1

The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2975

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Franklin Woods, *

*

Plaintiff – Appellant, *

*

v. * Appeal from the United States

* District Court for the 

Stephen A. Perry, Administrator, * District of South Dakota.

United States General Services *

Administration, *

*

Defendant – Appellee. *

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 Submitted: May 12, 2004

 Filed: July 12, 2004

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Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Franklin Woods brought this case under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e – 2000e-17, alleging that the General Services

Administration (GSA) had discriminated on the basis of gender in selecting Sandra

Baumgartner as Dakotas Fleet Management Center manager despite his superior

qualifications. The district court1

 granted summary judgment to GSA, and Woods

appeals. We affirm. 
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Woods joined GSA in 1992 as assistant manager of the Pierre, South Dakota

Fleet Management SubCenter. He had an Associate Degree in mechanical technology

from the University of South Dakota at Springfield and a Bachelor Degree in business

administration from Northern State College. In December 1994 he was designated

acting manager of the SubCenter, and he was promoted to manager in September

1995. In 1997, the Pierre office was closed and relocated to Rapid City, South

Dakota where Woods continued as manager, a GS-12 position.

Baumgartner started to work at GSA in 1977 as a student aide while

completing an Associate Degree in business and legal secretarial at Bismarck Junior

College. Baumgartner was soon promoted to transportation operations specialist and

then to assistant manager of the North Dakota Fleet Management Center (FMC). The

manager of that FMC had a substance abuse problem, and Baumgartner frequently

served as de facto manager during her fourteen years as assistant manager,

particularly after the manager was suspended in 1995. In September 1999

Baumgartner competed for and was promoted to manager of the North Dakota FMC,

a GS-12 position.

In August 1999, GSA announced that it needed to reduce the number of FMCs

over the next three years. Among the reorganization proposals under consideration

was one to combine the North and South Dakota offices under one manager. After

lengthy discussion, the final consolidation plan was circulated in August 2000 and

approved by the union on November 28, 2000. Eddie Ward, a personnel staffing

specialist, prepared a vacancy announcement for manager of the Dakotas FMC, a GS13 position. The announcement was posted November 29, 2000, along with other

vacancies resulting from the reorganization. The position required one year of

specialized experience at the GS-12 grade level which equipped the applicant with

the particular knowledge, skills, and abilities (KSAs) to perform the necessary duties.

The announcement specified the seven most relevant KSAs: (1) knowledge of fleet

operations; (2) knowledge of vehicles, agency operations and requirements,
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procurement regulations, and contracts; (3) ability to analyze costs and market trends;

(4) planning and organizing; (5) oral communication; (6) written communication; and

(7) leadership. 

Only Woods and Baumgartner applied for the position. They were judged

equally qualified by the Human Resources Office in Fort Worth, Texas and referred

to the Regional Fleet Manager for the Rocky Mountain Region, Cynthia J. Hanson.

Hanson was responsible for selecting the Dakotas manager from the two candidates,

and her initial evaluations ranked Woods higher in written communication and

Baumgartner higher in both knowledge of fleet operations and leadership. Hanson

conducted individual telephone interviews of the candidates on December 21, 2000.

She asked them the same five questions and made notes of their responses and her

reactions. Hanson's notes expressed concern that Woods felt his greatest strength was

his leadership ability even though "prior complaints from employees indicate

otherwise" and that she did not believe he was a strong leader. Woods' response to

her question whether he wanted to add any information to his file was to ask why the

decision was taking so long, why Baumgartner had been promoted to manager of the

North Dakota FMC, and why the Dakotas FMC decision was not "clear cut." Woods

acknowledged his interview was "decent up until the final question. At that point it

dropped off considerably." Hanson's notes indicate that she could "not understand

why Frank feels so superior to [the] other candidate. He should have focused on his

abilities rather than questioning [the] other applicant." 

After concluding the interviews, Hanson concluded that Baumgartner would

be the better person for the job because a strong leader was needed to consolidate

personnel and resources at the new Dakotas FMC. Hanson knew that Baumgartner

was respected by her employees and had a proven ability to lead. She discussed the

selection of Baumgartner with her supervisor Kenneth Bowen, and he agreed with the

decision to hire her. Bowen felt that Woods did not have the people skills necessary

for the position and that his harsh management style had an adverse effect on his

associates. Hanson also conferred with three managers in the region as to their
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opinions of the candidates, and they recommended that she hire Baumgartner.

Hanson offered the job to Baumgartner, who has served in the position since January

14, 2001. Woods then sued the GSA Administrator under Title VII. 

 

The district court decided that Woods had met the basic elements of a prima

facie Title VII case, but that he had not shown the additional requirement in a reverse

discrimination case "that background circumstances support the suspicion that the

defendant is that unusual employer who discriminates against the majority." Duffy

v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997). Even if Woods could show the

requisite background circumstances along with a prima facie case of discrimination

under the first step in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973), the district court said his case would fail as a matter of law because he had

presented no evidence of pretext. It granted summary judgment to GSA. 

