                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 2 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JOANNE S. BIRGE,

                Plaintiff-Appellant,

    v.                                                   No. 97-2158
                                                  (D.C. No. CIV-95-1507-JP)
    KENNETH S. APFEL, Commissioner,                       (D. N.M.)
    Social Security Administration, in his
    official capacity, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **


Before TACHA, KELLY, 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


*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
Shirley Chater, former Commissioner of Social Security, as the defendant in this
action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Joanne Birge appeals the district court’s grant of summary

judgment in favor of the defendant, the Commissioner of the Social Security

Administration, on her Title VII disparate treatment gender discrimination claim.

Ms. Birge asserts that the Commissioner did not hire her as an administrative law

judge (ALJ) while hiring less qualified males.


                                I. BACKGROUND.

                            A. The ALJ Hiring Process.

      To be selected for an ALJ position, an applicant must complete a series of

applications with the Office of Personnel Management (OPM). Applicants

considered most qualified are then selected for an interview, after which OPM

evaluates all of the information and gives each candidate a numerical rating

between 70 and 100. The candidates are then listed as eligible for selection.

When there is an available ALJ position, OPM places the eligible candidates on a

certificate showing each candidate’s rank, which is provided to the agency.

      When the Social Security Administration decides to fill an ALJ position, its

Office of Hearings and Appeals (OHA) sends the eligible candidates a list of

available job locations and requests their location preferences. The OHA

interviews candidates and prepares a list of the three highest ranked eligible

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candidates on the certificate for each available location. The appointing officer is

to fill the vacancy from among the highest three eligible candidates on the

certificate; however, qualified veterans and other “preference eligibles” must be

selected if such person is ranked higher than a nonpreference eligible.

Subsequent vacancies are filled from the remaining three highest ranked eligible

candidates requesting a preference for the available location. An appointing

officer is not required to consider an eligible candidate who has been considered

for three separate appointments from the same or different certificates for the

same position.

                            B. Ms. Birge’s Application.

      Ms. Birge, who is a New Mexico state court judge, applied for an ALJ

position in 1993 and was given a score of 93.8. Ms. Birge was interviewed by a

panel of three OHA employees, including Jose Anglada, the official responsible

for making the final hiring recommendation to the Commissioner. Ms. Birge was

included on four certificates of eligible candidates, and was considered three

times on each certificate. Ms Birge was never selected for an ALJ position. In

some instances, male candidates with higher scores were selected, but in at least

four instances, male candidates with lower scores than Ms. Birge’s were selected.

In two cases, female candidates with lower scores than Ms. Birge’s were selected.




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      After Ms. Birge was interviewed by OHA, but prior to the final hiring

selections, one of the ALJs from OHA’s Albuquerque office saw a news article in

the local paper about Ms. Birge’s conduct as a state court judge. He and another

Albuquerque ALJ forwarded this article and a subsequent news article about Ms.

Birge to Mr. Anglada. The first article, entitled “DA Says Judge Risking

Conflicts of Interest,” discussed the local district attorney’s request that Ms.

Birge stop hearing criminal cases because her husband was an attorney in the

local public defender’s office. The second article, entitled “Metro Judge’s Move

Irks DA, Clogs Court” stated that Ms. Birge had recused herself at the last minute

from forty criminal cases on her docket. The article included the district

attorney’s statements that he believed Ms. Birge issued the blanket recusal in

retaliation against him, and indicated that the last minute recusals could have

jeopardized some of the cases because of speedy trial deadlines. Mr. Anglada

stated that he decided not to select Ms. Birge for an ALJ position because these

news articles made him question Ms. Birge’s judicial temperament.


                                   II. ANALYSIS.

                               A. Standard of Review.

      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 review de novo the grant of summary judgment

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and apply the same legal standards as the district court under Rule 56.”

Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).

                                   B. Framework.

      To assert a claim of disparate treatment, Ms. Birge must show that she was

treated differently than other similarly situated nonminority applicants. See

Aramburu, 112 F.3d at 1403. To survive summary judgment on her Title VII

disparate treatment claim, Ms. Birge is required to produce evidence that she was

subjected to intentional discrimination based on her gender. See Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Randle v. City of

Aurora, 69 F.3d 441, 452 (10th Cir. 1995). We evaluate Ms. Birge’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 252-53;

Elmore v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995) (McDonnell Douglas

format is applicable to the analysis of Title VII claims of disparate treatment).

