F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 25 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CEDRIC D. SIMMS,
Plaintiff - Appellant,
v. No. 97-6366
THE STATE OF OKLAHOMA,
ex. rel., The Department of
Mental Health and Substance Abuse
Services, a state agency,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CIV-96-2158-A)
Ken Feagins, (Stanley M. Ward, with him on the briefs), Norman, Oklahoma,
appearing for Plaintiff-Appellant.
Penny Broughton McCracken, Deputy General Counsel (Craig Sutter, General
Counsel, on the answer brief), Department of Mental Health and Substance Abuse
Services, Oklahoma City, Oklahoma, appearing for Defendant-Appellee.
Before TACHA, BRISCOE, and MURPHY, Circuit Judges.
TACHA, Circuit Judge.
Plaintiff-Appellant Cedric D. Simms appeals two orders of the district court
granting summary judgment in favor of defendant, the Oklahoma Department of
Mental Health and Substance Abuse Services (“DMHSAS”) on claims of unlawful
employment discrimination and retaliation. On appeal, plaintiff argues that: (1)
his pre-1995 retaliation claims are not time-barred and (2) the district court erred
in granting summary judgment on his failure to promote claim because he
presented sufficient evidence of pretext, creating a genuine dispute as to an issue
of material fact. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
The procedural history of this case is somewhat complicated. Mr. Simms,
an African-American, began his employment with defendant at Griffin Memorial
Hospital around April 29, 1991, as a Fire and Safety Officer I. On September 11,
1991, defendant posted a job announcement for the position of Fire and Safety
Officer II. Mr. Simms applied for the position, but defendant gave it to a white
employee whom he thought was less qualified. Consequently, he filed a charge
with the Equal Employment Opportunity Commission (“EEOC”) on October 12,
1992 (No. 311930053), alleging that defendant refused to promote him because of
his race. The EEOC issued a right-to-sue letter and, on December 21, 1993, Mr.
Simms filed an action in federal court pursuant to Title VII of the Civil Rights
Act (“Title VII”). The parties settled this action (“Simms I”) on April 13, 1994.
Under the settlement agreement, defendant promoted Mr. Simms to the position of
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Fire and Safety Officer II. Although the court stated that DMHSAS should waive
its standard six-month probationary period for plaintiff, defendant's employees
Carol Kellison and Stand LaBoon withheld Mr. Simms’ supervisory duties until
June 20, 1994.
Ten days later, defendant posted a job announcement for the position of
Fire and Safety Officer Supervisor. The job announcement stated that
“PREFERENCE WILL BE GIVEN TO APPLICANTS WITH SUPERVISORY
EXPERIENCE.” Appellant’s App. at 376. Mr. Simms applied and interviewed
for the position. Mr. Simms and Bruce Valley, a white employee under Mr.
Simms’ supervision but who had numerous years of supervisory experience in the
construction industry, received the highest scores in the first round of interviews.
A panel including Carol Kellison and Stand LaBoon interviewed both men in a
second round and ultimately gave the promotion to Mr. Valley. As a result, Mr.
Simms filed a second EEOC charge (No. 311950136) on October 31, 1994,
alleging that defendant unlawfully failed to promote him based on his race.
After filing the second EEOC charge, Mr. Simms’ relationship with the
defendant deteriorated. In March 1995, defendant reprimanded him for
“distribution of unauthorized material” and, in April 1995, defendant suspended
him for “insubordination, not devoting full time, attention and effort to the duties
and responsibilities of position during assigned hours of duty, and failure or
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inability to perform the duties in which employed.” Appellant's App. at 83. On
June 5, 1995, Mr. Simms filed a third EEOC charge (No. 311950898) alleging
that these acts were in retaliation for filing and pursuing his second EEOC charge.
On July 20, 1995, Mr. Simms received his first adverse job performance
evaluation. Defendant demoted him to Fire and Safety Officer I on August 13,
1995, and ultimately terminated his employment on September 22, 1995.
On November 29, 1995, Mr. Simms received an EEOC right-to-sue letter
regarding his third EEOC charge. He brought a Title VII action in federal court
(“Simms II”) on January 12, 1996, alleging race-based employment discrimination
and retaliation, including allegations of retaliatory acts occurring prior to 1995
and not covered by his third EEOC charge. At the time he commenced Simms II,
he had not yet received a right-to-sue letter for his second EEOC charge. On July
13, 1996, DMHSAS filed a motion for partial summary judgment on the grounds
that Mr. Simms had failed to exhaust his administrative remedies as to his race
discrimination and pre-1995 retaliation claims. Two days later, Mr. Simms filed
an amendment to his second EEOC charge. The amendment contained allegations
of pre-1995 acts of retaliation, including withholding of supervisory duties for the
Fire and Safety Officer II position and failure to promote him to the Fire and
Safety Supervisor position. On September 3, 1996, the district court granted
defendant’s motion for partial summary judgment, leaving only the post-1995
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retaliation claims for trial.
