                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 17 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PATRICIA ANN GRIFFIS,

                Plaintiff-Appellant,

    v.                                                   No. 99-6420
                                                   (D.C. No. 99-CV-185-W)
    THE CITY OF NORMAN, a municipal                      (W.D. Okla.)
    corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , KELLY , and HENRY , 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)(2); 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      This order and judgment is not binding precedent, except under the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-appellant Patricia Ann Griffis appeals from the district court’s

order granting summary judgment in favor of defendant, the City of Norman,

Oklahoma (City), in her action claiming the City failed to promote her on the

basis of race in violation of Title VII and 42 U.S.C. § 1981. Because the record

indicates that Ms. Griffis made a prima facie showing under Title VII and offered

sufficient evidence of pretext to create a genuine dispute of material fact as to the

validity of the City’s articulated reason for not promoting her, we reverse.


                                   I. Background

                             A. The Promotion Decision

      Plaintiff, a black female, began her employment with the City’s Police

Department in 1988. Prior to 1988, Ms. Griffis worked in the Pittsburgh County,

Oklahoma Sheriff’s office for sixteen years. There, she was the undersheriff

matron, the highest office position under the Sheriff, and had both dispatch and

record keeping responsibilities. While employed with the City, she initially

worked as a dispatcher for several months. The City transferred her to the records

department, however, because white police officers complained they could not

understand her because she had the “accent” of a black person and did not have a

“radio voice.”   See Appellant’s App. at 45, 116. Ms. Griffis then worked as a

records clerk from 1989 to July 1996, where she was supervised by Kim Isaac

(Isaac), who held the position of Communications/Records Supervisor.

                                          -2-
      Ms. Griffis assumed Isaac’s responsibilities as Communications/Records

Supervisor whenever Isaac was absent due to illness or vacation, and twice for

several months while Isaac was on maternity leaves. Ms. Griffis received

accommodations for her performance in filling in for Isaacs and was told

she should be considered for a promotion whenever the opportunity arose.

In January 1996, Isaac evaluated Ms. Griffis’ performance as exceeding

expectations in nearly all performance factors. Isaac commended Ms. Griffis

in particular for her excellence in training new employees and for being

a dependable, hard-working employee.

      In July 1996, Ms. Griffis applied for the position of Communications/

Records Supervisor, being vacated by Isaac. The hiring decision was made by

a five member, all-white, interview board which reviewed the applicants’ written

applications and conducted oral interviews. The hiring decision was based on

subjective scores given to each applicant by each board member during the oral

interview. Each board member scored a white applicant, Shawn Bell (Bell), the

highest, and, based on these scores, Bell was promoted to Communications/

Records Supervisor. The board scored Ms. Griffis as the second-highest

applicant. Bell had worked for the City for only five months and was

a probationary employee being trained as a records clerk. Prior to her




                                        -3-
employment with the City, Bell had worked for sixteen months as a dispatcher

and jailer with the Wagoner County, Oklahoma Sheriff’s office.

                             B. Ms. Griffis’ Grievance

      Ms. Griffis filed a grievance with the City on July 30, 1996, claiming that

the selection process had not been fair or consistent with City guidelines, and that

the interview board had not taken into consideration her qualifications,

evaluations and performance. The City’s Personnel Director, George Shirley

(Shirley) reviewed the promotion decision during the first week of August 1996.

He concluded that Ms. Griffis was more qualified than Bell and, indeed, was the

best qualified applicant for the promotion. Shirley concluded that the decision to

promote Bell over Ms. Griffis was based on racial discrimination because, given

the relevant qualifications of Ms. Griffis and Bell, there was no other explanation

for the decision. He explained:

      [T]here’s no way you can consider a probationary employee without
      management experience over someone who’s worked for you for
      seven years, seven and a half years, and they’ve already proven that
      they can handle the job by filling in for supervisors when they were
      absent.

             And so -- and I took that to mean that there was some reason
      other than her qualifications that actually caused the decision to be
      made. . . . [I]t wasn’t [ ] female, it wasn’t sex, because both of them
      were females, and it had to be based on race.

Appellant’s App. at 135 (Shirley deposition).



                                         -4-
       Shirley, who is also black, immediately told one of the City’s assistant

attorneys, Jeff Bryant (Bryant) of his conclusion that race discrimination had been

involved in the decision not to promote Ms. Griffis. According to Shirley’s

deposition testimony, Bryant told Shirley he “needed to help him justify the

[Police] chief’s decision.”    Id. Shirley refused, telling Bryant he was not going to

be part of a decision that he believed to be discriminatory.   See id . According to

Shirley, Bryant then told him he needed to reconsider that decision because it

would have an effect on his future employment with the City.      See id . Several

days later, Bryant asked Shirley if he had reconsidered his decision. Shirley told

him he was not going to reconsider because he felt the promotion decision “was

a blatant act of discrimination.”   Id. at 136.

       On August 21, 1996, the City’s Chief of Police, Phil Cotton (Cotton),

denied Ms. Griffis’ grievance. He stated that each board member independently

scored Bell higher than Ms. Griffis. He stated that the questions asked during the

oral interview covered a wide variety of topics, including education, training,

experience, communication skills, interpersonal relations, problem solving skills,

personal characteristics and overall suitability for the position. Cotton stated that

although Ms. Griffis had more years of experience than Bell, Ms. Griffis had

“performance deficiencies” as a dispatcher, whereas Bell had experience as




                                             -5-
a dispatcher. Id. at 45. Cotton concluded that the scores were reasonable, and he

found nothing in the process to show bias.

      Ms. Griffis appealed Cotton’s denial of her grievance to the City Manager,

Ron Wood (Wood). Wood asked the City’s Personnel Department to evaluate the

selection process used for the promotion. Wood, Shirley, Bryant and Cotton then

met to discuss Ms. Griffis’ grievance. Shirley reported that the Personnel

Department had concluded that the City did not use the same factors in selecting

Bell as it had used to fill the same supervisory position in January 1996. In the

case of the Bell promotion, the City had not done any background investigation of

the applicants, even though the City’s Personnel Manual called for such an

investigation, and the City had always performed a background investigation in

connection with past promotions, even when the applicants were already City

employees. The Personnel Department conducted a background investigation of

Bell, and reported to Wood that her application for the Communications/Records

Supervisor position misstated that she had previous managerial experience.

      At the meeting, Wood asked what would happen if he rescinded Bell’s

promotion and placed Ms. Griffis in the Communications/Records Supervisor

position. Bryant told Wood that such action would subject the City to a reverse

discrimination claim by Bell.   See id. at 138. Wood then ordered that an entirely




                                          -6-
new selection procedure be adopted by the City, and that all the applicants reapply

for the promotion using the new procedure.

      Several days after this meeting, Personnel Department employees reported

to Shirley that Bryant had approached them and asked them to find information to

justify accusing Shirley of sexual harassment. In October 1996, Wood informed

Shirley that employees had filed sexual harassment charges against him, and

suspended him from employment during the investigation. Shirley eventually

filed a complaint with the Equal Employment Opportunity Commission (EEOC).

The EEOC determined that the City had retaliated against Shirley because he

objected to the Bell promotion and contended that the City’s decision not to

promote Ms. Griffis had been based on racial discrimination.

      A new evaluation of Ms. Griffis’ job performance was prepared by Isaac

and dated September 3, 1996. The City admits that Ms. Griffis’ signature on this

new evaluation was forged, and that, contrary to City procedure, Ms. Griffis was

not shown a copy of this evaluation. The new evaluation gave Ms. Griffis lower

marks on many performance criteria, including training and overseeing personnel,

than she received on her January 1996 evaluation, and Ms. Griffis’ overall

performance rating was lowered from “exceeds” expectations in January 1996,

to “meets” expectations on the new evaluation. Bell’s July 1996 overall




                                        -7-
performance rating was also listed as “meets” expectations, although she was

ranked lower than Ms. Griffis in almost all areas of performance criteria.

