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The full case caption appears at the end of this opinion. TO: ALL RECIPIENTS OF THE OPINION RE: 97-1239, McGarry v. Board of County Commissioners Filed on April 29, 1999 The slip opinion filed April 29, 1999, contains two typographical errors. Please note the following corrections: 1. On page 9, footnote number one is misnumbered. The footnote should befootnote number two. All subsequent footnotesshould be renumbered accordingly. 2. On page 13, footnote number four (previously footnote number 3), thetext of the footnote should read: Because the district court erred in denying McGarry’s reversediscrimination claim due to direct evidence of discrimination, weneed not consider McGarry’s claim on Notari/McDonnell Douglas analysis. A copy of the corrected opinion is attached. Sincerely, Patrick Fisher, Clerk of Court Keith Nelson Deputy Clerk encl. HOLLOWAY, Circuit Judge. Plaintiff/Appellant Michael J. McGarry (McGarry) filed suit againstdefendant/appellee Board of County Commissioners of Pitkin County, Colorado (Board). McGarry’s second amended complaint alleges that the Board engaged in reversediscrimination by not hiring McGarry on two occasions and retaliated against McGarry bynot considering him for employment after he filed a charge of discrimination with the EqualEmployment Opportunity Commission (EEOC), these actions constituting violations of TitleVII of the Civil Rights Act, 42 U.S.C. �� 2000e-2(a)(1) and 2000e-3. The Boardfiled amotion for summary judgment as to all claims. The district court referred the matter to amagistrate judge who recommended denial of the Board’s motion. The district court rejectedthe magistrate judge’s recommendation and granted summary judgment on the reversediscrimination claims and the retaliation claim in favor of the Board. McGarry timely appeals the district court’s grant of the motion for summary judgmentin favor of the Board. We have jurisdiction pursuant to 28 U.S.C. � 1291. We reverse andremand for proceedings consistent with this opinion. I McGarry is a white male who is a resident of Pitkin County, Colorado. PitkinCounty is located in the Roaring Fork Valley. In April 1993, in response to a newspaperadvertisement, I App. at 93, McGarry submitted a written application for a position as abuilding maintenance worker at the Pitkin County Airport Building MaintenanceDepartment. II App. at 128-31. Thirteen people applied for the position. FilibertoMeraz, a male of Hispanic background, was hired to fill the position. II App. at 197. Scott Mackey was the Board’s facilities maintenance manager with authority tohire and fire people for the crew that takes care of the Aspen airport, inter alia. II App.at138. Mackey testified in his deposition that Meraz was hired in compliance with a Boardpolicy to prefer applicants who are current County employees over qualified, non-employeeapplicants. I App. at 74; II App. at 144. At the time of his hiring, Meraz wasemployed in another department of Pitkin County. II App. at 197. In January 1994, McGarry submitted a written application for another buildingmaintenance position. There were five other applicants. McGarry was interviewed butwas not selected; instead, Vernard Oliver, an African-American male, was hired to fill theposition. II App. at 197. If Oliver had declined the offer of employment, Mackey wouldhave offered the position to McGarry. II App. at 142. Mackey notified McGarry in February 1994 that McGarry had not been selectedfor the position. II App. at 144.5. However, McGarry said Mackey told him that hewould keep McGarry’s application on file and would contact McGarry if a similar jobdeveloped. II App. at 156. The Board’s policy is to keep applications on file, II App. at192, but consider them for relevant positions upon request by the applicant to activate theapplication. I App. at 46. After learning he had not been selected for the January 1994 job, McGarrycontacted Cheryl Cumnock (Cumnock), Pitkin County’s Director of Personnel. II App.at 165. As the Director of Personnel, her duties included overseeing the generalmanagement policies for the personnel department in the organization. Though she wasnot involved in the hiring process, when McGarry came to Cumnock they beganreviewing the circumstances of the hiring of Meraz for the April 1993 position. II App. at172. Cumnock spoke with Mackey on February 10, 1994 about McGarry’s applications. II App. at 175. At this meeting, Cumnock took notes, including writing down a notationthat she was concerned McGarry might file an EEOC charge. II App. at 176. Cumnock met with McGarry twice in February 1994 to discuss her investigativeefforts. At the first meeting, McGarry presented Cumnock with a list of questions he hadprepared concerning the hiring process. Cumnock made notations on the list. II App. at136, 182. One of the questions concerned the Board’s hiring preference for Roaring ForkValley residents. Following reference to the policy, Cumnock wrote in the word”minorities.” II App. at 136, 182. At her deposition, Ms. Cumnock agreed that”Minorities” was in her handwriting but she did not recall what this meant. Id. at 182. Atthis meeting Cumnock