                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 31 2002
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LINDA KERR,

              Plaintiff-Appellant,

    v.                                                 No. 01-2339
                                             (D.C. No. CIV-00-502-JC/WWD)
    JAKE VALDEZ; GEORGE SHARPE;                         (D. N.M.)
    JAMES GIPSON; JANET KING;
    RON PRICE, Farmington School
    Board Members; LARRY DEWEES,
    Farmington High School Principal;
    TOM SULLIVAN, Farmington
    Municipal Schools Superintendent;
    TOMMY BROWN, Farmington
    Municipal Schools Assistant
    Superintendent; JANEL RYAN,
    Farmington Municipal Schools
    Personnel Director; DAVE WILLDEN,
    Farmington High School Assistant
    Principal,

              Defendants-Appellees.


                          ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the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.
Before O’BRIEN and PORFILIO , Circuit Judges, and         KANE , ** Senior District
Judge.



       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff sued defendants for various alleged violations of her constitutional

rights to due process and equal protection under 42 U.S.C. § 1983; violations of

her rights under 42 U.S.C. § 2000e,   et seq. (Title VII) (discrimination on the basis

of race–Native American and sex–female); along with state claims for breach of

contract, breach of the covenant of good faith and fair dealing, violation of

privacy, intentional infliction of emotional distress, and prima facie tort. The

foundation for these claims was the promotion of another teacher to the position

of Vice Principal/Activities-Athletic Director of Farmington High School, a

position plaintiff contended she had expressed interest in and was more qualified

for.

       After answering, defendants filed a motion to dismiss the complaint, which

the district court granted in part and denied in part. Defendants then moved for


**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.

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summary judgment on the remaining claims. Utilizing the appropriate standard

under Fed. R. Civ. P. 56(c), the court granted the motion upon determining that

based on the “pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,” there was no genuine issue as to any

material fact and defendants were entitled to judgment as a matter of law.

      Our standard of review is de novo.      Ortiz v. Norton , 254 F.3d 889, 893

(10th Cir. 2001). “A fact is ‘material’ if, under the governing law, it could have

an effect on the outcome of the lawsuit.”     Id. (quoting Fed. R. Civ. P. 56(c)). A

genuine issue of fact exists if “a rational jury could find in favor of the

nonmoving party on the evidence presented.”       Id. We affirm.

      Farmington High School experienced a vacancy for the position of athletic

director after the end of school in 1999 and initially sought to fill it as a half-time

job. Plaintiff, a teacher at the school, had considered the position, but was not

interested when she learned it was only part time. The position was posted as half

time until July, when it was converted to a full-time combination of vice principal

and athletic/activities director. The full-time position was posted at the central

personnel office, on the school’s web page, and at the high school. It was also

advertised in the Farmington Daily Times.

      Plaintiff claims she was unaware of the change of the position to full time

until August 5. On that date, she inquired of the principal, Larry DeWees,


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whether the job was still open and was told that an offer had been made to

a Mr. Cook. DeWees was waiting for a call from the personnel office to confirm

whether the position had been accepted. Several days later, Cook declined the

position. At that time, the position remained open and posted.

       With school scheduled to begin on August 12 and no pending applications

for the position, DeWees asked a department head, Jann Weems,         1
                                                                          if she knew of

anyone who might be a good candidate. Weems thought of David Willden and

contacted him. On August 11, plaintiff learned from another teacher that the

position was still available.   2
                                    Plaintiff did not, however, contact the personnel

office or DeWees that day to apply for the position. On the morning of August

12, Willden contacted DeWees to express interest in the position, and, following

an interview and discussions with Willden’s principal and others, Willden was

hired. Plaintiff had intended to approach DeWees about the job on August 12

1
       At the end of the previous school year, plaintiff had told Weems she might
apply for the athletic director position. The parties agree, however, that Weems
likely forgot the conversation, but, in any event, did not intend to harm plaintiff
or discriminate against her. Aplt. App. at 250. Also, despite plaintiff’s
occasional references to Weems as plaintiff’s supervisor, Weems was not a
supervisor, nor was she any type of agent for the school district.  Id. at 238;
Aplee. Supp. App. at 54-55.
2
       There is some confusion as to this date. In her complaint, plaintiff stated
that she learned of the continued vacancy on August 9. Aplt. App. at 11. In her
deposition and affidavit, however, she confirmed that she learned the job was
open on August 11. The date is important because she made no attempt to convey
her interest to either the personnel office or DeWees for at least twenty-four
hours, id. at 248-49, during which time Willden was offered the position.

