F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS July 12, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
LEO N A RO M ER O,
Plaintiff-Appellant,
No. 05-2017 v. (D.C. No. CIV-03-805-JC/RH S) (D . N.M .) THE CITY O F ALBU QU ERQUE,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.
Leona Romero appeals from the district court’s entry of judgment in favor
of The City of Albuquerque (City) on her breach of contract claim and her gender
discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2017. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. I. Background
In 1982, M s. Romero began working for the City’s Solid W aste
M anagement Department (Department), initially as a driver in the residential
division, then as an administrative aide and a senior office assistant. She received
temporary promotions to various positions, including acting Code Inspector in the
residential division. A Code Inspector, also referred to as a Code Enforcer, is the
liaison between customers and the Department concerning compliance with
municipal ordinances governing solid waste containers and enclosures. In 2001,
the City advertised to fill the position of Solid W aste Code Inspector in the
Department’s commercial division. M s. Romero applied for the job, but the City
promoted Rudy Rivera instead. M r. Rivera had worked for the City for over
sixteen years, initially as a Residential Collections Driver and then, for the fifteen
years until his promotion, as a Commercial Collections Driver.
After receiving a right-to-sue letter from the Equal Employment
Opportunity Commission, M s. Romero filed this action. She alleged that the City
violated her rights under Title VII by promoting M r. Rivera because he was male
and less qualified than her for the Code Inspector position. Her breach of
contract claim was premised on an employment contract arising from the C ity’s
merit system ordinance (M SO) and personnel rules and regulations (PRR).
The case proceeded to a bench trial. At the close of M s. Romero’s case,
the City moved for judgment as a matter of law, which the district court granted
-2- on both claims. The court found that the City promoted M r. Rivera for
nondiscriminatory reasons and that M s. Romero failed to show that those reasons
were a pretext for gender discrimination. The court also found that the C ity’s
decision to promote M r. Rivera instead of M s. Romero did not breach the M SO.
M s. Romero appeals from that judgment.
II. Standard of Review
M s. Romero’s suggestion that de novo review applies to our review of the
district court rulings is based on the faulty premise that the district court ruled
pursuant to Fed. R. Civ. P. 50(a). Rule 50(a) applies to jury trials. Here, the
district court entered judgment on partial findings pursuant to
Fed. R. Civ. P. 52(c), which applies to bench trials. W hen a district court enters a
judgment pursuant to Rule 52(c), we review its findings of fact “for clear error
and its legal conclusions de novo. A finding of fact is clearly erroneous if it is
without factual support in the record or if the appellate court, after review ing all
the evidence, is left with the definite and firm conviction that a mistake has been
made.” Nieto v. Kapoor, 268 F.3d 1208, 1217 (10th Cir. 2001) (quotation and
citation omitted).
If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it w ould have w eighed the evidence differently. W here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
-3- Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
III. Breach of Contract Claim
M s. Romero argues that the City breached an employment contract by using
subjective criteria when making its decision to promote M r. Rivera rather than the
objective criteria contemplated by the City’s M SO and PRR. The relevant
provision of the M SO states, in pertinent part, that “[e]very effort shall be made
to fill vacant positions in the city with the best qualified candidate.” Aplt. App.
at 74 (setting forth Albuquerque, N.M ., Code of Ordinances ch. 3, art. 1, § 3-1-7).
Several sections of the PRR apply here. Section 102.1 provides that “[v]acant
positions in the City will be filled with the best-qualified candidate as determined
by the selection committee or hiring supervisor.” Aplt. A pp. at 62. Section 102.3
provides that “[s]election for promotion and transfer is made on the basis of
education, experience, training, skills and other abilities.” Id. at 63. Similarly,
§ 101.4 provides that “[e]xperience, education, training, skills and other abilities,
as well as specific position requirements and the prior employment history of the
applicant will be considered in appraising individual qualifications.” Id. at 61.
New M exico law provides that, when a merit system is adopted, the
employment contract between a municipality and an employee in a covered
position “shall be subject to the provisions of the ordinance and rules and
regulations issued pursuant to the ordinance.” N.M . Stat. § 3-13-4(C). The
district court appears to have concluded that a contract existed but that the City
-4- did not breach it. A ssuming that there was an enforceable contract, an issue we
need not decide, we have little trouble concluding that the City adhered to its
terms. The M SO requires only that every effort be made to select the best
qualified candidate, and the rules set forth the proper considerations. Consistent
with PRR § 102.1 and as discussed in more detail below, see Part IV , infra, the
City determined M r. Rivera was the best qualified candidate for the Code
Inspector position based on his particular experience and skills, the specific
position requirements, and his prior employment history, all proper considerations
under PRR §§ 101.4 and 102.3.
