Schwenke v. Skaggs Alpha Beta, Inc.

• Decision Date: 24 October 1986
• Docket Number: Civ. No. C85-1268G.
• Parties: Wilma L. SCHWENKE, Plaintiff, v. SKAGGS ALPHA BETA, INC., Defendant.
• Court: U.S. District Court — District of Utah

649 F. Supp. 333

Wilma L. SCHWENKE, Plaintiff, v. SKAGGS ALPHA BETA, INC., Defendant.

Civ. No. C85-1268G.

United States District Court, D. Utah, C.D.

October 24, 1986.

A. Paul Schwenke and Bruce J. Udall, Salt Lake City, Utah, for plaintiff.

David R. Money, Salt Lake City, Utah, for defendant.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on August 28, 1986, on defendant's Motion for Partial Summary Judgment, Motion to Dismiss, and Motion to Strike Plaintiff's Demand for Jury Trial, Prayer for Compensatory Damages and Prayer for Attorney's Fees; and plaintiff's Motion for Partial Summary Judgment. Defendant was represented by David R. Money, and plaintiff was represented by A. Paul Schwenke and Bruce J. Udall. Both parties briefed the matters and presented oral argument, after which the court took the matter under advisement. The court now being fully advised enters its Memorandum Decision and Order.

FACTUAL BACKGROUND

Wilma L. Schwenke (hereinafter "plaintiff") brought this action against Skaggs Alpha Beta, Inc. (hereinafter "defendant") alleging violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) and violation of 42 U.S.C. § 1981 (1982). Plaintiff also asserts a pendent state law claim for breach of an oral contract. Plaintiff's claims arise out of her employment relationship with defendant and essentially involve plaintiff's allegation that but for her status as a member of the Polynesian race she would have been promoted to the position of supervisor of the sales audit department of defendant's corporate office. Plaintiff's Complaint outlines three separate occasions upon which allegedly she was denied the supervisor position because of her race. Plaintiff only seeks recovery regarding the third act of alleged discrimination, and thus her prior applications for the supervisor position are only relevant as evidence tending to establish discriminatory intent as to the third denial.¹

Plaintiff began her employ with defendant on August 7, 1978, as a sales audit clerk. In February of 1979 she was promoted to the position of "lead clerk" in the sales audit department. In May 1980 the position of supervisor of the sales audit department became available. Shortly before the then supervisor left, plaintiff expressed interest in the supervisor position to one of defendant's managers, but she was told that a replacement supervisor had already been selected. Deposition of Wilma L. Schwenke, Jan. 8, 1986 at 85 (hereinafter cited as "Plaintiff's Deposition"). The replacement supervisor, James Golden, at that time was serving as a staff accountant in the general accounting section of the accounting department. Defendant's manager used essentially five criteria in selecting Mr. Golden as the audit department supervisor: past work experience, educational level, performance on the job, ability to handle different and additional work, and stability with the company. Deposition of Robert Stephen Rogozinski, March 13, 1986 at 16 (hereinafter "Rogozinski Deposition"); Deposition of Donald C. Kocherhans, March 14, 1986 at 17, 22-23 (hereinafter "Kocherhans Deposition"). In evaluating Mr. Golden's qualifications based on the aforesaid criteria, defendant's manager determined that Mr. Golden's experience as a staff accountant in the general accounting section exposed him to a number of different functions and areas of accounting that were important. Rogozinski Deposition at 24-25. In addition, Mr. Golden's efforts toward an accounting degree were also considered to be a favorable factor. Id. at 26-27.

In May 1984 Mr. Golden was transferred to another position within the defendant's company, once again opening up the supervisor position. Despite a favorable recommendation from one of plaintiff's managers, Sally Huntsman was selected over plaintiff to supervise the sales audit department. Ms. Huntsman previously had served as a supervisor of filing clerks and at the time was a supervisor in the payroll division. Defendant's manager based the selection of Ms. Huntsman on general accounting background in all areas of accounting, supervisory skills, interpersonal skills and technical skills. Deposition of Gary Crook, March 13, 1986 at 10 (herein-after "Crook Deposition").

