McGarry v. Board of County Com'rs of County of Pitkin

• Decision Date: 29 April 1999
• Docket Number: No. 97-1239,97-1239
• Citation: 175 F.3d 1193
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 964, 75 Empl. Prac. Dec. P 45,857, 1999 CJ C.A.R. 2597 Michael J. McGARRY, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PITKIN, State of Colorado, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1193

175 F.3d 1193

79 Fair Empl.Prac.Cas. (BNA) 964,

75 Empl. Prac. Dec. P 45,857, 1999 CJ C.A.R. 2597

Michael J. McGARRY, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF PITKIN, State

of Colorado, Defendants-Appellees.

No. 97-1239.

United States Court of Appeals, Tenth Circuit.

April 29, 1999.

Thomas E. Goodreid, Denver, Colorado, for Plaintiff-Appellant.

Cathy Havener Greer (Malcolm S. Mead, with her on the brief), of Hall & Evans, L.L.C., Denver, Colorado, for Defendants-Appellees.

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff/Appellant Michael J. McGarry (McGarry) filed suit against defendant/appellee Board of County Commissioners of Pitkin County, Colorado (Board). McGarry's second amended complaint alleges that the Board engaged in reverse discrimination by not hiring McGarry on two occasions and retaliated against McGarry by not considering him for employment after he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), these actions constituting violations of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3. The Board filed a motion for summary judgment as to all claims. The district court referred the matter to a magistrate judge who recommended denial of the Board's motion. The district court rejected the magistrate judge's recommendation and granted summary judgment on the reverse discrimination claims and the retaliation claim in favor of the Board.

McGarry timely appeals the district court's grant of the motion for summary judgment in favor of the Board. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand for proceedings consistent with this opinion.

I

McGarry is a white male who is a resident of Pitkin County, Colorado. Pitkin County is located in the Roaring Fork Valley. In April 1993, in response to a newspaper advertisement, I App. at 93, McGarry submitted a written application for a position as a building maintenance worker at the Pitkin County Airport Building Maintenance Department. II App. at 128-31. Thirteen people applied for the position. Filiberto Meraz, a male of Hispanic background, was hired to fill the position. II App. at 197.

Scott Mackey was the Board's facilities maintenance manager with authority to hire and fire people for the crew that takes care of the Aspen airport, inter alia. II App. at 138. Mackey testified in his deposition that Meraz was hired in compliance with a Board policy to prefer applicants who are current County employees over qualified, non-employee applicants. I App. at 74; II App. at 144. At the time of his hiring, Meraz was employed in another department of Pitkin County. II App. at 197.

In January 1994, McGarry submitted a written application for another building maintenance position. There were five other applicants. McGarry was interviewed but was not selected; instead, Vernard Oliver, an African-American male, was hired to fill the position. II App. at 197. If Oliver had declined the offer of employment, Mackey would have offered the position to McGarry. II App. at 142.

Mackey notified McGarry in February 1994 that McGarry had not been selected for the position. II App. at 144.5. However, McGarry said Mackey told him that he would keep McGarry's application on file and would contact McGarry if a similar job developed. II App. at 156. The Board's policy is to keep applications on file, II App. at 192, but consider them for relevant positions upon request by the applicant to activate the application. I App. at 46.

After learning he had not been selected for the January 1994 job, McGarry contacted Cheryl Cumnock (Cumnock), Pitkin County's Director of Personnel. II App. at 165. As the Director of Personnel, her duties included overseeing the general management policies for the personnel department in the organization. Though she was not involved in the hiring process, when McGarry came to Cumnock they began reviewing the circumstances of the hiring of Meraz for the April 1993 position. II App. at 172. Cumnock spoke with Mackey on February 10, 1994 about McGarry's applications. II App. at 175. At this meeting, Cumnock took notes, including writing down a notation that she was concerned McGarry might file an EEOC charge. II App. at 176.

