Carey v. U.S. Postal Service, No. 85-2894

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before HOLLOWAY, Chief Judge, and McWILLIAMS and BALDOCK; BALDOCK
• Citation: 812 F.2d 621
• Parties: 43 Fair Empl.Prac.Cas. 156, 43 Empl. Prac. Dec. P 37,106 David W. CAREY, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Docket Number: No. 85-2894
• Decision Date: 23 February 1987

Page 621

812 F.2d 621 43 Fair Empl.Prac.Cas. 156,
43 Empl. Prac. Dec. P 37,106 David W. CAREY, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE, Defendant-Appellee. No. 85-2894. United States Court of Appeals,
Tenth Circuit. Feb. 23, 1987.

Page 622

Bryan E. Nelson (Ronald W. Nelson, Alder & Nelson, with him on the brief), Alder & Nelson, Overland Park, Kan., for plaintiff-appellant.

John C. Hoyle (Richard K. Willard, Asst. Atty. Gen., Benjamin L. Burgess, Jr., U.S. Atty., and Robert S. Greenspan, U.S. Dept. of Justice, with him on the brief), U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant appeals the dismissal of his claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, based upon racial discrimination in employment. The district court granted defendant-appellee's motion for summary judgment, concluding that the appellee had articulated a legitimate, nondiscriminatory reason for its conduct, and appellant did not raise a sufficient factual issue as to whether that reason was a mere pretext for impermissible discrimination. We affirm.

For some time prior to 1978, appellant, a white male, and Mr. Omar Nix, a black male, both worked at appellee's Kansas City Bulk Mail Center. In 1979, one of the two individuals in the Bulk Mail Center holding a position designated as "General Supervisor, Mails," a grade 17 salary level position, retired. The vacant position was not filled, but junior employees were used on a "push-up" basis to temporarily fill the grade 17 position when needed. The junior employee would receive the grade 17 level of pay for the time he filled the supervisory position.

On June 27, 1980, a "Quality Control Supervisor" position, at grade 19 salary level, became available. Nix, who was then a grade 15 "Quality Control Analyst," applied for the grade 19 position. Although Nix was rated as one of the five best qualified applicants, he was not selected, and the position was given to a white applicant. Nix then filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC). Informal conciliation efforts failed to resolve the matter, and a formal EEO hearing was held on March 8, 1983.

Meanwhile, in December 1982, the remaining General Supervisor, Mails, position was vacated by retirement. A vacancy announcement was posted for this position. Fifteen people, including appellant and Nix, applied for the position. A Promotion Review Committee chose to interview eight of the applicants. Appellant was among the group of interviewees, while Nix was not. In a letter dated March 9, 1983, the Committee recommended appellant and one other individual as the most qualified for the position. Rec. vol. I, doc. no. 16, Ex. A. The position was ultimately awarded to the

Page 623

other applicant, and the placement was announced April 16, 1983.

Prior to the April 16, 1983, announcement, Nix had stated to a fellow employee that he was going to be awarded the grade 17, General Supervisor, Mails, position. After the formal EEO hearing, but before a decision was rendered, the Postal Service and Nix entered into an agreement settling Nix' claim. The individual in charge of negotiating the settlement for the Postal Service was the same individual in charge of filling the General Supervisor, Mails, position vacated in 1982. As part of the settlement, Nix was promoted to the General Supervisor, Mails, position that had been vacated in 1979. Nix' promotion was publically announced on May 11, 1983. Since Nix' promotion, appellant has been able to spend far less "push-up" time in the supervisory position, resulting in a somewhat smaller salary. At no time was a vacancy publically announced for the position ultimately given to Nix.

Appellant filed a complaint with the EEOC, alleging racial discrimination in failing to give him the position that was given to Nix. His complaint was administratively rejected. He then filed this Title VII action in the district court, alleging reverse discrimination in the promotion of Nix to the grade 17 position after the Promotion Review Committee had implicitly determined that appellant was a better qualified candidate for the job. The Postal Service filed a motion for summary judgment, arguing that appellant failed to allege facts sufficient to support a finding of intentional discrimination based on race. The district court granted the summary judgment, concluding that the Postal Service had articulated a legitimate, nondiscriminatory reason for giving the job to Nix rather than appellant, and that appellant had failed to demonstrate that the reason articulated by the Postal Service was a mere pretext for impermissible discrimination. Appellant filed a timely notice of appeal from the summary judgment order with this court. 28 U.S.C. Sec. 2107.

Fed.R.Civ.P. 56(c) provides that summary judgment shall be rendered when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The Supreme Court has recently interpreted the standard for granting summary judgment. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In discussing the materiality of the disputed facts, the Court stated "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id., 106 S.Ct. at 2510. A genuine issue of fact exists only where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. Summary judgment concerns the sufficiency of the evidence to present an issue for trial, not the weight of such evidence. Id. at 2511. Thus, the relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 2512. Finally, the moving party is entitled to judgment as a matter of law where the non-moving party has "failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)....