                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-3510
                                     ___________

Marilyn B. Dionne,                      *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Donna E. Shalala, Secretary, U. S.      *
Department of Health and Human          *
Services,                               *
                                        *
            Appellee.                   *
                                   ___________

                               Submitted: November 17, 1999
                                   Filed: April 5, 2000
                                    ___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

       Marilyn Dionne filed this Title VII action alleging race and national origin
discrimination in the assignment of her classification grade as a public health nurse with
the Indian Health Service, an agency of the Department of Health and Human Services.
The District Court1 granted the Secretary's motion for summary judgment. We affirm.
                                            I.

      1
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
       Most employment within the federal government, including that at issue in this
case, is classified under the General Schedule established by 5 U.S.C. §§ 5101-5115
(1994). Positions are classified according to their difficulty and level of responsibility,
and pay rates are set accordingly. For example, grade GS-1 positions, which currently
pay an annual salary of up to $20,000, are characterized by the "simplest routine work"
under "immediate supervision, with little or no latitude for the exercise of independent
judgment," while GS-15 positions, which currently pay an annual salary of up to
$117,000, are characterized by "work of outstanding difficulty and responsibility." 5
U.S.C. § 5104.

       In this case, Dionne, a member of the Turtle Mountain Band of Chippewa,
started work in May 1991 as a GS-7 clinical nurse for the Belcourt Hospital of the
Indian Health Service. After a year, Dionne advanced to grade GS-9. In September
1992, Dionne applied for a public health nurse position within Belcourt Hospital. She
apparently was the only applicant for the job, and her application was referred to
Delbert Haskell, a personnel staffing specialist for the Indian Health Service. Mr.
Haskell considered her education, experience, and prior federal government
employment and concluded that she only was qualified to be referred for a GS-7 public
health nurse position. Under the qualification standards that Mr. Haskell used to grade
Dionne's application, positions at GS-9 and above required that one year of
professional nursing experience must be sufficiently related to public health nursing in
both subject matter and grade level. Mr. Haskell believed that Dionne's experience as
a clinical nurse did not satisfy that standard. Accordingly, Dionne's application was
referred at the GS-7 level, and she became a GS-7 public health nurse in June 1993.
Dionne need not have accepted the transfer to the GS-7 position (she could have opted
to remain a GS-9 clinical nurse); she voluntarily accepted the GS-7 position because
of her interest in working in the public health field.




                                            -2-
       Approximately a year later, Susan Kartes, a non-Indian, was hired as a public
heath nurse at Belcourt Hospital. Dionne soon learned that Kartes was hired for a GS-
11 position. Dionne thought they had equivalent experience and believed she had been
discriminated against when placed in the GS-7 position.2 Dionne filed a complaint with
the Equal Employment Opportunity Counselor at Belcourt and later filed a charge of
race and national origin discrimination with the Equal Employment Opportunity
Commission. The Secretary denied her claims, and Dionne brought suit in the District
Court.

                                          II.

       Dionne brought this case as a Title VII action. Accordingly, at the District
Court, the case was analyzed under the familiar burden shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. On summary judgment,
the District Court found that Dionne established a prima facie case of disparate
treatment, but concluded that the Secretary articulated a nondiscriminatory reason for
the grading decision—that Dionne was not qualified for the GS-9 or GS-11 positions.
On appeal, Dionne in essence claims that the Secretary applied the wrong qualification
standards in grading her public health nurse application. Instead of applying standards
specially formulated for Indian applicants as required by the Indian Preference Act, 25




      2
        Although the duties of the GS-7, GS-9, and GS-11 public health nurse positions
appear to be the same at Belcourt Hospital for all practical purposes, the positions
technically have different job descriptions with varying levels of responsibility. See
App. at 35-44.
                                          -3-
U.S.C. § 472 (1994),3 Dionne alleges the Secretary applied the general civil service
qualification standards then known as X-118 standards.4

      The Indian Preference Act provides:

             The Secretary of the Interior is directed to establish standards of
      health, age, character, experience, knowledge, and ability for Indians who
      may be appointed[, without regard to civil-service laws,] to the various
      positions maintained, now or hereafter, by the Indian Office, in the
      administration of functions or services affecting any Indian tribe. Such
      qualified Indians shall hereafter have the preference to appointment to
      vacancies in any such position.

