                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 3 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    STEVEN HARRIS,

                Plaintiff-Appellant,

    v.                                                   No. 96-8078
                                                    (D.C. No. 95-CV-246B)
    SWEETWATER COUNTY SCHOOL                               (D. Wyo.)
    DISTRICT NO. 2,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Steven Harris appeals the order of the district court granting

summary judgment in favor of defendant on his claims brought pursuant to the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (the ADA).

Because we find that plaintiff failed to advance his pretext argument to the

district court, and thus failed to demonstrate a genuine issue of material fact as to

whether defendant’s proffered reason for failing to grant him an employment

interview were unworthy of belief, we affirm.

       Plaintiff became visually impaired in 1979 as the result of a gun shot

accident. The parties do not dispute that plaintiff is a person with a disability for

purposes of the ADA. In January 1995, plaintiff saw an ad in the local newspaper

for a position with defendant school district as a part-time temporary special

education vocational tutor. The advertised requirements for this position were a

high school diploma; experience with special needs students; four to six hours

daily as needed; and flexible hours between 9:30 a.m. and 3:40 p.m. No mention

was made in the ad of a required driver’s license or the need to transport students

to job sites.

       Plaintiff filed a timely application for the job. Out of the twenty-four

applications received, the district hiring committee selected six people to be

interviewed. Plaintiff was not among the six. Three people were ultimately

interviewed, and two people were chosen to share the job. Believing that he had


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not been interviewed because of his disability, plaintiff brought this action under

the ADA.

      Under the ADA, it is illegal for an employer to discriminate “against a

qualified individual with a disability because of the disability of such individual

in regard to . . . hiring . . . and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). The familiar analytical framework first set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies

to cases brought under the ADA. See Morgan v. Hilti, 108 F.3d 1319, 1323 (10th

Cir. 1997). Thus, a plaintiff must first establish a prima facie case by showing:

      (1) that [he] is a disabled person within the meaning of the ADA;
      (2) that [he] is qualified, that is, [he] is able to perform the essential
      functions of the job, with or without reasonable accommodation; and
      (3) that the employer [failed to hire him] under circumstances which
      give rise to an inference that the [failure to hire] was based on [his]
      disability.

Id. (citations omitted). Once plaintiff establishes the prima facie showing, a

presumption is created that the defendant engaged in unlawful discrimination.

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The burden of

production then shifts to the defendant to produce evidence of a legitimate

nondiscriminatory reason for the challenged employment decision. See Morgan,

108 F.3d at 1323. If the defendant comes forward with such reason, the burden

reverts back to the plaintiff who must then demonstrate that “‘there is a genuine

dispute of material fact as to whether the employer’s proffered reason for the

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challenged action is pretextual--i.e., unworthy of belief.’” Id. (quoting Randle v.

City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)).

      Defendant Sweetwater County School District moved for summary

judgment, and, for purposes of the motion only, conceded that plaintiff had

established a prima facie case under the ADA. The burden of production was

then on defendant to demonstrate a legitimate nondiscriminatory reason for not

interviewing plaintiff. In order to meet this burden, defendant produced affidavits

from the three people who served on the hiring committee. All three stated that,

based on his written application and with or without his disability, Mr. Harris was

not considered to be one of the most qualified for the position. Appellee’s App.

at 54, 60, 65.

      An opinion that an applicant is less qualified for a job than other applicants

can be a legitimate nondiscriminatory reason for refusing to hire a member of a

protected class. In analysis equally applicable to persons with disabilities, the

Fourth Circuit has noted that:

             Obviously it must be possible for employers legally to make
      employment decisions that disfavor qualified minority employees on
      the basis of a comparative evaluation of their qualifications with
      those of other applicants. Concededly, when that evaluation is to any
      degree subjective and when the evaluators are themselves not
      members of the protected minority, the legitimacy and
      nondiscriminatory basis of the articulated reason for the decision may
      be subject to particularly close scrutiny by the trial judge. But, as the
      Supreme Court pointed out in McDonnell Douglas itself, the mere
      fact that subjective criteria are involved in the reason articulated by

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      an employer does not prevent according it sufficient rebuttal weight
      to dispel the inference of discrimination raised by the prima facie
      case.

