Martinez v. Wyoming, Department of Family Services

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

July 20, 2000

TO: ALL RECIPIENTS OF THE OPINION

RE: 99-8011, Martinez v. Wyoming
Filed on July 19, 2000

The opinion filed in this matter contains a clerical error in the date filed stamp.
The date stamp should read “Filed July 19, 2000” as opposed to “Filed December 10,
1996”.

A corrected copy of the first page of the opinion is attached.

Sincerely,

Patrick Fisher, Clerk of Court

By:
Daniel R. Sosa, Jr.
Deputy Clerk
 F I L E D
United States Court of Appeals
July 19, 2000

PUBLISH July 19, 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT
Clerk

MICHAEL MARTINEZ,

Plaintiff-Appellant,
v. Case No. 99-8011
STATE OF WYOMING, Department
of Family Services,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 96-CV-296-D)

Bernard Q. Phelan of Phelan-Watson Law Office, Cheyenne, Wyoming,
for Plaintiff-Appellant.
Francisco L. Romero, Assistant Attorney General (Gay Woodhouse,
Attorney General, and John W. Renneisen, Deputy Attorney General,
with him on the briefs) Cheyenne, Wyoming,for Defendant-Appellee.

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge,
and BROWN, Senior District Judge.*

BROWN, Senior District Judge.

* Honorable Wesley E. Brown, Senior United States District Judge
for the District of Kansas, sitting by designation.
 In this Title VII employment discrimination action under 42

U.S.C. §2000-3(a), plaintiff Michael Martinez appeals the district

court's entry of summary judgment in favor of the defendant State

of Wyoming, Department of Family Services. The court exercises

appellate jurisdiction under the provisions of 28 U.S.C. §1291.

The case involves plaintiff's efforts to become a welfare

worker at the Laramie County Office of the Wyoming Department of

Family Services in 1991 and 1992. The issues presented in this

appeal are whether plaintiff's charge of discrimination was timely
and whether there is a genuine issue of material fact with regard

to the issue of discrimination.
The district court found that plaintiff's claims of race and

reverse gender discrimination, connected to his application for

employment in 1991, were time barred under Title VII's requirement

that charges be filed within 300 days following the date of alleged

discrimination. With reference to the 1991 claim, the court
further found that plaintiff's complaint concerning employment

opportunities in 1992 did not present a "continuing course of
conduct" which would revive the 1991 claim. The court also

determined that plaintiff's evidence was not sufficient to

establish a genuine issue as to pretext because there was an

absence of evidence which would demonstrate that plaintiff was more

qualified than those hired by the agency, and that statistical

evidence was insufficient to establish questionable disparities in
hiring decisions.

2
 The background facts appear to be fairly stated in the order

sustaining defendant's motion for summary judgment. Plaintiff is

an Hispanic male and a high school graduate, who was honorably

discharged from the United States Marines. He had completed a

three-hour course in auto upholstery and had worked in his father's

body shop. Plaintiff also had typing and computer experience.

Plaintiff applied for public assistance from the state of

Wyoming. As a condition for such assistance, he enrolled in the

"Wyoming Opportunities for Work" program. Beginning in January,
1991, plaintiff began work as a volunteer in the Wyoming Department

of Family Services. This state program provided that a partici-
pating employer would hire a trained volunteer for an available

position if he or she satisfactorily completed a work-experience

program.

As a volunteer, plaintiff performed various clerical duties

for the agency, preparing documents and helping applicants for
public assistance complete their applications. Plaintiff did not

make eligibility determinations, do computer work, verify
information, calculate benefits, interview clients, or prepare

correspondence, all of which are listed as some of the duties of an

economic assistance specialist, the position he wanted.

When plaintiff first applied for a vacant position with the

agency on May 22, 1991, he received a qualification notice and was

placed on a list for three vacant positions. Sixteen candidates
were interviewed for the three positions. In late June, 1991,

plaintiff was interviewed by a three-member panel of supervisors

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but was notified on June 28, 1991, that he had not been selected

for any vacancy. A male applicant, Christopher Farris, and two

females, Linda Archer and Judith Wininger, were chosen to fill the

vacancies.

The district court found that Christopher Farris was one of

the most qualified applicants with college education and

"management potential." He also had computer training and

experience. Linda Archer was also well qualified because of her

work experience in the state workmen's compensation office where
she evaluated claims for disability benefits, and she "interviewed

very well." She had also calculated disability awards, prepared
correspondence, had significant computer experience and several

years of office experience. Judith Wininger was employed at the

time of her interview as a home health aide for the agency where

she documented cases and worked directly with clients. Ms.

