                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 15, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    ANDREW VILLALPANDO,

                Plaintiff-Appellant,
                                                        No. 10-4086
    v.                                         (D.C. No. 1:08-CV-00027-CW)
                                                          (D. Utah)
    KEN SALAZAR, Secretary,
    U.S. Department of the Interior,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY and HARTZ, Circuit Judges.



         While employed as an instructor by the United States Bureau of

Reclamation (Bureau), a division of the United States Department of the Interior

(Department), Andrew Villalpando applied for a vacant supervisory position with

the Bureau. A Caucasian male candidate, Matt Nielsen, was selected to fill the

position instead of Villalpando. Villalpando then brought this action, alleging


*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that the Department had unlawfully discriminated against him based on his race

(Mexican-American) and his national origin (Hispanic). 1 The district court

determined that no reasonable jury could conclude the Department’s actions were

based on Villalpando’s race or national origin. It therefore granted summary

judgment to the Department. Villalpando appeals, and we affirm.

                                 BACKGROUND

      1. Villalpando’s Background and Qualifications

      Villalpando served in the United States Air Force for 21 years. He was

posted to various locations overseas, participated in the first Gulf War, and retired

in May 1991. During his military career he specialized in construction planning,

management and production.

      In June 1991 he began part-time employment as a laborer with the Weber

Basin Job Corps Center (Weber Basin), a facility operated by the Bureau. By

December 2003, he had advanced at Weber Basin to a position as Lead Facilities

Maintenance Instructor. His instructor position included significant management

responsibilities, requiring him, among other duties, to assist Weber Basin’s

Career Development Team with student placement and to manage Weber Basin’s

maintenance budget.




1
       Villalpando’s complaint also included an age discrimination claim, but he
later abandoned that claim and it is not part of this appeal.

                                         -2-
      2. The WPO Position Opening

      Until he retired in January 2007, Dale Giauque served as Weber Basin’s

Work Programs Officer (WPO), a GS-11 position. As WPO, Giauque was

Villalpando’s first-level supervisor.

      During 2006, the Bureau’s Human Resources Department (HR) prepared a

revised and updated position description for the WPO position. The revised

position description was accompanied by a “Right Person Profile” (RPP) that

identified “the conditions of employment, job requirements, and job

competencies, including the employee’s required knowledge, skills, abilities,

experience, and attitudes” for the WPO position. Aplt. App., Vol. II at 497.

      The RPP and the revised position description emphasized a different set of

skills than those previously associated with the position. The previous position

description, under which Giauque had served, had stressed hands-on familiarity

with skills of the construction trade. The new position description and RPP

placed an enhanced emphasis on management and administration skills,

particularly involving use of computer information and the software system used

by the Job Corps centers.

      After Giauque retired, the Bureau solicited applications to replace him in

the WPO position. Villalpando was one of the applicants. The applications

received were forwarded to the Bureau’s HR office, where an HR employee rated

and ranked the applicants.

                                        -3-
      3. Nielsen’s Background and Qualifications

      Among the other candidates for the position was Matt Nielsen, a male

Caucasian who, like Villalpando, reported to Giauque during Giauque’s tenure as

WPO. Nielsen’s background was in culinary arts and food service. During high

school, he worked as a cook at a hospital. He was later promoted to banquet chef

where he oversaw other employees and helped prepare banquets for doctors.

      Nielsen later completed a culinary arts program at a technical college and

worked as an executive chef at an officer’s club. He eventually received his

chef’s certificate. When the base where he worked closed, he obtained a position

as food service manager supervisor at Clearfield Job Corps. In 1997 he began

work as a cook training instructor (GS-7) at Weber Basin. He was then promoted

to culinary arts instructor (GS-9), a position he retained until he was selected as

Weber Basin’s WPO.

      Before he applied for the WPO position at Weber Basin, Nielsen applied

for two supervisory GS-11 positions and failed to get them. In one case, he did

not even obtain an interview. He did better, however, after Archer gave him

several collateral duty assignments involving additional supervisory duties at

Weber Basin that enhanced his qualifications.