Cumnock met with McGarry twice in February 1994 to discuss her investigative efforts. At the first meeting, McGarry presented Cumnock with a list of questions he had prepared concerning the hiring process. Cumnock made notations on the list. II App. at 136, 182. One of the questions concerned the Board's hiring preference for Roaring Fork Valley residents. Following reference to the policy, Cumnock wrote in the word "minorities." II App. at 136, 182. At her deposition, Ms. Cumnock agreed that "Minorities" was in her handwriting but she did not recall what this meant. Id. at 182. At this meeting Cumnock told McGarry that Oliver was hired because he was better qualified. II App. at 175-76.

Cumnock and McGarry met again on February 16, 1994. McGarry states Cumnock then told him that the Board no longer took the position that Meraz and Oliver were better qualified candidates. Cumnock told McGarry: " ... these hires were minority hirings ...", II App. at 159, "the last three hirings of [maintenance] workers were minorities, affirmative action hirings, two blacks and an Hispanic...." II App. at 159. Cumnock denies having made these statements. II App. at 182. In response to plaintiff's interrogatories the Board asserted that Meraz and Oliver "were hired in compliance with Pitkin County's Affirmative Action Plan." Id. at 197.

Two policy statements issued by Pitkin County are relevant. The first was a statement "Policy 115 Recruitment" dated February 26, 1991, which provided that when a job vacancy occurs, first consideration for appointment will be given to County employees working in the department, if qualified. II App. at 190. The policy statement also provided that when a vacancy is not filled by a current qualified County employee, it is the County's desire to give adequate notice to candidates residing in the Roaring Fork Valley. Id. at 191. Paragraph 10 of Policy 115 provided:

Whenever possible, current County employees should be given preference in selection for interviews and/or the job vacancy. Candidates residing within the Roaring Fork Valley should also receive preference in the consideration of applications. Minorities, women, disabled and other protected-group applicants should also be given every consideration and opportunity for employment or advancement.

II App. at 192.

On the same date (February 26, 1991) when Policy 115 was issued, the County also issued "Policy 140 Equal Employment Opportunities" which provided in its second paragraph:

II. PROCEDURE

In fair employment practices, the County will:

. . . . .

(2) Make employment decisions upon an individual's qualifications and job related requirements of the position, giving due consideration to the meaning of the phrase, "is an affirmative action employer." This means that minority candidates who are qualified for a position, but not necessarily the best qualified, are strongly considered for hire over non-minority candidates;

(3) Ensure that all personnel practices and actions will be administered without regard to race, color, religion, sex, age, national origin or handicap;

(4) Ensure that minorities and women receive equal opportunity for training and management development programs....

II App. at 132.

On March 3, 1994, McGarry filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging he had not been hired for either position due to his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). ¹ I App. at 86. The Commission conducted an investigation, reviewing both parties' submissions, and issued a determination letter that the evidence presented to it did not establish that the Board violated Title VII. I App. at 87.

In April 1994 the County advertised another building maintenance worker position. II App. at 210. McGarry did not learn of the position opening until after the application deadline had expired and thus did not submit an application. Though having his application on file, the Board did not consider him for the position. II App. at 144. The Board's actions on that occasion are the grounds asserted for McGarry's retaliation claim.

II

A The Rulings of the Magistrate Judge and the District Judge

The trial judge referred the Board's summary judgment motion to a magistrate judge. The magistrate judge recommended denial of the motion, concluding that McGarry had presented material facts on both the reverse discrimination and the retaliation claims sufficient to require resolution by a fact-finder. With respect to the reverse discrimination claim, the magistrate judge relied on Cumnock's statement to McGarry that Meraz and Oliver were minority hirings as evidence of reverse discrimination. III App. at 283, 290-91. The magistrate judge further found Mackey's promise to consider McGarry's application for future job openings, III App. at 292, Mackey's knowledge that McGarry had filed a charge with the EEOC in March 1994, id. at 293, and the Board's subsequent failure to consider McGarry for the April 1994 position, to be evidence of the Board's adverse action in retaliation against McGarry's protected activity. III App. at 292.

The Board timely objected to the magistrate judge's recommendation. The district judge rejected the magistrate judge's recommendation and granted the motion for summary judgment on both the first and second claims of plaintiff of reverse discrimination and his claim of retaliation under Title VII. IV App. at 344. Incorporating by reference the background facts outlined in the magistrate judge's recommendation, IV App. at 333, and applying this circuit's decision in Notari v....