           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2      Leadbetter v. Gilley                      No. 02-6360
        ELECTRONIC CITATION: 2004 FED App. 0329P (6th Cir.)
                    File Name: 04a0329p.06                                  KRAMER, RAYSON, LEAKE, RODGERS & MORGAN,
                                                                            LLP, Knoxville, Tennessee, for Appellee. ON BRIEF:
                                                                            David R. Duggan, GARNER & DUGGAN, Maryville,
UNITED STATES COURT OF APPEALS                                              Tennessee, for Appellant. Edward G. Phillips, Penny A.
                                                                            Arning, KRAMER, RAYSON, LEAKE, RODGERS &
                   FOR THE SIXTH CIRCUIT                                    MORGAN, LLP, Knoxville, Tennessee, for Appellee.
                     _________________
                                                                                                 _________________
 RONALD C. LEADBETTER ,            X
          Plaintiff-Appellant,      -                                                                OPINION
                                    -                                                            _________________
                                    -   No. 02-6360
             v.                     -                                         RICHARD MILLS, District Judge. The district court
                                     >                                      awarded summary judgment against Ronald C. Leadbetter on
                                    ,                                       his employment discrimination claims.
 J. WADE GILLEY ,                   -
            Defendant-Appellee. -                                           He appeals.
                                   N
        Appeal from the United States District Court                        We AFFIRM.
     for the Eastern District of Tennessee at Knoxville.
    No. 00-00661—Thomas W. Phillips, District Judge.                             I. FACTUAL AND PROCEDURAL BACKGROUND
                                                                               In early September 1999, University of Tennessee (the
                     Argued: March 10, 2004                                 “University”) General Counsel Beauchamp Brogan
                                                                            announced his retirement effective December 31, 1999. The
            Decided and Filed: September 29, 2004                           University’s then-president, J. Wade Gilley, proceeded to fill
                                                                            the job opening. Prior to any advertisement of or search for
   Before: MARTIN and CLAY, Circuit Judges; MILLS,                          a replacement, Gilley asked Brogan whether he could directly
                   District Judge.*                                         promote Deputy General Counsel Catherine Mizell to the
                       _________________                                    position. After Gilley received legal advice to the contrary,
                                                                            he initiated a job search for the position.
                             COUNSEL
                                                                              Gilley authorized a formal search for general counsel
ARGUED: David R. Duggan, GARNER & DUGGAN,                                   candidates. At Gilley’s direction, Brogan prepared a formal
Maryville, Tennessee, for Appellant. Edward G. Phillips,                    announcement for the position of Vice President, General
                                                                            Counsel, and Secretary. The announcement stated that:
                                                                                The successful [General Counsel] candidate must have
    *
     The Hon orable R ichard M ills, United States District Judge for the       the following minimum qualifications: (1) J.D. or L.L.B.
Central District of Illinois, sitting by designation.                           from an accredited law school; (2) admission to, or

                                   1
No. 02-6360                          Leadbetter v. Gilley      3    4    Leadbetter v. Gilley                       No. 02-6360

  immediate eligibility for, the Tennessee State Bar; (3) a            Gilley interviewed Mizell and Leadbetter for the position
  minimum of fifteen years of legal practice experience, at         of Vice President and General Counsel. Gilley interviewed
  least ten of which must have been as full-time, in-house          Mizell twice and Leadbetter once. According to Leadbetter,
  counsel for a multi-campus, public institution of higher          it was clear to him from the outset of the 15-minute interview
  education; (4) experience in transactional matters and            that Gilley was not interested in his qualifications for the
  civil litigation; (5) strong analytical skills and (6)            position since the interview involved little more than
  understanding of and commitment to affirmative action             “chit-chat” unrelated to Leadbetter’s credentials.