      After completing these assignments, he applied for a WPO position at the

Department’s Columbia Basin facility. This time, he was selected to fill the




                                         -4-
position, but withdrew his application for family reasons. He later successfully

applied for and received the position at issue in this appeal.

      4. The Cert List

      As ranked by HR, the five finalists’ scores for the Weber Basin WPO

position ranged between 34 and 39. Villalpando’s score was 38. Nielsen’s was

37.

      The HR Office provided the names of all the finalists for the position in the

form of a certification list (cert list) to the selecting official, Weber Basin’s

Center Director, Robert Archer. On the cert list, the names were listed in

alphabetical order and no scores were indicated. Archer also received each

finalist’s application resume, which included a written evaluation completed by

his or her first-level supervisor. Giauque, who had supervised both Villalpando

and Nielsen, rated Nielsen more highly than Villalpando in his written

evaluations.

      5. Archer’s Pre-Interview Meeting with the Candidates

      On January 18, 2007, Archer held a short meeting with the five candidates

for the WPO position. Villalpando testified that during this meeting, Archer

stated “whenever I make selections, I have people causing waves, getting mad,

doing things because they don’t like who we select. But this time if it happens I

will be the person to deal with and I will discipline those people.” Id., Vol. I at

168. Villalpando stated that when he said this, Archer looked directly at him and

                                          -5-
at Pam Livingston-Lewis, the other Hispanic candidate for the position. For her

part, Ms. Livingston-Lewis remembered Archer saying that “he was going to pick

who he felt was the best for the job” and the other candidates wouldn’t want to be

in the position of expressing problems with his choice or “stirring the pot, more

or less.” Id. at 99.

       6. The Interview Process

       Archer assembled a three-person panel to interview the five candidates.

Since the WPO position was rated GS-11, he sought interviewers at that level or

higher. The panel he assembled consisted of himself, as GS-13 Center Director;

Tammy Wentland, the GS-11 Center Administrative Officer; and Susan

Singleton-Wilburn, the GS-11 Center Health and Wellness Officer. Each of the

panel members understood that he or she had unfettered discretion to select any of

the five candidates to fill the WPO position.

       Archer asked Wentland and Wilburn to come up with a list of questions to

ask the candidates. Archer did not instruct the panel on what questions they were

to ask, but the three panelists did meet to coordinate their questions to avoid

duplication. During the interviews, the panel asked each of the five candidates

the same questions. At the end of each interview, Archer asked each candidate to




                                         -6-
prepare a written report stating what he or she would do if selected during his or

her initial time in the position. 2

       Following the conclusion of the panel interviews, Archer immediately

asked the panelists which of the candidates they would select if they had to make

a choice at that point. Both Wentland and Wilburn chose Nielsen, as did Archer.

Based on this vote, Nielsen was selected to fill the position.

       Archer later explained that in his view, Nielsen’s understanding of

computers, software programs, and how to interface with the business community

was “just a little better” than that of the other candidates. Id. at 89. Wilburn

noted Nielsen’s enthusiasm about the position during the interview, stating “he

was jumping out of the chair.” Id., Vol. II at 339. Her previous work with

Nielsen also gave her confidence in his ability to manage people. Id. at 340.

Wentland was swayed in favor of Nielsen by his “administrative capabilities” and

his computer literacy. Id., Vol. I at 211.




2
       There is a conflict in the evidence concerning the exact nature of this
“homework” assignment. Villalpando testified that he was asked to write down
all the questions asked during the interview and his answers to them, then prepare
a “60-day plan” for the position. Aplt. App., Vol. II at 273. Tammy Wentland
remembered that the assignment “was to determine what they would do in the first
30 days of the position. And I think there was another portion, but I can’t recall
what that was.” Id., Vol. I at 212. Any discrepancies on this point do not rise to
the level of a material fact dispute that would prevent the entry of summary
judgment.

                                         -7-
      The candidates later turned in their written reports. The panel members

reviewed these, and found that their consensus in favor of Nielsen had not

changed. Accordingly, Nielsen was selected for the position.

