McCosh v. City of Grand Forks

• Citation: 628 F.2d 1058
• Parties: 24 Fair Empl.Prac.Cas. 1683, 23 Empl. Prac. Dec. P 31,146 Frances M. McCOSH, Appellant, v. CITY OF GRAND FORKS, a Municipal Corporation; Cyril P. O'Neill, in his capacity as Mayor of the City of Grand Forks and individually; James O. Clague, in his capacity as Chief of Police and individually; Ludwik Kulas, Thomas Hagness, G. Allan Pearson, Henry C. Wessman, Marvin W. Dehn, James F. Johnson, Richard Shea, Reuben Larson, Dennis Gustafson, Markus L. Dahl, Neome Bushaw, Joe H. Ford, Robert A. Hanson and Robert Wedin, each as a member of the Grand Forks City Council and individually; Oliver Thomas, in his capacity as Administrator of the N.D.C.L.E.C. and individually; Ted Gladden, in his capacity as Training and Standards Co-Ordinator of the N.D.C.L.E.C. and individually; Jay Graba, in his capacity as the Personnel Officer for the City of Grand Forks and Secretary of the Civil Service Commission and individually; Thomas Longmire, in his capacity as a Personnel Officer for the City of Grand Forks and Secretary of the Civil Service Commission in 1973 through
• Decision Date: 03 March 1975
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1058

628 F.2d 1058

24 Fair Empl.Prac.Cas. 1683,

23 Empl. Prac. Dec. P 31,146

Frances M. McCOSH, Appellant, v. CITY OF GRAND FORKS, a Municipal Corporation; Cyril P O'Neill, in his capacity as Mayor of the City of Grand Forks and individually; James O. Clague, in his capacity as Chief of Police and individually; Ludwik Kulas, Thomas Hagness, G Allan Pearson, Henry C. Wessman, Marvin W. Dehn, James F Johnson, Richard Shea, Reuben Larson, Dennis Gustafson Markus L. Dahl, Neome Bushaw, Joe H. Ford, Robert A. Hanson and Robert Wedin, each as a member of the Grand Forks City Council and individually; Oliver Thomas, in his capacity as Administrator of the N.D.C.L.E.C. and individually; Ted Gladden, in his capacity as Training and Standards Co-Ordinator of the N.D.C.L.E.C. and individually; Jay Graba, in his capacity as the Personnel Officer for the City of Grand Forks and Secretary of the Civil Service Commission and individually; Thomas Longmire, in his capacity as a Personnel Officer for the City of Grand Forks and Secretary of the Civil Service Commission in 1973 through March 3, 1975, and individually; Richard E. Demmers, in his capacity as a member of the Civil Service Commission and individually; Elbert E. Dahlen, in his capacity as a member of the Civil Service Commission and individually; and Gaylan Olson, in his capacity as a member of the Civil Service Commission and individually, Appellees.

No. 79-1440.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 6, 1979.

Decided July 30, 1980.

Elizabeth F. Maxwell, Fargo, N. D., for appellant.

Robert B. Hunter, Grand Forks, N. D., for appellees.

Before HEANEY and HENLEY, Circuit Judges, and SCHATZ, District Judge. ^*

HENLEY, Circuit Judge.

Frances M. McCosh, a policewoman formerly employed by the City of Grand Forks Police Department, appeals from an adverse decision of the United States District Court for the District of North Dakota, The Honorable Bruce M. Van Sickle presiding, denying her claim under Title VII of the Civil Rights Act of 1964, § 701 et seq. as amended, 42 U.S.C. § 2000e et seq., ¹ of unlawful sex discrimination in employment. On appeal Ms. McCosh contests the court's determination arguing that she had been subjected to "disparate treatment" on account of her sex, had been a victim of a facially neutral practice which had a "disparate impact" on members of her sex, or both, and thus is entitled to relief under Title VII. ² We affirm the judgment of the district court.

I.

In December, 1963 plaintiff McCosh was hired by the Police Department of the City of Grand Forks, North Dakota. Plaintiff was initially hired as a steno-clerk, but was soon promoted to a position of secretary after she passed the civil service examination for that job. Eventually, and in November, 1968, the plaintiff took and passed the civil service examination for policewoman and became a sworn policewoman of the City of Grand Forks Police Department.

Prior to assuming the position of policewoman, Ms. McCosh had formed a close relationship with the then Chief of Police, Duane Knutson. As a secretary, plaintiff had worked as an assistant to Police Chief Knutson and after her promotion to policewoman she continued to serve as a special assistant to the Police Chief. In this position plaintiff enjoyed considerable power and latitude. She attended conventions and the FBI Command Management School along with Police Chief Knutson and worked a straight day shift with weekends off.

Besides assisting the Police Chief plaintiff, after assuming the position of policewoman, also did investigatory work and participated in such activities as handling juveniles and assisting in the movement of female prisoners.