  and to achieving the University’s affirmative action
  objectives.                                                          On December 14, 1999, Gilley met with Leadbetter. Gilley
                                                                    stated that he had spoken to the administrative staff and the
  The search was conducted exclusively by University                staff had advised him that either Leadbetter or Mizell could
Trustee Roger Dickson. Dickson forwarded the names of               do the job. Nevertheless, Gilley told Leadbetter that he
candidates he believed to be most qualified for the position.       decided to recommend Mizell to the Board of Trustees. On
One of the candidates on Dickson’s list was associate general       December 20, 1999, the Board of Trustees’ Executive
counsel Ronald Leadbetter. Other than the fact that                 Committee unanimously elected her Vice President, General
Leadbetter was an associate with the general counsel’s office       Counsel, and Secretary.
who oversaw some litigation at the University of Tennessee’s
Memphis campus, there is little information in the parties’           Following his decision to hire Mizell, Gilley attempted to
briefs concerning Leadbetter’s credentials.                         address budgetary woes by streamlining and restructuring of
                                                                    the University’s administration. One of the new job titles
  Deputy General Counsel Mizell was another candidate               created via the restructuring was Equity and Diversity
whose name appeared on Dickson’s list. Mizell had been              Administrator. The job paid $35,000 less than Leadbetter
promoted over Leadbetter six years prior to Brogan’s                was earning as Associate General Counsel.
retirement. She was a former editor-in-chief of the University
of Tennessee Law Review and she met all of the job                    Gilley believed that experience in race relations and a
requirements for General Counsel. In her fifteen years at the       commitment to diversity and civil rights were important
University, she managed the General Counsel’s staff and             qualities for the Equity and Diversity Administrator position.
budget, reviewed other attorneys’ work, and handled the             Theotis Robinson, an administrative aide in the University’s
University’s most complex legal issues—including a $225             Governmental Relations Office, had those qualities.
million transfer of the University’s hospital to a not-for-profit   Although Robinson did not have a bachelor’s degree, he was
organization. Additionally, Mizell was recommended by               a member of the Knoxville City Council, served as the
General Counsel Brogan, former President Joseph E. Johnson,         University’s liaison to the Legislative Black Caucus in
and the three highest-ranking administrators at the University.     Nashville, acted as an informal government liaison to the City
Brogan did not recommend Leadbetter for the general counsel         of Knoxville and Knox County governments, co-chaired an
position because Brogan felt that Leadbetter lacked the             organization of African-American and Caucasian community
necessary academic background, management skills, and               leaders, and advised the University on issues important to
analytical tools.                                                   state and local African-American political leaders.
No. 02-6360                                 Leadbetter v. Gilley           5    6    Leadbetter v. Gilley                       No. 02-6360

  Gilley needed an Equity and Diversity Administrator who                         On November 30, 2000, Leadbetter filed a reverse gender
could advise him directly on relations with African-American                    and race discrimination action against Gilley under 42 U.S.C.
students, faculty, administrators, and local leaders. In                        §§ 1981 and 1983, the Fourteenth Amendment of the United
Gilley’s estimation, Robinson was the best candidate for the                    States Constitution, and the Tennessee Human Rights Act,
position. Thus, Gilley assigned Robinson the job. Leadbetter                    TENN. CODE ANN. § 4-21-101, et seq. Leadbetter claimed
claimed he was unaware that Gilley had appointed Robinson                       that from the time Gilley was employed, Gilley repeatedly
to the position of Equity and Diversity Administrator until                     articulated his intent to hire and promote women and
after the appointment was announced. While he learned that                      minorities. Gilley would describe the promotion system at
Robinson would be promoted to the staff vice president level                    the University as sort of “inbreeding” for the promotion of
before the promotion was finalized, Leadbetter did not apply                    white males, but used the phrase “natural chain of
for the position—one that paid $11,400 less than he was                         progression” when a woman was promoted. He insisted that
earning as an associate general counsel—because Leadbetter                      search committees seek out women and minorities for
was not invited to do so. It was Leadbetter’s understanding                     University jobs.
