Nellis v. Brown County

• Decision Date: 14 December 1983
• Docket Number: No. 82-2709,82-2709
• Citation: 722 F.2d 853
• Parties: 33 Fair Empl.Prac.Cas. 933, 33 Empl. Prac. Dec. P 33,980 Kristen NELLIS, Plaintiff-Appellant, v. BROWN COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 853

722 F.2d 853

33 Fair Empl.Prac.Cas. 933,

33 Empl. Prac. Dec. P 33,980

Kristen NELLIS, Plaintiff-Appellant, v. BROWN COUNTY, Defendant-Appellee.

No. 82-2709.

United States Court of Appeals, Seventh Circuit.

Argued May 26, 1983.

Decided Dec. 14, 1983.

Lise Lotte Gammeltoft, Kaftan, Kaftan, Kaftan, Ostrow, Gilson & Geimer, S.C.M., Green Bay, Wis., for plaintiff-appellant.

John C. Jacques, Brown County Corp. Counsel, Green Bay, Wis., for defendant-appellee.

Before POSNER and COFFEY, Circuit Judges, and WYATT, Senior District Judge. ^*

COFFEY, Circuit Judge.

Appellant, Kristen Nellis, appeals an order of the United States District Court for the Eastern District of Wisconsin, dismissing her complaint against Brown County for sex-based employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1) (1976). We affirm.

I.

The evidence at trial revealed that the appellant, Kristen Nellis, commenced employment with the Brown County Department of Social Services ("BCDSS") as a "Stenographer I" in 1966. In 1971, Nellis became an "Administrative Assistant I" ("AA I") in the clerical unit and in 1975 was reclassified as an "Administrative Assistant II" ("AA II") in the clerical unit. ¹ In October, 1978, Nellis' supervisor, Bernice Johnson, sent a letter to Ralph Hantke, Personnel Specialist for the Wisconsin Department of Health and Social Services, requesting that Nellis be reclassified from "AA II" to "AA III." Johnson supported this request with claims that Nellis had greater involvement in personnel matters, reporting requirements, and the food stamp program, increased supervisory responsibilities, and, finally, a thorough knowledge of the legal aspects of "third-party liability" procedures. Hantke responded, "I would approve request," but further testified that "[a]s far as I was concerned, at this time the request was really an informal request and would have to go through the proper county channels to be a formal request to us."

In April of 1980, James Jetzke, a personnel analyst for the Brown County Personnel Department, responsible for reviewing the reclassification requests of BCDSS employees, sent a "job analysis questionnaire" to Nellis, asking her to "describe each major function" of the duties she performed as an "AA II." On April 15, 1980, Jetzke conducted an interview with Nellis which was followed by an interview with Nellis' supervisor, Bernice Johnson. On May 15, 1980, Jetzke sent a letter to Nellis which stated in pertinent part:

"After examining the information provided by you and others, I firmly believe that your current classification of an Administrative Assistant II is appropriate.

I have based my conclusion on the following First, an Administrative Assistant III should have the authority for hiring personnel. Currently, the incumbent [Nellis] does not have this authority. However, the incumbent does interview and assign some personnel to various duties.

Second, an Administrative Assistant III develops and installs operating procedures. The current incumbent's authority is more recommendatory than final when procedures are developed and installed.

Finally, an Administrative Assistant III is accountable for all personnel and business management functions of an agency. The incumbent is not accountable for these functions. Such responsibilities are held by the incumbent's immediate supervisor."

During this same time period, George Torrey, a welfare fraud investigator for BCDSS since 1974, was also seeking a reclassification to "AA III." In December, 1977, Joe Schiebel, Torrey's supervisor and the Deputy Director of BCDSS, sent a letter to Hantke, requesting that Torrey be reclassified from his "AA I" position. In January, 1978, Hantke indicated that he would approve a reclassification of Torrey from "AA I" to "AA III." According to Hantke, the reason for this two-step reclassification was "that Administrative Assistant III was probably the top level for this kind of position, based on the letter of justification sent by Mr. Schiebel. So, I figured why monkey around with a two step reclassification, why not go from I to III right off the bat." ² For apparent fiscal reasons, the BCDSS only reclassified Torrey as an "AA II," effective January 1, 1978.

