1

 The Honorable Patrick A. Conmy, United States District Judge for the District

of North Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3510

___________

Marilyn B. Dionne, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of North Dakota.

Donna E. Shalala, Secretary, U. S. *

Department of Health and Human *

Services, *

*

Appellee. *

___________

Submitted: November 17, 1999

Filed: April 5, 2000

___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

Marilyn Dionne filed this Title VII action alleging race and national origin

discrimination in the assignment of her classification grade as a public health nurse with

the Indian Health Service, an agency of the Department of Health and Human Services.

The District Court1 granted the Secretary's motion for summary judgment. We affirm.

I.
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Most employment within the federal government, including that at issue in this

case, is classified under the General Schedule established by 5 U.S.C. §§ 5101-5115

(1994). Positions are classified according to their difficulty and level of responsibility,

and pay rates are set accordingly. For example, grade GS-1 positions, which currently

pay an annual salary of up to $20,000, are characterized by the "simplest routine work"

under "immediate supervision, with little or no latitude for the exercise of independent

judgment," while GS-15 positions, which currently pay an annual salary of up to

$117,000, are characterized by "work of outstanding difficulty and responsibility." 5

U.S.C. § 5104.

In this case, Dionne, a member of the Turtle Mountain Band of Chippewa,

started work in May 1991 as a GS-7 clinical nurse for the Belcourt Hospital of the

Indian Health Service. After a year, Dionne advanced to grade GS-9. In September

1992, Dionne applied for a public health nurse position within Belcourt Hospital. She

apparently was the only applicant for the job, and her application was referred to

Delbert Haskell, a personnel staffing specialist for the Indian Health Service. Mr.

Haskell considered her education, experience, and prior federal government

employment and concluded that she only was qualified to be referred for a GS-7 public

health nurse position. Under the qualification standards that Mr. Haskell used to grade

Dionne's application, positions at GS-9 and above required that one year of

professional nursing experience must be sufficiently related to public health nursing in

both subject matter and grade level. Mr. Haskell believed that Dionne's experience as

a clinical nurse did not satisfy that standard. Accordingly, Dionne's application was

referred at the GS-7 level, and she became a GS-7 public health nurse in June 1993.

Dionne need not have accepted the transfer to the GS-7 position (she could have opted

to remain a GS-9 clinical nurse); she voluntarily accepted the GS-7 position because

of her interest in working in the public health field.
2

 Although the duties of the GS-7, GS-9, and GS-11 public health nurse positions

appear to be the same at Belcourt Hospital for all practical purposes, the positions

technically have different job descriptions with varying levels of responsibility. See

App. at 35-44.

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Approximately a year later, Susan Kartes, a non-Indian, was hired as a public

heath nurse at Belcourt Hospital. Dionne soon learned that Kartes was hired for a GS11 position. Dionne thought they had equivalent experience and believed she had been

discriminated against when placed in the GS-7 position.2 Dionne filed a complaint with

the Equal Employment Opportunity Counselor at Belcourt and later filed a charge of

race and national origin discrimination with the Equal Employment Opportunity

Commission. The Secretary denied her claims, and Dionne brought suit in the District

Court.

II.

Dionne brought this case as a Title VII action. Accordingly, at the District

Court, the case was analyzed under the familiar burden shifting analysis of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. On summary judgment,

the District Court found that Dionne established a prima facie case of disparate

treatment, but concluded that the Secretary articulated a nondiscriminatory reason for

the grading decision—that Dionne was not qualified for the GS-9 or GS-11 positions.

On appeal, Dionne in essence claims that the Secretary applied the wrong qualification

standards in grading her public health nurse application. Instead of applying standards

specially formulated for Indian applicants as required by the Indian Preference Act, 25
3

 For the first time on appeal, Dionne seems to argue that the alleged Indian

Preference Act violation constituted an independent claim. We decline to view Dionne's

complaint as alleging anything other than a Title VII violation. Dionne's complaint

does not mention the Indian Preference Act nor does it seek administrative review of

an agency decision as was sought for an alleged Indian Preference Act violation in

Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir. 1979). Furthermore,

the District Court only discussed the Indian Preference Act in the context of its

discussion of evidence of pretext. 

4

 While the record is not a model of clarity on this point, we believe that Dionne

is correct on this point. Mr. Haskell's affidavit refers to qualification standards for

general scheduled positions. And, in response to whether he applied "any special

standards that were different from civil service that were meant to reflect her Indian

background," Mr. Haskell stated, "No." App. at 54-55.

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U.S.C. § 472 (1994),3 Dionne alleges the Secretary applied the general civil service

qualification standards then known as X-118 standards.4

The Indian Preference Act provides:

The Secretary of the Interior is directed to establish standards of

health, age, character, experience, knowledge, and ability for Indians who

may be appointed[, without regard to civil-service laws,] to the various

positions maintained, now or hereafter, by the Indian Office, in the

administration of functions or services affecting any Indian tribe. Such

qualified Indians shall hereafter have the preference to appointment to

vacancies in any such position.

25 U.S.C. § 472 (1994); see also Preston v. Heckler, 734 F.2d 1359, 1367-69 (9th Cir.

1984) (holding that Office of Law Revision Counsel erred in omitting as obsolete

phrase "without regard to civil-service laws" from codification of Indian Preference

Act); Oglala Sioux, 603 F.2d at 715 (quoting Indian Preference Act in full and relying
5

 Despite contrary indications from two courts of appeals, the 1994 version of

the United States Code still omits as obsolete "without regard to civil-service laws"

from the codified version of the Indian Preference Act.

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on phrase "without regard to civil-service laws" in reaching decision).5 The Indian

Preference Act does more than simply require preference in employment decisions for

qualified Indian applicants; it "requires the Secretary to establish separate standards for

evaluating the qualifications of Indians for employment in the Indian Health Service."

Preston, 734 F.2d at 1369-70 (rejecting argument that "the Act only requires that

Indians be given preference in hiring when they are equally or more qualified than nonIndian applicants"). While Preston was decided by the Ninth Circuit and thus is not

binding on us, the Secretary has undertaken to comply with its mandate to establish

separate standards for Indian applicants. Furthermore, in Oglala Sioux, on which

Preston relies, we held that the Indian Preference Act forbids the "blind transference

of general Civil Service principles." Oglala Sioux, 603 F.2d at 716 (holding that

general civil service conflict-of-interest regulation did not apply to tribal member). 

Although Preston and Oglala Sioux forbid the "blind transference" of civil

service standards, those decisions emphasized that the general civil service standards

nevertheless may have significant bearing on the appropriate standards for Indian

applicants:

If, after giving full weight to the unique experience and background of

Indians, as required by statute, the Secretary concludes that the only

proper qualifications for a particular position are those that have already

been adopted as a part of the civil service regulations, her separate and

independent adoption of the same standards would not be unlawful.

Preston, 734 F.2d at 1372; accord Oglala Sioux, 603 F.2d at 716-17. As in Preston,

we are mindful that the Secretary must adopt standards that recognize "the strong
6

 In addition, the Secretary provided for the use of two selective factors or

quality ranking factors for Indian applicants: "[a]bility to speak and interpret the

language of the Native American population to be served" and "[k]nowledge of the

culture, customs, and beliefs of the Native American population to be served." 57 Fed.

Reg. at 57,071. As we understand these terms, selective factors are qualification

standards that an agency may use in deciding whether applicants are basically qualified

for a position. On the other hand, an agency must use the X-118 standards in deciding

whether applicants are basically qualified for a position. Agencies use quality ranking

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federal policy of ensuring that health services provided to Indians are of the highest

quality." Preston, 734 F.2d at 1371-72.

After the Ninth Circuit's decision in Preston, the Secretary established a steering

committee to review the qualification standards in the Indian Health Service and to

recommend qualification standards for Indian preference applicants. See Plan for the

Review of Qualification Standards for Indians in the Excepted Service in the Indian

Health Service, 49 Fed. Reg. 37,474 (1984). Among the steering committee's first

actions was to identify a limited number of occupations for a pilot study. Public health

nursing, also known as community health nursing, was among those occupations

selected. In December 1986, the Secretary transmitted new qualification standards for

Indian preference applicants to those occupations in the pilot study, including public

health nurse positions. See Indian Health Service, Excepted Service Qualification

Standards for Community Health Nurse Positions, Transmittal Sheet No. 1 (1986).

These new qualification standards for Indian preference applicants to public health

nurse positions are self contained and make no explicit reference to the X-118

standards. Six years later, in December 1992, the Secretary gave notice that the Indian

Health Service "intends to adopt the [U.S. Office of Personnel Management]

qualification standards (X-118 standards) for all personnel series not yet covered by

excepted service standards published for Indian applicants." Plan for the Completion

of the Review of Qualification Standards for Indians in the Excepted Service, 57 Fed.

Reg. 57,070 (1992).6 Because public health nurse positions were covered by new
factors to distinguish between qualified applicants. For example, all else being equal,

an applicant who could speak and interpret the language of the Native American

population to be served would rank higher than an applicant who could not.

7

 The parties are responsible for this omission. Apparently, neither party brought

either the December 1986 transmittal or the December 1992 notice to the attention of

the District Court. The court found the December 1992 notice on its own. That no one

seemed to fully understand the complex administrative history of these qualification

standards, together with the unusual procedural circumstances of the summary

judgment order, which we need not describe, somewhat mitigate their failure to bring

the December 1986 transmittal to the attention of the District Court. In any case, we

treat Dionne's motion to supplement the record to include the December 1986

transmittal as a filing under Rule 28(j) of the Federal Rules of Appellate Procedure, and

we take judicial notice of it. We note that on appeal the Secretary admits that the

standards contained in the December 1986 transmittal applied to Indian applicants

during the period when Dionne's application for a public health nurse position was

pending.

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qualification standards for Indian preference applicants—namely, the December 1986

transmittal—the December 1992 notice and thus the X-118 standards have no bearing

on this case.

Unfortunately, the District Court was unaware of the new qualification standards

contained in the December 1986 transmittal.7 The District Court, citing the December

1992 notice, concluded that the Secretary correctly applied the X-118 standards to

Dionne's application. On this point, the District Court erred as a matter of law,

inasmuch as the X-118 standards were not the standards the Secretary should have

applied.

But, as the District Court correctly pointed out, Dionne's rebuttal to the

Secretary's nondiscriminatory reason that she was not qualified must satisfy a two part

test: "[P]laintiff can avoid summary judgment only if the evidence considered in its

entirety (1) creates a fact issue as to whether the employer's proffered reasons are
8

 Judge Lay's dissent characterizes the inadvertent application of the wrong

standards as "unlawful." There is, of course, a sense in which that is true. In a case

brought pursuant to the Administrative Procedure Act seeking review of the Secretary's

decision, Dionne might well prevail on the theory that, since the wrong standards were

applied, the decision was "not in accordance with law." 5 U.S.C. § 706(2)(A) (1994).

But this is a disparate-treatment Title VII case, and to win such a Title VII case a

plaintiff must be able to show that the employer intentionally discriminated against the

plaintiff on account of race, color, religion, sex, or national origin. Much like the

example in Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993), in which racial

discrimination was described as an "improper" reason under Title VII, but not under

the Age Discrimination in Employment Act, the Secretary's use here of the wrong

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pretextual and (2) creates a reasonable inference that [race] was a determinative factor

in the adverse employment decision." Rothmeier v. Investment Advisers, Inc., 85 F.3d

1328, 1336-37 (8th Cir. 1996) (reconciling this Court's decisions after St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993)). "[T]he overall strength of [the] evidence must

be sufficient for a reasonable factfinder to infer that the employer's decision was

motivated by discriminatory animus." Id. at 1336. 

