F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 8 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SELLIVAN C. BEVERLY, JR.,
Plaintiff-Appellant,
v. No. 98-1184
(D.C. No. 96-B-751)
SHIELA E. WIDNALL, Secretary (D. Colo.)
of the Department of the Air Force,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Sellivan C. Beverly, Jr. appeals from the district court’s grant of
summary judgment in favor of defendant on his claim of discrimination brought
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through
2000e-17. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.
I. Background
The following facts are undisputed. In 1989 plaintiff, an African
American, was selected for an interview for a promotion to an administrative
officer position at the Air Force Accounting and Finance Center (“AFAFC”)
at Lowry Air Force Base in Denver. See Appellant’s App. Vol. I at 28. At that
time, both he and Marsha Miller, who was ultimately selected for the job, were
working for the Air Force in civilian positions. He served as a logistics training
instructor for the supply training branch, and Ms. Miller was a management
analyst in the accounting systems division. See id. The interview was conducted
by three AFAFC individuals, including Claude Klobus, who was the “selecting
official.” See id. Vol. II at 163. One of the panel members, Ms. Olga Humphrey,
is also African American. See id. Vol. I at 109. All interviewees were asked the
same questions. See id. at 112. Plaintiff does not allege that the selection
process was discriminatory on its face. The panelists independently and privately
scored their answers, then the three scores were averaged. See id. at 112 & 108.
Although Mr. Klobus had the discretion to hire whomever he desired, he limited
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his discretion by selecting the individual with the highest average interview score
if the panelists concurred that the person was the best person for the job. See id.
Vol. II at 179. All three panel members scored Ms. Miller highest and plaintiff
as third, with an African American female, Ms. McKay, scoring second highest.
See id. Vol. I at 108, 113; Appellant’s Br. at 6. Ms. Miller’s average score
was 78; Ms. McKay’s was 64; and plaintiff’s was 56.
Mr. Klobus lowered three of his initial scores for plaintiff, for a total of
seven points, before he saw or discussed the other panel member’s scores. See
Appellant’s App. Vol. II at 219-20, 241. He could not remember why he had
made those changes. See id. at 224-25. Even if Mr. Klobus’s original scores
had not been changed, however, plaintiff still would have ranked third, with
an average score of fifty-nine. The three panelists unanimously agreed that
Ms. Miller had the most relevant practical experience for the specific job and that
plaintiff’s experience was not as relevant to the position. See id. Vol. I at 110,
113, 116. Mr. Klobus needed someone who had experience in performing the
job duties of the position because he had been without an administrator for
six months; plaintiff had no experience in civilian administration. See id. at 68,
85-86.
II. Applicable legal standards
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We review the district court’s grant of summary judgment de novo. See
McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). In
conducting that review,
[w]e examine the record to determine whether any genuine issue of
material fact was in dispute; if not, we determine [whether] the
substantive law was applied correctly, and in so doing we examine
the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing the motion. However, where
the nonmoving party will bear the burden of proof at trial on a
dispositive issue, that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to that party’s case
in order to survive summary judgment.
Id. (quotations and citations omitted). The movant need not negate the
nonmovant’s claim, but need only point to an “absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).
There is no genuine issue of fact “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
In the context of employment discrimination cases analyzed pursuant
to the McDonnell Douglas framework, the plaintiff must first
establish a prima facie case of discrimination. Once this is done, the
employer must offer a facially nondiscriminatory reason for its
employment decision. At the summary judgment stage, it then
becomes the plaintiff’s burden to show that there is a genuine dispute
of material fact as to whether the employer’s proffered reason for the
challenged action is pretextual--i.e. unworthy of belief. If the
plaintiff succeeds in showing a prima facie case and presents
evidence that the defendant’s proffered reason for the employment
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decision was pretextual . . . the plaintiff can withstand a summary
judgment motion and is entitled to go to trial.
Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995) (citations, quotations,
and footnotes omitted).
