Leadbetter v. Gilley

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Leadbetter v. Gilley No. 02-6360 ELECTRONIC CITATION: 2004 FED App. 0329P (6th Cir.) File Name: 04a0329p.06 KRAMER, RAYSON, LEAKE, RODGERS & MORGAN, LLP, Knoxville, Tennessee, for Appellee. ON BRIEF: David R. Duggan, GARNER & DUGGAN, Maryville, UNITED STATES COURT OF APPEALS Tennessee, for Appellant. Edward G. Phillips, Penny A. Arning, KRAMER, RAYSON, LEAKE, RODGERS & FOR THE SIXTH CIRCUIT MORGAN, LLP, Knoxville, Tennessee, for Appellee. _________________ _________________ RONALD C. LEADBETTER , X Plaintiff-Appellant, - OPINION - _________________ - No. 02-6360 v. - RICHARD MILLS, District Judge. The district court > awarded summary judgment against Ronald C. Leadbetter on , his employment discrimination claims. J. WADE GILLEY , - Defendant-Appellee. - He appeals. N Appeal from the United States District Court We AFFIRM. for the Eastern District of Tennessee at Knoxville. No. 00-00661—Thomas W. Phillips, District Judge. I. FACTUAL AND PROCEDURAL BACKGROUND In early September 1999, University of Tennessee (the Argued: March 10, 2004 “University”) General Counsel Beauchamp Brogan announced his retirement effective December 31, 1999. The Decided and Filed: September 29, 2004 University’s then-president, J. Wade Gilley, proceeded to fill the job opening. Prior to any advertisement of or search for Before: MARTIN and CLAY, Circuit Judges; MILLS, a replacement, Gilley asked Brogan whether he could directly District Judge.* promote Deputy General Counsel Catherine Mizell to the _________________ position. After Gilley received legal advice to the contrary, he initiated a job search for the position. COUNSEL Gilley authorized a formal search for general counsel ARGUED: David R. Duggan, GARNER & DUGGAN, candidates. At Gilley’s direction, Brogan prepared a formal Maryville, Tennessee, for Appellant. Edward G. Phillips, announcement for the position of Vice President, General Counsel, and Secretary. The announcement stated that: The successful [General Counsel] candidate must have * The Hon orable R ichard M ills, United States District Judge for the the following minimum qualifications: (1) J.D. or L.L.B. Central District of Illinois, sitting by designation. from an accredited law school; (2) admission to, or

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immediate eligibility for, the Tennessee State Bar; (3) a Gilley interviewed Mizell and Leadbetter for the position minimum of fifteen years of legal practice experience, at of Vice President and General Counsel. Gilley interviewed least ten of which must have been as full-time, in-house Mizell twice and Leadbetter once. According to Leadbetter, counsel for a multi-campus, public institution of higher it was clear to him from the outset of the 15-minute interview education; (4) experience in transactional matters and that Gilley was not interested in his qualifications for the civil litigation; (5) strong analytical skills and (6) position since the interview involved little more than understanding of and commitment to affirmative action “chit-chat” unrelated to Leadbetter’s credentials. and to achieving the University’s affirmative action objectives. On December 14, 1999, Gilley met with Leadbetter. Gilley stated that he had spoken to the administrative staff and the The search was conducted exclusively by University staff had advised him that either Leadbetter or Mizell could Trustee Roger Dickson. Dickson forwarded the names of do the job. Nevertheless, Gilley told Leadbetter that he candidates he believed to be most qualified for the position. decided to recommend Mizell to the Board of Trustees. On One of the candidates on Dickson’s list was associate general December 20, 1999, the Board of Trustees’ Executive counsel Ronald Leadbetter. Other than the fact that Committee unanimously elected her Vice President, General Leadbetter was an associate with the general counsel’s office Counsel, and Secretary. who oversaw some litigation at the University of Tennessee’s Memphis campus, there is little information in the parties’ Following his decision to hire Mizell, Gilley attempted to briefs concerning Leadbetter’s credentials. address budgetary woes by streamlining and restructuring of the University’s administration. One of the new job titles Deputy General Counsel Mizell was another candidate created via the restructuring was Equity and Diversity whose name appeared on Dickson’s list. Mizell had been Administrator. The job paid $35,000 less than Leadbetter promoted over Leadbetter six years prior to Brogan’s was earning as