In July, 1979, Torrey asked his supervisor, Joe Schiebel, to resubmit his name for reclassification as an "AA III." Thereafter, Jetzke sent a "job analysis questionnaire" to Torrey, which he completed, and on April 18, 1980, three days after the Nellis interview, Jetzke interviewed Torrey. On May 12, 1980, Jetzke submitted to the Brown County Personnel Committee Board, a letter recommending the reclassification of Torrey from "AA II" to "AA III." The letter stated in pertinent part:

"I have reviewed the request to reclassify George Torrey from an Administrative Assistant II to an Administrative Assistant III. The review consisted of an evaluation of the enclosed job analysis questionnaire, the formal job audit with Mr. Torrey, a review of that audit with Mr. Torrey's supervisor, and a review with Mr. Ralph Hantke of the Wisconsin Department of Health and Social Services, County Merit System Section.

Mr. Torrey is responsible for investigating alleged welfare fraud for the Brown County Department of Social Services. His work requires independent action and responsibility. Supervision received by Mr. Torrey is minimal and more administrative. Similar duties in other counties are accomplished by investigators in the Sheriff's Department or the District Attorney's Office. Mr. Torrey's accomplishments are detailed each year in the Department of Social Services Annual Report. A copy of the 1979 report is attached.

Therefore in regard to the aforementioned review and evaluation, I recommend, with the concurrence of the Personnel Director, that the position of Agency Investigator be reclassified from Administrative Assistant II to Administrative Assistant III...." (emphasis original).

Based upon this letter, the Brown County Personnel Committee Board reclassified Torrey as an "AA III."

On May 22, 1980, Nellis filed a complaint with the Wisconsin Department of Industry, Labor and Human Relations, Equal Rights Division, claiming sex-based employment discrimination. An investigation by the department resulted in a finding that probable cause existed to believe that sex discrimination had occurred regarding Nellis' conditions of employment and wages at BCDSS.

On October 15, 1981, Nellis filed a complaint in the United States District Court for the Eastern District of Wisconsin, alleging sex-based employment discrimination on the part of Brown County, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1) (1976). Nellis claimed that she was entitled to backpay from the time of her "AA III" reclassification denial to the time of her promotion to "AA IV" on June 8, 1981. ³ On September 23, 1982, following a two-day bench trial, the trial judge issued a Decision and Order dismissing Nellis' complaint. On appeal, the sole issue before this court is whether the trial judge erred in dismissing appellant's complaint.

II.

In an action for sex-based employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a)(1) (1976), the plaintiff has "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff...." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) ("Burdine "). See also Sherkow v. State of Wisconsin, 630 F.2d 498, 502 (7th Cir.1980). The United States Supreme Court has developed a "division of intermediate burdens [which] serve[ ] to bring the litigants and the court expeditiously and fairly to this ultimate question." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Those intermediate burdens, initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ("McDonnell Douglas "), are as follows:

"First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." (citations omitted).

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (citing McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25; Accord United States Postal Service Board of Governors v. Aikens, --- U.S. ----, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983) ("Aikens "). Furnco Construction Corp. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978); Lee v. National Can Corp., 699 F.2d 932, 935-37 (7th Cir.1983); Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281 (7th Cir.1977). ⁴

At trial, Brown County initially argued that because Nellis and Torrey were only seeking reclassification and, thus, were not competing for the same job, Nellis failed to prove a prima facie case. The district court ruled, however, that Nellis met the first intermediate burden of establishing a prima facie case:

"From the bench, prior to the taking of testimony, I concluded that the uncontested facts established a prima facie case of discriminatory treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973). I made my finding because it was undisputed that the plaintiff was a woman, that she and a male employee--Mr. Torrey--were similarly situated to the extent that both were Administrative Assistant II's attempting to be reclassified as Administrative Assistant...