Marzec v. Marsh, 92-2151

• Decision Date: 02 April 1993
• Docket Number: No. 92-2151,92-2151
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 713, 61 Empl. Prac. Dec. P 42,144 Karon M. MARZEC, Appellant, v. John O. MARSH, Jr., Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 393

990 F.2d 393

61 Fair Empl.Prac.Cas. (BNA) 713,

61 Empl. Prac. Dec. P 42,144

Karon M. MARZEC, Appellant, v. John O. MARSH, Jr., Secretary of the Army, Appellee.

No. 92-2151.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 17, 1992.

Decided April 2, 1993.

Michael J. Hoare, St. Louis, MO, argued for appellant.

Walter H. Ohar, St. Louis, MO, argued (Stephen B. Higgins, and Wesley D. Wedemeyer, on the brief), for appellee.

Before JOHN R. GIBSON, WOLLMAN, Circuit Judges, and STROM, ^* District Judge.

STROM, District Judge.

On October 16, 1987, Karon M. Marzec, a female employee of the United States Army corps of Engineers (the "Corps"), filed suit alleging she was intentionally denied a promotion on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000e et seq. (1981 & Supp. I 1992)). On December 2, 1988, she amended her complaint to add a claim of unlawful retaliation under Title VII. The case was tried to the court ¹ on November 15-16, 1989. On April 13, 1992, the trial court entered judgment against Marzec. Marzec appeals this judgment. We affirm.

I.

Marzec was employed by the Corps as a realty specialist, grade level GS-11, in the Management and Disposal branch of the Real Estate Division in the St. Louis district. In December, 1986, the position of Chief of the Management and Disposal ("M & D") branch, a grade level GS-12, came open. Woodrow B. Sandlin, head of the Real Estate Division in the St. Louis district, thereafter undertook to fill the position. Generally, a supervisor may fill a position with no promotion potential, such as Chief of M & D, in one of three ways: 1) using merit competition among employees at all grade levels; 2) laterally transferring another employee at the same grade level; or 3) hiring from the outside. In late December, Sandlin discussed with Katherine Greer, Chief of the Recruitment and Placement branch of the Personnel Office, his proposal to transfer R.C. Franco to the position. At that time, Franco was the director of the Meramec Disposal Project, a specially-created section of the M & D branch. He was a realty specialist at grade level GS-12, the same grade level as the vacant position, and thus his reassignment to that position was considered a lateral transfer. In January, 1987, Marzec informed Sandlin she was interested in the position. Sandlin subsequently awarded the position to R.C. Franco. Because Sandlin chose to fill the position with a lateral transfer, rather than through merit competition, he did not consider Marzec or any other employee at the GS-11 grade level for the position.

At the time Sandlin made the decision to transfer Franco to the Chief of M & D position, he was unaware of the existence of a so called "stopper" candidate. Pursuant to the Department of Defense's Priority Placement Program, any job vacancies first had to be offered to qualified employees who were returning from overseas assignments and did not have jobs in the United States or who were being displaced because of a reduction in force. However, the "stopper" candidate did not have to be given priority with respect to a job vacancy that was to be filled by a lateral transfer of an employee from a position at the same grade level and in the same job series. In that event, the "stopper" candidate would be given priority only as to the position that was vacated by the laterally transferred employee. On approximately December 15, 1986, the Recruitment and Placement office received a "stopper" list containing the position of a realty specialist grade GS-12. The person occupying that position was Betty Mentzel, who was then working in Korea. As required by the Priority Placement Program, the grade GS-12 position vacated by Franco was first offered to Mentzel, and she accepted it.

Marzec protested Sandlin's selection of Franco for the Chief of M & D position and told him that she intended to pursue an "EEO" complaint. She also complained to two of Sandlin's superiors and to the Corps' chief equal employment opportunity counselor. On May 29, 1987, Marzec filed an informal complaint with the EEO office of the Corps.

On approximately January 20, 1987, Franco assumed the position of Chief of M & D, thereby becoming Marzec's immediate supervisor. In order to devote more time to learning his new job, Franco directed the secretary of the M & D branch to make case assignments to the employees. Marzec received projects from the secretary until roughly the fall of 1987, when Franco began assigning them. Marzec alleges she received fewer and less important assignments during this period. In March, 1987, Marzec prepared letters of recommendation for employees who assisted her on a special project and submitted them to Colonel James Brown, the Corps' deputy district engineer, for his signature. Sandlin informed Marzec that she improperly circumvented the chain of command by not showing the letters to him before submitting them to Colonel Brown. In addition, Franco wrote her a memorandum regarding the proper chain of command. In June, 1987, Marzec underwent an annual Career Program appraisal. The Career Program is a nationwide merit competition required for promotion or placement in a position that has promotion potential. Sandlin downgraded Marzec's ratings from the previous year in 8 of 54 categories. However, Marzec received an overall rating of "highly successful/exceeds fully successful." Sandlin had similarly downgraded Franco and two other male employees in 1986 after reviewing their career appraisals. In November, 1987, and again in 1988, Franco reassigned two cases to other employees because he received complaints from citizens about Marzec's handling of the cases.

II.

Marzec first argues that the trial court erred in rejecting her claim that she was not promoted to the Chief of M & D position because of her sex in violation of Title VII. Marzec brought this claim under a disparate treatment theory. Under this theory, proof of discriminatory intent is necessary. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). Discriminatory intent may be shown by direct or circumstantial evidence. Aikens, 460 U.S. at 714 n. 3, 103 S.Ct. at 1481 n. 3. Because direct evidence of discriminatory intent is rare, the Courts have developed a tripartite allocation of burdens and order of presentation of proof in Title VII cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).

Under this framework, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff proves a prima facie case, she has succeeded in creating a rebuttable presumption of unlawful discrimination. Aikens, 460 U.S. at 714, 103 S.Ct. at 1481; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; see McDonnell Douglas, 411 U.S. at 802-03, 93 S.Ct. at 1824-25. At this point, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the adverse employment action. Aikens, 460 U.S. at 714, 103 S.Ct. at 1481; Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If the defendant carries its burden, the presumption of unlawful discrimination drops from the case and plaintiff is then required to prove by a preponderance of the evidence that the defendant's proffered reason is unworthy of credence and is merely a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; see Aikens, 460 U.S. at 715, 103 S.Ct. at 1482. At all times, the ultimate burden of proving discriminatory intent rests with the plaintiff. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.

To establish a prima facie case of discrimination in a failure-to-promote case, ...