told McGarry that Oliver was hired because he was betterqualified. II App. at 175-76. Cumnock and McGarry met again on February 16, 1994. McGarry statesCumnock then told him that the Board no longer took the position that Meraz and Oliverwere better qualified candidates. Cumnock told McGarry: ” . . . these hires were minorityhirings . . .”, II App. at 159, “ the last three hirings of [maintenance] workers wereminorities, affirmative action hirings, two blacks and an Hispanic . . . .” II App. at 159. Cumnock denies having made these statements. II App. at 182. In response to plaintiff’sinterrogatories the Board asserted that Meraz and Oliver “were hired in compliance withPitkin County’s Affirmative Action Plan.” Id. at 197. Two policy statements issued by Pitkin County are relevant. The first was astatement “Policy 115 Recruitment” dated February 26, 1991, which provided that when ajob vacancy occurs, first consideration for appointment will be given to Countyemployees working in the department, if qualified. II App. at 190. The policy statementalso provided that when a vacancy is not filled by a current qualified County employee, itis the County’s desire to give adequate notice to candidates residing in the Roaring ForkValley. Id. at 191. Paragraph 10 of Policy 115 provided: Whenever possible, current County employees should be given preference inselection for interviews and/or the job vacancy. Candidates residing within theRoaring Fork Valley should also receive preference in the consideration ofapplications. Minorities, women, disabled and other protected-group applicantsshould also be given every consideration and opportunity for employment oradvancement. II App. at 192. On the same date (February 26, 1991) when Policy 115 was issued, the Countyalso issued “Policy 140 Equal Employment Opportunities” which provided in its secondparagraph: II. PROCEDURE In fair employment practices, the County will: . . . (2) Make employment decisions upon an individual’s qualifications and jobrelated requirements of the position, giving due consideration to the meaning ofthe phrase, “is an affirmative action employer.” This means that minoritycandidates who are qualified for a position, but not necessarily the best qualified,are strongly considered for hire over non-minority candidates; (3) Ensure that all personnel practices and actions will be administered withoutregard to race, color, religion, sex, age, national origin or handicap; (4) Ensure that minorities and women receive equal opportunity for training andmanagement development programs . . . . II App. at 132. On March 3, 1994, McGarry filed a charge of discrimination with the EqualEmployment Opportunity Commission (EEOC), alleging he had not been hired for eitherposition due to his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.� 2000e-2(a)(1). [FOOTNOTE 1] I App. at 86. TheCommission conducted an investigation, reviewingboth parties’ submissions, and issued a determination letter that the evidence presented toit did not establish that the Board violated Title VII. I App. at 87. In April 1994 the County advertised another building maintenance workerposition. II App. at 210. McGarry did not learn of the position opening until after theapplication deadline had expired and thus did not submit an application. Though havinghis application on file, the Board did not consider him for the position. II App. at 144. The Board’s actions on that occasion are the grounds asserted for McGarry’s retaliationclaim. II A The Rulings of the Magistrate Judge and the District Judge The trial judge referred the Board’s summary judgment motion to a magistratejudge. The magistrate judge recommended denial of the motion, concluding thatMcGarry had presented material facts on both the reverse discrimination and theretaliation claims sufficient to require resolution by a fact-finder. With respect to thereverse discrimination claim, the magistrate judge relied on Cumnock’s statement toMcGarry that Meraz and Oliver were minority hirings as evidence of reversediscrimination. III App. at 283, 290-91. The magistrate judge further found Mackey’spromise to consider McGarry’s application for future job openings, III App. at 292,Mackey’s knowledge that McGarry had filed a charge with the EEOC in March 1994, id.at 293, and the Board’s subsequent failure to consider McGarry for the April 1994position, to be evidence of the Board’s adverse action in retaliation against McGarry’sprotected activity. III App. at 292. The Board timely objected to the magistrate judge’s recommendation. The districtjudge rejected the magistrate judge’s recommendation and granted the motion forsummary judgment on both the first and second claims of plaintiff of reversediscrimination and his claim of retaliation under Title VII. IV App. at 344. Incorporatingby reference the background facts outlined in the magistrate judge’s recommendation, IVApp. at 333, and applying this circuit’s decision in Notari v. Denver Water Dep’t, 971F.2d 585, 588 (10th Cir. 1992), inter alia, as the law applicable for a claim of reversediscrimination, the district judge concluded McGarry had not presented facts sufficient toestablish a prima facie case of