      Under this framework, Ms. Birge had the initial burden of showing a prima

facie case of discrimination. She met this burden by showing that she is a

member of a protected class; that she applied for and was qualified for an ALJ

position; that she was rejected despite her qualifications; and that the position was

filled by a male applicant. See Burdine, 450 U.S. at 253 & n.6; Sanchez v. Philip

Morris Inc., 992 F.2d 244, 245 (10th Cir. 1993).


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      The burden then shifted to the Commissioner to show a legitimate,

nondiscriminatory reason for his employment decision. See Burdine, 450 U.S. at

254. If the Commissioner satisfies this burden, the burden reverts to Ms. Birge to

show that the Commissioner’s proffered reasons were not the true reasons for the

employment decision. Ms. Birge 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.

                  C. Legitimate, Nondiscretionary Explanation.

      The Commissioner met his burden of production through evidence that Ms.

Birge was rejected because of the newspaper articles discussing her potential

conflict of interest and her last minute blanket recusal. Ms. Birge contends that

the Commissioner did not meet his burden because the given explanation,

according to Ms. Birge, is not a “legitimate” reason. Ms. Birge contends that the

decision not to hire her was merely the result of Mr. Anglada’s subjective

personal judgment that she lacked judicial temperament and, because the

Commissioner did not investigate the accuracy of the newspaper articles, his

reliance on unsubstantiated news articles injected “unrestricted caprice” and

“unrestrained subjectivity” into the otherwise objective federal merit selection

process. Therefore, Ms. Birge argues that the Commissioner’s proffered reason is


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not a rational explanation of his failure to hire her, nor is it a valid business

reason.

      We rejected an argument similar to plaintiff’s “failure to investigate”

argument in Panis v. Mission Hills Bank, N.A., 60 F.3d 1486 (10th Cir. 1995),

cert. denied, 516 U.S. 1160 (1996). There, an employee was dismissed from her

position at a bank following newspaper revelations that her husband had been

charged with misappropriating funds at another bank. Id. at 1489. The

employer’s proffered explanation for terminating plaintiff was its fear of losing

customer confidence. Id. at 1490. The plaintiff argued that the bank failed to

produce a legitimate, nondiscretionary reason for her termination because it failed

to conduct an investigation into the allegations or the impact, if any, of the

publicity upon the bank’s customers, and therefore, the bank failed to justify, with

objective evidence, its assumption that her credibility would be questioned. Id.

We rejected plaintiff’s argument, explaining that, to meet its burden of

production, defendant is required only to proffer a reason that is not, on its face,

proscribed by Title VII. See id. at 1490-91; EEOC v. Flasher Co., 986 F.2d 1312,

1316 & n.4 (10th Cir. 1992).

      “Title VII does not compel every employer to have a good reason for its

deeds; it is not a civil service statute.” Flasher, 986 F.2d at 1321 (quotation

omitted). An employer does not “need to litigate the merits of the reasoning, nor


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does it need to prove that the reason relied upon was bona fide, nor does it need

to prove that the reasoning was applied in a non-discriminatory fashion.” Id. at

1316; Panis, 60 F.3d at 1491. The fact that the Commissioner’s proffered

explanation rested, in part, upon a subjective determination by Mr. Anglada does

not mean the Commissioner failed to meet its burden of production. As the

Supreme Court pointed out in McDonnell Douglas itself, the mere fact that

subjective criteria are involved in the reason articulated by an employer does not

mean it cannot be accorded sufficient rebuttal weight to dispel the inference of

discrimination raised by the prima facie case. See McDonnell Douglas, 411 U.S.

at 803.

      Ms. Birge also contends that the Commissioner’s proffered reason is not

“legitimate” because it was an illegal explanation. She alleges it was

procedurally irregular under the federal merit selection process for the

Commissioner to select men with lower scores than hers. She also alleges the

Commissioner’s failure to investigate and verify the accuracy of the allegations

and implications in the newspaper articles violated the Privacy Act, 5 U.S.C.

