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
3
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
4
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
6
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;
12
(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.
14