Jaramillo v. Colorado Judicial Dept.

• Decision Date: 02 November 2005
• Docket Number: No. 04-1284.,04-1284.
• Citation: 427 F.3d 1303
• Parties: Kristin JARAMILLO, Plaintiff-Appellant, v. COLORADO JUDICIAL DEPARTMENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

427 F.3d 1303

Kristin JARAMILLO, Plaintiff-Appellant, v. COLORADO JUDICIAL DEPARTMENT, Defendant-Appellee.

No. 04-1284.

United States Court of Appeals, Tenth Circuit.

November 2, 2005.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^*

John R. Olsen, Olsen & Brown, L.L.C., Niwot, CO, for Plaintiff-Appellant.

Ken Salazar, Attorney General, Douglas J. Cox, Assistant Attorney General, Denver, CO, for Defendant-Appellee.

Before BRISCOE, ANDERSON, and O'BRIEN, Circuit Judges.

PER CURIAM.

This Title VII appeal arises out of Plaintiff Kristin Jaramillo's claim that the Colorado Judicial Department ("CJD") subjected her to disparate treatment on the basis of sex when it passed her over for promotion in favor of a male officer. The district court granted the CJD's motion for summary judgment. We exercise discretion under 28 U.S.C. § 1291 and AFFIRM.

I.

Ms. Jaramillo began working as a volunteer in the Denver Juvenile Probation Department ("DJPD") in 1994. Appellant's App. at 288. Over the next several years she continued working at DJPD in a part-time, unpaid capacity. Id. at 288-89. Ms. Jaramillo was hired as a full-time contract employee by DJPD in February 1998. Id. at 289. In February 1999, DJPD hired Ms. Jaramillo as a Probation Officer Level I, a permanent position. Id.

In October 2000, DJPD announced the opening of a Probation Officer II ("PO II") position. Id. at 70. DJPD developed a testing procedure that involved a review of the applicant's training, career track accomplishments, probation client case management, and a position paper submitted with the application. Id. at 65-68, 72-73. Seven individuals applied. The applicants received a letter from Susan Donovan, the Chief Probation Officer for DJPD at all times relevant to this suit, outlining the selection process and the areas of evaluation. Id. at 72, 74-75. Four of the seven applicants withdrew. The remaining three applicants were Ms. Jaramillo, Brian Sandoval, and Arturo Villa, all of whom were DJPD employees. Id. at 74. After testing was complete, DJPD ranked the candidates in the following order, with corresponding scores: (1) Kristin Jaramillo, 36.8; (2) Brian Sandoval, 36.0; (3) Arturo Villa, 26.6. Id. at 82-87. In February 2001, Susan Donovan announced that Brian Sandoval had been selected for promotion to PO II. Id. at 88. Ms. Jaramillo was promoted to PO II in October 2001. Id. at 90.

Ms. Jaramillo filed her complaint in April 2002, alleging that the CJD subjected her to disparate treatment on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. In July 2004, the district court granted the CJD's motion for summary judgment.

II.

To prevail on a disparate treatment claim under Title VII, a plaintiff must show that his employer intentionally discriminated against him for a reason prohibited by the statute. See Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir.2004) ("[Title VII] prohibits only intentional discrimination based upon an employee's protected class characteristics.") (quoting EEOC v. Flasher Co., 986 F.2d 1312, 1319 (10th Cir.1992)). If the plaintiff relies upon circumstantial evidence, we apply the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing that "(1) he is a member of a protected class; (2) he applied for and was qualified for the particular position; (3) he was not promoted despite his qualifications; and (4) the position was filled or remained open after he was rejected." Cross v. The Home Depot, 390 F.3d 1283, 1286 (10th Cir.2004); see also Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003).¹ If the plaintiff establishes a prima facie case, a presumption of discrimination arises. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant carries its burden of production, the presumption of discrimination drops out of the case. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The burden then shifts back to the plaintiff, who must prove by a preponderance of the evidence that the employer's reasons are a pretext for unlawful discrimination. Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir.2004).

The district court found that the CJD provided a legitimate, non-discriminatory reason for its decision to promote Mr. Sandoval, namely his superior qualifications (discussed below). It found that Ms. Jaramillo failed to produce evidence of pretext, reasoning that (1) she failed to make arguments or produce evidence to show that the CJD's reason for promoting Mr. Sandoval was false, Appellant's App. at 378; (2) she failed to show any procedural irregularities because the CJD's selection process was consistent with published policy, id. at 379-80; and (3) her allegation of "pre-selection" was supported only by rumor and hearsay, and moreover, the evidence tended to corroborate the CJD's argument that it had a legitimate reason for promoting Mr. Sandoval. Id. Accordingly, the court found that the CJD produced a nondiscriminatory reason for its decision, and Ms. Jaramillo failed to raise a genuine issue of fact on the element of pretext.

We review the district court's grant of summary judgment de novo. Wilson v. Meeks, 98 F.3d 1247, 1252 (10th Cir.1996). We consider the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences from the available underlying facts. Id. at 1253. Summary judgment is appropriate if there is no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III.

The CJD concedes, for purposes of summary judgment, that Ms. Jaramillo has established a prima facie case of disparate-treatment discrimination. Our review is therefore confined to the question whether the CJD produced a legitimate, non-discriminatory reason for its employment decision and, if so, whether Ms. Jaramillo produced evidence sufficient to raise a genuine issue of material fact on the question of pretext. The CJD has carried its burden; Ms. Jaramillo has not.

A. Legitimate, Non-discriminatory Reason for Mr. Sandoval's Promotion

The CJD submits that it promoted Mr. Sandoval over Ms. Jaramillo because he was better qualified. Ms. Jaramillo argues that she was far more qualified than Mr. Sandoval, that she had more experience, and that Mr. Sandoval had consistently fallen below DJPD performance standards. The evidence, including Ms. Jaramillo's own testimony, belies her allegation that she was clearly better qualified than Mr. Sandoval; therefore, the CJD has established a legitimate, non-discriminatory reason for its decision.

Mr. Sandoval's qualifications exceeded Ms. Jaramillo's in several respects. He was certified in drug and alcohol counseling, he was fluent in spoken and written Spanish, and he had experience working at the INS detention facility. Appellant's App. at 74-75. Ms. Jaramillo conceded that she lacked these qualifications, that they were relevant to the PO II position, and that Ms. Donovan could have legitimately considered them in her promotion decision. Jaramillo Dep., id. at 97-100; Appellee's Br. at 15-18 (quoting deposition testimony). Mr. Sandoval's prior experience included full-time work as a probation officer with the Denver County Probation Department. Appellant's App. at 294-95. Ms. Jaramillo's only previous experience was part-time work as an unpaid intern. Id. at 288-89. Mr. Sandoval had been with the CJD since February 1998, whereas Ms. Jaramillo began full-time employment in February 1999. Appellee's Br. at 9; Appellant's App. at 9, 74-75. Ms. Jaramillo concedes that the CJD could have believed in good faith that Mr. Sandoval was better qualified for the job and that this belief would have been a non-discriminatory reason for the promotion. Jaramillo Dep., Appellant's App. at 94. Accordingly, the CJD has produced a legitimate, non-discriminatory reason for its decision.

B. Evidence of Pretext

Ms. Jaramillo argues, nonetheless, that the CJD's explanation is merely pretext for discrimination. A plaintiff demonstrates pretext by producing evidence of "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)). Evidence of pretext may include "prior treatment of plaintiff; the employer's policy and practice regarding minority employment (including statistical data); disturbing procedural irregularities (e.g., falsifying or manipulating ... criteria); and the use of subjective criteria." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir.2002) (quoting Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir.1999)).

1. Job Qualifications

Ms. Jaramillo claims that the promotion of Mr. Sandoval was patently unreasonable, thereby supporting the inference of discrimination, because she was far more qualified for the job. We must proceed with caution when considering the relative merits of individual employees. The courts may not "act as a super personnel department that second guesses employers' business judgments." Simms, 165 F.3d at 1330 (quotation omitted). Accordingly,...