Jaramillo v. Colorado Judicial Department

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KRISTIN JARAMILLO,

Plaintiff - Appellant,
v. No. 04-1284
COLORADO JUDICIAL
DEPARTMENT,

Defendant - Appellee.

ORDER
Filed December 20, 2005

Before BRISCOE, ANDERSON, and O’BRIEN, Circuit Judges.

The panel grants rehearing in part for the sole purpose of modifying a

sentence in the previously filed opinion. The replacement language appears on

page 13, first full sentence, and reads as follows: “While Ms. Donovan’s initial

explanation was factually incorrect, on this record that isolated statement simply

is not outrageous enough to undermine the CJD’s legitimate explanation for its

decision.” Appellant’s petition for rehearing is denied in all other respects.

The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no member of the panel and no
judge in regular active service on the court requested that the court be polled,

that petition is also denied.

Attached is copy of the modified opinion.

Entered for the Court
Clerk of Court

By:
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 2, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

KRISTIN JARAMILLO,

Plaintiff - Appellant,
v. No. 04-1284
COLORADO JUDICIAL
DEPARTMENT,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-F-699 (CBS))

Submitted on the briefs: *

John R. Olsen, Olsen & Brown, L.L.C., Niwot, Colorado, for Plaintiff-Appellant.

Ken Salazar, Attorney General, Douglas J. Cox, Assistant Attorney General,
Denver, Colorado, for Defendant-Appellee.

Before BRISCOE, ANDERSON, and O’BRIEN, Circuit Judges.

PER CURIAM.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 Title VII appeal arises out of Plaintiff Kristin Jaramillo’s claim that

the Colorado Judicial Department (“CJD”) subjected her to disparate treatment on

the basis of sex when it passed her over for promotion in favor of a male officer.

The district court granted the CJD’s motion for summary judgment. We exercise

discretion under 28 U.S.C. § 1291 and AFFIRM.

I.

Ms. Jaramillo began working as a volunteer in the Denver Juvenile

Probation Department (“DJPD”) in 1994. Appellant’s App. at 288. Over the next

several years she continued working at DJPD in a part-time, unpaid capacity. Id.

at 288-89. Ms. Jaramillo was hired as a full-time contract employee by DJPD in

February 1998. Id. at 289. In February 1999, DJPD hired Ms. Jaramillo as a

Probation Officer Level I, a permanent position. Id.

In October 2000, DJPD announced the opening of a Probation Officer II

(“PO II”) position. Id. at 70. DJPD developed a testing procedure that involved a

review of the applicant’s training, career track accomplishments, probation client

case management, and a position paper submitted with the application. Id. at

65-68, 72-73. Seven individuals applied. The applicants received a letter from

Susan Donovan, the Chief Probation Officer for DJPD at all times relevant to this

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suit, outlining the selection process and the areas of evaluation. Id. at 72, 74-75.

Four of the seven applicants withdrew. The remaining three applicants were

Ms. Jaramillo, Brian Sandoval, and Arturo Villa, all of whom were DJPD

employees. Id. at 74. After testing was complete, DJPD ranked the candidates in

the following order, with corresponding scores: (1) Kristin Jaramillo, 36.8; (2)

Brian Sandoval, 36.0; (3) Arturo Villa, 26.6. Id. at 82-87. In February 2001,

Susan Donovan announced that Brian Sandoval had been selected for promotion

to PO II. Id. at 88. Ms. Jaramillo was promoted to PO II in October 2001. Id. at

90.

Ms. Jaramillo filed her complaint in April 2002, alleging that the CJD

subjected her to disparate treatment on the basis of sex in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e. In July 2004, the district court

granted the CJD’s motion for summary judgment.

II.

To prevail on a disparate treatment claim under Title VII, a plaintiff must

show that his employer intentionally discriminated against him for a reason

prohibited by the statute. See Salguero v. City of Clovis, 366 F.3d 1168, 1178

(10th Cir. 2004) (“[Title VII] prohibits only intentional discrimination based upon

an employee's protected class characteristics.”) (quoting EEOC v. Flasher Co.,

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986 F.2d 1312, 1319 (10th Cir. 1992)). If the plaintiff relies upon circumstantial

evidence, we apply the burden-shifting framework outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must establish a

prima facie case of discrimination by showing that “(1) he is a member of a

protected class; (2) he applied for and was qualified for the particular position;