      The City adopted a completely revised selection process for the

Communications/Records Supervisor position, including an essay and

multiple-choice written examination and a detailed rating system for scoring

answers during the oral interview. On November 6, 1996, the City sent

a memorandum to Ms. Griffis acknowledging that “the procedures utilized [in the

July promotion decision] did not adequately test the skills of all the applicants,”

and that “a more comprehensive process could have and should have been

conducted” during the original selection process.   Id. at 64. The City rescinded

Bell’s promotion, and allowed all of the original applicants to reapply under the

new selection process. Ms. Griffis did not reapply, stating that “the inconsistency

in the selection process, and Mr. Wood’s decision to altar (sic) the testing at this

time shows a pattern of discrimination.” Appellee’s Supp. App. at 1.

      The district court entered summary judgment in favor of the City on

Ms. Griffis’ claims, holding that the evidence presented could not persuade

a reasonable jury that the City had intentionally discriminated against her.




                                           -8-
                                       II. Analysis

                                 A. Standard of Review

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the court below.”         Munoz v. St. Mary-Corwin

Hosp ., 221 F.3d 1160, 1164 (10th Cir. 2000). Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, 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). “In applying this standard, we examine the factual

record and draw reasonable inferences therefrom in a light most favorable to the

nonmoving party.”     Munoz , 221 F.3d at 1164.

                                   B. Direct Evidence

      A plaintiff alleging racial discrimination in violation of Title VII or § 1981

“may prove intentional discrimination through either direct evidence of

discrimination (e.g., oral or written statements on the part of a defendant showing

a discriminatory motivation) or indirect (i.e., circumstantial) evidence of

discrimination.”    Kendrick v. Penske Transp. Servs., Inc.     , 220 F.3d 1220, 1225

(10th Cir. 2000). Ms. Griffis contends the comment from Bryant to Wood that the

City would be subject to a reverse race discrimination lawsuit if it rescinded

Bell’s promotion and gave the promotion to Ms. Griffis constitutes direct


                                            -9-
evidence of intentional discrimination. She argues that once the City learned that

no background investigations of the applicants had been done and that Bell had

misstated her managerial experience on her application for the promotion, she

would have been promoted based on her second-highest ranking by the interview

board had she not been a member of a protected class.

       “A plaintiff proves discrimination through direct evidence by establishing

proof of ‘an existing policy which itself constitutes discrimination.’”       Stone v.

Autoliv ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir.) (quoting       Ramsey v. City

& County of Denver , 907 F.2d 1004, 1008 (10th Cir. 1990)),         cert. denied ,

___ S. Ct. ___, No. 00-95, 2000 WL 1056492 (Oct. 2, 2000). “‘Statements which

on their face are expressions of personal opinion, however, can only support an

inference of discrimination if the trier of fact finds the inference reasonable, and

so constitute only circumstantial or indirect evidence of discrimination against the

plaintiff.’” Id. (quoting Tomsic v. State Farm Mut. Auto. Ins. Co.        , 85 F.3d 1472,

1477 (10th Cir. 1996)). We agree with the district court that Bryant’s comment

was merely an expression of his personal opinion and does not constitute direct

evidence of intentional discrimination.     See id . at 1136-37 (citing cases). Even

though Bryant’s recommendation was considered in the City’s decision not to

promote Ms. Griffis following the background investigation of Bell, his

comments do not represent an existing City policy which itself constitutes


                                            -10-
discrimination.   See Tomsic , 85 F.3d at 1477, 1478. As discussed below,

however, the district court erred in ignoring this comment as indirect, or

circumstantial, evidence of intentional discrimination.