that Robinson would be recommended for appointment to
Vice President without the position being advertised or                           According to Leadbetter, Gilley requested a job description
candidates solicited, all purportedly in violation of the                       to be prepared for the Vice President, General Counsel, and
University’s employment policies and procedures, the                            Secretary position which specifically favored Mizell and
University’s affirmative action program and the stipulation of                  limited or excluded any serious competition. Leadbetter also
settlement set forth in Geier v. Alexander, 593 F.Supp. 1263                    asserted that the appointment of a search committee
(M.D.Tenn.1984)1.                                                               composed of a single person—Roger Dickson—was
                                                                                unprecedented at the University for a high level position and
   Leadbetter believed that any under-representation of                         that Dickson’s appointment fell outside the University’s
African-Americans in the University-Wide Administration                         pattern and practice of appointing minorities and women to
(the “UWA”) administrator classifications in 1999 or 2000                       search committees. Furthermore, Leadbetter claimed that
was not due to racial discrimination. Thus, he thought that                     Mizell failed to adequately specify lease payments when she
Gilley’s use of race in addressing under- representation was                    created the agreement transferring the University Hospital and
unconstitutional.                                                               that a minimal investigation of Mizell’s credentials would
                                                                                have revealed that she had minimal trial experience.
    1                                                                             As to Robinson, Leadbetter stated that Gilley did not
       The University had been involved in long standing desegregation
litigation which resulted in a judicial finding of de jure racial segregation   advertise the position of Equity and Diversity Administrator
of public higher education in Tennessee, including at the University. After     prior to Robinson’s appointment and did not consider any
a challenge was raised to the dual system of higher education in                other candidates for the position because Gilley intended for
Tennessee, the State of Tennessee, including the University, was ordered
by the District Court for the M iddle District o f Ten nessee to submit a
                                                                                Robinson to have the position because Robinson was African-
“plan designed to effect such desegregation of the higher educational           American. Leadbetter claimed that Gilley selected the
institutions of Tennessee.” Sanders v. Ellington, 288 F.Supp. 937, 942          bachelor degree-less Robinson over a number of qualified
(M.D .Tenn.1968 ). The University entered into a stipulation of settlement      individuals who were already in the “natural chain of
which was ap proved by the d istrict court and this Court alike. See Geier      progression” including white employees Sarah Phillips and
v. Alexander, 593 F.Sup p. 12 63 (M.D.T enn.1984); Geier v. Alexander,
801 F.2d 799 (6th C ir.198 8), resp ectively.
                                                                                Jennifer Richter. According to Leadbetter, Gilley would not
No. 02-6360                          Leadbetter v. Gilley       7    8     Leadbetter v. Gilley                         No. 02-6360

have promoted any white male lacking a college degree to the         African-Americans in the administrator classification. Gilley
position of Equity and Diversity Administrator.                      stated that he was aware of the substantial under-
                                                                     representation of African-Americans in the UWA positions
   Gilley ultimately moved for summary judgment.                     and based his decisions regarding the responsibilities assigned
According to Gilley, Leadbetter was not in any way within            to Robinson, and the resulting title changes, in part, upon the
his contemplation when he named Robinson as one of five              fact that the decisions were consistent with the objectives of
staff vice presidents in August 2000 for several reasons. The        the Geier settlement. Gilley asserted that he believed that the
additional responsibilities added at the time (oversight for         consideration of race was allowable in assigning these
affirmative action offices in Memphis and Tullahoma,                 affirmative action responsibilities to Robinson, was lawful
Tennessee) were a small incremental addition to Robinson’s           under the Geier settlement and consistent with the
existing position. There was no “vacancy” and no other               University's duty under the Equal Protection Clause of the
“candidate” because Robinson was already performing the              Fourteenth Amendment to take remedial steps to dismantle
large majority of the job. Gilley claimed there was no reason        the former de jure segregated system of public higher
for him to consider Leadbetter for a staff vice president job        education.
