Jones v. Barnhart

Citation349 F.3d 1260
Decision Date20 November 2003
Docket NumberNo. 02-3355.,02-3355.
PartiesLisa Y. JONES, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Steven D. Steinhilber, The Accurso Law Firm, Kansas City, Missouri for the Plaintiff-Appellant.

Christopher Allman, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, Kansas for the Defendant-Appellee.

Before KELLY, LUCERO, and McKAY, Circuit Judges.

LUCERO, Circuit Judge.

Lisa Jones brought this suit against her former employer, the Social Security Administration ("SSA"), alleging that its failure to promote her was based on racial discrimination, that the SSA was a racially hostile work environment, that the SSA retaliated against her for being outspoken on racial issues and filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), and that she was constructively discharged, all in violation of Title VII, 42 U.S.C. § 2000e et seq. In response to the SSA's motion for summary judgment, Jones moved to strike the SSA's declarations in support of its summary judgment motion. The district court granted summary judgment in favor of the SSA on the Title VII claims and denied Jones' motion to strike. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Lisa Jones, an African-American woman, began working at the Kansas City, Kansas, Office of Hearings and Appeals ("KCK/OHA"), a division of the SSA, in 1990. Having started as a hearing clerk, by 1997 she had been promoted to a legal assistant position for Administrative Law Judge ("ALJ") Keith Sickendick. In 1997, Jones applied for a promotion to a paralegal-specialist position, three of which became available that year. A temporary position slated to last for approximately one year, the job involved drafting opinions for ALJs.

Defined by the 1996 collective bargaining agreement with the American Federation of Government Employees, the somewhat complicated application process for the available positions required applications to be screened initially by a four-person assessment panel. Using a scoring system based on criteria established by the SSA's national office, the assessment panel evaluated the applications, scored them, and compiled a "well-qualified" list based on the scores. Applications were awarded points based on formal education, in-house training, awards, communication skills, medical knowledge, legal knowledge, and SSA program knowledge. When Jones applied for the paralegal-specialist position, fourteen applicants were selected for the well-qualified list; Jones tied for the sixth highest score among the fourteen. The six applicants whose scores were above or equivalent to Jones' score were Caucasian.

After the initial screening process, the panel sent the list of well-qualified applicants to Bruce Haydon, the Supervisory Attorney Advisor, in alphabetical order and without the scores listed. Under the terms of the most recent collective bargaining agreement, Haydon was required to use his judgment to select the individuals who he thought best suited KCK/OHA's needs rather than to automatically select applicants on the basis of the scores given by the assessment panel.1

Haydon interviewed and evaluated each of the candidates, his evaluations focusing on their abilities to "get up to speed" in the new positions (3 R. at A0252), to interact with the ALJs for whom they would be writing opinions, and to draft the actual opinions. Based on his evaluations, Haydon selected Paula Florance, Janet Bayless, and Barbara Raposa for promotion to the paralegal-specialist positions. Each successful applicant had received a lower score than Jones from the assessment panel; each was a Caucasian woman. Upon discovering that she had not been offered one of the openings, Jones filed a racial discrimination complaint with the EEOC, alleging that the SSA's failure to promote her was due to race.

Jones claims that a number of incidents occurred shortly thereafter, the totality of which caused the KCK/OHA to become a racially hostile work environment. Following the filing of her complaint, Jones perceived that her assignments became larger and more complex than those given to white employees, and that they often reflected struggles that she faced in her personal life or contained language that she deemed racially offensive.

Jones also points to specific incidents as evidence of racial hostility. ALJ Sickendick, Jones' former supervisor, used the phrase "black and white" during an impromptu meeting near Jones' desk to describe the clarity of a written notice, which Jones perceived as an attempt to intimidate her. In a separate incident, Haydon brought a package of cupcakes featuring African-American and Caucasian Barbie Doll characters in honor of the birthday of an employee named Barbara and presented Jones with a cupcake featuring an African-American Barbie Doll. Finally, Bayless bought a pre-manufactured goodbye card depicting Caucasian workers seated in an office and gave it to Jones when she left her employment. In December 1999, Jones gave notice to the SSA that she was voluntarily resigning; she ultimately left the SSA and returned to her former job in the military.

In district court, Jones brought claims under Title VII, 42 U.S.C. § 2000e et seq. alleging failure-to-promote, hostile work environment, retaliation, and constructive discharge. The SSA moved for summary judgment, and Jones moved to strike five of defendant's declarations submitted in support of summary judgment. Granting summary judgment to the SSA, the district court found that Jones failed to (1) present evidence sufficient to establish pretext on her failure-to-promote claim; (2) allege sufficient facts to support the inference of a hostile work environment; and (3) establish an adverse employment action with respect to a retaliation claim. The district court implicitly rejected the constructive discharge claim and denied Jones' motion to strike defendant's declarations. Jones appeals this judgment.

II

We review a summary judgment grant de novo and apply the same legal standard used by the district court. McCowan v. All Star Maint., Inc., 273 F.3d 917, 921 (10th Cir.2001). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). In conducting our review, "[w]e must draw all inferences in favor of the party opposing summary judgment." O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir.1999). We recognize that at the summary judgment stage "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195 (10th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In this procedural posture, therefore, "our role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Id.

A

Under the familiar three-step allocation of burdens of proof mandated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff alleging a failure-to-promote claim must initially establish a prima facie case, demonstrating that: (1) she was a member of a protected class; (2) she applied for and was qualified for the position; (3) despite being qualified she was rejected; and (4) after she was rejected, the position was filled. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000). If the plaintiff carries her burden of establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment action. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002). This shifts the burden back to the plaintiff to proffer evidence that the employer's reason is pretextual. Id.

It is undisputed that Jones has established a prima facie case of race discrimination on her failure-to-promote claim. Her initial burden satisfied, the SSA must then provide a legitimate, nondiscriminatory reason for failing to promote Jones. At this stage, the SSA is required only to "explain its actions against the plaintiff in terms that are not facially prohibited by Title VII." EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1317 (10th Cir.1992). Indeed, the SSA satisfies this step by asserting non-discriminatory reasons for hiring the successful applicants rather than Jones. Specifically, Haydon considered each of the successful applicants to be more likely to acclimate quickly to the duties of the new position and better able to interact with the ALJs for whom they would work. In addition, the position required the ability to draft decisions, and there is evidence that Jones was not a skilled writer.2 Because these reasons are not "facially prohibited by Title VII," Flasher, 986 F.2d at 1317, we conclude that the SSA has articulated a legitimate, nondiscriminatory reason for failing to promote Jones and has satisfied its burden.

Thus, we proceed to the third step of the McDonnell Douglas framework. Jones is required at this stage to counter the SSA's articulated non-discriminatory reasons for failing to promote her with specific facts showing that the SSA's reasons for its decision are pretextual or racially motivated. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir.1999). Summary judgment in favor of the SSA is warranted only if Jones has "failed to produce any evidence from which a reasonable inference could be...

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