* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 30 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GLEN C. HUDSPETH,

Plaintiff-Appellant,

v.

DENVER WATER DEPARTMENT

and CITY AND COUNTY OF

DENVER, a municipal corporation,

Defendants-Appellees.

No. 97-1180

(D.C. No. 93-B-614)

(D. Colo.)

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
-2-

Plaintiff appeals from the district court’s grant of summary judgment in

favor of defendant. Plaintiff, a black male, brought suit against defendant,

claiming that defendant discriminated against him on the basis of both his sex and

race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2000e-17, and 42 U.S.C. § 1981. Plaintiff responded to a job posting

and applied for the position of Revenue Service Supervisor. He and two other

applicants, a white female and a Hispanic male, were tested and interviewed for

the position. The white female scored higher on both the written test and the oral

interview, and defendant hired her to fill the position.

The district court recognized that, because he was a male, plaintiff’s claim

of discrimination based on his gender was a reverse discrimination claim. It

found that plaintiff had failed to establish a prima facie case of sex

discrimination, because he did not “establish background circumstances that

support an inference that the defendant is one of those unusual employers who

discriminates against the majority.” Notari v. Denver Water Dep’t, 971 F.2d 585,

589 (10th Cir. 1992). Regarding plaintiff’s claim of race discrimination, the

district court found that plaintiff had established his prima facie case, but that he

had failed to show that defendant’s stated legitimate nondiscriminatory reason for

promoting the white female over plaintiff was pretextual. See McDonnell
-3-

Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973) (outlining requirements

for prima facie case and setting forth burden-shifting analysis).

We review the district court’s grant of summary judgment de novo, and we

will affirm if “‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.’” Reynolds v. School

Dist. No. 1, 69 F.3d 1523, 1531 (10th Cir. 1995) (quoting Fed. R. Civ. P. 56(c)). 

After having reviewed the record, we affirm the district court’s order granting

defendant’s second motion for summary judgment for substantially the same

reasons set forth therein.

On appeal, plaintiff argues that the district court erred in applying the

modified prima facie case requirements for claims of reverse discrimination, see

Notari, 971 F.2d at 589, because he is a black male and is, therefore, entitled to

the presumptions accorded to those belonging to a disfavored group. Plaintiff

offers no authority in support of this novel proposition, and we have found none. 

Plaintiff’s gender discrimination claim is based on his gender, and he is a member

of the historically favored majority with regard to gender. Plaintiff belongs to a

disfavored group because of his race, and he is, therefore, entitled to the

presumption afforded minorities in the traditional prima facie case requirements

regarding his claim that he was discriminated against on account of his race. The

two claims, race discrimination and sex discrimination, are separate claims, and
1

In his brief on appeal, plaintiff argues that evidence that one of the

individuals responsible for the hiring decision had previously made derogatory

racial references establishes pretext. Plaintiff did not present that argument to the

district court; the district court, therefore, did not address it, and we decline to

consider it for the first time on appeal. See Walker v. Mather (In re Walker),959

F.2d 894, 896 (10th Cir. 1992).

-4-

the circumstances that determine the analysis to be applied to each claim do not

overlap. Cf. Reynolds, 69 F.3d at 1534 (applying Notari reverse discrimination

requirements for prima facie case in case involving race discrimination claim by

white female); Sanchez v. Philip Morris Inc., 992 F.2d 244, 248 (10th Cir. 1993)

(applying reverse gender discrimination prima facie case analysis to gender

discrimination claim of Hispanic male). The district court was correct to apply

the modified reverse discrimination analysis to plaintiff’s claim of sex

discrimination.1

The motion to file the addendum under seal is granted. The judgment of

the United States District Court for the District of Colorado is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge