Raymond J. DRAKE, Plaintiff-Appellant, v. CITY OF FORT COLLINS; Steve Burkett; Mike Powers; Bruce Glasscock; Jaime Mares; Howard “Bud” Reed; Don Vagge; Larry Estrada; Ed Stoner; Gerry Horak; Susan Kirkpatrick; Chuck Mabry; Loren Maxey; Bob Winokur, Defendants-Appellees.
No. 90-1026
United States Court of Appeals, Tenth Circuit
March 13, 1991
927 F.2d 1156 | 55 Fair Empl.Prac.Cas. 600 | 56 Empl. Prac. Dec. P 40,612 | 19 Fed.R.Serv.3d 930
Before LOGAN, MOORE and BALDOCK, Circuit Judges.
Kent N. Campbell, Anderson, Sommermeyer, Wick & Dow, Fort Collins, Colo., for defendants-appellees.
LOGAN, Circuit Judge.
Plaintiff Raymond J. Drake possesses considerable experience in law enforcement. Responding to a newspaper advertisement, he applied for employment to the police department of the City of Fort Collins, Colorado, in October 1987. Fort Collins requires police officer applicants to have two years of college education. Plaintiff‘s application indicated that he did not have the required two years of college, and his application was rejected at the outset. During the 1987 hiring period, 418 persons applied to be Fort Collins police officers;1 eight were black. Of the black applicants, only plaintiff was rejected as a result of the two-year college requirement.2
After the elimination of those without two years of college, the remaining applicants were allocated points based on education and law enforcement experience. Finally, a cutoff level for points was chosen, and applicants possessing points equal to or above that level were allowed to take the written examination. For the 1987 hiring period, the point cutoff level was set at thirty-five points.3 Six of the black applicants were eliminated because they had less than thirty-five points. The single remaining black applicant failed the City‘s written examination.
Plaintiff sued the City of Fort Collins, several of its council members, and particular officers and employees of the City and its police department, alleging violations of
Plaintiff is pro se, and we construe his pleadings liberally pursuant to Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). His original complaint clearly and articulately sets out his claims. He requested relief under
Upon defendants’ motion, the district court dismissed, apparently under
Plaintiff does not appeal the district court‘s dismissal of his Sec. 1988 claim and his pendent state claims. Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). Accordingly, our jurisdiction does not extend to matters omitted on appeal. Cunico v. Pueblo School Dist. No. 60, 917 F.2d 431, 444 (10th Cir.1990).
We review plaintiff‘s Title VII claims de novo, applying the same standard as the district court on summary judgment: whether any genuine issue of material fact is in dispute, and, if not, whether the substantive law was correctly applied. Applied Genetics Int‘l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
Plaintiff has asserted claims under both principal Title VII approaches: the “disparate impact” and “disparate treatment” theories. “[A] claim of disparate treatment ... embod[ies] a situation where ‘the employer simply treats some people less favorably than others because of their race, color, religion or national origin.’ A claim of disparate impact exists when ‘employment practices that are basically neutral in their treatment of different groups in fact fall more harshly on one group than another....’ ” Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 448 (10th Cir.1981) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977) (citation omitted)).
A
To establish a prima facie case of intentional racial discrimination under Title VII, plaintiff must show that:
- he is a member of a racial minority;
- he applied and was qualified for an available position;
- he was rejected despite those qualifications; and
- the position remained open and the employer continued to seek applicants from persons of plaintiff‘s qualifications.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see McAlester v. United Air Lines, 851 F.2d 1249, 1260 (10th Cir.1988) (McDonnell Douglas “establishes the model of proof for an individual disparate treatment case.“).
Under the disparate treatment theory, the thrust of plaintiff‘s case is that, compared with other like-qualified applicants, plaintiff was treated differently because of his race. It is not the employment practice itself that is being challenged, but its allegedly discriminatory application. Plaintiff alleges, and the evidence shows, that two white applicants, Boal and Svoboda, were allowed to take the written examination although neither of them had the required two years of college education.