Associate General Counsel. retirement. She was a former editor-in-chief of the University of Tennessee Law Review and she met all of the job Gilley believed that experience in race relations and a requirements for General Counsel. In her fifteen years at the commitment to diversity and civil rights were important University, she managed the General Counsel’s staff and qualities for the Equity and Diversity Administrator position. budget, reviewed other attorneys’ work, and handled the Theotis Robinson, an administrative aide in the University’s University’s most complex legal issues—including a $225 Governmental Relations Office, had those qualities. million transfer of the University’s hospital to a not-for-profit Although Robinson did not have a bachelor’s degree, he was organization. Additionally, Mizell was recommended by a member of the Knoxville City Council, served as the General Counsel Brogan, former President Joseph E. Johnson, University’s liaison to the Legislative Black Caucus in and the three highest-ranking administrators at the University. Nashville, acted as an informal government liaison to the City Brogan did not recommend Leadbetter for the general counsel of Knoxville and Knox County governments, co-chaired an position because Brogan felt that Leadbetter lacked the organization of African-American and Caucasian community necessary academic background, management skills, and leaders, and advised the University on issues important to analytical tools. state and local African-American political leaders.

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Gilley needed an Equity and Diversity Administrator who On November 30, 2000, Leadbetter filed a reverse gender could advise him directly on relations with African-American and race discrimination action against Gilley under 42 U.S.C. students, faculty, administrators, and local leaders. In §§ 1981 and 1983, the Fourteenth Amendment of the United Gilley’s estimation, Robinson was the best candidate for the States Constitution, and the Tennessee Human Rights Act, position. Thus, Gilley assigned Robinson the job. Leadbetter TENN. CODE ANN. § 4-21-101, et seq. Leadbetter claimed claimed he was unaware that Gilley had appointed Robinson that from the time Gilley was employed, Gilley repeatedly to the position of Equity and Diversity Administrator until articulated his intent to hire and promote women and after the appointment was announced. While he learned that minorities. Gilley would describe the promotion system at Robinson would be promoted to the staff vice president level the University as sort of “inbreeding” for the promotion of before the promotion was finalized, Leadbetter did not apply white males, but used the phrase “natural chain of for the position—one that paid $11,400 less than he was progression” when a woman was promoted. He insisted that earning as an associate general counsel—because Leadbetter search committees seek out women and minorities for was not invited to do so. It was Leadbetter’s understanding University jobs. that Robinson would be recommended for appointment to Vice President without the position being advertised or According to Leadbetter, Gilley requested a job description candidates solicited, all purportedly in violation of the to be prepared for the Vice President, General Counsel, and University’s employment policies and procedures, the Secretary position which specifically favored Mizell and University’s affirmative action program and the stipulation of limited or excluded any serious competition. Leadbetter also settlement set forth in Geier v. Alexander, 593 F.Supp. 1263 asserted that the appointment of a search committee (M.D.Tenn.1984)1. composed of a single person—Roger Dickson—was unprecedented at the University for a high level position and Leadbetter believed that any under-representation of that Dickson’s appointment fell outside the University’s African-Americans in the University-Wide Administration pattern and practice of appointing minorities and women to (the “UWA”) administrator classifications in 1999 or 2000 search committees. Furthermore, Leadbetter claimed that was not due to racial discrimination. Thus, he thought that Mizell failed to adequately specify lease payments when she Gilley’s use of race in addressing under- representation was created the agreement transferring the University Hospital and unconstitutional. that a minimal investigation of Mizell’s credentials would have revealed that she had minimal trial experience. 