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September 22, 1989

ANN D. SMITH, Plaintiff

Elsijane T. Roy, United States District Judge.

The opinion of the court was delivered by: ROY


 Trial in three consolidated actions was held on April 10 and 11, 1989, post-trial briefs have been received, and the matter is now ripe for determination.

 Plaintiff began her employment with defendant in 1974. She resigned effective September 30, 1986. After her resignation, plaintiff filed three separate lawsuits in federal district court alleging she had been discriminated against on the basis of her sex and that defendant had retaliated against her for filing an EEOC charge. These were consolidated into one action. The Court has jurisdiction of this case pursuant to 42 U.S.C. § 2000(e)-5.

 Both parties agree that plaintiffs' claims can be divided into three categories: (1) failure to promote; (2) retaliation for filing an EEOC charge; and (3) that the culmination of the retaliation was that she was forced to terminate her employment.

 Before addressing these issues, the Court notes that plaintiff failed to present evidence regarding several allegations which were included in the original complaints filed with the Court. After plaintiff completed her case, defendant moved for a directed verdict and plaintiff's counsel agreed that evidence had not been presented on some of those allegations. The Court struck those issues from further consideration. Those specific issues include: (1) Plaintiff alleged that Southwestern Bell retaliated against plaintiff by failing to publish her photograph taken with the Governor in a company publication; (2) plaintiff alleged that one of Southwestern Bell's departments was staffed predominantly by white males, and the Company had reduced the number of females in that department. Further, plaintiff alleged that the Company discriminated against females as a class.

 In her complaint, plaintiff alleged that Southwestern Bell retaliated against her by giving her a performance appraisal and potential appraisal on her last day of work. Defendant moved for a directed verdict on this issue at the close of plaintiff's case, but counsel did not agree to dismissal. The Court has reviewed the record and found no testimony introduced by plaintiff regarding this issue, and it was not addressed in plaintiff's post hearing brief. Even though no evidence was introduced by the plaintiff on this issue, defendant did introduce relevant testimony through Deborah Heritage. Ms. Heritage stated that there were three reasons plaintiff was given the appraisals on her last day: (1) Plaintiff was leaving with vested rights, which meant she could be re-employed. Defendant therefore prepared a re-employability form which required a current up-to-date assessment of plaintiff's performance. Plaintiff was one of three managers that left the division that had vested rights, and all three of them had appraisals made out on them before they left; (2) Defendant had made a commitment to plaintiff to reassess her potential, and was abiding by that commitment, and (3) plaintiff's supervisor, Jannette Burke, was moving to a new position in forecasting, and Heritage asked Burke to update all of her personnel records before she left. All of the first-level managers who reported to Burke had a new appraisal prepared. The Court finds that the allegation regarding the performance appraisal and potential appraisal given on her last day of work should be dismissed since plaintiff did not meet her burden of proof.

 All of the plaintiff's claims of sex discrimination and retaliation can be analyzed as disparate treatment claims. Disparate treatment claims turn on whether the employer intentionally treated some employees less favorably than others because of race, color, religion, sex, or national origin. Craik v. Minnesota State University Board, 731 F.2d 465, 468-469 (8th Cir. 1984).

 A case proceeding on the theory of disparate treatment has three phases. First, plaintiff must establish a prima facie case; second, defendant may rebut that prima facie case by offering a legitimate, nondiscriminatory reason for its actions; and third, plaintiff is given the opportunity to prove that defendant's rebuttal is a pretext to cover a discriminatory move. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981).

 In order to establish a prima facie case, a plaintiff must meet the requirements set forth in the seminal case of McDonnell Douglas Corp. v. Green, supra. The criteria established in McDonnell Douglas must be adapted to meet the factual situations. In a promotion case, the plaintiff must establish that (1) she was a member of a protected class under Title VII; (2) she applied for and was qualified for the position; (3) despite her qualifications she was denied promotion in favor of a male. Pierce v. Marsh, 859 F.2d 601 (8th Cir. 1988); Hayes v. Thomas, 851 F.2d 1101 (8th Cir. 1988); McDonnell Douglas, supra.

