F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 1 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DOROTHY A. TAKEN; TAWANA A.
WHITE,
Plaintiffs-Appellants,
v. No. 96-6312
OKLAHOMA CORPORATION
COMMISSION, a political subdivision
of the State of Oklahoma,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-95-1407-A)
Submitted on the briefs:
Frederick W. Southern, Jr., Oklahoma City, Oklahoma, for Plaintiffs-Appellants.
Rachel Lawrence Mor, Oklahoma Corporation Commission, Office of General
Counsel, Oklahoma City, Oklahoma, for Defendants-Appellees.
Before KELLY and HENRY, Circuit Judges, and DOWNES, * District Judge.
*
Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
DOWNES, District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiffs appeal from the district court’s entry of summary judgment in
defendant’s favor on their claims of race and sex discrimination brought pursuant
to Title VII, 42 U.S.C. §§ 2000e through 2000e-17. See Taken v. Oklahoma
Corp. Comm’n, 934 F. Supp. 1294 (W.D. Okla. 1996). Plaintiffs, who are white,
claim they were not selected for a promotion that was awarded to an unqualified
black woman because she was romantically involved with the person who made
the promotion decision, a black man.
We review the grant of summary judgment de novo, applying the same
standard as the district court. See Notari v. Denver Water Dep’t, 971 F.2d 585,
587 (10th Cir. 1992). Summary judgment is appropriate where there are no
genuinely disputed material facts and the moving party is entitled to a judgment
as a matter of law. See United States v. Sackett, 114 F. 3d 1050, 1051 (10th Cir.
1997). We review the record in the light most favorable to the party opposing
summary judgment. See id.
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For their race discrimination claim, plaintiffs allege that Bill Burnett, a
black man, promoted Tansy Preston, a black woman, even though plaintiffs were
more qualified for the position than Ms. Preston. According to plaintiffs, the
reason for promoting Ms. Preston was her romantic relationship with Mr. Burnett.
A committee comprised of two white men and Mr. Burnett made the decision to
promote Ms. Preston.
Title VII protects members of both majority and minority groups from
race-based discrimination. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 278-80 (1976). Generally, a prima facie case of race discrimination under
Title VII requires a plaintiff to show (1) that she is a member of a racial minority,
(2) that she applied and was qualified for a vacant job, (3) that despite her
qualifications she was rejected, and (4) that the employer continued to seek
applicants with plaintiff’s qualifications. See Notari, 971 F.2d at 588 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Here, because plaintiffs are members of a historically favored group, they
are not entitled to the McDonnell Douglas presumption --“that is, the presumption
that unless otherwise explained, discrimination is more likely than not the reason
for the challenged decision” -- unless they demonstrate the existence of
“background circumstances that support an inference that the defendant is one of
those unusual employers who discriminates against the majority.” Notari, 971
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F.2d at 589; accord Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir.
1995). Plaintiffs did not attempt to make this showing, claiming instead that they
were not required to do so because both the decision-maker and the person
promoted are black. We need not address whether a white plaintiff is relieved of
her obligation to show the requisite background circumstances where
discrimination is perpetrated by members of a different race because, here,
plaintiffs failed to show that the employment decision was made solely by
non-whites. See Taken, 934 F. Supp. at 1296 (district court’s unchallenged
finding that promotion committee was comprised of two white men and one black
man).
Although plaintiffs failed to make a prima facie case under McDonnell
Douglas, they can demonstrate that they were victims of reverse race
discrimination by “direct evidence of discrimination, or indirect evidence
sufficient to support a reasonable probability, that but for the plaintiff[s’] status
the challenged employment decision would have favored the plaintiff[s].” Notari,
971 F.2d at 590. Under this alternative formulation, it is not enough to allege that
a plaintiff was qualified and that someone of a different race was promoted. See
id. Rather, the plaintiff must allege and produce evidence sufficient to support a
reasonable inference that but for the plaintiff’s status, the challenged decision
would not have occurred. See id.
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Plaintiffs allege that Mr. Burnett’s racial motivation to promote Ms.
