                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 30 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ALWIN NING,

                Plaintiff-Appellant,

    v.                                                   No. 96-6372
                                                   (D.C. No. CIV-95-1087-L)
    OKLAHOMA DEPARTMENT OF                               (W.D. Okla.)
    ENVIRONMENT QUALITY;
    OKLAHOMA STATE DEPARTMENT
    OF HEALTH, both agencies of the
    State of Oklahoma,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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-appellant Alwin Ning, appearing pro se, appeals the district

court’s summary judgment in favor of defendants, the Oklahoma Department of

Environmental Quality and the Oklahoma State Department of Health. Because

plaintiff has not shown the existence of a genuine issue of material fact, and

because defendants are entitled to judgment as a matter of law, we affirm.

      Plaintiff, a Chinese-American, has been employed by the Oklahoma

Department of Environmental Quality since 1973. 1 In 1982, he filed a

discrimination charge with the Equal Employment Opportunity Commission

(EEOC), alleging that he had been denied a promotion to a director position based

on his race and/or national origin. In an EEOC-brokered agreement, the parties

agreed that “in the absence of Larry Byrum from his official duties, Alwin Ning

will act in the capacity of Acting Director of Air Monitoring and Analysis

Division.” R., doc. 12, ex. F. Plaintiff contends that this agreement has never

been honored.

      In July 1990, and again in August 1990, plaintiff filed discrimination

charges with the EEOC, alleging that he had been subjected to discriminatory



1
       Before July 1993, plaintiff worked in the Air Monitoring and Analysis
Division of the Air Quality Service, which was a component of the Oklahoma
State Department of Health. On July 1, 1993, the Air Quality Service was
transferred to the newly-created Department of Environmental Quality. For
purposes of this appeal, plaintiff’s employer will be referred to as the Department
of Environmental Quality.

                                         -2-
treatment with respect to training opportunities and remuneration, and that he had

been subjected to retaliation for filing the previous charges. Although the exact

date is disputed, plaintiff received right-to-sue letters, at the latest, on

February 28, 1994.

      On June 1, 1993, Division Director Larry Byrum was promoted to Service

Chief of the Air Quality Service, and on July 1, 1993, the Air Quality Service

transferred to the Department of Environmental Quality. The vacant division

director position was announced in August 1993, and plaintiff was one of six

applicants for the position. In December 1993, a white male, whom the agency

believed to be more experienced, was hired to fill the position. In January 1994,

plaintiff filed a charge with the EEOC, alleging that the promotion denial and the

failure to honor the EEOC-brokered agreement were the result of discrimination

and retaliation for plaintiff’s former charges. On April 20, 1995, the EEOC

issued plaintiff a right-to-sue letter on the 1994 charges.

      Plaintiff brought this action on July 19, 1995, alleging that he had been

subjected to discrimination and retaliation, in violation of Title VII of the Civil

Rights Act of 1964, as amended; that defendants’ acts violated Oklahoma public

policy; and that defendants had breached the EEOC-brokered settlement

agreement. The district court dismissed the public policy claim because plaintiff

had not been terminated and because the Eleventh Amendment barred the claim.


                                           -3-
The court then granted summary judgment on the Title VII claims arising out of

the 1990 EEOC charges as untimely, on the Title VII claim arising out of the

1994 charge for failure to demonstrate a factual issue regarding pretext, and on

the breach of contract claim based on the Eleventh Amendment. Plaintiff appeals

only the grant of summary judgment on the Title VII claim arising out of the 1994

charge and the breach of contract claim.

      We review a grant of summary judgment de novo, applying the same

standards as those used by the district court. See Universal Money Ctrs., Inc. v.

American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Summary

judgment is appropriate if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We examine the record and reasonable inferences therefrom in the

light most favorable to the nonmoving party. Applied Genetics Int’l, Inc. v. First

Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). To survive summary

judgment, however, the nonmoving party cannot rest on its pleadings and must

“make a showing sufficient to establish the existence of an element essential to

that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

      We examine first whether plaintiff met his burden of showing a genuine

issue of material fact as to his employer’s motivation in failing to promote him to

division director. To survive summary judgment on his Title VII disparate


                                           -4-
treatment claim, plaintiff was required to produce evidence that he was subjected

to intentional discrimination. See Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). We evaluate plaintiff’s evidence pursuant to the

burden-shifting scheme first announced in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). See Burdine, 450 U.S. at 252.