The EEOC completed its investigation of the second EEOC charge on
September 25, 1996, and issued a letter of determination stating that it found
“reasonable cause to believe the charge is true.” Appellant’s App. at 274. A
right-to-sue letter followed on October 2, 1996. Based on these events, plaintiff
asked the district court to reconsider its September 3 Order in Simms II. The
court denied Mr. Simms’ motion for reconsideration on October 23, 1996. On
December 31, 1996, plaintiff brought the present action (“Simms III”) reasserting
the claims that were dismissed in Simms II for failure to exhaust administrative
remedies.
On January 6, 1997, Simms III was transferred to the district court judge
presiding over Simms II, and plaintiff filed a motion to consolidate the two cases.
The district court denied the motion because it would delay Simms II, which was
set for trial in a week. The remaining claims in Simms II were tried to a jury.
The jury found in favor of DMHSAS on the retaliatory discharge claim, but found
against DMHSAS on the other post-1995 retaliation claims (the reprimand,
suspension, negative performance evaluation, and demotion). On February 26,
1997, the trial court entered judgment in accordance with the jury’s verdict.
On June 16, 1997, DMHSAS filed a motion for partial summary judgment
in Simms III, claiming that Mr. Simms’ pre-1995 retaliation claims were time-
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barred and did not relate back to his original second EEOC charge. The trial
court granted the motion on September 3, 1997, holding that Mr. Simms failed to
exhaust administrative remedies. The district court found Mr. Simms’ amendment
to his second EEOC charge neither timely nor related to the activities contained in
the original charge. On September 11, 1997, defendant filed a summary judgment
motion with respect to plaintiff’s remaining claims in Simms III. The court
granted defendant’s motion on October 23, 1997. The trial court denied
plaintiff’s motion for reconsideration of the two orders, and this appeal followed.
Standard of Review
We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court. See Byers v. City of
Albuquerque 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this
standard, we view the evidence and draw reasonable inferences therefrom in the
light most favorable to the nonmoving party. See Byers, 150 F.3d at 174.
Although the movant must show the absence of a genuine issue of material
fact, he or she need not negate the nonmovant’s claim. See, e.g., Jenkins v.
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Wood, 81 F.3d 988, 990 (10th Cir. 1996). Once the movant carries this burden,
the nonmovant cannot rest upon his or her pleadings, but “must bring forward
specific facts showing a genuine issue for trial as to those dispositive matters for
which [he or she] carries the burden of proof.” Id. “The mere existence of a
scintilla of evidence in support of the nonmovant’s position is insufficient to
create a dispute of fact that is ‘genuine’; an issue of material fact is genuine only
if the nonmovant presents facts such that a reasonable jury could find in favor of
the nonmovant.” Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997). If
there is no genuine issue of material fact in dispute, we determine whether the
district court correctly applied the substantive law. See Kaul v. Stephan, 83 F.3d
1208, 1212 (10th Cir. 1996).
I. Pre-1995 Retaliation Claims - Exhaustion Doctrine
A plaintiff must generally exhaust his or her administrative remedies prior
to pursuing a Title VII claim in federal court. See, e.g., Khader v. Aspin, 1 F.3d
968, 970 (10th Cir. 1993). Thus, a plaintiff normally may not bring a Title VII
action based upon claims that were not part of a timely-filed EEOC charge for
which the plaintiff has received a right-to-sue letter. See Seymore v. Shawver &
Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997), cert. denied, 118 S. Ct. 342
(1997). To be timely, a plaintiff must file the charge with the EEOC within 180
days or with a state agency within 300 days of the complained-of conduct. See 42
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U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.13 (1998); Gunnell v. Utah Valley St.
College, 152 F.3d 1253, 1260 n.3 (10th Cir. 1998). However, 29 C.F.R. §
1601.12(b) provides that certain amendments may relate back to the filing date of
the original charge and, therefore, be considered timely even if the amendment
takes place after the deadlines set forth in § 1601.13. To relate back, an
amendment must (1) correct technical defects or omissions; (2) clarify or amplify
allegations made in the original charge; or (3) add additional Title VII violations
"related to or growing out of the subject matter of the original charge." Id.
