                                     PUBLISH

                 UNITED STATES COURT OF APPEALS
Filed 8/27/96
                              TENTH CIRCUIT



PATRICIA YORK,

            Plaintiff - Appellant,

      v.                                           No. 95-6068

AMERICAN TELEPHONE &
TELEGRAPH CO.;
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL UNION NO. 2021; ROBERT
LEE,

            Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D. Ct. No. CIV-94-177-R)


Joseph R. Weeks, Oklahoma City University School of Law, Oklahoma City,
Oklahoma (Marilyn D. Barringer, Oklahoma City, Oklahoma, with him on the
briefs) appearing for the Appellant.

Debra B. Cannon, McKinney, Stringer & Webster, Oklahoma City, Oklahoma
(Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, Oklahoma, and
Marc E. Manly, Law Vice President and Solicitor General, AT&T Corp., Basking
Ridge, New Jersey, with her on the brief) appearing for Appellee AT&T.

Loren F. Gibson (George J. McCaffrey with her on the brief), Lampkin,
McCaffrey & Tawwater, Oklahoma City, Oklahoma appearing for Appellee IBEW
Local 2021.
Before SEYMOUR, Chief Judge, TACHA, and EBEL, Circuit Judges.


TACHA, Circuit Judge.




      Patricia York sued the American Telephone and Telegraph Company

(“AT&T”), the International Brotherhood of Electrical Workers, Local Union No.

2021 (“IBEW”), and Robert Lee under Title VII, alleging sex-based disparate

treatment and disparate impact discrimination. A jury found for the defendants,

and the district court denied York’s motion for a new trial. York now appeals the

district court’s (1) refusal to give particular jury instructions, (2) grant of

summary judgment to IBEW on her disparate treatment claim, (3) rulings on her

motions in limine, (4) refusal to take judicial notice of the disparate impact of

AT&T’s two-year experience requirement for the position in question, (5) refusal

to grant a new trial, and (6) grant of summary judgment in favor of the defendants

on her public policy claim. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.



                                    I. Background

      In July 1992, AT&T posted an advertisement for the position of Group I

Operating Engineer in the powerhouse of the AT&T plant in Oklahoma City,

                                           -2-
Oklahoma. The position involved the operation and maintenance of a variety of

powerhouse machinery, including steam turbines, boilers, chillers, and

compressed air systems, as well as the monitoring of a control panel to prevent an

explosion from occurring in the boilers and steam-driven machinery. The position

entailed considerable responsibility for the safety of property and other workers.

        AT&T’s collective bargaining agreement with IBEW required AT&T to fill

vacancies in the Operating Engineer position through the use of a bid procedure,

by which interested employees submitted bids, or applications, for the job. The

agreement obliged AT&T to accept the bid of the most senior applicant meeting

the job qualifications described in the agreement. The job qualifications for the

Operating Engineer position, as replicated in the advertisement for the position,

were:

        (1) Completion of an accredited trades training course or equivalent
        knowledge and skill acquired by means of practical experience.

        (2) Demonstrated ability of basic skills associated with this trade.

        In 1989, three years prior to applying for the advertised Operating Engineer

position, York asked Joe Srejma, the powerhouse supervisor at the time, how she

could “get in the boilerhouse.” He stated that she would have to complete a

vocational training course and obtain a Class I license for boiler operation.

Although he did not specifically mention the requirement of prior practical

experience, at the time of their conversation two years of experience was a

                                          -3-
prerequisite for obtaining a Class I license in Oklahoma City.

      Initially, AT&T only advertised the job opening within the Oklahoma City

facility. York and seven other employees submitted bids for the position. York

was the only woman among the eight applicants. Robert Lee, the first line

supervisor over the Operating Engineers, interviewed the applicants and

determined that none of them possessed the stipulated minimum qualifications for

the position. York, who had worked for approximately twenty-three years in the

Maintenance Department at the Oklahoma City plant, was the most senior

applicant. She had also completed two vocational courses on low- and high-

pressure boilers and had received a Class I license for boiler operation from the

City of Oklahoma City. However, by the time she received her Class I license

two years experience was no longer a requirement. Consequently, she possessed

no practical experience in the area and thus failed to meet the job qualification of

“skill acquired by means of practical experience.” AT&T’s longstanding hiring

practice had been to require Operating Engineer candidates to possess two years

of experience in order to satisfy this requirement.