(3) he was not promoted despite his qualifications; and (4) the position was filled

or remained open after he was rejected.” Cross v. The Home Depot, 390 F.3d

1283, 1286 (10th Cir. 2004); see also Jones v. Barnhart, 349 F.3d 1260, 1266

(10th Cir. 2003). 1 If the plaintiff establishes a prima facie case, a presumption of

discrimination arises. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

142 (2000). The burden then shifts to the defendant to articulate a legitimate,

non-discriminatory reason for the adverse employment action. Tex. Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the defendant

carries its burden of production, the presumption of discrimination drops out of

the case. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-11 (1993). The

1
We note that our cases have sometimes articulated the prima facie case
differently, particularly as to the fourth prong and whether it requires the plaintiff
to show that the person promoted was outside of the protected class to which the
plaintiff belongs. Because we do not resolve this case on the basis of the
adequacy of Ms. Jaramillo’s prima facie case—both parties agree, infra, she has
satisfied her burden on that point—we do not address any inconsistency in our
jurisprudence. See generally, Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220 (10th Cir. 2000); Perry v. Woodward, 199 F.3d 1126 (10th Cir. 1999).

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burden then shifts back to the plaintiff, who must prove by a preponderance of the

evidence that the employer’s reasons are a pretext for unlawful discrimination.

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004).

The district court found that the CJD provided a legitimate, non-

discriminatory reason for its decision to promote Mr. Sandoval, namely his

superior qualifications (discussed below). It found that Ms. Jaramillo failed to

produce evidence of pretext, reasoning that (1) she failed to make arguments or

produce evidence to show that the CJD’s reason for promoting Mr. Sandoval was

false, Appellant’s App. at 378; (2) she failed to show any procedural irregularities

because the CJD’s selection process was consistent with published policy, id. at

379-80; and (3) her allegation of “pre-selection” was supported only by rumor and

hearsay, and moreover, the evidence tended to corroborate the CJD’s argument

that it had a legitimate reason for promoting Mr. Sandoval. Id. Accordingly, the

court found that the CJD produced a nondiscriminatory reason for its decision,

and Ms. Jaramillo failed to raise a genuine issue of fact on the element of pretext.

We review the district court’s grant of summary judgment de novo. Wilson

v. Meeks, 98 F.3d 1247, 1252 (10th Cir. 1996). We consider the evidence in the

light most favorable to the non-moving party, drawing all reasonable inferences

from the available underlying facts. Id. at 1253. Summary judgment is

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appropriate if there is no genuine issue of material fact. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986).

III.

The CJD concedes, for purposes of summary judgment, that Ms. Jaramillo

has established a prima facie case of disparate-treatment discrimination. Our

review is therefore confined to the question whether the CJD produced a

legitimate, non-discriminatory reason for its employment decision and, if so,

whether Ms. Jaramillo produced evidence sufficient to raise a genuine issue of

material fact on the question of pretext. The CJD has carried its burden;

Ms. Jaramillo has not.

A. Legitimate, Non-discriminatory Reason for Mr. Sandoval’s Promotion

The CJD submits that it promoted Mr. Sandoval over Ms. Jaramillo because

he was better qualified. Ms. Jaramillo argues that she was far more qualified than

Mr. Sandoval, that she had more experience, and that Mr. Sandoval had

consistently fallen below DJPD performance standards. The evidence, including

Ms. Jaramillo’s own testimony, belies her allegation that she was clearly better

qualified than Mr. Sandoval; therefore, the CJD has established a legitimate, non-

discriminatory reason for its decision.

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 Mr. Sandoval’s qualifications exceeded Ms. Jaramillo’s in several respects.

He was certified in drug and alcohol counseling, he was fluent in spoken and

written Spanish, and he had experience working at the INS detention facility.

Appellant’s App. at 74-75. Ms. Jaramillo conceded that she lacked these

qualifications, that they were relevant to the PO II position, and that Ms. Donovan

could have legitimately considered them in her promotion decision. Jaramillo

Dep., id. at 97-100; Appellee’s Br. at 15-18 (quoting deposition testimony). Mr.

Sandoval’s prior experience included full-time work as a probation officer with

the Denver County Probation Department. Appellant’s App. at 294-95. Ms.

Jaramillo’s only previous experience was part-time work as an unpaid intern.

Id. at 288-89. Mr. Sandoval had been with the CJD since February 1998, whereas

Ms. Jaramillo began full-time employment in February 1999. Appellee’s Br. at 9;

Appellant’s App. at 9, 74-75. Ms. Jaramillo concedes that the CJD could have

believed in good faith that Mr. Sandoval was better qualified for the job and that

this belief would have been a non-discriminatory reason for the promotion.

Jaramillo Dep., Appellant’s App. at 94. Accordingly, the CJD has produced a

legitimate, non-discriminatory reason for its decision.

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B. Evidence of Pretext

Ms. Jaramillo argues, nonetheless, that the CJD’s explanation is merely

pretext for discrimination. A plaintiff demonstrates pretext by producing

evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v.

General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). Evidence of

pretext may include “prior treatment of plaintiff; the employer's policy and

practice regarding minority employment (including statistical data); disturbing

procedural irregularities (e.g., falsifying or manipulating . . . criteria); and the use

of subjective criteria.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217

(10th Cir. 2002) (quoting Simms v. Oklahoma ex rel. Dept. of Mental Health and

Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999)).

1. Job Qualifications

Ms. Jaramillo claims that the promotion of Mr. Sandoval was patently

unreasonable, thereby supporting the inference of discrimination, because she was

far more qualified for the job. We must proceed with caution when considering

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the relative merits of individual employees. The courts may not “act as a super

personnel department that second guesses employers’ business judgments.”

Simms, 165 F.3d at 1330 (quotation omitted). Accordingly, minor differences

between a plaintiff’s qualifications and those of a successful applicant are not

sufficient to show pretext. Bullington v. United Airlines, Inc., 186 F.3d 1301,

1319 (10th Cir. 1999), overruled on other grounds, Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101 (2002). To show pretext, the disparity in qualifications

must be “overwhelming.” Id. at 1319 (citing Sanchez v. Philip Morris, 992 F.2d

244, 247-48 (10th Cir. 1993)); see also Odom v. Frank, 3 F.3d 839, 847 (5th Cir.

1993) (explaining that the difference in qualifications must be so glaring as to

“jump off the page and slap us in the face”). As discussed above, the evidence

shows, and Ms. Jaramillo concedes, that the CJD could have believed in good

faith that Mr. Sandoval was at least as well qualified as she was. A jury therefore

could not find that this explanation was pretext for unlawful discrimination.

2. Inconsistent Explanations for Mr. Sandoval’s Promotion

Ms. Jaramillo dismisses the CJD’s non-discriminatory reasons for Mr.

Sandoval’s promotion as “ex post facto rationalizations.” The main thrust of her

argument is that Ms. Donovan initially provided a false reason for the promotion;

therefore, her subsequent explanation was necessarily pretextual. When Ms.

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Jaramillo first asked for an explanation of the CJD’s decision, Ms. Donovan told

her that Mr. Sandoval’s examination score was higher than hers. In fact, she had

scored a fraction of a point higher than Mr. Sandoval. After Ms. Jaramillo filed

an internal complaint, Ms. Donovan explained that Mr. Sandoval was promoted

because he was better qualified for the job, the same reason the CJD has advanced

throughout this litigation. Appellant’s App. at 156.

The fact that one of the CJD’s explanations turned out to be incorrect does

not necessarily create a genuine issue of fact concerning pretext. A plaintiff

demonstrates pretext “by showing that the employer’s proffered explanation is

unworthy of credence.” Reeves, 530 U.S. at 143 (quoting Tex. Dept. of

Community Affairs, 450 U.S. at 256). “[O]nce the employer’s justification has

been eliminated, discrimination may well be the most likely alternative

explanation, especially since the employer is in the best position to put forth the

actual reason for its decision.” Id. at 147; see Miller v. Eby Realty Group LLC,

396 F.3d 1105, 1113 (10th Cir. 2005) (affirming jury verdict of age

discrimination where plaintiff “show[ed] multiple false explanations were given,

and once [the employer’s] explanation is rejected there is no apparent alternative

legitimate justification for [the plaintiff’s] termination”). In the most

straightforward cases, the plaintiff’s showing of pretext completely displaces the

employer’s legitimate, non-discriminatory explanation, leaving no explanation for

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the decision. This is not such a case: even without Ms. Donovan’s initial

explanation, the CJD can readily demonstrate a legitimate reason for promoting

Mr. Sandoval.

