Neal v. Sandia National Laboratories ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 6, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
WILLIAM R. NEAL,
Plaintiff-Appellant,
v. No. 04-2329
(D.C. No. CIV-03-648-JB/RHS)
SANDIA NATIONAL (D. N.M.)
LABORATORIES, a U.S.
Government-owned-contractor-operated
facility,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and McCONNELL, 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(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This order and judgment is not binding precedent, except under the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. 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 William R. Neal applied for a job with Sandia National
Laboratories (“Sandia”) on three occasions, but was not interviewed or hired. He
filed a complaint against Sandia, alleging it violated the Age Discrimination in
Employment Act (“ADEA”). The district court granted Sandia’s motion for
summary judgment. Plaintiff appeals, and we affirm.
The parties are familiar with the facts, which are accurately and fully
described in the district court’s thorough thirty-one page opinion; thus, we need
not repeat them here. The parties agree that plaintiff presented a prima facie case
of ADEA discrimination. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1226 (10th Cir. 2000) (describing elements of prima facie failure-to-hire
ADEA claim). They also agree that Sandia presented legitimate, non-
discriminatory reasons for not hiring plaintiff, namely, that it never considered
plaintiff’s first application because it was submitted after Sandia had completed
interviews for the opening, and, when Sandia did consider plaintiff’s next two
applications, it determined he lacked sufficient relevant experience and did not
meet its minimum GPA requirement. See id. (describing burden-shifting analysis
of circumstantial-evidence ADEA claim).
At issue before the district court was whether plaintiff presented evidence
that Sandia’s reasons were pretext for discrimination. See id. at 1230 (noting that
plaintiff can withstand summary judgment if he presents evidence that employer’s
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reason for the employment decision is “pretextual-i.e. unworthy of belief”).
Plaintiff attempted to demonstrate pretext by alleging Sandia had a hiring policy
(the “80/20” policy) that preferred recent college graduates, which had a disparate
impact on older job applicants. Plaintiff also alleged Sandia applied its minimum
GPA requirement in a manner that favored younger applicants.
The district court ruled that plaintiff failed to produce a genuine issue of
material fact with respect to pretext. It held that Sandia presented undisputed
evidence that the decisionmakers who considered plaintiff’s applications believed
Sandia had discontinued the 80/20 policy with respect to the positions sought by
plaintiff a year before he first applied for a job, and did not consider that policy in
evaluating plaintiff’s application. It next ruled that, even assuming plaintiff
presented evidence that four applicants hired by Sandia had GPAs below its
minimum GPA requirement, plaintiff failed to show that any of these four
applicants were similarly situated to him.
Analysis
We review the grant of summary judgment de novo, applying the same
standard as did the district court. MacKenzie v. City & County of Denver,
414 F.3d 1266, 1273 (10th Cir. 2005). Summary judgment is proper where “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
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material fact and the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We review the record and any reasonable inferences
therefrom in the light most favorable to the nonmoving party. MacKenzie,
414 F.3d at 1273.
Disparate Impact Claim. Plaintiff first contends the district court’s
dismissal of his disparate impact claim should be reversed because of an
intervening change in the law. We conclude that plaintiff did not preserve this
issue for appellate review. Plaintiff alleged in his complaint that Sandia’s 80/20
policy of preferring recent college graduates violated the ADEA because it had a
disparate impact on older applicants. At the time the district court ruled on
Sandia’s summary judgment motion, the controlling precedent in this circuit held
that disparate impact claims were not cognizable under the ADEA. See Ellis v.
United Airlines Inc., 73 F.3d 999, 1007 (10th Cir. 1996). Six months later, the
Supreme Court ruled that disparate impact claims may be brought under the
ADEA. Smith v. City of Jackson, __ U.S. __, 125 S.Ct. 1536, 1540 (Mar. 30,
2005).
We conclude that plaintiff affirmatively abandoned his disparate impact
claim before the district court. When a party concedes a legal issue in the district
court, we will not review the issue on appeal. See Petrini v. Howard, 918 F.2d
1482, 1483 n.4 (10th Cir. 1990) (per curiam); see also Lyons v. Jefferson Bank &
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Trust, 994 F.2d 716, 722 (10th Cir. 1993) (holding that issues which have been
raised and then abandoned in the district court will not be considered on appeal).
At the summary judgment hearing, the district court noted Ellis, but also informed
plaintiff that City of Jackson was pending before the Supreme Court and was
expected to resolve whether disparate impact claims were cognizable under the
ADEA. In response, plaintiff explicitly told the district court that he was not
bringing a disparate impact claim, but was merely alleging that the 80/20 policy’s
disparate impact could be evidence of pretext. Aplt. App. at 265-67; see Furr v.
Seagate Tech., Inc., 82 F.3d 980, 987 n.4 (10th Cir. 1996) (“disparate impact may
be evidence of intentional discrimination in certain cases”).
Although appellate courts may, under exceptional circumstances, consider
an issue not raised below where a supervening decision has changed the law while
the appeal was pending, see United States v. Novey, 922 F.2d 624, 629 (10th Cir.
1991), we decline to do so in this case. Plaintiff did not alert the district court in
any way that he wished or intended to preserve his disparate impact claim for
appellate purposes in the event of a change in the law, which was certainly
foreseeable at the time of the summary judgment hearing. To the contrary, he told
the court he was not asserting a disparate impact claim, Aplt. App. at 267, and
both the district court and the defendant relied upon that representation, id. at
203. The issues involved are not purely questions of law, see City of Jackson,
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125 S. Ct. at 1545-46 (describing the factually-specific evidence required to state
a valid disparate impact claim); the proper resolution of these issues is not beyond
reasonable doubt; and the failure to address the issues would not result in a
miscarriage of justice. See Petrini, 918 F.2d at 1483 n.4 (outlining the
exceptional circumstances under which appellate court may exercise discretion to
review a previously unconsidered issue). We find no reason to exercise our
exceptional-circumstances discretion in this case.