      After Lee determined that there were no qualified candidates within the

Oklahoma City facility, AT&T human resources personnel placed the job

advertisement on AT&T’s Automated Transfer System (“ATS”), a computer

system that advertises positions nationally within AT&T. Two AT&T employees


                                         -4-
from outside Oklahoma City submitted bids on the ATS. One of these applicants,

R.D. Matthews, had nine years of previous experience as an Operating Engineer

at another AT&T facility and met all of the posted qualifications. AT&T

ultimately selected him for the position.

      Prior to the hiring of Matthews, Lee informed York that the experience

requirement was absolute and that she did not meet the posted qualifications for

the position. York then asked her IBEW representatives to file a grievance on her

behalf protesting the determination that she was not qualified. The union

representatives refused to do so, agreeing with AT&T’s view that the collective

bargaining agreement required Operating Engineers to possess practical

experience. At that point, York asked her union representatives to speak with

company management on her behalf to induce them to discontinue the search for

an Operating Engineer and instead create a powerhouse trainee position. York

would then apply for that position. Testimony offered at trial conflicts as to

whether IBEW representatives ever made such a request on York’s behalf. In any

event, IBEW declined to file a grievance against AT&T or officially contest the

company’s decision on this issue. York also made her request directly to Lee.

Lee refused to stop the search for an Operating Engineer and create a trainee

position because he believed that the collective bargaining agreement required

AT&T to first readvertise the Operating Engineer position on the ATS. York then


                                            -5-
brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, et seq, alleging sex-based disparate treatment and disparate impact

discrimination in AT&T’s hiring practices. After a four-day trial, the jury

returned a verdict in favor of the defendants on all claims.

      York maintains that she understood the first qualification in the

advertisement for the Operating Engineer position to state two alternative, rather

than mandatory, requirements. The qualification reads: “Completion of an

accredited trades training course or equivalent knowledge and skill acquired by

means of practical experience.” York interpreted this language with emphasis on

the word “or” as the division point between the two alternatives. That is, she

believed that either (1) the completion of an accredited training course or (2)

equivalent knowledge and skill acquired by means of practical experience would

have satisfied the qualification. However, the drafters of the agreement, AT&T

and IBEW, intended the emphasis to fall on the word “and.” Understood this

way, the qualification contained two requirements, both of which had to be

satisfied: (1) completion of a training course or equivalent knowledge and (2)

practical experience.



                            II. The Jury Instructions

      We review a district court’s refusal to give a requested jury instruction for


                                         -6-
abuse of discretion. United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert.

denied, 116 S. Ct. 247 (1995). However, we review de novo the question of

whether the court’s instructions, considered as a whole, properly state the

applicable law and focus the jury on the relevant inquiry. Id. York challenges

the instructions offered by the court on four grounds. First, she contends that the

court erred by only presenting the fact-finding framework for assessing indirect

evidence of discrimination laid out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450

U.S. 248 (1981), and not also instructing the jury that a plaintiff may alternatively

show that sexually discriminatory reasons motivated an employer by presenting

direct evidence of discrimination. See Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 121-22 (1985); Long v. Laramie County Community College Dist.,

840 F.2d 743, 748-49 (10th Cir.), cert. denied, 488 U.S. 825 (1988). York did not

raise this objection at trial. In the absence of a proper objection, we review a

district court’s instructions for plain error. Palmer v. Krueger, 897 F.2d 1529,

1532-33 (10th Cir. 1990).

      York maintains that she submitted direct evidence of discrimination in the

form of testimony from two witnesses, Patricia Giddens and Mark Sloan.

Giddens testified that prior to the posting of the Operating Engineer

advertisement, she asked Lee whether he was going to hire York for a position in


                                         -7-
the powerhouse. Lee answered, “No, I’m not,” and then explained that there was

not an opening at that time and that York did not yet possess a Class I license.