III. Discussion
Defendant’s summary judgment motion argued only that plaintiff had not
presented sufficient evidence of pretext to allow a jury to infer discriminatory
intent, see Appellant’s App. Vol. I at 28, and the court implicitly agreed, stating
that “a reasonable juror could not find by a preponderance of the evidence that
[plaintiff] was not promoted because of his race” after noting that plaintiff’s
scores, even with the addition of seven points, would not have made him the
top-scoring candidate. The district court then went one step farther and engaged
in a “mixed motives” analysis. See Price Waterhouse v. Hopkins , 490 U.S. 228,
244-45 (1989). The court concluded that, even assuming that Mr. Klobus had
intentionally discriminated against plaintiff because of his race, defendant could
avoid liability because it had shown that the other two panel members, who were
not charged with having discriminatory intent, also rated Ms. Miller as the top
interviewee. Therefore, defendant would have made the same decision even if it
had not allowed an improper discriminatory motive to play a role in failing to
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promote plaintiff. 1
See Appellant’s Br., Ex. A at 10. Plaintiff complains that
because a mixed-motive defense had not been raised by defendant, the court
improperly raised it sua sponte and plaintiff had no notice or opportunity to rebut
the defense.
Because we hold that the plaintiff could not rebut defendant’s
nondiscriminatory reason for failing to promote plaintiff as a matter of law, we
need not consider the propriety of the court’s analysis under Price Waterhouse .
We believe that the particular facts used in the court’s mixed-motive analysis
apply whether there is a mixed-motives defense or not. As the district court
noted, the candidate receiving the highest interview score was selected by the
panel, and not by Mr. Klobus alone. See Appellant’s Br., Ex. A at 10. Defendant
has shown that even if Mr. Klobus as a panel member had racial animus, his
scores were not so low as to entirely preclude plaintiff’s selection. Both the other
panel members, who were not accused of having racial animus, rated plaintiff
third and Ms. Miller highest in the selection process. Thus, as a matter of law,
plaintiff cannot show that defendant’s facially nondiscriminatory reason for not
1
This particular analysis in Price Waterhouse was subsequently overruled by
Congress in 1991 when it amended 42 U.S.C. § 2000e-5(g)(2)(B) to allow a
plaintiff to recover attorneys fees and costs and to receive declaratory and
injunctive relief even if a defendant makes a showing of mixed motive. Because
the employment decision in this case was made in 1989, however, Price
Waterhouse was properly considered by the district court.
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promoting him--that he was not the highest-scoring interview candidate--was
a pretext for racial discrimination.
Further, even if Mr. Klobus solely made the selection and plaintiff claimed
he intentionally discriminated against plaintiff in the scoring process, plaintiff
had two hurdles to cross in order to get to a jury on the issue. He arguably
cleared the first hurdle by presenting evidence that Klobus had acted in ways
(changing plaintiff’s score, for example) from which a jury could infer that racial
animus caused him to rate Ms. Miller, a white applicant, higher than plaintiff.
He could not clear the second hurdle of proximate cause, however, because racial
animus could play no part in rating Ms. McKay, another African American
applicant, higher than plaintiff. Therefore, even if a jury could find that plaintiff
should not have been rated lower than Ms. Miller because his rating was based
upon a discriminatory motive, it would have been Ms. McKay, not plaintiff, who
should have been promoted to the position. Accordingly, as a matter of law,
plaintiff could not show that racial animus was a motivating factor in defendant’s
failure to promote him to the accounting administrative position--i.e., that “but
for” Mr. Klobus’s intentional discrimination in rating him lower than the white
applicant, he would have been promoted. Cf. Wards Cove Packing Co. v. Atonio ,
490 U.S. 642, 657 (1989) (holding that “a plaintiff must demonstrate that it is the
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application of a specific or particular employment practice that has created the
disparate impact under attack” in a Title VII disparate-impact case).
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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