                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 25 1999
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 BENNIE P. CHAVEZ,

          Plaintiff-Appellant,

               v.                                       No. 98-1109
                                                 (D.C. No. 97-WY-1228-AJ)
 COORS BREWING COMPANY,                                  (D. Colo.)

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and BRISCOE, Circuit Judges.


      Plaintiff Bennie Chavez appeals the district court’s entry of summary

judgment in favor of defendant Coors Brewing Company on his claims of national

origin discrimination (in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq .), disability discrimination (in violation of the Americans

with Disabilities Act, 42 U.S.C. § 12101   et seq .), and breach of contract. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



      *
        This order and judgment is not binding precedent, except under the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.
                                             I.

      Plaintiff began working for defendant in 1976 as a general brewery worker.

He later transferred to its construction department as an electrical trainee and was

promoted to electrical specialist in 1987. He held that position, which was

retitled “electrical journeyman,” until his layoff in 1996.

      Defendant created twenty new “senior specialist” positions in its

construction department in 1995 to shift the department’s emphasis from design

engineering to facilities maintenance. According to Larry Seymour, defendant’s

vice president of engineering and construction, the company had concluded it

would be more cost-efficient to contract out much of the work historically done

by the construction department and to change the focus of the department to

“heavy maintenance.” Seymour decided to select the new workers based on merit

rather than seniority because he thought some senior workers might not have the

necessary technical and analytical skills.

      At the same time the new positions were created, Jay Martine, director of

defendant’s construction department, announced a significant downsizing in

personnel. According to one of plaintiff’s former colleagues, Martine told

employees the new senior specialists would be excluded from any reduction-in-

force while employees not selected for the positions would be subject to layoff

pursuant to the company’s seniority policy.


                                          -2-
      Working closely with a professor at Colorado State University, Martine and

his staff designed a selection process to fill the new senior specialist positions

(submission of questionnaires to employees regarding essential skills,

establishment of screening criteria, development of an appropriate exam) to

ensure the process was standardized, reliable, job-related, and procedurally fair.

All applicants were required to have a Colorado journeyman’s license. The

selection committee examined each applicant’s attendance record, safety rate,

prior evaluations, welding quality, training records, score on a written test

designed to identify the desired skills, interview, computer skills, and

certification in additional crafts. Martine and his staff then ranked the applicants

by their scores, and the top candidates received offers for the new positions.

      Plaintiff was one of forty-eight applicants for the positions. He was ranked

thirty-second and did not receive an offer for one of the twenty available

positions. The construction department terminated forty-one employees on March

29, 1996, including eighteen electrical journeymen. One electrical journeyman

voluntarily left the company and two others used their seniority to “bump” to

different positions. Defendant then terminated the fifteen least-senior electrical

journeymen, including plaintiff, who had waived his right to “bump” to a

different position.

      Plaintiff exhausted his administrative remedies and filed this action in June


                                          -3-
1997. He alleged disparate treatment and disparate impact discrimination on the

basis of national origin and disability, in violation of Title VII and the ADA. He

also asserted claims for breach of express contract, breach of implied contract,

and promissory estoppel. The district court granted summary judgment in favor

of defendant on all claims.

                                             II.

       This court reviews a grant of summary judgment de novo, applying the

same legal standard used by the district court.    Sundance Assocs., Inc. v. Reno   ,

139 F.3d 804, 807 (10th Cir. 1998). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment. If there is no genuine issue of material

fact in dispute, then we next determine if the substantive law was correctly

applied by the district court.”   Id. (citation and quotation omitted).

                                            III.

       Plaintiff appeals the district court’s rulings on his Title VII, ADA, and

breach of contract claims. He has abandoned his implied contract and promissory


                                             -4-
estoppel claims.

                         Title VII Disparate Treatment Claim

       Plaintiff contends defendant discriminated against him on the basis of

national origin by creating separate senior specialist positions that were not

subject to the company seniority policy and were comprised primarily of non-

minorities. Plaintiff argues if those positions were not established, he would have

had sufficient seniority to avoid the reduction-in-force. To prevail on his

disparate treatment claim, plaintiff must show defendant either created the senior

specialist group with the    intent of discriminating against Hispanics, or

intentionally refused to make plaintiff a senior specialist because of a

discriminatory animus.      See Bangerter v. Orem City Corp.   , 46 F.3d 1491, 1501

(10th Cir. 1995); Sorensen v. City of Aurora     , 984 F.2d 349, 352 (10th Cir. 1993).

(Any negative impact the creation of the senior specialist positions may have had

on Hispanics must be examined as part of plaintiff’s disparate impact claim.)