Sloan testified that, in a conversation with Lee that occurred after York had

already been informed that she was not qualified for the position, he stated to

Lee, “I heard you’re going to be having a female employee.” Lee responded that

“there wasn’t going to be the woman he was asking . . . about.” In both instances,

Lee’s response was ambiguous and may have reflected entirely nondiscriminatory

hiring practices. This evidence does not rise to the level of direct evidence of

discrimination needed to set aside the McDonnell Douglas mode of inquiry.

Indeed, where the Supreme Court has been willing to regard the McDonnell

Douglas test as inapplicable, the employer’s policy has been “discriminatory on

its face,” treating the members of the disadvantaged group differently according

to the very terms of their employment. Trans World Airlines, 469 U.S. at 121.

The district court was therefore correct in directing the jury to apply the

McDonnell Douglas test. See Furr v. AT & T Technologies, 824 F.2d 1537, 1549

(10th Cir. 1987) (describing when the McDonnell Douglas test is inapplicable).

      York’s second challenge concerns the district court’s refusal to submit her

instruction concerning the term “qualified” in the McDonnell Douglas test. Under

the McDonnell Douglas test, the plaintiff in an employment discrimination case

bears the initial burden of establishing a prima facie case, which may be


                                         -8-
accomplished by showing:

      (i) that he belongs to a racial minority [or other class protected under
      Title VII]; (ii) that he applied and was qualified for a job for which
      the employer was seeking applicants; (iii) that, despite his
      qualifications, he was rejected; and (iv) that, after his rejection, the
      position remained open and the employer continued to seek
      applicants from persons of complainant’s qualifications.

McDonnell Douglas, 411 U.S. at 802 (emphasis added). If the plaintiff succeeds

in establishing a prima facie case, the burden then shifts to the employer “to

articulate some legitimate, nondiscriminatory reason for the employee’s

rejection.” Id. Finally, if the employer succeeds in presenting a

nondiscriminatory reason, the burden returns to the plaintiff to show that the

offered reason is merely a pretext by demonstrating either that a discriminatory

reason more likely motivated the employer or that the employer’s explanation is

unworthy of credence. Burdine, 450 U.S. at 256.

      York’s challenges the district court’s instruction regarding the components

of a prima facie case. The court stated that the plaintiff must prove, among other

things, “[t]hat Plaintiff was qualified for the position of Operating Engineer.”

York asked that the jury be instructed that to be “qualified,” the plaintiff need

only show that she possessed the minimal qualifications that the jury deemed

necessary for safe and effective job performance. In effect, York’s requested

instructions would have directed the jury to determine the appropriate

qualifications for the job rather than accept the employer’s stated qualifications.

                                         -9-
      York’s requested instruction misconstrues the first stage of the McDonnell

Douglas test. It is not the fact finder’s task to assess which of an employer’s

stipulated qualifications ought to be required of applicants for a particular

position. “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, as was the case here, there is no reason

for the fact finder to supplant the employer’s list of qualifications with its own.

The district court did not abuse its discretion in rejecting York’s requested

instruction.

      York’s third challenge to the jury instructions concerns the court’s refusal

to instruct the jury that it was free to draw a negative inference where a party fails

to produce evidence that is under that party’s control. We review this decision

for abuse of discretion. See Wilson v. Merrell Dow Pharmaceuticals, Inc., 893

F.2d 1149, 1150 (10th Cir. 1990). York proposed a standard missing witness

instruction: “If a party fails to produce evidence which is under his control and

reasonably available to him and not reasonably available to the adverse party,

then you may infer that the evidence is unfavorable to the party who could have

produced it and did not.” York requested this instruction with regard to her


                                         - 10 -
contention that the collective bargaining agreement language governing the

qualifications for the Operating Engineer position was ambiguous and could have

meant that the practical experience requirement was an alternative to, not an

additional requirement to, the vocational training requirement. She maintains that

AT&T could have presented testimony from officials at AT&T plants in locations

other than Oklahoma City explaining their interpretation of the same collective

bargaining agreement language.