1 As to Robinson, Leadbetter stated that Gilley did not The University had been involved in long standing desegregation litigation which resulted in a judicial finding of de jure racial segregation advertise the position of Equity and Diversity Administrator of public higher education in Tennessee, including at the University. After prior to Robinson’s appointment and did not consider any a challenge was raised to the dual system of higher education in other candidates for the position because Gilley intended for Tennessee, the State of Tennessee, including the University, was ordered by the District Court for the M iddle District o f Ten nessee to submit a Robinson to have the position because Robinson was African- “plan designed to effect such desegregation of the higher educational American. Leadbetter claimed that Gilley selected the institutions of Tennessee.” Sanders v. Ellington, 288 F.Supp. 937, 942 bachelor degree-less Robinson over a number of qualified (M.D .Tenn.1968 ). The University entered into a stipulation of settlement individuals who were already in the “natural chain of which was ap proved by the d istrict court and this Court alike. See Geier progression” including white employees Sarah Phillips and v. Alexander, 593 F.Sup p. 12 63 (M.D.T enn.1984); Geier v. Alexander, 801 F.2d 799 (6th C ir.198 8), resp ectively. Jennifer Richter. According to Leadbetter, Gilley would not

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have promoted any white male lacking a college degree to the African-Americans in the administrator classification. Gilley position of Equity and Diversity Administrator. stated that he was aware of the substantial under- representation of African-Americans in the UWA positions Gilley ultimately moved for summary judgment. and based his decisions regarding the responsibilities assigned According to Gilley, Leadbetter was not in any way within to Robinson, and the resulting title changes, in part, upon the his contemplation when he named Robinson as one of five fact that the decisions were consistent with the objectives of staff vice presidents in August 2000 for several reasons. The the Geier settlement. Gilley asserted that he believed that the additional responsibilities added at the time (oversight for consideration of race was allowable in assigning these affirmative action offices in Memphis and Tullahoma, affirmative action responsibilities to Robinson, was lawful Tennessee) were a small incremental addition to Robinson’s under the Geier settlement and consistent with the existing position. There was no “vacancy” and no other University's duty under the Equal Protection Clause of the “candidate” because Robinson was already performing the Fourteenth Amendment to take remedial steps to dismantle large majority of the job. Gilley claimed there was no reason the former de jure segregated system of public higher for him to consider Leadbetter for a staff vice president job education. because Leadbetter was not on the president’s staff whereas Robinson was. Leadbetter did not inform Gilley that he was The district court granted Gilley’s summary judgment interested in a diversity/affirmative action position, even after motion, concluding that Leadbetter failed to establish a prima Gilley had appointed Robinson to the Equity and Diversity facie case of reverse gender or race discrimination. The Administrator position. Moreover, Gilley had no reason to district court also found that Gilley was entitled to qualified believe that Leadbetter would be interested in a position immunity. Leadbetter timely appealed the district court’s paying $11,400 less than Leadbetter was making at the time. decision. Gilley further asserted that he reasonably believed that the II. STANDARD OF REVIEW assignment of responsibilities as Equity and Diversity Administrator and Vice President of Equity and Diversity to The Court reviews a district court’s grant of summary Robinson was a lawful and permissible affirmative action judgment de novo. Williams v. Gen’l Motors Corp., 187 F.3d decision consistent with the objectives of the stipulation of 553, 560 (6th Cir.1999). To grant a motion for summary settlement entered in Geier. According to Gilley, since the judgment, a court must find that the pleadings, together with entry of the stipulation of settlement, the district court has not the depositions, interrogatories and affidavits on file, establish found that the University fully satisfied its constitutional duty that there is no genuine issue of material fact and that the under the Equal Protection Clause to dismantle the former de movant is entitled to judgment as a matter of law. FED. R. jure system of segregation. CIV. P. 56.

