Ramsey v. City and County of Denver

• Decision Date: 09 July 1990
• Docket Number: No. 86-2855,86-2855
• Citation: 907 F.2d 1004
• Parties: 55 Fair Empl.Prac.Cas. 1027, 54 Empl. Prac. Dec. P 40,066 Melody RAMSEY, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER; Manager of Public Works, Traffic Engineering Division, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1004

907 F.2d 1004

55 Fair Empl.Prac.Cas. 1027,

54 Empl. Prac. Dec. P 40,066

Melody RAMSEY, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER; Manager of Public Works, Traffic Engineering Division, Defendants-Appellees.

No. 86-2855.

United States Court of Appeals Tenth Circuit.

July 9, 1990.

Sander N. Karp, Denver, Colo. (Shelley P. Dodge, Denver, Colo., was with him on the brief), for plaintiff-appellant.

Jeffrey Wasson, Asst. City Atty., Denver, Colo. (Stephen H. Kaplan, City Atty., and Ross P. Goldsmith, Asst. City Atty., Denver, Colo., were on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and TACHA, Circuit Judges.

HOLLOWAY, Chief Judge.

Plaintiff-appellant Melody Ramsey (Ramsey) appeals a district court judgment against her on all her claims following a bench trial in her suit alleging disparate treatment, sexual harassment, constructive discharge, and retaliation, all in violation of Title VII. ¹ We affirm.

I THE FACTUAL BACKGROUND

Ramsey is an engineer and a former employee of the City and County of Denver (City). She began work for the City in April 1984 and resigned in November 1984, asserting that she had been discriminated against on the basis of sex. She alleges first that she was treated differentially because of sex in four respects: she was kept on probationary status rather than being made a permanent employee; she received inadequate supervision; her work assignments were inappropriate; and she was improperly relieved of her supervisory duties after an incident with an employee.

Second, Ramsey claims hostile work environment sexual harassment; she points to comments, drawings, sexually-charged physical conduct, and publications found in the work area as the basis for this allegation. Third, Ramsey claims that she was constructively discharged from her position with the City because of her treatment. Finally, Ramsey claims that contact between City personnel and personnel at her current employer, the State of Colorado (State), in giving out information to State employees and obtaining subpoenas for them to testify in Career Service appeal proceedings, was retaliatory in violation of Title VII.

The City defends itself on several theories. First, it claims that Ramsey has only her own difficult personality to blame for her problems with co-workers and for the extension of her probation. Second, it argues that there was no discrimination against her, and that any differential treatment was in her favor. Third, the City denies that Ramsey was constructively discharged since Ramsey could have corrected the interpersonal problems which were at the base of her troubles and Ramsey actually left to take a position she sought with the State. Finally, the City says that there was no improper contact between City and State employees. It had every right to subpoena State employees in order to defend itself on Ramsey's Career Service appeal claims, which were pending with the City at the time; further, any information given out to State employees was public information, given at the request of State employees themselves.

II THE DISTRICT COURT'S FINDINGS

In an unpublished Memorandum Opinion and Order, the district judge found that even where Ramsey had made a prima facie case of disparate treatment, the City had articulated legitimate nondiscriminatory reasons for its actions, and that Ramsey had failed to show that these reasons were mere pretext. Memorandum Opinion and Order at 3-11.

The court found that Ramsey had not made a prima facie case of sexual harassment, since any change in her working conditions or terms of employment was her own fault. Although the court found evidence of behavior by City employees which was questionable, "no pattern of arguably improper conduct was established." Id. at 14. The court found that Ramsey had not brought her complaints to the proper authorities, and any lack of action on the part The court further found that there had been no constructive discharge, since working conditions were not such that a reasonable person would feel compelled to resign; thus Ramsey had failed to establish that the City intended to force Ramsey to quit. Id. at 15-16. Moreover, the court believed the City's assertion that Ramsey quit to take a job with the State: "The timing of plaintiff's resignation is entirely too coincident with the emergence of her opportunities with the State to support plaintiff's assertions." Id. at 16.

of the City was due to Ramsey's unwillingness to properly report the incidents she found harassing. Id. at 14-15. The judge found that "[c]onsidered individually and in their totality, the incidents presented do not paint a picture of the hostile working environment envisioned by Congress in Title VII and by the Supreme Court in [Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) ]." Memorandum Opinion and Order at 13.

