Risher v. Aldridge
| Citation | 889 F.2d 592 |
| Decision Date | 05 December 1989 |
| Docket Number | No. 88-1504,88-1504 |
| Parties | 51 Fair Empl.Prac.Cas. 956, 52 Empl. Prac. Dec. P 39,494 Gloria C. RISHER, Plaintiff-Appellant, v. Edward C. "Pete" ALDRIDGE, Jr., Secretary of the Air Force, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Humberto G. Garcia, Weir & Alvarado, San Antonio, Tex., for plaintiff-appellant.
John F. Paniszcazyn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD, JONES, and SMITH, Circuit Judges.
Plaintiff-appellant Gloria C. Risher (Risher) appeals from the district court's dismissal of her Title VII sex discrimination case with prejudice. See 42 U.S.C. Sec. 2000e, et seq. Risher filed suit against defendant-appellee Edward C. "Pete" Aldridge, Jr., Secretary of the Air Force (the Air Force) for alleged sex discrimination by her superior in promotion decisions at Laughlin Air Force Base in Del Rio, Texas. The lower court determined, after a two-day bench trial, that Risher had failed to prove that her superior's decisions not to promote her were motivated by sex-based discrimination. After her case was dismissed, Risher filed a motion for new trial, asserting that her superior had failed totally to consider certain "objective" criteria when making the promotion decisions. Use of objective criteria is required by the Air Force Personnel Manual and the Civil Service Reform Act, 5 U.S.C. Sec. 4302 (West Supp.1989). The district court denied Risher's motion and Risher timely appealed.
Risher was a civilian employed with the Laughlin Air Force Base's (the Base) contracting division as a procurement agent at the GS-7 level. Risher began working at the Base in 1966 as a clerk-typist (GS-2), and had been in her current position at the GS-7 level since 1979. Risher was primarily responsible for purchasing supplies for the Base. On June 6, 1983, a supervisory contract specialist position became vacant. Sandy Alvarado, a female, had occupied that position since 1981. 1 Alvarado was Risher's immediate supervisor during 1981 to 1983.
Lieutenant Danny Bobbitt (Bobbitt), the Chief Base Contracting Officer, was responsible for filling the vacancy left by Alvarado. 2 Risher and a male employee, Ralph Mendez (GS-7), were certified as eligible to fill the supervisory position pursuant to a certificate of promotion issued by the Base's civilian personnel office on July 18, 1983. 3 Bobbitt desired a broader range of applicants and he therefore requested a central skills bank search to locate qualified civil service personnel working outside of the Base. On July 26, 1983, two certificates of promotion were issued by the Base personnel office, one listing Mendez and Risher as the Base's qualified applicants, and another listing four applicants, two females and two males, who were located outside the Base. Bobbitt interviewed Risher and Mendez, but decided to offer the position to Benton Jordan (GS-9), one of the outside applicants he had interviewed. 4 Jordan declined the position for personal reasons. On September 6, 1983, another certificate of promotion was issued listing Mendez and Risher and an outside applicant, John Thornton (GS-9). Thornton had had considerable supervisory contract experience. Bobbitt interviewed all three applicants and offered the position to Thornton. Thornton declined the offer, however, because his current employer had promoted him to the GS-11 level.
On January 20, 1984, after Bobbitt returned from an officers' training school, two more certificates of promotion were issued--one dealing with the GS-9 vacancy left by Alvarado and another one dealing with a vacancy for a GS-9 supervisory contract administrator. In addition to Mendez and Risher, another female employee working on the Base, Maria Celedon, was listed as eligible for the positions. Bobbitt interviewed all three applicants for the latter position and decided not to hire any of them. 5 None of the three were interviewed, or reinterviewed, for the position vacated by Alvarado because Bobbitt was initiating procedures to have that position converted from civilian to military status. Shortly thereafter, in June 1984, Bobbitt was reassigned to another location and Captain Johnson assumed Bobbitt's duties at the Base.
Johnson received a certificate of promotion to fill the vacancy left by Alvarado in October 1984. Mendez, Risher, and Celedon were again listed as eligible for promotion, but Johnson decided to delay filling the position because an investigation was underway regarding alleged misrepresentations by Risher in the performance of her job. 6 Risher successfully defended against the charges and, in March 1987, Risher transferred to Goodfellow Air Force Base in San Angelo, Texas. She currently works at Goodfellow Air Force Base as a contract administrator at the GS-9 level.