25 U.S.C. § 472 (1994); see also Preston v. Heckler, 734 F.2d 1359, 1367-69 (9th Cir.
1984) (holding that Office of Law Revision Counsel erred in omitting as obsolete
phrase "without regard to civil-service laws" from codification of Indian Preference
Act); Oglala Sioux, 603 F.2d at 715 (quoting Indian Preference Act in full and relying



      3
        For the first time on appeal, Dionne seems to argue that the alleged Indian
Preference Act violation constituted an independent claim. We decline to view Dionne's
complaint as alleging anything other than a Title VII violation. Dionne's complaint
does not mention the Indian Preference Act nor does it seek administrative review of
an agency decision as was sought for an alleged Indian Preference Act violation in
Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979). Furthermore,
the District Court only discussed the Indian Preference Act in the context of its
discussion of evidence of pretext.
      4
        While the record is not a model of clarity on this point, we believe that Dionne
is correct on this point. Mr. Haskell's affidavit refers to qualification standards for
general scheduled positions. And, in response to whether he applied "any special
standards that were different from civil service that were meant to reflect her Indian
background," Mr. Haskell stated, "No." App. at 54-55.


                                          -4-
on phrase "without regard to civil-service laws" in reaching decision).5 The Indian
Preference Act does more than simply require preference in employment decisions for
qualified Indian applicants; it "requires the Secretary to establish separate standards for
evaluating the qualifications of Indians for employment in the Indian Health Service."
Preston, 734 F.2d at 1369-70 (rejecting argument that "the Act only requires that
Indians be given preference in hiring when they are equally or more qualified than non-
Indian applicants"). While Preston was decided by the Ninth Circuit and thus is not
binding on us, the Secretary has undertaken to comply with its mandate to establish
separate standards for Indian applicants. Furthermore, in Oglala Sioux, on which
Preston relies, we held that the Indian Preference Act forbids the "blind transference
of general Civil Service principles." Oglala Sioux, 603 F.2d at 716 (holding that
general civil service conflict-of-interest regulation did not apply to tribal member).

      Although Preston and Oglala Sioux forbid the "blind transference" of civil
service standards, those decisions emphasized that the general civil service standards
nevertheless may have significant bearing on the appropriate standards for Indian
applicants:

      If, after giving full weight to the unique experience and background of
      Indians, as required by statute, the Secretary concludes that the only
      proper qualifications for a particular position are those that have already
      been adopted as a part of the civil service regulations, her separate and
      independent adoption of the same standards would not be unlawful.

Preston, 734 F.2d at 1372; accord Oglala Sioux, 603 F.2d at 716-17. As in Preston,
we are mindful that the Secretary must adopt standards that recognize "the strong



      5
        Despite contrary indications from two courts of appeals, the 1994 version of
the United States Code still omits as obsolete "without regard to civil-service laws"
from the codified version of the Indian Preference Act.
                                            -5-
federal policy of ensuring that health services provided to Indians are of the highest
quality." Preston, 734 F.2d at 1371-72.

       After the Ninth Circuit's decision in Preston, the Secretary established a steering
committee to review the qualification standards in the Indian Health Service and to
recommend qualification standards for Indian preference applicants. See Plan for the
Review of Qualification Standards for Indians in the Excepted Service in the Indian
Health Service, 49 Fed. Reg. 37,474 (1984). Among the steering committee's first
actions was to identify a limited number of occupations for a pilot study. Public health
nursing, also known as community health nursing, was among those occupations
selected. In December 1986, the Secretary transmitted new qualification standards for
Indian preference applicants to those occupations in the pilot study, including public
health nurse positions. See Indian Health Service, Excepted Service Qualification
Standards for Community Health Nurse Positions, Transmittal Sheet No. 1 (1986).
These new qualification standards for Indian preference applicants to public health
nurse positions are self contained and make no explicit reference to the X-118
standards. Six years later, in December 1992, the Secretary gave notice that the Indian
Health Service "intends to adopt the [U.S. Office of Personnel Management]
qualification standards (X-118 standards) for all personnel series not yet covered by
excepted service standards published for Indian applicants." Plan for the Completion
of the Review of Qualification Standards for Indians in the Excepted Service, 57 Fed.
Reg. 57,070 (1992).6 Because public health nurse positions were covered by new


      6
         In addition, the Secretary provided for the use of two selective factors or
quality ranking factors for Indian applicants: "[a]bility to speak and interpret the
language of the Native American population to be served" and "[k]nowledge of the
culture, customs, and beliefs of the Native American population to be served." 57 Fed.
Reg. at 57,071. As we understand these terms, selective factors are qualification
standards that an agency may use in deciding whether applicants are basically qualified
for a position. On the other hand, an agency must use the X-118 standards in deciding
whether applicants are basically qualified for a position. Agencies use quality ranking
                                           -6-
qualification standards for Indian preference applicants—namely, the December 1986
transmittal—the December 1992 notice and thus the X-118 standards have no bearing
on this case.

      Unfortunately, the District Court was unaware of the new qualification standards
contained in the December 1986 transmittal.7 The District Court, citing the December
1992 notice, concluded that the Secretary correctly applied the X-118 standards to
Dionne's application. On this point, the District Court erred as a matter of law,
inasmuch as the X-118 standards were not the standards the Secretary should have
applied.

        But, as the District Court correctly pointed out, Dionne's rebuttal to the
Secretary's nondiscriminatory reason that she was not qualified must satisfy a two part
test: "[P]laintiff can avoid summary judgment only if the evidence considered in its
entirety (1) creates a fact issue as to whether the employer's proffered reasons are


factors to distinguish between qualified applicants. For example, all else being equal,
an applicant who could speak and interpret the language of the Native American
population to be served would rank higher than an applicant who could not.
      7
         The parties are responsible for this omission. Apparently, neither party brought
either the December 1986 transmittal or the December 1992 notice to the attention of
the District Court. The court found the December 1992 notice on its own. That no one
seemed to fully understand the complex administrative history of these qualification
standards, together with the unusual procedural circumstances of the summary
judgment order, which we need not describe, somewhat mitigate their failure to bring
the December 1986 transmittal to the attention of the District Court. In any case, we
treat Dionne's motion to supplement the record to include the December 1986
transmittal as a filing under Rule 28(j) of the Federal Rules of Appellate Procedure, and
we take judicial notice of it. We note that on appeal the Secretary admits that the
standards contained in the December 1986 transmittal applied to Indian applicants
during the period when Dionne's application for a public health nurse position was
pending.
                                           -7-
pretextual and (2) creates a reasonable inference that [race] was a determinative factor
in the adverse employment decision." Rothmeier v. Investment Advisers, Inc., 85 F.3d
1328, 1336-37 (8th Cir. 1996) (reconciling this Court's decisions after St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993)). "[T]he overall strength of [the] evidence must
be sufficient for a reasonable factfinder to infer that the employer's decision was
motivated by discriminatory animus." Id. at 1336.

       Dionne's only evidence of intentional discrimination is that three other Native
American nurses also accepted lower grade positions in their transfer from clinical
nursing to public health nursing and that the service unit director's only explanation for
her grade was "Because that's the way it is." App. at 28. We conclude, as the District
Court did, that this evidence is insufficient as a matter of law to create a reasonable
inference that intentional discrimination was a factor in the grading decision.

       We are left only with evidence that the Secretary applied the wrong standards
to Dionne's application. In other words, Dionne only has evidence that the Secretary's
nondiscriminatory reason that she was not qualified was based on the Secretary's
application of the X-118 standards rather than the Indian Preference Act standards as
established in the December 1986 transmittal. There is absolutely no evidence that the
application of the wrong standards was anything but an honest mistake.8 The

      8
          Judge Lay's dissent characterizes the inadvertent application of the wrong
standards as "unlawful." There is, of course, a sense in which that is true. In a case
brought pursuant to the Administrative Procedure Act seeking review of the Secretary's
decision, Dionne might well prevail on the theory that, since the wrong standards were
applied, the decision was "not in accordance with law." 5 U.S.C. § 706(2)(A) (1994).
But this is a disparate-treatment Title VII case, and to win such a Title VII case a
plaintiff must be able to show that the employer intentionally discriminated against the
plaintiff on account of race, color, religion, sex, or national origin. Much like the
example in Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993), in which racial
discrimination was described as an "improper" reason under Title VII, but not under
the Age Discrimination in Employment Act, the Secretary's use here of the wrong
                                           -8-
Secretary's stated reason for the GS-7 classification of Dionne was, in fact, the
Secretary's actual reason. We do not believe this evidence can show pretext or still less
that it can give rise to a reasonable inference of intentional discrimination. Without
more, the evidence only shows that the Secretary applied the wrong standards in the
context of a complex administrative system—a system so complex that even the parties
to this lawsuit failed to bring the December 1986 transmittal to the attention of the
District Court. That the December 1986 transmittal standards should have been applied
because Dionne is a tribal member does not make the Secretary's inadvertent failure to
do so somehow based on race or national origin. The Supreme Court has held that the
application of Indian preference does not constitute invidious racial discrimination in
violation of the Due Process Clause of the Fifth Amendment. See Morton v. Mancari,
417 U.S. 535, 551-55 (1974).9 Dionne cannot have it both ways; the Secretary's
mistaken failure to apply the standards also does not amount to discrimination. Of
course, it is possible that a failure to apply the Indian preference standards could be
motivated by discriminatory animus. But here, we simply have no evidence that was
the case. Without such evidence, Dionne's Title VII claim must fail. Accordingly, we
affirm the judgment of the District Court.




standards was improper under the qualification standards promulgated by the agency
in accordance with the Indian Preference Act, but not under Title VII. On the record
before us, the application of the wrong standards was merely inadvertent and simply
a mistake of law. Accordingly, it is not evidence of an intent to discriminate.
      9
         The Indian Preference Act is not an antidiscrimination law. "Rather, it is an
employment criterion reasonably designed to further the cause of Indian self-
government and to make the [Bureau of Indian Affairs] more responsive to the needs
of its constituent groups. It is directed to participation by the governed in the governing
agency." Morton, 417 U.S. at 554.
                                            -9-
LAY, Circuit Judge, Dissenting.

      I respectfully submit that the majority’s affirmance of the district court’s grant
of summary judgment in favor of the Secretary of the Department of Health and Human
Services (“Secretary”) is egregiously wrong. It is in direct opposition to the law
announced by the Supreme Court of the United States.

        This court cautioned in 1979 that the IPA forbids the “blind transference of
general Civil Service principles” to Indian hiring. Oglala Sioux Tribe of Indians v.
Andrus, 603 F.2d 707, 716 (8th Cir. 1979). Only five years later, the Ninth Circuit
stated that the IPA “requires the Secretary to adopt separate and independent standards
for evaluating the qualifications of Indians for employment in the Indian Health
Services . . . .” Preston v. Heckler, 734 F.2d 1359, 1371 (9th Cir. 1984). Additionally,
the Preston court emphasized that “positions in the Indian Health Service are exempt
from the civil service standards.” Id. at 1372. In 1986, responding to Preston, the
Secretary promulgated the Indian Health Service’s Qualification Standards for
Excepted Service (“1986 standards”). These standards expressly establish separate
criteria for the employment of Indians in certain excepted service positions, including
that of public health/community health nurse. Further, the 1986 standards preempt the
general civil service qualification standards, known as the X-118 standards. At the
time of Marilyn Dionne’s application for the public health nurse position, the 1986
standards were in effect and her application should have been evaluated under these
standards, as well as the IPA.

       Notwithstanding these legal precedents and the Secretary’s own 1986 standards,
the Secretary unlawfully and deliberately applied the general civil service standards to
Dionne’s application. In so doing, the Secretary determined that Dionne was only
qualified for a GS-7 position because, under the general civil service standards, she
lacked the required year of specialized service in public health nursing. Thus, in order


                                          -10-
to transfer into the new position and further her work within her tribal community,
Dionne was required to accept a pay scale demotion.10

       Today’s majority opinion compounds the Secretary’s unlawful action. The
majority acknowledges that the Secretary’s use of the general civil service standards
was unlawful; nevertheless, it accepts inadvertence as an excuse for such action and
concludes that the Secretary’s conduct was “an honest mistake” rather than a
subterfuge for discrimination. The majority’s reasoning is flawed.

A. Legitimate, Nondiscriminatory Reason

       In Title VII cases, after a plaintiff establishes a prima facie case of
discrimination,11 the burden of production shifts to the employer to articulate a
“legitimate, nondiscriminatory reason” for the employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) (emphasis added). Under this analysis, once
a prima facie case is established, a presumption arises that the employer unlawfully
discriminated against the employee. See Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). If the employer fails to rebut the presumption by meeting
its burden, the plaintiff is entitled to judgment as a matter of law. See St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).




      10
         The Secretary’s grading decision was made despite Dionne’s extensive nursing
background. At the time of her transfer, Dionne was licensed as a registered nurse by
the State of North Dakota, had years of experience in specialized services working as
a clinical nurse at Belcourt Hospital, and had been promoted from a GS-7 to a GS-9 in
that position. Significantly, her prior work consisted of extensive and diverse
experience within her tribal community.
      11
        The district court held, and the majority accepts, that Dionne established a
prima facie case.
                                        -11-
        In Burdine, the Supreme Court stated, “the employee’s prima facie case of
discrimination will be rebutted if the employer articulates lawful reasons for the
action . . . .” Burdine, 450 U.S. at 257 (emphasis added). Additionally, Black’s Law
Dictionary defines the adjective “legitimate” as “[c]omplying with the law; lawful.”
BLACK’S LAW DICTIONARY 912 (7th ed. 1999). Thus, by usage and definition, an
unlawful or illegal ground cannot serve to satisfy an employer’s burden of articulating
a “legitimate, nondiscriminatory reason.”12 In this matter, after Dionne established her
prima facie case, the Secretary’s proffered “legitimate, nondiscriminatory reason” for
its action rested solely on the conclusion that she was not qualified for a higher grade
under the general civil service qualification standards. The majority now concedes that
the Secretary acted unlawfully in applying these standards; yet it allows such illegality
to stand. Such a conclusion belies logic.

       Additionally, the majority’s opinion overlooks what is perhaps the best known
legal maxim – “ignorance of the law is no excuse.” While this maxim is one of general
applicability, it must be applied more acutely to those who are presumed to know the
law and are trusted to apply it. See Screws v. United States, 325 U.S. 91, 129 (1945)
(Rutledge, J. concurring) (“[Ignorance of the law] is less an excuse for [individuals]
whose special duty is to apply it, and therefore to know and observe it.”). In this case,
the Secretary was charged by Congress to promulgate specific employment standards

      12
         This discussion of the inherent failure of unlawful reasons should not be taken
out of context. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993), the Supreme
Court stated “it cannot be true that an employer who fires an older black worker
because the worker is black thereby violates the ADEA. The employee’s race is an
improper reason, but it is improper under Title VII, not the ADEA.” Thus, the Court
has noted that articulation of an illegal but true reason, unrelated to the claim at issue,
may satisfy an employer’s burden. However, the discussion in Hazen stands in contrast
to the instant facts. Here the articulated reason was lack of qualification under the X-
118 standards. The very application of such standards directly violates laws designed
to give preferential treatment to Native Americans in employment. Such illegality is
intricately related to the Title VII claim at stake.
                                           -12-
for Indians, which it did. The Secretary then failed to apply its own standards in the
present case. If the time-tested maxim is to retain any vitality, it minimally must mean
that knowledge of the IPA and of one’s own promulgated standards is to be imputed
to the Secretary. Once such knowledge is properly attributed, it necessarily follows
that the Secretary deliberately chose to ignore the law and applied unlawful criteria to
Dionne’s application. Professing ignorance does not transform such a choice into
inadvertence or an innocent mistake, and to allow such is to invert the legal maxim.

