HOLLOWAY, Circuit Judge.
Defendant-appellant EG & G Energy Measurements, Inc. ("EG & G") appeals a judgment in favor of plaintiff-appellee Priscilla Candelaria entered by the District Court for the District of New Mexico in this diversity
I. Facts and Procedural History
The relevant historical facts, as found by the district court, are undisputed. See Opening Brief of Defendant-Appellant at 6; Appendix to Opening Brief of Defendant-Appellant (App.) at 23-31.
Ms. Candelaria was employed by EG & G, a Department of Energy (DOE) contractor, in March 1973. In early 1978, she filed a written complaint with DOE claiming that she had been wrongfully denied a promised promotion. In March 1978, the complaint was resolved by a written Conciliation Agreement providing that Ms. Candelaria was to receive a $2,000 lump sum payment, a promotion to the position of Information Specialist (together with a $35 per week salary increase), and a promise by EG & G that "there shall be no discrimination or retaliation of any kind against [Candelaria] for raising this complaint." App. at 51.
In late March 1981, EG & G's Department Manager Mr. Colvin wrote an inter-office memorandum requesting that Ms. Candelaria's job title be changed from Information Specialist (a wage-level 5 position) to Administrative Assistant (a wage-level 1 position). The company's Operations Manager Mr. Jones, however, denied the request, citing the absence of any available Administrative Assistant position.
In 1982, Ms. Candelaria was reassigned from routine clerical tasks to new tasks relating to information storage and retrieval systems. In 1983 and again in 1984, she asked permission to attend certain training sessions relating to her new tasks. However, her requests were denied by the Department Manager, Mr. Wright.
In March 1984, Ms. Candelaria filed a charge of discrimination and retaliation with the New Mexico Human Rights Commission. The commission found in her favor, but its finding was subsequently reversed by a New Mexico state court. Ms. Candelaria did not appeal that decision because she was told by EG & G's Equal Employment Opportunities officer that she would receive further training and the past would be forgotten.
In October 1986, several of Ms. Candelaria's duties were changed and her old duties given to a Document Control Clerk. In October 1987, EG & G underwent a Reduction in Force in which Ms. Candelaria's position was one of those eliminated. However, she was offered a secretarial position (Secretary II) with no reduction in pay, and she accepted that position. Three months later, a new position of Chief Clerk was created. The position was filled by another employee, Mr. Baca, whose previous position as Senior Document Clerk had a lower job classification than Ms. Candelaria's former position of Information Specialist. Fifteen months later, another Senior Document Clerk, Ms. McClannahan, replaced Mr. Baca as Chief Clerk.
In August 1987, Ms. Candelaria filed this suit in New Mexico state court, alleging inter alia that EG & G had breached the Conciliation Agreement by engaging in "continued intentional retaliation" against her. App. at 6. After removal to federal court, the case was tried without a jury, and the district judge entered judgment for Ms. Candelaria on her breach of contract claim. In the court's findings of fact and conclusions of law, the district judge concluded, in relevant part:
App. at 32.
As to damages, the judge found that the difference between Ms. Candelaria's actual earnings and what she would have earned had she been "on a regular promotion track from 1978 through the present" was $74,800. Accordingly, the judge awarded damages in that amount. Id. at 33.
On appeal, EG & G asserts two principal errors. First, EG & G claims that the district court erred in finding that EG & G retaliated against Ms. Candelaria in violation of the Conciliation Agreement. Second, EG & G asserts that if there was a breach of the Agreement, the district court erred in its assessment of damages. We agree with EG & G's first contention and thus need not reach the latter.
II. Standard of Review
We review the district court's factual findings under the clearly erroneous standard. Fed.R.Civ.P. 52(a). "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. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948). See also O'Connor v. R.F. Lafferty & Co., 965 F.2d 893, 901 (10th Cir.1992); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990). The clearly erroneous standard applies to the review of "`[f]indings as to the design, motive and intent with which men act.'" Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982) (quoting United States v. Yellow Cab Co., 338 U.S. 338, 341, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949)).
As noted, the district court found that EG & G's employment actions against Ms. Candelaria constituted a "pattern and practice of intentional retaliatory conduct against [Candelaria] following the Conciliation Agreement on March 22, 1978, continuing through and beyond the filing of the complaint herein." The judge concluded that "[EG & G] breached the Conciliation Agreement of March 22, 1978." App. at 32. From our review of the record as a whole, we conclude that the court's finding of a breach of the Conciliation Agreement is not supported by adequate proof of causation for retaliatory acts by EG & G. Thus the judgment against EG & G for breach of contract must be reversed.
While the record amply supports the district court's finding that EG & G made various employment decisions adversely affecting Ms. Candelaria beginning in March 1981, the record lacks sufficient evidence — direct or circumstantial — indicating that EG & G made those decisions in retaliation for Ms. Candelaria's 1978 complaint against the company. It is true that plaintiff Ms. Candelaria made a statement as to her "perception" of why she was not being promoted, over an objection based on "speculation." After testifying that she applied for promotions about four or five times, which she did not receive, she was asked:
Id. at 54. We cannot agree that Ms. Candelaria's belief, with no supporting evidence, can serve as sufficient support for the trial judge's ultimate finding that retaliation was the defendant's motive.
We are mindful that a retaliatory motive can be inferred from the fact that an
We realize that the foregoing cases are civil rights or Title VII cases. Nevertheless, their reasoning regarding the adequacy of causation evidence is persuasive in the context of this contract dispute, and we hold that the same proof principles apply here.
The district court's undisputed factual findings indicate that EG & G's first adverse action against Ms. Candelaria was its failure to promote her in March 1981 — some three years after Ms. Candelaria's charges against the company in early 1978. In her trial testimony, Ms. Candelaria confirmed that the March 1981 incident marked the first time that she thought the defendant had done anything to violate the Conciliation Agreement; the next time she contended that the company violated the Agreement was in November 1984 when she was given a lot of "Xeroxing" to do. App. at 71. We are persuaded that under Burrus, EG & G's employment actions against Ms. Candelaria were not in sufficiently "close temporal proximity" to her 1978 complaint to support an inference of retaliatory motive. Because the record is devoid of sufficient direct or circumstantial evidence of retaliatory motive, the district court clearly erred in finding that EG & G's employment actions constituted retaliation against Ms. Candelaria in violation of the Conciliation Agreement.
We note that the district court's findings suggest that some of EG & G's adverse actions may have been undertaken in retaliation for grievances asserted by Ms. Candelaria other than her 1978 charges against the company.
In the absence of sufficient evidence to support the district court's finding of retaliation in violation of the Conciliation Agreement, the judgment against EG & G for breach of contract cannot stand. Accordingly, the judgment is
Suffice it to say that while the precise nature of Ms. Candelaria's amendment is uncertain, there is no indication in the record that it was intended to expand the legal basis for Ms. Candelaria's retaliation claim, and it is questionable whether it could do so in any event. See Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir.1969) (amendment of pleadings to conform to the evidence limited to issues actually tried and does not include "collateral issues which may find incidental support in the record").