                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2484
                                   ___________

Harold Dotson,                           *
                                         *
      Appellant,                         *
                                         * Appeal from the United States
            v.                           * District Court for the Eastern
                                         * District of Arkansas.
Delta Consolidated Industries, Inc.,     *
                                         *
      Appellee.                          *
                                    ___________

                             Submitted: February 16, 2001

                                 Filed: May 31, 2001
                                  ___________

Before WOLLMAN, Chief Judge, and BRIGHT and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Harold Dotson, a black man, was a material handler in the shipping department
of Delta Consolidated Industries, Inc., when his group leader resigned, creating an
opening for a group leader. Matthew Vaughn, a white co-worker of Mr. Dotson,
applied for and received the position.

      Mr. Dotson subsequently sued Delta under Title VII of the Civil Rights Act
of 1964, see 42 U.S.C. § 2000e through § 2000e-17, alleging race discrimination. The
district court1 granted summary judgment to Delta, and Mr. Dotson appealed. We
affirm the judgment of the district court.

                                             I.
       To establish a submissible failure-to-promote case under Title VII, Mr. Dotson
must first make a prima facie case, that is, he must show that he is a member of a
protected group, that he was qualified for and applied for a promotion for an available
position, and that he was rejected for that position. He must also prove that a similarly
situated employee, outside the protected group, was promoted instead. See
Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1109 (8th Cir. 1998).

        We hold that Mr. Dotson failed to establish a prima facie case. In particular, he
did not show that he applied for a promotion for an available position and was rejected,
because, on the present record, no reasonable fact finder could conclude that he ever
submitted an application to Delta for the group leader's position, or ever indicated to
anyone in Delta's management that he wanted the job. In his deposition, Mr. Dotson
testified that he was waiting for Delta to post a notice of the opening for a group leader
before he applied for it. He also stated that he "may" have talked to some of his
supervisors about the situation, but he admitted that he asked them only general
questions regarding Delta's plans for filling the vacant position and did not mention to
any of them that he wanted a chance to apply for the job.

        Despite his deposition testimony, Mr. Dotson disputes the facts that he did not
apply for the opening for a group leader and that he never informed Delta's management
of his interest in the job. He points to an affidavit that he filed in the district court that
stated that he discussed the job opening with his supervisors and asked to be
considered for it. Because this account of what happened differed from Delta's


       1
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.

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account, Mr. Dotson maintains that a question of material fact existed that precluded
the district court from granting summary judgment to Delta. We reject this contention,
because we have held many times that a party may not create a question of material
fact, and thus forestall summary judgment, by submitting an affidavit contradicting his
own sworn statements in a deposition. See, e.g., American Airlines, Inc. v. KLM Royal
Dutch Airlines, Inc., 114 F.3d 108, 111 (8th Cir. 1997), and Camfield Tires, Inc. v.
Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir. 1983).

       Mr. Dotson also stated in his affidavit that he was never given a chance to apply
for the group leader's position because Delta never posted a notice indicating that it was
accepting applications for the job. Even if a racially motivated failure to post a job
opportunity might conceivably relieve a plaintiff of the need to prove, as part of the
required prima facie showing, that he or she applied for the job, this is not such a case.
The mere failure to post the opening in this instance cannot give rise to a reasonable
inference that the failure was racially motivated because it is uncontroverted that Delta
never posted a notice for any available position at any time before it promoted
Mr. Vaughn. All of Delta's employees, regardless of race, were supplied with the same
amount of information about job openings, and in the same way. Cf. Shannon v. Ford
Motor Co., 72 F.3d 678, 681-84 (8th Cir. 1996).

       Besides, although Delta never officially announced that it had an available
position to fill, Mr. Dotson was undeniably aware of the job opening. With that
knowledge, Mr. Dotson could have more actively indicated an interest in being a
candidate for the position.

                                          II.
       In sum, because Mr. Dotson failed to show that he applied for the relevant job,
he failed to make a prima facie case that he was discriminated against because of his
race. We therefore affirm the district court's grant of summary judgment to Delta.


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A true copy.

      Attest:

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




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