§ 1601.12(b).
Mr. Simms argues that the 1996 amendment to his second EEOC charge
complies with § 1601.12(b) and that his pre-1995 retaliation claims are therefore
part of a timely-filed EEOC charge. For this to be true, the amendment must have
either clarified or amplified allegations made in Mr. Simms’ second EEOC charge
or addressed matters that related to or grew out of the race discrimination claim in
that charge. 1 We agree with the district court that the 1996 amendment did not
clarify or amplify allegations in the second EEOC charge because the original
charge, even when construed liberally, contained no mention of the theory of
retaliation or facts supporting such a claim.
1
Mr. Simms’ amendments are not technical amendments (e.g., correcting a
name or address), rather they go to the substance of the charge.
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Whether the pre-1995 retaliation claims contained in the 1996 amendment
related to or grew out of the race discrimination claim in the second EEOC charge
is a closer question. Some courts have held that this language encompasses
claims based on different legal theories that derive from the same set of operative
facts included in the original charge. See Hornsby v. Conoco Inc., 777 F.2d 243,
247 (5th Cir. 1985); Washington v. Kroger Co., 671 F.2d 1072, 1075-76 (8th Cir.
1982); Alexander v. Precision Machining, Inc., 990 F. Supp. 1304, 1310 (D. Kan.
1997); Conroy v. Boston Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991); cf.
Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir. 1998) (stating that
disability discrimination claim would not relate back to age discrimination claim,
but court might have been more sympathetic had plaintiff “alleged facts that
supported both claims” in the first complaint). 2 Other courts have concluded that
an amendment will not relate back when it advances a new theory of recovery,
regardless of the facts included in the original complaint. See Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)
(denying relation back for age discrimination claim to sex discrimination claim);
Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1988) (same);
2
Some courts have gone further and held that an “amendment is said to
grow out of the same subject matter as the initial charge where the protected
categories are related, as is the case, for example, with race and national origin.”
Conroy, 758 F. Supp. at 58. That, however, is not the case here.
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Hopkins v. Digital Equip. Corp., 1998 WL 702339, at *2 (S.D.N.Y. Oct. 8, 1998)
(stating that retaliation and disability claims in amended charge did not relate
back to date of original charge, which only alleged race discrimination, “even
though those claims are based on incidents described in the original charge, since
neither disability nor retaliation claims flow from race discrimination claims”).
In Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 n.3 (10th Cir.
1998), this court followed the latter position, noting that when an original EEOC
claim alleged only retaliation, plaintiff’s amendment to add a sexual harassment
claim did not relate back to the original charge pursuant to 29 C.F.R. §
1601.12(b). Applying the analysis from Gunnell, we hold that Mr. Simms’
retaliation charge does not relate back under § 1601.12(b) because his 1996
amendment alleges a new theory of recovery, retaliation, that he did not raise in
the second EEOC charge. Prohibiting late amendments that include entirely new
theories of recovery furthers the goals of the statutory filing period -- giving the
employer notice and providing opportunity for administrative investigation and
conciliation. See Evans, 80 F.3d at 954; cf. Ingels v. Thiokol Corp., 42 F.3d 616,
625 (10th Cir. 1994) (finding exhaustion is not required for a retaliation claim
filed during the pendency of a discrimination claim and based on acts that
occurred after the filing of the discrimination claim because the employer already
has notice and there is little chance a second administrative complaint would lead
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to conciliation). Therefore, Mr. Simms’ pre-1995 retaliation claims were not part
of a timely-filed EEOC charge, and he has not exhausted his administrative
remedies with respect to these claims.
Even though Mr. Simms did not properly exhaust administrative remedies,
our inquiry as to whether this court may hear the retaliation claims has not come
to an end. This court has adopted a limited exception to the exhaustion rule for
Title VII claims when the unexhausted claim is for “discrimination like or
reasonably related to the allegations of the EEOC charge.” Ingels, 42 F.3d at 625
(quoting Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir.
1988)). We have construed the “reasonably related” exception to include most
retaliatory acts subsequent to an EEOC filing. See Seymore v. Shawver & Sons,
Inc., 111 F.3d 794, 799 (10th Cir. 1997), cert. denied, 118 S. Ct. 342 (1997).
“However, where a retaliatory act occurs prior to the filing of a charge and the
employee fails to allege the retaliatory act or a retaliation claim in the subsequent
charge, the retaliatory act ordinarily will not reasonably relate to the charge.” Id.