                                    ANALYSIS

      1. Summary Judgment Standard

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

standard as the district court . . . .” Gwinn v. Awmiller, 354 F.3d 1211, 1215

(10th Cir. 2004). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the record on

summary judgment in the light most favorable to the nonmoving party. Gwinn,

354 F.3d at 1215.

      2. McDonnell Douglas Standard

      Villalpando asserts claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e to 2000e-17 (Title VII). Because he presents only

circumstantial evidence of discrimination in support of his Title VII claims, we

analyze this evidence using the burden-shifting framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

      Under the McDonnell Douglas approach, the plaintiff must first establish a

prima facie case of discrimination. Johnson v. Weld County, 594 F.3d 1202,

1210-11 (10th Cir. 2010). In response, “the defendant then must articulate a

                                         -8-
legitimate, non-discriminatory reason for the adverse employment action.” Id. at

1211. At that point, “the burden then shifts back to the plaintiff, who must prove

by a preponderance of the evidence that the employer’s reasons are a pretext for

unlawful discrimination.” Id.

      The parties do not dispute that the first two steps of the framework have

been satisfied. In response to Villalpando’s prima facie case of discrimination,

the Department offered the following legitimate and non-discriminatory reasons

for not selecting him for the WPO position:

      [1] Each member of a three-person selection committee interviewed
      all of the final candidates, assessed the candidates’ written reports,
      and independently and unanimously chose Mr. Nielsen as the most
      qualified and best suited for the newly-defined WPO position.
      [2] Mr. Nielsen’s selection for a WPO position at another Job Corps
      center before the selection at issue here establishes that he was
      qualified for the position. [3] In addition, Mr. Giauque supervised
      both Mr. Nielsen and Mr. Villalpando and rated Mr. Nielsen more
      favorably for the WPO position.

Aplee. Br. at 13. Villalpando acknowledges that the Department met its burden

by advancing these three legitimate reasons for its actions. He argues, however,

that he has also met his burden of showing that these reasons were a pretext for

discrimination, thereby preventing the entry of summary judgment against him.

      3. Pretext Analysis

      A Title VII plaintiff establishes pretext by presenting evidence of “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

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

                                        -9-
factfinder could rationally find them unworthy of credence and hence infer that

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

v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (quotation omitted).

Villalpando identifies three basic categories of pretext: (1) Archer’s preferential

treatment of Nielsen prior to the interview process; (2) alleged irregularities

associated with the interview process; and (3) evidence of Archer’s animosity

toward Villalpando.

             A. Personal Favoritism

      Essentially, Villalpando argues that Archer personally favored Nielsen for

the WPO job. To ensure his selection, he burnished Nielsen’s credentials for the

job by assigning Nielsen to certain “collateral assignments” involving additional

supervisory experience that made Nielsen a better candidate than he would

otherwise have been. This permitted Nielsen to overcome the weakness in his

credentials created by his background in food service rather than in the

construction field, traditionally the heartland of Weber Basin’s mission.

Villalpando also alleges that during the interview process, Archer bypassed some

of the usual formalities designed to insulate the interview panel against personal

favoritism, short-cut the interview process, and otherwise essentially “stacked the

deck” in favor of Nielsen.

      All this, however, does not show pretext. Even if these arguments

undermine the Department’s stated reasons for promoting Nielsen rather than

                                         -10-
Villalpando, they tend to show that the stated reasons were a pretext for Archer’s

favoritism or cronyism, not for discrimination. Villalpando concedes that all

candidates for the position, including other Caucasian, non-Hispanic candidates,

were disadvantaged by Archer’s desire to see Nielsen get the job and by his

actions in favor of Nielsen. See, e.g., Aplt. Opening Br. at 19 (“Villalpando

acknowledges that Mr. Archer’s management actions evidenced favoritism toward

Mr. Nielsen and that this bias impacted adversely each of the other four

candidates who reached the certification roster for the WPO position.”).

Moreover, even if Villalpando was better-qualified than these other unsuccessful

candidates, this does not erase his concession of a non-discriminatory motive.

