                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                             AUG 1 1997
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    CONNIE GAIL PAULSBOE,

                Plaintiff-Appellant,

    v.                                                     No. 97-7003
                                                     (D.C. No. 96-CV-223-S)
    FARNAM COMPANIES, INC.,                                (E.D. Okla.)

                Defendant-Appellee.


                              ORDER AND JUDGMENT *


Before BRORBY, BARRETT, and MURPHY, Circuit Judges.



         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. 34.1.9. The case is therefore

ordered submitted without oral argument.

         Plaintiff-appellant Connie Gail Paulsboe appeals the district court’s

summary judgment in favor of defendant Farnam Companies, Inc. Because



*
      This order and judgment is not binding precedent, except under the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 has not shown the existence of a genuine issue of material fact, and

because defendants are entitled to judgment as a matter of law, we affirm.

      Plaintiff was employed by defendant as a sales representative from

November 1992 to December 1995. Defendant’s organization was structured so

that certain operating divisions, including plaintiff’s, reported to Chief Operating

Officer Andy Deer, and the remaining divisions reported to Chief Executive

Officer Bill Johnson. Both Deer and Johnson reported directly to defendant’s

owner. In late 1995, defendant made several changes to its organization,

including eliminating plaintiff’s sales department. At the same time, a new

Performance Horse Division was created in Bill Johnson’s area of responsibility,

requiring defendant to hire a national sales manager and four regional sales

managers. Plaintiff applied for the position of regional sales manager for the

South Central region, where she resided. The new national sales manager, upon

CEO Bill Johnson’s recommendation, hired Bobby Box for the position. Bill

Johnson then offered plaintiff two of the other regional sales manager positions,

both of which would have required her to relocate. Plaintiff declined these

positions and was terminated in December 1995.

      Plaintiff brought this gender discrimination action in May 1996, alleging

that she was denied the South Central regional sales manager position based on

her gender. The district court granted defendant summary judgment on the


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ground that plaintiff failed to produce evidence that defendant’s proffered reason

for its decision was pretextual. The court also implied that even if the evidence

showed gender discrimination, plaintiff had failed to mitigate her damages. This

appeal followed.

      We review a grant of summary judgment de novo, applying the same

standards as those used by the district court. See Universal Money Ctrs., Inc. v.

American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Summary

judgment is appropriate if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We examine the record and reasonable inferences therefrom in the

light most favorable to the nonmoving party. See Applied Genetics Int’l, Inc. v.

First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

      To survive summary judgment on her Title VII disparate treatment claim,

plaintiff was required to produce evidence that she was subjected to intentional

discrimination based on her gender. See Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981). We evaluate plaintiff’s evidence pursuant to

the burden-shifting scheme first announced in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). See Burdine, 450 U.S. at 252-53.

      Under this framework, plaintiff had the initial burden of showing a prima

facie case of discrimination. She met this burden by showing that she is a


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member of a protected class; that she applied for and was qualified for the

regional manager position; that she was rejected despite her qualifications; and

that the position was filled by a male applicant. See id. at 253 & n.6. The burden

then shifted to defendant to show a legitimate, nondiscriminatory reason for its

employment decision. See id. at 254. Defendant met this burden through

evidence that it hired the male applicant because he was more qualified, and more

importantly, because Johnson was giving first priority to those employees who

already worked in his area of responsibility.

      The burden then reverted to plaintiff to show that defendant’s proffered

reasons were not the true reasons for the employment decision. Plaintiff could

meet this burden “either directly by persuading the court that a discriminatory

reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Id. at 256. A

showing of pretext, in itself, is all that is required to raise the inference of

discriminatory intent, no additional showing of actual discriminatory animus is

necessary. See Randle v. City of Aurora, 69 F.3d 441, 451-52 & n.17 (10th Cir.

1995) (rejecting pretext-plus standard).

      Plaintiff’s evidence does not show that defendant’s primary reason for

hiring Box--Johnson’s allegiance to those who already worked for him--was

pretextual. Although such preference may have contravened defendant’s policy as


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professed in its newsletter, there is no evidence the decision was not actually

made on this basis, and strong evidence that it was. See id. at 454 & n.20

(holding employer’s failure to follow internal procedures “does not necessarily

suggest that the employer was motivated by illegal discriminatory intent or that

the substantive reasons given . . . were pretextual,” and noting that procedural

irregularity disadvantaged all potential applicants, not just minority employee).

Favoritism based on criteria other than gender does not violate Title VII, and does

not raise an inference of discrimination. See Brandt v. Shop’n Save Warehouse

Foods, Inc., 108 F.3d 935, 938-39 (8th Cir. 1997) (holding that although job may

have been created and person hired based on friendship, rather than qualifications,

this did not raise inference that decision motivated by gender discrimination);

Autry v. North Carolina Dep’t of Human Resources, 820 F.2d 1384, 1385 (4th

Cir. 1987) (holding race discrimination case not made by showing that friendship

or politics may have entered into promotion decision); Goostree v. Tennessee, 796

F.2d 854, 862 (6th Cir. 1986) (discussing lack of evidence of sex discrimination

and distinguishing “between a hiring process that proceeds based on legally

impermissible distinctions . . . and a patronage system that relies on family,

friends, and political allies”) (quotations omitted); Clement v. Madigan, 820 F.

Supp. 1039, 1046-47 & n.10 (W.D. Mich. 1992) (holding evidence of nepotism

does not raise inference of pretext or racial discrimination).


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      Further, plaintiff’s belief that she was more qualified than Box does not

establish pretext for several reasons. First, defendant does not seriously rely on

Box’s qualifications to support its decision, but on Johnson’s allegiance to those

who worked for him. The newly hired sales manager did attribute three superior

qualifications to Box, however, which led him to believe Box was the more

qualified applicant: his existing business relationships with major distributors,

years of industry-related experience, and first hand-knowledge based on his

family’s involvement in the performance horse industry. Objectively, these are

qualifications that plaintiff lacked. Even if plaintiff’s company-wide seniority

and familiarity with the products line rendered her equally as qualified, an

employer does not violate Title VII by choosing among equally qualified

candidates, so long as the decision is not based on unlawful criteria. See Burdine,

450 U.S. at 259. Absent evidence that one candidate is “overwhelmingly better

qualified,” pretext cannot be shown simply by comparing plaintiff’s qualifications

with those of the successful applicant. Sanchez v. Philip Morris Inc., 992 F.2d

244, 247-48 (10th Cir. 1993); see also Branson v. Price River Coal Co., 853 F.2d

768, 772 (10th Cir. 1988) (“As courts are not free to second-guess an employer's

business judgment, this assertion [that plaintiff was equally or more qualified] is

insufficient to support a finding of pretext.”).




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      Lastly, the comments attributed to Johnson regarding plaintiff’s marketing

style do not raise an inference of discriminatory motive sufficient to survive

summary judgment. Although Johnson characterized drinking and socializing

with clients in the evenings as being “one of the guys,” his comments make it

clear that he believed her capable of adopting this marketing style regardless of

her gender. See Appellant’s App. at 182-83. Johnson’s comments reflected

concern about her unwillingness to engage in such conduct rather than a belief

that her gender prevented her from doing so. Whether or not it makes good

business sense to judge a sales representative’s qualifications based on her

willingness to socialize with customers, it does not violate Title VII to consider

such a factor. As plaintiff did not meet her burden of showing pretext, the district

court correctly granted summary judgment, and we need not address the

mitigation of damages issue.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

                                                    Entered for the Court


                                                    James E. Barrett
                                                    Senior Circuit Judge




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