§ 552a. Neither argument is persuasive.

      Ms. Birge has not presented any evidence that the Commissioner’s selection

was either illegal or irregular. The relevant merit selection provisions gives the

appointing authority discretion to select from among the highest three eligible


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candidates so long as the sole basis is merit and fitness. See 5 U.S.C. § 3318(a);

5 C.F.R. § 332.404. The Commissioner’s proffered explanation is based on merit

and fitness. Further, Ms. Birge has not cited any authority for her assertion that

the Commissioner’s proffered explanation violates the Privacy Act. Moreover,

“even if [the Commissioner’s] justification was in fact unlawful under a different

statute than [Title VII, he] satisfied its burden of production under McDonnell

Douglas by rebutting the inference that [he] acted out of discriminatory animus.”

Faulkner v. Super Valu Stores, Inc, 3 F. 3d 1419, 1434 (10th Cir. 1993). We

agree with the district court’s conclusion that the Commissioner met his burden to

come forward with a legitimate, nondiscriminatory reason for failing to hire Ms.

Birge.

                                      D. Pretext.

         We also agree with the district court that Ms. Birge has not produced

sufficient evidence to demonstrate a genuine issue of material fact concerning

whether the Commissioner’s proffered explanation for failing to hire her is

unworthy of belief. Pretext can be shown in employment discrimination cases by

“such weaknesses, implausibilities, inconsistencies, incoherences, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”


                                           -9-
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted).

In a disparate treatment case, pretext can be shown by evidence that other

similarly situated nonminority employees were treated differently for the same

behavior. See Elmore, 58 F.3d at 530; Aramburu, 112 F. 3d at 1403-06

(discussing disparate treatment requirement that employee be “similarly

situated”).

      Ms. Birge did not present any evidence that she was “held to a unique

standard and thus treated less favorably than male [candidates].” Cole v. Ruidoso

Mun. Sch., 43 F.3d 1373, 1381 n.6 (10th Cir. 1994). Ms. Birge contends that the

Commissioner’s reliance on the newspaper articles was unreasonable because he

did not investigate the accuracy of the articles or give her a chance to explain her

side of the story. She presented no evidence, however, that her treatment was

different from that afforded male applicants. To the contrary, Mr. Anglada

testified that unsolicited information had been received on male applicants and

that, as in Ms. Birge’s case, the male applicants were not given a chance to

explain any negative information received.

      Further, Mr. Anglada testified attempts were made to contact the chief

judge of Ms. Birge’s court in order to investigate the allegations in the news

articles, without success. Even if the Commissioner should have done more to

investigate the accuracy of the news articles about Ms. Birge, an employer’s


                                         -10-
failure to follow internal procedures “does not necessarily suggest that the

employer was motivated by illegal discriminatory intent or that the substantive

reasons given . . . were pretextual.” Randle, 69 F.3d at 454 & n.20.

      An employer does not violate Title VII by choosing among equally

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

See Burdine, 450 U.S. at 259. Ms. Birge has not presented evidence that she was

overwhelmingly better qualified than the other candidates. Mr. Anglada testified

that, in contrast to Ms. Birge’s application, nothing negative came to his attention

with respect to the candidates selected for ALJ positions. 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. See Sanchez, 992 F.2d at 247-48; 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.”).

      There is no evidence that the Commissioner’s decision was not actually

made on the basis of the news articles. Notwithstanding the presumption of


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discrimination that arises after a plaintiff establishes her prima facie case, “the

ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quotation and alteration

omitted). A “plaintiff’s ‘mere conjecture that [her] employer’s explanation is a

pretext for intentional discrimination is an insufficient basis for denial of

summary judgment.’” Panis, 60 F.3d at 1491 (quoting Branson, 853 F.2d at 772;

alteration in original). Ms. Birge presented neither direct evidence of the

Commissioner’s discriminatory motive, nor indirect evidence which would call

into question the Commissioner’s motives. See Elmore, 58 F.3d at 530.

      Accordingly, the judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                                      Entered for the Court


                                                      Deanell Reece Tacha
                                                      Circuit Judge




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