Initially, we disagree with the district court‘s suggestion that plaintiff may not have established a prima facie case because the City of Fort Collins did not continue to recruit new applicants after plaintiff‘s rejection. While technically the application period was closed, it is undisputed that the City continued to screen its applicants to fill remaining available positions on the police force, including applicants Boal and Svoboda, who, like plaintiff, lacked the required two years of college. We conclude that plaintiff has made out a prima facie case of racial discrimination under the disparate treatment theory. Satisfaction of the McDonnell Douglas elements creates a presumption of discrimination. Patterson v. McLean Credit Union, 491 U.S. 164, 187, 109 S.Ct. 2363, 2378, 105 L.Ed.2d 132 (1989); Coe, 646 F.2d at 449.
Once plaintiff has established a prima facie case under this theory, the burden of production shifts to defendants to rebut the presumption of discrimination. Carey v. United States Postal Serv., 812 F.2d 621, 624 (10th Cir.1987). Defendants can meet their burden by disputing the plaintiff‘s facts, or by articulating a nondiscriminatory reason for the disparity of treatment. McAlester, 851 F.2d at 1260. The defendants’ explanation of their legitimate reasons must be clear and reasonably specific. Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981).
Defendants’ affidavit testimony here shows that white applicants Boal and Svoboda were Fort Collins community service officers, and that the chief of police had promised, before Fort Collins adopted the two-year college requirement, that they would be allowed to test for police officer openings. Defendants also state that they waived the college requirement for Fort Collins community service officers because they had adequate opportunity to observe the work habits and performance of those potential applicants. Defendants’ reasons are specific and reasonable and suffice to rebut the presumption of discrimination created by plaintiff‘s prima facie case.
The burden then shifts back to plaintiff, who must then show that the defendants’ reasons are a pretext for discrimination, i.e., the proffered reasons were not the true reasons for the hiring decision. Carey, 812 F.2d at 625. “[T]his burden ‘now merges with the ultimate burden of persuading the court that [appellant] has been the victim of intentional discrimination.’ ” Id. at 625-26 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). Plaintiff may meet this burden directly by a showing that racial discrimination actually motivated the defendants, or indirectly by demonstrating that the defendants’ reasons are unworthy of belief. Id. at 626. In a summary judgment setting, the plaintiff must raise a genuine factual question as to whether defendants’ reasons are pretextual. Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir.1985), modified, 784 F.2d 1407 (9th Cir.1986). Plaintiff can make an indirect showing of pretext with statistical evidence or examples of others receiving disparate treatment. McAlester, 851 F.2d at 1261. Plaintiff‘s disparate treatment claim must fail at this point, because he has not presented sufficient evidence to meet this burden.
Plaintiff has presented no direct evidence of discriminatory motive, nor has he disputed defendants’ facts. He also fails to present other indirect evidence which creates a doubt as to defendants’ motives in allowing the two white community service officers to take the written examination. Plaintiff attempts to show a general practice of discrimination by the City and its police force by alleging discriminatory treatment of the other black applicants, and alleging disparate impact resulting from other hiring practices used by defendants. However, defendants have met each of plaintiff‘s discriminatory treatment allegations with rational and neutral explanations, which plaintiff has not met with any showing of pretext.4 Additionally, plaintiff‘s disparate impact arguments lack statistical or factual support. Because plaintiff‘s allegations do not constitute evidence of discriminatory intent or impact, they are insufficient to raise factual questions about the defendants’ motives in allowing Boal and Svoboda to take the written examination. Therefore, they do not suffice as evidence of pretext.
B
“[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). In his disparate impact claim, plaintiff must show that an identified hiring practice “has a substantial adverse impact on a group protected by Title VII.” Lowe, 775 F.2d at 1004 (citing Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971)). Statistics may be used to show an unfair impact resulting from the complained of practice. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650, 109 S.Ct. 2115, 2121, 104 L.Ed.2d 733 (1989); Hawkins v. Bounds, 752 F.2d 500, 503 (10th Cir.1985).