Page v. Bolger, 645 F.2d 227, 230 (4th Cir. 1981). The production of this

legitimate nondiscriminatory reason for failing to interview plaintiff neutralizes

the inference of discrimination which arose from the demonstration of the prima

facie case. It was then up to plaintiff to demonstrate that defendant’s contention

that he was not as qualified for the position as those chosen for interview was

pretextual, i.e., unworthy of credence. Plaintiff could potentially do this by

showing that he was as qualified, or more qualified, than the six people chosen

for the interview.

      Relying on a comparison of his resume with the job applications of the

three people eventually interviewed, plaintiff argues in his brief to this court that

he is far better qualified for the position than the six finalists. However, because

on the record before us we can only conclude that plaintiff did not present this

evidence or make this argument to the district court, we cannot consider it on

appeal. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 506 (10th

Cir. 1994) (refusing to consider evidence not before the district court when

reviewing a ruling on summary judgment).

      In determining that plaintiff did not argue that he was as qualified or more

qualified than the applicants who were interviewed, we rely on the statement to


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that effect in the order of the district court: “Harris has not produced any

evidence to demonstrate that the School District’s proffered reason is false.

Harris merely argues that he was qualified for the job, but he has not offered any

evidence to show that he was more qualified than or as qualified as the persons

actually hired.” Appellant’s App. at 187. Further, plaintiff’s lawyer, during the

hearing on the motion for summary judgment, agreed with the sentiment

expressed in Page v. Bolger, 645 F.2d at 230, that employers must be able to

disfavor minority applicants in hiring decisions based on relative qualifications.

See Appellant’s App. at 175. She went on, however, to urge the court to “demand

a production of whatever comparison was done and that we be able to

demonstrate that, in fact, Mr. Harris was more qualified than any of the

individuals that applied and any of the individuals that ultimately were hired and

that that qualification had little or nothing to do with the visual impairment that

he has over--that he lives with on a day-to-day basis.” Id.

      It is clear to us, therefore, that, while plaintiff’s counsel recognized the

importance of the need to raise an issue of fact regarding defendant’s proffered

reason for refusing to interview her client, she did not actually come forward with

the evidence to demonstrate pretext. 1 Plaintiff, therefore, was unable to get “over


1
      The evidence relied on by plaintiff to make the pretext argument to this
court was available at the time of the summary judgment hearing as it consists of
                                                                    (continued...)

                                          -6-
the hurdle of summary judgment.” Morgan, 108 F.3d at 1323 (quotation

omitted). 2

       Plaintiff argues that the requirement of a driver’s licence was a “hidden”

requirement that, implicitly, was added to the minimum qualifications for the job

in order to eliminate him from the competition. In the posture of this case, the

issue of the driver’s license is irrelevant because defendant, by assuming for

purposes of the summary judgment motion that plaintiff had made out a prima

facie case, had already conceded that plaintiff was qualified for the job. Under

the ADA, this means either that plaintiff can do the job with the physical abilities

he has, or that he can do the job with reasonable accommodation. The issue of

the driver’s licence would have been relevant if the issue in this case were

whether plaintiff was a “qualified individual with a disability.” See 42 U.S.C.

§ 12111(8). Because that issue has been conceded by defendant, the driver’s

license requirement has no bearing on the outcome of this appeal.




1
 (...continued)
the job applications of the persons who were interviewed. This information was
provided by defendant in response to plaintiff’s first set of interrogatories and
request for production of documents.
2
       We note that any briefs filed in the district court relative to the motion for
summary judgment were not included in the record on appeal. Further, if plaintiff
raised the issue of pretext in the district court, he does not comply with 10th Cir.
R. 28.2(b) which requires him to state where in the record the issue was raised
and ruled upon.

                                         -7-
      Defendant’s motion to strike plaintiff’s reply brief is denied. The judgment

of the United States District Court for the District of Wyoming is AFFIRMED.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




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