* Honorable William F. Downes, District Judge, UnitedStates District

Court for the District of Wyoming, sitting by desig nation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 1 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOROTHY A. TAKEN; TAWANA A. WHITE, Plaintiffs-Appellants,

v. OKLAHOMA CORPORATION COMMISSION, a political subdivision of the State of Oklahoma,

Defendant-Appellee. No. 96-6312

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-95-1407-A)

Submitted on the briefs: Frederick W. Southern, Jr., Oklahoma City, Oklahoma , for Plaintiffs-Appellants. Rachel Lawrence Mor, Oklahoma Corporation Commissio n, Office of General Counsel, Oklahoma City, Oklahoma, for Defendants-Ap pellees.

Before KELLY and HENRY, Circuit Judges, and DOWNES, * District Judge.-2-

DOWNES, District Judge.

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. Th e case is therefore ordered submitted without oral argument. Plaintiffs appeal from the district court’s entry o f summary judgment in defendant’s favor on their claims of race and sex d iscrimination brought pursuant to Title VII, 42 U.S.C. §§ 2000e through 2000e-17. See Taken v. Oklahoma Corp. Comm’n , 934 F. Supp. 1294 (W.D. Okla. 1996). Plaintiffs, who are white, claim they were not selected for a promotion that w as awarded to an unqualified black woman because she was romantically involved w ith the person who made the promotion decision, a black man. We review the grant of summary judgment de novo, ap plying the same standard as the district court. See Notari v. Denver Water Dep’t , 971 F.2d 585, 587 (10th Cir. 1992). Summary judgment is appropri ate where there are no genuinely disputed material facts and the moving pa rty is entitled to a judgment as a matter of law. See United States v. Sackett , 114 F. 3d 1050, 1051 (10th Cir. 1997). We review the record in the light most fav orable to the party opposing summary judgment. See id.-3-

For their race discrimination claim, plaintiffs all ege that Bill Burnett, a black man, promoted Tansy Preston, a black woman, e ven though plaintiffs were more qualified for the position than Ms. Preston. According to plaintiffs, the reason for promoting Ms. Preston was her romantic r elationship with Mr. Burnett. A committee comprised of two white men and Mr. Burn ett made the decision to promote Ms. Preston. Title VII protects members of both majority and min ority groups from race-based discrimination. See McDonald v. Santa Fe Trail Transp. Co. , 427 U.S. 273, 278-80 (1976). Generally, a prima facie case of race discrimination under Title VII requires a plaintiff to show (1) that she is a member of a racial minority, (2) that she applied and was qualified for a vacantjob, (3) that despite her qualifications she was rejected, and (4) that the e mployer continued to seek applicants with plaintiff’s qualifications. See Notari , 971 F.2d at 588 (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)). Here, because plaintiffs are members of a historica lly favored group, they are not entitled to the McDonnell Douglas presumption --“that is, the presumption that unless otherwise explained, discrimination is more likely than not the reason for the challenged decision” -- unless they demonstrate the existence of “background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.” Notari , 971-4-

F.2d at 589; accordReynolds v. School Dist. No. 1 , 69 F.3d 1523, 1534 (10th Cir. 1995). Plaintiffs did not attempt to make this sho wing, claiming instead that they were not required to do so because both the decisio n-maker and the person promoted are black. We need not address whether a white plaintiff is relieved of her obligation to show the requisite background cir cumstances where discrimination is perpetrated by members of a diffe rent race because, here, plaintiffs failed to show that the employment decis ion was made solely by non-whites. See Taken , 934 F. Supp. at 1296 (district court’s unchalleng ed finding that promotion committee was comprised of two white men and one black man).Although plaintiffs failed to make a prima facie ca se under McDonnell Douglas , they can demonstrate that they were victims of re verse race discrimination by “direct evidence of discriminatio n, or indirect evidence sufficient to support a reasonable probability, that but for the plaintiff[s’] status the challenged employment decision would have favor ed the plaintiff[s].” Notari , 971 F.2d at 590. Under this alternative formulation , it is not enough to allege that a plaintiff was qualified and that someone of a dif ferent race was promoted. See id. Rather, the plaintiff must allege and produce evi dence sufficient to support a reasonable inference that but for the plaintiff’s s tatus, the challenged decision would not have occurred. See id.-5-