(emphasis added); see also Hopkins, 1998 WL 702339, at *3.
In Seymore, the plaintiff filed a discrimination complaint with the state
human rights commission and was subsequently discharged from her job. She
filed an EEOC complaint nine days after her termination which alleged race and
sex discrimination. In district court, though, plaintiff also alleged retaliation.
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See Seymore, 111 F.3d at 796. This court found the plaintiff had failed to
exhaust administrative remedies on the retaliation claim because she was aware of
the facts constituting that claim at the time of her EEOC filing. See id. at 799-
800. This case is analogous to Seymore. All of Mr. Simms’ allegations of pre-
1995 retaliation concerned facts occurring prior to the filing of the second EEOC
complaint. Thus, Mr. Simms does not qualify for the “reasonably related”
exception, and we may not excuse his failure to exhaust his administrative
remedies with respect to his pre-1995 retaliation claims. We affirm the district
court's grant of summary judgment in favor of defendant on these claims. 3
II. Race Discrimination Claim - Pretext Analysis
In determining whether to grant summary judgment on a Title VII claim, we
apply the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this approach, the plaintiff initially bears the
burden of production to establish a prima facie case of a Title VII violation. See
McDonnell Douglas, 411 U.S. at 802. “To carry the initial burden of establishing
a prima facie case of race discrimination for a failure to promote claim, the
plaintiff must typically show that he or she (1) belongs to a minority group; (2)
was qualified for the promotion; (3) was not promoted; and (4) that the position
3
While plaintiff also included the post-1995 retaliation claims in his brief,
he concedes that he is not attempting to relitigate these claims, upon which a jury
passed judgment in Simms II.
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remained open or was filled with a non-minority.” Reynolds v. School Dist. No.
1, Denver, Colo., 69 F.3d 1523, 1534 (10th Cir. 1995). Once a plaintiff has met
this burden, discriminatory intent on the part of the defendant is presumed and the
burden shifts to the defendant to “articulate a facially nondiscriminatory reason
for the challenged employment action.” Id. at 1533; see also Beaird v. Seagate
Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998), cert. denied, -- S. Ct. --, 67
U.S.L.W. 2182 (Dec. 14, 1998). If the defendant provides a nondiscriminatory
reason for the employment action, the plaintiff may defeat summary judgment by
presenting sufficient evidence such that a reasonable jury could conclude that the
proffered nondiscriminatory reason for the employment action is pretextual, that
is, “unworthy of belief.” See Beaird, 145 F.3d at 1165 (quoting Randle v. City of
Aurora, 69 F.3d 441, 451 (10th Cir. 1995)). But cf. id. at 1176 (Tacha, J.,
concurring in part, dissenting in part) (“Not only must the plaintiff produce
evidence of pretext, but the pretextual evidence must be of the nature or quality
from which a reasonable jury could infer illegal discrimination.”). Evidence of
pretext may include, but is not limited to, the following: prior treatment of
plaintiff; the employer’s policy and practice regarding minority employment
(including statistical data); disturbing procedural irregularities (e.g., falsifying or
manipulating hiring criteria); and the use of subjective criteria. See Colon-
Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir. 1984); see also Beaird, 145 F.3d at
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1168.
Plaintiff has made a prima facie showing of race-based discrimination. He
was qualified for the position of Fire and Safety Officer Supervisor, but
DMHSAS awarded the job to Mr. Valley, a non-minority. However, DMHSAS
has advanced a nondiscriminatory reason for its decision to promote Mr. Valley
over Mr. Simms: Mr. Valley was more qualified because he had significantly
greater supervisory experience. Indeed, the record reflects that Mr. Valley’s
supervisory experience far exceeds that of Mr. Simms. Consequently, the issue
becomes whether Mr. Simms has provided sufficient evidence that the reason
advanced by DMHSAS is pretextual.
Mr. Simms offers a variety of evidence that he claims shows pretext.
Although he does not directly attack the truthfulness of defendant’s
nondiscriminatory reason for promoting Mr. Valley (that Mr. Valley did not have
more supervisory experience than Mr. Simms), Mr. Simms attempts to
demonstrate that supervisory experience was not the true reason for the
defendant’s promotion decision. After careful review, we find that the evidence
offered by Mr. Simms, even when taken in the light most favorable to plaintiff, is
insufficient for a reasonable jury to conclude that defendant’s proffered reason for
failing to promote Mr. Simms is “unworthy of belief.”
