* This order and judgment is not binding precedent, except under the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. 

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

### MAR 25 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENNIE P. CHAVEZ, Plaintiff-Appellant,

v. COORS BREWING COMPANY, Defendant-Appellee. No. 98-1109 (D.C. No. 97-WY-1228-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and BRISCOE , Circuit Judges.

Plaintiff Bennie Chavez appeals the district court’ s entry of summary judgment in favor of defendant Coors Brewing Company on his claims of national origin discrimination (in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .), disability discrimination (in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq .), and breach of contract. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.-2- I. Plaintiff began working for defendant in 1976 as a general brewery worker. He later transferred to its construction departmentas an electrical trainee and was promoted to electrical specialist in 1987. He held that position, which was retitled “electrical journeyman,” until his layoff in 1996. Defendant created twenty new “senior specialist” po sitions in its construction department in 1995 to shift the department’s emphasis from design engineering to facilities maintenance. According t o Larry Seymour, defendant’s vice president of engineering and construction, the company had concluded it would be more cost-efficient to contract out much o f the work historically done by the construction department and to change the fo cus of the department to “heavy maintenance.” Seymour decided to select the new workers based on merit rather than seniority because he thought some senio r workers might not have the necessary technical and analytical skills. At the same time the new positions were created, Jay Martine, director of defendant’s construction department, announced a si gnificant downsizing in personnel. According to one of plaintiff’s former colleagues, Martine told employees the new senior specialists would be exclu ded from any reduction-inforce while employees not selected for the position s would be subject to layoff pursuant to the company’s seniority policy.-3-

Working closely with a professor at Colorado State University, Martine and his staff designed a selection process to fill the new senior specialist positions (submission of questionnaires to employees regardin g essential skills, establishment of screening criteria, development of an appropriate exam) to ensure the process was standardized, reliable, job- related, and procedurally fair. All applicants were required to have a Colorado jou rneyman’s license. The selection committee examined each applicant’s atten dance record, safety rate, prior evaluations, welding quality, training record s, score on a written test designed to identify the desired skills, interview, computer skills, and certification in additional crafts. Martine and hi s staff then ranked the applicants by their scores, and the top candidates received of fers for the new positions. Plaintiff was one of forty-eight applicants for the positions. He was ranked thirty-second and did not receive an offer for one of the twenty available positions. The construction department terminated forty-one employees on March 29, 1996, including eighteen electrical journeymen. One electrical journeyman voluntarily left the company and two others used th eir seniority to “bump” to different positions. Defendant then terminated the fifteen least-senior electrical journeymen, including plaintiff, who had waived his right to “bump” to a different position. Plaintiff exhausted his administrative remedies andfiled this action in June-4-

1997. He alleged disparate treatment and disparate impact discrimination on the basis of national origin and disability, in violati on of Title VII and the ADA. He also asserted claims for breach of express contract , breach of implied contract, and promissory estoppel. The district court grante d summary judgment in favor of defendant on all claims.
II. This court reviews a grant of summary judgment de n ovo, applying the same legal standard used by the district court. Sundance Assocs., Inc. v. Reno , 139 F.3d 804, 807 (10th Cir. 1998). Summary judgme nt is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. If there is n o genuine issue of material fact in dispute, then we next determine if the subs tantive law was correctly applied by the district court.” Id. (citation and quotation omitted).
III. Plaintiff appeals the district court’s rulings on h is Title VII, ADA, and breach of contract claims. He has abandoned his implied contract and promissory-5-

estoppel claims. Title VII Disparate Treatment Claim Plaintiff contends defendant discriminated against him on the basis of national origin by creating separate senior special ist positions that were not subject to the company seniority policy and were co mprised primarily of nonminorities. Plaintiff argues if those positions we re not established, he would have had sufficient seniority to avoid the reduction-in- force. To prevail on his disparate treatment claim, plaintiff must show defe ndant either created the senior specialist group with the intent of discriminating against Hispanics, or intentionally refused to make plaintiff a senior sp ecialist because of a discriminatory animus. See Bangerter v. Orem City Corp. , 46 F.3d 1491, 1501 (10th Cir. 1995); Sorensen v. City of Aurora , 984 F.2d 349, 352 (10th Cir. 1993). (Any negative impact the creation of the senior spe cialist positions may have had on Hispanics must be examined as part of plaintiff’ s disparate impact claim.) Plaintiff presents no direct evidence of discrimination and must rely on the proof scheme set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Under this framework, plaintiff must firstestablish a prima facie case of discrimination. If he does so, the burden shifts t o defendant to articulate a legitimate, facially non-discriminatory explanation for its adverse employment decision. EEOC v. Flasher Co. , 986 F.2d 1312, 1316 & n.4 (10th Cir. 1992).-6-