Plaintiff‘s disparate impact claim fails because he has not met his initial burden. In both his original and amended complaints, plaintiff identifies the two-year college requirement as the discriminatory practice.6 The undisputed facts show that, during the relevant hiring period, he alone of all black applicants was rejected on the basis of this requirement. A sample of one is too small to demonstrate significant impact. See Thomas v. Metroflight, Inc., 814 F.2d 1506, 1509 (10th Cir.1987).
Even were we to use the eight black applicants to the Fort Collins police force during the 1987 hiring period as the smallest possible control group, however, plaintiff‘s rejection results in only a 12.5% impact on black applicants. Plaintiff does not dispute defendants’ evidence that more than 18% of white applicants during this hiring period were rejected because of the two-year college requirement. Because the facts show the two-year college requirement operated less harshly on black applicants than white applicants, we conclude that plaintiff failed to establish a prima facie case of disparate impact.
Only when plaintiff establishes a prima facie case does the burden shift to defendants to show business necessity. Lowe, 775 F.2d at 1004. Plaintiff failed to meet his initial burden under this theory; therefore, defendants are not required to establish the validity of the two-year college requirement. Nor are they required to consider or show consideration of alternatives to the education requirement in the absence of any evidence that this requirement is the “functional equivalent” of intentional discrimination. See Watson, 487 U.S. at 987, 108 S.Ct. at 2785.
When plaintiff fails to make a showing on a necessary element of his case on which he has the burden of proof, summary judgment is proper. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
II
The district court, in its order of December 23, 1988, dismissed plaintiff‘s remaining constitutional claims on the grounds that “Title VII provides the exclusive federal remedy for the defendants’ alleged discriminatory treatment of the plaintiff.” District Court Order of December 23, 1988, at 3. Plaintiff argues that Title VII is not an exclusive remedy for his claims, and, based on recent case law, we agree. Despite earlier cases suggesting that Title VII was an exclusive remedy, see Reiter v. Center Consol. School Dist. No. 26-JT, 618 F.Supp. 1458, 1463 (D.Colo.1985), later cases distinguished suits brought in which a distinct right, separate from those rights created by Title VII, is the basis for a separate constitutional challenge. See, e.g., Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir.1989) (acknowledging concurrent application of
Plaintiff, in his original complaint, alleges that his due process and equal protection rights were violated, and requests remedies for those alleged violations under
Cases establish that, in racial discrimination suits, the elements of a plaintiff‘s case are the same, based on the disparate treatment elements outlined in McDonnell Douglas, whether that case is brought under
B
As to plaintiff‘s conspiracy claims under
“It is true that a Sec. 1985(3) remedy would not be coextensive with Title VII, since a plaintiff in an action under Sec. 1985(3) must prove both a conspiracy and a group animus that Title VII does not require. While this incomplete congruity would limit the damage that would be done to Title VII, it would not eliminate it. Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under Sec. 1985(3).”
Id. The district court stated that the plaintiff‘s Secs. 1985 and 1986 claims “do not appear to be independent of his Title VII claim.” R. tab 6, at 4. We have examined the complaint carefully and hold that the allegations of the complaint are not specific enough to provide any independent source to support a Sec. 1985(3) claim. See Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983).
C
On appeal, plaintiff adds the following issues for our consideration. First, plaintiff complains that the district court erred when it failed to compel answers to outstanding interrogatories and production of all of the applications submitted to the Fort Collins police department in the 1987 hiring period. We review the district court‘s discovery ruling for an abuse of discretion. Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir.1990). Plaintiff argues that because the court, in its summary judgment ruling for defendants, used statistics based on those applications, the court‘s failure to compel the applications deprived him of highly relevant information. Plaintiff makes no claims about the relevance of the unanswered interrogatories. Under
Second, following defendants’ motions for summary judgment, plaintiff filed two motions requesting leave to amend his complaint. Although he did not attach a copy of his proposed amended complaint, his second motion describes specific claims and allegations he wishes to include. Motions to amend under
The judgment of the district court is AFFIRMED.