In a major discrimination suit pursued by the federal government, the U.S. 10th Circuit Court of Appeals has thrown out a federal jury's verdict in a Utah case, saying Sperry Corp. was not guilty of age discrimination after all.

The suit was filed in 1981 by the Equal Employment Opportunity Commission against Sperry Corp., now known as Unisys. The action was on behalf of Elizabeth Koyen, 54 at the time of the dispute, who for 17 years had been a clerical worker for the aerospace electronics firm in Salt Lake City.The EEOC was represented in the appeal by Donna J. Brusoski from the agency's Washington, D.C., offices, while Sperry was represented by Salt Lake lawyer Chris Wangsgard.

Koyen took a leave of absence from Sperry from Jan. 8 until June 8, 1979, so she could move to Hawaii to consider a marriage proposal. Shortly before the end of her leave, she tried to get her old job back.

"When told that the position was filled, she applied for other openings at Sperry without success," wrote a three-judge appeals court panel.

The case was tried before a jury from Aug. 22 to Sept. 2, 1985. Sperry requested a directed verdict - that is, a ruling by the judge that the evidence did not support a discrimination claim. The judge denied, allowing the jury to proceed. Finally, the jury ruled against Sperry and awarded a judgment of $94,469.

In the appeal, Wangsard argued that at Sperry employees who take a personal leave of absence take a chance of finding the job filled during the leave.

"Ms. Koyen knew about this risk, as did other Sperry employees," says the brief.

The leave request form signed by Koyen specifically states, "The company will make every reasonable effort to hold open the position from which leave is taken. However, if circumstances change to make that unreasonable, the position will be filled."

The request form also states that in case the job is filled, Sperry would try to place the returning employee in another position.

Koyen's position had to be filled immediately when she left, the brief adds.

"Ms. Koyen insisted that she be allowed to `bump' the employee who had been assigned to her position . . . Sperry's personnel policies did not provide for `bumping,' so Sperry denied this special favor sought by Ms. Koyen."

According to Wangsgard's brief, an alternative clerical position was discussed, but Koyen didn't take that job.

Before the suit, Sperry unconditionally offered her a clerk-typist position in its accounts receivable department at $5.50 an hour, a 12 percent raise, the brief said. But she refused the offer.

Brusoski, the federal lawyer, responded by saying that when Koyen talked with her supervisor about taking the leave, "she asked how long a leave she could take and . . . (said) that her greatest concern was jeopardizing her job."

Further, her supervisor, Rita Morgan, "assured her that she would have a job upon her return," the EEOC lawyer said, citing testimony by Koyen. But in February 1979, according to the EEOC, again quoting Koyen, Morgan tried to discourage her from returning.

Two employees filled the job during Koyen's absence. One of these was transferred to the job the same day as Koyen telephoned asking for her job back, May 25, 1979.

On the day that Koyen's leave of absence was scheduled to end, a new employee was hired and offered a job in the department, it says.

"Significantly, the commission's evidence showed that the new employee, who was younger than Ms. Koyen, was not qualified for the position because she could not type," Brusoski wrote.

The appeals court noted that when Koyen telephoned, Morgan told her, "I wish you had called me yesterday because I just promised your job to someone else." It cited Koyen's testimony for that.

The EEOC was implicitly demanding "special treatment for older workers," the appeals court ruled. It says federal law does not require this.

The appeals judges concluded, "we believe a jury could not reasonably infer that Koyen's higher salary motivated Sperry's decision not to rehire her." The jury also couldn't decide on the evidence that this would motivate Sperry to discriminate against her because of age, the judges said.

According to the appeals court, the EEOC's theories of discrimination either are based on faulty logic or are not supported by sufficient evidence. So the jury's decision was overturned.

The judges ordered the case returned to Utah "with instructions to dismiss the action."