because Leadbetter was not on the president’s staff whereas
Robinson was. Leadbetter did not inform Gilley that he was             The district court granted Gilley’s summary judgment
interested in a diversity/affirmative action position, even after    motion, concluding that Leadbetter failed to establish a prima
Gilley had appointed Robinson to the Equity and Diversity            facie case of reverse gender or race discrimination. The
Administrator position. Moreover, Gilley had no reason to            district court also found that Gilley was entitled to qualified
believe that Leadbetter would be interested in a position            immunity. Leadbetter timely appealed the district court’s
paying $11,400 less than Leadbetter was making at the time.          decision.
  Gilley further asserted that he reasonably believed that the                       II. STANDARD OF REVIEW
assignment of responsibilities as Equity and Diversity
Administrator and Vice President of Equity and Diversity to            The Court reviews a district court’s grant of summary
Robinson was a lawful and permissible affirmative action             judgment de novo. Williams v. Gen’l Motors Corp., 187 F.3d
decision consistent with the objectives of the stipulation of        553, 560 (6th Cir.1999). To grant a motion for summary
settlement entered in Geier. According to Gilley, since the          judgment, a court must find that the pleadings, together with
entry of the stipulation of settlement, the district court has not   the depositions, interrogatories and affidavits on file, establish
found that the University fully satisfied its constitutional duty    that there is no genuine issue of material fact and that the
under the Equal Protection Clause to dismantle the former de         movant is entitled to judgment as a matter of law. FED. R.
jure system of segregation.                                          CIV. P. 56.

  Gilley stated that pursuant to the Geier stipulation, the             The party that seeks summary judgment bears the initial
University submitted certain desegregation goals to the              burden of specifying the basis upon which it contends
district court. The positions of Equity and Diversity                judgment should be granted and of identifying that portion of
Administrator and Vice President for Equity and Diversity            the record which, in its opinion, demonstrates the absence of
fell within the UWA. According to Gilley, in 1999 and 2000,          a genuine issue of material fact. Celotex Corp. v. Catrett, 477
the UWA had a substantial under-representation of                    U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
No. 02-6360                          Leadbetter v. Gilley      9    10   Leadbetter v. Gilley                         No. 02-6360

Thus, summary judgment should be granted only where there           non-discriminatory reason for the adverse employment action
is no genuine issue of material fact. Anderson v. Liberty           at issue. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d          248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing
202 (1986). Once a movant satisfies its burden, the                 McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817)). If the
nonmoving party must produce specific facts demonstrating           defendant meets this burden, the burden of production shifts
a genuine issue of fact for trial if it is to withstand summary     back to the plaintiff to demonstrate that the proffered reason
judgment. Id. 477 U.S. 247-48, 106 S.Ct. 2509-10. “The              is a pretext. Id. When the burden shifts back to the plaintiff,
mere existence of a scintilla of evidence in support of the         the plaintiff must come forward with evidence that the
plaintiff’s position will be insufficient; there must be evidence   defendant’s reason for the employment action is false.
on which the jury could reasonably find for the plaintiff.” Id.     Sutherland, 344 F.3d at 615 (6th Cir. 2003). “[A] plaintiff’s
477 U.S. at 252, 106 S.Ct. at 2512.                                 prima facie case, combined with sufficient evidence to find
                                                                    that the employer’s asserted justification is false, may permit”
                        III. ANALYSIS                               a finding of unlawful discrimination. Reeves v. Sanderson
                                                                    Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097,
  To establish a prima facie discrimination claim, a plaintiff      147 L.Ed.2d 105 (2000).