                                 C. Circumstantial Evidence

       A plaintiff relying on indirect evidence employs the three-step analytical

framework first articulated in     McDonnell Douglas Corp. v. Green        , 411 U.S. 792

(1973). See Kendrick , 220 F.3d at 1226. “Under the           McDonnell Douglas

framework, the plaintiff ‘must carry the initial burden under the statute of

establishing a prima facie case of racial discrimination.’”          Id. (quoting McDonnell

Douglas , 411 U.S. at 802). “Once the plaintiff has established a prima facie case,

‘[t]he burden then must shift to the employer to articulate some legitimate,

nondiscriminatory reason’ for its employment action.”          Id. (quoting McDonnell

Douglas , 411 U.S. at 802). “If the defendant makes this showing, the plaintiff

must then show that the defendant’s justification is pretextual.”         Id.

                                    1. Prima Facie Case

       The City’s appellate brief does not refer to, or apply, the       McDonnell

Douglas analysis. It does not dispute that Ms. Griffis has established a prima

facie case of race discrimination, and, based on our review of the record, we

conclude that Ms. Griffis has satisfied her burden: (i) she is a member of the

class protected; (ii) she applied for and was qualified for the position of


                                            -11-
Communications/Records Supervisor; (iii) despite being qualified, she was

rejected; and (iv) after she was rejected, the position was filled.        See Kendrick ,

220 F.3d at 1226; EEOC v. Horizon/CMS Healthcare Corp.                , 220 F.3d 1184, 1195

n.6 (10th Cir. 2000).

                     2. Legitimate, Nondiscriminatory Explanation

       The City does not articulate on appeal what it claims to have been its

legitimate, nondiscriminatory reason for passing over Ms. Griffis for promotion.

Before the district court, the City argued that its justification for not promoting

Ms. Griffis was the fact that each member of the interview board separately

ranked Ms. Griffis second to Bell. This reason is sufficient to satisfy its

second-stage burden.     See EEOC v. Flasher Co. , 986 F.2d 1312, 1316 (10th Cir.

1992) (defendant need only articulate through some proof a facially

nondiscriminatory reason; it need not litigate the merits of the reasoning at this

stage of the proceeding).

       The City repeatedly states in its appellate brief that Ms. Griffis was not

qualified to do the job of Communications/Record Supervisor because she could

not do the job of dispatcher, and, therefore, could not supervise employees in the

Communications Department.         See Appellee’s Br. at 1, 3, 5, 7. The City does not




                                             -12-
explain how it believes this factor affects the     McDonnell Douglas analysis.   1



Even more significantly, the City fails to disclose in its brief the undisputed

evidence that Ms. Griffis was asked to transfer out of her dispatcher job because

white officers complained they could not understand her because she had the

“accent” of a black person. The City presented no evidence that Ms. Griffis’

“black accent” would interfere with her ability to perform the duties of

Communications/Records Supervisor, and its explanation fails to qualify as

a legitimate, nondiscriminatory reason for failing to promote Ms. Griffis to

a supervisory job.   See Flasher , 986 F.2d at 1317 (defendant must “explain

its actions against the plaintiff in terms that are not facially prohibited by

Title VII.”).

                                  3. Evidence of Pretext

       “[A] plaintiff’s prima facie case, combined with sufficient evidence to find

that the employer’s asserted justification is false, may permit the trier of fact to


1
        We presume the City is not advancing this argument in an attempt to defeat
Ms. Griffis’ prima facie case because it is well established that an employer may
not “short circuit” the McDonnell Douglas analysis by challenging a Title VII
plaintiff’s qualifications at the prima facie stage.  See Horizon/CMS Healthcare ,
220 F.3d at 1193, 1195 n.7; Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1470
(10th Cir. 1992). An employer’s subjective reasons for not promoting a plaintiff
may not be considered at the prima facie stage of the     McDonnell Douglas
analysis; to meet the prima facie case, plaintiff need only present some credible
evidence, including her own testimony, that she was minimally qualified to
perform the position sought.       See Horizon/CMS Healthcare , 220 F.3d at 1192-94;
Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1316 n.11 (10th Cir. 1999).

