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. e du/thir dc ir c uit_1996/56UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5762

PRESTON HAMPTON; CARL BOWLES Appellants

v.

BOROUGH OF TINTON FALLS POLICE DEPARTMENT; ANN Y . McNAMARA, MAYOR, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW; RICHARD BRANDSTETTER, COUNCILMAN, INDIVIDUALLY AND ACTING U NDER COLOR OF STATE LAW; ROBERT GAGLIANO, COUNCILMAN, INDIVIDUALL Y AND ACTING UNDER COLOR OF STATE LAW; RICHARD MAHER, COUNCILMAN , INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW; LYNN ROBINSON, COUNCILWOMAN, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW; G ABE TORNILLO, COUNCILMAN, INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW, AND

IN HIS CAPACITY AS A MEMBER OF THE PROMOTIONAL REVI EW BOARD; ANTHONY MUSCILLO, INDIVIDUALLY AND ACTING UNDER COL OR OF STATE LAW IN HIS CAPACITY AS BOROUGH ADMINISTRATOR, PUBLI C SAFETY

DIRECTOR AND MEMBER OF THE PROMOTIONAL REVIEW BOARD AND ORAL INTERVIEW BOARD; LADEAN WHITE, INDIVIDUALLY AND ACT ING UNDER COLOR OF STATE LAW, AND IN HIS CAPACITY AS CAPTAIN OF POLICE AND MEMBER OF THE PROMOTIONAL REVIEW BOARD; PASQUALE ME NNA,

INDIVIDUALLY AND ACTING UNDER COLOR OF STATE LAW IN HIS CAPACITY

AS BOROUGH PROSECUTOR AND MEMBER OF THE PROMOTIONAL REVIEW BOARD; LOU NAPOLITANO, INDIVIDUALLY AND ACTING UNDER COLOROF STATE LAW IN HIS CAPACITY AS MEMBER OF THE ORAL REVIEW BOARD; JOSEPH TORCHIA, INDIVIDUALLY AND ACTING UNDER COLOR OF STA TE LAW AS A MEMBER OF THE ORAL REVIEW BOARD; JOHN DOES, (1-100) ; JANE DOES, (1-100); DAVID GONZALEZ

APPEAL FROM THE UNITED STATES DISTRICT C OURT

FOR THE DISTRICT OF NEW JERSEY (D.C. No. 95-cv-01828)

Argued: August 6, 1996

Before: NYGAARD, LEWIS and McKEE, Circuit Judges

(Filed October 18, 1996)GREGORY S. SCHAER, ESQUIRE

LINDA B. KENNEY, ESQUIRE (ARGUED) Law Offices of Linda B. Kenney The Galleria, Two Bridge Avenue Building No. 5, Second Floor Red Bank, New Jersey 07701

Attorneys for Appellants

ROBERT T. CLARKE, ESQUIRE (ARGUED)
SHARON P. MARGELLO, ESQUIRE Apruzzese, McDermott, Mastro & Murphy, P.C. 25 Independence Blvd.
Post Office Box 112 Liberty Corner, New Jersey 07938

Attorney for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge. Preston Hampton and Carl Bowles appeal from t he district court's grant of summary judgment in favor of all d efendants on all claims that plaintiffs brought against the Boro ugh of Tinton Falls New Jersey, the Tinton Falls Police Departmen t and numerous governing officials of that borough. Hampton, who is Black, is a Detective Sergeant with the Tinton Falls Police Dep artment; Bowles, who is also Black, is a former Borough empl oyee and a named plaintiff by virtue of his status as a reside nt in the borough. Plaintiffs allege illegal discrimination in connection with the borough's decision not to promote Hampton from sergeant to lieutenant. We hold that the district court pro perly granted summary judgment on plaintiff's "disparate-impact" claim, but that the district court erred in granting summary j udgment on plaintiffs' other claims. Accordingly, we will aff irm in part, and reverse in part, and remand the case for furthe r proceedings.

