Sims v. Cleland, 84-3913

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before MERRITT, JONES and NELSON; NATHANIEL R. JONES
• Citation: 813 F.2d 790
• Parties: 43 Fair Empl.Prac.Cas. 362, 42 Empl. Prac. Dec. P 36,963, 55 USLW 2523 Mary Jane SIMS, Plaintiff-Appellant, v. Max CLELAND, Administrator of Veterans Affairs, Defendant-Appellee.
• Docket Number: No. 84-3913,84-3913
• Decision Date: 13 March 1987

Page 790

813 F.2d 790 43 Fair Empl.Prac.Cas. 362,
42 Empl. Prac. Dec. P 36,963, 55 USLW 2523 Mary Jane SIMS, Plaintiff-Appellant,
v.
Max CLELAND, Administrator of Veterans Affairs, Defendant-Appellee. No. 84-3913. United States Court of Appeals,
Sixth Circuit. Argued Jan. 10, 1986.
Decided March 13, 1987.

Page 791

John Cary Sims, Lead Counsel (argued), William B. Schultz, Washington, D.C., for plaintiff-appellant.

Alan J. Ross (argued), Asst. U.S. Atty., Cleveland, Ohio, for defendant-appellee.

Before MERRITT, JONES and NELSON, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff Sims appeals from the district court's judgment in favor of defendant on her claims that she was not promoted to the position of Veterans Administration (VA) Assistant District Counsel in Cleveland in 1979 because of sex and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), and the Age Discrimination in Employment Act, 29 U.S.C. Sec. 633a (1982). The case was tried to the bench over five days, and the district court ultimately found no intentional discrimination in the employment decision. Sims challenges that conclusion as resulting from an erroneous application of the legal standards as to evidence of "pretext" under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and their progeny. For the reasons set forth below, we affirm the judgment of the district court.

Sims, a white female, was born on October 25, 1918. She graduated first in her class from Fordham University Law School in 1942. In November of that year, she joined the Office of Price Administration as an attorney and continued with the agency until it was phased out after World War II in 1947. Sims did not work again as an attorney for the next 20 years. From 1961 to 1967, she worked as an elementary school teacher.

On August 14, 1967, Sims was hired as an attorney in the VA Office of the Chief Attorney in Cleveland in a grade GS-9 position. She received no credit in grade level or promotion eligibility for her prior experience as an attorney for the Office of Price Administration. Sims' job title when she was hired by the VA in 1967 was that of General Attorney (Veterans).

A VA employee with Sims' job title in 1967 was required to do investigative work outside of the office. However, Sims' supervisor at that time, Wayne Kniffin, did not require her to perform such work. Rather, at Kniffin's direction, Sims acted primarily as a consulting attorney in the

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office and was only required to do a minimum amount of work in the field, as compared to the other attorneys in the office.

Sims was promoted from a grade GS-9 to a grade GS-11 on September 8, 1968. However, because her makeshift position as a "consulting attorney" was unauthorized, in December 1969 Sims was forced to transfer from the Office of Chief Attorney to the Adjudication Division of the VA. Although her salary was not decreased, Sims' grade was decreased from a GS-11 to a GS-9-9. In 1975, a vacancy occurred in the District Counsel's Office (the successor to the Office of Chief Attorney), and Sims was hired into the position at a grade GS-12. One year later she was promoted to a GS-13.

In 1976, when the District Counsel, Paul Diehl, was notified of a seminar for VA attorneys who specialized in medical malpractice, he sent a young male lawyer, Arthur Kraut. In 1978, Diehl again sent Kraut to a seminar especially for the medical malpractice lawyers in the VA District Counsel Offices. Sims protested Kraut's attendance at the second malpractice seminar and subsequently filed a formal sex and age discrimination complaint.

In early 1979, a vacancy occurred in the Assistant District Counsel (ADC) position in the Cleveland Office. Five attorneys from the office, including Sims, applied for this position. Due in part to the pending discrimination complaint, the General Counsel's Office in Washington, D.C., sent Joseph Lindekugel, Director of Management Operations, to Cleveland in February 1979 to interview the applicants and to talk with and solicit the views of John Brink, the retiring ADC, and Paul Diehl, who coincidentally was also retiring. In general, both men stated that all five applicants were qualified for the position, but recommended that Arthur Kraut was most qualified and should receive the promotion.

Harvey Wax, the ADC in San Francisco who was being considered for the as-yet-unannounced vacancy in the Cleveland District Counsel position, also spoke to the five candidates briefly during a one-day trip to Cleveland in January 1979. Mr. Wax concluded that he could work with any of the candidates as his ADC. Both Lindekugel and Wax reported back to Robert Coy, Deputy General Counsel for the VA, with their observations. Lindekugel provided Coy with a written summary of his recommendations, a memorandum summarizing each applicant's qualifications, and a copy of each...