We review de novo a grant of summary judgment. Anderson v. Franklin

County, 192 F.3d 1125, 1131 (8th Cir. 1999). Summary judgment is proper when

there is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law when the evidence is viewed in the light most favorable to the

nonmoving party. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87 (1986). We review Woods' claims under the burden

shifting framework of McDonnell Douglas, 411 U.S. at 802-03, and Texas Dep't of

Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). 

Woods bore the initial burden to establish a prima facie case and then GSA had

to articulate a legitimate nondiscriminatory reason for its action. For his prima facie

case Woods had to show that (1) he belongs to a protected class; (2) he applied and

was qualified for a job; (3) he was rejected despite his qualifications; and (4) his

employer promoted a woman. See Burdine, 450 U.S. at 254; McDonnell Douglas,

411 U.S. at 802. In reverse discrimination cases, the plaintiff has also been expected

to show that "background circumstances support the suspicion that the defendant is

that unusual employer who discriminates against the majority." See Duffy, 123 F.3d
2

On appeal Woods raises a new issue, asking us to adopt the Third Circuit

approach requiring a reverse discrimination plaintiff to "present sufficient evidence

to allow a fact finder to conclude that the employer is treating some people less

favorably than others based upon a trait that is protected under Title VII." Iadimarco

v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999). Woods waived this issue by not raising

it below, see United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n.5 (1994), but that

standard would not change the result here. 

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at 1036. Accord Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001); Mills v.

Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Notari v. Denver Water

Dep't, 971 F.2d 585, 589 (10th Cir. 1992); Murray v. Thistledown Racing Club, Inc.,

770 F.2d 63, 67 (6th Cir. 1985).2

 Woods could show suspicious background

circumstances by showing evidence that GSA is inclined to discriminate invidiously

against males or something "fishy" about the facts that raises an inference of

discrimination. See Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). 

To survive summary judgment Woods had to produce evidence that would

allow a jury to find that GSA's proffered reason for choosing Baumgartner because

of her superior leadership ability is pretext and that the real reason for its action was

discriminatory. See Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir. 1995)

(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)). While Woods

notes that summary judgment should be used sparingly in employment discrimination

cases, citing Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994), it is

appropriate where there are no disputed facts and only one conclusion is possible. Id.

The ultimate burden of persuasion remains at all times with Woods. See Burdine, 450

U.S. at 253.

Woods argues that the district court erred in finding that the record did not

support his claim that GSA was the unusual employer that discriminates against men.

In support he cites the noncompetitive promotion of a female manager in Montana,

the promotion of a female to assistant manager in Denver before a male could qualify,

the request for an exception to retain a female, and the promotion of Baumgartner to
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manager of the North Dakota FMC. He contends that "since Cynthia Hanson became

Regional Fleet Manager, the region had become 'a girls' club.'" He alleges the district

court erred by not finding suspicious background circumstances because his

qualifications were superior to Baumgartner's and by finding GSA's proffered reason

not pretextual.

 

Woods suggests that a good example of GSA's favoritism toward women was

the promotion of Sherrie Hernandez in the Billings FMC through accretion (internal

advancement without competition) without his being accreted at the same time. The

record shows that Hernandez was hired in 1997 by Hanson's predecessor, Irv Merwin,

and advanced to GS-13 in January 1999 because her fleet included more than 2000

vehicles. The region had two other GS-13 managers; both were men who had been

classified at that level because of fleet size. When Hernandez was accreted, Hanson

also promoted two male managers and increased their GS levels. Hanson's decisions

were approved by the Human Resources Office, and the record indicates that Woods

was in charge of fewer vehicles than Hernandez and not similarly situated. See

Williams v. Ford Motor Co., 14 F.3d 1305, 1309 n.2 (8th Cir. 1994).

Woods alleges that Hanson rushed the promotion of a woman to assistant

manager of the Denver FMC to preclude a man from applying. GSA responds that

there was no eligible male candidate and that the male manager of the Denver FMC

had agreed with Hanson's promotion decision. Woods has produced no evidence that

any male applicant was discouraged from qualifying or applying. Woods complains

that Hanson requested permission to recruit internally for a transportation operations

specialist in order to keep a female contract employee from resigning, but he offers

no evidence to show that Hanson used this method of recruitment to favor women

over men. GSA presented evidence that men were promoted at the same rate as

women and that the Rocky Mountain Region workforce had more men than women.

The Work Force Profile showed that after Hanson became Regional Fleet Manager,

14 women and 16 men were promoted. Against this background, the handful of
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promotions of women that Woods points to is insufficient to meet his burden to show

that GSA discriminates against men. 