I. In October of 1994, the Tinton Falls Police De partment announced two openings for promotion to the rank of lieutenant. Hampton was one of four candidates to apply for the positions, and was the only Black candidate. The three other candidates were Sergeant Peterson and Sergeant Turning, both o f whom are White, and Sergeant Gonzalez, who is Latino. In or der to be promoted, a candidate had to first pass a multiple choice exam, then compete before a Promotional Review Board ("PR B"), and an Oral Review Board ("ORB"). Although the actual sco re of the "objective" multiple choice exam was not factored i nto the process, an applicant could not be promoted without receiving a passing grade on that exam. The Review Board evalu ations weresubjective.

The multiple choice exam was administered in J anuary of 1995 by Iowa Testing Service. All four of the candidate s passed the test and were then reviewed by the PRB and ORB. I nitially, the PRB was comprised of Borough Administrator and Publ ic Safety Director Anthony Muscillo, Major Melvin McKeller, B orough Prosecutor Pat Menna and Borough Council member Gab e Tornillo. McKeller, who is Black, subsequently announced his retirement and declined to serve on the Promotional Review Board, and Captain (now Major) LaDean White was appointed to replace M cKeller. App. at 703-04. Captain White was the immediate supervi sor for candidates Turning, Gonzalez and Peterson. Sergean t Hampton was part of the Detectives Bureau and reported to Capta in Robert Jantausch. After White replaced McKellar, neither t he PRB nor the ORB had any minority members. App. at 704. The PRB met in February of 1995 to review the candidates. The Board evaluated the applicants' records and per formance using ten factors, each of which was worth ten percent of a candidate's evaluation. The categories for evaluation included : (1) leadership ability (2) communication skills (3) decision making ability (4) working with others (5) personal commitment (6) problem analysis (7) adherence to rules (8) education and self-improvement (9) length and merit of service (10) overall fitness for the position
Each Board member had access to the candidate' s resume, performance evaluations for the three prior evaluat ion periods, and the candidate's personnel file. The Board memb ers reviewed those records and also discussed their impressions of the candidates based upon personal experiences. The PR B gave Turning a score of 93.875, Gonzalez a score of 90.5, Peters on a score of 77.875, and Hampton a score of 77.625.
The candidates also met with the ORB which con sisted of Anthony Muscillo, Joseph Torchia and Louis Napolita no. Muscillo, as stated above, is the Borough Administrator. Tor chia and Napolitano are both Public Safety Directors from ne ighboring municipalities. The ORB evaluated each of the cand idates' responses to the same series of questions involving everyday police activities. The candidates were judged on t heir decisionmaking ability, analytical ability, communication s kills, judgment and creativity. Turning received the high est score from each of the Board members, and the highest average score of 94.83. Gonzalez received the second highest score from each of the Board members and had the second highest overal l score of 87.93. Peterson had an average score of 82.16 and Hampton had an average score of 76.10.

The scores from the PRB and the ORB were then averaged with each score weighted equally. Turning and Gonzalez were promoted to the rank of lieutenant, and Hampton filed a comp laint with the EEOC claiming that he was not promoted because of h is race. Thecomplaint was filed at the EEOC office in Newark on April 12,

1995, but it was erroneously dated April 13, 1995. This error caused problems because when the Borough's Personne l Administrator (Helen Auringer) saw the incorrect EE OC filing date, she noted that Hampton had been on duty all d ay on April 13, 1995, and should not have been in Newark visiti ng the EEOC. As a result, an internal investigation was initiate d and on May 2, 1995, Hampton was notified that he was under dis ciplinary investigation for "[g]oing to Newark on duty time t o file a complaint with [the] EEOC" and "[u]sing a departmen t vehicle to travel to Newark for personal business without auth orization." App. at 281. The Borough maintains that it soon di scovered the typographical error and ended the investigation wit hout any adverse consequences to Hampton. However, it is al leged that on August 28, 1995, without any explanation, Major Whi te told Hampton that he (Hampton) was being removed from th e detective bureau and reassigned to road patrol. Brief for App ellants at 12. Hampton claims that he continues on road patrol eve n though White told him that the reassignment would be temporary. Id.