      Villalpando argues, however, that he is “not required to show pretext

coupled with additional evidence of discriminatory motive to survive summary

judgment.” Id. at 28. We agree that an employee can usually survive summary

judgment merely by making out a prima facie case and establishing that the

employer’s stated reasons are pretextual, without the need to provide further

evidence of discriminatory motive. But an exception arises where “the plaintiff

concedes that the real, albeit concealed, reason for the employment decision was a

motive that itself is not prohibited under the civil rights laws.” Randle v. City of

Aurora, 69 F.3d 441, 451 n.14 (10th Cir. 1995). In that case, “the plaintiff would

remain vulnerable to summary judgment because the plaintiff’s concession of a

lawful motive would take the issue of motive from the jury and preclude the

                                        -11-
inference of a discriminatory motive that the jury could otherwise draw from the

fact of pretext.” Id.

      Here, Villalpando makes precisely such a concession when he argues that

the “real” reason for the employer’s decision was Archer’s unjustifiable

favoritism of Nielsen over all other candidates. Title VII prohibits discrimination

based on race or national origin, but not based on personal favoritism. See Neal

v. Roche, 349 F.3d 1246, 1251-52 (10th Cir. 2003). While “racism can be said to

be a particular kind of cronyism or favoritism” and courts must be careful “not to

condone a defense that would immunize racial discrimination by giving it a

different name,” Harris v. Hays, 452 F.3d 714, 721 (8th Cir. 2006) (Gibson, J.,

concurring), those concerns are not implicated here.

      Villalpando’s naked protestations that discrimination was involved cannot

save his claim. A plaintiff who advances a hidden but nondiscriminatory

motivation need not “concede that [the] nondiscriminatory motive was the only

motivation for the employer’s actions in order to justify summary judgment for

the employer.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1173

(10th Cir. 2007). Rather, it is sufficient that he “provided arguments in [his]

summary judgment materials as a part of [his] position before the court that

supported such a nondiscriminatory motive,” and that his “other evidence was

insufficient to permit an inference of any discriminatory motive.” Id. As we

have seen, Villalpando’s arguments do support a nondiscriminatory motive.

                                         -12-
Accordingly, we turn next to the “other evidence” he provided, concerning

Archer’s alleged animosity toward him, to determine whether this evidence

permits the inference of a discriminatory motive.

             B. Animosity

      Villalpando asserts that Archer’s animosity toward him explains his failure

to offer Villalpando the same training and collateral opportunities he offered

Nielsen, as well as his failure to hire him for the position. A concession that

Archer was motivated by personal animosity rather than discriminatory animus

would of course justify the entry of summary judgment on Villalpando’s Title VII

claim, for the same reasons we have outlined involving favoritism. See Randle,

69 F.3d at 451 n.14. Personal animosity is merely the flipside of favoritism.

Giving Villalpando the benefit of the doubt, however, we will assume he alleges

not merely personal animosity but an animosity equivalent to discriminatory

animus because of Villalpando’s race and national origin. Even so, he fails to

present evidence that would satisfy his burden of showing pretext on this basis.

      First, he admits that Archer had poor working relationships with three of

the unsuccessful candidates, not only himself. As the district court put it,

“sufficient evidence has been presented to show that Robert A. Archer has an

authoritarian supervisory style that may result in animus toward employees who

challenge Mr. Archer’s opinions or decisions.” Aplt. App., Vol. I at 30. This

evidence merely suggests animus of the equal-opportunity variety.

                                        -13-
      Second, the only two specific incidents illustrating animosity that he

describes are an incident when Archer failed to award him and another Hispanic

employee their 15-year service pins during a meeting, and the fact that Archer

looked directly at the two Hispanic candidates when he warned the candidates for

the WPO position about making waves if they were not the successful candidate

for the position. These two isolated incidents, standing alone, are insufficient to

demonstrate that the Department’s actions in selecting Nielsen were pretextual. 3

      The judgment of the district court is AFFIRMED.

                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




3
       We also note that in 2004, Villalpando served in the collateral duty role of
safety officer for less than a year before Archer removed him and appointed
Nielsen safety officer instead. But this hardly establishes discriminatory animus.
Villalpando does not deny Archer had a non-discriminatory motive for replacing
him with Nielsen: Villalpando’s heavy workload at the time. Aplt. App., Vol. I
at 151.

                                         -14-