The CJD has consistently explained that it promoted Mr. Sandoval because

he was more highly qualified than Ms. Jaramillo. Ms. Jaramillo concedes that

there is a legitimate basis for the CJD’s explanation. The record is therefore not

silent with respect to the employer’s motivation. On the contrary, the CJD’s

legitimate, non-discriminatory explanation is supported by the evidence.

Ms. Jaramillo has not produced evidence sufficient for a jury to find that

the CJD’s legitimate, non-discriminatory explanation—that Mr. Sandoval was

better qualified—is also unworthy of credence. “[A]s a general rule, an employee

must proffer evidence that shows each of the employer’s justifications are

pretextual.” Tyler v. RE/MAX Mt. States, Inc., 232 F.3d 808, 814 (10th Cir.

2000); Ghosh v. Ind. Dep’t of Envtl. Mgmt., 192 F.3d 1087, 1091-92 (7th Cir.

1999); Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997); see

also Reeves, 530 U.S. at 148 (explaining that a prima facie case and proof of

pretext are not sufficient to create a genuine issue of fact if “the record

conclusively reveal[s] some other, nondiscriminatory reason for the employer’s

decision”). Debunking one of the employer’s explanations defeats the case for

summary judgment “only if the company has offered no other reason that, if that

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reason stood alone (more precisely if it did not have support from the tainted

reason), would have caused the company to take the action of which the plaintiff

is complaining.” Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995).

In some cases, however, a successful attack on part of the employer’s

legitimate, non-discriminatory explanation is enough to survive summary

judgment even if one or more of the proffered reasons has not been discredited.

Something less than total failure of the employer’s defense is sufficient to create

a genuine issue of fact when (1) the reasons are so intertwined that a showing of

pretext as to one raises a genuine question whether the remaining reason is valid,

see id. at 70; (2) the pretextual character of one explanation is “so fishy and

suspicious,” id., that a jury could “find that the employer (or its decisionmaker)

lacks all credibility,” Chapman v. AI Transport, 229 F.3d 1012, 1050 (11th Cir.

2000) (en banc) (Birch, J., concurring and dissenting); (3) the employer offers a

plethora of reasons, and the plaintiff raises substantial doubt about a number of

them, Tyler, 232 F.3d at 814; (4) the plaintiff discredits each of the employer’s

objective explanations, leaving only subjective reasons to justify its decision, see

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1298-99 (D.C. Cir. 1998) (en banc); or

(5) the employer has changed its explanation under circumstances that suggest

dishonesty or bad faith, Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380-81 (10th

Cir. 1994). None of these exceptions apply to Ms. Jaramillo’s case.

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 First, Ms. Donovan’s erroneous statement that Mr. Sandoval had a higher

test score is not so intertwined with the CJD’s contention that he was better

qualified that it raises a genuine question of pretext. Because the examination

was one of many factors in the promotion to PO II, an applicant could be

considered better qualified even if he did not have the highest test score. The

CJD’s legitimate explanation is therefore not dependent upon the initial rationale

offered by Ms. Donovan.

Second, the showing of pretext was not so strong that it destroyed the

CJD’s credibility. To raise an inference of pretext in the face of the employer’s

legitimate, nondiscriminatory explanation, the plaintiff must undermine the

employer’s credibility to the point that a reasonable jury could not find in its

favor. See Russell, 51 F.3d at 70. This exception is based on the common-sense

notion that “if a person is shown to be a liar in an outrageous manner . . ., the

inference that the person is non-credible, and should not be believed as to other

issues, is a reasonable

one.” Chapman, 229 F.3d at 1050 (Birch, J., concurring and dissenting). While

Ms. Donovan’s initial explanation was factually incorrect, on this record that

isolated statement simply is not outrageous enough to undermine the CJD’s

legitimate explanation for its decision.

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 Third, Ms. Jaramillo has not shown that the CJD offered a significant

number of pretextual reasons. An employer who pursues a shotgun approach

under McDonnell-Douglas runs a risk of destroying its own credibility because

“the factfinder’s rejection of some of the defendant’s proffered reasons may

impede the employer's credibility seriously enough so that a factfinder may

rationally disbelieve the remaining proffered reasons.” Fuentes v. Perskie, 32

F.3d 759, 764 n.7 (3d Cir. 1994); see also Smith v. Chrysler Corp., 155 F.3d 799,

809 (6th Cir. 1998). The CJD has not thrown out “a bagful of legitimate

reasons.” Fuentes, 32 F.3d at 764 n.7. With the exception of a single comment

by Ms. Donovan, it has offered the same explanation from the beginning.

