                                      PUBLISH

                        UNITED STATES COURT OF APPEALS
Filed 7/5/96
                                 TENTH CIRCUIT




 GARY CHAVEZ,

          Plaintiff-Appellee,
 v.
                                                           No. 95-1042
 CITY OF ARVADA, a municipal
 corporation,

          Defendant-Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLORADO
                             (D.C. No. 90-N-99)


Robert M. Liechty (Theodore S. Halaby with him on the brief) of Halaby Cross Liechty
Schluter & Buck, Denver, Colorado, for Defendant-Appellant.

Eva Camacho Woodard, Lakewood, Colorado, for Plaintiff-Appellee.


Before ANDERSON, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, District Judge.*


McWILLIAMS, Senior Circuit Judge.




      *
       Honorable Sven Erik Holmes, District Judge for the Northern District of
Oklahoma, sitting by designation.
       Gary Chavez, a long-time employee of the City of Arvada (“City”) brought an

employment discrimination action (failure to promote) under 42 U.S.C. § 2000e, et seq.,

against the City in the United States District Court for the District of Colorado. In a trial

to the court, the district court found that the City had failed to promote Chavez in

retaliation for his filing a complaint against the City with the Equal Employment

Opportunity Commission (“EEOC”) some ten years prior thereto. The district court then

entered judgment in favor of Chavez and against the City in the sum of $23,065, said sum

representing back pay and interest thereon. The district court also entered an additional

judgment in favor of Chavez and against the City for attorney’s fees and costs in the

amount of $25,262, making the total amount of the judgment $48,327. The City appeals.

       At the conclusion of the presentation of evidence, and after oral argument of

counsel, the district court on December 12, 1991, made its findings of facts and

conclusions of law from the bench. Such findings and conclusions were in considerable

detail and cover some 46 typewritten pages, double-spaced, in the City’s appendix.1 The

trial transcript is not a part of the record before us, and counsel for both sides in their

respective briefs rely on the district court’s findings for their Statement of Facts. Such

being the case, we must necessarily also rely on the findings of the district court in


       1
         The City filed a notice of appeal from the judgment entered on or about
December 12, 1991. That appeal, No. 94-1520, was later dismissed because of a
jurisdictional defect. An amended judgment was entered by the district court on
December 22, 1994, and an amended notice of appeal was filed on January 23, 1995.

                                              -2-
detailing the sequence of events giving rise to the present controversy.

       Relying then on the district court’s recital of the background facts, it appears that

the City has a Public Works Department and that one Ron Culbertson at all pertinent

times was the Director of the department. Within the Public Works Department, there are

several subdivisions, one of which is the Street and Drainage Maintenance Division. One

Kelly Schulz headed this division from 1971 until January 16, 1988. There are three

crews within the Street and Drainage Maintenance Division, namely: (1) the sweeping

and mowing crew; (2) the asphalt crew; and (3) the drainage and concrete crew. Each of

these crews has a “crew supervisor.” The position which Chavez sought, but did not get,

was the position of crew supervisor for the drainage and concrete crew. The position

became vacant when the incumbent retired. At the time of the vacancy in the position of

crew supervisor for the drainage and concrete crew, Chavez, who had previously been on

that particular crew, was a member of the sweeping and mowing crew which was then

headed by a Mr. Hammons.

       The vacancy in the position of crew supervisor for the drainage and concrete crew

occurred in the Fall of 1987, and the City proceeded to fill the vacancy. Notice was

posted and ten persons applied for the vacancy in question. After a testing process, all ten

were certified as possessing the required minimum qualifications to the selecting

authority, Culbertson.

       The testing process was rather elaborate and consisted, inter alia, of both a written


                                             -3-
and oral examination, with the oral examination constituting 75% of the final test score,

and the written examination constituting 25% of the final score. The district court

concluded that the written test had been “fairly and correctly administered, graded and

scored.” More will be said later about the oral examination. A Mr. Bowman, who

ultimately was made crew supervisor for the drainage and concrete crew, scored slightly

higher than Chavez in the oral examination, whereas Chavez scored slightly higher than

Bowman on the written examination. Combining both examinations, Bowman and

Chavez had identical scores of 47.15 on the combined oral and written examinations.

Bowman was apparently listed first on the eligibility list since he scored higher than

Chavez on the more heavily weighted portion of the test, namely, the oral examination.

       Although Culbertson was technically permitted to choose any of the ten persons on

the eligibility list, he quickly narrowed the list to Chavez and Bowman. As a part of the

selection process, Culbertson sought the recommendation of Schulz, who would be the

direct supervisor of the successful candidate, as well as the recommendation of the then

current direct supervisor of both Chavez and Bowman. As indicated, Chavez was then

serving as senior equipment operator on the sweeping and mowing crew, which was

headed by Hammons, and Bowman was a senior equipment operator on the asphalt crew,

which was then headed by Dick Beasley. Hammons recommended Chavez. Beasley

recommended Bowman. Schulz recommended Bowman.




