                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            FEB 8 1999
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SELLIVAN C. BEVERLY, JR.,

                Plaintiff-Appellant,

    v.                                                    No. 98-1184
                                                      (D.C. No. 96-B-751)
    SHIELA E. WIDNALL, Secretary                           (D. Colo.)
    of the Department of the Air Force,

                Defendant-Appellee.




                             ORDER AND JUDGMENT          *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Sellivan C. Beverly, Jr. appeals from the district court’s grant of

summary judgment in favor of defendant on his claim of discrimination brought

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through

2000e-17. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.


                                     I. Background

       The following facts are undisputed. In 1989 plaintiff, an African

American, was selected for an interview for a promotion to an administrative

officer position at the Air Force Accounting and Finance Center (“AFAFC”)

at Lowry Air Force Base in Denver.      See Appellant’s App. Vol. I at 28. At that

time, both he and Marsha Miller, who was ultimately selected for the job, were

working for the Air Force in civilian positions. He served as a logistics training

instructor for the supply training branch, and Ms. Miller was a management

analyst in the accounting systems division.         See id. The interview was conducted

by three AFAFC individuals, including Claude Klobus, who was the “selecting

official.” See id. Vol. II at 163. One of the panel members, Ms. Olga Humphrey,

is also African American.    See id. Vol. I at 109. All interviewees were asked the

same questions.   See id. at 112. Plaintiff does not allege that the selection

process was discriminatory on its face. The panelists independently and privately

scored their answers, then the three scores were averaged.        See id. at 112 & 108.

Although Mr. Klobus had the discretion to hire whomever he desired, he limited

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his discretion by selecting the individual with the highest average interview score

if the panelists concurred that the person was the best person for the job.          See id.

Vol. II at 179. All three panel members scored Ms. Miller highest and plaintiff

as third, with an African American female, Ms. McKay, scoring second highest.

See id. Vol. I at 108, 113; Appellant’s Br. at 6. Ms. Miller’s average score

was 78; Ms. McKay’s was 64; and plaintiff’s was 56.

         Mr. Klobus lowered three of his initial scores for plaintiff, for a total of

seven points, before he saw or discussed the other panel member’s scores.             See

Appellant’s App. Vol. II at 219-20, 241. He could not remember why he had

made those changes.      See id. at 224-25. Even if Mr. Klobus’s original scores

had not been changed, however, plaintiff still would have ranked third, with

an average score of fifty-nine. The three panelists unanimously agreed that

Ms. Miller had the most relevant practical experience for the specific job and that

plaintiff’s experience was not as relevant to the position.      See id. Vol. I at 110,

113, 116. Mr. Klobus needed someone who had experience in performing the

job duties of the position because he had been without an administrator for

six months; plaintiff had no experience in civilian administration.           See id. at 68,

85-86.


                              II. Applicable legal standards



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       We review the district court’s grant of summary judgment de novo.       See

McKnight v. Kimberly Clark Corp.       , 149 F.3d 1125, 1128 (10th Cir. 1998). In

conducting that review,

       [w]e examine the record to determine whether any genuine issue of
       material fact was in dispute; if not, we determine [whether] the
       substantive law was applied correctly, and in so doing we examine
       the factual record and reasonable inferences therefrom in the light
       most favorable to the party opposing the motion. However, where
       the nonmoving party will bear the burden of proof at trial on a
       dispositive issue, that party must go beyond the pleadings and
       designate specific facts so as to make a showing sufficient to
       establish the existence of an element essential to that party’s case
       in order to survive summary judgment.

Id. (quotations and citations omitted). The movant need not negate the

nonmovant’s claim, but need only point to an “absence of evidence to support the

nonmoving party’s case.”      Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).

There is no genuine issue of fact “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party.”    Matsushita Elec.

Indus. Co. v. Zenith Radio Corp.     , 475 U.S. 574, 587 (1986).

       In the context of employment discrimination cases analyzed pursuant
       to the McDonnell Douglas framework, the plaintiff must first
       establish a prima facie case of discrimination. Once this is done, the
       employer must offer a facially nondiscriminatory reason for its
       employment decision. At the summary judgment stage, it then
       becomes the plaintiff’s burden to show that there is a genuine dispute
       of material fact as to whether the employer’s proffered reason for the
       challenged action is pretextual--i.e. unworthy of belief. If the
       plaintiff succeeds in showing a prima facie case and presents
       evidence that the defendant’s proffered reason for the employment


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      decision was pretextual . . . the plaintiff can withstand a summary
      judgment motion and is entitled to go to trial.

Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995) (citations, quotations,

and footnotes omitted).


                                   III. Discussion

      Defendant’s summary judgment motion argued only that plaintiff had not

presented sufficient evidence of pretext to allow a jury to infer discriminatory

intent, see Appellant’s App. Vol. I at 28, and the court implicitly agreed, stating

that “a reasonable juror could not find by a preponderance of the evidence that

[plaintiff] was not promoted because of his race” after noting that plaintiff’s

scores, even with the addition of seven points, would not have made him the

top-scoring candidate. The district court then went one step farther and engaged

in a “mixed motives” analysis.   See Price Waterhouse v. Hopkins , 490 U.S. 228,

244-45 (1989). The court concluded that, even assuming that Mr. Klobus had

intentionally discriminated against plaintiff because of his race, defendant could

avoid liability because it had shown that the other two panel members, who were

not charged with having discriminatory intent, also rated Ms. Miller as the top

interviewee. Therefore, defendant would have made the same decision even if it

had not allowed an improper discriminatory motive to play a role in failing to




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promote plaintiff.   1
                         See Appellant’s Br., Ex. A at 10. Plaintiff complains that

because a mixed-motive defense had not been raised by defendant, the court

improperly raised it sua sponte and plaintiff had no notice or opportunity to rebut

the defense.

       Because we hold that the plaintiff could not rebut defendant’s

nondiscriminatory reason for failing to promote plaintiff as a matter of law, we

need not consider the propriety of the court’s analysis under     Price Waterhouse .

We believe that the particular facts used in the court’s mixed-motive analysis

apply whether there is a mixed-motives defense or not. As the district court

noted, the candidate receiving the highest interview score was selected by the

panel, and not by Mr. Klobus alone.       See Appellant’s Br., Ex. A at 10. Defendant

has shown that even if Mr. Klobus as a panel member had racial animus, his

scores were not so low as to entirely preclude plaintiff’s selection. Both the other

panel members, who were not accused of having racial animus, rated plaintiff

third and Ms. Miller highest in the selection process. Thus, as a matter of law,

plaintiff cannot show that defendant’s facially nondiscriminatory reason for not



1
       This particular analysis in Price Waterhouse was subsequently overruled by
Congress in 1991 when it amended 42 U.S.C. § 2000e-5(g)(2)(B) to allow a
plaintiff to recover attorneys fees and costs and to receive declaratory and
injunctive relief even if a defendant makes a showing of mixed motive. Because
the employment decision in this case was made in 1989, however,      Price
Waterhouse was properly considered by the district court.

                                             -6-
promoting him--that he was not the highest-scoring interview candidate--was

a pretext for racial discrimination.

      Further, even if Mr. Klobus solely made the selection and plaintiff claimed

he intentionally discriminated against plaintiff in the scoring process, plaintiff

had two hurdles to cross in order to get to a jury on the issue. He arguably

cleared the first hurdle by presenting evidence that Klobus had acted in ways

(changing plaintiff’s score, for example) from which a jury could infer that racial

animus caused him to rate Ms. Miller, a white applicant, higher than plaintiff.

He could not clear the second hurdle of proximate cause, however, because racial

animus could play no part in rating Ms. McKay, another African American

applicant, higher than plaintiff. Therefore, even if a jury could find that plaintiff

should not have been rated lower than Ms. Miller because his rating was based

upon a discriminatory motive, it would have been Ms. McKay, not plaintiff, who

should have been promoted to the position. Accordingly, as a matter of law,

plaintiff could not show that racial animus was a motivating factor in defendant’s

failure to promote him to the accounting administrative position--i.e., that “but

for” Mr. Klobus’s intentional discrimination in rating him lower than the white

applicant, he would have been promoted.     Cf. Wards Cove Packing Co. v. Atonio        ,

490 U.S. 642, 657 (1989) (holding that “a plaintiff must demonstrate that it is the




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application of a specific or particular employment practice that has created the

disparate impact under attack” in a Title VII disparate-impact case).

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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