Garcia v. Pueblo Country Club

• Decision Date: 21 August 2002
• Docket Number: No. 01-1363.,01-1363.
• Citation: 299 F.3d 1233
• Parties: Arcenio E. GARCIA, Plaintiff-Appellant, v. PUEBLO COUNTRY CLUB, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

299 F.3d 1233

Arcenio E. GARCIA, Plaintiff-Appellant, v. PUEBLO COUNTRY CLUB, Defendant-Appellee.

No. 01-1363.

United States Court of Appeals, Tenth Circuit.

August 21, 2002.

COPYRIGHT MATERIAL OMITTED

James A. Carleo, Pueblo, CO, for Plaintiff-Appellant.

John J. Keilbach of Altman, Keilbach, Lytle, Parlapiano & Ware, P.C., Pueblo, CO, for Defendant-Appellee.

Before SEYMOUR, McWILLIAMS, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Arcenio E. Garcia, alleging violations of the Civil Rights Act of 1991 (42 U.S.C. § 1981) and/or the Age Discrimination Employment Act (the "ADEA," 29 U.S.C. § 621), sued the Pueblo Country Club ("PCC"). In his complaint, Mr. Garcia charged that PCC terminated him from his position as Grounds Maintenance Superintendent and subsequently failed to hire him as Golf Course Superintendent based upon his race, national origin, and/or age. The district court granted summary judgment to PCC. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court's dismissal and remand the case to the district court.

I. BACKGROUND

Mr. Garcia, who is in his early sixties, is a "Hispanic" male who worked for PCC in various capacities for over forty years. Aplt's Br. at 3. According to Mr. Garcia's complaint, at the time of his termination, in June of 1998, his position was that of Grounds Maintenance Superintendent,¹ a position that he had held since 1989. Mr. Garcia consistently received positive if not glowing recommendations from PCC in all areas of job performance. He also received high praise from club members and the Board of Directors.

Since 1985, PCC had been considering the installation of a new irrigation system to improve the soil conditions of its golf course. The Board minutes reflect that, in 1997 and after considering presentations and proposals from its Long Range Planning Committee, PCC proceeded to put the new irrigation system to a membership vote. The membership approved a plan with an estimated cost of $2.5 million. In conjunction with the adoption of the modernized irrigation system, the Board also "consider[ed] hiring a new person to run [the] course." Aplt's App. vol. 2, ex. 5, at 3. In March of 1998, after considering at least two drafts, the Board finalized the job description for the Golf Course Superintendent position, and, in June of 1998, PCC hired John Finsterwald, a forty-one year old "non-minority" to fill the job. Aplt's Br. at 7.

Mr. Garcia, alleging racial and national origin discrimination under Title VII, 42 U.S.C. § 2000(e) and 42 U.S.C. § 1981, and age-based discrimination under the ADEA, 28 U.S.C. § 621, filed a complaint and an amended complaint. Mr. Garcia later dismissed the Title VII claim. PCC moved for summary judgment on the remaining claims. As noted above, this appeal arises from the grant of that motion and the consequent dismissal of the case.

Mr. Garcia's complaint did not specify how PCC discriminated against him, (e.g., through unlawful termination, failure to promote, to hire, or to rehire). The court reasoned that the "key issue" that would determine how the court would analyze the case was whether the 1998 Golf Course Superintendent position constituted a "new job" for which Mr. Garcia needed to apply to be hired. Aplt's App. vol. 1, ex. 5 (Order, filed May 31, 2001). The district court thus sought supplemental briefing as to whether or not PCC eliminated Mr. Garcia's position when it created the "new" position of Golf Course Superintendent.

After briefing by both parties, the district court, noting the disparity in the job descriptions, determined that Mr. Garcia's position had been eliminated. Accordingly, the district court construed Mr. Garcia's claims to allege that PCC discriminated against him by failing to hire him for the newly created position. The district court then noted that because Mr. Garcia presented no direct evidence of discrimination, the analysis of his claim necessarily would proceed pursuant to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Based upon its conclusions that (1) PCC eliminated Mr. Garcia's original position and (2) Mr. Garcia failed to apply for the new position, the court further concluded that Mr. Garcia was unable to establish a prima facie case for a failure to hire. The district court also entered an alternative finding considering the possibility that Mr. Garcia's position had not been eliminated. Even if this was the case, the district court reasoned, Mr. Garcia, because he could not demonstrate any adverse effect, still could not establish a prima facie case of unlawful discharge. We conclude that (1) whether PCC eliminated Mr. Garcia's job is a disputed issue of material fact, and (2) whether Mr. Garcia can demonstrate an adverse effect from PCC's alleged discrimination is also a disputed issue of material fact; thus, we reverse and remand.