II . Hampton asserts several theories of recovery. Counts One to Five allege that defendants' actions in not promoti ng him violated Title VII of the Civil Rights Act of 1964, the New Jersey Law Against Discrimination, N.J.S.A. § 10:5- 1, and 42
U.S.C. §§ 1981 and 1983. Count Six is an "Action i n Lieu of Prerogative Writ" alleging that defendants were arb itrary, capricious and unreasonable in violation of N.J.S.A . § 40A:14- 129. Count Seven alleges a breach of contract clai m based upon the Police Department's alleged failure to comply w ith the Borough's affirmative action policy that we need no t discuss. Counts Eight to Ten allege that Hampton's reassignm ent was in retaliation for his EEOC complaint in violation of Title VII of the Civil Rights Act of 1964, the New Jersey Law Ag ainst Discrimination, N.J.S.A. § 10:5-1, and Hampton's fr ee speech rights pursuant to 42 U.S.C. § 1983. Defendants moved for summary judgment as to th e entire complaint, arguing that plaintiffs failed to set fo rth a genuine
issue of material fact that would establish racial discrimination or allow an inference of racial animus. In respons e, plaintiffs argued that racial pretext or direct discrimination was apparent from the evidence and that therefore, summary judgm ent in favor of the defendants would be inappropriate. Addition ally, plaintiffs filed a cross-motion for summary judgmen t as to Count Six of their complaint, arguing that the defendants violated N.J.S.A. § 40A:14-129 by failing to give due consid eration to the length and merit of service criterion in the promot ion process. The district court granted summary judgment fo r the defendants as to all counts of plaintiffs' complain t, and this appeal followed.

III. The district court's grant of summary judgment is a final order that disposed of all claims, and this court t herefore has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the district court's summary judgment ord er is plenary,and we apply the same test as the district court. Sempier v.

Johnson & Higgins, 45 F.3d 724, 727 (1995); Chipoll ini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052 (1987). Summary judgment is appropriate when the moving party is entitled to judgment as a matter of law and there is no genuine dispute of material fact. Gottshall v. Consolidated Rail Corp., 56 F.3d 530, 533 (3d Cir. 1995) (citing Fed. R. Civ. P. 56(c)). In order to defeat "a prop erly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find i n its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 ( 3d Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 2 42, 250-52 (1986)). In essence, the non-moving party must dem onstrate a dispute over facts that might affect the outcome of the suit. Id. Moreover, in reviewing the record, we must giv e the nonmoving party the benefit of all reasonable inferenc es. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993).

IV. Plaintiffs' discrimination claims are based up on both disparate treatment and disparate impact theories o f
discrimination.

"`Disparate treatment' . . . is the most easily understood type of discrimination. The employer simply treats some people le ss favorably than others because of their ra ce, color, religion [or other protected characteristics.] Proof of discriminator y motive is critical, although it can in so me situations be inferred from the mere fact of
differences in treatment. . . .

"[C]laims that stress `disparate imp act' [by contrast] involve employment practice s that are facially neutral in their treatm ent of different groups but that in fact fall more harshly on one group than another an d cannot be justified by business necessity

. Proof of discriminatory motive . . . is n ot required under a disparate treatment theo ry." Teamsters v. United States, 431 U.S. 324, 355 n.15 (1977) (citation omitted). Hazen Paper Co. v. Biggins, U.S. , 113 S. Ct. 1701, 1705-06, 123 L. Ed. 2d 338, 346 (1993). The district court adequately explained why plaintiffs' disparate impact theory c ould not survive defendant's motion for summary judgment, an d we affirm that part of the district court's decision for the reasons set forth by the district court. See Dist. Ct. Op., App . at 15-17.

A. Disparate Treatment Claim Plaintiffs' disparate treatment claim is based upon "pretext." Brief for Appellants at 14-15. As thi s courtexplained in Waldron v. SL Industries, Inc., 56 F.3 d 491 (3d Cir.