Wininger had also attended college for one year and had a computer
course at a community college.

Plaintiff claims he was interviewed for two other vacancies in
1991--in the summer of 1991 and in October 1991--but there was no

evidence as to who, if anyone was hired, the applicants who were

interviewed, or information about the qualifications of those who

were hired.

Plaintiff continued as a volunteer until December, 1991, or

January, 1992, when his volunteer status was ended due to the
program's time limitations. In April, 1992, at his request,

plaintiff's name was added to another list as eligible for

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vacancies. Fourteen names were on this list, and twelve applicants

were interviewed. On April 30, 1992, plaintiff was given an

interview but, on May 4, 1992, he was informed that he had not been

selected. Susan Wood was hired for this 1992 vacancy, in part due

to her mandatory preference status as a former state employee who

had been separated due to a reduction in force. Ms. Wood also had

15 hours of college credits as well as typing and computer

experience and other skills qualifying her for the position.

Plaintiff claimed that the defendant's reasons for not hiring
him were a pretext for discrimination, and he believed that he was

more qualified than those who were successful applicants.
Accordingly, plaintiff filed a charge of discrimination with the

EEOC on September 15, 1992, alleging discrimination for failure to

hire him on May 4, 1992. He did not claim discrimination with

regard to the 1991 position, and the EEOC investigation was limited

to the 1992 interview exclusively. On August 21, 1996, the EEOC
issued a dismissal, advising that it was unable to conclude that

the state agency had violated federal law in its hiring practices.
Plaintiff filed this action pro se, complaining of

discrimination in connection with his unsuccessful interview in
May, 1991. Plaintiff's counsel filed an amended complaint alleging

that defendant had discriminated against plaintiff by failing to

hire him in 1991 and for a subsequent vacancy. 1

1
The amended complaint refers to Susan Wood in discussing
the 1991 vacancies, but, as noted, Ms. Wood filled a vacancy in
1992.
5
 In support of his claim in the district court, plaintiff

presented statistical evidence that employees of the state agency

were predominantly white and female. This evidence consisted of a

1994 computer printout which plaintiff stated in his affidavit had

been obtained "from the EEOC." The district court found that there

was no evidence of foundation or authenticity for this exhibit,

that it pertained to the year 1994, and therefore was not probative

of any issue before the court. Plaintiff also submitted a

publication entitled "The Employment of Minorities and Women in
Wyoming State Government," which the court found "to have little

probative value in advancing plaintiff's contentions." In addition,
plaintiff also claimed that an Hispanic male had applied for a

promotion to a supervisory position with the agency "around

1991/92" but did not get the promotion and that, in this person’s

"speculative opinion," he was not chosen because he was male and

Hispanic. Speculation, of course, does not suffice for evidence.
See Doan v. Seagate Technology, Inc., 82 F. 3d 974, 977 (10th Cir.
1996), cert. den., 136 L.Ed. 2d 609 (1997). It also appeared that

this person was in fact later promoted to a supervisory position by
the same supervisor who had denied his previous application.

The district court found that plaintiff did not file with the

EEOC within 300 days of the discrimination he alleged in his

amended complaint. Plaintiff did not file until September 15,

1992, more than 300 days after the first refusal to hire him in

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May, 1991. Since he was interviewed and not hired for a vacancy in

1992, the court found that there was at least one instance of the

alleged discrimination within the filing date but further concluded

that the latter date was not attributable to a "continuing course"

of discrimination. The court noted evidence that plaintiff was

aware of his rights when he first complained of alleged

discrimination in 1991, but that he failed to follow through with

any complaint he may have had concerning discrimination in 1991.

In the alternative, the court further found that defendant's
reasons for not hiring plaintiff were not pretextual, since those

chosen for the vacancies were clearly more qualified than plaintiff
was for the positions that were available.

We review the district court's grant of summary judgment de

novo, applying the same standard as the district court. In

reviewing the record we must determine if genuine issues of

material fact exist, when the evidence is construed in a light most
favorable to a plaintiff who has opposed the motion for judgment.

In this case, plaintiff may not rest on his pleadings, but must
show evidence which would establish all elements necessary to his

case. Rea v. Martin Marietta Corp. 29 F. 3d 1450, 1454 (10th Cir.
1994).