      Four factors must be present before a jury may be instructed to draw a

negative inference from a party’s failure to call a particular witness:

      (1) the party must have the power to produce the witness; (2) the
      witness must not be one who would ordinarily be expected to be
      biased against the party; (3) the witness’s testimony must not be
      “comparatively unimportant, or cumulative, or inferior to what is
      already utilized” in the trial; and (4) the witness must not be equally
      available to testify for either side.

Id. at 1150-51 (citations omitted). The party requesting a missing witness

instruction bears the burden of demonstrating that these criteria are satisfied. Id.

at 1151. These four factors apply regardless of whether the requested instruction

directs the jury to draw a negative inference or merely permits the jury to draw a

negative inference. York never demonstrated that the four criteria were satisfied,

and, in any case, we agree with the district court’s conclusion that she could not

have satisfied criteria (3) and (4). Moreover, the district court permitted York’s

counsel to comment in the closing arguments on AT&T’s failure to offer evidence

                                         - 11 -
on how other AT&T facilities interpreted this language. The court did not abuse

its discretion by denying York’s request for the missing witness instruction.

      York’s final challenge to the district court’s instructions concerns her

disparate impact discrimination claim regarding AT&T’s requirement of two years

of prior boiler room experience. York requested the court to instruct the jury that

she would be entitled to prevail even if the defendants could establish the

business necessity of the two-year experience requirement, provided that she

could present alternative selection criteria “that would also have served AT&Ts

legitimate needs but without the same disproportionate impact on women.” The

district court rejected this request and instead instructed the jury that, to prevail

on this issue, York had to show that any alternative selection criteria would be

“equally as effective as Defendant AT&T’s experience requirement in achieving

Defendant AT&T’s legitimate employment goals.” The district court’s instruction

correctly stated the plaintiff’s burden in disparate impact cases; as this court has

held, a plaintiff’s alternative selection criteria must be equally effective in

meeting the employer’s legitimate employment goals. Murphy v. Derwinski, 990

F.2d 540, 544 (10th Cir. 1993). The district court, therefore, did not abuse its

discretion in rejecting York’s proposed instruction.



                 III. The Grant of Summary Judgment to IBEW


                                          - 12 -
      York brought two claims against IBEW, alleging that the union (1)

discriminatorily breached its duty of fair representation under Title VII when it

refused to pursue her grievances and (2) acquiesced in AT&T’s disparate

treatment of women and its maintenance of a two-year experience requirement

which had a disparate impact on women. IBEW moved for summary judgment on

both of these claims. On the first claim, the district court denied the motion for

summary judgment as it related to the trainee position and granted the motion

with respect to the Operating Engineer position. On the second claim, the court

granted IBEW’s motion for summary judgment. York now appeals the grant of

summary judgment on these claims. We review the district court’s grant of

summary judgment de novo, applying the same legal standard employed by the

district court. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.

1995). Under this standard, mere assertions and conjecture are not enough to

survive summary judgment. Branson v. Price River Coal Co., 853 F.2d 768, 771-

72 (10th Cir. 1988).

      We turn first to the breach of fair representation claim. To establishing a

prima facie Title VII claim against a union for a breach of its duty of fair

representation, a plaintiff must show that (1) the employer violated the collective

bargaining agreement with respect to the plaintiff, (2) the union permitted the

violation to go unrepaired, thereby breaching the union’s duty of fair


                                         - 13 -
representation, and (3) there was some indication that the union’s actions were

motivated by discriminatory animus. Babrocky v. Jewel Food Co. & Retail

Meatcutters Union, Local 320, 773 F.2d 857, 868 (7th Cir. 1985). The district

court found that York failed to establish the third element--that IBEW was

motivated by discriminatory animus in declining to pursue her grievance--in that

she failed to submit any evidence demonstrating such motivation on the part of

the union or any evidence from which a reasonable jury could find such

motivation.