IV . Title V II Claim
In resolving M s. Romero’s Title VII claim, the district court applied the
three-part framew ork set forth in M cDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973), which “established an allocation of the burden of production
and an order for the presentation of proof in Title VII discriminatory-treatment
cases,” St. M ary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The district
court found that M s. Romero had met her initial burden under M cDonnell
Douglas of establishing a prima facie case by show ing that, as a female, she is a
member of a protected class, that she was qualified for the promotion and was not
promoted, and that the City promoted M r. Rivera, a male, instead.
M s. Romero’s prima facie case established a rebuttable presumption that
the City unlawfully discriminated against her and shifted the burden of production
-5- to the City to provide a legitimate, nondiscriminatory reason for its hiring
decision, see Hicks, 509 U.S. at 506-07. The district court found that the City
presented two such reasons. First, M r. Rivera’s temperament with customers was
better suited to the Code Inspector position than M s. Romero’s on-the-job
temperament, Aplt. App. at 10, ¶ 7, which included hanging up on a customer on
at least one occasion, id. at 8, ¶ 11. Second, M r. Rivera’s “lengthy experience
interfacing with business customer representatives, albeit in a driver capacity, had
well prepared him for the unique concerns of the Commercial section . . . [which]
would be of greater benefit in the Commercial Code Enforcer position than
Plaintiff’s Acting Code Enforcer experience in the Residential section would be.”
Id. at 10, ¶ 8. Upon this showing, the M cDonnell Douglas framew ork
disappeared, and M s. Romero assumed the burden of persuading the trier of fact
that the C ity’s proffered nondiscriminatory reasons for promoting M r. Rivera
instead of her w ere mere pretext for intentional gender discrimination, see Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); Hicks,
509 U.S. at 510-11. The district court found that she failed to show the C ity’s
reasons for promoting M r. Rivera were pretextual. 1
1 Although the district court set forth its view that the City had not intentionally discriminated against Romero under the “Conclusions of Law” section of its decision, we note that “[t]he ultimate finding of whether there was intentional discrimination against a protected class is a question of fact.” Sanchez v. Philip M orris Inc., 992 F.2d 244, 247 (10th Cir. 1993).
-6- On appeal, M s. Romero first suggests that, because the district court
entered judgment before the City put on any witnesses, she did not have an
adequate opportunity to rebut the City’s nondiscriminatory reasons. However, in
arguing against the Rule 52(c) motion, M s. Romero’s counsel stated that “the
evidence kind of blends, both my evidence in my prima facie case and the
evidence that I would put on for pretext after the burden shifted back to the City.
They are all kind of melded together in the initial case.” Aplt. A pp. at 219.
Thus, counsel admitted that he put on his rebuttal evidence as part of his
case-in-chief and cannot now argue to the contrary. M oreover, counsel has not
identified what additional evidence of pretext he might have provided.
Accordingly, granting the City’s motion and entering judgment at the close of
M s. Romero’s case did not unfairly prejudice her.
On the merits of her Title VII claim, M s. Romero contends that the City’s
proffered nondiscriminatory reasons for hiring M r. Rivera instead of her w ere
merely pretextual. M s. Romero’s burden is one of persuasion. See Hicks,
509 U.S. at 508. She may establish pretext “directly by persuading the court that
a discriminatory reason more likely motivated the [City] or indirectly by showing
that the [City’s] proffered explanation is unworthy of credence.” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The indirect showing,
however, “is simply one form of circumstantial evidence that is probative of
intentional discrimination”— it does not compel a judgment in her favor. Reeves,
-7- 530 U.S. at 146-47. Rather, a showing that the City’s reasons are unworthy of
credence, together with her prima facie case, permits an inference that the City is
“dissembling to cover up a discriminatory purpose.” Id. at 147.