 The basis for plaintiff's failure to promote claim is that her name was removed from the candidate list for promotion without her being aware of it until later, and that promotions to second level positions were given to three males, identified as John Andrews, Greg Gilbert and Bart Hindley. Plaintiff was unable to recall the positions these men filled, but testified that she was qualified for them. Plaintiff was unable to give a description or job duties for each man's position, and was therefore unable to tell how she was qualified to perform the duties. It is essential to plaintiff's proof of a prima facie case that she was qualified for the positions. Plaintiff did go through the appraisal of management potential forms that were prepared on Andrews, Gilbert and Hindley, and attempted to make comparisons with her appraisal. However, there was no explanation offered by plaintiff of how those appraisals of management potential were used or applied to these promotions.

 Even though the plaintiff did not present sufficient evidence for the Court to conclude that she was qualified for the three positions, testimony from defendant's witness, Mr. William Griep, indicated that plaintiff may have been minimally qualified for the positions held by Andrews and Gilbert. The Court finds, however, as will be discussed later, that plaintiff failed to prove she was qualified for the position held by Hindley. Based upon Mr. Griep's testimony, the Court will assume the plaintiff met her burden of proving a prima facie case regarding the failure to promote issue as to those positions held by Gilbert and Andrews. However, the Court also finds that Southwestern Bell offered a legitimate, nondiscriminatory reason for promoting Andrews and Gilbert. To articulate a legitimate nondiscriminatory business reason, an employer must present admissible evidence sufficient to raise a genuine factual issue as to whether plaintiff was discriminated against. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Proof that the candidate selected was better qualified than the plaintiff is a legitimate nondiscriminatory reason for the employer's action. See Pierce v. Marsh, supra, 859 F.2d at 603.

 On the other hand, Mr. Griep stated that plaintiff's experience was all on the construction side of the business -- she had nothing to do with the design and had no engineering experience whatsoever. Mr. Griep testified and the record reflects that plaintiff does not have a college degree. Plaintiff argues that she had engineering experience by virtue of her job title of Network Staff Supervisor, Outside Plant Engineering. However, Mr. Griep offered unrefuted testimony that the job title was given to many positions which did not have anything to do with engineering. Ms. Smith had no experience drawing engineering plans as did Mr. Hindley and it is clear she was not qualified for the position held by Hindley.

 In December 1984 Mr. Andrews received a promotion to the position of Manager OSP maintenance, outside plant maintenance. In May of 1985, he was moved to a test center position and Mr. Gilbert took Andrews' place as Manager OSP maintenance, Outside Plant Maintenance. Mr. Griep stated that both of these men began their careers in the early 1970's in installation and maintenance work. After five or six years they were both promoted to management, supervising the installation and maintenance work and serving in the test center as first line supervisors. According to Mr. Griep, plaintiff had no experience in the test center. He testified that plaintiff was only minimally qualified for the second level position of Manager, OSP Maintenance, and her experience was strictly in construction. Plaintiff admitted that her experience in installation and maintenance consisted of a three-week period during a work stoppage in 1983.

 The testimony presented clearly shows that plaintiff was not qualified for the position to which Hindley was promoted, and that Andrews and Gilbert were better qualified for the positions to which they were promoted than the plaintiff. Plaintiff did not rebut Southwestern Bell's legitimate, nondiscriminatory business reason for promoting Andrews, Gilbert and Hindley. She offered no evidence that the Company's reasons were a mere pretext to cover a discriminatory motive. Under the three-part test articulated in McDonnell Douglas, supra, the plaintiff must provide evidence to rebut the defendant's legitimate reason. Plaintiff must demonstrate that the Company's reason was pretext. Pierce v. Marsh, supra. Plaintiff, Ann Smith, offered absolutely no proof to rebut Southwestern Bell's evidence that Andrews, Gilbert and Hindley were better qualified for their promotions.

 As an adjunct to her promotion claim, plaintiff alleged that Southwestern Bell discriminated against her by removing her name from the candidate list. Plaintiff also complains about the fact that she did not know she was removed from the list until later. Plaintiff again bears the burden of proving that Southwestern Bell removed her from the candidate list because she was a female. Plaintiff failed to meet this burden.

 On the other hand, sufficient evidence was presented to lead the court to conclude that the plaintiff's name was removed from the promotion list for legitimate business reasons, and plaintiff failed to present sufficient evidence to rebut this or to indicate that the reasons were pretextual. Steve Kemp, area manager, materials management, who was plaintiff's supervisor for one year beginning in March 1984, testified that he recommended to Deborah Heritage that plaintiff's name be removed ...

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