                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS                           MAR 31 2000
                                      TENTH CIRCUIT
                                    ____________________
                                                                             PATRICK FISHER
                                                                                       Clerk

 ERIC GOMEZ,

           Plaintiff/Appellant,
                                                               No. 99-1113
 vs.                                                       (D.C. No. 97-B-1626)
                                                                 (D.Colo.)
 CITY OF EDGEWATER, a municipal
 corporation; ROGER MARIOLA; and
 DAVE ROBERTS,

           Defendants/Appellees.
                                   ____________________

                                  ORDER AND JUDGMENT*
                                    ____________________

Before BRISCOE and PORFILIO, Circuit Judges, and ROGERS, Senior District
Judge.**
                         ____________________

       Plaintiff/Appellant Eric Gomez brought this employment discrimination action against

the defendants alleging violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the

Civil Rights Act of 1871, 42 U.S.C. § 1983; and Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq, as amended by the Civil Rights Act of 1991. Gomez contended



       *
        This order and judgment is not binding precedent, except under the doctrines of law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.
       **
         The Honorable Richard D. Rogers, Senior United States District Judge for the
District of Kansas, sitting by designation.
that he was discriminated against by the defendants when they failed to hire him as a full-

time police officer on the police department for the City of Edgewater, Colorado (“City”)

because he is Hispanic. He also asserted state law claims of breach of implied contract and

breach of covenant of good faith and fair dealing. The district court granted summary

judgment to the defendants on all of Gomez’ claims. Gomez appeals the district court’s

order. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

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

Bell Wireless, Inc. v. Johnson County Bd. of County Commissioners, 199 F.3d 1185, 1189

(10th Cir. 1999). Accordingly, we review the record and all reasonable inferences in a light

most favorable to the nonmoving party. We will uphold the district court’s decision only if

no genuine issue of material fact exists and the prevailing party is entitled to judgment as a

matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). A mere

scintilla of evidence supporting the nonmovant does not create a genuine issue of material

fact. Rather, the nonmovant must present facts from which a reasonable jury could find in

its favor. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999).

       In August 1995, Alan Pfeuffer was the City’s Police Chief. Pfeuffer contacted Gomez

and invited him to become a member of the City’s reserve police officer unit. Gomez later

accepted and became a reserve officer in November 1995. Chief Pfeuffer advised Gomez

that future police department hires would come from the reserve unit since the department

had established an assessment center that would test and rank members of the reserve unit


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who wanted to become full-time officers.

       On May 20, 1996, an assessment center examination was conducted by the Edgewater

Police Department to fill an upcoming vacancy. Gomez, along with three others, took the

test. Gomez ranked first and reserve officer Dave Munoz ranked second. At the time, the

Department was in need of someone with advanced computer skills which Gomez did not

possess, but which Munoz did. Gomez was approached by Chief Pfeuffer and asked to step

aside so the City could hire Munoz and his computer skills. Gomez was told he would get

the next available vacancy and would be assigned a seniority date retroactive to a date earlier

than Munoz. Gomez initially agreed and then attempted to rescind the oral agreement

because of his concern that something might go wrong. Chief Pfeuffer assured him that

nothing would go wrong, and Gomez agreed to step aside and allow Munoz to be hired. The

oral agreement was reduced to writing on May 28, 1996. In the document, Gomez was

advised that his hiring as a full-time officer would occur “hopefully in late summer.”

       On July 15, 1996, Chief Pfeuffer was medically retired as Chief as a result of an on-

duty injury he suffered. Dave Roberts became acting Police Chief. In late summer 1996,

Roberts was informed by the Edgewater City Council that $10,000 had been allocated so two

temporary part-time police officers could be hired, if he chose to do so.

       In September 1996, the City Council passed an ordinance eliminating eligibility lists

and requiring candidates for City positions to obtain applicable certifications provided by the

Denver Regional Council of Governments (“DRCOG”). In the case of police officers,


                                              3
DRCOG offered testing known as the Centralized Organization for Police Selection, or

C.O.P.S. Under this amendment, individuals hired as police officers by the City had to be

C.O.P.S. certified.

       In October 1996, Gomez became concerned about his situation since he had not been

hired. Chief Roberts informed Gomez of the change in eligibility brought about by the

amendment. Roberts told Gomez that he was bound to follow the City’s ordinances, but that

he would honor Gomez’ top ranking on the eligibility list for a period of one year from the

issue date of the list, which was May 20, 1996.

       During the remainder of his service with the City, Gomez was not offered permanent

employment since no positions became vacant within the Police Department. Chief Roberts

chose not to hire anyone with the additional money that was budgeted by the City Council.

On January 3, 1997, Gomez submitted his resignation as a reserve officer. He later attempted

to rescind his resignation letter, but his request was denied.

       The defendants sought summary judgment in district court on all claims asserted by

Gomez. As to the discrimination claims, they argued that Gomez had failed to establish a

prima facie case of discrimination. The district court agreed, approving a magistrate’s

recommendation. In concluding that Gomez had failed to establish a prima facie case of

discrimination, the magistrate stated:

              In the present case, Plaintiff is Hispanic and therefore a member of a
       protected class. Plaintiff has not established, however, that he received
       unfavorable treatment or that similarly situated employees not in the protected
       class were treated differently. Although funds were available to hire part-time

                                              4
       officers as of August 1996, no positions were created, and no officers were
       hired from that time until the date Plaintiff resigned from the reserve program.
       Plaintiff has failed to establish any evidence that the failure to hire new
       officers was based on a desire to avoid hiring Plaintiff. Such allegations and
       Plaintiff’s deposition testimony on this issue are entirely conclusory.
       Furthermore, with regard to the position that was filled by Munoz in May
       1996, Plaintiff was approached by the Chief of Police at the time and asked to
       relinquish his number one position on the hiring eligibility list in order to
       accommodate the Department’s need to hire an individual with computer
       expertise. Plaintiff agreed to this arrangement on the condition that he would
       remain at the top of the list. The evidence indicates that the subsequent Chief
       of Police stated to Plaintiff more than once that he would honor Plaintiff’s
       position on the list if Plaintiff complied with the other hiring requirements for
       any positions which became available.

       As to the contract claims, the defendants argued that the memorandum between Chief

Pfeuffer and Gomez did not create a contract and, even if it did, there was no breach. The

district court also granted summary judgment on this claim, again approving the

recommendation of the magistrate who found that there was no breach of the contract

because there were no positions vacant or available prior to Gomez’ resignation.

       We are in accord with the analysis and the result of the district court on both of these

issues. Since no vacancies ever existed, Gomez was not rejected for employment. No offers

of employment were made to anyone during this period. There was simply no unfavorable

employment decision. Accordingly, we agree with the district court judge that Gomez did

not present sufficient evidence to demonstrate a prima facie case of discrimination. See

Griffith v. State of Colorado, Division of Youth Services, 17 F.3d 1323, 1331 (10th Cir.

1994) (employer did not engage in retaliation or continuing discrimination against employee

where, following filing of action, there were no positions available for employee or any other

                                              5
employee eligible for promotion because of employer’s state-wide freeze on promotions).

Moreover, we find no evidence of a breach of the agreement that Gomez entered into with

the City, to the extent that this memorandum of understanding can even be characterized as

a contract. The memorandum of understanding indicated only that Gomez would be offered

a position when a position became available. Again, since no vacancies occurred, Gomez

could not have been offered a job. The fact that the City had set aside money for some

positions does not mean that the Police Chief had to create those positions.

       In sum, the decision of the district court is AFFIRMED.

                                                 Entered for the Court


                                                 Richard D. Rogers
                                                 District Judge




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