Mary J. SORENSEN, Plaintiff-Appellant,
v.
CITY OF AURORA, Defendant-Appellee,
John Speed, in his official and individual capacity, Mark
Wildey, in his official and individual capacity,
Radford Moore, in his official and
individual capacity, Defendants.
No. 91-1348.
United States Court of Appeals,
Tenth Circuit.
Jan. 19, 1993.
Riсhard C. LaFond, Arnold M. Woods, Law offices of Richard LaFond, and Richard J. Banta, Denver, CO, for plaintiff-appellant.
Peter Ruben Morales, Charles H. Richardson, Christopher K. Daly, of the Office of Aurora City Atty., Aurora, CO, for defendant-appellee.
BALDOCK and EBEL, Circuit Judges, and LUNGSTRUM, District Judge.1
LUNGSTRUM, District Judge.
On February 23, 1990, plaintiff-appellant Mary J. Sorensen ("plaintiff") filed a cоmplaint with the U.S. District Court for the District of Colorado against defendant-appellee City of Aurora ("City") and others alleging that defendants had violated Title VII, 42 U.S.C. § 2000(e), et seq., and 42 U.S.C. § 1983 in terminating her employment as a fire dispatcher. The City filed a motion for summary judgment as to plaintiff's Section 1983 claims, which was granted by the District Court on February 8, 1991,
Trial to the court on plaintiff's two remaining claims, concerning alleged sexual discrimination and retaliation by the City, was had on July 22-24, 1991. On September 10, 1991, the district court issued its findings of fact and conclusions of law in a Memorandum Opinion and Order,
"A finding of intentional discrimination, or a finding of no intentional discrimination, is subject to the clearly erroneous standard of review." Ortega v. Safeway Stores, Inc.,
Plaintiff asserts that the district court erred (1) in finding that plaintiff failed to prove discriminatory motive or intent as required by her Title VII disparate treatment claim; (2) in finding that plaintiff failed to prove retaliatory animus as required by her Title VII retaliation claim; and (3) in excluding certain witness testimony offered by plaintiff, which plaintiff contends would have shown discriminatory animus.
Title VII Sex Discrimination Claim
When alleging disparate treatment on the basis of sex, the plaintiff must prove by a preponderance of the evidence that the defendant had a discriminatory motive or intent. Watson v. Fort Worth Bank and Trust,
Thus, pursuant to the shifting burden of proof scheme of McDonnell Douglas and subsequent cases, plaintiffs must first establish a prima facie case of discrimination. Ortega v. Safeway Stores, Inc.,
If the defendant succeeds in rebutting the presumption of discrimination raised by the plaintiff's prima facie case, then the inquiry returns, as in any civil case, to whether or not the plaintiff has met its burden of persuasion. In that event, the plaintiff must prove by a preponderance of аll the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Watson,
The Supreme Court has cautioned that this shifting burden of proof scheme is only intended to assist in marshalling and presenting relevant evidence. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Watson v. Fort Worth Bank & Trust,
The crux of plaintiff's sex discrimination claim is a comparison of the treatment of her and the treatment of Mr. Mann for their handling of the Hanlon call.2 Plaintiff was eventually terminated for her actions regarding the call while Mann did not receive discipline. Plaintiff contends that Mann had shared responsibility and some degree of culpability for the alleged errors in the handling of the Hanlon call. Plаintiff also contends that the district court failed to properly analyze her sex discrimination claim, improperly categorizing it as a sexual harassment claim.
We cannot conclude that the district court's ultimate finding that plaintiff failed to prove that the City had a discriminatory motive or intent in discharging the plaintiff was clearly erroneous. A review of the district court's Memorandum Opinion and Order reveals that there was no confusion by the district court as to the claim presented by plaintiff. The district court begins its analysis of plaintiff's disparate treatment claim with a quotation of the relevant statutory language, proceeds through a proper desсription of the applicable legal standards and an analysis of the evidence that it found might support plaintiff's disparate treatment claim, and then concludes specifically that plaintiff was not "a victim of disparate treatment." The district court in its Memorandum Opinion and Order does twice incorrectly refer to рlaintiff's claim as one for sexual harassment. However, we find it apparent from the evidence presented to the district court regarding plaintiff's claim and the district court's use of the applicable legal standards for the disparate treatment claim in its Memorandum Opinion and Order that the district court properly analyzed plaintiff's claim under the applicable standards for a disparate treatment sex discrimination claim.