       Plaintiff presents no direct evidence of discrimination and must rely on the

proof scheme set forth in    McDonnell Douglas Corp. v. Green     , 411 U.S. 792

(1973). Under this framework, plaintiff must first establish a prima facie case of

discrimination. If he does so, the burden shifts to defendant to articulate a

legitimate, facially non-discriminatory explanation for its adverse employment

decision. EEOC v. Flasher Co. , 986 F.2d 1312, 1316 & n.4 (10th Cir. 1992).


                                           -5-
Assuming defendant meets that burden, all presumptions of discrimination drop

from the case. St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The

burden then shifts back to plaintiff to prove by a preponderance of the evidence

that defendant’s proffered reasons for the challenged action are merely a pretext

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

       We assume, as did the district court, that plaintiff can satisfy his prima

facie burden. Defendant points out that plaintiff ranked thirty-second of forty-

eight applicants for the twenty positions. Plaintiff insists this explanation is mere

pretext for unlawful discrimination. Pretext may be demonstrated by showing

“such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (citation and

quotation omitted). Conjecture is insufficient.   Id.

       In support of his pretext argument, plaintiff contends two members of the

position selection panel exhibited long-standing prejudice toward minorities.

However, his “evidence” consists exclusively of rank speculation, hearsay, and

conclusory allegations, none of which is sufficient to withstand a properly

supported summary judgment motion.        See Thomas v. IBM , 48 F.3d 478, 485


                                            -6-
(10th Cir. 1995); Nichols v. Hurley , 921 F.2d 1101, 1113 (10th Cir. 1990).

Although plaintiff references comments by various supervisors, these isolated

comments, unrelated to the specific challenged action, are not sufficient to show

discriminatory animus in adverse personnel decisions.         Cone v. Longmont United

Hosp. Ass’n , 14 F.3d 526, 531 (10th Cir. 1994). Plaintiff also suggests creation

of the senior specialist positions was unnecessary as the responsibilities of those

positions differed little from work performed by other construction department

personnel. Absent competent evidence of impermissible motives, it is not the role

of the judiciary to second-guess the propriety of an employer’s business decisions.

Furr v. Seagate Tech., Inc. , 82 F.3d 980, 986 (10th Cir. 1996). We find no such

evidence in the record.

                          Title VII Disparate Impact Claim

       Disparate impact claims involve facially neutral employment practices that

have an adversely different   effect on a particular group.    International Bhd. of

Teamsters v. United States , 431 U.S. 324, 335-36 n.15 (1977). Unlike disparate

treatment claims, disparate impact causes of action require no findings of

intentional discrimination.   Ortega v. Safeway Stores, Inc.     , 943 F.2d 1230, 1242

(10th Cir. 1991). To establish a prima facie case of disparate impact

discrimination, plaintiff must prove a “specific identifiable employment practice

or policy caused a significant disparate impact on a protected group.”       Id.


                                            -7-
Plaintiff may rely on statistics to support his case, but “any statistical analysis

must involve the appropriate comparables . . . and must cross a threshold of

reliability before it can establish even a prima facie case of disparate impact.”      Id.

at 1243 (citations omitted). Assuming plaintiff can make such a showing, the

burden of proof (not just the burden of persuasion),      see Fitzpatrick v. City of

Atlanta , 2 F.3d 1112, 1117 n.5 (11th Cir. 1993), shifts to the employer to

demonstrate the challenged practice is “job related for the position in question

and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This

case fails at the prima facie stage of the analysis.

       Plaintiff alleges creation of a separate group of senior specialists had an

adverse impact on Hispanics. Although plaintiff attacks the methodology and

criteria used in the selection of senior specialists, he does not identify any

particular aspect of the process that had a disparate impact on Hispanics.

“Especially in cases where an employer combines subjective criteria with the use

of more rigid standardized rules or tests, the plaintiff is . . . responsible for

isolating and identifying the specific employment practices that are allegedly

responsible for any observed statistical disparities.”     Watson v. Fort Worth Bank

& Trust , 487 U.S. 977, 994 (1988) (plurality opinion).      1
                                                                 A general assault on the


       1
         Congress codified this principle in 1991. “With respect to demonstrating
that a particular employment practice causes a disparate impact [on members of a
                                                                     (continued...)

                                             -8-
racial composition of the workforce will not suffice to create an actionable

disparate impact claim. “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 case of disparate impact

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

force.” Wards Cove Packing Co. v. Atonio        , 490 U.S. 642, 656-57 (1989).

      Even assuming the senior specialist selection process as a whole constituted

a sufficiently specific practice to support a disparate impact claim, plaintiff still

cannot establish a prima facie case. A change of policy from seniority-based to

skill-based evaluations does not, without more, establish evidence of unlawful

discrimination.   See Jones v. Unisys Corp. , 54 F.3d 624, 632 (10th Cir. 1995).

