* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 7/30/96 FOR THE TENTH CIRCUIT

JAMES JONES,

Plaintiff-Appellant,

v. WAL-MART STORES, INC., doing business as Sam’s Club, a Delaware corporation, Defendant-Appellee. No. 95-5263 (D.C. No. 94-C-867-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. T he case is therefore ordered submitted without oral argument.-2-

Plaintiff James Jones appeals the district court’s grant of summary judgment in favor of defendant Wal-Mart Stores, Inc. onhis employment discrimination claims, brought pursuant to Title VII of the C ivil Rights Act, 42 U.S.C. § 2000e-5(f). Because plaintiff raised a triable i ssue as to whether discrimination motivated defendant’s decisions regarding his work assignments, but not his lack of promotion or layoff, we affirm in part and rever se in part. Plaintiff, an African-American, was employed as a s tockperson at Sam’s Club in Tulsa, Oklahoma, from May 1992 to December 1992. Plaintiff alleges he was treated less favorably than his white coworkers in his job assignments, in his failure to receive a promotion to team leader, and in his eventual layoff at the end of the Christmas shopping season. The district court granted summary judgment in defendant’s favor, finding that plaintiff did no t present sufficient evidence of race discrimination or show that defendant’s statedreasons for its decisions were pretextual. Plaintiff appealed. We review a grant of summary judgment de novo, usin g the same standard applied by the district court. Universal Money Ctrs., Inc. v. American Tel. & Tel. Co. , 22 F.3d 1527, 1529 (10th Cir.), cert. denied , 115 S. Ct. 655 (1994). Summary judgment is appropriate if “there is no gen uine issue as to any material fact and . . . the moving party is entitled to a ju dgment as a matter of law.” Fed. R. Civ. P. 56(c). We examine the record and reason able inferences therefrom in-3-

the light most favorable to the nonmoving party. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). In race discrimination cases, we apply the three-p art burden shifting analysis set forth in McDonnell Douglas Corp. v. Gr een , 411 U.S. 792 (1973), and its progeny. See Elmore v. Capstan, Inc. , 58 F.3d 525, 529 (10th Cir. 1995). Under this analysis, the plaintiff must first estab lish a prima facie case of discrimination. Id. The burden then shifts to the defendant to articu late a facially nondiscriminatory reason for the employment decisio n. Id. at 530. Upon such a showing, the presumption of discrimination establis hed by the prima facie showing “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 510-11 (1993). The plaintiff then carrie s the full burden of showing that defendant discriminated on the basis of race, “either directly by proving the employer acted with a discriminatory motive,” or in directly by showing the employer’s proffered reasons are pretextual. Elmor e , 58 F.3d at 530 (citation omitted). We first address plaintiff’s discriminatory dischar ge claim. Plaintiff met his burden of showing a prima facie case of discrim inatory discharge through evidence that he is a member of a protected class, was adversely affected by defendant’s decision, was qualified for his positio n, and was laid off when less qualified white coworkers were retained. See Bell v. American Tel. & Tel. Co ,-4-

946 F.2d 1507, 1510 n.1 (10th Cir. 1991). Defendant, in turn, met its burden of producing a legitimate, nondiscriminatory reason fo r plaintiff’s termination by showing that he was included in a group of twelve e mployees laid off because of the post-Christmas slowdown, and because he was one of the least productive workers. This shifted the burden back to plaintiffto demonstrate that his termination was motivated by racial discrimination. Plaintiff did not submit any direct evidence of dis crimination. His indirect evidence consisted of (1) evidence that when anothe r employee made a racial statement in supervisor Palmer’s presence, Palmer d id not express disapproval, and (2) observations that plaintiff was a good work er and that his performance was equal to or better than that of white workers w ho were retained. We agree with the district court that this evidence did not raise a factual issue regarding pretext. Supervisor Palmer’s failure to express public disapproval of the racial statement does not mean that he shared its sentiment. Palmer, in fact, contended that he never heard the statement, and that if he h ad, he would have disciplined the employee. Because the statement was not made b y Palmer, the decision maker in this case, and did not relate to plaintiff, his position, or the employment decision, it does not raise the inference of discri mination. See Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 531-32 (10th Cir. 1994).-5-

Plaintiff’s evidence regarding his performance show s, at most, that defendant may have exercised its business judgment erron eously; however, “an employer’s exercise of erroneous or even illogical bu siness judgment does not constitute pretext.” Reynolds v. School Dist. No. 1 , 69 F.3d 1523, 1535 (10th Cir. 1995). In the absence of evidence of an impro per motive, plaintiff has not met his burden of showing that defendant’s reasons were pretexts for discrimination. Plaintiff’s evidence in support of his discriminat ory promotion claim suffers from the same deficiency. Although plainti ff established a prima facie case by showing that he is African-American, was qu alified for the promotion but was not promoted, and that white coworkers were pro moted, see id. at 1534, he did not present any evidence that defendant’s state d reason for promoting the others, namely that they were more qualified, was u nworthy of belief. Therefore summary judgment was proper on plaintiff’s failure to promote claim. Summary judgment should not have been granted, howe ver, on plaintiff’s discriminatory work assignment claims. Plaintiff a lleges that he was treated less favorably than his white coworkers because he was n ot given the more desirable position of forklift driver and was assigned to work on the most strenuous aisles. Title VII prohibits employers from discriminating w ith respect to “terms, conditions, or privileges of employment,” on account of an individual’s race,-6-