Plaintiffs allege that Mr. Burnett’s racial motivat ion to promote Ms. Preston was demonstrated by his statements that “so meone has to look after these black girls,” and that a lesser position than the o ne awarded “would not be a promotion for Tansy [Preston].” Plaintiffs “must d emonstrate a nexus exists between these allegedly discriminatory statements and [the decision not to promote either plaintiff].” Cone v. Longmont Unite d Hosp. Ass’n , 14 F.3d 526, 531 (10th Cir. 1994). The statements do not refer to either of the plaintiffs, or to the challenged promotion decision. Also, the evide nce does not support an inference that but for plaintiffs’ status as whites , one of them would have been promoted. See Notari , 971 F.2d at 590. Therefore, we determine that pl aintiffs failed to present a prima facie case of race discri mination under Title VII. We turn to plaintiffs’ sex discrimination claim. T itle VII provides that “[i]t shall be an unlawful employment practice for an emp loyer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individua l’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). L ittle legislative history exists on Title VII’s prohibition against discrimination base d on sex, because the prohibition was included in Title VII shortly befor e passage. See Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 63-64 (1986). The principal goal of Title VII is to eliminate discrimination in employment based on differences of race, color,-6-

religion, sex or national origin. See Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 71 & n.6 (1977). Therefore, we hold t hat Title VII’s reference to “sex” means a class delineated by gender, rather th an sexual affiliations. See Los Angeles Dep’t of Water & Power v. Manhart , 435 U.S. 702, 707 n.13 (1978) (Title VII intended to eliminate disparate treatmen t of men and women). In so holding, we join the other circuits that have addre ssed this issue. See Becerra v. Dalton , 94 F.3d 145, 149-50 (4th Cir. 1996) (no sexual di scrimination under Title VII even if supervisor granted plaintiff’s co worker job benefits in exchange for sexual favors from coworker), cert. denied , 117 S. Ct. 1087 (1997); Miller v. Aluminum Co. of Am. , 679 F. Supp. 495, 501 (W.D. Pa.) (“[P]referential treatment on the basis of a consensual romantic rel ationship between a supervisor and an employee is not gender-based discrimination. ”), aff’d mem. , 856 F.2d 184 (3d Cir. 1988); DeCintio v. Westchester County Med. Ctr. , 807 F.2d 304, 306-07 (2d Cir. 1986) (“The proscribed differentiation und er Title VII . . . must be a distinction based on a person’s sex, not on his or her sexual affiliations.”); cf. Ellert v. University of Tex. , 52 F.3d 543, 546 (5th Cir. 1995) (claim that plaintiff was discharged due to her knowledge of af fair between supervisor and another employee was not within Title VII’s ambit b ecause employment decision did not rely on gender).-7-

Plaintiffs cite King v. Palmer , 778 F.2d 878 (D.C. Cir. 1985), to support their sex discrimination claim. King is distinguishable. There, the court ruled on the type of evidence required to establish discrimi nation, see id. at 880-82, but did not examine “whether Title VII affords a claim for relief for sex-based discrimination to a woman who alleges that she was denied a promotion in favor of another woman who had a sexual relationship withtheir supervisor,” because that issue was not presented on appeal, id. at 883; see also Candelore v. Clark County Sanitation Dist. , 975 F.2d 588, 591-92 (9th Cir. 1992) (Kleinfeld, J., concurring) (pointing out that majority decision inthat case does not address whether plaintiff would have stated a claim of sex discrimination if she “had provided cognizable evidence that a coworker receiv ed benefits [plaintiff] did not because the coworker had an affair with a superviso r”). Here, plaintiffs do not claim that they were denied employment benefits for their refusal to submit to sexual advances. They h ave not shown that they were subjected to a hostile working environment; indeed, they did not work with either Mr. Burnett or Ms. Preston. Rather, they assert th at their employer is liable under Title VII solely because a supervisor preselected h is paramour for a promotion even though she was less qualified than either plai ntiff. Taking plaintiff’s allegations as true, we conclude that they do not s tate a claim for relief under Title VII because they are based on a voluntary rom antic affiliation, and not on-8-

any gender differences. Plaintiffs were in the sam e position as all men and all other women would have been -- only Ms. Preston was considered for the promotion because of her special relationship with Mr. Burnett. See DeCintio , 807 F.2d at 308. Favoritism, unfair treatment and unwise business decisions do not violate Title VII unless based on a prohibited classification. Cf. EEOC v. Flasher Co. , 986 F.2d 1312, 1319 (10th Cir. 1992) (“Title VII does notmake . . . irrational employment [decisions] illegal.”). Beca use we decline to extend Title VII to include consensual romantic involvements, we conclude that the promotion was not based on a prohibited classificat ion. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.