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when she learned of Willden’s acceptance of the position. Aplt. App. at 249. The

school board approved Willden’s hiring on August 26. Plaintiff filed a grievance,

complaining that DeWees had failed to repost the position after Cook declined it;

the grievance was denied. Defendants defended their actions based on the

emergency hiring procedures discussed in a 1995 memorandum drafted by the

then school district’s director of personnel. This memorandum, referred to by the

parties as the Kurley Memorandum, was promulgated to cover emergency

situations such as sudden vacancies, as well as normal hiring practices.


Issues on Appeal

       Because plaintiff has not appealed the earlier dismissal of several counts or

the district court’s determination not to exercise pendent jurisdiction over her

state law claims, our review is limited to whether plaintiff set forth genuine issues

of material fact to survive summary judgment on her discrimination claim, which

is based on the theories of disparate treatment and disparate impact.

       Disparate treatment and disparate impact are alternative theories on which

a right to relief under Title VII can be established.      Williams v. Colo. Springs ,

Colo. , 641 F.2d 835, 839 (10th Cir. 1981). We apply disparate treatment analysis

to claims alleging an employer treated some people less favorably than others

based on race, color, religion, sex, or national origin.     Id. Disparate impact

analysis, on the other hand, is used for claims which include employment

                                              -5-
practices facially neutral in their treatment of different groups, but which in fact

fall more harshly on one group than another and cannot be justified by business

necessity. Id.


Disparate Treatment

       Plaintiff characterizes her cause as a failure to promote claim. To establish

a prima facie case of failure to promote, she needed to show (1) membership in a

minority group; (2) qualification for the promotion; (3) her nonpromotion; and

(4) continued vacancy of the position or promotion or appointment of nonminority

to the position.   See Reynolds v. Sch. Dist. No. 1,   69 F.3d 1523, 1534 (10th Cir.

1995); see also Kendrick v. Penske Transp. Servs., Inc.      , 220 F.3d 1220, 1226-29

(10th Cir. 2000) (explaining that under     McDonnell [Douglas Corp. v. Green , 411

U.S. 792 (1973)] criteria, plaintiff need not show person hired to fill position was

outside protected class). On appeal, defendants argue that plaintiff failed to make

a prima facie case because she did not apply for the position in question and had

even expressed a disinterest in coaching.      See Bennett v. Quark, Inc.   , 258 F.3d

1220, 1228 (10th Cir. 2001) (holding that a plaintiff must show she applied for–or

at least sought–position at issue);   Randle v. City of Aurora , 69 F.3d 441, 451 n.13

(10th Cir. 1995) (prima facie case includes showing plaintiff applied for and was

qualified for available position). Plaintiff counters with her expressed “interest”

in the position when she contacted DeWees on August 5, only to learn that an

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offer had been made to Cook, and her claim that “despite her qualifications, she

was not allowed to apply for the position.” Aplt. Br. at 10;      see also id. at 5-6. 3

       A plaintiff can prove intentional discrimination either directly, by showing

that a discriminatory reason more likely motivated the employer, or indirectly,

by showing that the employer’s proffered explanation is unworthy of credence.

Shorter v. ICG Holdings, Inc.     , 188 F.3d 1204, 1207 (10th Cir. 1999) (quotations

omitted). Direct evidence is that “which if believed, proves the existence of

a fact in issue without inference or presumption.”       Id. (further quotation omitted).

Contrary to plaintiff’s arguments, she did not furnish direct evidence of

intentional discrimination.     See Bullington v. United Air Lines, Inc.       , 186 F.3d

1301, 1315 (10th Cir. 1999) (“Because disparate treatment is a form of intentional

discrimination, [] plaintiff must prove that her employer acted with a

discriminatory intent or motive.”). The use of the emergency hiring procedure

itself simply does not constitute direct evidence of discrimination.       4




3
        In her complaint plaintiff acknowledged that the position remained posted
after she talked to DeWees on August 5. Aplt. App. at 10. In her affidavit, she
stated she “did not apply for [the] position which [she] believed was filled based
on [her] conversation with DeWees.”         Id. at 209. More importantly, however, in
her deposition, she stated she knew of no actions taken by anyone in the school
district to deliberately preclude her from applying for the job.   Id. at 251.
4
      To the extent that plaintiff relies on Ramsey v. City & County of Denver              ,
907 F.2d 1004, 1008 (10th Cir. 1990) as authority for this proposition, we
disagree with her interpretation of that case.