reverse discrimination. IV App. at 340. First, the court held that the plaintiff had not presented sufficient evidence to showthat the Board was the unusual employer who discriminates against the majority, IV App.at 336, or that but for his race plaintiff would have been hired. IV App. at 340. Thus,McGarry could not establish a Notari presumption of reverse discrimination. Second, the court rejected the magistrate judge’s view that Cumnock’s statementthat Meraz and Oliver were “minority hirings” was evidence of direct discrimination. Thejudge reasoned that because Cumnock was not involved in the hiring process, herstatement was no more than an expression of personal opinion. IV App. at 338. Third,even if McGarry had established a prima facie case of reverse discrimination, the courtconcluded the Board had offered a legitimate, non-discriminatory reason for hiring Merazand Oliver which McGarry had not shown to be pretextual. IV App. at 340-41. The district judge also rejected the magistrate judge’s recommendation withrespect to the retaliation claim. The court concluded there was no violation because theBoard had a policy of considering old applications only upon request of the applicant andthe evidence was undisputed that McGarry did not make such a request. Thus the judgefound that the defendant Board had provided evidence that dispelled an inference ofdiscrimination. IV App. at 343-44. B The Standard for Summary Judgment We review a grant of a motion for summary judgment de novo, applying thesamelegal standard used by the district court. See Byers v. City of Albuquerque,150 F.3d1271, 1274 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings,depositions, answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). Weview the evidence, and all reasonable inferences drawn therefrom, in the light mostfavorable to the nonmoving party. See Byers, 150 F.3d at 1274. The Board, as the moving party, bears the initial burden of showing there are nodisputed genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986). Because the Board has met its initial burden, [FOOTNOTE 1] the burden shifted to McGarry toshow specific facts supporting a genuine issue for trial as to all of the essential elementsof his case. Celotex, 477 U.S. at 324; Jenkins v. Wood, 81 F.3d 988, 990 (10thCir.1996). “The mere existence of a scintilla of evidence in support of the nonmovant’sposition is insufficient to create a dispute of fact that is ‘genuine’; an issue of material factis genuine only if the nonmovant presents facts such that a reasonable jury could find infavor of the nonmovant.” Lawnmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997); see also Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). C McGarry’s Reverse Discrimination Claims Title VII of the Civil Rights Act of 1964 declares it unlawful for an employer “tofail or refuse to hire or to discharge any individual, or otherwise to discriminate againstany individual with respect to his compensation, terms, conditions, or privileges ofemployment, because of such individual’s race, color, religion, sex, or national origin . ..” 42 U.S.C. � 2000e-2(a)(1). Title VII prohibits discrimination against whites as well as non-whites. McDonaldv. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976); Taken v. Oklahoma Corp.Comm’n, 125 F.3d 1366, 1368 (10th Cir. 1998). There are two general methods bywhich a plaintiff may proceed on a reverse discrimination claim. The plaintiff mayproceed by relying on a version of the McDonnell Douglas Corp. v. Green, 411 U.S.792(1973), burden-shifting analysis to test whether a person who is a member of ahistorically favored group is entitled to the McDonnell Douglas presumption ofdiscrimination. See Taken, 125 F.3d at 1369; Reynolds v. School Dist. No.1, 69 F.3d1523, 1534 (10th Cir. 1995); Notari v. Denver Water Dept., 971 F.2d 585, 588-89 (10thCir. 1992). In addition, a plaintiff may recover if the plaintiff can demonstrate he or she is thevictim of reverse discrimination by “direct evidence of discrimination, or indirectevidence sufficient to support a reasonable probability, that but for the plaintiff’s statusthe challenged employment decision would have favored the plaintiff.” Notari, 971F.2dat 590; see also Taken, 125 F.3d at 1369. We are persuaded that McGarrypresentedsufficient direct evidence of reverse discrimination to avoid summary judgment. We notethese facts in the record showing a genuine issue on McGarry’s claim that the Boarddiscriminated against McGarry by hiring Meraz and Oliver over him. After McGarryprovided a written list of questions to her, Cumnock, the County Personnel Director, IIApp. at 165, conducted an investigation into why McGarry had not been hired. II App. at172, 182. On the written question list, Cumnock made the notation “minorities” next toone of McGarry’s questions though in her deposition she said she did not recall what shemeant by that notation; she acknowledged the written “minorities” notation was in herhandwriting. II App. at 182. As noted earlier, McGarry testified by deposition that Ms. Cumnock had told him”these hires [Meraz and Oliver] were minority hiring . . . ,” II App. at 159, and that “thelast three hirings of maintenance workers were minorities, affirmative action hirings, twoblacks and an Hispanic . . . .” II App. at 159. While Cumnock denied making thesestatements, at the summary judgment stage we must give the benefit of the doubt toMcGarry. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Further,inassessing the record, the shift in Ms. Cumnock’s story from relying on Meraz’s andOliver’s assertedly better qualifications to relying on their being “minorities” is indicativeof pretext. [FOOTNOTE 2] The Board argues that Cumnock’s statements are not evidence of discriminationbecause she did not possess the authority to hire McGarry, Meraz or Oliver. Thus, theBoard asserts, her statements amount to mere personal opinion. We disagree. Despite thefact that she did not exercise hiring authority, Cumnock conducted an investigation as towhy McGarry was refused employment. As noted, she recorded her findings and toldMcGarry that Oliver and Meraz were “minority hirings . . . affirmative action hirings . . ..” II App. at 159. These were not the statements of an underling without significantresponsibility. As noted earlier, as Personnel Director for the County, Ms. Cumnock hadthe duty of overseeing the general management policies of the personnel department inthe organization. II App. at 165. Thus when she reported these conclusions after herinvestigation of the Meraz and Oliver hirings over McGarry, these statements were withinthe scope of her agency or employment. Indeed, Ms. Cumnock recorded in her notesinformation obtained from Mackey about the hiring process. II App. at 181. At this summary judgment stage of this case, we must view all such evidence andthe reasonable inferences drawn therefrom in the light most favorable to McGarry. Doingso, we hold that there was sufficient direct evidence of reverse discrimination to survivesummary judgment. [FOOTNOTE 3] Ms. Cumnock’sstatements that those hired were not betterqualified than McGarry and that these hirings were minority affirmative action hirings,statements made against the backdrop of the County’s Policy Statements, do constitutedirect evidence that supports an inference of reverse discrimination. [FOOTNOTE 4] D McGarry’s Retaliation Claim The district court also granted the Board’s motion for summary judgment withrespect to McGarry’s retaliation claim. Title VII makes it “an unlawful employmentpractice for an employer to discriminate against any of his employees or applicants foremployment . . . because he has opposed any practice made an unlawful employmentpractice by this subchapter . . . or because he has made a charge, testified, assisted, orparticipated in any manner in an investigation, proceeding, or hearing under thissubchapter.” 42 U.S.C. � 2000e-3(a). Title VII retaliation claims generally proceed under the McDonnell-Douglasburden-shifting analysis. See Sauers v. Salt Lake County, 1 F.3d 1122, 1128(10th Cir.1993). To establish a prima facie case of retaliation under Title VII, McGarry must show:(1) that he engaged in protected opposition to discrimination; (2) adverse action by theBoard subsequent to the protected activity; and (3) a causal connection betweenMcGarry’s protected opposition and the adverse action. Griffin v. Colorado, 17 F.3d1323 (10th Cir. 1994); Archuleta v. Colorado Dept. of Institutions, Div. of Youth Servs.,936 F.2d 483, 486 (10th Cir. 1991). McGarry clearly meets the first element of the retaliation test because his filing ofthe EEOC charge on March 3, 1994, is an act of protected opposition to discrimination. We also feel that the failure to consider McGarry for the position of building maintenanceworker, advertised in April 1994, satisfies the “adverse action” prong. [FOOTNOTE 5] We are persuaded that McGarry has shown sufficient facts to establish a causalconnection between his March 1994 EEOC charge and the Board’s failure to consider hispreviously rejected application for the April 1994 position. The requisite causalconnection may be shown by producing “evidence of circumstances that justify aninference of retaliatory motive, such as protected conduct closely followed by adverseaction.” Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.1982). McGarry has submitted evidence that he was qualified for the April 1994 position. He also has shown that he was promised by Mackey in January 1994 that Mackey wouldkeep McGarry’s application on file and notify McGarry of any future openings. Countypolicy states that when a vacancy is announced, personnel will consider both respondingapplications and applications already on file. In March 1994 McGarry filed his EEOCcharge. One month later, a position opened that McGarry was qualified for, but he wasnot considered for the position. The record shows Mackey was informed of McGarry’sEEOC charge prior to the date the vacant position was announced. Clearly, for purposesof summary judgment, this evidence and the reasonable inferences drawn therefrom,together with the close temporal relationship between the EEOC charge and the failure toconsider McGarry’s application, demonstrate that McGarry has met his burden ofestablishing a prima facie case of retaliation. See Candelaria v. EG&G