Notari v. Denver Water Dept., 91-1190

Citation971 F.2d 585
Decision Date29 July 1992
Docket NumberNo. 91-1190,91-1190
Parties59 Fair Empl.Prac.Cas. (BNA) 739, 59 Empl. Prac. Dec. P 41,634, 61 USLW 2128 Kenneth J. NOTARI, Plaintiff-Appellant, v. DENVER WATER DEPARTMENT, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

John Mosby, Denver, Colo., for plaintiff-appellant.

Carol M. Welch, Hall & Evans, Colorado Springs, Colo., for defendant-appellee.

Before TACHA and KELLY, Circuit Judges, and CONWAY, * District Judge.

TACHA, Circuit Judge.

Appellant Kenneth Notari appeals an order of the district court granting summary judgment in favor of appellee Denver Water Department (Denver Water). The district court dismissed Notari's claim pursuant to 42 U.S.C. § 1983 because it arose from the same factual allegations as his claim under Title VII, 42 U.S.C. § 2000e et seq. The district court found that Notari failed to establish a prima facie case of reverse discrimination and dismissed his Title VII claim. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse the district court.

BACKGROUND

Notari, a white male, began his employment with Denver Water in June 1974. During that time, Notari was employed as a seasonal laborer, a customer serviceman I, a water serviceman I, a water serviceman II, and an assistant valve operator. On five different occasions--September 1980, February 1981, November 1982, March 1988, and June 1988--Notari applied for the position of safety and security coordinator. In June 1988, Denver Water selected a woman over appellant for the position of safety and security coordinator.

The process of applying for a position at Denver Water includes an oral board examination. The board ranks the candidates and refers the top three for interviews with the department head where the vacancy is located. In this case, after the oral examination, the candidates were interviewed by Gilbert Archuleta, head of the Safety and Security Department, and his superior, James Crockett. After the interviews, Archuleta and Crockett determined that Notari was the applicant best qualified for the position. They then placed Notari's name on a selection sheet and submitted it to the After Denver Water denied Notari the position of safety and security coordinator, he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging discrimination due to his sex. When the EEOC terminated proceedings, Notari brought suit in the United States District Court for the District of Colorado alleging that he was more qualified than the woman selected and that her selection violated his rights protected by Title VII and § 1983. On December 4, 1990, Denver Water filed a motion for summary judgment, which the district court granted on May 2, 1991.

                Director of Personnel, a woman named Rogene Hill.   Hill rejected Archuleta's and Crockett's selection of Notari and told them that the focus of the position should shift from "safety" to "security."   After this description change, Archuleta and Crockett continued to believe that Notari was the best qualified for the position.   However, a reevaluation occurred and a woman was selected for the position over Notari
                
DISCUSSION

We review summary judgment orders de novo, using the same standards the district court applies. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Summary judgment is appropriate "if all the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is a 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); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

A. Section 1983

The district court granted summary judgment in favor of appellee on Notari's § 1983 claim for two reasons. First, the court held that the § 1983 claim "arises from the same factual allegations as his Title VII claim." Second, the court concluded that Notari "fails to identify an independent constitutional or federal statutory right that allegedly has been violated." We disagree.

Several of this court's recent decisions deal with the relationship between Title VII and § 1983. In Brown v. Hartshorne Public School District No. 1, 864 F.2d 680, 683 (10th Cir.1988), we announced the general rule that a state employee suffering from discrimination may assert claims under both § 1983 and Title VII. More recently, in Drake v. City of Fort Collins, 927 F.2d 1156 (10th Cir.1991), we held that a plaintiff must "have an independent basis for claims outside of Title VII, 'lest Congress' prescribed remedies under Title VII be undermined.' " Id. at 1162 (quoting Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir.1989)). A closer look at our decision in Drake reveals how we intended our "independence" requirement to be understood.

In that case, which involved a Title VII disparate treatment plaintiff who also sought relief under §§ 1981 and 1983, we held that a Title VII plaintiff who "alleges that his ... equal protection rights were violated, and requests remedies for those alleged violations under ... [s] 1983" has stated an independent basis for that claim. Id. at 1162. Thus, under Drake, the basis for a § 1983 claim is "independent" from Title VII when it rests on substantive rights provisions outside Title VII--that is, when it rests on a constitutional right or a federal statutory right other than those created by Title VII. We emphasize that the basis of a § 1983 claim may be independent of Title VII even if the claims arise from the same factual allegations and even if the conduct alleged in the § 1983 claim also violates Title VII. For example, a § 1983 claim of racial discrimination is independent of a statutory disparate treatment claim arising out of the same set of facts because the § 1983 claim is substantively grounded in the Equal Protection Clause of the Fourteenth Amendment, whereas the disparate treatment claim flows from Title VII. Because the substantive legal standards that govern these claims emanate from different sources, as long as the substantive legal bases for the claims are distinct, our "independence" requirement is satisfied and Title VII does not foreclose an employment discrimination plaintiff's § 1983 claim.

Applying this analysis to the present case, we hold that Notari's § 1983 claim survives at this stage. In his Title VII claim Notari contends that Denver Water violated his right to equal employment opportunity, a right that the Civil Rights Act of 1964 protects. In his § 1983 claim, he asserts that Denver Water acted under color of law to violate rights secured by the Fourteenth Amendment's Equal Protection and Due Process Clauses. The substantive legal bases for these claims are distinct. Only those § 1983 claims that rely upon Title VII's provisions as the substantive basis for their validity are foreclosed under this analysis; such is not the case here. Accordingly, we reverse the district court's dismissal of Notari's § 1983 claim.

B. Title VII

Notari asserts that the district court erred in granting summary judgment in favor of Denver Water on his Title VII claim. The district court found that because Notari did not allege background facts that would support an inference that Denver Water is one of those unusual employers that discriminates against the majority, he failed to state a prima facie case of reverse discrimination. See Livingston v. Roadway Express Inc., 802 F.2d 1250 (10th Cir.1986).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established a three-part paradigm for evaluating Title VII disparate treatment claims. First, the plaintiff must establish a prima facie case of discrimination. Second, if the plaintiff carries his initial burden, the burden shifts to the defendant to "articulate some legitimate nondiscriminatory reason" for the challenged workplace decision. Third, if the defendant carries this burden, the plaintiff has an opportunity to prove that the legitimate reasons the defendant offered were merely a pretext for discrimination. Id. at 802, 93 S.Ct. at 1824. Because the district court in this case found that Notari failed to state a prima facie case, we turn our attention to the law that has developed around that aspect of the Title VII disparate treatment claim.

A plaintiff must establish a prima facie case of racial discrimination and under McDonnell Douglas, may do so by demonstrating the following: "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. at 802, 93 S.Ct. at 1824. The Court noted, however, that "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie case proof required from respondent is not necessarily applicable in every respect in differing factual situations." Id. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Thus, for example, the Court modified the first element of the prima facie case in gender discrimination cases so that a female plaintiff must only show that she is a woman. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 1093 n. 6, 67 L.Ed.2d 207 (1981). Similarly, this court has recognized that in a promotion case, such as this one, a plaintiff fulfills the fourth element when he shows that the position was filled by another. Mortensen v. Callaway, 672 F.2d 822 (10th Cir.1982).

Although it is clear that Title VII's protection is not limited to those individuals who are members of historically or socially disfavored groups, Livingston, 802 F.2d at 1252 (citing McDonald v....

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