1995), the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and mo re recently refined in St. Mary's Honor Center v. Hicks, U.S . , 113 S. Ct. 2742 125 L. Ed. 2d 407 (1993), is the appropria te analysis for summary judgment motions in cases alleging viol ations of Title VII, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination. Waldron, 56 F.3d at 494, 504. Under the familiar shifting burdens analy sis of McDonnell Douglas, a plaintiff must initially establish a minimal prima facie case -- essentially, that he or she is a member of a protected class and was quali fied for an employment position, but that he o r she was either not hired for that positio n or was fired from it "under circumstances th at give rise to an inference of unlawful discrimination." Texas Dept. of Communit y Affairs v. Burdine, 450 U.S. 248, 253 (19 81). Once the plaintiff establishes his or her prima facie case, the burden shifts to th e defendant to articulate one or more legitimate, non-discriminatory reasons fo r its employment decision. If one or more such reasons are proffered, the presumption of discrimination created by establishment o f the prima facie case is dispelled, and th e plaintiff must prove that the employer's proffered reason or reasons were pretextu al - - that is, that they are false and that t he real reason for the employment decision w as discriminatory. Id. at 494 (footnote omitted). However, we also no ted that: [b]ecause the factfinder may infer from t he combination of the plaintiff's prima faci e case and its own rejection of the employe r's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to concea l its illegal act with articulated reasons, seeHicks, U.S. at the 113 S. Ct. at 2749, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or direc tly, or (ii) adducing evidence, whether circumstantial or direct, that discrimina tion was more likely than not a motivating or determinative cause of the adverse employ ment
action. Id. at 495 (quoting Fuentes v. Perskie, 32 F.3d 759 , 764 (3d Cir. 1994)). Here, the district court and the defendants as sumed that a prima facie case had been established for purposes of ruling uponthe defendants' summary judgment motion. App. at 1 9. Thus, the

burden shifted to the defendants to proffer a legit imate, nondiscriminatory reason for failing to promote Hampto n. Defendants met that burden by attempting to demonstrate that e ach of the candidates was evaluated by the same criteria, and that Turning and Gonzalez were promoted because they had receive d the highest score in the PRB and ORB evaluations, and were ther efore the most qualified. Id. at 19-20. The district court accep ted defendants' explanations, and further concluded tha t Hampton did not satisfy his burden of either demonstrating that defendants' proffered reasons were pretextual or presenting oth er evidence from which a factfinder could reasonably conclude t hat discrimination factored into the decision to promot e Turning and Gonzalez instead of him. Id. at 12. We disagree. The district court either ignored several disc repancies in the evaluation process, or failed to give all reaso nable inferences arising there from the plaintiffs as it was required to do in ruling upon a motion for summary judgment. These discrepancies and inferences could support (though they certainly do not compel) a jury finding that race was a motiv ating factor in the decision not to promote Hampton. When Hampt on's performance evaluations were considered by the PRB, less (if any) consideration was given to the recommendation that Major McKeller gave him. Yet, McKeller was Hampton's supervisor a t the time of the promotion review. Major White explained the de cision to minimize the importance of McKellar's evaluation as follows: A: It may have been discussed. I don't know if it was considered only because of the

evaluator.

Q: And "only because of the evaluator," what do you mean by that?

A: Mel McKeller evaluated him at that t ime.

Q: Why would that be a concern?

A: Because he was in charge of the
detective bureau at that time and presently was at that time of the promotional procedure the commanding officer of the department and he's a lso

black.

Q: Why would him being black have any t ype of effect on whether you would consi der this particular performance evaluati on?

AA: If there was any doubt of whether or not the evaluations previous were being
considered to be inaccurate. It sho ws continuity. App. at 245 (emphasis). Major White further explained that McKeller's evaluationsmay not have been considered because the evaluators knew that

McKeller was "pushing Preston Hampton for a promoti on at that time." App. at 245. Defendants argue that the eval uators reasonably assumed that McKeller's evaluation was i mproper because McKeller wanted Hampton to be promoted. In reviewing this testimony the district court explained: Hampton had been evaluated by Jantausch, who
was not on the committee. Consideration of McKeller's evaluation, therefore, allowed the
board to determine whether Jantaush's evaluations of Hampton, which were averag e, were consistent with Hampton's performanc e. The board concluded that McKeller's
evaluation and Jantausch's evaluation wer e consistent with each other. I find this explanation reasonable.