Plaintiff, however, never worked in the patrol division of the police department. Although plaintiff had inquired about the value of working in the patrol division, Police Chief Knutson had discouraged her from pursuing this option because of her value to him as an administrative assistant. Plaintiff thus decided not to ask for an assignment to the patrol division.

But in August, 1973 Duane Knutson was asked to resign from his position as Chief of Police and James O. Clague was appointed Acting Chief. About that same time plaintiff completed an application to take the examination for promotion to sergeant. On August 3, 1973 she took the examination and passed the written test with a score of seventy-eight percent. Seventy percent was a passing score. The plaintiff, however, was not considered further for the position of sergeant because she did not have one year experience in the patrol division. Eventually, Ron McCarthy, who scored the highest of all candidates on the written test with a score of ninety-six, was selected. McCarthy had excellent qualifications for the position of sergeant as indicated by his prior experience, record of performance and an oral interview.

Some time after failing to attain the desired promotion, Ms. McCosh lost her job as special assistant to the Chief of Police. In late 1973 the Acting Chief of Police, Mr. Clague, was appointed Chief of Police. As one of his first acts, he eliminated the informal position of special assistant to the Police Chief and transferred Ms. McCosh, who was the only special assistant in the police department, to another area.

After terminating the plaintiff from her position as special assistant, Police Chief Clague nonetheless tried to help Ms. McCosh advance within the police department. To help plaintiff achieve a promotion to sergeant, Clague contacted the Grand Forks City Attorney to find out if the patrol requirement could be waived. He learned, however, that the requirement was unavoidable and that plaintiff would need one year patrol experience to qualify for a promotion to sergeant. Thus, on November 1, 1973 Clague assigned plaintiff to patrol duty.

But unlike other patrol officers McCosh was assigned to patrol duty on the day shift only and was not required to work on weekends or at night. This preferential treatment led to complaints from other police officers and eventually plaintiff was assigned to a rotating shift which included duty on nights and weekends.

Life as a patrol officer, however, did not seem to agree with the plaintiff. She filed numerous complaints ranging from objections as to the unsuitability of the uniform, the dirty conditions of the police cars, and the discomfort of wearing a gun belt.

During plaintiff's tenure as a patrol officer, it came to the attention of the Law Enforcement Council that plaintiff lacked certain basic training. Although the Council had never previously questioned the plaintiff's certification eligibility and in fact had specifically granted Ms. McCosh a certification card in November, 1973, the Council later withdrew her certification. The Council, however, offered the plaintiff the opportunity to attend the Law Enforcement Council School to overcome her deficiencies.

Ms. McCosh, then fifty-eight years of age, decided to take the next available session at the training school and in April, 1974 travelled to Bismarck to attend the school. But plaintiff had great difficulty adjusting to the school. She frequently complained about school procedures, to some extent antagonized other police officers and was generally uncooperative. Nonetheless, plaintiff completed her courses at the school and, after approximately a month of training, apparently qualified to reacquire her certification.

Upon completion of her training course plaintiff returned to the Grand Forks Police Department. Plaintiff, however, continued to have personal problems. Eventually, the plaintiff, under the advice of her doctor, sought psychiatric help. A psychiatrist, Dr. Olmstead, examined the plaintiff and concluded that she was suffering from nervous exhaustion and would require an indefinite leave from her employment. Dr. Olmstead informed Police Chief Clague of plaintiff's condition and of her inability to continue as a police officer.

During plaintiff's period of illness, the City Personnel Officer arranged for the plaintiff to use her sick leave, then her annual leave, and finally her leave without pay so that plaintiff could remain a member of the police force. But the City Personnel Officer, and later the Grand Forks City Auditor, informed the plaintiff that these leaves of absence would only entitle her to retain her employment until February 26, 1975. They further noted that if she did not report to work within three consecutive days after February 26, 1975 she would be terminated under the provision of the Grand Forks City Ordinance providing for automatic resignation for failure to report to work for three consecutive days. Because McCosh did not report to work within this time period, she was terminated through automatic resignation on March 3, 1975.

Shortly thereafter plaintiff brought this suit. The district court, however, found that plaintiff had failed to prove a Title VII violation. As indicated, we agree with the result reached by the district court.

II.

It is well settled that the method of proving an allegation of discrimination in employment under Title VII will differ somewhat depending on whether the Title VII claim is based on a theory of "disparate impact" or "disparate treatment." Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978); Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980).

If the Title VII claim is brought on a theory that a facially neutral employment practice has a "disparate impact" on a "protected group," the initial burden is on the plaintiff to establish a prima facie case through showing that the employer's practices have a discriminatory effect. Once the plaintiff proffers sufficient evidence to show the discriminatory effect or "disparate impact," the burden shifts to the employer to show that the practice has a "manifest relationship to the employment in question," Griggs v....