Indeed, section 703(h) of Title VII clothes seniority- and merit-based tests with

particular protection.

             Notwithstanding any other provision . . ., it shall not be an
      unlawful employment practice for an employer to apply different
      standards of compensation, or different terms, conditions, or
      privileges of employment pursuant to a bona fide seniority or merit
      system . . . provided that such differences are not the result of an


      1
       (...continued)
protected class], the complaining party shall demonstrate that each particular
challenged employment practice causes a disparate impact, except that if the
complaining party can demonstrate to the court that the elements of a
respondent’s decisionmaking process are not capable of separation for analysis,
the decisionmaking process may be analyzed as one employment practice.” 42
U.S.C. § 2000e-2(k)(1)(B)(i).

                                          -9-
       intention to discriminate because of race, color, religion, sex, or
       national origin, nor shall it be an unlawful employment practice for
       an employer to give and to act upon the results of any professionally
       developed ability test provided that such test, its administration or
       action upon the results is not designed, intended or used to
       discriminate because of race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(h). Further, there is no evidence of national origin disparity.

The small number of overall applicants for the senior specialist positions renders

a statistical analysis relatively unhelpful.     See Fallis v. Kerr-McGee Corp. , 944

F.2d 743, 746 (10th Cir. 1991). The fact that only one of five Hispanic senior

specialist applicants was selected, while nineteen of forty-three non-Hispanic

candidates were selected, does not state a prima facie case of disparate impact

discrimination. The inability to rely on statistics does not minimize plaintiff’s

burden to prove an adverse effect on Hispanic candidates. If anything, the

absence of statistics makes plaintiff’s job more difficult.

       Putting aside these shortcomings, plaintiff cannot show the four

unsuccessful Hispanic applicants were qualified for the positions.       See Watson ,

487 U.S. 997 (alleged disparities “based on an applicant pool containing

individuals lacking minimal qualifications for the job [is] of little probative

value”). The record suggests two of the unsuccessful Hispanic candidates did not

have the required license. The only “evidence” that the remaining unsuccessful

Hispanics were qualified consists of their own affidavits, which contain mostly

hearsay and speculation.

                                               -10-
       Despite plaintiff’s protestations, it is his burden at the summary judgment

stage to establish a prima facie case.    See Celotex Corp. v. Catrett , 477 U.S. 317,

323-24 (1986). Without competent evidence of an adverse impact on Hispanics,

plaintiff’s disparate impact cause of action must fail.   See Vitug v. Multistate Tax

Comm’n , 88 F.3d 506, 514 (7th Cir. 1996).

                                         ADA Claim

       Plaintiff’s sole evidence on his ADA claim consists of a single hearsay

comment that, four years prior to his discharge, one of his supervisors told a

former colleague that plaintiff should have been fired because of his back

problems. This remark cannot support an ADA claim.           See Cone , 14 F.3d at 531.

Plaintiff also speculates his one-day absence for back problems five years earlier

was used against him in the selection process. Other than rank speculation, there

is no evidence defendant used plaintiff’s “disability absence” as a basis for not

selecting him for one of the positions.

                               Breach of Contract Claim

       Plaintiff appears to claim defendant violated its seniority policy by using

merit rather than seniority to select the senior specialists, and by exempting the

senior specialists from the seniority policy in conducting the layoffs. We must

reject both claims. First, there is no language in defendant’s seniority policy

mandating how new positions must be filled. Defendant’s personnel policy on


                                            -11-
internal placement/intercompany bidding specifically states that, with the

exception of certain positions not relevant here, all “job selections are based on

skill and ability.” Aplt’s App. at 176. Second, defendant’s policy entails

conducting reductions-in-force by position, i.e., by “job classification.”

Plaintiff’s position (electrical journeyman) was considered a different

classification than the position of senior specialist.

      Plaintiff suggests the senior specialist positions are identical to the

electrician positions subjected to the reduction-in-force in March 1996. There is

evidence in the record, however, that senior specialists had more responsibility

and performed significantly different tasks than other construction department

personnel. Plaintiff’s evidence to the contrary consisted of the affidavit of a

senior specialist who alleged (1) plaintiff was qualified to do the work of senior

specialists, and (2) the work of senior specialists required the same skills utilized

by other electricians. The fact that plaintiff may be able to perform the work does

not mean the positions are identical. Nor does the fact that certain

responsibilities may overlap suggest deception on the part of defendant. Many of

the duties and responsibilities of senior specialists are unique to that position.

See id. at 260-61. Defendant had a right to treat the positions differently under

its seniority policy and did not breach the policy in conducting the March 1996

reduction-in-force.


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AFFIRMED.

                   Entered for the Court

                   Mary Beck Briscoe
                   Circuit Judge




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