II. DISCUSSION

We review the grant or denial of a motion for summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). Under Rule 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying the summary judgment standard, we must examine the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf, 50 F.3d at 796.

A. Whether PCC Eliminated Mr. Garcia's Position is a Disputed Issue of Material Fact

1. Material Issue of Fact

The district court concluded that whether or not Mr. Garcia's position was eliminated was the "key issue" in this case because resolution of that issue would enable the court to determine "whether the case should be analyzed as an unlawful discharge case or a failure to promote, hire, or rehire case." Aplt's App. vol. 1, ex. 5 (Order, filed May 31, 2001).² "A disputed fact is `material' if it might affect the outcome of the suit under the governing law." Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir.1997). We agree with the district court that the question of job elimination is a material issue of fact in this case.

2. Disputed Issue of Fact

After noting the significance of job elimination, the district court proceeded to compare the old and new job descriptions. Based on this comparison, the district court determined that, under the new description: "The expectations of the Golf Course Superintendent changed significantly." Aplt's App. vol. 1, ex. 6, at 4 (Order, filed July 12, 2001). The court also noted that the position's upgraded responsibilities and increased salary, coupled with the other major renovations inherent in PCC's long-term plans, supported its finding that the position was a "new" one.

Mr. Garcia challenges the revision of the job description to include vaguely worded duties that had not been part of his maintenance position, namely, "[m]anagement of advanced irrigation system" and "[d]eveloping the Turf Grass Management Program, including ongoing advances in turf grass science." Aplt's App. vol. 2, ex. 4, at 3 (Comparison of Oct. 30, 1997 job description with March 19, 1998 job description). Under Mr. Garcia's allegedly eliminated position, similar duties included "[m]ust have irrigation specialist qualifications" and "[m]ust have turf specialist qualifications." Id. Mr. Garcia maintains that he was able to operate the sprinkler system and, as such, possessed the requisite experience to fill the position as it had been revised. Perhaps more importantly, Mr. Garcia points to testimony that indicates his employer believed Mr. Garcia was qualified to perform the duties of the revised position. See Aplt's App. vol. 3, ex. 17, at 124-25; 175-76 (Testim. of Club Manager Terry Stuive that he believed Mr. Garcia could complete all of the tasks listed on the revised job description).

In contrast, PCC maintains that the revised job description represented a significant change from the previous position and underscores the new position's forty percent salary increase. PCC also contends that Mr. Garcia, an at-will employee, never applied for the purportedly upgraded position, although he was reminded to do so if interested. In addition, Mr. Garcia "never accepted" the newly created position of Repair/Maintenance Manager. Aple's App. vol. 2, ex. 7, at 4. PCC insists that Mr. Garcia's physical infirmities precluded his ability to perform the duties of either position. Finally, PCC suggests that Mr. Garcia acknowledged the position had been eliminated. See Aplts App. vol. 6, ex. 49, at 2.

We agree with the district court, that if PCC in fact eliminated Mr. Garcia's position, he is foreclosed from seeking relief under a failure to hire, rehire, or promote claim. To establish a prima facie case for any of these actions, a plaintiff must indicate that he applied for the position in question. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000) ("In McDonnell Douglas, the Supreme Court enumerated the elements required in order for a plaintiff to establish a prima facie case in the failure to hire context. These are: (i) plaintiff belongs to a protected class; (ii) plaintiff applied and was qualified for a job for which the employer was seeking applicants; (iii) despite being qualified, the plaintiff was rejected; and (iv) after plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications.") (internal quotation marks and citations omitted) (emphasis added); Bennett v. Quark, Inc., 258 F.3d 1220, 1228 (10th Cir.2001) ("To establish a prima facie case for failure to promote, plaintiff...