Dist Ct. Op. at 15-6 (underlining added). The district court, therefore, found the proff ered explanation both credible and "reasonable." In doi ng so, it clearly usurped the role of the jury. It does not appear that the race of any other evaluator was a source of con cern for anyone involved in deciding who was to be promoted. It was for a jury, not a judge, to determine if White's neutral explanation of
the concern for McKellar's race was credible and re asonable. Incredibly, (and perhaps disingenuously) defendants now argue that Major White's testimony would not provide evid ence from which a jury could infer racial animus. We disagre e. Defendants maintain that they were not require d to consider McKeller's evaluations in any event because police promotional procedure only requires the PRB to consider each ca ndidate's "last three performance evaluations," app. at 284, and McKeller's evaluation was outside of that range. However, the police promotional procedure also states that the PRB woul d consider each candidate's evaluation "for the last three yea rs." Id. For those candidates who were only evaluated annually, the two
standards result in consideration of the same numbe r of evaluations -- three. However, for candidates such as Hampton, who were evaluated bi-annually, these two policies conflict. An employee who is evaluated annually would have three evaluations under either policy, but Hampton would have six eva luations. McKeller's evaluation, though not one of Hampton's prior three evaluations, was an evaluation that had been comple ted within the prior three years. It was for a fact finder to det ermine what, if any, significance the Board's decision to look o nly to Hampton's last three evaluations had. A jury could conclude that the Board did so pursuant to its policy of looking to the last three evaluations, or it could conclude that the to tality of the circumstances here suggest that racial consideratio ns motivated the Board to ignore whatever evaluation McKellar ga ve knowing that the conflict in personnel policy would explain its actions. Plaintiffs also argue that Hampton's scores in the category of "Education and Self-Improvement" reflect a discr epancy that could give rise to a jury inference of discriminati on. In thiscategory, Gabe Tornillo gave Hampton a score of "5, " app. at 346,

even though Hampton has an associates degree and cr edits from a state college. App. at 371. By contrast, Tornillo gave Gonzalez a "10" in this category, app. at 344, although he h ad yet to complete the requirements for the degree he was pur suing. App. at 379. Defendants justify this by asserting that the scoring discrepancy merely reflects that Gonzalez was worki ng toward his degree, and thus demonstrating a desire for self-im provement while he was on the police force. Hampton, defendan ts argue, had already completed his degree prior to becoming a po lice officer, and did not take additional courses during his tenu re with the police department. Similarly, Tornillo gave Hampton (who had 18 y ears of service on the police force and no demerits in his personnel file) a "6" in the category "Length and Merit of Se rvice." However, other candidates with less time received r atings between "8" and "10" in this category. App. at 343-46. Th e district court correctly ruled that under N.J.S.A. § 40A:14- 129 length of service alone would not guarantee Hampton the promo tion. SeeGaskill v. Mayor and Comm'rs of Avalon, 373 A.2d 1019, 1020 (N .J. Super. 1977) ("In our opinion this statutory prefer ence to those who enjoy seniority in service is applicable where two or more candidates have approximately equal qualifications. It is but an
additional factor to be considered on the merits of the evaluation of the individuals for promotion and not a mechanical rule which guarantees promotion to the senior emplo yee."). The significance of such evidence is for a jur y's determination, not a court's. Had these discrepanci es been presented to a jury, it may have found defendants' explanations quite credible, and returned a verdict in their fav or. However, that is not the test that we employ, nor is it the test the district court should have employed. Drawing all re asonable inferences in favor of plaintiffs, as we must, it i s clear that they were entitled to have a jury decide whether or not the reasons proffered for not promoting Hampton were re al or pretextual. Defendants also urge us to affirm the district court because, according to Turning's affidavit, when Ham pton told his colleagues he was going to file suit he stated that "he did not think that there was a racial motive to the Borough 's actions, but rather he was using this method to get in the d oor." Supp. App. at 6. Plaintiffs counter that, assuming Hampt on made such a statement, it was made to the successful applicant before Hampton became aware of evidence of discrimination. They cl aim that, once he became aware of this information, consulted with his attorney and actually filed suit, there could have been a nu mber of reasons motivating Hampton's decision to sue, inclu ding a desire to gain access to his test scores and a belief that a discrepancy in certain scores was motivated by racial bias. Fu rther, during his deposition when Hampton was asked whether he th ought certain
low scores he received from the interviewees were r acially motivated, he responded that he did not know what t he motivations