Assuming defendant meets that burden, all presumpti ons of discrimination drop from the case. St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The burden then shifts back to plaintiff to prove by a preponderance of the evidence that defendant’s proffered reasons for the challeng ed action are merely a pretext for discrimination. Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995). We assume, as did the district court, that plaintif f can satisfy his prima facie burden. Defendant points out that plaintiff ranked thirty-second of fortyeight applicants for the twenty positions. Plainti ff insists this explanation is mere pretext for unlawful discrimination. Pretext may b e demonstrated by showing “such weaknesses, implausibilities, inconsistencies , incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them un worthy of credence and hence infer that the employer did not act for the asserte d non-discriminatory reasons.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (citation an d quotation omitted). Conjecture is insufficient. Id. In support of his pretext argument, plaintiff conte nds two members of the position selection panel exhibited long-standing pr ejudice toward minorities. However, his “evidence” consists exclusively of ran k speculation, hearsay, and conclusory allegations, none of which is sufficientto withstand a properly supported summary judgment motion. See Thomas v. IBM , 48 F.3d 478, 485-7-

(10th Cir. 1995); Nichols v. Hurley , 921 F.2d 1101, 1113 (10th Cir. 1990). Although plaintiff references comments by various s upervisors, these isolated comments, unrelated to the specific challenged acti on, are not sufficient to show discriminatory animus in adverse personnel decisions. Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 531 (10th Cir. 1994). Plaintiff als o suggests creation of the senior specialist positions was unnecessary as the responsibilities of those positions differed little from work performed by other construction department personnel. Absent competent evidence of impermissi ble motives, it is not the role of the judiciary to second-guess the propriety of an employer’s business decisions. Furr v. Seagate Tech., Inc. , 82 F.3d 980, 986 (10th Cir. 1996). We find no su ch evidence in the record. Title VII Disparate Impact Claim Disparate impact claims involve facially neutral employment practices that have an adversely different effect on a particular group. International Bhd. of Teamsters v. United States , 431 U.S. 324, 335-36 n.15 (1977). Unlike disparate treatment claims, disparate impact causes of action require no findings of intentional discrimination. Ortega v. Safeway Stores, Inc. , 943 F.2d 1230, 1242 (10th Cir. 1991). To establish a prima facie case of disparate impact discrimination, plaintiff must prove a “specific id entifiable employment practice or policy caused a significant disparate impact on a protected group.” Id.1 Congress codified this principle in 1991. “With respect to demonstrating

that a particular employment practice causes a disp arate impact [on members of a (continued...) -8- Plaintiff may rely on statistics to support his cas e, but “any statistical analysis must involve the appropriate comparables . . . and must cross a threshold of reliability before it can establish even a prima facie case of disparate impact.” Id. at 1243 (citations omitted). Assuming plaintiff ca n make such a showing, the burden of proof (not just the burden of persuasion), see Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1117 n.5 (11th Cir. 1993), shifts to the employer to demonstrate the challenged practice is “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). This case fails at the prima facie stage of the analysis

. Plaintiff alleges creation of a separate group of s enior specialists had an adverse impact on Hispanics. Although plaintiff attacks the methodology and criteria used in the selection of senior specialist s, he does not identify any particular aspect of the process that had a disparate impact on Hispanics. “Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plai ntiff is . . . responsible for isolating and identifying the specific employment p ractices that are allegedly responsible for any observed statistical disparities.” Watson v. Fort Worth Bank
& Trust , 487 U.S. 977, 994 (1988) (plurality opinion). 1 A general assault on the1 (...continued)

protected class], the complaining party shall demon strate that each particular challenged employment practice causes a disparate i mpact, except that if the complaining party can demonstrate to the court thatthe elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one e mployment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). -9- racial composition of the workforce will not suffic e to create an actionable disparate impact claim. “Just as an employer canno t escape liability under Title VII by demonstrating that, ‘at the bottom line,’ hi s work force is racially balanced, . . . a title VII plaintiff does not make out a case of disparate impact simply by showing that, ‘at the bottom line,’ there is racial imbalance in the work force.” Wards Cove Packing Co. v. Atonio , 490 U.S. 642, 656-57 (1989). Even assuming the senior specialist selection proce ss as a whole constituted a sufficiently specific practice to support a dispa rate impact claim, plaintiff still cannot establish a prima facie case. A change of p olicy from seniority-based to skill-based evaluations does not, without more, est ablish evidence of unlawful discrimination. See Jones v. Unisys Corp. , 54 F.3d 624, 632 (10th Cir. 1995). Indeed, section 703(h) of Title VII clothes seniori ty- and merit-based tests with particular protection.

