Sorensen v. City of Aurora

984 F.2d 349, 36 Fed. R. Serv. 1293, 1993 U.S. App. LEXIS 841, 60 Empl. Prac. Dec. (CCH) 41,991, 60 Fair Empl. Prac. Cas. (BNA) 1147, 1993 WL 8188
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 19, 1993
DocketNo. 91-1348
StatusPublished
Cited by58 cases

This text of 984 F.2d 349 (Sorensen v. City of Aurora) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sorensen v. City of Aurora, 984 F.2d 349, 36 Fed. R. Serv. 1293, 1993 U.S. App. LEXIS 841, 60 Empl. Prac. Dec. (CCH) 41,991, 60 Fair Empl. Prac. Cas. (BNA) 1147, 1993 WL 8188 (10th Cir. 1993).

Opinion

LUNGSTRUM, District Judge.

On February 23, 1990, plaintiff-appellant Mary J. Sorensen (“plaintiff”) filed a complaint with the U.S. District Court for the District of Colorado against defendant-ap-pellee 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, 1991 WL 17775. The dismissal also included all individually named defendants.

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, 1991 WL 183897, ruling (1) that plaintiff had not met her burden in establishing a prima facie case of sexual discrimination, and (2) that plaintiff had established a prima facie case of retaliation, but that the City had articulated valid, nondiscriminatory reasons for discharging her and plaintiff had failed to prove that the City’s articulated reasons for discharging her were pretextual. Accordingly, the district court entered final judgment for the City in an Amended Judgment filed September 11, 1991. We affirm the findings of the district court.

“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., 943 F.2d 1230, 1237 (10th Cir.1991). A finding of fact is clearly erroneous only “if it is without factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made.” LeMaire By and Through LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987). “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 even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. Id. at 573-74, 105 S.Ct. at 1511-12; Ortega v. Safeway Stores, 943 F.2d 1230, 1237 (10th Cir.1991).

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, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). This may be done either by direct proof of discriminatory intent, or, more commonly, through the “series of shifting evidentiary [352]*352burdens that are ‘intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.’ ” Id. (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1095 n. 8, 67 L.Ed.2d 207 (1981)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

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., 943 F.2d 1230, 1236 (10th Cir.1991). Once plaintiffs establish a prima facie case of discrimination, “the burden of production shifts to defendants to rebut the presumption of discrimination.” Drake v. City of Fort Collins, 927 F.2d 1156, 1160 (10th Cir.1991) (citing Carey v. United States Postal Service, 812 F.2d 621, 624 (10th Cir.1987)). A defendant can rebut that presumption by producing “some evidence that it had legitimate, nondiscriminatory reasons for the decision.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986, 108 S.Ct. 2777, 2784, 101 L.Ed.2d 827 (1988). Its articulation of those reasons must be “clear and specific.” Drake, 927 F.2d at 1160.

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 all the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Watson, 487 U.S. at 986, 108 S.Ct. at 2784.

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, 487 U.S. at 986, 108 S.Ct. at 2784 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Further, the ultimate question in a Title VII disparate treatment case is whether the defendant intentionally discriminated against the plaintiff. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). Thus, when such a case is fully tried, as here, we need only consider that ultimate question— whether plaintiff proved that the defendant intentionally discriminated against her. The subsidiary steps in the McDonnell Douglas proof scheme become irrelevant. See Ortega v. Safeway Stores, Inc.,

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984 F.2d 349, 36 Fed. R. Serv. 1293, 1993 U.S. App. LEXIS 841, 60 Empl. Prac. Dec. (CCH) 41,991, 60 Fair Empl. Prac. Cas. (BNA) 1147, 1993 WL 8188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorensen-v-city-of-aurora-ca10-1993.