Mr. Simms claims that various “procedural irregularities” lead to an
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inference of pretext. The alleged irregularities include the decision to have a
second round of interviews, testimony that the candidate with the highest first-
round score is often selected for the job, the emphasis on supervisory experience
in the job posting, and the fact that Stand LaBoon, the hospital superintendent, sat
on the second round interview panel when he usually only interviews candidates
for more senior positions. However, these allegations of procedural irregularities
do not support a reasonable inference of pretext because they are consistent with
the defendant’s published policies for selecting candidates for promotion. For
example, the job posting itself indicated a second round of interviews might be
held, and this was consistent with DMHSAS policy. Similarly, the fact that
Simms scored slightly higher in the first round of interviews 4 does not show
pretext, as the difference in scores is minimal and plaintiff provides no evidence
showing DMHSAS has a policy of always hiring the candidate with the highest
first-round score. To the contrary, the difference between Mr. Simms’ and Mr.
Valley’s scores provides an explanation for why an additional round of interviews
was warranted. The emphasis on supervisory experience in the job posting also
raises no suspicions considering the job -- Fire and Safety Officer Supervisor.
Moreover, plaintiff has provided no evidence that the supervisory preference was
4
Mr. Simms scored 1,866 out of 2,000, whereas Mr. Valley scored 1,835
out of 2,000, a 1.55% difference.
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illegitimate or that it was unusual to include such a preference in a supervisor job
posting. Cf. Randle, 69 F.3d at 453-54 (denying employer’s summary judgment
motion in a failure to promote claim because employer’s assertion that plaintiff
was unqualified for a position due to insufficient education was called into
question by the fact that the person who got the job also did not meet the
education requirement listed in the job posting); Mohammed v. Callaway, 698
F.2d 395, 399-401 (10th Cir. 1983) (reversing entry of judgment for employer
where employer hired non-minority who did not meet specific job education
requirements over minority candidate who was fully qualified). Finally, the fact
that Stand LaBoon sat on the interview panel is not particularly troubling, since
he retained ultimate hiring discretion for the position. Additionally, Mr. LaBoon
ranked the two candidates equally in his evaluation, while the other two panel
interviewers scored Mr. Valley higher. In sum, there is nothing about the
defendant’s actions in the interview process to support a reasonable inference of
pretext.
Mr. Simms also argues that defendant based the decision not to promote
him on subjective criteria. He claims that the fact that he scored higher than Mr.
Valley in the first round of interviews is sufficient to show that factors other than
supervisory experience were involved in and led to DMHSAS’s promotion
decision. We disagree. As mentioned earlier, even though plaintiff had the
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highest score after the initial round of interviews, the small difference between
Mr. Simms’ and Mr. Valley’s scores is insufficient to indicate illegitimate factors
came into play in the second round of interviews. Cf. Rea v. Martin Marietta
Corp., 29 F.3d 1450, 1458 (10th Cir. 1994) (finding employer’s selection of a
younger employee who had a college degree for a position over an older employee
who had a higher departmental ranking but no degree created no reasonable
inference of pretext in an age discrimination suit where the stated reason for
hiring the younger employee was his degree). Mr. Simms places great weight on
the fact that he had greater education and training as a fireman, which he claims
made him more objectively qualified for the job. However, an employee’s “own
opinions about his . . . qualifications [do not] give rise to a material factual
dispute.” Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996). While Mr.
Simms may have had the edge in education and fire training, Mr. Valley had
substantially greater supervisory experience. When two candidates are equally
qualified in that they both possess the objective qualifications for the position and
neither is clearly better qualified, “it is within the employer’s discretion to choose
among them so long as the decision is not based on unlawful criteria.” Colon-
Sanchez v. Marsh, 733 F.2d 78, 82 & n.1 (10th Cir. 1984); accord Lujan v.
Walters, 813 F.2d 1051, 1057-58 (10th Cir. 1987).
In Colon-Sanchez, the first candidate had greater administrative and
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supervisory skills while the second had greater mechanical skills. Since the job
description at issue discussed significant administrative and supervisory
responsibilities, we held that the employer’s decision to hire the first candidate
based on his administrative background raised no question of pretext. See Colon-
Sanchez, 733 F.2d at 82. Similarly, DMHSAS’s decision to hire Mr. Valley based
on his supervisory experience is not the kind of subjective decision that, by itself,
suggests pretext. See Beaird, 145 F.3d at 1169 (finding hiring decision based on
employment performance grade over performance points, without more, “cannot
reasonably be thought to evidence pretext”). Our role is to prevent unlawful
hiring practices, not to act as a “super personnel department” that second guesses
employers’ business judgments. Verniero v. Air Force Academy Sch. Dist. No.