must show: (1) that he is a member of a protected class; (2)
that he applied and was qualified for a promotion; (3) that he        A. Leadbetter’s Reverse Gender Discrimination Claim
was considered for and denied the promotion; and (4) other
employees of similar qualifications who were not members of           There is no dispute that Leadbetter sought and was
the protected class received promotions. McDonnell Douglas          qualified for the General Counsel position. However, the
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668         district court found that Leadbetter failed to establish a prima
(1973); Sutherland v. Michigan Dept. of Treasury, 344 F.3d          facie case of discrimination because he did not show that
603, 614 (6th Cir. 2003)(citation omitted). The Sixth Circuit       Gilley was the unusual employer who discriminates against
has adapted this four-prong test to cases of reverse                men and because he failed to show that Gilley treated
discrimination, where a member of the majority is claiming          differently employees who were similarly situated but were
discrimination. Sutherland, 344 F.3d at 614-15 (6th Cir.            not members of the protected class. Leadbetter claims the
2003); Pierce v. Commonwealth Life Ins., 40 F.3d 796, 801           district court erred in both respects.
(6th Cir.1994). In such cases, a plaintiff satisfies the first
prong of the prima facie case by “demonstrat[ing]                     Leadbetter contends that the district court improperly
‘background circumstances [to] support the suspicion that the       credited Gilley’s witnesses “on all contested points” and
defendant is that unusual employer who discriminates against        disproportionately relied on evidence favorable to Gilley.
the majority.’” Id. (citations omitted). To satisfy the fourth      Leadbetter also contends that “[a]lthough there is no direct
prong in a reverse-discrimination case, the plaintiff must          evidence Gilley discriminated against [him] on the basis of
show that the defendant treated differently employees who           . . . gender, there is ample direct evidence of Gilley’s
were similarly situated but were not members of the protected       discriminatory animus in favor of women . . . .” Specifically,
class. Id.                                                          Leadbetter contends that Gilley’s claim in an e-mail that
                                                                    women are more efficient than men and his use of the term
  Once the plaintiff establishes a prima facie case, the burden     “inbreeding” to describe the advancement of white males at
shifts to the defendant to offer a legitimate,                      the University and “natural chain of progression” to describe
No. 02-6360                          Leadbetter v. Gilley      11    12    Leadbetter v. Gilley                         No. 02-6360

female and minority advancement indicates gender animus.             tainted, the Court moves on to compare the relative
Furthermore, Leadbetter argues that Gilley’s animus could be         qualifications of Mizell and Leadbetter.
inferred from a statement he made during a search for a Dean
of Students position where Gilley said that there are women             Mizell met all of the job requirements for General Counsel.
and minorities out there, “go find one.”                             She served as Brogan’s “top assistant,” having been promoted
                                                                     over Leadbetter six years prior to Brogan’s retirement. She
   If the Court were to assume, for the sake of argument, that       managed the General Counsel’s staff and budget, reviewed
Leadbetter presented sufficient evidence to raise an inference       other attorneys’ work, and handled the most complex legal
of gender bias, Leadbetter’s gender discrimination claim still       issues facing the University (i.e. the $225 million transfer of
fails. “In order for two or more employees to be considered          the University’s hospital to a not-for-profit organization).
similarly-situated for purposes of creating an inference of          Mizell was also recommended by the University’s president,
disparate treatment in a [reverse discrimination case], the          three top administrators, Dickson—the University’s one-
plaintiff must prove that all of the relevant aspects of his         person search committee for the General Counsel spot, and
employment situation are ‘nearly identical’ to those of the          Brogan—the outgoing General Counsel who supervised
[female employee] who he alleges [was] treated more                  Mizell and Leadbetter for many years. In Dickson’s opinion,
favorably.” Pierce, 40 F.3d at 802. The similarities between         Mizell was the “one candidate who stands above the others”
the plaintiff and the female employee must exist “in all             and who was “uniquely qualified.”