                                            -4-
       In addition to considering the recommendations of Hammons, Beasley and

Schulz, and the test scores, Culbertson developed five questions to be put to the two

candidates in his oral interview with each. After interviewing both Bowman and Chavez,

and considering, inter alia, their answers to his five questions, to which Bowman scored

higher than Chavez, Culbertson selected Bowman to be the crew supervisor for the

drainage and concrete crew. The district court in its findings stated that Culbertson in

selecting Bowman over Chavez “relied upon his own judgment as to who provided better

answers to his questions.”

       The district court also found that in 1977 Chavez filed a claim of discrimination

with the EEOC claiming that the City failed to train him for a position of senior

equipment operator. The court further noted that the claim had been settled and that

Chavez “dropped the matter without proceeding further.” Continuing, the district court

found, however, that there was no persuasive evidence that Culbertson knew of Chavez’

prior claim when he made the decision to promote Bowman over Chavez in 1987. The

district court also noted, parenthetically, that in 1990, about two years after Chavez did

not get the promotion to crew supervisor of the drainage and concrete crew, Chavez had

been promoted to crew supervisor of the sweeping and mowing crew when Hammons

retired. The district court observed that in getting that promotion the “testing process”

was similar to the testing process used two years earlier when Chavez did not get the




                                             -5-
promotion. At that time, Chavez obtained the highest score on both the written and oral

examinations and it was Culbertson who appointed him.

       As indicated, Culbertson, being the Director of Public Works Division, was the

sole appointing authority for the position of crew supervisor for the drainage and concrete

crew. Culbertson testified at trial. The district court summarized Culbertson’s testimony

concerning his personal decision to select Bowman, not Chavez, for the position in

question as follows:

                      He testified that he relied upon his own judgment as to
              who provided better answers to his questions. He relied upon
              the test results as to which the candidates were scored but--the
              candidates were tied, but Mr. Bowman had an edge because
              of his higher score on the oral test. Mr. Culbertson also relied
              upon the supervisors’ recommendations. He clearly stated
              that he examined all the information as a whole and that it
              was all considered equally--and that he considered it equally
              important to him in making his decision.

       The district court also found that there was a “hostile work environment” within

the Street and Drainage Maintenance Division based on “sex and national origin.”

However, the district court rejected Chavez’ suggestion that the hostile work environment

was “strong evidence” of discrimination when he was passed over for promotion to the

position of crew supervisor for the drainage and concrete crew. In this regard, the district

court concluded that McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) governs

cases where “a plaintiff attempts to prove a case of discrimination by circumstantial

evidence” and does not apply “very readily when you’ve got direct evidence of


                                            -6-
discrimination.” Having thus concluded, the district court expressed the view that the

present case is a “mixed motive” case, and, as such, governed by Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989). According to the district court, the “burden of proof under

Price Waterhouse shifts to the defendant to demonstrate by a preponderance of the

evidence that the same employment decision would have been made even if the improper

or illegal factors had not been considered.”

       As concerns Schulz, who was head of the Street and Drainage Maintenance

Division, the district court indicated that although Schulz in recommending Bowman to

Culbertson “may not have been motivated by racial animus . . . [he] was motivated by a

retaliatory animus, in that he was retaliating against Mr. Chavez for the filing of the

previous EEOC complaint.” In support thereof the district court noted that when Chavez

“approached him [Schulz] after the [written] test, Mr. Schulz told him, ‘Oh, no, you’re

not going to pull that one on me again.’” The district court stated that although Schulz

denied making any such statement, it believed Chavez on this particular matter. In this

same connection, the district court went on to state that this statement attributed to Schulz

by Chavez “was referring to the fact that he was the supervisor in 1977 in the department

when Mr. Chavez filed his previous complaint.”2 The district court then held that this

was not a “circumstantial evidence” case because there was direct evidence of retaliatory


       2
          The district court in its findings did recognize the possibility of a personality
conflict between Chavez and Schulz, observing that Chavez was aggressive and that
Schulz was older and “set in his ways.”