Woods alleges that an inference of discrimination can also be drawn from the

promotion of Baumgartner to manager of the North Dakota FMC. He contends that

Hanson requested an exception to the hiring freeze in 1999 to open the position for

Baumgartner. It is undisputed, however, that the position was announced for

competition and that the hiring freeze only meant that personnel actions were

restricted to GSA employees. Similar promotions were allowed after Hanson

requested an exception to the hiring freeze for the Salt Lake City FMC in March

2000, which benefitted male employees. The internal promotion of Baumgartner does

not establish suspicious background circumstances of discrimination against men

when male employees also benefitted from advancement during the hiring freeze. 

Woods also contends that it was unnecessary to fill the North Dakota

managerial position because that position would have been eliminated in any

consolidation with the South Dakota FMC where he was manager. It is undisputed,

however, that the August 1999 proposal to consolidate the North and South Dakota

FMCs went through several drafts, was not approved until November 2000, and the

manager of the Dakotas FMC was not selected until January 2001. At the time

Baumgartner was promoted to manager of the North Dakota FMC, Hanson did not

know if or when the centers would be consolidated. Woods argues that the manager

of the Dakotas FMC could have been chosen in August 2000 when GSA approved

the consolidation plan, rather than waiting until November 2000 for union approval.

At that time Baumgartner would have been ineligible, because she would not have

been at level GS-12 for the requisite year. The president of Local 3275 of the

American Federation of Government Employees (AFGE) union, Steven Hahn,

indicated that AFGE's approval was necessary before the reorganization could be

implemented. Woods produced insufficient evidence for a jury to find that GSA

waited to post vacancy announcements as a means of discriminating against men.
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In his final argument to establish suspicious background circumstances, Woods

alleges that he was better qualified for the Dakotas FMC position and that this is

sufficient by itself in a reverse discrimination case to establish a prima facie claim,

citing Harding, 9 F.3d at 153. Woods notes that he has a four year degree while

Baumgartner has only a two year degree. Baumgartner had 23 years of experience

with GSA, however, while Woods had only eight. Woods also contends that he had

more formal management experience (five years versus 15 months), but Baumgartner

often served as de facto manager during her 14 years as assistant manager. It is

inevitable that two candidates will have different education and work experience, and

the choice of a qualified candidate with 15 more years of GSA work experience and

a superior leadership rating over one with two extra years of formal education is not

sufficient to show background circumstances. See Duffy, 123 F.3d at 1038. 

Woods claims that a requirement of knowledge of vehicle maintenance and

repair was intentionally left out of the vacancy announcement and that had it been

included, he would have been the objectively superior candidate. He produced no

evidence to suggest that the omission of this KSA was anything more than an

oversight by the Human Resources Office in Texas. He has not shown that Hanson

was aware the KSA was missing, and Woods did not call it to anyone's attention until

after he initiated this lawsuit. Despite its omission, Woods' application discussed his

knowledge of vehicle maintenance and his two year degree in mechanical technology.

Moreover, the record reveals that the two candidates were at least similarly qualified

in this area because Baumgartner had eighteen years of experience working part time

in her husband's automotive repair business. A comparison that reveals that the

plaintiff's qualifications were similar to those of the selected candidate does not raise

an inference of gender discrimination. See Chock v. Northwest Airlines, Inc., 113

F.3d 861, 864 (8th Cir. 1997) (affirming summary judgment for employer). 

The district court also concluded that even if Woods could show GSA is the

unusual employer who discriminates against men, he had not produced evidence to

show that its stated reason for its decision –– that Baumgartner had superior
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leadership ability –– was pretextual. We agree that Woods failed to present evidence

sufficient to show that GSA's justification for its actions was pretextual. See Kerns

v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999). Since the new

manager of the Dakotas FMC had the task of consolidating two offices, the key skill

Hanson sought was leadership, a manager who could unite the offices and "lead them

into the future." Hanson's review praised Baumgartner's personable style and

demonstrated ability to deal with people and problems in an excellent manner. She

also noted that Baumgartner "has shown great leadership ability for many years." She

interviewed better than Woods, received letters of commendation and service awards,

and had received no complaints regarding how she managed her staff. 

While Woods also received praise, there were numerous indications in the

record that his staff disliked him and the working environment. He had heavy

turnover during his tenure as manager, and one employee complained that Woods had

kicked his chair when he was disciplining him. Woods himself acknowledges

difficulties with his staff, particularly during the "tumultuous period of 1997" when

the Pierre and Rapid City SubCenters were consolidated. Woods has offered no

evidence that his leadership abilities were better than Baumgartner's, and leadership

ability is a legitimate, nondiscriminatory hiring consideration. See Floyd v. Missouri

Dep't of Soc. Servs., 188 F.3d 932, 937 (8th Cir. 1999). Because Woods was unable

to show that Baumgartner was not a superior leader and that her promotion was the

result of gender discrimination, Kneibert v. Thomson Newspapers, Michigan Inc.,

129 F.3d 444, 454 (8th Cir. 1997), there is no question of material fact to submit to

a jury. 

Accordingly, we affirm the judgment of the district court.

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