relevant aspects of their respective employment
circumstances.” Id. Differences in job title, responsibilities,        Leadbetter held a lower position than Mizell at the General
experience, and work record can be used to determine                 Counsel’s Office, and he had no experience as chief legal
whether two employees are similarly situated. Id.                    officer or first assistant to the chief. He had no experience
                                                                     working with the governing board of a multi-campus public
  The minimum qualifications for the University’s General            university, and his academic credentials did not match
Counsel position were: (1) J.D. or L.L.B. from an accredited         Mizell’s academic achievements. Furthermore, he had been
law school; (2) admission to, or immediate eligibility for, the      removed from responsibility for the Memphis litigation
Tennessee State Bar; (3) a minimum of fifteen years of legal         following a series of mishaps that included inadequate
practice experience, at least ten of which must have been as         preparation and the presentation of perjured testimony.
full-time, in-house counsel for a multi-campus, public
institution of higher education; (4) experience in transactional        As these facts show, Leadbetter was not similarly situated
matters and civil litigation; (5) strong analytical skills and (6)   to Mizell. Mizell was a better candidate in terms of academic
understanding of and commitment to affirmative action and            achievement, experience, and work record. She had superior
to achieving the University’s affirmative action objectives.         experience managing the General Counsel’s office, and she
Although Leadbetter claimed that Gilley had Dickson “tailor”         alone was recommended by the University’s top brass. Thus,
these requirements to favor Mizell, Leadbetter offered the           Mizell and Leadbetter were not similarly situated.
district court no evidence to substantiate his assertion.
Similarly, Leadbetter presents no evidence on appeal to                 Even if Leadbetter had shown that he and Mizell were
suggest that Dickson skewed the job posting to benefit Mizell.       similarly situated, his discrimination claim still would fail. If
Because there is no evidence to show that the job posting was        Leadbetter was able to show that he and Mizell were similarly
                                                                     situated, the burden would shift to Gilley to offer a legitimate
No. 02-6360                          Leadbetter v. Gilley     13    14       Leadbetter v. Gilley                             No. 02-6360

nondiscriminatory reason for not hiring him as General              Vice President Robert Levy testified that the University had
Counsel. Burdine, 450 U.S. at 253 (citing McDonnell                 eliminated all vestiges of racial discrimination prior to
Douglas, 411 U.S. at 802). Leadbetter would then have to            Robinson’s hiring, and the University’s chief affirmative
had shown that Gilley’s proffered reasons were pretextual by        action officer asserted that the University never approved race
showing that they: (1) had no basis in fact; (2) did not actually   as a “plus factor” or positive factor in employment decisions,
motivate Gilley’s decision; (3) were not sufficient to warrant      one could conclude that Gilley’s consideration of Robinson’s
Gilley’s hiring decision. Dews v. A.B. Dick Co., 231 F.3d           race demonstrates “background circumstances [to] support the
1016, 1021 (6th Cir. 2000).                                         suspicion” that Gilley discriminates against whites.
                                                                    Sutherland, 344 F.3d at 614-15.
   Leadbetter tried to show that Gilley’s reasons for hiring
Mizell had no basis in fact by arguing that Mizell had                Be this as it may, Leadbetter never applied to be Equity and
absolutely no litigation experience. In Leadbetter’s view,          Diversity Administrator or Vice President of Equity and
Mizell had no litigation experience because she did not take        Diversity. He tries to overcome this problem by arguing that
depositions and did not make court appearances. Leadbetter          his failure to apply should be excused because he had no
has a self-serving and narrow view of the phrase “litigation        opportunity to do so. This Circuit has recognized that in
experience.” Mizell’s management of the General Counsel             certain situations it is not necessary for a Title VII plaintiff to
staff, oversight of attorneys’ work, and authorship of the          apply for a position in order to assert a claim. Wanger v. G.A.