Nor has Ms. Jaramillo eliminated all objective explanations of the CJD’s

decision. In Aka, the employer proffered two reasons for its decision not to hire

the plaintiff as a pharmacy technician: (1) the successful candidate was better

qualified, and (2) the successful candidate was more enthusiastic about the

position. The court determined, however, that a jury could find that the plaintiff

was “markedly better qualified” for the position, Aka, 156 F.3d at 1298, leaving

the employer with its subjective assessment of the applicants’ enthusiasm.

Because this determination involved an assessment of credibility, the court found

that the plaintiff raised a genuine question of fact regarding pretext. Id. at 1299.

By contrast, the CJD’s explanation is supported by the evidence, which is

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sufficient to support a good faith belief that Mr. Sandoval was better qualified

than Ms. Jaramillo.

Finally, the mere fact that the CJD has offered different explanations for its

decision does not create a genuine question of pretext. Courts have looked to two

factors to evaluate a change in the employer’s explanation for an employment

decision: (1) the timing of the change in position and (2) the evidentiary basis for

the new rationale. See Perfetti v. First Nat’l Bank, 950 F.2d 449, 456 (7th Cir.

1991) (“If at the time of the adverse employment decision the decision-maker

gave one reason, but at the time of the trial gave a different reason which was

unsupported by the documentary evidence, the jury could reasonably conclude

that the new reason was a pretextual after-the-fact justification.”). The timing of

the change has been found to support the inference of pretext when it occurs after

significant legal proceedings have occurred. In Zachagnini v Chas. Levy

Circulating Co., 338 F.3d 672 (7th Cir. 2003), the employer argued that it only

hired individuals recommended by the union, and the union did not recommend

the plaintiff. Id. at 676. However, during discovery, and in its initial briefing to

the district court, the employer argued that it had a policy against rehiring

workers who had been laid off. It did not advance the second explanation until its

reply brief on summary judgment. Id. at 676-78. The court found that the

employer’s change of position late in the proceedings was “fishy” and might

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allow a jury to find pretext. See id. at 678. Similarly, in Cole, the school district

stated that it terminated the plaintiff, a school principal, because of budgetary

constraints. After she filed an EEOC complaint, however, the district relied on

the plaintiff’s alleged inability to maintain a cohesive faculty. Cole, 43 F.3d at

1381.

A change in position also supports a finding of pretext when the new

rationale is unsupported by the evidence. In Zachagnini, the plaintiff introduced

evidence that undermined both of the employer’s rationales. See Zachagnini, 338

F.3d at 678-79. Likewise, in Cole, the record revealed “glaring contradictions” in

the school district’s alternative rationale. Cole, 43 F.3d at 1380. The district

claimed that faculty conflict began immediately after the plaintiff started as

principal; however, the record included “glowing evaluations” indicating that she

maintained positive faculty relations, as well as affidavits from teachers stating

that Ms. Cole’s predecessor faced similar problems with the faculty. Id. at 1380,

1381 n.6.

While the timing of the change in the CJD’s explanation could raise some

suspicion, the record supports its contention that Mr. Sandoval was better

qualified for the position. Ms. Jaramillo alleges that the CJD did not rely on Mr.

Sandoval’s qualifications until after she filed a grievance. This is somewhat

similar to Cole, where the employer raised a different explanation after the

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plaintiff filed an EEOC complaint. Even assuming an internal grievance to be as

significant as a formal EEOC complaint, however, the CJD’s rationale is

supported by the record. The CJD’s early change of position does not raise a

genuine question whether its reliance on Mr. Sandoval’s documented

qualifications was an attempt to mask an illegitimate motive.

3. Pretext-Plus

Ms. Jaramillo argues that the district court relied on the discredited

doctrine of pretext-plus. Under pretext-plus, the plaintiff must do more than

show pretext; he must also “come forward with additional, direct evidence of a

discriminatory motive.” Neal v. Roche, 349 F.3d 1246, 1249 (10th Cir. 2003). In

other words, a complete lack of evidence regarding the employer’s motive is not

enough to raise a genuine issue of fact. We rejected the pretext-plus doctrine in

Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995), holding that

“discriminatory animus may be inferred from the simple showing of pretext”;

therefore, a plaintiff who establishes a prima facie case and pretext is entitled to a

jury. Id. at 451.

Ms. Jaramillo’s argument rests on a misunderstanding of pretext-plus. She

maintains that because she has discredited the CJD’s initial explanation, she has

established pretext and is not required to present further evidence. The demise of

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pretext-plus means that the plaintiff creates a genuine issue of fact merely by

discrediting the employer’s legitimate, nondiscriminatory reason; however, the

burden remains on the plaintiff to show that each reason given by the employer is

unworthy of credence. Pretext-plus becomes relevant only after the employee has

discredited the employer’s reasons, leaving nothing in the record to explain the

employment decision. We explained in Randle that summary judgment would be

appropriate “if [the] plaintiff could not offer evidence tending to show the

defendant’s innocent explanation for his employment decision was false.” Id. at

451 n.14. The CJD has offered a legitimate, nondiscriminatory reason for its

decision—Mr. Sandoval was better qualified for the position. Because she has

not presented evidence to show that this reason is mere pretext, Ms. Jaramillo’s

successful attack on Ms. Donovan’s initial explanation is not enough to create a

genuine issue of fact.

4. Procedural Irregularities

Ms. Jaramillo alleges that the selection process was marred by numerous

procedural irregularities. She argues that the CJD failed to perform mandatory

testing, that it pre-selected Mr. Sandoval for the position, that it failed to provide

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a hearing on her internal grievance, that Ms. Donovan attempted to give her a pay

raise after she filed a grievance, and that the CJD conducted a biased

investigation of her complaint. None of the actions identified by Ms. Jaramillo

constitute procedural irregularities.

a. Failure to Perform Mandatory Testing

Because the Judicial System Personnel Rules did not require the

Department to administer a formal examination, its failure to do so is not a

procedural irregularity. Colorado state agencies follow the so-called “rule of

three,” which provides the appointing authority with complete discretion to select

any one of the top three applicants for a position. See Conde v. Colo. State Dept.

of Personnel, 872 P.2d 1381, 1388 (Colo. App. 1994) (“A necessary ingredient of

the rule of three is the appointing authority’s right to select any of the highest

three applicants.”) (quotations omitted). The Colorado Judicial System Personnel

Rules accordingly give the Chief Probation Officer full discretion to select any of

the top three candidates for a position. Colorado Judicial System Personnel Rule

18.B.1, Appellant’s App. at 78, 80-84. Because the applicant pool had been

reduced to three, the Chief Probation Officer had full discretion to choose from

among the remaining candidates. The CJD was not required to conduct interviews

or testing. Benway Dep., Appellant’s App. at 80-81, 277. For the same reasons,

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Ms. Jaramillo’s allegation that the CJD evaluated the candidates using subjective

criteria, even if true, is not evidence of procedural irregularity.

b. Pre-selection of Mr. Sandoval

Ms. Jaramillo alleges that the CJD pre-selected Mr. Sandoval for the PO II

position in order to keep him at DJPD. Appellant’s Br. at 21. Ms. Jaramillo does

not provide evidence sufficient to create a genuine issue of fact on the question of

pre-selection. Even assuming the truth of her allegation, it tends to prove only

that the CJD promoted Mr. Sandoval for a reason other than his gender. It is

therefore insufficient to show pretext.

There is evidence that Ms. Donovan discussed the promotion with Mr.

Sandoval, but it suggests only that she encouraged Mr. Sandoval to apply for the

position when it became available. Mr. Sandoval testified that after he was

offered a PO II position in Denver Adult Probation, he called Ms. Donovan to

verify a rumor that a similar position would be open in Denver Juvenile

Probation. According to Mr. Sandoval, Ms. Donovan told him that a PO II

position would be available at some point, though she did not set a date, and she

told him that “you got to like your chances, as good as anybody else’s, that

appl[ies] for the position.” Sandoval Dep., Appellant’s App. at 175.

Ms. Donovan also testified that Mr. Sandoval called her to discuss his job offer in

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Denver Adult Probation and the possibility of an opening at the PO II level in

Denver Juvenile Probation. According to Ms. Donovan, she told him that she

“knew it was a difficult decision to make, that he had to go through the process

like everyone else.” Donovan Dep., id. at 200. She testified that she offered Mr.

Sandoval “words of encouragement” during the phone conversation, telling him

that he would have “as good a chance” as anyone for a PO II position in Denver

Juvenile Probation. Id. Neither Mr. Sandoval or Ms. Donovan suggested that she

promised him that he would be promoted when the PO II position became

available.