      York contends that the fact that no other member of the union stood to

benefit from IBEW’s support of AT&T’s interpretation of the collective

bargaining agreement necessarily dictates an inference that discriminatory animus

must have motivated the union’s refusal to contest AT&T’s interpretation. This

contention is flawed. The collective bargaining agreement entitles IBEW to

pursue grievances on any matter “arising with respect to the interpretation and

application of this agreement or other terms and conditions of employment.”

However, IBEW is not compelled, either under this agreement or under Title VII,

to pursue an individual member’s grievance if the union reasonably disagrees with

the basis for that grievance. A union’s statutory duty of fair representation does

not oblige it to take action on every grievance brought by every member. Vaca v.

Sipes, 386 U.S. 171, 191-92 (1967). Indeed, if a union could be compelled to


                                        - 14 -
take official action on every grievance, irrespective of merit, the union would

quickly deplete its resources and credibility; and the arbitration machinery would

eventually become overburdened. See id. at 191-92.

      For more than twenty years, IBEW had consistently adhered to the

understanding of the collective bargaining agreement shared by AT&T--that

Operating Engineer applicants must possess practical experience. IBEW argues

that it supported the experience requirement because of the significant risks and

responsibility for others’ safety involved in powerhouse operation. IBEW also

notes that the classroom vocational training that York received did not include

instruction in the repair of powerhouse equipment. IBEW has maintained this

position with respect to both male and female applicants. The mere fact that no

other union members possessed interests that were directly adverse to York’s

grievance does not constitute an indication of discriminatory animus on IBEW’s

part where a reasonable basis exists for the union’s belief that a viable grievance

did not exist. The experience requirement is a legitimate, non-discriminatory

qualification for the job, and York failed to present evidence showing that the

requirement was merely a pretext for discrimination.

      York also contends that the conversation she had with Srejma, a

conversation of which IBEW was aware, compels the conclusion that IBEW acted

with discriminatory animus. This contention is incorrect, because obtaining a


                                        - 15 -
Class I license entailed acquiring practical experience when the conversation

occurred. Thus, Srejma’s answer implicitly conveyed the experience requirement

to York. Moreover, he indicated in subsequent testimony that he did not intend

his statement to be taken as a complete list of qualifications for the job. The fact

that IBEW did not share York’s strained conclusion that Srejma’s statement of

qualifications was evidence of sexual discrimination by AT&T does not amount to

an indication of discriminatory animus on the part of IBEW.

      In addition, York claims that the union acquiesced in AT&T’s allegedly

discriminatory treatment of York and its maintenance of a two-year experience

requirement that had a disparate impact on women. Under Title VII, a union may

not refuse to file a valid discrimination claim against an employer on behalf of

one of its members simply because that member belongs to a particular minority

group. Goodman v. Lukens Steel Co., 482 U.S. 656, 666-69 (1987). We have

held that “[a] union cannot acquiesce in a company’s prohibited employment

discrimination and expect to evade Title VII liability for such discrimination.”

Romero v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir. 1980). However,

mere inaction does not constitute acquiescence. Acquiescence requires (1)

knowledge that prohibited discrimination may have occurred and (2) a decision

not to assert the discrimination claim. See Goodman, 482 U.S. at 669. In this

case, the plaintiff failed to present evidence from which a reasonable jury could


                                        - 16 -
conclude that IBEW possessed the requisite knowledge. York offered no

evidence establishing either that IBEW knew of intentional discrimination against

women by AT&T management regarding the Operating Engineer position or that

IBEW was aware of any disparate impact effected by the practical experience

requirement.

      York argues that the fact that plant management had never employed a

woman in the Operating Engineer position suffices to establish that IBEW knew

that AT&T was intentionally discriminating against female candidates for this

position. Drawing such a conclusion from the mere fact that no women had

worked in the Operating Engineer position requires too many assumptions and

logical leaps. The district court was therefore correct when it concluded that

York had presented no evidence showing that IBEW knew of sex discrimination

by AT&T regarding the position of Operating Engineer.

