* This order and judgment is not binding precedent, e xcept under the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

## 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff appeals from the district court’s grant o f summary judgment in favor of defendant. Plaintiff, a black male, broug ht suit against defendant, claiming that defendant discriminated against him o n 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 Sup ervisor. He and two other applicants, a white female and a Hispanic male, wer e tested and interviewed for the position. The white female scored higher on bo th the written test and the oral interview, and defendant hired her to fill the posi tion. 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 prim a facie case of sex discrimination, because he did not “establish backg round circumstances that support an inference that the defendant is one of t hose unusual employers who discriminates against the majority.” Notari v. Den ver 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 establishedhis 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 prete xtual. See McDonnell-3-

Douglas Corp. v. Green , 411 U.S. 792, 802, 804 (1973) (outlining requirem ents for prima facie case and setting forth burden-shift ing analysis). We review the district court’s grant of summary jud gment 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 dis trict 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 courterred in applying the modified prima facie case requirements for claims o f reverse discrimination, see Notari , 971 F.2d at 589, because he is a blackmale and is, therefore, entitled to the presumptions accorded to those belonging to a d isfavored group. Plaintiff offers no authority in support of this novel propos ition, and we have found none. Plaintiff’s gender discrimination claim is based onhis 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, th erefore, entitled to the presumption afforded minorities in the traditional prima facie case requirements regarding his claim that he was discriminated again st on account of his race. The two claims, race discrimination and sex discriminat ion, are separate claims, and1 In his brief on appeal, plaintiff argues that evide nce that one of the

individuals responsible for the hiring decision hadpreviously made derogatory racial references establishes pretext. Plaintiff d id 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 distri ct court was correct to apply the modified reverse discrimination analysis to pla intiff’s claim of sex discrimination. 1 The motion to file the addendum under seal is grant ed. The judgment of the United States District Court for the District o f Colorado is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge