Nulf v. International Paper Co.

• Decision Date: 05 January 1981
• Docket Number: No. 79-1008,79-1008
• Citation: 656 F.2d 553
• Parties: 29 Fair Empl.Prac.Cas. 1329, 27 Empl. Prac. Dec. P 32,249, 7 Fed. R. Evid. Serv. 1263 Shirley NULF, Plaintiff-Appellant, v. INTERNATIONAL PAPER CO., a New York Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 553

656 F.2d 553

29 Fair Empl.Prac.Cas. 1329,

27 Empl. Prac. Dec. P 32,249,

7 Fed. R. Evid. Serv. 1263

Shirley NULF, Plaintiff-Appellant, v. INTERNATIONAL PAPER CO., a New York Corporation, Defendant-Appellee.

No. 79-1008.

United States Court of Appeals Tenth Circuit.

Argued July 7, 1980.

Decided Jan. 5, 1981.

Grover Miskovsky of Miskovsky, Sullivan & Miskovsky, Oklahoma City, Okl., for plaintiff-appellant.

Mary T. Matthies of Matthies & Associates, P.C., Tulsa, Okl., for defendant-appellee.

Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Shirley Nulf brought a Title VII sex discrimination action under 42 U.S.C. § 2000e, et seq., against defendant International Paper Company ("Company"). The United States District Court for the Western District of Oklahoma entered judgment against Nulf on each of her claims and awarded attorney's fees and costs to the Company. Nulf appeals. We affirm the dismissal of Nulf's claims and the grant of costs, but reverse the award of attorney's fees to the Company.

The Company hired Nulf in 1966 as a receptionist. Her job immediately changed to secretary-receptionist. According to a job description prepared by Nulf on June 6, 1976, her duties consisted of opening and distributing mail, acting as a receptionist, typing and other secretarial work, running the copy machine, handling insurance claims and other forms, answering administrative telephone lines, and assisting on order desk telephones.

Under the Company's original telephone system, customers seeking to place orders for materials were to call an order desk number corresponding to five of the Company's eight telephone lines. Order desk personnel were to answer the sales calls. Customers who wished to discuss non-sales matters were to call an administrative number corresponding to the Company's other three telephone lines. Nulf's responsibility was to answer administrative calls and handle overflow order desk calls. Nulf testified that in actual practice everyone answered all eight lines.

A new telephone system was installed on November 15, 1976. Under this system, all eight lines rang directly at the desk of the secretary-receptionist. It was the secretary-receptionist's duty to answer all incoming calls and transfer them to the appropriate party. Nulf objected to the new phone system, both before and after its inception. She felt that answering the five order desk lines was not part of her work and that it would convert her job to that of a telephone operator. She nonetheless agreed to operate the new system for two or three weeks.

On December 3, 1976, Nulf informed her supervisor, John Tollefson, and the branch manager, Darrell Keller, that she would only answer the last three lines of the new system plus overflow order desk calls. Nulf informed them she did not like the system she should not be forced to assume the responsibility of answering every telephone line, she was not interested in being a telephone operator, and she wanted the duties she had had for ten years. Keller told her that operating the new system was part of her job.

On December 8th, after having called in sick the prior two days, Nulf again told Tollefson and Keller that she would only answer the three administrative lines and the overflow order desk calls. Keller then handed her a letter, drafted on December 3rd, stating that her refusal to operate the new telephone system was being interpreted as a resignation. Nulf twice refused the letter and left the building. The position of secretary-receptionist was subsequently filled by a woman.

Nulf forwarded a charge of sex discrimination to the Equal Employment Opportunity Commission ("EEOC"). She complained about her discharge and unspecified discriminatory terms and conditions of employment. The EEOC investigated the matter and found no reasonable cause to believe that Title VII of the Civil Rights Act had been violated.

After receiving her "Notice of Right to Sue" from the EEOC, Nulf filed suit. As defined by the pretrial order, Nulf claimed (1) she was discriminatorily discharged due to her sex; (2) she had performed work substantially similar to that of the male order desk employees and was discriminatorily denied equal pay; and (3) she was discriminatorily denied promotion to the position of office manager.

The suit went to trial. Nulf presented three witnesses and rested her case. The Company moved for dismissal under Fed.R.Civ.P. 41(b), and the trial court took the motion under advisement. ¹ After hearing some testimony of the first defense witness, the court intervened and requested that Nulf's counsel cross-examine the witness. The court heard a portion of counsel's intended cross-examination, finding it necessary to admonish him several times to adhere to matters helpful to the court. The trial judge then cut off further cross-examination stating that he had "heard all the evidence in the case that I think necessary." Rec., vol. VII, at 198. The judge then found in favor of defendant. ² In his formal conclusions of law, the judge ruled that Nulf had failed to establish a prima facie case for any of her claims.

The trial court held a later hearing on the Company's request for an award of attorney's fees and costs. The court awarded the Company $12,158.29 in attorney's fees and expenses and $803.03 in costs, finding that Nulf's action "was unreasonable and groundless and was wholly without factual or legal basis." Rec., vol. I, at 243.

Nulf alleges on appeal that the trial court improperly applied legal standards to erroneous findings of fact and that it abused its discretion in (1) rulings on the admission of evidence, (2) denying Nulf a jury trial on her equal pay claim, and (3) awarding attorney's fees and costs to the defendant.

I.

In a Title VII case, the initial burden is on the employee to make a prima facie showing of discrimination by the employer. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Only when such a showing has been made does the burden shift to the employer to articulate "some legitimate, nondiscriminatory reason" for the questioned action. Id. If the employer meets this burden, the employee must show that the stated reason is actually a pretext for prohibited discrimination. Id. at 804, 93 S.Ct. at 1825.

Nulf contends the district court erroneously concluded that she failed to make out a prima facie case of discrimination for any of her claims. In support, she cites allegedly improper factual findings and conclusions of law "inappropriately and inaccurately applied in some or all instances to the facts in the case at bar." Brief of Appellant at 32-33. We agree with the trial court that Nulf's claims were subject to dismissal.

The factual findings of a trial court are not to be reversed on appeal unless they are clearly erroneous. Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir. 1977); Woods v. North American Rockwell, 480 F.2d 644, 646 (10th Cir. 1973). The same rule applies to conclusions involving mixed questions of fact and law. Dowell v. United States, 553 F.2d at 1235. Under the clearly erroneous standard, reversal is proper only when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Accord, Taylor v. Honeywell, Inc., 497 F.2d 1382, 1383, (10th Cir. 1974).

McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, sets forth the legal standards we are to apply in deciding whether an employee has established a prima facie case of employer discrimination:

"This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."

Id. at 802, 93 S.Ct. at 1824. McDonnell Douglas involved hiring, and the Court recognized that "the specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations." Id. at 802 n.13, 93 S.Ct. at 1824 n.13. "But McDonnell Douglas did make clear that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.' " Furnco Construction Co. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 344, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)).

After reviewing the record, we are not left with a definite and firm conviction that the trial court was mistaken in concluding Nulf failed to carry this initial burden regarding her three claims.

A.

The promotion claim

One of Nulf's claims is that she was discriminatorily denied promotion to the position of office manager. The elements of a prima facie case set forth in McDonnell Douglas have been applied to promotion cases. See Stastny v. Southern Bell Telephone Co., 628 F.2d 267, 281 (4th Cir. 1980); Fitzgerald v. Sirloin Stockade, 624 F.2d 945, 954 (10th Cir. 1980); Olson v. Philco-Ford, 531 F.2d 474, 477 (10th Cir. 1976). To meet the prima facie test, Nulf had to show that there were promotional opportunities available that were filled by males, that she was qualified for promotion, and that despite her qualifications she was not promoted. This she failed to do. As the trial court found: "Ms. Nulf adduced no evidence as to such matters as when the position became available; whether she applied for it; (and) who received the...