Taken v. Oklahoma Corp. Com'n, CIV-95-1407-A.

• Decision Date: 31 July 1996
• Docket Number: No. CIV-95-1407-A.,CIV-95-1407-A.
• Citation: 934 F. Supp. 1294
• Parties: Dorothy A. TAKEN and Tawana A. White, Plaintiffs, v. OKLAHOMA CORPORATION COMMISSION, a political subdivision of the State of Oklahoma, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

934 F. Supp. 1294

Dorothy A. TAKEN and Tawana A. White, Plaintiffs, v. OKLAHOMA CORPORATION COMMISSION, a political subdivision of the State of Oklahoma, Defendant.

No. CIV-95-1407-A.

United States District Court, W.D. Oklahoma.

July 31, 1996.

COPYRIGHT MATERIAL OMITTED

Frederick W. Southern, Jr., Oklahoma City, OK, for plaintiffs.

Jana J. Harris, Elliott & Morris, Oklahoma City, OK, Rachel R. Lawrence-Mor, Oklahoma Corporation Commission, Office of General Counsel, Oklahoma City, OK, Kimberly Dixon, Oklahoma City, OK, for defendant.

ORDER

ALLEY, District Judge.

Before the Court is the Motion for Summary Judgment of defendant Oklahoma Corporation Commission, filed June 7, 1996. Plaintiffs Dorothy A. Taken and Tawana A. White have responded in opposition to defendant's motion. Plaintiffs have also moved to strike from defendant's summary judgment brief all references to a decision of the Oklahoma Merit Protection Commission. (Plaintiffs' Motion to Strike the MPC Determination, filed July 2, 1996.) Defendant opposes plaintiffs' motion.

Defendant seeks judgment as a matter of law pursuant to Fed.R.Civ.P. 56 on claims that plaintiffs were not selected for promotion to a vacant position in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §§ 2000e et seq., and Oklahoma public policy. Defendant contends that plaintiffs, who are white, cannot prove their allegations that a black female was chosen for the position because of her race and because of "third party sexual harassment". Defendant's motion also raises a legal issue: whether plaintiffs' "third party sexual harassment" claim, based on the existence of a personal relationship between the selected woman and a male official who selected her, is actionable under Title VII.

Plaintiffs' motion seeks exclusion from the summary judgment record of all references to an adverse decision of the Merit Protection Commission (MPC) that was issued during administrative proceedings in which plaintiffs first challenged the selection decision. Plaintiffs argue that an unreviewed administrative decision cannot be given preclusive effect in a subsequent Title VII action and that the adverse MPC decision is not admissible evidence in this case. Plaintiffs contend that defendant's attempt to rely on the MPC decision as a basis for summary judgment is improper and that a copy of the MPC decision submitted by defendant in support of its motion should be stricken from the record.

For reasons discussed below, the Court grants summary judgment to defendant, and denies plaintiff's motion as moot.

RELEVANT UNDISPUTED FACTS

In December 1993, a position at the Corporation Commission classified as Administrative Assistant II became available for promotion or hiring. Approved candidates for the position, that is, persons certified by the Office of Personnel Management (OPM) as meeting minimum qualifications for the job classification, included plaintiffs, who are white females, and Tansy Preston, a black female. In January 1994, a selection committee interviewed the approved candidates and then chose Ms. Preston for the position. The selection committee consisted of Bill Burnett, who is a black male, and Carl Solomon and David Dyke, who are white males. Each committee member has testified that he selected Ms. Preston for the job because she was the most qualified applicant. The department of the Corporation Commission in which the coveted position falls, the Consumer Services Division, consists of the following employees: five white males, two black males, three white females, and five black females.¹

In opposition to defendant's motion, plaintiffs raise numerous factual issues. Plaintiffs make allegations, supported as required by Rule 56, that Ms. Preston was not in fact qualified for an Administrative Assistant II position because she lacked the requisite amount of supervisory experience, that Mr. Burnett had pre-selected Ms. Preston for the position, that Mr. Burnett assisted Ms. Preston in obtaining OPM certification by falsely representing to OPM the amount of her supervisory experience, and that he pressured other committee members to vote for Ms. Preston. All of these alleged facts are irrelevant to the Court's summary judgment ruling.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the pleadings, affidavits, and other evidence on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, a court must view all facts and inferences in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). However, only genuine disputes over facts that might affect the outcome of the case under the governing substantive law preclude the entry of summary judgment. Id. at 248, 106 S.Ct. at 2510.

A party's failure to make a sufficient showing on an essential element of her case renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. A movant need only point out that there is an absence of evidence to support an essential element of the non-movant's case. Id. at 325, 106 S.Ct. at 2553-54. Then, the non-movant must go beyond the pleadings and set forth specific facts demonstrating that there is a triable issue. Id. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Fed.R.Civ.P. 56(e).

PLAINTIFFS' CLAIM OF RACE DISCRIMINATION

Defendant contends summary judgment is appropriate on plaintiffs' race discrimination claim under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1980). Defendant argues that plaintiffs lack sufficient evidence either to establish a prima facie case of race discrimination or to overcome defendant's legitimate non-discriminatory reason for promoting Ms. Preston, namely, that she was most qualified. Plaintiffs dispute these contentions. They also assert that direct evidence exists of discrimination by one decision maker, Mr. Burnett, that renders the burden-shifting analysis of McDonnell Douglas and Burdine unnecessary, and brings this case under the mixed-motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

Although the parties do not identify it as such, plaintiffs' race discrimination claim is one of reverse discrimination, or alleged discrimination against a member of the majority race.² The Court's research reveals that the court of appeals has adopted a modified version of the McDonnell Douglas analysis for reverse discrimination cases. Such a modification is appropriate because "`a prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on consideration of impermissible factors.'" Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir.1992) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978)). However, "`the presumptions in Title VII analysis that are valid when a plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a member of an historically favored group.'" Notari, 971 F.2d at 589 (quoting Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10th Cir.1986)). Thus, "a Title VII disparate treatment plaintiff who pursues a reverse discrimination claim, and seeks to obtain the benefit of the McDonnell Douglas presumption, must, in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority." Notari, 971 F.2d at 589. Such background circumstances may be shown by statistical evidence, for example, that the plaintiff is the only white employee in an otherwise minority department. Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir.1995).

However, a reverse discrimination plaintiff who cannot show the background circumstances necessary to trigger the McDonnell Douglas presumption has alternative means of proof. "A reverse discrimination plaintiff may establish a prima facie case of disparate treatment under Title VII `by direct evidence of discrimination or by indirect evidence whose cumulative probative force, apart from the presumption's operation, would suffice under the controlling standard to support as a reasonable probability the inference that but for plaintiff's race he would have been promoted.'" Notari, 971 F.2d at 590 (quoting Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir.1986) (en banc)). In explaining these prima facie case alternatives, the court of appeals has stated:

It is not enough, under this alternative formulation, for a plaintiff merely to allege that he was qualified and that someone with different characteristics was the beneficiary of the challenged decision. Instead, the plaintiff must allege and produce evidence to support specific facts that are sufficient to support a reasonable inference that but for plaintiff's status the challenged decision would not have occurred.

Notari, 971 F.2d at 590. If a reverse discrimination plaintiff meets his burden of establishing a prima facie case through one of these...