W e conclude that the district court’s finding that the City’s proffered
nondiscriminatory reasons were not pretextual has sufficient factual support in the
record and is not clearly erroneous. Several of the City’s employees testified that
interpersonal skills were integral to the Code Inspector position. There was also
testimony that M r. Rivera interacted better w ith customers, whereas M s. Romero
had hung up on a customer on at least one occasion and gotten into a physical
altercation with another employee. Finally, there was testimony that M r. Rivera’s
fifteen years of daily personal contact with Code Inspectors and customers on his
comm ercial route provided him with experience that, in the City’s view, was
preferable to M s. Romero’s experience as an acting Code Inspector in the
residential section where customer contact occurred primarily by telephone.
M s. Romero raises a number of arguments in support of her position that
the C ity’s proffered nondiscriminatory reasons for hiring M r. Rivera are
pretextual. In order to address her arguments properly, it is necessary to review
the hiring process that the Department used in selecting M r. Rivera.
Judy Atkins, the Department’s Personnel Director, screened applicants for
minimum qualifications and then sent a list of those applicants to the
Department’s Superintendent of Collections, Ira Gibson. M r. Gibson selected the
-8- applicants that would be interviewed, and a three-person comm ittee then
conducted the interviews. Each person on the committee selected three of the
applicants as finalists. According to one of the committee members, Donna
Gonzales, M s. Romero appeared on each of the lists but M r. Rivera appeared on
only two. Ultimately, the head of the committee, Theresa Baca, who was then
M r. Gibson’s girlfriend and is now his wife, selected M r. Rivera and passed the
recommendation along to M r. G ibson.
After receiving M s. Baca’s recommendation, M r. Gibson authored a short
memorandum to M ichael Trujillo, the Director of the Department, stating that he
based his decision to recommend M r. Rivera on the responses of applicants during
oral interview s, a blueprint interpretation, and attendance records. He also wrote
that M r. Rivera’s “unconditional concern for the department is also a major
factor.” Aplt. App. at 60. W hen asked at trial if he relied on his personal
knowledge of M s. Romero’s interaction with customers and co-workers, he
replied, “That had nothing to do with it.” Id. at 199:25. In a follow-up answer,
he clarified that he did not make the hiring decision, the committee did, and he
“went with the recommendation of the committee.” Id. at 200:13.
M s. Romero argues that the City’s reliance at trial on temperament is a post
hoc justification that is inconsistent with the reasons set forth in M r. Gibson’s
memorandum to M r. Trujillo and his comment that M s. Romero’s temperament
had nothing to do with the decision to promote M r. Rivera. Therefore, she
-9- concludes, it supports an inference of pretext under M organ v. Hilti, Inc.,
108 F.3d 1319, 1323 (10th Cir. 1997) (explaining that pretext can be shown by
inconsistencies or contradictions in an employer’s proffered nondiscriminatory
reasons). The flaw in this argument is that M r. Gibson testified he had virtually
no role in the hiring decision. He merely passed along the committee’s
recommendation without conducting any independent review . Despite
questioning M s. Gonzales, who was on the committee, M s. Romero elicited no
testimony regarding whether temperament was a factor in the hiring decision.
Accordingly, there is insufficient evidence that the City’s reliance on
temperament is a post hoc justification that supports an inference of pretext.
M s. Romero suggests that the lack of any disciplinary action concerning her
alleged conduct toward customers supports an inference of pretext. W e are not
persuaded. The City is not required to show it had previously disciplined
M s. Romero before it could consider her temperament as a legitimate,
nondiscriminatory reason for not promoting her.
M s. Romero argues that the City’s failure to follow its own written policy
is evidence of pretext under Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168
(10th Cir. 1998) (explaining that pretext may be supported by an employer’s
failure to follow its own criteria for a reduction in force). First, she contends that
M r. Gibson failed to conduct any review of the applicants’ personnel files prior to
making his recommendation to M r. Trujillo. She argues that this is contrary to
-10- PRR § 102.3, which provides that “[t]he personnel file/records of the applicants
will be made available to the interviewing and hiring supervisor,” Aplt. App.
at 63. Contrary to her argument, this provision requires only that the files be
made available to the hiring supervisor, not that the supervisor is obligated to
review them. Second, she points to the City’s alleged failure to abide by other
provisions of the M SO and the PRR that require the City to hire the best qualified
candidate. As discussed above, the City based its decision on appropriate M SO
and PRR criteria. Therefore, this argument lacks merit.
