Ronald C. Leadbetter v. J. Wade Gilley

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

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No. 02-6360 Leadbetter v. Gilley 3
immediate eligibility for, the Tennessee State Bar; (3) a
minimum of fifteen years of legal practice experience, at
least ten of which must have been as full-time, in-house
counsel for a multi-campus, public institution of higher
education; (4) experience in transactional matters and
civil litigation; (5) strong analytical skills and (6)
understanding of and commitment to affirmative action
and to achieving the University’s affirmative action
objectives.
The search was conducted exclusively by University
Trustee Roger Dickson. Dickson forwarded the names of
candidates he believed to be most qualified for the position.
One of the candidates on Dickson’s list was associate general
counsel Ronald Leadbetter. Other than the fact that
Leadbetter was an associate with the general counsel’s office
who oversaw some litigation at the University of Tennessee’s
Memphis campus, there is little information in the parties’
briefs concerning Leadbetter’s credentials.
Deputy General Counsel Mizell was another candidate
whose name appeared on Dickson’s list. Mizell had been
promoted over Leadbetter six years prior to Brogan’s
retirement. She was a former editor-in-chief of the University
of Tennessee Law Review and she met all of the job
requirements for General Counsel. In her fifteen years at the
University, she managed the General Counsel’s staff and
budget, reviewed other attorneys’ work, and handled the
University’s most complex legal issues—including a $225
million transfer of the University’s hospital to a not-for-profit
organization. Additionally, Mizell was recommended by
General Counsel Brogan, former President Joseph E. Johnson,
and the three highest-ranking administrators at the University.
Brogan did not recommend Leadbetter for the general counsel
position because Brogan felt that Leadbetter lacked the
necessary academic background, management skills, and
analytical tools.
4 Leadbetter v. Gilley No. 02-6360
Gilley interviewed Mizell and Leadbetter for the position
of Vice President and General Counsel. Gilley interviewed
Mizell twice and Leadbetter once. According to Leadbetter,
it was clear to him from the outset of the 15-minute interview
that Gilley was not interested in his qualifications for the
position since the interview involved little more than
“chit-chat” unrelated to Leadbetter’s credentials.
On December 14, 1999, Gilley met with Leadbetter. Gilley
stated that he had spoken to the administrative staff and the
staff had advised him that either Leadbetter or Mizell could
do the job. Nevertheless, Gilley told Leadbetter that he
decided to recommend Mizell to the Board of Trustees. On
December 20, 1999, the Board of Trustees’ Executive
Committee unanimously elected her Vice President, General
Counsel, and Secretary.
Following his decision to hire Mizell, Gilley attempted to
address budgetary woes by streamlining and restructuring of
the University’s administration. One of the new job titles
created via the restructuring was Equity and Diversity
Administrator. The job paid $35,000 less than Leadbetter
was earning as Associate General Counsel.
Gilley believed that experience in race relations and a
commitment to diversity and civil rights were important
qualities for the Equity and Diversity Administrator position.
Theotis Robinson, an administrative aide in the University’s
Governmental Relations Office, had those qualities.
Although Robinson did not have a bachelor’s degree, he was
a member of the Knoxville City Council, served as the
University’s liaison to the Legislative Black Caucus in
Nashville, acted as an informal government liaison to the City
of Knoxville and Knox County governments, co-chaired an
organization of African-American and Caucasian community
leaders, and advised the University on issues important to
state and local African-American political leaders.

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No. 02-6360 Leadbetter v. Gilley 5
1The University had been involved in long standing desegregation
litigation which resulted in a judicial finding of de jure racial segregation
of public higher education in Tennessee, including at the University. After
a challenge was raised to the dual system of higher education in
Tennessee, the State of Tennessee, including the University, was ordered
by the District Court for the M iddle District o f Tennessee to submit a
“plan designed to effect such desegregation of the higher educational
institutions of Tennessee.” Sanders v. Ellington, 288 F.Supp. 937, 942
(M.D .Tenn.1968 ). The University entered into a stipulation of settlement
which was ap proved by the district court and this Court alike. See Geier
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.