      York also argues that the absence of women in the position suffices to

establish IBEW’s knowledge of the disparate impact of the experience

requirement. This argument also must be rejected. The mere absence of women

is insufficient to show that the experience requirement was the cause of any

disparity in the number of men and women in the position, let alone that IBEW

knew of and acquiesced in any such causality. On this issue as well, the district

court correctly granted summary judgment to defendant IBEW.


                                        - 17 -
                           IV. York’s Motions In Limine

      In her motions in limine, York requested that the district court exclude

evidence relating to: (1) medical treatment she received prior to 1992, specifically

her hospitalization in a psychiatric facility in 1988; (2) bankruptcy proceedings

she commenced in 1985; and (3) divorce proceedings involving her first husband,

which began in 1968 and concluded in 1976, as well as her sexual conduct. The

court rejected these motions and allowed the defendants to inquire into and offer

evidence concerning all of these matters, with the exception of York’s sexual

conduct. York then asked the court to bifurcate the proceedings and try the

liability issue first, allowing the challenged evidence only to come in when the

parties litigated her claims for damages for emotional distress. The court

declined to bifurcate the proceedings. York contends that the court erred, both in

refusing to exclude the evidence and in refusing to bifurcate the trial. We review

a district court’s decision to admit or exclude evidence for abuse of discretion,

disturbing its ruling only if the ruling was based on a clearly erroneous finding of

fact, an erroneous conclusion of law, or an error of judgment. Cartier v. Jackson,

59 F.3d 1046, 1048 (10th Cir. 1995). As for York’s alternate motion to bifurcate

the proceedings, a district court possesses “broad discretion in deciding whether

to sever issues for trial and the exercise of that discretion will be set aside only if

clearly abused.” Easton v. City of Boulder, 776 F.2d 1441, 1447 (10th Cir. 1985),


                                         - 18 -
cert. denied, 479 U.S. 816 (1986).

      In this case, the district court did not abuse its discretion by admitting the

evidence. York sought damages for emotional distress allegedly suffered as a

result of not obtaining the positions that she sought. She contended that she had

become emotionally strained and had lost her self-esteem and enjoyment of life.

The defendants maintained that much, if not all, of York’s emotional distress was

rooted in her past, stemming from events that occurred well before her

unsuccessful bid for the Operating Engineer position in 1992. In particular, they

note that her hospitalization in a psychiatric facility in 1988 was necessitated by

various sources of stress in her life. Because York chose to raise a claim of

emotional distress, it was entirely appropriate for the court to allow the

defendants to introduce evidence of alternate or multiple causes of such distress.

The jury must be permitted to consider such relevant evidence of causation where

damages are claimed for emotional distress. Moreover, it would be inequitable to

allow the plaintiff to introduce selected evidence on the matter but to disallow the

defendants to present evidence supporting their theories of causation. See Hoppe

v. G.D. Searle & Co., 779 F. Supp. 1413, 1419 (S.D.N.Y. 1991). For these

reasons, the district court did not abuse its discretion in denying York’s motions

in limine regarding the evidence of alternate causes of emotional distress.

      Nor did the court abuse its wide discretion in denying York’s motion to


                                         - 19 -
bifurcate the trial. Such decisions must be made with regard to judicial

efficiency, judicial resources, and the likelihood that a single proceeding will

unduly prejudice either party or confuse the jury. York has not shown that she

was significantly prejudiced by the admission of such evidence or that the

evidence should have been removed from the jury’s consideration in determining

the defendants’ liability.



 V. Judicial Notice of the Disparate Impact of the Experience Requirement

      At trial, York requested that the court take judicial notice that “few if any

women in the Oklahoma City area would be able to satisfy a two-year experience

requirement.” The court declined to do so. We review a district court’s refusal to

take judicial notice for abuse of discretion. Klein v. Zavaras, 80 F.3d 432, 435

n.5 (10th Cir. 1996).