Notwithstanding any other provision . . ., it shall not be an unlawful employment practice for an employer to app ly different standards of compensation, or different terms, cond itions, or privileges of employment pursuant to a bona fide se niority or merit system . . . provided that such differences are notthe result of an-10-

intention to discriminate because of race, color, r eligion, sex, or national origin, nor shall it be an unlawful employ ment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended o r used to discriminate because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(h). Further, there is no evide nce of national origin disparity. The small number of overall applicants for the senior specialist positions ren ders a statistical analysis relatively unhelpful. See Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 746 (10th Cir. 1991). The fact that onlyone of five Hispanic senior specialist applicants was selected, while nineteen of forty-three non-Hispanic candidates were selected, does not state a prima fa cie case of disparate impact discrimination. The inability to rely on statistic s does not minimize plaintiff’s burden to prove an adverse effect on Hispanic candi dates. If anything, the absence of statistics makes plaintiff’s job more di fficult. Putting aside these shortcomings, plaintiff cannot show the four unsuccessful Hispanic applicants were qualified for the positions. See Watson , 487 U.S. 997 (alleged disparities “based on an appl icant pool containing individuals lacking minimal qualifications for the job [is] of little probative value”). The record suggests two of the unsuccessf ul Hispanic candidates did not have the required license. The only “evidence” that the remaining unsuccessful Hispanics were qualified consists of their own affi davits, which contain mostly hearsay and speculation.-11-

Despite plaintiff’s protestations, it is his burdenat the summary judgment stage to establish a prima facie case. See Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). Without competent evidence of an ad verse impact on Hispanics, plaintiff’s disparate impact cause of action must fail. See Vitug v. Multistate Tax
Comm’n , 88 F.3d 506, 514 (7th Cir. 1996).
ADA Claim Plaintiff’s sole evidence on his ADA claim consists of a single hearsay comment that, four years prior to his discharge, on e of his supervisors told a former colleague that plaintiff should have been fi red because of his back problems. This remark cannot support an ADA claim. See Cone , 14 F.3d at 531. Plaintiff also speculates his one-day absence for b ack problems five years earlier was used against him in the selection process. Oth er than rank speculation, there is no evidence defendant used plaintiff’s “disabili ty absence” as a basis for not selecting him for one of the positions.
Breach of Contract Claim Plaintiff appears to claim defendant violated its s eniority policy by using merit rather than seniority to select the senior sp ecialists, and by exempting the senior specialists from the seniority policy in con ducting the layoffs. We must reject both claims. First, there is no language in defendant’s seniority policy mandating how new positions must be filled. Defend ant’s personnel policy on-12-

internal placement/intercompany bidding specificall y states that, with the exception of certain positions not relevant here, a ll “job selections are based on skill and ability.” Aplt’s App. at 176. Second, d efendant’s policy entails conducting reductions-in-force by position, i.e., b y “job classification.” Plaintiff’s position (electrical journeyman) was co nsidered a different classification than the position of senior speciali st. Plaintiff suggests the senior specialist positions are identical to the electrician positions subjected to the reduction-in -force in March 1996. There is evidence in the record, however, that senior specia lists had more responsibility and performed significantly different tasks than other construction department personnel. Plaintiff’s evidence to the contrary co nsisted of the affidavit of a senior specialist who alleged (1) plaintiff was qua lified to do the work of senior specialists, and (2) the work of senior specialists required the same skills utilized by other electricians. The fact that plaintiff may be able to perform the work does not mean the positions are identical. Nor does the fact that certain responsibilities may overlap suggest deception on the part of defendant. Many of the duties and responsibilities of senior specialis ts are unique to that position.
See id. at 260-61. Defendant had a right to treat the pos itions differently under its seniority policy and did not breach the policy in conducting the March 1996 reduction-in-force.-13-

AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge