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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Jaramillo v. Colorado Judicial Department
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-11-02
Citations: 427 F.3d 1303
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