      Under this framework, plaintiff had the initial burden of showing a prima

facie case of discrimination. He met this burden by showing that he is a member

of a protected class; that he applied for and was qualified for the director

position; that he was rejected despite his qualifications; and that the position was

filled by a white applicant. See id. at 253 & n.6. The burden then shifted to

defendant to show a legitimate, nondiscriminatory reason for its employment

decision. See id. at 254. Defendant met this burden through evidence that it

considered the person hired for the position to be more qualified than plaintiff.

      The burden then reverted to plaintiff to show that defendant’s proffered

reason was not the true reason for the employment decision. Plaintiff could meet

this burden “either directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence.” Id. at 256. A showing of

pretext, in itself, is all that is required to raise the inference of discriminatory

intent, no additional showing of actual discriminatory animus is necessary. See


                                           -5-
Randle v. City of Aurora, 69 F.3d 441, 451-52 & n.17 (10th Cir. 1995) (rejecting

pretext-plus standard).

      Plaintiff argues that he produced sufficient evidence of pretext to survive

summary judgment, and that the district court erred in requiring additional

evidence of defendant’s discriminatory intent. After reviewing the district court’s

order, we conclude that summary judgment was granted because plaintiff failed to

raise a factual issue regarding pretext, and not because he failed to produce

additional evidence of discrimination. The district court noted that plaintiff’s

evidence consisted simply of his belief that he was more qualified than the person

hired, and statements in the pleadings that the evidence at trial would show

discrimination and pretext. We agree with the district court that this evidence is

insufficient to meet plaintiff’s burden.

      The record shows that the successful applicant had held the position of

division director previously, had extensive experience developing and

implementing programs, and had more experience working with boards, councils,

and legislative matters than plaintiff. Objectively, therefore, the successful

applicant had qualifications that plaintiff lacked. Even if we assume that

plaintiff’s extensive experience in air quality management rendered him equally

qualified, an employer does not violate Title VII by choosing among equally

qualified candidates, so long as the decision is not based on unlawful criteria.


                                           -6-
See Burdine, 450 U.S. at 259. Absent evidence that one candidate is

“overwhelmingly better qualified,” pretext cannot be shown simply by comparing

plaintiff’s qualifications with those of the successful applicant. Sanchez v. Philip

Morris Inc., 992 F.2d 244, 247-48 (10th Cir. 1993); see also Fallis v. Kerr-McGee

Corp., 944 F.2d 743, 747 (10th Cir. 1991) (holding that mere disagreement with

employer’s evaluation of which geologists were best qualified, standing alone,

could not support finding of pretext); Branson v. Price River Coal Co., 853 F.2d

768, 772 (10th Cir. 1988) ( “As courts are not free to second-guess an employer's

business judgment, this assertion [that plaintiff was equally or more qualified] is

insufficient to support a finding of pretext.”).

      Plaintiff argues also that the district court erred in granting summary

judgment on his claim for breach of the settlement agreement. He argues that the

agreement created a constitutionally protected property interest in the Acting

Director position, and that, therefore, it could be enforced in federal court.

Because plaintiff’s complaint did not include a due process claim, however, this

argument does not provide a basis for reversing the court’s judgment. Even if

plaintiff had brought a due process claim, defendants would have been entitled to

summary judgment, both because they are not “persons” under 42 U.S.C. § 1983,

and because Congress has not abrogated Eleventh Amendment immunity for civil

rights actions. See Howlett ex. rel Howlett v. Rose, 496 U.S. 356, 376 (1990)


                                          -7-
(§ 1983); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)

(Eleventh Amendment). We do not address whether the State’s Eleventh

Amendment immunity was abrogated on the basis that an EEOC-brokered

agreement arises under Title VII whereas a privately-settled Title VII action does

not; plaintiff did not present this issue to the district court and does not raise it on

appeal. See National Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1244

(10th Cir. 1989) (“[W]e are not required to manufacture a party's argument on

appeal when it has failed in its burden to draw our attention to the error below.”).

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

Oklahoma is AFFIRMED. The mandate shall issue forthwith.



                                                       Entered for the Court



                                                       Wade Brorby
                                                       Circuit Judge




                                           -8-