                                             -13-
conclude that the employer unlawfully discriminated.”     Reeves v. Sanderson

Plumbing Prods., Inc. , 120 S. Ct. 2097, 2109 (2000);   see also Randle v. City of

Aurora , 69 F.3d 441, 453 (10th Cir. 1995). A plaintiff can show pretext by

revealing “such weaknesses, implausibilities, inconsistencies, incoherencies,

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

a reasonable factfinder could rationally find them unworthy of credence.”

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

      [T]he evidence which a plaintiff can present in an attempt to
      establish that a defendant’s stated reasons are pretextual may take a
      variety of forms. . . . A plaintiff may not be forced to pursue any
      particular means of demonstrating that a defendant’s stated reasons
      are pretextual. A plaintiff typically makes a showing of pretext in
      one of three ways: (1) with evidence that the defendant’s stated
      reason for the adverse employment action was false; (2) with
      evidence that the defendant acted contrary to a written company
      policy prescribing the action to be taken by the defendant under the
      circumstances; or (3) with evidence that the defendant acted contrary
      to an unwritten policy or contrary to company practice when making
      the adverse employment decision affecting the plaintiff.

Kendrick , 220 F.3d at 1230 (citations, quotation and alterations omitted).

      On appeal, Ms. Griffis contends the district court erroneously ignored her

evidence of pretext and intentional discrimination and failed to view the evidence

in a light most favorable to her, as it is obligated to do under Rule 56. We agree

that the district court disregarded evidence favorable to Ms. Griffis and failed to

draw all inferences in her favor.



                                         -14-
       In rejecting her claims of pretext, the district court stated that Ms. Griffis

“presented no evidence to challenge the scores she received from the

interviewers.” Appellant’s App. at 207. The district court ignored the evidence

that Ms. Griffis was, in fact, more qualified for the promotion than Bell.

Ms. Griffis, who had twenty-one years more experience than Bell, presented more

than her own opinion of her qualifications: she presented the testimony of the

City’s Personnel Director, who reviewed all of the applications and concluded

that Ms. Griffis was the most qualified applicant for the promotion, was more

qualified than Bell in particular, and had performed the responsibilities of

Communications/Records Supervisor with commendations. “When an employer

contends that a [Title VII] plaintiff was not as qualified as the successful

candidates, pretext can be inferred from evidence that a plaintiff was in fact         more

qualified than those chosen.”    Martinez v. Wyoming, Dep’t of Family Servs.       ,

218 F.3d 1133, 1139 (10th Cir. 2000) (citing       Rea v. Martin Marietta Corp.,

29 F.3d 1450, 1457 (10th Cir. 1994));     see also Durham v. Xerox Corp. , 18 F.3d

836, 839 (10th Cir. 1994) (“[P]roof that [plaintiff] was more qualified would

disprove [the employer’s] only explanation for its actions, that [plaintiff] was less

qualified than the successful candidates.”).

       The district court also ignored the evidence that the reason given by the

City to explain why the interview board scored Ms. Griffis lower than Bell--her


                                            -15-
“performance deficiencies” as a dispatcher--is itself indirect evidence of

intentional discrimination.   2
                                  The City’s reliance on Ms. Griffis’ black “accent”

for not promoting her creates an inference of intentional discrimination because

the City made no showing that these claimed language difficulties would interfere

with her duties as a Communications/Records Supervisor.         See Carino v.

University of Okla. Bd. of Regents     , 750 F.2d 815, 819 (10th Cir. 1984) (holding

that comments regarding a plaintiff’s accent may constitute indirect evidence of

discrimination where there is no showing that language difficulties would

interfere with a plaintiff’s ability to perform the duties of the job). Indeed,

Ms. Griffis presented undisputed evidence that she was able to perform the

responsibilities of Communications/Records Supervisor, with commendations,

whenever her supervisor was on maternity leave or out of the office. This

evidence undercuts the City’s proffered explanation that Ms. Griffis’ alleged

communication deficiencies caused her to be scored as less qualified than Bell.