One part of the interview process consisted of a blueprint exercise that
required applicants to diagram an appropriate vehicle route when picking up trash
from a dumpster at a local business. According to the testimony of M s. Romero
and M s. Gonzales, one could not complete the routing exercise without choosing
a route that would violate safety or zoning regulations. Yet M r. Rivera’s flawed
performance on the exercise was one of the reasons given for selecting him.
Apparently, M s. Romero would have us conclude that reliance on M r. Rivera’s
performance on the blueprint exercise was pretextual because it was not a
legitimate factor for distinguishing between applicants–every route resulted in a
violation. W e cannot agree that the mere lack of an answ er that did not violate
safety or zoning regulations supports an inference that the City promoted
M r. Rivera because he is male.
-11- M s. Romero next focuses on qualifications. She argues that M r. Rivera’s
experience as a driver in the commercial sector was insufficient for him to meet
the advertised minimum qualification of two years of “increasingly responsible
code enforcement inspection experience,” Aplt. App. at 23. W e reject this
argument. “Employers are given wide discretion in setting job standards and
requirements and in deciding whether applicants meet those standards.” Hickman
v. Flood & Peterson Ins., Inc., 766 F.2d 422, 425 (10th Cir. 1985). “As long as
the qualifications offered by the employer are reasonable and have been
consistently applied to all applicants for the position, . . . there is no reason for
the fact finder to supplant the employer’s list of qualifications with its own.”
York v. AT & T Co., 95 F.3d 948, 954 (10th Cir. 1996). M s. Atkins, who screened
applicants for minimum qualifications, testified that, in her opinion, M r. Rivera’s
experience as a driver was sufficient because he interfaced with commercial
customers and commercial Code Inspectors on a daily basis. Aplt. App. at
108:9-25. It was within M s. Atkins’s discretion to draw this conclusion, and she
consistently applied this measure to all of the other drivers in the commercial
division who applied, see id. at 109:4-14. The district court found that
M r. R ivera w as minimally qualified, and based on our review of the record, we
cannot say that this finding is clearly erroneous.
M s. Romero also contends that she was better qualified because she had
experience as an acting Code Inspector in the Residential Division whereas
-12- M r. Rivera had experience only as a driver in the Commercial Division, and she
had completed a variety of training in leadership, public relations,
comm unications, and business administration. This argument lacks merit. “The
courts may not act as a super personnel department that second guesses
employers’ business judgments. Accordingly, minor differences between a
plaintiff’s qualifications and those of a successful applicant are not sufficient to
show pretext.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308-09
(10th Cir. 2005) (quotation and citation omitted). Instead, “the disparity in
qualifications must be overwhelming.” Id. (quotation omitted). The evidence
shows that the City could have believed in good faith that M r. Rivera was better
qualified than M s. Romero. Further, the evidence did not support a finding that
she was overwhelmingly qualified.
M s. Romero points to evidence of other discriminatory acts by the City as
support for a finding of pretext. Testimony about other discriminatory acts is
relevant to pretext. See Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 530-31
(10th Cir. 2000) (testimony by plaintiff); Spulak v. K M art Corp., 894 F.2d 1150,
1156 (10th Cir. 1990) (testimony by others). The evidence presented here,
however, consists only of a statement by M s. Atkins that another applicant for the
Code Inspector position had filed a gender discrimination claim of some sort and
M s. Romero’s testimony that she had previously complained about other incidents
-13- of discrimination. These mere allegations are not convincing support for a
finding of pretext in this case.
The final argument on M s. Romero’s Title VII claim that merits discussion
is w hether there is an institutional bias in the City in favor of males. In support,
she points to the fact that only six of 160 drivers are female. M s. Romero,
however, did not present any evidence of what percentage of applicants for driver
positions are women, which would be essential to determine whether the City
hired a disproportionate number of men as drivers. She also points to
M s. Atkins’s failure to provide any reason why an interview was extended only to
one of six minimally-qualified female applicants, whereas almost all of the male
applicants who met the minimum qualifications received interviews. There is no
evidence to support the negative inference M s. Romero would have us draw from
M s. Atkins’s testimony. M r. Gibson decided which applicants to interview, not
M s. Atkins, and there was no testimony from him on that subject. In any event,
both of M s. Romero’s points are largely irrelevant in view of the fact that the City
found M r. Rivera to be more qualified than M s. Romero and had a valid basis for
its decision.
V. Trial Rulings and Bias
M s. Romero raises two additional points on appeal. First, she argues that
the district judge erred by not permitting counsel to treat M s. Atkins as a hostile
witness. Second, she argues that the district judge was biased against her.