Preston was demonstrated by his statements that “someone has to look after these
black girls,” and that a lesser position than the one awarded “would not be a
promotion for Tansy [Preston].” Plaintiffs “must demonstrate a nexus exists
between these allegedly discriminatory statements and [the decision not to
promote either plaintiff].” Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526,
531 (10th Cir. 1994). The statements do not refer to either of the plaintiffs, or to
the challenged promotion decision. Also, the evidence does not support an
inference that but for plaintiffs’ status as whites, one of them would have been
promoted. See Notari, 971 F.2d at 590. Therefore, we determine that plaintiffs
failed to present a prima facie case of race discrimination under Title VII.
We turn to plaintiffs’ sex discrimination claim. Title VII provides that “[i]t
shall be an unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). Little legislative history exists on
Title VII’s prohibition against discrimination based on sex, because the
prohibition was included in Title VII shortly before passage. See Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 63-64 (1986). The principal goal of Title VII
is to eliminate discrimination in employment based on differences of race, color,
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religion, sex or national origin. See Trans World Airlines, Inc. v. Hardison,
432 U.S. 63, 71 & n.6 (1977). Therefore, we hold that Title VII’s reference to
“sex” means a class delineated by gender, rather than sexual affiliations. See
Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)
(Title VII intended to eliminate disparate treatment of men and women). In so
holding, we join the other circuits that have addressed this issue. See Becerra v.
Dalton, 94 F.3d 145, 149-50 (4th Cir. 1996) (no sexual discrimination under
Title VII even if supervisor granted plaintiff’s coworker job benefits in exchange
for sexual favors from coworker), cert. denied, 117 S. Ct. 1087 (1997); Miller v.
Aluminum Co. of Am., 679 F. Supp. 495, 501 (W.D. Pa.) (“[P]referential
treatment on the basis of a consensual romantic relationship between a supervisor
and an employee is not gender-based discrimination.”), aff’d mem., 856 F.2d 184
(3d Cir. 1988); DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 306-07
(2d Cir. 1986) (“The proscribed differentiation under Title VII . . . must be a
distinction based on a person’s sex, not on his or her sexual affiliations.”);
cf. Ellert v. University of Tex., 52 F.3d 543, 546 (5th Cir. 1995) (claim that
plaintiff was discharged due to her knowledge of affair between supervisor and
another employee was not within Title VII’s ambit because employment decision
did not rely on gender).
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Plaintiffs cite King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), to support
their sex discrimination claim. King is distinguishable. There, the court ruled on
the type of evidence required to establish discrimination, see id. at 880-82, but
did not examine “whether Title VII affords a claim for relief for sex-based
discrimination to a woman who alleges that she was denied a promotion in favor
of another woman who had a sexual relationship with their supervisor,” because
that issue was not presented on appeal, id. at 883; see also Candelore v. Clark
County Sanitation Dist., 975 F.2d 588, 591-92 (9th Cir. 1992) (Kleinfeld, J.,
concurring) (pointing out that majority decision in that case does not address
whether plaintiff would have stated a claim of sex discrimination if she “had
provided cognizable evidence that a coworker received benefits [plaintiff] did not
because the coworker had an affair with a supervisor”).
Here, plaintiffs do not claim that they were denied employment benefits for
their refusal to submit to sexual advances. They have not shown that they were
subjected to a hostile working environment; indeed, they did not work with either
Mr. Burnett or Ms. Preston. Rather, they assert that their employer is liable under
Title VII solely because a supervisor preselected his paramour for a promotion
even though she was less qualified than either plaintiff. Taking plaintiff’s
allegations as true, we conclude that they do not state a claim for relief under
Title VII because they are based on a voluntary romantic affiliation, and not on
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any gender differences. Plaintiffs were in the same position as all men and all
other women would have been -- only Ms. Preston was considered for the
promotion because of her special relationship with Mr. Burnett. See DeCintio,
807 F.2d at 308. Favoritism, unfair treatment and unwise business decisions do
not violate Title VII unless based on a prohibited classification. Cf. EEOC v.
Flasher Co., 986 F.2d 1312, 1319 (10th Cir. 1992) (“Title VII does not make . . .
irrational employment [decisions] illegal.”). Because we decline to extend
Title VII to include consensual romantic involvements, we conclude that the
promotion was not based on a prohibited classification.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
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