Drake v. City of Fort Collins

• Decision Date: 13 March 1991
• Docket Number: No. 90-1026,90-1026
• Citation: 927 F.2d 1156
• Parties: 55 Fair Empl.Prac.Cas. 600, 56 Empl. Prac. Dec. P 40,612, 19 Fed.R.Serv.3d 930 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.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1156

927 F.2d 1156

55 Fair Empl.Prac.Cas. 600,

56 Empl. Prac. Dec. P 40,612, 19 Fed.R.Serv.3d 930

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.

Raymond J. Drake, pro se.

Kent N. Campbell, Anderson, Sommermeyer, Wick & Dow, Fort Collins, Colo., for defendants-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

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 42 U.S.C. Sec. 2000e-2 (Title VII of the Civil Rights Act of 1964) and various constitutional rights in connection with the City's rejection of his application for employment by the Fort Collins police department. Plaintiff, who is black, complains, in essence, that he has been the subject of racial discrimination.

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 42 U.S.C. Secs. 1981, 1983, 1985(3), and 1986 based on alleged violations of and conspiracy to violate his due process and equal protection rights. He asserted violations of his rights under Title VII, alleging racial discrimination, made a claim under 42 U.S.C. Sec. 1988 for attorney's fees, and also pressed various state law claims.

Upon defendants' motion, the district court dismissed, apparently under Fed.R.Civ.P. 12(b)(6), all of plaintiff's claims except those asserted under Title VII. It ordered plaintiff to amend his complaint, restricting his cause of action to Title VII. Following discovery and cross-motions for summary judgment on plaintiff's amended complaint, the district court granted summary judgment to defendants on plaintiff's Title VII claims. Plaintiff appeals.

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).

I

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:

1) he is a member of a racial minority;

2) he applied and was qualified for an available position;

3) he was rejected despite those qualifications; and

4) 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...