                                               -7-
animus on the part of Schulz, based on the “Oh, no . . .” statement, and that Schulz’

participation in the grading of the oral examination, as well as his recommendation of

Bowman over Chavez, was taken into consideration by Culbertson in making his decision

to promote Bowman. Specifically, the district court found that “Mr. Schulz’ animus,

retaliatory in nature, infected not only his recommendation to Mr. Culbertson, but

infected the very test which supposedly provided objectivity to this process.” In this

particular connection, the district court concluded as follows:

                      What we end up with then, or what I end up
              confronting is this situation. Mr. Culbertson himself may not
              have intended to discriminate, may not have been motivated
              by a retaliatory animus, but he considered several factors,
              some of which were discriminatory and improper, others of
              which were perfectly proper. I, frankly, find nothing
              improper about his own scoring of his own oral test. He made
              a case that I find is persuasive that Mr. Bowman scored better
              on that test, and I’m not going to interfere with his judgment
              as to that test alone. But he also gave some weight and some
              unspecified weight to these other improper factors.

       Such being the case, the district court opined that under Price Waterhouse, supra,

the City had the burden of showing that the decision by Culbertson to promote Bowman

over Chavez “would have been the same had you thrown out the recommendation of Mr.

Schulz, had you thrown out the results of the oral test, and had you thrown out the

recommendation of Mr. Beasley,” and stated, “I do not believe that that burden has been

discharged.” So much for the district court’s findings of fact.




                                            -8-
       As his first claim for relief, Chavez alleged in his complaint that the City decided

not to promote him to crew supervisor--and instead promoted Mr. Bowman, a white male-

-because of the fact that he (Chavez) was a Hispanic. As we read the district court’s

findings, the district court did not so find. The district court did find, inter alia, that there

was a hostile work environment in the Street and Drainage Maintenance Division based

on gender and national origin, but concluded, as we understand it, that such was not the

cause of the City’s decision to promote Bowman over Chavez.

       Chavez also alleged in his complaint that the City’s decision to promote Bowman,

and not Chavez, to crew supervisor was in retaliation for his filing an EEOC complaint

against the City in 1977. Culbertson was originally a defendant in this proceeding.

Pursuant to a stipulated motion of the parties, Culbertson was dismissed with prejudice

from the case. And in its findings, the district court found that Culbertson, in promoting

Bowman instead of Chavez, was not acting in retaliation for Chavez filing a complaint

against the City with the EEOC in 1977.

       The court’s basis, then, for holding the City liable to Chavez, as we understand it,

was that Schulz, the head of the Street and Maintenance Division, in evaluating Chavez’

answers to the questions posed in the oral examination test, and in his ensuing

recommendation of Bowman over Chavez to Culbertson, was acting in retaliation for

Chavez filing a complaint against the City with the EEOC some ten years earlier. In this

general regard we note that Chavez in his complaint had alleged as follows:


                                               -9-
                      On or about 11/19/89, the Defendant Appointing
              Authority Culbertson selected the white male, Mr. Bowman,
              for the Crew Supervisor position, and as part of his decision,
              relied heavily upon the advice of Plaintiff’s supervisor who
              stated that he recommended against Plaintiff receiving the
              promotion directly because the Plaintiff had previously
              prevailed in a discrimination complaint he had filed against
              Defendant City of Arvada and which was resolved in 1977
              (emphasis in original).

       Significantly, the district court did not find that Schulz recommended to

Culbertson that Chavez not be appointed supervisor for the drainage and concrete crew

because Chavez filed a discrimination complaint against the City in 1977. And,

importantly, there was no evidence which would support Chavez’s allegations in his

complaint.

       The district court did find that in 1977 Schulz was the supervisor of a crew in

which Chavez was a member and that Culbertson was then the Director of the Public

Works Division. And it was an admitted fact that Chavez in 1977 had filed a complaint

against the City with the EEOC, complaining that he had not been afforded training that

conceivably could have lead to a promotion. We do not know much more about the

details of the complaint, although the complaint was settled without recourse to litigation.

What part, if any, Schulz, or Culbertson for that matter, played in the 1977 incident is not

in the record before us.

       The oral test would appear to be at the core of the present controversy, and perhaps

a bit more should be said about it. Schulz, with the assistance of a Mr. Polk, who was in


                                            -10-
charge of the oral and written examinations, drew up the questions for both examinations.

The written examination was held on November 9, 1987, and was graded immediately

thereafter by Schulz. As indicated, Chavez outscored Bowman on the written

examination, 10.5 to 9. Notwithstanding, before the oral examination was even held,

Chavez complained to Schulz about his grading of the written examination. To which,

according to Chavez--but denied by Schulz--Schulz said: “Oh, no, you’re not going to

pull that one again on me.” Since Schulz denied making the one sentence attributed to

him by Chavez, he of course would not have to explain the statement. As far as we can

tell, Chavez did not opine as to his understanding of the statement. However, the district

court held that this one sentence uttered by Schulz showed retaliatory animus for Chavez

filing a complaint with the EEOC in 1977. And the district court held that this retaliatory

animus caused Schulz, who was but one of five evaluators of the oral examination, to

give Chavez low marks on the oral examination and to recommend Bowman over Chavez

to Culbertson.