Dionne's only evidence of intentional discrimination is that three other Native

American nurses also accepted lower grade positions in their transfer from clinical

nursing to public health nursing and that the service unit director's only explanation for

her grade was "Because that's the way it is." App. at 28. We conclude, as the District

Court did, that this evidence is insufficient as a matter of law to create a reasonable

inference that intentional discrimination was a factor in the grading decision.

We are left only with evidence that the Secretary applied the wrong standards

to Dionne's application. In other words, Dionne only has evidence that the Secretary's

nondiscriminatory reason that she was not qualified was based on the Secretary's

application of the X-118 standards rather than the Indian Preference Act standards as

established in the December 1986 transmittal. There is absolutely no evidence that the

application of the wrong standards was anything but an honest mistake.8 The
standards was improper under the qualification standards promulgated by the agency

in accordance with the Indian Preference Act, but not under Title VII. On the record

before us, the application of the wrong standards was merely inadvertent and simply

a mistake of law. Accordingly, it is not evidence of an intent to discriminate.

9

 The Indian Preference Act is not an antidiscrimination law. "Rather, it is an

employment criterion reasonably designed to further the cause of Indian selfgovernment and to make the [Bureau of Indian Affairs] more responsive to the needs

of its constituent groups. It is directed to participation by the governed in the governing

agency." Morton, 417 U.S. at 554.

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Secretary's stated reason for the GS-7 classification of Dionne was, in fact, the

Secretary's actual reason. We do not believe this evidence can show pretext or still less

that it can give rise to a reasonable inference of intentional discrimination. Without

more, the evidence only shows that the Secretary applied the wrong standards in the

context of a complex administrative system—a system so complex that even the parties

to this lawsuit failed to bring the December 1986 transmittal to the attention of the

District Court. That the December 1986 transmittal standards should have been applied

because Dionne is a tribal member does not make the Secretary's inadvertent failure to

do so somehow based on race or national origin. The Supreme Court has held that the

application of Indian preference does not constitute invidious racial discrimination in

violation of the Due Process Clause of the Fifth Amendment. See Morton v. Mancari,

417 U.S. 535, 551-55 (1974).9 Dionne cannot have it both ways; the Secretary's

mistaken failure to apply the standards also does not amount to discrimination. Of

course, it is possible that a failure to apply the Indian preference standards could be

motivated by discriminatory animus. But here, we simply have no evidence that was

the case. Without such evidence, Dionne's Title VII claim must fail. Accordingly, we

affirm the judgment of the District Court.
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LAY, Circuit Judge, Dissenting.

I respectfully submit that the majority’s affirmance of the district court’s grant

of summary judgment in favor of the Secretary of the Department of Health and Human

Services (“Secretary”) is egregiously wrong. It is in direct opposition to the law

announced by the Supreme Court of the United States. 

This court cautioned in 1979 that the IPA forbids the “blind transference of

general Civil Service principles” to Indian hiring. Oglala Sioux Tribe of Indians v.

Andrus, 603 F.2d 707, 716 (8th Cir. 1979). Only five years later, the Ninth Circuit

stated that the IPA “requires the Secretary to adopt separate and independent standards

for evaluating the qualifications of Indians for employment in the Indian Health

Services . . . .” Preston v. Heckler, 734 F.2d 1359, 1371 (9th Cir. 1984). Additionally,

the Preston court emphasized that “positions in the Indian Health Service are exempt

from the civil service standards.” Id. at 1372. In 1986, responding to Preston, the

Secretary promulgated the Indian Health Service’s Qualification Standards for

Excepted Service (“1986 standards”). These standards expressly establish separate

criteria for the employment of Indians in certain excepted service positions, including

that of public health/community health nurse. Further, the 1986 standards preempt the

general civil service qualification standards, known as the X-118 standards. At the

time of Marilyn Dionne’s application for the public health nurse position, the 1986

standards were in effect and her application should have been evaluated under these

standards, as well as the IPA.

