Garrison v. Gambro, Inc.

• Decision Date: 08 November 2005
• Docket Number: No. 04-1409.,04-1409.
• Citation: 428 F.3d 933
• Parties: Ann GARRISON; Pamela Bielski; Vicky Dunbar; Teresita Wells; Connie Brady; Sherry Conway; Patricia Erickson, Plaintiffs-Appellants, v. GAMBRO, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

428 F.3d 933

Ann GARRISON; Pamela Bielski; Vicky Dunbar; Teresita Wells; Connie Brady; Sherry Conway; Patricia Erickson, Plaintiffs-Appellants, v. GAMBRO, INC., Defendant-Appellee.

No. 04-1409.

United States Court of Appeals, Tenth Circuit.

November 8, 2005.

Submitted on the briefs:^* John R. Olsen of Olsen & Brown, LLC, Niwot, CO, for Appellants.

Kathleen E. Craigmile of Bennington, Johnson, Biermann & Craigmile, LLC, Denver, CO for Appellees.

Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiffs/appellants Ann Garrison, Pamela Bielski, Vicky Dunbar, Teresita Wells, Connie Brady, Sherry Conway, and Patricia Erickson appeal from summary judgment granted in favor of defendant/appellee Gambro, Inc., on their claims for employment discrimination filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-e17; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634; and the Colorado Anti-Discrimination Act, Colo.Rev.Stat. §§ 24-34-401 to -406. Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude that plaintiffs failed to establish a prima facie case of discrimination or retaliation, we affirm the grant of summary judgment.

I. Standard of Review

Our standard of review is well established.

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. 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 and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.

Although the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. Once the movant carries this burden, the nonmovant cannot rest upon his or her pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which he or she carries the burden of proof. The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is `genuine'; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant.

Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999) (quotation marks, citations, and brackets omitted).

II. Undisputed Facts

The plaintiffs all are women over forty years old who work for Gambro as assemblers of disposable medical products. Prior to November 2001, they worked as assemblers in a medical equipment-manufacturing area with six men and two other women, most of whom were also over forty years old. After the company experienced significant quality-related problems in equipment assembly, Gambro decided to reorganize that area, to make several changes in the manufacturing process (including adding self-inspection duties and intensive formal training by the company's engineers), and to divide the equipment-assembly work into two categories called EQ-1 (with only six positions) and EQ-2. Both new positions had an elevated pay band.

As part of its reorganization plan, Gambro decided to require anyone who wanted to work in either EQ-1 or EQ-2 positions to pass industry-approved, standardized assessment examinations that measure four skills: assembly, inspection, mechanical comprehension, and mechanical dexterity. If the pre-reorganization equipment-assembly employees did not want to take the exam or could not pass all sections of it, Gambro gave them the options of leaving the company with or without a separation package, applying for other jobs within Gambro, or moving to assembly jobs in the medical-disposables assembly area. All of the plaintiffs and most of the other equipment-assembly employees decided to apply for the EQ-1 and/or EQ-2 positions and to take the exam.

At least five of the fifteen former equipment-assembly employees (four men over forty and one woman who was 36) passed all sections of the assessment test and were offered jobs in the EQ-1 and EQ-2 categories. Three women (21, 37, and 39 years old), who were not originally employed in the equipment-manufacturing area, passed all sections of the exam and were also offered jobs in EQ-1. After these hires, the female-to-male ratio in EQ-1 was 4 women and 2 men. Both men were over forty years old. As a result of the total reorganization efforts, equipment-assembly quality dramatically improved.

None of the plaintiffs passed all sections of the skills assessments, and none were offered equipment-assembly jobs. But all of them were offered, and accepted, positions in the medical-disposables assembly area, which they considered to be a demotion in pay grade and an alteration in the terms and conditions of their employment. Plaintiffs contended that they were discriminated against because of their sex and age by being demoted to the disposable-assembly positions and/or not being hired in the EQ-1 positions, and filed complaints with the EEOC. They received right-to-sue letters after the EEOC was "unable to conclude that the information obtained establishes violations of the statutes." Aplt.App. at 24. In their federal complaint, they also claim that Gambro retaliated against them for having asserted their claims, and they allege disparate impact as an alternate theory of discrimination. See id. at 20.

After extensive discovery, Gambro moved for summary judgment, contending that plaintiffs could not establish a prima facie case of discrimination based on age or sex because their failure to pass the mandatory skills assessments precluded qualification for the EQ-1 positions they desired. Alternatively, Gambro asserted that it had a valid, non-discriminatory reason for not placing plaintiffs in the EQ-1 positions — that they did not pass the mandatory assessment tests, and that no evidence supported an inference of pretext or a finding of discrimination. The district court granted summary judgment on this alternate ground.

Gambro presented evidence showing that the assessment testing did not have a disparate impact upon women or individuals over forty years of age and that it hired a greater percentage of female applicants in the position than male applicants. The district court concluded that plaintiffs had failed to make a prima facie showing that the assessment testing disparately affected women. As to the retaliation claim, Gambro asserted, and the district court agreed, that plaintiffs could not show a materially adverse employment action. Plaintiffs appeal, arguing that the district court did not apply proper summary judgment standards to their discrimination and retaliation claims and that they presented sufficient evidence of pretext and disparate impact to survive summary judgment.

III. Analysis

We analyze the age and sex discrimination claims identically. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002) (noting that the three-step analytical framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for disparate-treatment claims brought under Title VII also applies to ADEA claims). Here, the plaintiffs presented no direct evidence of age or sex discrimination, relying instead on the McDonnell Douglas framework of presenting indirect evidence of discrimination.

A. Qualification for the new positions. "In the context of summary judgment, the McDonnell Douglas framework requires a plaintiff to raise a genuine issue of material fact on each element of the prima facie case, as modified to relate to differing factual situations." Rakity v. Dillon Cos., 302 F.3d 1152, 1164 (10th Cir.2002) (quotation marks omitted).

In McDonnell Douglas, the Supreme Court enumerated the elements required in order for a plaintiff to establish a prima facie case in the failure to hire context. These are: (i) plaintiff belongs to a protected class; (ii) plaintiff applied and was qualified for a job for which the employer was seeking applicants; (iii) despite being qualified, the plaintiff was rejected; and (iv) after plaintiff's rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications.

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir.2000) (quotation marks omitted). Thus, plaintiffs first had to establish a prima facie case of discriminatory demotion or failure to hire by showing that they were qualified for the EQ-1 position at issue. Indeed, not being qualified for a job is one of the two "most common nondiscriminatory reasons for [a] plaintiff's rejection." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.2005).

Gambro vigorously contends, both below and on appeal, that plaintiffs did not show they were qualified for the position they sought to fill because they had not successfully passed the mandatory skills assessment test, and therefore could not make a prima facie case of discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. 1089 (noting that, to establish a prima facie case of disparate treatment a "plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination"); E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (noting that, since "plaintiffs lacked the qualifications to be hired . . . they could have...