Gilley needed an Equity and Diversity Administrator who
could advise him directly on relations with African-American
students, faculty, administrators, and local leaders. In
Gilley’s estimation, Robinson was the best candidate for the
position. Thus, Gilley assigned Robinson the job. Leadbetter
claimed he was unaware that Gilley had appointed Robinson
to the position of Equity and Diversity Administrator until
after the appointment was announced. While he learned that
Robinson would be promoted to the staff vice president level
before the promotion was finalized, Leadbetter did not apply
for the position—one that paid $11,400 less than he was
earning as an associate general counsel—because Leadbetter
was not invited to do so. It was Leadbetter’s understanding
that Robinson would be recommended for appointment to
Vice President without the position being advertised or
candidates solicited, all purportedly in violation of the
University’s employment policies and procedures, the
University’s affirmative action program and the stipulation of
settlement set forth in Geier v. Alexander, 593 F.Supp. 1263
(M.D.Tenn.1984)1.
Leadbetter believed that any under-representation of
African-Americans in the University-Wide Administration
(the “UWA”) administrator classifications in 1999 or 2000
was not due to racial discrimination. Thus, he thought that
Gilley’s use of race in addressing under- representation was
unconstitutional.
6 Leadbetter v. Gilley No. 02-6360
On November 30, 2000, Leadbetter filed a reverse gender
and race discrimination action against Gilley under 42 U.S.C.
§§ 1981 and 1983, the Fourteenth Amendment of the United
States Constitution, and the Tennessee Human Rights Act,
TENN. CODE ANN. § 4-21-101, et seq. Leadbetter claimed
that from the time Gilley was employed, Gilley repeatedly
articulated his intent to hire and promote women and
minorities. Gilley would describe the promotion system at
the University as sort of “inbreeding” for the promotion of
white males, but used the phrase “natural chain of
progression” when a woman was promoted. He insisted that
search committees seek out women and minorities for
University jobs.
According to Leadbetter, Gilley requested a job description
to be prepared for the Vice President, General Counsel, and
Secretary position which specifically favored Mizell and
limited or excluded any serious competition. Leadbetter also
asserted that the appointment of a search committee
composed of a single person—Roger Dickson—was
unprecedented at the University for a high level position and
that Dickson’s appointment fell outside the University’s
pattern and practice of appointing minorities and women to
search committees. Furthermore, Leadbetter claimed that
Mizell failed to adequately specify lease payments when she
created the agreement transferring the University Hospital and
that a minimal investigation of Mizell’s credentials would
have revealed that she had minimal trial experience.
As to Robinson, Leadbetter stated that Gilley did not
advertise the position of Equity and Diversity Administrator
prior to Robinson’s appointment and did not consider any
other candidates for the position because Gilley intended for
Robinson to have the position because Robinson was African-
American. Leadbetter claimed that Gilley selected the
bachelor degree-less Robinson over a number of qualified
individuals who were already in the “natural chain of
progression” including white employees Sarah Phillips and
Jennifer Richter. According to Leadbetter, Gilley would not

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No. 02-6360 Leadbetter v. Gilley 7
have promoted any white male lacking a college degree to the
position of Equity and Diversity Administrator.
Gilley ultimately moved for summary judgment.
According to Gilley, Leadbetter was not in any way within
his contemplation when he named Robinson as one of five
staff vice presidents in August 2000 for several reasons. The
additional responsibilities added at the time (oversight for
affirmative action offices in Memphis and Tullahoma,
Tennessee) were a small incremental addition to Robinson’s
existing position. There was no “vacancy” and no other
“candidate” because Robinson was already performing the
large majority of the job. Gilley claimed there was no reason
for him to consider Leadbetter for a staff vice president job
because Leadbetter was not on the president’s staff whereas
Robinson was. Leadbetter did not inform Gilley that he was
interested in a diversity/affirmative action position, even after
Gilley had appointed Robinson to the Equity and Diversity
Administrator position. Moreover, Gilley had no reason to
believe that Leadbetter would be interested in a position
paying $11,400 less than Leadbetter was making at the time.
Gilley further asserted that he reasonably believed that the
assignment of responsibilities as Equity and Diversity
Administrator and Vice President of Equity and Diversity to
Robinson was a lawful and permissible affirmative action
decision consistent with the objectives of the stipulation of
settlement entered in Geier. According to Gilley, since the
entry of the stipulation of settlement, the district court has not
found that the University fully satisfied its constitutional duty
under the Equal Protection Clause to dismantle the former de
jure system of segregation.