On the second or third of January 1985, plaintiff was approached by an agent of the Fred Meyer Company who offered plaintiff a job as a supervisor of daily sales reports with a corresponding increase in pay. Plaintiff's deposition at 35-36, 38. Plaintiff accepted the offer but expressed to the agent that her acceptance was contingent upon conferring with the management at defendant's business to see if there was any chance she would be promoted to supervisor of the sales audit department. Id. at 41. Fred Meyer was apparently willing to wait while plaintiff made such a determination. Id. at 46. The next day, Friday, January 4, plaintiff gave two weeks notice of her termination to her supervisor, Sally Huntsman. Id. at 99. In that same conversation Ms. Huntsman informed plaintiff that she was presently interviewing for a new position within the defendant company and that the supervisor position could become immediately available. Id. at 100. On Monday, January 7,² Ms. Huntsman was selected to fill the position for which she had interviewed, thus once again opening up the supervisor position. Id. at 100. The following Monday, January 14, plaintiff informed David Walters, who was in charge of selecting Ms. Huntsman's replacement, that she was interested in the supervisor position and that she would stay with the defendant company if she was offered the promotion. Id. at 102, 109. At that time, Mr. Walters was aware that plaintiff had given her two weeks notice and that Friday, January 18, was to be her last day. Id. at 109-10. Mr. Walters told plaintiff that he was going out of town the following week and as a result he would be unable to make a decision regarding the supervisor position until after his return. Id. at 107. Nevertheless, Mr. Walters stated that he could consider plaintiff for the position. Id. Plaintiff then decided, based on Mr. Walters' "general attitude," that she didn't have a chance for the supervisor position and consequently called Fred Meyer and gave her unequivocal acceptance on that same day. Id. at 123, 54.

On January 28, Mr. Walters returned from out of town and began the process of selecting a supervisor for the sales audit department. In making that decision Mr. Walters used four criteria: past performance, education, recommendations and an interview. Deposition of David Walters, March 13, 1986 at 21. Mr. Walters stated that plaintiff was considered along with a number of other candidates from within defendant company, although he admits that plaintiff was not evaluated in the same way as the other candidates because she was no longer with the company. Id. at 40. He stated: "We first look in-house to try and promote from within and if we don't have a qualified person at the time, then we very frequently look to the outside." Id. As a result "plaintiff was a part of the pool, so to speak, at the onset, because of her conversations before she left. But because of the qualifications of other individuals that were in-house, it narrowed down to the decision between those that were employees." Id. At the conclusion of the selection process Roy Baron was selected based upon a favorable performance review, recommendation, interview and education in that he had a bachelor's degree in accounting. Id. at 31-32. Plaintiff also had a favorable performance review and favorable recommendations. Plaintiff was not granted an interview "because she had already left the company." Id. at 31.

ANALYSIS

I. Defendant's Motion for Partial Summary Judgment

A. Employment Discrimination: Title VII

1. Legal Standards

Defendant contends that the record demonstrates that plaintiff could offer no competent evidence at trial to support her claim of intentional discrimination with regard to not receiving the supervisor position in January 1985. The court recognizes that "where different ultimate inferences may be drawn from the evidence presented by the parties, the case is not one for summary judgment." Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir.1984). Even if it appears that the moving party is more likely to prevail at trial, the court's role is not to weigh the evidence or to decide factual issues, but rather to resolve all reasonable doubts about the presence of material facts against the movant. Id. at 1411-12.

In applying the aforesaid summary judgment standard, this court looks to the widely accepted allocation of burdens established by the Supreme Court for cases of employment discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff has the burden to establish a prima facie case of disparate treatment: "The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but it was rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the plaintiff satisfies that burden, the burden of production then shifts to the defendant to "rebut the inference of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Id. at 254, 101 S.Ct. at 1094. Defendant must raise a genuine issue of fact as to whether there was intentional discrimination against plaintiff. Id. at 254-55, 101 S.Ct. at 1094. If defendant meets that burden of production, "the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity." Id. at 255, 101 S.Ct. at...