20, 705 F.2d 388, 390 (10th Cir. 1983); see also, e.g., Rabinovitz, 89 F.3d at 487.
Mr. Simms further asserts that defendant asked improperly subjective
second round interview questions, thereby demonstrating pretext. However, he
directs us to no questions that are unrelated to legitimate business considerations
or blatantly subjective. Moreover, as we discussed above, he provides no
evidence that he was so clearly better qualified than Mr. Valley that a jury could
reasonably conclude that DMHSAS based its decision on something other than its
proffered reason.
Mr. Simms also attempts to establish pretext by utilizing his employment
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history with DMHSAS to impute a discriminatory motive on the part of defendant.
For example, Mr. Simms suggests that Stand LaBoon and Carol Kellison, who
prevented him from immediately assuming his supervisory duties as Fire and
Safety Officer II in 1994, somehow manipulated the entire supervisor selection
process so that he would not receive the promotion. However, we can find
nothing in this record to indicate that Mr. LaBoon and Ms. Kellison’s
involvement in the interview process was so irregular or inconsistent with the
defendant’s established policies as to make its hiring explanation unworthy of
belief. To the contrary, their conduct is consistent with DMHSAS’s proffered
nondiscriminatory reason for the promotion decision. While the fact that Mr.
LaBoon and Ms. Kellison withheld Mr. Simms’ supervisory duties is relevant, on
this record, it is not enough to impute sinister motivations to them during the
supervisor selection process.
Similarly, Mr. Simms attempts to establish pretext by reference to his prior
settlement in Simms I, suggesting that because DMHSAS had settled a prior
discrimination claim, its decision not to promote him to Fire and Safety Officer
Supervisor was based on discriminatory motives rather than the reason proffered
by defendant. Such a conclusive assertion is not probative of pretext unless the
prior incidences of alleged discrimination can somehow be tied to the employment
actions disputed in the case at hand. Cf. Rea v. Martin Marietta Corp., 29 F.3d
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1450, 1457 (10th Cir. 1994) (holding that isolated comments in an ADEA case
must be linked to challenged employment action in order to show discriminatory
animus); Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir.
1994) (finding stray comments in ADEA case were insufficient to create triable
issue of fact unless they were related to the challenged action). Mr. Simms fails
to establish such a connection, for he does not link any of the parties involved in
the current employment action, particularly Mr. LaBoon or Ms. Kellison, to the
employment actions that were the subject of the Simms I litigation.
In addition, Mr. Simms attempts to establish pretext by alleging that he was
disciplined for reading on the job, whereas white employees were not. That event
occurred in April 1991, years before defendant made the promotion decision at
issue in this case. Thus, it is also not sufficiently connected to the employment
action in question to demonstrate pretext. See Rea, 29 F.3d at 1457; Cone, 14
F.3d at 531.
Finally, Mr. Simms makes much of the fact that the EEOC had issued a
favorable letter of determination regarding his claim of race-based failure to
promote, and that he had presented the letter to the district court. However, when
the independent facts before the district court judge fail to establish a genuine
issue of material fact, a favorable EEOC letter of determination does not create
one. But see Mitchell v. Office of Los Angeles County Superintendent of Schs.,
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805 F.2d 844, 847 (9th Cir. 1986) (stating that “an EEOC finding of reasonable
cause is ‘sufficient at least to create an issue of fact’ requiring proceedings
beyond the summary judgment stage” (quoting Gifford v. Atchison, Topeka, &
Santa Fe Ry. Co., 685 F.2d 1149, 1156 (9th Cir. 1982)).
Even considering Mr. Simms’ circumstantial evidence in its totality, as we
must, see Beaird, 145 F.3d at 1174, plaintiff has provided insufficient evidence
for a reasonable jury to conclude that defendant’s proffered reason for not
promoting Mr. Simms -- that Mr. Valley was more qualified -- was unworthy of
belief. Consequently, plaintiff has failed to meet his burden of production and the
district court appropriately granted summary judgment in favor of defendant on
Mr. Simms’ race discrimination claim.
Conclusion
For the reasons discussed above, we conclude that the district court did not
err in granting summary judgment in favor of the defendant in either its
September 3 or October 23 Order. AFFIRMED.
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