color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). Assigning an employee to a less desirable job or denying him the opportunity for a more desirable position, based on the employee’s race, are adverse employment decisions affecting the terms and conditions of his employment, and can support Title VII liability. See, e.g. ,Williams v. New Orleans S.S. Ass’n , 673 F.2d 742, 752-53 (5th Cir. 1982) (white longshoremen twice as likely as blacks to be given more desirable deck positions, which were less demanding positions that allowed employee to work in fresh air), cert. denied , 460 U.S. 1038 (1983); Eubanks v. Pickens-Bond Constr. Co. , 635 F.2d 1341, 1345 (8th Cir. 1980) (African-Amer ican cement finishers assigned most menial, unpleasant and onerous duties on job); Fisher v. Procter & Gamble Mfg. Co. , 613 F.2d 527, 546 n.37 (5th Cir. 1980) (African-Americans assigned to least desirable posi tions in plant, while white assigned to more desirable position despite less se niority), cert. denied , 449 U.S. 1115 (1981). Adapting the McDonnell-Douglas framework to suit th is particular controversy, see Tomsic v. State Farm Mutual Auto. Ins. Co. , 85 F.3d 1472, 1476 (10th Cir. 1996), we conclude that plaintiff raised a pri ma facie case by showing that he is African-American, was subjected to adverse emplo yment decisions, was qualified for his job, and was treated less favorab ly than his white coworkers. That evidence which is also relevant to rebutting d efendant’s proffered reasons-7-

for its actions or lack thereof is discussed below. Defendant’s rebuttal evidence was that those assigned to the forklift position ha d previous forklift experience, that plaintiff was trained on the forklift but did not show the necessary dexterity or interest, and that plaintiff was assigned to many different aisles during his employment. The burden then shifted to plaintiff to show that d efendant’s proffered reasons were pretextual, “by showing either that a discriminatory reason more likely motivated the employer or . . . that the emp loyer’s proffered explanation is unworthy of credence.” Jones v. Unisys Corp. , 54 F.3d 624, 632 (10th Cir. 1995) (quotations omitted). Plaintiff presented the foll owing evidence: (1) the duties of a forklift driver were much more desirable than tho se of a stockperson, Appellant’s App. at 5-33, 5-49 to -50, 5-54; (2) several white coworkers who became forklift drivers did not have prior experience, id. at 5-51; (3) contrary to what he was told when hired, plaintiff was never trained to drive a forklift or given a forklift driving test, id. at 5-32, 5-68 to -69; (4) Jeff Jones was the perso n who made the decision who would become a forklift drive r, id. at 5-69; (5) Jeff Jones was a team leader, in management, at the Sam’s Club , id. at 5-39, 5-63, 5-65; (6) Jeff Jones treated plaintiff differently than his w hite coworkers, by driving a forklift wildly around him, refusing to socialize w ith him, and consistently unloading a disproportionate amount of work at his aisles, id. at 5-50 to -51;-8-

(7) this conduct was observed by a white coworker, who concluded that Jeff Jones had “a prejudicial attitude towards [plaintiff] bec ause he was black,” id. at 5-50; (8) plaintiff showed great interest in training forand becoming a forklift driver, id. at 5-68 to -69; (9) the dog food and chemical aisl es were the most physically demanding aisles to stock, id. at 5-50; (10) Jeff Jones assigned plaintiff to the dog food aisle, which remained his assignment throughout most of his employment, id. at 5-25 to -26; (11) plaintiff was also required to work the chemical aisle, id. at 4-36, 4-41; and (12) plaintiff was required to help his white coworkers finish their aisles, but they were not required to help hi m with his, id. at 4-47, 5-46 to
-47. Plaintiff’s evidence was sufficient to raise an inf erence of pretext. Plaintiff produced evidence that both the decision to deny pl aintiff a forklift driving position and the decision to assign him to the more strenuous aisles were made by team leader Jeff Jones, and that Jones treated plai ntiff less favorably than his white coworkers in many respects, including safety, social relations, and work load. The evidence that plaintiff was required to help his white coworkers, but that they were not required to help him, also suppo rts an inference that he was treated discriminatorily in his assignments. Final ly, plaintiff offered evidence that defendant’s stated reason for not permitting p laintiff to operate a forklift was unworthy of belief, in that white coworkers were gi ven such an opportunity-9-

despite their lack of prior experience. Therefore, summary judgment on plaintiff’s work assignment claims was not proper. AFFIRMED in part, REVERSED in part, and REMANDED fo r further proceedings. Entered for the Court James K. Logan Circuit Judge