Similarly, we find no clear error in the district court's failure to find plaintiff and Mann to be similarly situated employees. The burden is on plaintiff to demonstrate that plaintiff and Mann were similarly situated employees. Jones v. Gerwens,
Title VII Retaliation Claim
The general approach to Title VII suits set out in McDonnell Douglas is also applicable to retaliation claims. Burrus v. United Telephone Co. of Kansas, Inc.,
The district court concluded that plaintiff did establish a prima facie case of retaliation. The court further found that the City articulated legitimate, nondiscriminatory reasons for discharging plaintiff and that plaintiff did not demonstrate by credible evidence that the articulated reasons wеre pretextual. The district court concluded that the City "discharged plaintiff for valid, nondiscriminatory reasons, i.e. undue delay in answering calls, erratic performance, leaving her position on the console unattended, excessive tardiness, and failure to deal effectively with emergency dispatch--a function critiсal to the lives and safety of citizens in the community."Plaintiff claims that various alleged procedural irregularities involving the internal investigation which resulted in plaintiff's dismissal show a clear, organized attempt to "get rid of" plaintiff and that in light of these alleged procedural irregularities the City's proffered reasons for terminating plaintiff cannot be considered worthy of belief. Among the procedural irregularities specified by plaintiff are the fact that the original internal affairs file, along with one of the working files, turned up missing, the fact that the original master tape of the Hanlon call was taped over, the fact that the audit trail regarding the call was shrеdded, and the fact that Chief Speed refused to meet with plaintiff's attorney during the investigation. Plaintiff also claims that for the period following her discrimination complaint in 1981 through her termination she was subjected to discrimination and unfair treatment. Plaintiff claims this discriminatory treatment included reprimands for reasons that ranged from "trivial to аbsurd," being unfairly subjected to weekly evaluations, and being put on probationary status.
We see no clear error in the district court's finding that plaintiff failed to show that the City's articulated nondiscriminatory reasons for discharging her were pretextual. The record demonstrates that plaintiff had a history of erratic performance on the job. The district court heard all of the evidence before it with respect to plaintiff's allegations of procedural irregularities and prior discriminatory conduct on the part of the City and determined that plaintiff had not proven that the stated reasons for her discharge were pretextual. It is true that plaintiff аnd the City have offered conflicting testimony on many of these issues. However, where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, N.C.,
Evidentiary Rulings
A trial court's decision on whether to admit or exclude evidence may not be disturbed on appeal unless the appellate court determines that the district court abused its discretion. United States v. Alexander,
Plaintiff argues that the district court abused its discretion in refusing to allow Leonard Sickler, a close friend of plaintiff's, to testify that Deputy Chief Melvin Morley made a comment to Sickler that "we've got your big-titted girlfriend this time and we are going to get her fired." The district court found this statement was inadmissible hearsay. Plaintiff argues that this evidence should have been admitted under Fed.R.Evid. 801(d)(2)(D) as a statement of a party's agent concerning a matter within the scope of his agenсy or employment and made during the existence of the relationship. Upon our review of the record, we find that plaintiff failed to demonstrate that Morley was an agent acting within the scope of his agency when the alleged statement was made and that the district court did not abuse its discretion in disallowing the testimony.
Plaintiff alsо asserts that the district court abused its discretion by refusing to admit evidence that other female employees of the City had complained of discrimination and retaliation in the Fire Department and that Chief Speed had been disciplined about such complaints. Plaintiff identifies the witnesses who would have testified regarding these аlleged complaints as Karen Mystowski, a past employee of the City, and John Pazour, the Aurora City Manager at the time of the trial (but not at the time of plaintiff's termination).
As to Ms. Mystowski, we find that plaintiff failed to establish a sufficient factual record for us to consider the propriety of the exclusion of her testimony. Plaintiff failed tо make an offer of proof as to the excluded testimony or offer any specific objection to its exclusion. Fed.R.Evid. 103(a)(1) states in pertinent part that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... a timely objection ... appеars of record, stating the specific ground of objection." Plaintiff's failure to make a proper objection or offer of proof at the time of trial effectively precludes us from considering this issue on appeal.
The trial record regarding the proffered testimony of Mr. Pazour is also confusing. We find that plaintiff failed to adequately establish the relevancy of Mr. Pazour's proffered testimony or that plaintiff was substantially prejudiced by its exclusion. Under these circumstances we find that the district court's refusal to admit Mr. Pazour's proffered testimony was well within the district court's discretion. See Schrand v. Federal Pacific Elec. Co.,
AFFIRMED.
Notes
The HONORABLE JOHN W. LUNGSTRUM, United States District Judge for the District of Kansas, sitting by designation
On May 15, 1987, a Mr. Larry Hanlon made an emergency call tо the fire department. The call involved a woman who had either fallen into or attempted to drown herself in a mall fountain. Plaintiff, who was on duty as a fire dispatcher at the time, took the call. Curt Mann was also on duty as a fire dispatcher at the time the call was made, as was police dispatcher Mary Kay West. The actions taken by plaintiff and Mann regarding the call and their ultimate responsibilities for the call are much in dispute by the parties