Gilley stated that pursuant to the Geier stipulation, the The party that seeks summary judgment bears the initial University submitted certain desegregation goals to the burden of specifying the basis upon which it contends district court. The positions of Equity and Diversity judgment should be granted and of identifying that portion of Administrator and Vice President for Equity and Diversity the record which, in its opinion, demonstrates the absence of fell within the UWA. According to Gilley, in 1999 and 2000, a genuine issue of material fact. Celotex Corp. v. Catrett, 477 the UWA had a substantial under-representation of U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

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Thus, summary judgment should be granted only where there non-discriminatory reason for the adverse employment action is no genuine issue of material fact. Anderson v. Liberty at issue. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing 202 (1986). Once a movant satisfies its burden, the McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817)). If the nonmoving party must produce specific facts demonstrating defendant meets this burden, the burden of production shifts a genuine issue of fact for trial if it is to withstand summary back to the plaintiff to demonstrate that the proffered reason judgment. Id. 477 U.S. 247-48, 106 S.Ct. 2509-10. “The is a pretext. Id. When the burden shifts back to the plaintiff, mere existence of a scintilla of evidence in support of the the plaintiff must come forward with evidence that the plaintiff’s position will be insufficient; there must be evidence defendant’s reason for the employment action is false. on which the jury could reasonably find for the plaintiff.” Id. Sutherland, 344 F.3d at 615 (6th Cir. 2003). “[A] plaintiff’s 477 U.S. at 252, 106 S.Ct. at 2512. prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit” III. ANALYSIS a finding of unlawful discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, To establish a prima facie discrimination claim, a plaintiff 147 L.Ed.2d 105 (2000). must show: (1) that he is a member of a protected class; (2) that he applied and was qualified for a promotion; (3) that he A. Leadbetter’s Reverse Gender Discrimination Claim was considered for and denied the promotion; and (4) other employees of similar qualifications who were not members of There is no dispute that Leadbetter sought and was the protected class received promotions. McDonnell Douglas qualified for the General Counsel position. However, the Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 district court found that Leadbetter failed to establish a prima (1973); Sutherland v. Michigan Dept. of Treasury, 344 F.3d facie case of discrimination because he did not show that 603, 614 (6th Cir. 2003)(citation omitted). The Sixth Circuit Gilley was the unusual employer who discriminates against has adapted this four-prong test to cases of reverse men and because he failed to show that Gilley treated discrimination, where a member of the majority is claiming differently employees who were similarly situated but were discrimination. Sutherland, 344 F.3d at 614-15 (6th Cir. not members of the protected class. Leadbetter claims the 2003); Pierce v. Commonwealth Life Ins., 40 F.3d 796, 801 district court erred in both respects. (6th Cir.1994). In such cases, a plaintiff satisfies the first prong of the prima facie case by “demonstrat[ing] Leadbetter contends that the district court improperly ‘background circumstances [to] support the suspicion that the credited Gilley’s witnesses “on all contested points” and defendant is that unusual employer who discriminates against disproportionately relied on evidence favorable to Gilley. the majority.’” Id. (citations omitted). To satisfy the fourth Leadbetter also contends that “[a]lthough there is no direct prong in a reverse-discrimination case, the plaintiff must evidence Gilley discriminated against [him] on the basis of show that the defendant treated differently employees who . . . gender, there is ample direct evidence of Gilley’s were similarly situated but were not members of the protected discriminatory animus in favor of women . . . .” Specifically, class. Id. Leadbetter contends that Gilley’s claim in an e-mail that women are more efficient than men and his use of the term Once the plaintiff establishes a prima facie case, the burden “inbreeding” to describe the advancement of white males at shifts to the defendant to offer a legitimate, the University and “natural chain of progression” to describe