-14- A trial judge has broad discretion to permit the use of leading questions
when a party calls a witness who is an adverse party or identified with one. See
Fed. R. Evid. 611(c); United States v. Olivo, 69 F.3d 1057, 1065 (10th Cir. 1995).
The record reflects that M s. Romero’s counsel had called M s. Atkins and
questioned her at length on the subject of whether M s. Romero was more
qualified than M r. Rivera when the judge suggested that he stop cross-examining
her. Counsel then asked for permission to treat her as a hostile witness, which the
judge denied. Our review of the record indicates that M s. Atkins was not adverse
to answering counsel’s questions to the point that she should have been
considered hostile. Furthermore, counsel was able to elicit additional information
from M s. Atkins and, even after the judge’s ruling, continued to pose leading
questions, see, e.g., Aplt. App. at 136:6-8; 148:17-19; 150:25 to 151:4.
Accordingly, we see no abuse of discretion in the district judge’s denial of
counsel’s motion to treat M s. Atkins as a hostile witness.
M s. Romero also takes issues with a number of comments that, she alleges,
show the district judge was biased against her. “Normally, a party alleging
judicial bias should move for recusal, and must do so in a timely fashion.” United
States v. Nickl, 427 F.3d 1286, 1297 (10th Cir. 2005) (quotation omitted). Here,
M s. Romero did not move for recusal. Accordingly, we review her claim of bias
for plain error, which is one that “affects substantial rights” and “seriously affects
-15- the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1297-98 (quotation omitted).
At the beginning of the trial, the judge appeared to confuse the case at bar
with another case. See Aplt. App. at 88:16-24. However, there is no indication
that the confusion was more than momentary and does not evidence bias. Shortly
thereafter, M s. Romero’s counsel asked whether he had to state for the record that
there was no need to move all the stipulated documents into evidence. The judge
replied, “W ell, not unless you want to pay for that when you get a transcript.” Id.
at 93:16-17. M s. Romero concludes that this comment indicated the judge
already intended to rule against her. W e disagree. The comment does not
indicate an opinion about the case derived from an “extrajudicial source” or “such
a high degree of favoritism or antagonism as to make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). Rather, the judge’s comment
appears to indicate only a concern about unnecessary costs, and we decline to
draw from it the conclusion that he had predetermined M s. Romero would be the
losing party and bear those costs.
M s. Romero also points to the judge’s comment that he “wouldn’t want to
be a garbage truck driver if [he] were a woman.” Aplt. App. at 152:15-16. She
contends that this shows the judge had an institutional bias that prevented him
from inferring pretext from the City’s alleged institutional bias. W e are not
persuaded. The judge’s comment was made during a discussion of w hy there
-16- were not more female drivers, w hich, according to M s. Atkins, was probably
because the job was dirty and hazardous, id. at 144:1-3. The judge’s comment
reflected this characterization and does not cause us to question his impartiality or
the fairness, integrity, or public reputation of the proceedings.
M s. Romero also finds bias in the judge’s decision to disregard the
testimony of Orlando Nichols because of his romantic relationship with her while
relying on M r. Gibson’s testimony even though he was romantically involved
with the head of the selection committee, M s. Baca. In effect, M s. Romero asks
us to review the judge’s credibility determinations and infer from them bias in the
judge’s findings. W hen a trial court’s findings are based on credibility, we give
them even greater deference than usual. See Anderson, 470 U.S. at 575.
M s. Romero has provided no reason to question the district court’s decision to
disregard the testimony of M r. Nichols because of his relationship with a party to
the case. M s. Baca was not a party to the case; she only worked for the City.
M r. Gibson’s relationship with her, therefore, does not raise the same concern of
witness bias that prompted the district court’s finding as to M r. Nichols’s
credibility. Accordingly, we see no reason to doubt the impartiality of the district
judge’s findings insofar as they are based on M r. Gibson’s testimony.
M s. Romero also points to the denial of her motion to treat M s. Atkins as a
hostile witness as evidence of the judge’s bias. “[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at
-17- 555. Based on our view that the motion was properly denied and our rejection of
the other bases for M s. Romero’s bias allegation, we see no evidence of bias in
the denial of her motion.
The judgment of the district court is AFFIRM ED.
Entered for the Court
M ary Beck Briscoe Circuit Judge
-18-