After a review of the record in this action, we determine that

the district court properly found that plaintiff's claims of

discrimination rising in 1991 were time barred, and that they could

not be revived by application of the continuing course of

discriminatory conduct doctrine used by courts to fashion remedies

7
and to determine damages. See Furr v. AT&T Technologies, Inc., 824

F. 2d 1537, 1543 (10th Cir. 1987).

In Title VII actions, 42 U.S.C. §2000e-5(e) claims of

discrimination must be filed with the EEOC or state agency within

300 days after an alleged discrimination occurs. Martin v. Nannie
and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993). This

300-day limitation applies in such states as Wyoming which have

prohibited discrimination under §2000e-5. Wyo. Stat.Ann. §27-9-105.

As noted above, charges filed by plaintiff relating to his 1991
claims of discrimination were not included in the formal charge

which he made, and the district court correctly found that
contentions regarding his 1991 interview were time barred under

Title VII.

While a plaintiff may include allegations of discriminatory

incidents which occurred outside the time limitations when other

acts may provide evidence of a "continuing pattern of
discrimination," this equitable doctrine is applied to determine a

remedy and damages, and is not codified within the provisions of

Title VII. Furr v. AT & T Technologies, Inc., supra, 824 F.2d at

1543. Before this equitable remedy is applied by the courts, two
criteria must be met--there must be at least one occasion of

discrimination occurring within the filing period, and earlier acts

must not be "discrete unrelated acts" but must be part of a

"continuing policy or practice" which includes an act within the

statutory period. In Mascheroni v. Board of Regents of Univ. of

Cal., 28 F. 3d 1554, 1561 (10th Cir. 1994), this court determined

8
that three considerations are relevant to determine whether prior

acts may be considered. First, the court considers whether the

incidents were of the same type of discrimination; second, the

frequency of the incidents; and third, whether the nature of the

incidents should have made the employee aware of the need to assert

his rights.

In this instance, the district court correctly found that the

"continuing course of conduct" doctrine would not be applied

because plaintiff's evidence was insufficient to establish the
frequency and permanence of the acts since the 1991 and 1992

interviews were ten months apart. In addition, the district court
noted plaintiff's own affidavit in which he admitted that he was

"concerned in 1991," and that he was made aware at that time that

he could file a discrimination complaint. 2
In the district court, plaintiff attempted to show that the

defendant's explanation for not hiring him was pretextual. In this
respect, plaintiff submitted statistical and other evidence to

support his theory that he was the most qualified candidate for the
job openings. In our evaluation of this evidence, we must

determine whether the suggested evidence could lead to a jury

finding that defendant had discriminated in its employment

2
In this appeal, plaintiff now claims that the interview
session in 1991 consisted of three wrongs--one for each of the
three hiring decisions made by defendant. This argument was not
raised at the summary judgment hearing for consideration by the
district court. Issues not ruled upon there will not be considered
on appeal. See Tele-Communications, Inc. v. C.I.R., 104 F.3d 1229,
1233 (10th Cir. 1997), and Anaeme v. Diagnostek, Inc. , 164 F.3d
1275, 1285 (10th Cir. 1999), cert. den. 145 L.Ed 2d 668.
9
decisions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36
L.Ed. 2d 668,679 (1973).

In approaching the question, we note that both parties agree

that, for the purpose of a summary judgment motion, plaintiff has

made a prima facie case with respect to his race claims, and the
only remaining issue concerning race is whether plaintiff presented

sufficient evidence to raise an inference of discrimination by

showing that defendant's explanations for its hiring decisions were

pretextual in nature.

With respect to the gender claims, plaintiff relied upon

statistical data contained in report compiled and published by the
Wyoming Advisory Council to the U. S. Commission on Civil Rights in

1994. (Appellee Supplemental Appendix at pp. 29-97) The district

court "assumed without deciding" that the report's 1992 gender data

was sufficient to establish a prima facie case of reverse gender

discrimination under Notari v. Denver Water Dept., 971 F.2d 585,
589 (10th Cir. 1992), but it further held that such statistical

evidence lacked probative weight to establish pretext for
defendant's decision not to hire plaintiff.