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female and minority advancement indicates gender animus. tainted, the Court moves on to compare the relative Furthermore, Leadbetter argues that Gilley’s animus could be qualifications of Mizell and Leadbetter. inferred from a statement he made during a search for a Dean of Students position where Gilley said that there are women Mizell met all of the job requirements for General Counsel. and minorities out there, “go find one.” She served as Brogan’s “top assistant,” having been promoted over Leadbetter six years prior to Brogan’s retirement. She If the Court were to assume, for the sake of argument, that managed the General Counsel’s staff and budget, reviewed Leadbetter presented sufficient evidence to raise an inference other attorneys’ work, and handled the most complex legal of gender bias, Leadbetter’s gender discrimination claim still issues facing the University (i.e. the $225 million transfer of fails. “In order for two or more employees to be considered the University’s hospital to a not-for-profit organization). similarly-situated for purposes of creating an inference of Mizell was also recommended by the University’s president, disparate treatment in a [reverse discrimination case], the three top administrators, Dickson—the University’s one- plaintiff must prove that all of the relevant aspects of his person search committee for the General Counsel spot, and employment situation are ‘nearly identical’ to those of the Brogan—the outgoing General Counsel who supervised [female employee] who he alleges [was] treated more Mizell and Leadbetter for many years. In Dickson’s opinion, favorably.” Pierce, 40 F.3d at 802. The similarities between Mizell was the “one candidate who stands above the others” the plaintiff and the female employee must exist “in all and who was “uniquely qualified.” relevant aspects of their respective employment circumstances.” Id. Differences in job title, responsibilities, Leadbetter held a lower position than Mizell at the General experience, and work record can be used to determine Counsel’s Office, and he had no experience as chief legal whether two employees are similarly situated. Id. officer or first assistant to the chief. He had no experience working with the governing board of a multi-campus public The minimum qualifications for the University’s General university, and his academic credentials did not match Counsel position were: (1) J.D. or L.L.B. from an accredited Mizell’s academic achievements. Furthermore, he had been law school; (2) admission to, or immediate eligibility for, the removed from responsibility for the Memphis litigation Tennessee State Bar; (3) a minimum of fifteen years of legal following a series of mishaps that included inadequate practice experience, at least ten of which must have been as preparation and the presentation of perjured testimony. full-time, in-house counsel for a multi-campus, public institution of higher education; (4) experience in transactional As these facts show, Leadbetter was not similarly situated matters and civil litigation; (5) strong analytical skills and (6) to Mizell. Mizell was a better candidate in terms of academic understanding of and commitment to affirmative action and achievement, experience, and work record. She had superior to achieving the University’s affirmative action objectives. experience managing the General Counsel’s office, and she Although Leadbetter claimed that Gilley had Dickson “tailor” alone was recommended by the University’s top brass. Thus, these requirements to favor Mizell, Leadbetter offered the Mizell and Leadbetter were not similarly situated. district court no evidence to substantiate his assertion. Similarly, Leadbetter presents no evidence on appeal to Even if Leadbetter had shown that he and Mizell were suggest that Dickson skewed the job posting to benefit Mizell. similarly situated, his discrimination claim still would fail. If Because there is no evidence to show that the job posting was Leadbetter was able to show that he and Mizell were similarly situated, the burden would shift to Gilley to offer a legitimate

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nondiscriminatory reason for not hiring him as General Vice President Robert Levy testified that the University had Counsel. Burdine, 450 U.S. at 253 (citing McDonnell eliminated all vestiges of racial discrimination prior to Douglas, 411 U.S. at 802). Leadbetter would then have to Robinson’s hiring, and the University’s chief affirmative had shown that Gilley’s proffered reasons were pretextual by action officer asserted that the University never approved race showing that they: (1) had no basis in fact; (2) did not actually as a “plus factor” or positive factor in employment decisions, motivate Gilley’s decision; (3) were not sufficient to warrant one could conclude that Gilley’s consideration of Robinson’s Gilley’s hiring decision. Dews v. A.B. Dick Co., 231 F.3d race demonstrates “background circumstances [to] support the 1016, 1021 (6th Cir. 2000). suspicion” that Gilley discriminates against whites. Sutherland, 344 F.3d at 614-15. Leadbetter tried to show that Gilley’s reasons for hiring Mizell had no basis in fact by arguing that Mizell had Be this as it may, Leadbetter never applied to be Equity and absolutely no litigation experience. In Leadbetter’s view, Diversity Administrator or Vice President of Equity and Mizell had no litigation experience because she did not take Diversity. He tries to overcome this problem by arguing that depositions and did not make court appearances. Leadbetter his