997 F.2d 793 (10th Cir. 1993), 91-6397, Hooks v. Diamond Crystal Specialty Foods, Inc.

Docket Nº:91-6397.
Citation:997 F.2d 793
Party Name:Darnell HOOKS, Plaintiff-Appellant, v. DIAMOND CRYSTAL SPECIALTY FOODS, INC., a Michigan Corporation doing business in the State of Oklahoma, Defendant-Appellee.
Case Date:June 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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997 F.2d 793 (10th Cir. 1993)

Darnell HOOKS, Plaintiff-Appellant,



Corporation doing business in the State of

Oklahoma, Defendant-Appellee.

No. 91-6397.

United States Court of Appeals, Tenth Circuit

June 30, 1993

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Lewis Barber, Jr. (Guinise Marshall with him on the brief) of Barber & Marshall, P.A., Oklahoma City, OK, for plaintiff-appellant.

Clyde H. Jacob, III (Stephen Rose with him on the brief) of Kullman, Inman, Bee, Downing & Banta, P.C., New Orleans, LA, for defendant-appellee.

Before BRORBY, MCWILLIAMS, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

Darnell Hooks appeals the entry of summary judgment on claims of racial discrimination under Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e-2000e-17) and 42 U.S.C. § 1981, fraudulent inducement, and constructive discharge brought against his former employer, Diamond Crystal Specialty Foods, Inc. (Diamond).


The following facts are not in dispute. In 1974, Diamond hired Mr. Hooks, a black man, at its Moore, Oklahoma, facility as a line employee in the production department. Mr. Hooks was promoted in 1979 to the position of converting coordinator, a supervisory position. In 1989-1990, Diamond initiated a company-wide reduction in force by eliminating over thirty positions nationally. As a result, Mr. Hooks' converting coordinator position was abolished in April 1989, but Diamond offered him a new assignment as assistant production supervisor, a position which incorporated many of his previous duties. After accepting the new position, Mr. Hooks received a salary increase of $1500. Meanwhile, the incumbent assistant production supervisor, a white man named Doil Slaymon, was promoted to production supervisor, 1 a position Mr. Hooks desired.

In early 1990, Diamond eliminated Mr. Hooks' new position as assistant production supervisor. Diamond presented three options to Mr. Hooks: accept an hourly, non-supervisory position of press operator; terminate his employment; or accept early retirement. Initially, Mr. Hooks accepted the position of press operator, but he subsequently suffered an on-the-job shoulder injury. After consulting a physician referred by Diamond, Mr. Hooks was released to return to work. Instead, Mr. Hooks decided to

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accept Diamond's previous offer of early retirement.

Subsequently, Mr. Hooks filed charges with the EEOC on April 2 and July 5, 1990, alleging racial discrimination. After exhausting his administrative remedies and receiving a right-to-sue letter, Mr. Hooks brought suit in the Western District of Oklahoma alleging: 1) racial discrimination under Title VII for failure to promote, demotion, and the elimination of a position; 2) failure to contract on a nondiscriminatory basis in violation of 42 U.S.C. § 1981; 3) fraud in the inducement; 4) constructive discharge; and 5) negligent infliction of emotional harm. 2 The district court granted summary judgment for the defense on all claims. Mr. Hooks appeals the grant of summary judgment on the first four counts. We affirm.


Because we review the district court's granting of summary judgment de novo, we apply the same standard as the district court. First Interstate Bank of Denver v. Pring, 969 F.2d 891, 895-96 (10th Cir.1992), cert. granted in part, --- U.S. ----, 113 S.Ct. 2127, 124 L.Ed.2d 678 (1993). According to Fed.R.Civ.P. 56(c), summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Upon reviewing the record for genuine issues of material fact, the appellate court should construe the pleadings and documentary evidence liberally in favor of the party opposing the motion. Florom v. Elliott Mfg., 867 F.2d 570, 574 (10th Cir.1989). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).


a) Failure to Promote

Mr. Hooks alleges Diamond's promotion of Doil Slaymon to production supervisor instead of him was discriminatory. In disposing of Mr. Hooks' Title VII failure to promote claim, the district court relied on Allen v. Denver Pub. School Bd., 928 F.2d 978, 984 (10th Cir.1991), in determining that Mr. Hooks failed to present a prima facie case of racial discrimination.

The Supreme Court has developed a four-part test to determine whether the plaintiff has established a prima facie case of discriminatory failure to promote under Title VII. The plaintiff must show:

(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.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) 3; Texas Dept. 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). After the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the decision which adversely affected the employee. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Once the defendant meets its burden of production by offering a legitimate rationale in support of its decision, the burden shifts back again to the plaintiff to show that defendant's proffered reasons were a pretext for discrimination. Id. at 804-05, 93 S.Ct. at 1825.

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Ultimately, the burden of persuasion rests with the plaintiff. Burdine 450 U.S. at 253, 101 S.Ct. at 1093. The Tenth Circuit has followed this burden shifting analysis and echoed the elements necessary to establish a prima facie case of discrimination for failure to promote under Title VII. See, e.g., Notari v. Denver Water Dept., 971 F.2d 585, 588 (10th Cir.1992); Luna v. City & County of Denver, 948 F.2d 1144, 1147 (10th Cir.1991); McAlester, 851 F.2d at 1260-61; Gutierrez v. Denver Post, Inc., 691 F.2d 945, 947 (10th Cir.1982); Mortensen v. Callaway, 672 F.2d 822, 823 (10th Cir.1982); Rich v. Martin Marietta Corp., 522 F.2d 333, 346-48 (10th Cir.1975).

The district court relied on Allen in holding the plaintiff failed to present a prima facie case of discriminatory failure to promote. In Allen, the court held that in order to establish a prima facie case of discrimination, the plaintiff must show he "was equally or better qualified than those employees actually promoted." Allen, 928 F.2d at 984 (citing Clark v. Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d 698, 701 (10th Cir.1984)). Although Clark derived this standard from Burdine and McDonnell Douglas, the Supreme Court never explicitly pronounced such a test. Instead, the Supreme Court in Burdine stated:

The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.

Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. In order to adhere to the standards articulated by the Supreme Court, we believe the best approach is to remain consistent with the prima facie elements laid out in McDonnell Douglas and Burdine, and followed repeatedly in this circuit. Thus, in order to establish a prima facie case a plaintiff need not show that he or she is equally or better qualified than the person selected for the position as suggested in Allen. Although the court may have to grapple with that factor in determining whether the defendant's reasons are pretextual, requiring the plaintiff to allege such facts at the outset makes the task of establishing a prima facie case unnecessarily difficult. Consequently, the burden shifts to the defendant after the plaintiff has established, along with the other McDonnell Douglas elements, that he is qualified for the job, but he need not show that he is equally or better qualified for the job. We caution that Allen should not be read to increase the prima facie burden established in McDonnell Douglas.

We apply the McDonnell Douglas criteria to determine whether Mr. Hooks alleged a prima facie case of failure to promote. First, plaintiff is black and therefore a member of a protected class. Second, Mr. Hooks alleges he was indeed qualified for the production supervisor position as he had been with Diamond for fifteen years, ten of which were in a supervisory capacity, and received excellent character of service reviews as a converting coordinator. Third, despite Mr. Hooks' qualifications, he was not assigned the position. Fourth...

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