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       In their motion for summary judgment, defendants assumed for purposes of

the motion that plaintiff had established a prima facie case. Aplee. Supp. App.

at 2, 16. The district court addressed the parties’ arguments on that basis. Aplt.

App. at 89-90. Because defendants did not argue that plaintiff had failed to make

a prima facie case, the district court did not err in assuming such a case had been

established and in proceeding to defendants’ burden to show a nondiscriminatory

reason for its hiring decision. We likewise assume, without deciding, that

plaintiff established a prima facie case of discrimination.      See Shorter , 188 F.3d

at 1208.

       Once a prima facie case is established, the burden shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for its decision.     See Jones v.

Denver Post Corp. , 203 F.3d 748, 752 (10th Cir. 2000). The plaintiff then has the

ultimate burden of showing that defendants’ reason is “a pretext for unlawful

discrimination.”   Id. at 752-53. Defendants’ facially nondiscriminatory

reason–business necessity–was based on the emergency situation the school was

facing. After advertising the position for at least two months, defendants needed

to fill it immediately because school was about to start. For her evidence of

pretext, i.e., the unworthiness of belief of defendants’ reason, plaintiff argues that

her previously expressed interest required defendants to consider her once the

position reopened after Cook declined it, that defendants improperly relied on the


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emergency hiring procedure in hiring Willden, and that her statistical data shows

discriminatory hiring practices by defendants. As she correctly acknowledges, for

her disparate treatment claim to reach a jury, “she must show that a reasonable

juror could find intentional discrimination.” Aplt. Br. at 10.

       First, plaintiff argues that defendants could not establish a facially

nondiscriminatory reason for their employment decision. Aplt. Br. at 11.

We disagree. The facially nondiscriminatory reason was the immediate need to

fill the position that had been open and advertised for two months without any

applicants until Cook, who subsequently withdrew.

       Next, plaintiff argues that there was no emergency because the school

schedule had been previously planned and because DeWees had stated that

if the position was not filled, the school administrators would divide up the

responsibilities. This argument is unavailing for several reasons. First, plaintiff

conceded that there were numerous activities and athletic events or scheduled

practices either underway or about to begin. Aplt. App. at 255-56. Second, she

offered no evidence, other than her own opinion, that no emergency existed.

Finally, she did not dispute defendants’ belief that an emergency existed.       See id.

at 279 (testimony of school superintendent that conditions justified emergency

hiring process); id. at 331 (testimony of personnel director describing numerous

activities needing approval of athletic director);   id. at 307 (perception of


                                             -9-
department head that emergency existed); Aplee. Supp. App. at 32 (testimony of

school principal that “[e]mergency . . . is that school started”). The relevant

inquiry is not whether the employer’s reasons for its employment decision “were

wise, fair or correct, but whether [the employer] honestly believed those reasons

and acted in good faith upon those beliefs.”      Bullington , 186 F.3d at 1318;

see also Reynolds, 69 F.3d at 1535 (“Pretext requires a showing that the tendered

reason for the employment decision was not the genuine motivating reason, but

rather was a disingenuous or sham reason.”). Plaintiff’s argument that no

emergency existed fails to establish a showing of pretext.

       Plaintiff next claims that “Willden was not the first person to present

himself for the [athletic director] job after it was declined by Mr. Cook” and that

she “tried to obtain the position.” Aplt. Br. at 14. The district court held that

plaintiff’s previous interest in the position and any duty the district might have

had to consider all interested persons helped establish a prima facie case, but did

not explain why the district’s urgent need to fill the position constituted a

required pretext for intentional discrimination. Aplt. App. at 90-91. We agree;

plaintiff’s arguments are not directed to the required pretext showing.

       Plaintiff also argues that no other potential applicant was similarly situated

to her, stating that she was the only person “who expressed interest after the

position was re-opened and who should have been given the opportunity to


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apply.” Aplt. Br. at 15. She also contends that she was the only person to apply

for the position “after it was re-opened when Mr. Cook declined the position.”