      Judicial notice is an adjudicative device that alleviates the parties’

evidentiary duties at trial, serving as “a substitute for the conventional method of

taking evidence to establish facts.” Grand Opera Co. v. Twentieth Century-Fox

Film Corp., 235 F.2d 303, 307 (7th Cir. 1956). In this instance, before asking the

court to take judicial notice, York had already presented evidence in support of

her contention that few women in the Oklahoma City area would be able to satisfy

the experience requirement. For the court to have taken judicial notice after the


                                        - 20 -
presentation of evidence on the issue would have been redundant.

      Moreover, judicial notice was not suitable for this factual assertion.

Judicial notice is appropriate where a matter is “verifiable with certainty.” St.

Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979). It

replaces the evidentiary procedure that would otherwise be necessary to establish

“adjudicative fact[s]” that are generally known or “capable of accurate and ready

determination” by resort to reliable sources. Fed. R. Evid. 201(b). The number

of women in the Oklahoma City area that are able to satisfy AT&T’s Operating

Engineer experience requirement is not generally known; and although it is

determinable, it is not readily so. For this reason as well, we conclude that the

court did not abuse its discretion by refusing to take judicial notice.



             VI. The District Court’s Refusal to Grant a New Trial

      York moved for a new trial on her claim that the two year experience

requirement had a disparate impact on the promotion of women to the Operating

Engineer position. The district court declined to grant York’s motion. We review

a district court’s ruling on a motion for a new trial for abuse of discretion. Sheets

v. Salt Lake County, 45 F.3d 1383, 1390 (10th Cir.), cert. denied, 116 S. Ct. 74

(1995). A district court’s discretion in this area is particularly broad, and its

decision to grant or refuse a motion for a new trial will not be reversed absent a


                                         - 21 -
gross abuse of discretion. Holmes v. Wack, 464 F.2d 86, 89 (10th Cir. 1972).

Where a party moves for a new trial on the ground that the jury verdict is not

supported by the evidence, the verdict must stand unless it is “clearly, decidedly

or overwhelmingly against the weight of the evidence.” Black v. Hieb’s Enters.,

Inc., 805 F.2d 360, 363 (10th Cir. 1986).

      York contends that her statistical evidence, showing that just over six

percent of stationary engineers in Oklahoma and just over ten percent in the

Oklahoma City area are female, established with certainty that AT&T’s two-year

experience requirement produced a disparate impact against women. York also

contends that because AT&T used supervisors without prior experience to operate

the powerhouse on two prior occasions during strikes, AT&T’s asserted business

necessity for the experience requirement was pretextual. In response, the

defendants produced evidence concerning, among other things, the risks

associated with powerhouse operation and the fact that York’s vocational courses

did not provide adequate training in the repair of powerhouse equipment. This

evidence is sufficient to support the jury’s conclusion that AT&T’s experience

requirement was not pretextual. We cannot say that the jury’s verdict was clearly,

overwhelmingly, or decidedly against the weight of the evidence. To do so would

be to supplant the jury’s consideration of competing facts with our own, a course

upon which district courts and courts of appeals must not embark. The district


                                        - 22 -
court was therefore correct in denying York’s motion for a new trial.



   VII. The Grant of Summary Judgment Regarding York’s Public Policy

                                       Claim

      The district court granted summary judgment to the defendants on York’s

claim that AT&T’s failure to promote her fell within the public policy tort

exception to Oklahoma’s termination-at-will doctrine. York premised her claim

upon the public policy theory articulated in Tate v. Browning-Ferris, Inc., 833

P.2d 1218 (Okla. 1992). In that case, the court held that where an employer

discharges an employee in violation of a public policy that is clearly articulated in

constitutional, statutory, or decisional law, the employer may be held liable for a

tortious breach of contractual obligations. Id. at 1225. However, in Sanchez v.

Phillip Morris, Inc., 992 F.2d 244 (10th Cir. 1993), we held that Oklahoma’s

public policy exception to the termination-at-will doctrine was narrowly

constructed and not intended to apply to all Title VII cases. The exception was

limited to wrongful terminations and did not extend to the failure-to-hire context.

Id. at 249. The same analysis applies here in the failure-to-promote context.

Thus, on this claim, as on all of the claims discussed above, the decision of the

district court is AFFIRMED.




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