EnergyManagement, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994). The burden then shifted to the Board to show a legitimate reason for notconsidering McGarry’s prior application. The Board proffers two reasons for notconsidering McGarry’s prior application. First, the Board’s practice is to not considersuch applications unless the applicant specifically notifies the Board that he or she wishesto reactivate a prior application for a particular job opening. Here, the evidence isundisputed that McGarry did not provide such specific notice. Second, McGarry wasemployed elsewhere in April 1994. While we view the second proffered reason asinsufficient, we are persuaded that the Board’s first reason � its practice of not activatingprior applications unless specifically notified � sufficient to shift the burden to McGarryto show the Board’s reason is a mere pretext for retaliation. The district court held that McGarry failed to sustain his burden to show theBoard’s reasons were pretextual. We disagree. McGarry submitted evidence that inFebruary 1994, Mackey apologized for not having called McGarry about the secondposition McGarry applied for; that Mackey said he would keep McGarry’s applicationand if another similar job developed, Mackey would contact McGarry about it. II App. at156. This showing created an inconsistency and a factual dispute as to the genuiness ofthe Board’s alleged practice of reviewing prior applications only upon specific request. This fact issue must be resolved by the fact-finder. Accordingly, the summary judgment is REVERSED and the causeisREMANDED for further proceedings on the two reverse discrimination claims and theretaliation claim. :::FOOTNOTES::: FN1 “It shall be an unlawful employmentpractice for an employer . . . to fail or refuseto hire or to discharge an individual, or otherwise discriminate against any individual withrespect to his compensation, terms, conditions, or privileges of employment, because of suchindividual’s race, color, religion, sex, or national origin . . . .” FN1 The Board submitted the following in itsMotion for Summary Judgment andMemorandum Brief in Support Thereof to show that there were no disputed facts regardingMcGarry’s reverse discrimination and retaliation claims: a letter to EEOC from CherylCumnock showing that, as of February 1, 1994, eight of eleven employees with the PitkinCounty Airport Building Maintenance Department were white, I App at 43; statements fromMackey’s deposition that indicate Meraz was hired pursuant to a preference for currentcounty employees, id. at 57-58; statements made by Cumnock in her depositionstating thatcounty employees were not hired in accordance with an affirmative action plan, id. at80; theEEOC’s determination letter stating its investigation did not establish a violation of Title VIIby the defendant Board, id. at 87 (the determination letter would be admissible underFed.R. Evid. 803(8)(c) and Barfield v. Orange County, 911 F.2d 644, 649 (11th Cir. 1990));andOliver Vernard’s Application for employment, which provides Vernard’s experience andqualifications for the airport maintenance position, id. at 97-98. Together, thesesubmissionsare sufficient for defendant Board to satisfy its initial burden to support a motion forsummary judgment. FN2 Though neither party raises the issue, weassume that Cumnock’s statements areevidence that would be admissible at trial, as required by Fed. R. Civ. Pro. 56(c), because noobjection to the statements’ inclusion in McGarry’s Opposition to the Board’s summaryjudgment motion was raised. See Thrasher v. B&B Chem. Co., Inc., 2F.3d 995, 998 (10thCir. 1993). FN3 Because the district court erred in denyingMcGarry’s reverse discrimination claimdue to direct evidence of discrimination, we need consider McGarry’s claim on Notari/ McDonnell Douglas analysis. FN4 For example, we note again Policy 140which provided in part that the County willgive due consideration to the meaning of the phrase “is an affirmative action employer . . . This means that minority candidates who are qualified for a position, but not necessarily thebest qualified, are strongly considered for hire over non-minority candidates.” II App. at132(emphasis added). Here the direct evidence from Ms. Cumnock’s admissions must beweighed together with the policy statements. Together we feel they can support an inferenceof reverse discrimination. Thus McGarry’s reverse discrimination claims should not havebeen dismissed on summary judgment. FN5 The Board does not challenge the districtcourt’s assumption that McGarry satisfiedthis element of the retaliation claim.
MICHAEL J. MCGARRY,Plaintiff-Appellant, v. BOARD OF COUNTYCOMMISSIONERS OF THE COUNTYOF PITKIN, STATE OF COLORADO, Defendants-Appellees. No. 97-1239 United States Court of Appeals for the Tenth Circuit Appeal from the United States District Court, District of Colorado (D.C. No. 95-S-1677) Filed April 29, 1999 Before EBEL, HOLLOWAY and MURPHY, Circuit Judges. Thomas E. Goodreid, Denver, Colorado, for Plaintiff-Appellant. Cathy Havener Greer (Malcolm S. Mead, with her on the brief), of Hall & Evans, L.L.C.,Denver, Colorado, for Defendants-Appellees.
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