                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2975
                                   ___________

Franklin Woods,                         *
                                        *
            Plaintiff – Appellant,      *
                                        *
      v.                                *    Appeal from the United States
                                        *    District Court for the
Stephen A. Perry, Administrator,        *     District of South Dakota.
United States General Services          *
Administration,                         *
                                        *
            Defendant – Appellee.       *
                                   ___________

                              Submitted: May 12, 2004
                                  Filed: July 12, 2004
                                  ___________

Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.
                         ___________

MURPHY, Circuit Judge.

       Franklin Woods brought this case under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e – 2000e-17, alleging that the General Services
Administration (GSA) had discriminated on the basis of gender in selecting Sandra
Baumgartner as Dakotas Fleet Management Center manager despite his superior
qualifications. The district court1 granted summary judgment to GSA, and Woods
appeals. We affirm.

      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
      Woods joined GSA in 1992 as assistant manager of the Pierre, South Dakota
Fleet Management SubCenter. He had an Associate Degree in mechanical technology
from the University of South Dakota at Springfield and a Bachelor Degree in business
administration from Northern State College. In December 1994 he was designated
acting manager of the SubCenter, and he was promoted to manager in September
1995. In 1997, the Pierre office was closed and relocated to Rapid City, South
Dakota where Woods continued as manager, a GS-12 position.

       Baumgartner started to work at GSA in 1977 as a student aide while
completing an Associate Degree in business and legal secretarial at Bismarck Junior
College. Baumgartner was soon promoted to transportation operations specialist and
then to assistant manager of the North Dakota Fleet Management Center (FMC). The
manager of that FMC had a substance abuse problem, and Baumgartner frequently
served as de facto manager during her fourteen years as assistant manager,
particularly after the manager was suspended in 1995. In September 1999
Baumgartner competed for and was promoted to manager of the North Dakota FMC,
a GS-12 position.

       In August 1999, GSA announced that it needed to reduce the number of FMCs
over the next three years. Among the reorganization proposals under consideration
was one to combine the North and South Dakota offices under one manager. After
lengthy discussion, the final consolidation plan was circulated in August 2000 and
approved by the union on November 28, 2000. Eddie Ward, a personnel staffing
specialist, prepared a vacancy announcement for manager of the Dakotas FMC, a GS-
13 position. The announcement was posted November 29, 2000, along with other
vacancies resulting from the reorganization. The position required one year of
specialized experience at the GS-12 grade level which equipped the applicant with
the particular knowledge, skills, and abilities (KSAs) to perform the necessary duties.
The announcement specified the seven most relevant KSAs: (1) knowledge of fleet
operations; (2) knowledge of vehicles, agency operations and requirements,

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procurement regulations, and contracts; (3) ability to analyze costs and market trends;
(4) planning and organizing; (5) oral communication; (6) written communication; and
(7) leadership.

       Only Woods and Baumgartner applied for the position. They were judged
equally qualified by the Human Resources Office in Fort Worth, Texas and referred
to the Regional Fleet Manager for the Rocky Mountain Region, Cynthia J. Hanson.
Hanson was responsible for selecting the Dakotas manager from the two candidates,
and her initial evaluations ranked Woods higher in written communication and
Baumgartner higher in both knowledge of fleet operations and leadership. Hanson
conducted individual telephone interviews of the candidates on December 21, 2000.
She asked them the same five questions and made notes of their responses and her
reactions. Hanson's notes expressed concern that Woods felt his greatest strength was
his leadership ability even though "prior complaints from employees indicate
otherwise" and that she did not believe he was a strong leader. Woods' response to
her question whether he wanted to add any information to his file was to ask why the
decision was taking so long, why Baumgartner had been promoted to manager of the
North Dakota FMC, and why the Dakotas FMC decision was not "clear cut." Woods
acknowledged his interview was "decent up until the final question. At that point it
dropped off considerably." Hanson's notes indicate that she could "not understand
why Frank feels so superior to [the] other candidate. He should have focused on his
abilities rather than questioning [the] other applicant."

       After concluding the interviews, Hanson concluded that Baumgartner would
be the better person for the job because a strong leader was needed to consolidate
personnel and resources at the new Dakotas FMC. Hanson knew that Baumgartner
was respected by her employees and had a proven ability to lead. She discussed the
selection of Baumgartner with her supervisor Kenneth Bowen, and he agreed with the
decision to hire her. Bowen felt that Woods did not have the people skills necessary
for the position and that his harsh management style had an adverse effect on his
associates. Hanson also conferred with three managers in the region as to their

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opinions of the candidates, and they recommended that she hire Baumgartner.
Hanson offered the job to Baumgartner, who has served in the position since January
14, 2001. Woods then sued the GSA Administrator under Title VII.

       The district court decided that Woods had met the basic elements of a prima
facie Title VII case, but that he had not shown the additional requirement in a reverse
discrimination case "that background circumstances support the suspicion that the
defendant is that unusual employer who discriminates against the majority." Duffy
v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997). Even if Woods could show the
requisite background circumstances along with a prima facie case of discrimination
under the first step in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973), the district court said his case would fail as a matter of law because he had
presented no evidence of pretext. It granted summary judgment to GSA.

       We review de novo a grant of summary judgment. Anderson v. Franklin
County, 192 F.3d 1125, 1131 (8th Cir. 1999). Summary judgment is proper when
there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law when the evidence is viewed in the light most favorable to the
nonmoving party. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). We review Woods' claims under the burden
shifting framework of McDonnell Douglas, 411 U.S. at 802-03, and Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

        Woods bore the initial burden to establish a prima facie case and then GSA had
to articulate a legitimate nondiscriminatory reason for its action. For his prima facie
case Woods had to show that (1) he belongs to a protected class; (2) he applied and
was qualified for a job; (3) he was rejected despite his qualifications; and (4) his
employer promoted a woman. See Burdine, 450 U.S. at 254; McDonnell Douglas,
411 U.S. at 802. In reverse discrimination cases, the plaintiff has also been expected
to show that "background circumstances support the suspicion that the defendant is
that unusual employer who discriminates against the majority." See Duffy, 123 F.3d

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at 1036. Accord Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001); Mills v.
Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Notari v. Denver Water
Dep't, 971 F.2d 585, 589 (10th Cir. 1992); Murray v. Thistledown Racing Club, Inc.,
770 F.2d 63, 67 (6th Cir. 1985).2 Woods could show suspicious background
circumstances by showing evidence that GSA is inclined to discriminate invidiously
against males or something "fishy" about the facts that raises an inference of
discrimination. See Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993).

       To survive summary judgment Woods had to produce evidence that would
allow a jury to find that GSA's proffered reason for choosing Baumgartner because
of her superior leadership ability is pretext and that the real reason for its action was
discriminatory. See Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995)
(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)). While Woods
notes that summary judgment should be used sparingly in employment discrimination
cases, citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994), it is
appropriate where there are no disputed facts and only one conclusion is possible. Id.
The ultimate burden of persuasion remains at all times with Woods. See Burdine, 450
U.S. at 253.

       Woods argues that the district court erred in finding that the record did not
support his claim that GSA was the unusual employer that discriminates against men.
In support he cites the noncompetitive promotion of a female manager in Montana,
the promotion of a female to assistant manager in Denver before a male could qualify,
the request for an exception to retain a female, and the promotion of Baumgartner to


      2
        On appeal Woods raises a new issue, asking us to adopt the Third Circuit
approach requiring a reverse discrimination plaintiff to "present sufficient evidence
to allow a fact finder to conclude that the employer is treating some people less
favorably than others based upon a trait that is protected under Title VII." Iadimarco
v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). Woods waived this issue by not raising
it below, see United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n.5 (1994), but that
standard would not change the result here.

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manager of the North Dakota FMC. He contends that "since Cynthia Hanson became
Regional Fleet Manager, the region had become 'a girls' club.'" He alleges the district
court erred by not finding suspicious background circumstances because his
qualifications were superior to Baumgartner's and by finding GSA's proffered reason
not pretextual.

       Woods suggests that a good example of GSA's favoritism toward women was
the promotion of Sherrie Hernandez in the Billings FMC through accretion (internal
advancement without competition) without his being accreted at the same time. The
record shows that Hernandez was hired in 1997 by Hanson's predecessor, Irv Merwin,
and advanced to GS-13 in January 1999 because her fleet included more than 2000
vehicles. The region had two other GS-13 managers; both were men who had been
classified at that level because of fleet size. When Hernandez was accreted, Hanson
also promoted two male managers and increased their GS levels. Hanson's decisions
were approved by the Human Resources Office, and the record indicates that Woods
was in charge of fewer vehicles than Hernandez and not similarly situated. See
Williams v. Ford Motor Co., 14 F.3d 1305, 1309 n.2 (8th Cir. 1994).

      Woods alleges that Hanson rushed the promotion of a woman to assistant
manager of the Denver FMC to preclude a man from applying. GSA responds that
there was no eligible male candidate and that the male manager of the Denver FMC
had agreed with Hanson's promotion decision. Woods has produced no evidence that
any male applicant was discouraged from qualifying or applying. Woods complains
that Hanson requested permission to recruit internally for a transportation operations
specialist in order to keep a female contract employee from resigning, but he offers
no evidence to show that Hanson used this method of recruitment to favor women
over men. GSA presented evidence that men were promoted at the same rate as
women and that the Rocky Mountain Region workforce had more men than women.
The Work Force Profile showed that after Hanson became Regional Fleet Manager,
14 women and 16 men were promoted. Against this background, the handful of


                                         -6-
promotions of women that Woods points to is insufficient to meet his burden to show
that GSA discriminates against men.

       Woods alleges that an inference of discrimination can also be drawn from the
promotion of Baumgartner to manager of the North Dakota FMC. He contends that
Hanson requested an exception to the hiring freeze in 1999 to open the position for
Baumgartner. It is undisputed, however, that the position was announced for
competition and that the hiring freeze only meant that personnel actions were
restricted to GSA employees. Similar promotions were allowed after Hanson
requested an exception to the hiring freeze for the Salt Lake City FMC in March
2000, which benefitted male employees. The internal promotion of Baumgartner does
not establish suspicious background circumstances of discrimination against men
when male employees also benefitted from advancement during the hiring freeze.

       Woods also contends that it was unnecessary to fill the North Dakota
managerial position because that position would have been eliminated in any
consolidation with the South Dakota FMC where he was manager. It is undisputed,
however, that the August 1999 proposal to consolidate the North and South Dakota
FMCs went through several drafts, was not approved until November 2000, and the
manager of the Dakotas FMC was not selected until January 2001. At the time
Baumgartner was promoted to manager of the North Dakota FMC, Hanson did not
know if or when the centers would be consolidated. Woods argues that the manager
of the Dakotas FMC could have been chosen in August 2000 when GSA approved
the consolidation plan, rather than waiting until November 2000 for union approval.
At that time Baumgartner would have been ineligible, because she would not have
been at level GS-12 for the requisite year. The president of Local 3275 of the
American Federation of Government Employees (AFGE) union, Steven Hahn,
indicated that AFGE's approval was necessary before the reorganization could be
implemented. Woods produced insufficient evidence for a jury to find that GSA
waited to post vacancy announcements as a means of discriminating against men.


                                        -7-
       In his final argument to establish suspicious background circumstances, Woods
alleges that he was better qualified for the Dakotas FMC position and that this is
sufficient by itself in a reverse discrimination case to establish a prima facie claim,
citing Harding, 9 F.3d at 153. Woods notes that he has a four year degree while
Baumgartner has only a two year degree. Baumgartner had 23 years of experience
with GSA, however, while Woods had only eight. Woods also contends that he had
more formal management experience (five years versus 15 months), but Baumgartner
often served as de facto manager during her 14 years as assistant manager. It is
inevitable that two candidates will have different education and work experience, and
the choice of a qualified candidate with 15 more years of GSA work experience and
a superior leadership rating over one with two extra years of formal education is not
sufficient to show background circumstances. See Duffy, 123 F.3d at 1038.

        Woods claims that a requirement of knowledge of vehicle maintenance and
repair was intentionally left out of the vacancy announcement and that had it been
included, he would have been the objectively superior candidate. He produced no
evidence to suggest that the omission of this KSA was anything more than an
oversight by the Human Resources Office in Texas. He has not shown that Hanson
was aware the KSA was missing, and Woods did not call it to anyone's attention until
after he initiated this lawsuit. Despite its omission, Woods' application discussed his
knowledge of vehicle maintenance and his two year degree in mechanical technology.
Moreover, the record reveals that the two candidates were at least similarly qualified
in this area because Baumgartner had eighteen years of experience working part time
in her husband's automotive repair business. A comparison that reveals that the
plaintiff's qualifications were similar to those of the selected candidate does not raise
an inference of gender discrimination. See Chock v. Northwest Airlines, Inc., 113
F.3d 861, 864 (8th Cir. 1997) (affirming summary judgment for employer).

     The district court also concluded that even if Woods could show GSA is the
unusual employer who discriminates against men, he had not produced evidence to
show that its stated reason for its decision –– that Baumgartner had superior

                                          -8-
leadership ability –– was pretextual. We agree that Woods failed to present evidence
sufficient to show that GSA's justification for its actions was pretextual. See Kerns
v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). Since the new
manager of the Dakotas FMC had the task of consolidating two offices, the key skill
Hanson sought was leadership, a manager who could unite the offices and "lead them
into the future." Hanson's review praised Baumgartner's personable style and
demonstrated ability to deal with people and problems in an excellent manner. She
also noted that Baumgartner "has shown great leadership ability for many years." She
interviewed better than Woods, received letters of commendation and service awards,
and had received no complaints regarding how she managed her staff.

        While Woods also received praise, there were numerous indications in the
record that his staff disliked him and the working environment. He had heavy
turnover during his tenure as manager, and one employee complained that Woods had
kicked his chair when he was disciplining him. Woods himself acknowledges
difficulties with his staff, particularly during the "tumultuous period of 1997" when
the Pierre and Rapid City SubCenters were consolidated. Woods has offered no
evidence that his leadership abilities were better than Baumgartner's, and leadership
ability is a legitimate, nondiscriminatory hiring consideration. See Floyd v. Missouri
Dep't of Soc. Servs., 188 F.3d 932, 937 (8th Cir. 1999). Because Woods was unable
to show that Baumgartner was not a superior leader and that her promotion was the
result of gender discrimination, Kneibert v. Thomson Newspapers, Michigan Inc.,
129 F.3d 444, 454 (8th Cir. 1997), there is no question of material fact to submit to
a jury.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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