for the scores were or what bases were used to dete rmine those scores. App. at 198.We decline to preclude Hampton from proceeding with this

suit based upon a statement alleged to have been ma de before Hampton actually filed suit. At trial, a jury may c onclude that these remarks present an insurmountable obstacle to plaintiff's recovery, but that is neither for us, nor the distr ict court to
determine at this time.
The district court stated that it found "at be st, complaints of errors or omissions on the part of the board." Dist Ct. Op. at 24. However, the district court erred in not re cognizing that
the reasonable inferences that arise from these "er rors and omissions" can create a jury question. The errors and omissions
can not be dismissed as immaterial as a matter of l aw. Thus, we must reverse the district court's grant of summary judgment on plaintiff's "pretext" claim.
B. Retaliation Claim Hampton alleges that his rights were violated when defendants retaliated against him by initiating an internal affairs investigation to determine whether or not h e traveled to Newark to file an EEOC complaint while he was on du ty, and subsequently, by removing him from the detective bu reau and reassigning him to road patrol without explanation. Hampton
claims that this conduct was retaliation in violati on of Title VII, the New Jersey Law Against Discrimination, and his free speech rights. The district court accepted defendants' assert ion that the investigation arose out of a typographical error in plaintiffs' Verified Complaint. Defendants do not deny that wh en Borough Administrator, Helen Auringer, read the Verified Co mplaint without knowing the date was incorrect, Hampton was investigated. However, defendants maintain that when it became ap parent that plaintiffs' complaint contained a typographical err or, the investigation was closed. The district court thus concluded that no adverse action had been taken against Hampton as a result of the EEOC complaint, and that he therefore failed to establish a prima facie case of retaliation. However, the district court did not go far eno ugh. Although the investigation was dropped, Hampton's involuntar y transfer remained. App. at 91. Hampton maintains that on A ugust 28, 1995, he was suddenly told by Major White that he w as being removed from the detective bureau and reassigned to road patrol. Hampton deems this to be a demotion. No explanatio n for the transfer was given, and although the transfer was t o have been "temporary," the record reflects that it remains in effect. Hampton further claims that when he inquired about the reason for his transfer, Major White told him; "[d]on't worry, if you win this suit, nothing is going to happen anyway." Bri ef for Appellants at 12. Defendants argue that Hampton's transfer was m erely a reassignment and not a demotion, as neither Hampton 's rank, nor his pay have been decreased. Defendants' further a rgue that the reassignment was part of a routine rotation schedul e that requires officers to rotate from one department to another every three to five years. Although the rotation may not be a demotion, it came on the heels of his EEOC filing, and plaintiffsargue that the road patrol assignment is less desir able than that

of detective bureau. Moreover, Hampton remains in his new assignment even though it was supposed to have been temporary. The significance of these facts should be resolved by jury deliberations, not motions for summary judgment. A ccordingly, we will reverse the district court's grant of summary judgment on plaintiff's claim of retaliation.
C.N.J.S.A. § 40a:14-129 As noted above, Count Seven of the Complaint a lleges that defendants violated N.J.S.A. § 40a:14-129 by failin g to give adequate consideration to his length and merit of s ervice. As the district court properly noted, that statute doe s not require that a promotion be governed solely by seniority. Dist. Ct. Op. at 18. (citing Gaskill v. Mayor & Comm'rs of Avalo n, 149 N.J.S. 364 (App. Div. 1977). Nevertheless, we are not pre pared to hold, as a matter of law, that a jury could not conclude that this
statute was not violated even if it concludes that Hampton's race was a factor in the defendants' failure to promote him. Although we agree that it appears unlikely plaintiffs can pr evail on this claim, if they can prove that, but for Hampton's ra ce, his greater seniority would have earned him the promoti on he sought, he may be able to establish a violation of the stat ute. Thus, we will reverse the district court's entry of summary judgment as to Count Seven of the Complaint as well.

IV. CONCLUSION For the reasons stated in the foregoing, we wi ll vacate the order of the district court dated October 18, 1995, and remand the matter for further proceedings consistent with this opinion.