Finally, the court found that Ramsey had made a prima facie case of retaliation, but that the City showed that it had a nondiscriminatory reason for its actions. Specifically, the court found that the City legitimately subpoenaed State employees to defend itself in internal Career Service Appeal proceedings which Ramsey initiated against the City. Moreover, it found that information provided to State employees about the proceedings was in the public record, and was provided at the request of those State employees themselves.

Ramsey filed a timely notice of appeal.

III ANALYSIS

A. Disparate Treatment

Ramsey first argues that the district court erred in finding that the City was not liable for disparate treatment in the areas of her probation extension, the assignment of projects, her evaluation, and the application of disciplinary actions (in particular, her being relieved of supervisory authority after an incident with an employee). She argues that the district court used the wrong legal analysis in deciding her case. We agree with the district judge's analysis, essentially for the reasons given in his Memorandum Opinion and Order.

Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-254, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981), a plaintiff must carry the initial burden of establishing a prima facie case of discrimination. ² Once a prima facie case of discrimination is made out, the burden of production shifts to the defendant to articulate some legitimate nondiscriminatory reason for its action. If the defendant does so, the plaintiff must be given the opportunity to show by a preponderance of the evidence that the reason offered by the defendant is mere pretext. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25; Burdine, 450 U.S. at 252-254, 101 S.Ct. at 1093-94. This is the analysis applied by the district court in the instant case.

Ramsey argues that where as here there is direct evidence of employer discrimination, a different analysis is to be used, citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1984). There the Court stated that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." The Ramsey correctly states these general rules for Title VII suits. However, we are convinced that the evidence she presented was not direct, but rather indirect or circumstantial. Ramsey claims that because the Director of the Traffic Division, James Brown, was known to believe that certain jobs were more suitable for women than others, direct evidence of discrimination existed. There was evidence that Brown was widely known to have ideas about women's place in the workforce. IV R. 397-400; V R. 543-545; VI R. 738-739. In fact Brown testified to his feelings about women being better suited to some jobs than to others. II R. 36-38. However, Brown, who was in charge when Ramsey began working for the City, did hire her. II R. 67-69. ³ Thurston does not hold that the McDonnell Douglas shifting burdens do not apply where there is direct evidence of personal bias, but where there is "direct evidence of discrimination." 469 U.S. at 121, 105 S.Ct. at 621-22. For Ramsey's argument to be valid, the evidence would need to show that Brown acted on his discriminatory beliefs. EEOC v. Wendy's of Colorado Springs, Inc., 727 F.Supp. 1375, 1380 (D.Colo.1989) (statements that women are better workers was not direct evidence of gender discrimination where person making statements had no authority to fire or demote male plaintiff). Abhorrent as Brown's private opinions might be, they do not constitute direct evidence of discriminatory conduct. In Price Waterhouse v. Hopkins, --- U.S. ----, ----, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268, 288 (1989) (emphasis added), the Court stated: "Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part."

shifting burdens of proof of McDonnell Douglas are designed to assure the plaintiff has his day in court despite the unavailability of direct evidence of discrimination. In Thurston there was direct evidence that the method of transfer available to a disqualified flight captain depended on his age. The policy was thus discriminatory on its face. 469 U.S. at 121, 105 S.Ct. at 621-22.

We are persuaded that the evidence of Brown's statements constitutes circumstantial or indirect evidence, and not direct evidence of discrimination within the meaning of Thurston, 469 U.S. at 121, 105 S.Ct. at 621-22. These statements are on their face expressions of Brown's personal opinion, and not an existing policy which itself constitutes...