       We review the district court’s factual findings under the clearly erroneous

standard. “A finding is ‘clearly erroneous’ when although there is evidence to support it,

the reviewing court on the entire evidence is left with the definite and firm conviction that

a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S.

364, 395 (1948). See also Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d




                                            -11-
1259, 1261 (10th Cir. 1994) and Las Vegas Ice and Cold Storage Co. v. Far West Bank,

893 F.2d 1182, 1185 (10th Cir. 1990).

       In Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.

1982), cert. denied, 459 U.S. 1071 (1982), we stated that a plaintiff in a retaliation case

must first establish, prima facie, the following: (1) he engaged or participated in a prior

protected Title VII proceeding; (2) he was later disadvantaged by action of his employer

subsequent to or contemporaneously with such participation; and (3) there is a causal

connection between the protected activity and the adverse employment action. In Burrus

we went on to say that “[t]he causal connection may be demonstrated by evidence of

circumstances that justify an inference of retaliatory motive, such as protected conduct

closely followed by adverse action” (emphasis added). Id.



       Here any adverse action certainly did not “closely follow” Chavez’ protected

activity. It occurred some ten years after the protected activity. There is nothing in the

record before us to indicate that there was any continuing friction, let alone retaliatory

animus, between the City and Chavez during that ten-year period. And in any event, the

district court held that this was not a “circumstantial evidence case,” and that retaliatory

animus had been proven by direct evidence.

       Back to Burrus, we agree that the first and third prongs of the test for adverse

employer action based on retaliation were met, i.e. Chavez did engage in protected


                                             -12-
activity in 1977, and in 1987 he suffered adverse employer action when he was not

promoted to crew supervisor for the drainage and concrete crew. The issue to be resolved

is whether there was a “causal connection” between Chavez’ protected activity in 1977

and the City’s failure to promote Chavez in 1987. We hold that the evidence is

insufficient to support the district court’s finding of “causal connection.”

       To us, it is significant that the adverse action was separated from the protected

activity by some ten years. As stated above, there is nothing in the record before us to

indicate that there was continuing friction between the City and Chavez from 1977, the

year of the protected activity, and 1987, the year of the adverse employment action. In

Burrus, the employee had been terminated over three years after her initial charge of

gender retaliation. In that case, we upheld the district court’s determination that the

employer’s termination was “justifiable,” since male and female employees were all being

terminated because there was “duplicating work done elsewhere.” In so holding, we said,

“[g]iven the length of time [three years] between the filing of [the initial] charges and the

termination, we agree with the trial court that Burrus [the employee] failed to establish a

prima facie case of retaliation based on her termination.” Id. Candelaria involved an

employee who brought suit alleging that her employer had breached a conciliation

agreement which she and her employer had entered into concerning a prior discrimination

complaint wherein the employer agreed, inter alia, that “there shall be no discrimination

or retaliation of any kind against [Candelaria] for raising this complaint.” Candelaria, 33


                                            -13-
F.3d at 1260. In reversing the district court’s holding that the employer had acted in

retaliation for the employee’s earlier complaint, we said that a retaliatory inference could

not be drawn where the adverse action was more than three years from the period of

protected activity, citing Burrus, 683 F.2d at 1262, for the proposition that “no inference

of retaliatory motive [is] permitted where employee’s charges were not ‘closely followed

by adverse action’; showing of termination ‘almost three years after’ employee filed

charges did not establish prima facie case of retaliation.”

       So, under the so-called three year rule of Burrus and Candelaria, the ten-year lapse

between Chavez’ protected activity in 1977 and the adverse employment action in 1987

would not permit an inference of retaliation. However, it is agreed that a prior complaint,

no matter how distant in the past, could be the basis for retaliation IF there were evidence

tying the adverse employer action to the past protected activity.

       Which brings us to the “Oh, no . . .” statement attributed by Chavez to Schulz, but

denied by the latter. As indicated, we must accept the district court’s finding that Schulz

did in fact make the remark. Is such a sufficient reed upon which to hang a judgment for

nearly $50,000? We think not.

       The statement itself is in our view equivocal; whether it refers to the 1977 episode

or something occurring in the intervening ten years is pure guesswork. But for that one

bit of evidence, the City, under the described circumstances, would have to prevail. And

that short utterance attributed to Schulz by Chavez is not enough to change the result. We


                                            -14-
are convinced that a mistake was made. United States Gypsum Co., supra. In sum, the

evidence in our view is insufficient to support the district court’s finding that the City did

not promote Chavez in 1987 because he filed a complaint with the EEOC in 1977.

       Judgment reversed and cause remanded with direction that the district court enter

judgment in favor of the City.




                                             -15-