Id. at 16. This argument ignores the facts that Willden sought the position by

approaching DeWees on August 12 and that plaintiff’s August 5 conversation

with DeWees came before Cook declined the position, not after.       See Aplt. App.

at 245. Her citation to the school superintendent’s testimony for her statement

that when she “inquired about applying for the position[, she] was informed that

the job was filled,” Aplt. Br. at 16, is also contrary to the record. The

superintendent testified that the position had been offered to someone and that it

would have been appropriate for DeWees to say so.        See Aplt. App. at 280-82.

The superintendent further testified that the district had no obligation to follow up

with a person inquiring about the job absent a formal application.    Id. at 282. As

previously noted, plaintiff had not submitted a formal application prior to

Willden’s hiring and, by her own admission, did not do so until September 14,

1999. Id. at 253.

       Plaintiff also claims that disturbing procedural irregularities attended the

use of the emergency hiring procedures and that when combined with her

statistical evidence, these irregularities show pretext. Again, we disagree. To the

extent that the district’s emergency hiring procedure constituted an irregularity at

all, its invocation obviously disadvantaged all potential applicants “rather than


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just members of a protected class,” and therefore did not support plaintiff’s claim

of discrimination.    See Kendrick , 220 F.3d at 1230 n.9. Moreover, because the

district believed it was following its own procedures, even if the failure to

reannounce the position “was a mistake, it was not pretextual.”             Randle , 69 F.3d

at 455. Finally, to the extent that plaintiff relied on statistical evidence to support

her disparate treatment claim, we agree with the district court that the evidence

did not relate to the district’s intention in making its hiring decision.        See

Bullington , 186 F.3d at 1319. In sum, because “plaintiff failed to produce proof

of circumstances giving rise to an inference of unlawful determination,” the

district court properly granted summary judgment on plaintiff’s disparate

treatment claim.     Hysten v. Burlington N. & Santa Fe Ry. Co.       , 296 F.3d 1177,

1183 (10th Cir. 2002).


Disparate Impact

       Under a disparate impact theory, a plaintiff can establish a prima facie case

of discrimination by showing “that a specific identifiable employment practice or

policy caused a significant disparate impact on a protected group.”             Ortega v.

Safeway Stores, Inc. , 943 F.2d 1230, 1242 (10th Cir. 1991) (citing            Wards Cove

Packing Co. v. Atonio , 490 U.S. 642, 656 (1989)). A disparate impact claim

involves practices fair in form, but discriminatory in practice and is different

from a disparate treatment claim because it does not require a showing of

                                              -12-
discriminatory intent.   Bullington , 186 F.3d at 1312. A plaintiff “must not merely

show circumstances raising an inference of discriminatory impact but must

demonstrate the discriminatory impact at issue.”       Id. Here, we agree with the

district court that this evidence, in the form of an affidavit by a state department

of labor economist, simply failed to relate the lack of Native American

administrators in the Farmington School District to the use of defendants’

emergency hiring procedure. We also agree that this statistical information was

merely a general assault on the racial composition of the work force and thus was

inadequate to support a case of disparate impact.       See Wards Cove Packing Co. ,

490 U.S. at 656-57 (“Just as an employer cannot escape liability under Title VII

by demonstrating that, ‘at the bottom line,’ his work force is racially

balanced. . . , a Title VII plaintiff does not make out a cause of disparate impact

simply by showing that, ‘at the bottom line,’ there is racial   imbalance in the work

force.”) (quoting Connecticut v. Teal , 457 U.S. 440, 450 (1982)).

       In her brief, plaintiff argues that the economist’s affidavit “established that

there are no Native American administrators, they are unable to apply for the

position, and the [Kurley Memorandum] allowed the [school district] unbridled

discretion to select their friends and relatives to a higher paying, higher level

position.” Aplt. Br. at 25-26. We agree that the affidavit states that there are no

Native American administrators. However, the affiant made no such statement


                                            -13-
that Native Americans are unable to apply for administrative positions. Aplt App.

at 213-14. Nor is there anything remotely present in the Kurley Memorandum,        id.

at 103, to support plaintiff’s argument that the school district had unbridled

authority to hire “friends and relatives.” In sum, plaintiff’s evidence fails to

demonstrate that the emergency hiring procedure had a disparate impact on Native

Americans. Had plaintiff applied for the position on August 11 when she learned

it was still open, she too could have been hired under the emergency policy.

      For these and the reasons stated by the district court in its May 18, 2000

order granting summary judgment, the judgment of the United States District

Court for the District of New Mexico is AFFIRMED. Plaintiff’s motion to strike

defendants’ supplemental appendix is DENIED.


                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




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