Notwithstanding these legal precedents and the Secretary’s own 1986 standards,

the Secretary unlawfully and deliberately applied the general civil service standards to

Dionne’s application. In so doing, the Secretary determined that Dionne was only

qualified for a GS-7 position because, under the general civil service standards, she

lacked the required year of specialized service in public health nursing. Thus, in order
10The Secretary’s grading decision was made despite Dionne’s extensive nursing

background. At the time of her transfer, Dionne was licensed as a registered nurse by

the State of North Dakota, had years of experience in specialized services working as

a clinical nurse at Belcourt Hospital, and had been promoted from a GS-7 to a GS-9 in

that position. Significantly, her prior work consisted of extensive and diverse

experience within her tribal community.

11The district court held, and the majority accepts, that Dionne established a

prima facie case.

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to transfer into the new position and further her work within her tribal community,

Dionne was required to accept a pay scale demotion.10

Today’s majority opinion compounds the Secretary’s unlawful action. The

majority acknowledges that the Secretary’s use of the general civil service standards

was unlawful; nevertheless, it accepts inadvertence as an excuse for such action and

concludes that the Secretary’s conduct was “an honest mistake” rather than a

subterfuge for discrimination. The majority’s reasoning is flawed.

A. Legitimate, Nondiscriminatory Reason

In Title VII cases, after a plaintiff establishes a prima facie case of

discrimination,11 the burden of production shifts to the employer to articulate a

“legitimate, nondiscriminatory reason” for the employment action. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973) (emphasis added). Under this analysis, once

a prima facie case is established, a presumption arises that the employer unlawfully

discriminated against the employee. See Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981). If the employer fails to rebut the presumption by meeting

its burden, the plaintiff is entitled to judgment as a matter of law. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). 
12This discussion of the inherent failure of unlawful reasons should not be taken

out of context. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993), the Supreme

Court stated “it cannot be true that an employer who fires an older black worker

because the worker is black thereby violates the ADEA. The employee’s race is an

improper reason, but it is improper under Title VII, not the ADEA.” Thus, the Court

has noted that articulation of an illegal but true reason, unrelated to the claim at issue,

may satisfy an employer’s burden. However, the discussion in Hazen stands in contrast

to the instant facts. Here the articulated reason was lack of qualification under the X118 standards. The very application of such standards directly violates laws designed

to give preferential treatment to Native Americans in employment. Such illegality is

intricately related to the Title VII claim at stake. 

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In Burdine, the Supreme Court stated, “the employee’s prima facie case of

discrimination will be rebutted if the employer articulates lawful reasons for the

action . . . .” Burdine, 450 U.S. at 257 (emphasis added). Additionally, Black’s Law

Dictionary defines the adjective “legitimate” as “[c]omplying with the law; lawful.” 

BLACK’S LAW DICTIONARY 912 (7th ed. 1999). Thus, by usage and definition, an

unlawful or illegal ground cannot serve to satisfy an employer’s burden of articulating

a “legitimate, nondiscriminatory reason.”12 In this matter, after Dionne established her

prima facie case, the Secretary’s proffered “legitimate, nondiscriminatory reason” for

its action rested solely on the conclusion that she was not qualified for a higher grade

under the general civil service qualification standards. The majority now concedes that

the Secretary acted unlawfully in applying these standards; yet it allows such illegality

to stand. Such a conclusion belies logic.

Additionally, the majority’s opinion overlooks what is perhaps the best known

legal maxim – “ignorance of the law is no excuse.” While this maxim is one of general

applicability, it must be applied more acutely to those who are presumed to know the

law and are trusted to apply it. See Screws v. United States, 325 U.S. 91, 129 (1945)

(Rutledge, J. concurring) (“[Ignorance of the law] is less an excuse for [individuals]

whose special duty is to apply it, and therefore to know and observe it.”). In this case,

the Secretary was charged by Congress to promulgate specific employment standards
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for Indians, which it did. The Secretary then failed to apply its own standards in the

present case. If the time-tested maxim is to retain any vitality, it minimally must mean

that knowledge of the IPA and of one’s own promulgated standards is to be imputed

to the Secretary. Once such knowledge is properly attributed, it necessarily follows

that the Secretary deliberately chose to ignore the law and applied unlawful criteria to

Dionne’s application. Professing ignorance does not transform such a choice into

inadvertence or an innocent mistake, and to allow such is to invert the legal maxim.