failure to apply should be excused because he had no has a self-serving and narrow view of the phrase “litigation opportunity to do so. This Circuit has recognized that in experience.” Mizell’s management of the General Counsel certain situations it is not necessary for a Title VII plaintiff to staff, oversight of attorneys’ work, and authorship of the apply for a position in order to assert a claim. Wanger v. G.A. University’s only successful petition for certiorari to the Gray Co., 872 F.2d 142 (6th Cir.1989); Nguyen v. City of United States Supreme Court are very significant litigation Cleveland, 229 F.3d 559, 564 (6th Cir. 2000). In Nguyen, the experience, even if the experience was not earned in court. Court held that a plaintiff failed to satisfy Wanger’s lenient Leadbetter claimed that Mizell’s qualifications did not application requirement. In that case, the plaintiff did not actually motivate Gilley’s decision to hire her since Gilley submit authority showing that the City was required to post a made up his mind to hire Mizell as soon as he heard that position and he offered no support for his claim that “the Brogan was retiring. While it appears that Gilley was record is clear that [he] would have applied had he known of interested in immediately naming Mizell as Brogan’s the posting.” Because the plaintiff pointed to no evidence successor once he learned of Brogan’s intended retirement, demonstrating that he showed more than a general interest in Gilley wanted to do this because Mizell was qualified, the position and pointed to no evidence supporting his competent, and could hit the ground running. Thus, Gilley assertion that his application for the position would have been had legitimate nondiscriminatory reasons for hiring Mizell. fruitless2, the Court held that the plaintiff failed to demonstrate a prima facie case as to his nonpromotion and B. Leadbetter’s Reverse Race Discrimination Claim affirmed the district court’s grant of summary judgment. Nguyen, 229 F.3d at 564. Gilley believed that by naming Robinson Equity and Diversity Administrator and then giving Robinson the title of Vice President of Equity and Diversity, he was lawfully attempting to remedy the under-representation of blacks in the 2 University’s administration pursuant to the University’s A plaintiff’s failure to apply can be excused as “fruitless” if, for settlement in Geier. This makes it clear that Robinson’s race instance, a defendant had a “whites o nly” job req uirement. See Int’l was a positive factor in Gilley’s selection. Since Associate Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (197 7).

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While Gilley and Leadbetter dispute whether the University show that Robinson and Leadbetter were not similarly was required to advertise the positions Robinson secured and situated. Pierce, 40 F.3d at 8024. whether the positions were even vacancies3, Leadbetter has clearly failed to show that he would have applied had he CONCLUSION known of the position. At best, Leadbetter states that he might have been interested in becoming Equity and Diversity For the foregoing reasons, the district court’s decision is Administrator if he could have been paid more than the AFFIRMED. $55,000 Robinson earned in that capacity. This is a statement of general interest, it is not evidence that Leadbetter would have applied for the position. Furthermore, Leadbetter offers no evidence to show that the University had a blacks only hiring requirement that would have made his failure to apply fruitless. In addition to his failure to apply, Leadbetter fails to show that he and Robinson were similarly situated candidates for the position of Vice President of Equity and Diversity. The bulk of the vice president’s responsibilities were those that Robinson had performed during his eight months as Equity and Diversity Administrator. As such, Robinson had actual experience performing the vice president’s duties. Leadbetter lacked that experience. This critical difference is enough to

3 Gilley argues that the University policy did not ordinarily consider a change in job title as a result of expansion of existing responsibilities, or the a ssump tion of additional duties, to be a vaca ncy. See Gilley’s Br. at p.51 . Since R obinson was merely given a new title and additional responsib ilities, Gilley contend s that Robinso n’s position was never a vacancy and the U niversity, therefore, was not required to advertise the position. Lead better argues that the U niversity policy allowed G illey to transfer Rob inson amo ng departments, but the University had no express policy regarding the reorganization G illey engineered. In Lead better’s opinion, Gilley’s reorganization created a new position—V ice President 4 of Equity and Diversity— and a vacancy. W hatever the case may be, Due to the fact that Leadbetter failed to establish a prima facie case resolution of this issue is unnecessary since L eadbetter never applied to of discrimination, the Court need not consider q ualified im munity or any fill the vice presidency. additional issues.