Pretext as to GPA requirement. In plaintiff’s next three issues on appeal,
he contends the district court erred in finding that he was not similarly situated to
another candidate, referred to as CDW, who was under forty years old, did not
meet Sandia’s minimum GPA requirement, but was hired for one of the jobs
sought by plaintiff. Pretext may be demonstrated by revealing “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action [such] 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). A plaintiff may “show pretext
on a theory of disparate treatment by providing evidence that he was treated
differently from other similarly situated, non-protected employees.” Kendrick,
220 F.3d at 1232.
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CDW had worked for Sandia for six years when she applied for the
position. Sandia presented evidence - a Selection Justification Memo - in which
Sandia’s hiring manager recommended to her superiors that CDW be hired,
notwithstanding her GPA, because she had a stellar work history, had significant
knowledge and experience relevant to the job, and had demonstrated that she
could “easily compete with colleagues with a stronger GPA.” Aplt. App. at 179.
The district court ruled that plaintiff failed to meet his burden of showing he was
similarly situated to CDW because she was an existing employee who had
demonstrated by her prior performance that she could match those applicants with
higher GPAs. See Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1178
(10th Cir. 2000) (holding that internal employee who was not required to be
interviewed was not similarly situated to outside applicant who performed poorly
on interview).
Plaintiff contends the outside-applicant-current-employee distinction is
superficial and that a reasonable fact-finder could conclude from CDW’s hire that
Sandia’s below-minimum GPA explanation was pretext. We disagree. The fact
that CDW was an existing employee is a relevant distinction, see id., as are her
demonstrated intellectual competence and significant relevant job experience,
Kendrick, 220 F.3d at 1232 (holding that work histories and relevant employment
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circumstances should be considered in determining whether two employees are
similarly situated).
Plaintiff also contends the district court erred in accepting Sandia’s
Selection Justification Memo as evidence because it was merely a subjective
recommendation, not evidence of why the actual decisionmakers hired CDW. We
do not consider this argument, because it is raised for the first time on appeal. 1
See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992)
(observing general rule that appellate court will not consider an issue not passed
upon by district court). We agree with the district court that plaintiff failed to
show he was similarly situated to CDW.
Pretext as to Application of 80/20 Policy. Plaintiff’s remaining claims of
error relate to the district court’s finding that plaintiff did not raise any issue of
genuine fact on the issue of pretext with respect to Sandia’s 80/20 policy. He
first asserts that the district court erred in allowing affidavits from Sandia’s hiring
officials who testified that, well before plaintiff submitted his resume, supervisors
1
Contrary to 10th Cir. R. 28.2(C)(2), plaintiff fails to indicate where he
raised this issue before the district court. Id. ( “For each issue raised on appeal,
all briefs must cite the precise reference in the record where the issue was raised
and ruled on.”). We are able to find only a vague comment by plaintiff’s counsel
to the court, certainly not in the form of an objection, that the Selection
Justification Memo is not dated. Aplt. App. at 275. We therefore decline to
consider this argument. See State Ins. Fund v. Ace Transp. Inc ., 195 F.3d 561,
564 n.3 (10th Cir. 1999); 10th Cir. R. 10.3(B).
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had informed them that Sandia had discontinued applying the 80/20 policy to the
position sought by plaintiff. The district court ruled that these affidavits were not
inadmissible hearsay, as argued by plaintiff, because they were not admitted for
the truth of the matter, but rather as evidence of the hiring officials’ belief and
understanding that the 80/20 policy did not apply to plaintiff’s application.
Plaintiff contends on appeal this distinction is academic, and argues, for the first
time on appeal, that this evidence was unduly prejudicial under Fed. R. Civ. P.
403. We find no abuse of discretion in the district court’s consideration of this
evidence. See In re Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000).
Further, we agree with the district court, for the reasons thoroughly stated
in its order, that plaintiff did not create a genuine issue of material fact
controverting Sandia’s evidence that the 80/20 policy was not applied to him.
Sandia presented uncontroverted evidence that all of those involved in the hiring
process believed Sandia’s 80/20 policy did not apply to the position sought by
plaintiff, did not consider this policy when considering plaintiff’s applications,
and rejected his applications because he lacked the relevant job experience and
did not meet the minimum GPA. “To show pretext, the plaintiff must call into
question the honesty or good faith” of the employer’s assessment of the situation.
Exum v. United States Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004);
Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999),
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abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (2002) (“The relevant inquiry is not whether [the employer’s] proffered
reasons were wise, fair or correct, but whether [it] honestly believed those reasons
and acted in good faith upon those beliefs.”).
Lastly, plaintiff contends the district court committed reversible error when
it noted evidence that Sandia did hire workers in the protected over-forty age
group. The district court did not, as argued by plaintiff, rely on this as evidence
that Sandia’s explanation for not hiring plaintiff was not pretextual. Rather, the
district court merely commented on this evidence in the context of plaintiff’s
claim that there was statistical evidence that Sandia still applied the 80/20 policy
when it considered his application.
In summary, we conclude from our review of the evidence that plaintiff did
not carry his burden of showing that Sandia’s proffered reasons for not hiring him
were unworthy of belief. The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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