The position vacated by Alvarado remained vacant until approximately February 10, 1986, when Johnson selected Jerry Carter, a male, to fill the position. The position is currently, or at least was as of the time of trial, occupied by Juanita Vasquez, a female who was Risher's former co-worker. It is undisputed that Risher was never offered the position. During the two to three years that the position remained officially vacant, several military personnel, including Raul Rodriguez, temporarily assumed the duties of that position.
On March 13, 1985, shortly after receiving the notice to remove, Risher filed an informal discrimination complaint with the Equal Employment Opportunity office at the Base. 7 She filed a formal complaint on May 29, 1985. The Air Force failed to issue a final decision on Risher's complaint within 180 days of her formal filing date. Thus, pursuant to Title VII, 42 U.S.C. Sec. 2000e-16(c), Risher timely filed suit in federal district court on February 2, 1987.
Risher alleged three instances of discrimination in her district court complaint: the decisions by Bobbitt to offer the position vacated by Alvarado to Jordan and Thornton, and the delay in filling the position by both Bobbitt and Johnson. The lower court found that Risher had failed to state a prima facie case as to the third allegation because she failed to demonstrate that the treatment accorded to her was different from that received by similarly situated employees outside of her protected class. Mendez, a male employee at the Base, had also been listed on the certificates of promotion, and it is undisputed that he did not receive a promotion. Risher presented no evidence that she was not similarly situated to Mendez.
The lower court concluded that Risher had failed to prove that Bobbitt's decisions to offer the position to Jordan and Thornton were motivated by improper discriminatory reasons. In particular, the court noted that Bobbitt articulated two legitimate nondiscriminatory reasons for not promoting Risher: (1) the negative personal recommendations given by two of Risher's immediate supervisors (Alvarado and Rodriguez); and (2) an incident that raised doubts about Risher's integrity. 8 The court felt that Risher had failed to prove that these reasons were mere pretext and thus Risher failed to carry her burden of proof. The lower court then dismissed her case with prejudice.
Risher filed motion for new trial, which alleged that the district court erred in finding that Bobbitt had articulated legitimate nondiscriminatory reasons for his failure to promote her because such reasons were entirely subjective and the Air Force Personnel Manual and the Civil Service Reform Act, 5 U.S.C. Sec. 4302, require Air Force personnel to use objective criteria in their promotion decisions. The lower court denied Risher's motion for new trial, stating that the failure to follow procedures argument was not timely raised and, even if it had been timely raised, it would not alter the court's earlier decision. Risher filed a timely notice of appeal.
Risher asserts that Bobbitt failed to follow Air Force rules in making his promotion decisions because he totally relied on subjective criteria, rather than considering Risher's objective written performance appraisals. Risher argues that such a fact is fatal to the Air Force's claim that Bobbitt possessed legitimate nondiscriminatory reasons for failing to promote Risher. In other words, Risher argues that Bobbitt's failure to consider the written performance appraisals by Alvarado and Rodriguez, which were directly contradictory to their negative verbal recommendations, demonstrated that Bobbitt's articulated legitimate nondiscriminatory reasons were merely pretext. Thus, the district court erred in finding that Risher failed to prove that Bobbitt's promotion decisions discriminated against her on the basis of sex. 9
We note at the outset that Risher only expressly raised the failure to follow procedures argument at the time of her motion for new trial. 10 This Court does not look with favor upon tardy arguments that are brought to the lower court's attention post-trial after counsel has had the opportunity to salvage what she may from the record. See, e.g., Commercial Standard Ins. Co. v. Bryce St. Apts., Ltd., 703 F.2d 904, 908 (5th Cir.1983) (); Cunningham v. Healthco, Inc., 824 F.2d 1448 (5th Cir.1987) (). In the instant case, however, the lower court, in its denial of Risher's motion for new trial, did address the merits of Risher's failure to follow rules argument and concluded that such an argument would not affect its earlier decision. As we find no error in the latter determination by the district court, we do not need to address the waiver issue.
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