University’s only successful petition for certiorari to the         Gray Co., 872 F.2d 142 (6th Cir.1989); Nguyen v. City of
United States Supreme Court are very significant litigation         Cleveland, 229 F.3d 559, 564 (6th Cir. 2000). In Nguyen, the
experience, even if the experience was not earned in court.         Court held that a plaintiff failed to satisfy Wanger’s lenient
Leadbetter claimed that Mizell’s qualifications did not             application requirement. In that case, the plaintiff did not
actually motivate Gilley’s decision to hire her since Gilley        submit authority showing that the City was required to post a
made up his mind to hire Mizell as soon as he heard that            position and he offered no support for his claim that “the
Brogan was retiring. While it appears that Gilley was               record is clear that [he] would have applied had he known of
interested in immediately naming Mizell as Brogan’s                 the posting.” Because the plaintiff pointed to no evidence
successor once he learned of Brogan’s intended retirement,          demonstrating that he showed more than a general interest in
Gilley wanted to do this because Mizell was qualified,              the position and pointed to no evidence supporting his
competent, and could hit the ground running. Thus, Gilley           assertion that his application for the position would have been
had legitimate nondiscriminatory reasons for hiring Mizell.         fruitless2, the Court held that the plaintiff failed to
                                                                    demonstrate a prima facie case as to his nonpromotion and
   B. Leadbetter’s Reverse Race Discrimination Claim                affirmed the district court’s grant of summary judgment.
                                                                    Nguyen, 229 F.3d at 564.
   Gilley believed that by naming Robinson Equity and
Diversity Administrator and then giving Robinson the title of
Vice President of Equity and Diversity, he was lawfully
attempting to remedy the under-representation of blacks in the
                                                                         2
University’s administration pursuant to the University’s                  A plaintiff’s failure to apply can be excused as “fruitless” if, for
settlement in Geier. This makes it clear that Robinson’s race       instance, a defendant had a “whites o nly” job req uirement. See Int’l
was a positive factor in Gilley’s selection. Since Associate        Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843,
                                                                    52 L.Ed.2d 396 (197 7).
No. 02-6360                                Leadbetter v. Gilley         15     16       Leadbetter v. Gilley                               No. 02-6360

  While Gilley and Leadbetter dispute whether the University                   show that Robinson and Leadbetter were not similarly
was required to advertise the positions Robinson secured and                   situated. Pierce, 40 F.3d at 8024.
whether the positions were even vacancies3, Leadbetter has
clearly failed to show that he would have applied had he                                                  CONCLUSION
known of the position. At best, Leadbetter states that he
might have been interested in becoming Equity and Diversity                     For the foregoing reasons, the district court’s decision is
Administrator if he could have been paid more than the                         AFFIRMED.
$55,000 Robinson earned in that capacity. This is a statement
of general interest, it is not evidence that Leadbetter would
have applied for the position. Furthermore, Leadbetter offers
no evidence to show that the University had a blacks only
hiring requirement that would have made his failure to apply
fruitless.
  In addition to his failure to apply, Leadbetter fails to show
that he and Robinson were similarly situated candidates for
the position of Vice President of Equity and Diversity. The
bulk of the vice president’s responsibilities were those that
Robinson had performed during his eight months as Equity
and Diversity Administrator. As such, Robinson had actual
experience performing the vice president’s duties. Leadbetter
lacked that experience. This critical difference is enough to




    3
       Gilley argues that the University policy did not ordinarily consider
a change in job title as a result of expansion of existing responsibilities,
or the a ssump tion of additional duties, to be a vaca ncy. See Gilley’s Br.
at p.51 . Since R obinson was merely given a new title and additional
responsib ilities, Gilley contend s that Robinso n’s position was never a
vacancy and the U niversity, therefore, was not required to advertise the
position. Lead better argues that the U niversity policy allowed G illey to
transfer Rob inson amo ng departments, but the University had no express
policy regarding the reorganization G illey engineered. In Lead better’s
opinion, Gilley’s reorganization created a new position—V ice President             4
of Equity and Diversity— and a vacancy. W hatever the case may be,                   Due to the fact that Leadbetter failed to establish a prima facie case
resolution of this issue is unnecessary since L eadbetter never applied to     of discrimination, the Court need not consider q ualified im munity or any
fill the vice presidency.                                                      additional issues.