Gilley stated that pursuant to the Geier stipulation, the
University submitted certain desegregation goals to the
district court. The positions of Equity and Diversity
Administrator and Vice President for Equity and Diversity
fell within the UWA. According to Gilley, in 1999 and 2000,
the UWA had a substantial under-representation of
8 Leadbetter v. Gilley No. 02-6360
African-Americans in the administrator classification. Gilley
stated that he was aware of the substantial under-
representation of African-Americans in the UWA positions
and based his decisions regarding the responsibilities assigned
to Robinson, and the resulting title changes, in part, upon the
fact that the decisions were consistent with the objectives of
the Geier settlement. Gilley asserted that he believed that the
consideration of race was allowable in assigning these
affirmative action responsibilities to Robinson, was lawful
under the Geier settlement and consistent with the
University's duty under the Equal Protection Clause of the
Fourteenth Amendment to take remedial steps to dismantle
the former de jure segregated system of public higher
education.
The district court granted Gilley’s summary judgment
motion, concluding that Leadbetter failed to establish a prima
facie case of reverse gender or race discrimination. The
district court also found that Gilley was entitled to qualified
immunity. Leadbetter timely appealed the district court’s
decision.
II. STANDARD OF REVIEW
The Court reviews a district court’s grant of summary
judgment de novo. Williams v. Gen’l Motors Corp., 187 F.3d
553, 560 (6th Cir.1999). To grant a motion for summary
judgment, a court must find that the pleadings, together with
the depositions, interrogatories and affidavits on file, establish
that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56.
The party that seeks summary judgment bears the initial
burden of specifying the basis upon which it contends
judgment should be granted and of identifying that portion of
the record which, in its opinion, demonstrates the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

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No. 02-6360 Leadbetter v. Gilley 9
Thus, summary judgment should be granted only where there
is no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). Once a movant satisfies its burden, the
nonmoving party must produce specific facts demonstrating
a genuine issue of fact for trial if it is to withstand summary
judgment. Id. 477 U.S. 247-48, 106 S.Ct. 2509-10. “The
mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Id.
477 U.S. at 252, 106 S.Ct. at 2512.
III. ANALYSIS
To establish a prima facie discrimination claim, a plaintiff
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
was considered for and denied the promotion; and (4) other
employees of similar qualifications who were not members of
the protected class received promotions. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973); Sutherland v. Michigan Dept. of Treasury, 344 F.3d
603, 614 (6th Cir. 2003)(citation omitted). The Sixth Circuit
has adapted this four-prong test to cases of reverse
discrimination, where a member of the majority is claiming
discrimination. Sutherland, 344 F.3d at 614-15 (6th Cir.
2003); Pierce v. Commonwealth Life Ins., 40 F.3d 796, 801
(6th Cir.1994). In such cases, a plaintiff satisfies the first
prong of the prima facie case by “demonstrat[ing]
‘background circumstances [to] support the suspicion that the
defendant is that unusual employer who discriminates against
the majority.’” Id. (citations omitted). To satisfy the fourth
prong in a reverse-discrimination case, the plaintiff must
show that the defendant treated differently employees who
were similarly situated but were not members of the protected
class. Id.
Once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to offer a legitimate,
10 Leadbetter v. Gilley No. 02-6360
non-discriminatory reason for the adverse employment action
at issue. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817)). If the
defendant meets this burden, the burden of production shifts
back to the plaintiff to demonstrate that the proffered reason
is a pretext. Id. When the burden shifts back to the plaintiff,
the plaintiff must come forward with evidence that the
defendant’s reason for the employment action is false.
Sutherland, 344 F.3d at 615 (6th Cir. 2003). “[A] plaintiff’s
prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit”
a finding of unlawful discrimination. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000).
A. Leadbetter’s Reverse Gender Discrimination Claim
There is no dispute that Leadbetter sought and was
qualified for the General Counsel position. However, the
district court found that Leadbetter failed to establish a prima
facie case of discrimination because he did not show that
Gilley was the unusual employer who discriminates against
men and because he failed to show that Gilley treated
differently employees who were similarly situated but were
not members of the protected class. Leadbetter claims the
district court erred in both respects.
Leadbetter contends that the district court improperly
credited Gilley’s witnesses “on all contested points” and
disproportionately relied on evidence favorable to Gilley.
Leadbetter also contends that “[a]lthough there is no direct
evidence Gilley discriminated against [him] on the basis of
. . . gender, there is ample direct evidence of Gilley’s
discriminatory animus in favor of women . . . .” Specifically,
Leadbetter contends that Gilley’s claim in an e-mail that
women are more efficient than men and his use of the term
“inbreeding” to describe the advancement of white males at
the University and “natural chain of progression” to describe

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No. 02-6360 Leadbetter v. Gilley 11
female and minority advancement indicates gender animus.
Furthermore, Leadbetter argues that Gilley’s animus could be
inferred from a statement he made during a search for a Dean
of Students position where Gilley said that there are women
and minorities out there, “go find one.”
If the Court were to assume, for the sake of argument, that
Leadbetter presented sufficient evidence to raise an inference
of gender bias, Leadbetter’s gender discrimination claim still
fails. “In order for two or more employees to be considered
similarly-situated for purposes of creating an inference of
disparate treatment in a [reverse discrimination case], the
plaintiff must prove that all of the relevant aspects of his
employment situation are ‘nearly identical’ to those of the
[female employee] who he alleges [was] treated more
favorably.” Pierce, 40 F.3d at 802. The similarities between
the plaintiff and the female employee must exist “in all
relevant aspects of their respective employment
circumstances.” Id. Differences in job title, responsibilities,
experience, and work record can be used to determine
whether two employees are similarly situated. Id.
The minimum qualifications for the University’s General
Counsel position were: (1) J.D. or L.L.B. from an accredited
law school; (2) admission to, or immediate eligibility for, the
Tennessee State Bar; (3) a minimum of fifteen years of legal
practice experience, at least ten of which must have been as
full-time, in-house counsel for a multi-campus, public
institution of higher education; (4) experience in transactional
matters and civil litigation; (5) strong analytical skills and (6)
understanding of and commitment to affirmative action and
to achieving the University’s affirmative action objectives.
Although Leadbetter claimed that Gilley had Dickson “tailor”
these requirements to favor Mizell, Leadbetter offered the
district court no evidence to substantiate his assertion.
Similarly, Leadbetter presents no evidence on appeal to
suggest that Dickson skewed the job posting to benefit Mizell.
Because there is no evidence to show that the job posting was
12 Leadbetter v. Gilley No. 02-6360
tainted, the Court moves on to compare the relative
qualifications of Mizell and Leadbetter.
Mizell met all of the job requirements for General Counsel.
She served as Brogan’s “top assistant,” having been promoted
over Leadbetter six years prior to Brogan’s retirement. She
managed the General Counsel’s staff and budget, reviewed
other attorneys’ work, and handled the most complex legal
issues facing the University (i.e. the $225 million transfer of
the University’s hospital to a not-for-profit organization).
Mizell was also recommended by the University’s president,
three top administrators, Dickson—the University’s one-
person search committee for the General Counsel spot, and
Brogan—the outgoing General Counsel who supervised
Mizell and Leadbetter for many years. In Dickson’s opinion,
Mizell was the “one candidate who stands above the others”
and who was “uniquely qualified.”
Leadbetter held a lower position than Mizell at the General
Counsel’s Office, and he had no experience as chief legal
officer or first assistant to the chief. He had no experience
working with the governing board of a multi-campus public
university, and his academic credentials did not match
Mizell’s academic achievements. Furthermore, he had been
removed from responsibility for the Memphis litigation
following a series of mishaps that included inadequate
preparation and the presentation of perjured testimony.
As these facts show, Leadbetter was not similarly situated
to Mizell. Mizell was a better candidate in terms of academic
achievement, experience, and work record. She had superior
experience managing the General Counsel’s office, and she
alone was recommended by the University’s top brass. Thus,
Mizell and Leadbetter were not similarly situated.
Even if Leadbetter had shown that he and Mizell were
similarly situated, his discrimination claim still would fail. If
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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No. 02-6360 Leadbetter v. Gilley 13
nondiscriminatory reason for not hiring him as General
Counsel. Burdine, 450 U.S. at 253 (citing McDonnell
Douglas, 411 U.S. at 802). Leadbetter would then have to
had shown that Gilley’s proffered reasons were pretextual by
showing that they: (1) had no basis in fact; (2) did not actually
motivate Gilley’s decision; (3) were not sufficient to warrant
Gilley’s hiring decision. Dews v. A.B. Dick Co., 231 F.3d
1016, 1021 (6th Cir. 2000).
Leadbetter tried to show that Gilley’s reasons for hiring
Mizell had no basis in fact by arguing that Mizell had
absolutely no litigation experience. In Leadbetter’s view,
Mizell had no litigation experience because she did not take
depositions and did not make court appearances. Leadbetter
has a self-serving and narrow view of the phrase “litigation
experience.” Mizell’s management of the General Counsel
staff, oversight of attorneys’ work, and authorship of the
University’s only successful petition for certiorari to the
United States Supreme Court are very significant litigation
experience, even if the experience was not earned in court.
Leadbetter claimed that Mizell’s qualifications did not
actually motivate Gilley’s decision to hire her since Gilley
made up his mind to hire Mizell as soon as he heard that
Brogan was retiring. While it appears that Gilley was
interested in immediately naming Mizell as Brogan’s
successor once he learned of Brogan’s intended retirement,
Gilley wanted to do this because Mizell was qualified,
competent, and could hit the ground running. Thus, Gilley
had legitimate nondiscriminatory reasons for hiring Mizell.
B. Leadbetter’s Reverse Race Discrimination Claim
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
University’s administration pursuant to the University’s
settlement in Geier. This makes it clear that Robinson’s race
was a positive factor in Gilley’s selection. Since Associate
14 Leadbetter v. Gilley No. 02-6360
2A plaintiff’s failure to apply can be excused as “fruitless” if, for
instance, a defendant had a “whites o nly” job req uirement. See Int’l
Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843,
52 L.Ed.2d 396 (197 7).
Vice President Robert Levy testified that the University had
eliminated all vestiges of racial discrimination prior to
Robinson’s hiring, and the University’s chief affirmative
action officer asserted that the University never approved race
as a “plus factor” or positive factor in employment decisions,
one could conclude that Gilley’s consideration of Robinson’s
race demonstrates “background circumstances [to] support the
suspicion” that Gilley discriminates against whites.
Sutherland, 344 F.3d at 614-15.
Be this as it may, Leadbetter never applied to be Equity and
Diversity Administrator or Vice President of Equity and
Diversity. He tries to overcome this problem by arguing that
his failure to apply should be excused because he had no
opportunity to do so. This Circuit has recognized that in
certain situations it is not necessary for a Title VII plaintiff to
apply for a position in order to assert a claim. Wanger v. G.A.
Gray Co., 872 F.2d 142 (6th Cir.1989); Nguyen v. City of
Cleveland, 229 F.3d 559, 564 (6th Cir. 2000). In Nguyen, the
Court held that a plaintiff failed to satisfy Wanger’s lenient
application requirement. In that case, the plaintiff did not
submit authority showing that the City was required to post a
position and he offered no support for his claim that “the
record is clear that [he] would have applied had he known of
the posting.” Because the plaintiff pointed to no evidence
demonstrating that he showed more than a general interest in
the position and pointed to no evidence supporting his
assertion that his application for the position would have been
fruitless2, the Court held that the plaintiff failed to
demonstrate a prima facie case as to his nonpromotion and
affirmed the district court’s grant of summary judgment.
Nguyen, 229 F.3d at 564.

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No. 02-6360 Leadbetter v. Gilley 15
3Gilley argues that the University policy did not ordinarily consider
a change in job title as a result of expansion of existing responsibilities,
or the assump 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
responsibilities, Gilley contends 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
of Equity and Diversity—and a vacancy. W hatever the case may be,
resolution of this issue is unnecessary since Leadbetter never applied to
fill the vice presidency.
While Gilley and Leadbetter dispute whether the University
was required to advertise the positions Robinson secured and
whether the positions were even vacancies3, Leadbetter has
clearly failed to show that he would have applied had he
known of the position. At best, Leadbetter states that he
might have been interested in becoming Equity and Diversity
Administrator if he could have been paid more than the
$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
16 Leadbetter v. Gilley No. 02-6360
4Due to the fact that Leadbetter failed to establish a prima facie case
of discrimination, the Court need not consider qualified im munity or any
additional issues.
show that Robinson and Leadbetter were not similarly
situated. Pierce, 40 F.3d at 8024.
CONCLUSION
For the foregoing reasons, the district court’s decision is
AFFIRMED.

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