See Reeves , 120 S. Ct. at 2109 (holding that “a prima facie case and sufficient


2
       We note that there is no evidence that the subjective scoring by the
interview board members had any objective component. The use of subjectivity
in the decision-making process can create a “strong” inference of bias if the
plaintiff shows a “significant disparity” in the representation of a particular
group. Bauer v. Bailar , 647 F.2d 1037, 1045 (10th Cir. 1981). Although no
evidence was presented in this case to show whether blacks are significantly
underrepresented in supervisory positions in the City, the presence of subjective
decision making provides an opportunity for unlawful discrimination.      See id .
at 1046.

                                            -16-
evidence to reject the employer’s explanation may permit a finding of liability”);

cf. Fragante v. City & County of Honolulu     , 888 F.2d 591, 596 (9th Cir. 1989)

(“Accent and national origin are obviously inextricably intertwined in many cases

[and i]t would therefore be an easy refuge in this context for an employer

unlawfully discriminating against someone . . . to state falsely that it was not the

person’s [protected status] that caused the employment or promotion problem but

the candidate’s inability to measure up to the communications skills demanded by

the job.”).

       The district court also failed to draw all reasonable inferences in

Ms. Griffis’ favor when it considered the City’s admission that “the procedures

utilized [in the July promotion decision] did not adequately test the skills of all

the applicants,” and that “a more comprehensive process could have and should

have been conducted” during the original selection process. Appellant’s App.

at 64. The district court failed to recognize that the City has relied upon the

scores given during the original selection process as its asserted legitimate,

nondiscriminatory reason for not promoting Ms. Griffis. This reliance is undercut

by its own admission that the interview board did not adequately test the skills of

the applicants.   See Reeves , 120 S. Ct. at 2108-09 (“[O]nce the employer’s

justification has been eliminated, discrimination may well be the most likely

alternative explanation. . . .”). The City argues Ms. Griffis’ claim must fail


                                            -17-
because she did not have personal knowledge why the evidence of the City’s new

evaluation process could support a claim of discrimination.           See Appellee’s Br.

at 2, 8, 18. This argument fails to recognize that the City’s admission that the

original selection process did not adequately assess the applicants’ qualifications

serves to eliminate its proffered justification for hiring Bell over Ms. Griffis.

“[R]ejection of the defendant’s proffered reasons will          permit the trier of fact to

infer the ultimate fact of intentional discrimination. . . .”      St. Mary’s Honor Ctr.

v. Hicks , 509 U.S. 502, 511 (1993).

       The district court also ignored the evidence that, when presented with

Shirley’s conclusion that the promotion decision had been racially discriminatory,

Bryant told Shirley he had to help the Police Chief justify the hiring decision, and

threatened Shirley’s future employment if he did not do so. A trier of fact may

infer from this evidence that the City was attempting to cover-up a discriminatory

reason for passing over Ms. Griffis for promotion by manufacturing a facially

nondiscriminatory justification. “The factfinder’s disbelief of the reasons put

forward by the defendant (particularly if disbelief is accompanied by a suspicion

of mendacity) may, together with the elements of the prima facie case, suffice to

show intentional discrimination.”       Id.

       Moreover, this evidence, coupled with the evidence of retaliation against

Shirley when he challenged the City’s failure to promote Ms. Griffis because he


                                              -18-
believed it to be racially discriminatory, is evidence of a pattern of discrimination

by the City against minorities. An employer’s reaction to a Title VII plaintiff’s

civil rights activities and its general policy and practice with respect to minority

employment is evidence relevant to a showing of pretext.     See McDonnell

Douglas , 411 U.S. at 804-05. In this regard, the district court also failed to

consider the evidence that Isaac lowered Ms. Griffis’ evaluation after she filed

her grievance; that she failed to show the evaluation to her, contrary to City

policy; and that someone forged her signature on the evaluation. The City claims

this evidence is not relevant because it occurred two months after Ms. Griffis was