Statistical evidence offered by a party must "cross a

threshold of reliability before it can establish even a prima facie

case of disparate (treatment)." Ortega v. Safeway Stores, Inc.,

943 F. 2d 1230, 1243 (10th Cir. 1991)(quoting Allen v. Seidman,

881 F.2d at 378). In Doan v. Seagate Technology, Inc.,supra, 82

F.3d 974 at 979 (10th Cir. 1996), we had occasion to note that

while statistical evidence may create an inference of

10
discrimination the evidence may be so flawed as to render it

insufficient to raise a jury question:

"Statistics taken in isolation are generally
not probative of age discrimination" Jones v.
Unisys Corp., 54 F. 3d 624, 632 (10th Cir.
1995). In this case [plaintiff's] statistical
evidence is flawed because it failed to
compare similarly situated individuals and
failed to eliminate nondiscriminatory reasons
for the numerical disparities. . . .
Statistical evidence which fails to properly
take into account nondiscriminatory explana-
tions does not permit an inference of pretext.
Rea v. Martin Marietta Corp., 29 F. 3d 1450,
1456 (10th Cir. 1994). (82 F. 3d at 979).
With reference to plaintiff's contentions concerning "standard

deviation" figures in connection with the statistical report, the
district court did consider the raw data which it contained and

determined that it had little probative value for a number of

reasons. These included the fact that the 1992 work force data had

little value with respect to plaintiff's 1991 gender claims, and

the 1993 data on minority employment was not probative of the 1991
race discrimination claims. In addition, the district court

concluded that the 1992 and 1993 statistics did not eliminate

nondiscriminatory explanations for disparate treatment since

plaintiff and the applicants hired were not comparable individuals

or similarly situated applicants. We agree with the district

court's conclusion that the statistical evidence presented by
plaintiff had too little probative value to raise a genuine issue

of material fact from which a jury could infer discriminatory

motive.

11
 In this appeal, plaintiff claims that he did not have to prove

that he was the most qualified candidate for a position in order to

overcome a motion for summary judgment. When an employer contends

that a plaintiff was not as qualified as the successful candidates,

pretext can be inferred from evidence that a plaintiff was in fact

more qualified than those chosen. Rea, supra, 29 F.3d at 1437.

Here, the defendant's stated reasons for not hiring plaintiff were

that he was not among the most qualified candidates for the open

positions. We will not restate at length the qualifications of the
1991 and 1992 successful applicants. In 1991, the candidate Farris

had more education than plaintiff; Ms. Archer had three years of
relevant work experience determining compensation claims; and Ms.

Wininger had nine years’ experience in defendant's agency. In 1992,

the successful candidate, Ms. Wood, had fifteen college credits,

had previously worked for the State of Wyoming, and in addition was

entitled to a preference in the hiring decision because she was a
former state employee.

For the first time in this appeal, plaintiff contends that he

too was entitled to a preference in the hiring process as a

veteran. Section §19-6-102 of Wyo. Stat. Ann. provides in

pertinent part that:

Section 4. Preference in Making Appointment.
From among those in the candidate group
given final selection consideration, who are
otherwise equally qualified, the appointing
authority shall give preference in the
following order:
(a) Previous employees who have been
separated due to a reduction in force;

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 (b) War veterans who have been residents
of the State for one (1) year immediately
preceding appointment; . . . . (Emphasis
supplied)(p. 28, Appellee’s Supp. Appendix)

While the veteran's preference claim was mentioned in an amended

complaint, plaintiff did not raise the issue in opposition to the

motion for summary judgment. Since this issue was not presented

to the district court for consideration, it may not now be reviewed

on appeal. Bullington v. United Air Lines, Inc., 186 F.3d 1301, at
1311-1312; Tele-Communications, Inc. . C.I.R., supra, 104 F.3d at
1229; and Anaeme v. Diagnostek, Inc. , supra, 164 F.3d 1275. 3

While plaintiff continues to insist that he was the "most

qualified" applicant for the agency positions, the evidence is to
the contrary. Giving him the benefit of all favorable inferences,

it is clear that plaintiff was, at best, qualified for the
positions he sought. Since plaintiff failed to produce evidence

that he was the better qualified candidate from among those hired,
he failed to raise a genuine issue of material fact as to pretext

on the part of defendant. Bullington v. United Air Lines, Inc.,

supra, 186 F.3d at 1317-1318, 1319.

After our review of the record in this case, we determine that

even when the evidence is viewed in the light most favorable to the

3
In the first place, we note that Ms. Wood was entitled to
primary preference because she had lost her prior state employment
due to a "reduction on force." It also appears that the state
veteran's preference statute applies only to veterans of wars and
conflicts enumerated in 38 U.S.C. §101. Wyo.Stat.Ann. §19-6-102;
Pinher v. State, Dept. of Admin. & Inf. 866 P. 2d 1300, 1304 (Wyo.
1994). Plaintiff's military service was from 1977 through 1981,
not a period covered by the preference.
13
plaintiff, he has failed to produce evidence that defendant

discriminated on the basis of race or gender in its hiring

practices. Accordingly, the district court's grant of summary

judgment in favor of defendant is AFFIRMED.

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