was qualified for a job for which the City and...