passed over for the promotion. This evidence is relevant, however, to the City’s

reaction to Ms. Griffis’ grievance, and a trier of fact may infer from this forged

evaluation that the City’s proffered reason for not promoting Ms. Griffis was

a pretext. See Shaw v. HCA Health Servs. of Midwest, Inc.    , 79 F.3d 99, 100

(8th Cir. 1996) (where plaintiff made out a prima facie case and there was

evidence that defendant had altered performance evaluations of plaintiff after

firing him, “jury was entitled (although not required) to conclude . . . that the

reasons given by the hospital for firing [plaintiff] were a pretext for age

discrimination.”). Moreover, given that Ms. Griffis’ evaluation was lowered to

equal Bell’s evaluation, and that she was denied knowledge of and opportunity to

respond to the lower evaluation, a trier of fact could infer that Ms. Griffis’


                                          -19-
evaluation was manipulated or falsified to be used in the new selection process

once the City decided that the applicants should reapply for the promotion.

See Beaird v. Seagate Tech., Inc.   , 145 F.3d 1159, 1168 (10th Cir. 1998) (holding

that a plaintiff can present evidence that her evaluation was deliberately falsified

or manipulated to adversely alter her employment status). The City did present

evidence that the lowered evaluation was actually Isaac’s opinion of Ms. Griffis’

performance. However, Ms. Griffis is entitled to have the court draw all

reasonable inferences from the forged evaluation in her favor.

       Finally, the district court also failed to consider as indirect evidence of

discrimination the discussion between Bryant and Wood that the City would be

subject to a reverse race discrimination lawsuit if it rescinded Bell’s promotion

and placed Ms. Griffis in the position. When the City ultimately learned that Bell

had misstated her managerial experience, it could have promoted Ms. Griffis as

the next highest ranking candidate as scored by the interview board. A trier of

fact could infer from the reverse discrimination discussion that the City chose not

to do so because Ms. Griffis was black.

       The City argues that Ms. Griffis’ claim must fail because she lacks any

personal knowledge or direct evidence that the interview board members

conspired together to intentionally discriminate against her.   See Appellee’s

Br. at 2, 9-10. The City’s argument ignores the well-established law that a


                                            -20-
plaintiff who lacks direct evidence of intentional discrimination may use the

McDonnell Douglas burden-shifting analysis to demonstrate intentional

discrimination because “there is rarely direct evidence of discrimination.”        Ingels

v. Thiokol Corp. , 42 F.3d 616, 621 (10th Cir. 1994).

       Finally, the City repeatedly notes that Ms. Griffis did not reapply for the

supervisory position after it adopted a new selection procedure.       See Appellee’s

Br. at 2, 4, 8, 21. It does not articulate how it believes this fact affects

Ms. Griffis’ Title VII and § 1981 claim that the City’s failure to promote her in

July 1996, and later that fall when Bell’s actual qualifications were revealed,

was racially motivated. An employer defending a Title VII action may limit its

damages by unconditionally offering the plaintiff the job she sought,         see Ford

Motor Co. v. EEOC , 458 U.S. 219, 232 (1982) (emphasis added), but no such

unconditional offer has been made by the City in this case. Moreover, even if a

Title VII plaintiff minimizes her damages “by accepting the defendant’s

unconditional offer, [s]he remains entitled to full compensation if [s]he wins [the]

case.” Id. at 233.




                                           -21-
                                  III. Conclusion

      We conclude that Ms. Griffis has presented a prima facie case of racial

discrimination and sufficient evidence for a jury to conclude the City’s reason for

passing her up for promotion was pretextual. Accordingly, the judgment of the

United States District Court for the Western District of Oklahoma is REVERSED,

and the case is REMANDED for further proceedings consistent with this order

and judgment.



                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




                                        -22-