Ms. Jaramillo has not produced competent evidence to support her

allegation of pre-selection. Ms. Jaramillo testified that several of her co-workers

told her that Mr. Sandoval told them that he had been promised a promotion.

Appellant’s App. at 141. Arturo Villa testified that Mr. Sandoval told him that

Susan Donovan told him in a telephone call “not to take [a position in adult

probation] because the next PO position that became available for Denver

Juvenile would be his.” Villa Dep., id. at 169-70. Beverly Hobbs Porter, a

manager in the department, heard through “the rumor mill” that Sandoval had

been promised the promotion. Appellant’s Br. at 9; Porter Dep., Appellant’s App.

at 185. None of these individuals claimed to have gotten their information from

management-level employees. Appellant’s App. at 142. Ms. Jaramillo did not

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discuss the issue with her supervisors or anyone in management, nor did she ask

Mr. Sandoval whether he had been promised the promotion. Id. at 141. Hearsay

testimony that would not be admissible at trial is not sufficient to defeat a motion

for summary judgment. See Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995).

Ms. Jaramillo argues that Mr. Sandoval’s statements are non-hearsay

admissions of a party opponent because they were “statement[s] by the party’s

agent or servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship.” Fed. R. Evid.

801(d)(2)(D). In order for a statement to qualify as an admission of a party

opponent, the speaker “must be involved in the decisionmaking process affecting

the employment action involved.” Aliotta v. Nat’l R.R. Passenger Corp., 315

F.3d 756, 762 (7th Cir. 2003). Mr. Sandoval was not involved in the hiring or

promotion process. His alleged statements were therefore outside the scope of his

employment and not admissible as statements of a party opponent.

Furthermore, Ms. Jaramillo’s pre-selection argument proves too much. If

Ms. Donovan did in fact resolve to promote Mr. Sandoval in order to prevent him

from leaving the department, this only shows that the application process was a

meaningless exercise. This might be inconsiderate or unfair, but it does not

support the inference that the CJD’s employment decision was motivated by sex-

based discrimination. See Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir.

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2004) (holding that the plaintiff’s allegation of preselection, even if true, did not

entitle a jury to conclude that its proffered explanation—that the candidate was

better qualified—was a pretext for unlawful discrimination); Bullington, 186 F.3d

at 1318 n.14 (explaining that the court’s role is not to decide whether employment

decisions are wise or fair, but whether “those decisions were motivated by

discriminatory animus”). Ms. Jaramillo’s pre-selection argument rests on the

premise that the CJD promoted Mr. Sandoval for a reason not prohibited by Title

VII. Assuming that this premise is true, a reasonable jury could not find that the

CJD’s decision was based on gender discrimination. See Marx v. Schnuck Mkts.,

Inc., 76 F.3d 324, 328 (10th Cir. 1996) (“[I]f a civil rights plaintiff concedes that

the real reason for the employer's action was a motive not prohibited under the

civil rights laws, such a concession mandates granting of summary judgment to

the employer.”) (citing Randle, 69 F.3d at 451 n.14). Her allegation of pre-

selection is therefore insufficient to create a genuine issue of fact on pretext.

c. Other Procedural Irregularities

Ms. Jaramillo identifies three additional procedural irregularities: (1) the

grievance board’s failure to grant a hearing on her internal complaint; (2) Ms.

Donovan’s efforts to give her a pay raise; and (3) the biased investigation of her

discrimination complaint. Appellee’s Br. at 42-43. Regarding the failure to

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provide a grievance hearing, Judicial System Personnel Rule 33.C.4 exempts from

the grievance process “[i]ssues relating to transfers as defined in these rules and

the promotional process and qualifications including, but not limited to, the

existence, content, administration and method of scoring of examinations.” Colo.

Judicial Personnel Rule 33.C.4., Appellant’s App. at 325. Because the board’s

refusal to grant Ms. Jaramillo a hearing on her complaint was consistent with the

personnel rules, it does not qualify as a procedural irregularity. Furthermore, all

three of these alleged irregularities occurred after Mr. Sandoval was promoted.

They are therefore irrelevant to the question whether Ms. Donovan’s decision to

promote Mr. Sandoval was motivated by discriminatory animus.

IV.

The CJD produced a legitimate, non-discriminatory reason for its

employment decision. Because Ms. Jaramillo did not raise a genuine issue of fact

on the question of pretext, the district court properly granted summary judgment.

The district court’s order is AFFIRMED.

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