        On the record before us, the Secretary failed to articulate a legitimate,
nondiscriminatory reason for the employment decision; thus, Dionne’s prima facie case
and its corresponding presumption remain un-rebutted. Consequently, the district court
should have granted judgment as a matter of law in favor of Dionne. In failing to do
so, the district court, and now this court, permit a governmental agency to escape
liability under Title VII by pleading ignorance of its own rules, legislation, and of anti-
discrimination laws. The IPA and the 1986 standards were designed to overcome the
historically recognized negative effects of non-Indian control of Indian affairs and to
facilitate the return of control to Indians. Title VII was designed, in part, to remedy
race and national origin discrimination in employment. Today’s holding undermines
each of these objectives by simultaneously acknowledging the applicability of the laws
and standards while excusing their violation because of alleged ignorance. Such
strained analysis surely must fail.

B. Pretext

       Notwithstanding the above discussion, the majority accepts the Secretary’s
assertion of Dionne’s lack of qualification as a legitimate, nondiscriminatory reason and
proceeds to analyze whether Dionne proved pretext under the third prong of
McDonnell Douglas. Although I disagree for the reasons previously stated, for
purposes of discussion I will assume that an unlawful, nondiscriminatory reason can
suffice to carry the employer’s burden in a pretext case.

                                           -13-
       Here, the Secretary’s asserted nondiscriminatory reason was lack of
qualification; it is undisputed, however, that the Secretary used unlawful standards in
determining Dionne’s qualifications. Consequently, the alleged nondiscriminatory
reason serves as evidence of pretext because the reason given was false and could not
be the true reason for her lack of promotion.

      As the Supreme Court observed in Hicks:

      (1) the plaintiff must show “both that the reason was false, and that
      discrimination was the real reason,” and (2) “it is not enough . . . to
      disbelieve the employer.” Even though (as we say here) rejection of the
      defendant’s proffered reasons is enough at law to sustain a finding of
      discrimination, there must be a finding of discrimination.

Hicks, 509 U.S. at 511 n.4 (emphasis in original) (internal citations omitted).

        The majority concedes in the closing lines of its opinion: “it is possible that a
failure to apply the Indian preference standards could be motivated by discriminatory
animus.” This being so, the Secretary’s motivation or intent is a question for the jury
to decide. As it stands, two reasonable inferences can be drawn from the evidence: (1)
the Secretary’s misapplication of the law was inadvertent or a mistake; or (2) the
Secretary’s misapplication was motivated by discriminatory animus.

      At the very least, the plaintiff has demonstrated, and this court now agrees, that
the employer’s articulated reason was not the true reason and the trier of fact should
then determine whether a mistake or discriminatory animus motivated the Secretary’s
action. This is the typical pretext case. It seems highly plausible that plaintiff’s
counsel, through effective cross-examination of the Secretary, could expose the
incredulity of a high ranking government official’s claim that he or she was not aware
of the applicable laws or standards, and that failure to apply them was merely a good
faith mistake. As the Burdine Court noted, “there may be some cases where the

                                          -14-
plaintiff’s initial evidence, combined with effective cross-examination of the defendant,
will suffice to discredit the defendant’s explanation.” Burdine, 450 U.S. at 255 n.10.

       Under these circumstances, even if one assumes this is a pretext case, the
inferences to be drawn from the Secretary’s claim should be drawn by a trier of fact
and not the court. In all of the precedents of this court as well as those of the United
States Supreme Court, where the employer’s articulated reason is shown to not be the
true reason, then pretext is deemed to have been shown and the trier of fact must be
given the opportunity to infer whether the given reason hides intentional discrimination.
Therefore, I conclude, even under a pretext analysis, this case should not have been
dismissed at the summary judgment stage.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -15-
