Conroy v. Vilsack

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation707 F.3d 1163
Docket NumberNo. 11–4091.,11–4091.
PartiesLaura CONROY, Plaintiff–Appellant, v. Thomas VILSACK, Secretary of Agriculture, United States Department of Agriculture, Defendant–Appellee.
Decision Date11 February 2013

707 F.3d 1163

Laura CONROY, Plaintiff–Appellant,
v.
Thomas VILSACK, Secretary of Agriculture, United States Department of Agriculture, Defendant–Appellee.

No. 11–4091.

United States Court of Appeals,
Tenth Circuit.

Feb. 11, 2013.


[707 F.3d 1165]


April Hollingsworth of Hollingsworth Law Office, LLC (Erik Strindberg of Strindberg & Scholnick, LLC, with her on the briefs), Salt Lake City, UT, for Plaintiff–Appellant.

Benjamin M. Shultz, United States Department of Justice, Civil Division, Washington, D.C. (Tony West, Assistant Attorney General, Washington D.C.; David B. Barlow, United States Attorney, Salt Lake City, UT; Marleigh D. Dover, United States Department of Justice, Civil Division, Washington, D.C., with him on the brief), for Defendant–Appellee.


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Laura Conroy filed this Title VII lawsuit against her employer, the United States Forest Service, after it (among other things) filled an open position with a male employee, instead of her. The district court excluded the testimony of Ms. Conroy's two experts and granted summary judgment to the Forest Service. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

The Forest Service, an agency within the Department of Agriculture, manages the national forests. It is divided into nine geographical regions, and since 1991, Ms. Conroy has been employed with Region 4 (also known as the Intermountain Region) in Ogden, Utah. She began as a GS–9 “Computer Programmer Analyst” and, by 1995, had progressed to a GS–12 “Computer Specialist.” As part of her job description, she served as a programming and

[707 F.3d 1166]

technical expert for certain database systems and as the regional coordinator for a Forest Service database known as “INFRA.”

INFRA was originally designed in the mid–1990s to help keep track of Forest Service infrastructure like roads, bridges, buildings, and dams. It was later expanded to include other forms of data, including financial data. Agency personnel use INFRA to establish land management policies and to make fiscal, contracting, and permitting decisions.

In spring 2001, Region 4 management advertised an opening for a new position called “INFRA Program Manager.” At the time, two other regions had filled a similar position. One region had filled the job in the “administrative” series, which did not require a college degree, while the other region had filled it in the “professional” series, which required either a college degree or equivalent professional experience. Region 4 advertised the position in both series—a so-called “interchangeable” listing. The advertisement noted, among other things, that “[c]omprehensive knowledge and skills in ORACLE, SQL, and PC spreadsheet and database software” were required. Aplt.App. at 850 (INFRA Program Manager Job Description, filed Feb. 9, 2009).

Ms. Conroy did not have a college degree. She applied for the INFRA Program Manager position in the administrative series. She was found to be qualified, and her name, along with that of one other qualified applicant, was passed on to Larry Larson, the head of the group where the new position would be located. Mr. Larson, however, decided to readvertise the position. He would later explain that his reason for doing so was to broaden the pool of applicants.

A revised announcement was issued in fall 2001. Among other things, it modified the job requirement noted above, replacing the words “[c]omprehensive knowledge and skills in” with simply “[k]nowledge of.” Id. at 846 (Position Description Correction Notice, filed Feb. 9, 2009). The new advertisement drew interest from a greater number of applicants, and four were certified as sufficiently qualified for the position. Ms. Conroy was certified under the administrative announcement, and three others were certified under the professional announcement. Among the latter three candidates was Daniel Hager, who had not applied when the position was originally advertised in the spring.

The candidates' applications were submitted to a peer advisory panel consisting of five individuals: (1) Jack McDonald, who had drafted the vacancy announcement; (2) Terry Padilla, (3) Mary Jean Brackmann, and (4) Cary Williams, each of whom was from a different department of the Forest Service; and (5) Tamara Hanan, who served as management's representative on the panel. The panel's task was to evaluate the candidates using criteria known as “Knowledge, Skills, and Abilities,” or “KSAs,” and then to make recommendations to a selecting official, who would make the ultimate hiring decision.1

[707 F.3d 1167]

After evaluating the four candidates, the panel recommended Mr. Hager for the position. The selecting official, Chris Pyron, followed the recommendation and hired Mr. Hager. Shortly thereafter, in March 2002, Ms. Conroy filed a formal grievance with the agency, alleging age and sex discrimination.

In 2003, Mr. Hager left the INFRA Program Manager position, and the position was readvertised in February 2004. An intervening change in Forest Service policy prohibited interchangeable listings, so the position was advertised solely in the professional series. See id. at 676 (Memo, dated June 20, 2002) (“Effective immediately no new positions may be announced as interchangeable positions.”). Although Ms. Conroy applied again, she was deemed not qualified, and management ultimately selected Andrea Gehrke. Ms. Conroy filed a second formal grievance, alleging that the decision to advertise the position solely in the professional series was made in order to retaliate against her for filing the first grievance in 2002.

After exhausting administrative remedies, Ms. Conroy filed suit in federal district court pursuant to Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e–17. She asserted various individual and class claims arising out of the agency's 2001 and 2004 hiring decisions. The district court dismissed the class claims, and discovery commenced on the individual sex discrimination and retaliation claims. The Forest Service later moved for summary judgment.

The district court granted the Forest Service's motion in March 2011. As a threshold matter, the court excluded the testimony of Ms. Conroy's two experts, Dr. Nancy Dodd and Paul Katz. The court found that Dr. Dodd was not qualified to testify on “sex stereotyping” because it was beyond the reasonable confines of her expertise, and that Mr. Katz was uninformed and had failed to adequately explain his conclusions regarding the propriety of the agency's 2004 vacancy announcement.

Turning to the merits, the district court construed Ms. Conroy's complaint as raising four claims: (1) a sex discrimination claim arising out of her non-selection in fall 2001; (2) a sex discrimination claim premised on the agency's decision to readvertise the position in spring 2001; (3) a sex discrimination claim pertaining to the agency's 2004 decision not to list the position in the administrative series; and (4) a retaliation claim pertaining to that same 2004 decision. As to her first claim, the court found that Ms. Conroy failed to show that the agency's nondiscriminatory reasons for hiring Mr. Hager were pretextual. The court addressed and rejected the second claim in a footnote, holding that the agency was not required to justify every intermediate step in its hiring process. In a brief paragraph, the court rejected Ms. Conroy's third sex discrimination claim, finding that she failed to show pretext. As to her fourth claim for retaliation, the

[707 F.3d 1168]

court concluded that she failed to prove causation and, in the alternative, pretext.

Ms. Conroy timely appealed.

II

As a threshold matter, we must address Ms. Conroy's contention that the district court erred in excluding the testimony of her experts, Dr. Dodd and Mr. Katz. Federal Rule of Evidence 702 assigns to district courts a gatekeeping function with respect to the admissibility of expert opinions. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.2001). Whether the district court “actually performed its gatekeeper role” and whether it applied the correct legal standard in doing so are questions we review de novo. Frederick v. Swift Transp. Co., 616 F.3d 1074, 1082 (10th Cir.2010). “[T]he manner in which the district court performs this gatekeeping role” is reviewed for an abuse of discretion. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (en banc) (emphasis added). The proponent of expert testimony bears the burden of showing that the testimony is admissible. Id.

A two-part test applies to determine admissibility. First, the district court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” Id. (quoting Fed.R.Evid. 702). Second, the court “must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.” United States v. Rodriguez–Felix, 450 F.3d 1117, 1122 (10th Cir.2006); see also 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.2006) (applying “a two-step analysis”); Ralston, 275 F.3d at 969 (noting that “the district court had to undergo a two-step analysis” in determining the admissibility of an expert's opinion); cf. N. Am. Specialty Ins. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir.2009) (focusing on the admissibility test's second part and recognizing this part itself has two distinct components—reliability, and relevancy, that is, the evidence “must be helpful to the jury”).

We hold that the district court did not abuse its discretion in excluding the expert testimony of Dr. Dodd and Mr. Katz.

A

The district court excluded the testimony of Dr. Dodd at the first step of the two-part test, finding her...

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