On the record before us, the Secretary failed to articulate a legitimate,

nondiscriminatory reason for the employment decision; thus, Dionne’s prima facie case

and its corresponding presumption remain un-rebutted. Consequently, the district court

should have granted judgment as a matter of law in favor of Dionne. In failing to do

so, the district court, and now this court, permit a governmental agency to escape

liability under Title VII by pleading ignorance of its own rules, legislation, and of antidiscrimination laws. The IPA and the 1986 standards were designed to overcome the

historically recognized negative effects of non-Indian control of Indian affairs and to

facilitate the return of control to Indians. Title VII was designed, in part, to remedy

race and national origin discrimination in employment. Today’s holding undermines

each of these objectives by simultaneously acknowledging the applicability of the laws

and standards while excusing their violation because of alleged ignorance. Such

strained analysis surely must fail.

B. Pretext

Notwithstanding the above discussion, the majority accepts the Secretary’s

assertion of Dionne’s lack of qualification as a legitimate, nondiscriminatory reason and

proceeds to analyze whether Dionne proved pretext under the third prong of

McDonnell Douglas. Although I disagree for the reasons previously stated, for

purposes of discussion I will assume that an unlawful, nondiscriminatory reason can

suffice to carry the employer’s burden in a pretext case. 
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Here, the Secretary’s asserted nondiscriminatory reason was lack of

qualification; it is undisputed, however, that the Secretary used unlawful standards in

determining Dionne’s qualifications. Consequently, the alleged nondiscriminatory

reason serves as evidence of pretext because the reason given was false and could not

be the true reason for her lack of promotion.

As the Supreme Court observed in Hicks:

(1) the plaintiff must show “both that the reason was false, and that

discrimination was the real reason,” and (2) “it is not enough . . . to

disbelieve the employer.” Even though (as we say here) rejection of the

defendant’s proffered reasons is enough at law to sustain a finding of

discrimination, there must be a finding of discrimination.

Hicks, 509 U.S. at 511 n.4 (emphasis in original) (internal citations omitted). 

 The majority concedes in the closing lines of its opinion: “it is possible that a

failure to apply the Indian preference standards could be motivated by discriminatory

animus.” This being so, the Secretary’s motivation or intent is a question for the jury

to decide. As it stands, two reasonable inferences can be drawn from the evidence: (1)

the Secretary’s misapplication of the law was inadvertent or a mistake; or (2) the

Secretary’s misapplication was motivated by discriminatory animus. 

At the very least, the plaintiff has demonstrated, and this court now agrees, that

the employer’s articulated reason was not the true reason and the trier of fact should

then determine whether a mistake or discriminatory animus motivated the Secretary’s

action. This is the typical pretext case. It seems highly plausible that plaintiff’s

counsel, through effective cross-examination of the Secretary, could expose the

incredulity of a high ranking government official’s claim that he or she was not aware

of the applicable laws or standards, and that failure to apply them was merely a good

faith mistake. As the Burdine Court noted, “there may be some cases where the
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plaintiff’s initial evidence, combined with effective cross-examination of the defendant,

will suffice to discredit the defendant’s explanation.” Burdine, 450 U.S. at 255 n.10.

Under these circumstances, even if one assumes this is a pretext case, the

inferences to be drawn from the Secretary’s claim should be drawn by a trier of fact

and not the court. In all of the precedents of this court as well as those of the United

States Supreme Court, where the employer’s articulated reason is shown to not be the

true reason, then pretext is deemed to have been shown and the trier of fact must be

given the opportunity to infer whether the given reason hides intentional discrimination.

Therefore, I conclude, even under a pretext analysis, this case should not have been

dismissed at the summary judgment stage.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.