Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

Elmon M. Elmore appeals the district court's grant of summary judgment in the employment discrimination action under 42 U.S.C. § 2000e, et seq. ["Title VII"], which he brought against Manuel Lujan, the Secretary of the Interior ["the Secretary"]. Elmore contends that the district court erred in granting summary judgment against him, because he has made out a prima facie case of employment discrimination. He also contends that the district court should have granted his motion for summary judgment on the issue of his entitlement to priority consideration. We affirm in part and reverse in part.

Elmore applied for an available position with the National Park Service as Equal Employment Manager ("EEM") for the Western Region in mid-1981. The vacancy was announced as grade "GS-260-12/13," meaning that it could be filled at either GS-12 or GS-13. Elmore's application stated that the lowest grade he would accept was a GS-13. The rating of applicants for the position was conducted improperly. As a result, Elmore and several other applicants were not ranked on the "best qualified" list. A white female, Rebecca Mills, was selected to fill the position. Elmore is a black male.

After the errors in the first ranking were discovered, a new panel was convened and the applicants re-ranked. In the re-ranking, Elmore and other applicants were also found to be highly qualified for the position and placed on the "best qualified" list. Since Mills remained on the "best qualified" list, she was retained in the position pursuant to the agency's Merit Promotion Plan. Under the plan, the applicants who were improperly ranked, including Elmore, were entitled to priority consideration for similar jobs at the same grade. Since 1981, three EEM positions have become available at the GS-12 level for which Elmore was not given priority consideration.¹ 

After exhausting his administrative remedies, Elmore received a right-to-sue letter from the EEOC. He filed a complaint alleging employment discrimination on the basis of race and sex. His pro se complaint alleges that he was not given credit for his experience when he initially applied for the EEM job and that he was not given priority consideration for other positions.

Elmore filed a motion for summary judgment on the issue of priority consideration. The Secretary's opposition to Elmore's motion was considered a cross-motion for summary judgment. The district court concluded that because Elmore's application provided that he would not accept a grade lower than GS-13, he was not entitled to priority consideration for GS-12 positions. The court also concluded that Elmore had not established a prima facie case of discrimination. Elmore filed a timely appeal. The district court had jurisdiction under 42 U.S.C. § 2000e-5(f) (3). We have jurisdiction under 28 U.S.C. § 1291.

We review the district court's grant of summary judgment de novo. Yartzoff v. Thomas, 809 F.2d 1371, 1373 (9th Cir. 1987). We must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Id.

DISCUSSION

Summary judgment is appropriate if the non-moving party bears the ultimate burden of proof at trial as to an element essential to his case, and fails to make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).

To establish a prima facie case of employment discrimination under Title VII, Elmore had to show: 1) that he belongs to a class protected by Title VII; 2) that he applied for and was qualified for a job for which the National Park Service was seeking applicants; 3) that he was rejected; and 4) after his rejection, the position remained open and the National Park Service continued to seek applications from persons of comparable qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).

If Elmore established a prima facie case, then the Secretary would be required to articulate a legitimate, nondiscriminatory reason for the rejection of Elmore. "Articulate" means to produce evidence, not merely to express in argument. Rodriguez v. General Motors Corp., 904 F.2d 531, 533 (9th Cir.), cert. denied, --- U.S. ----, 111 S. Ct. 518, 112 L. Ed. 2d 530 (1990). Elmore would then have to show that the articulated reason was pretextual. Yartzoff, 809 F.2d at 1374. Elmore would retain the ultimate burden of persuasion. Id. at 1377.

The district court granted summary judgment on the priority consideration claim because the jobs for which Elmore claimed a right to priority consideration were GS-12 and his application stated that he would not accept a position below grade GS-13. The district court could properly conclude that Elmore had failed to make out a prima facie case on this claim, since he did not apply for a GS-12 position.

Elmore attempted to raise a genuine issue of material fact by asserting that his understanding was that a GS-12, Step 6 or 7 was "equivalent" to a grade of GS-13. But Elmore failed to introduce evidence to show that he told the National Park Service that he would accept a GS-12 position, or that the Service should have read his application to say so.² 

Whatever clerical errors were made concerning the vacancies for which Elmore was to be considered, two things are clear: The National Park Service did not intend to give Elmore priority consideration for GS-12 jobs and Elmore did not tell it he wanted such consideration. The Service was entitled to take him at his word.

Elmore has also challenged the initial failure to hire him for the Western Region job. The district court believed that Elmore had failed to make out a prima facie case of discrimination. The court disposed of his claim briefly, stating that Elmore's "conclusory allegations of discrimination ... do not meet plaintiff's burden under McDonnell Douglas."

However, the undisputed facts show that Elmore made out a prima facie case with respect to the initial failure to hire him for the Western Region position. He is a black male who was highly qualified for the position. He was rejected and Mills, a white female, was hired instead. He thus satisfied the McDonnell Douglas requirements for both his race and sex discrimination claims.

The articulated reason for failing to hire Elmore for the position was that he was misranked. The Secretary concedes that the ranking process which led to the hiring decision at issue was performed improperly. That, of course, does not demonstrate a legitimate nondiscriminatory reason for making a hiring decision. The Secretary offered no evidence to show that the improper method of rating the applicants was nondiscriminatory. If any inference were to be drawn from the bare fact of failure to follow proper procedures, it would not be one in favor of the Secretary.

Elmore's prima facie evidence raised an inference of discrimination. Because he made out a prima facie case, and the Secretary submitted nothing to offset that, the district court should have drawn a reasonable inference of discrimination in Elmore's favor. Summary judgment was inappropriate on this claim. Yartzoff, 809 F.2d at 1377.

AFFIRMED in part and REVERSED in part and REMANDED for further proceedings.