Green v. New Mexico

• Decision Date: 30 August 2005
• Docket Number: No. 04-2160.,04-2160.
• Citation: 420 F.3d 1189
• Parties: Peggy GREEN, Plaintiff-Appellant, v. State of NEW MEXICO, Department of Labor and Susan Sosaya, Supervisor/VI Examiner II/III Unit, in her individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1189

420 F.3d 1189

Peggy GREEN, Plaintiff-Appellant, v. State of NEW MEXICO, Department of Labor and Susan Sosaya, Supervisor/VI Examiner II/III Unit, in her individual capacity, Defendants-Appellees.

No. 04-2160.

United States Court of Appeals, Tenth Circuit.

August 30, 2005.

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM, appearing for Plaintiff-Appellant.

Gregory Biehler (Marcia E. Lubar on the brief), Beall & Biehler, An Association, Albuquerque, NM, appearing for Defendants-Appellees.

Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Peggy Green sued her former employer, Defendant-Appellee State of New Mexico Department of Labor ("DOL"), and her former supervisor, Susan Sosaya, alleging discriminatory discharge on the basis of sex in violation of (1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; (2) the New Mexico Human Rights Act ("NMHRA"), N.M. Stat. Ann. § 28-1-1 et seq.; and (3) 42 U.S.C. § 1983. The Defendants moved for summary judgment on all claims, Ms. Green responded,¹ and the Defendants replied. After the District Court refused to grant Ms. Green leave to file a written surreply, it granted the Defendants' motion on the basis that Ms. Green had failed to establish a genuine issue of material fact on whether the DOL's proffered reasons for firing her were pretextual. Ms. Green timely appeals this ruling, as well as the District Court's decision regarding the surreply. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

The DOL hired Ms. Green as a probationary employee on October 22, 2001. Her probationary status was to last one year. Until August 2002, Ms. Green's immediate supervisor was Maggie Neel. Under Ms. Neel's supervision, Ms. Green was never formally disciplined, although she was verbally reprimanded for allowing her boyfriend and fellow DOL employee, Daniel Griego, to visit her at her office. Ms. Neel advised Ms. Green that Mr. Griego was not to return to her office because his presence was disruptive.

In August 2002, Susan Sosaya became Ms. Green's supervisor. On August 30, 2002, Ms. Sosaya issued Ms. Green a written reprimand for the following conduct: (1) allowing Mr. Griego to return to her office after Ms. Neel instructed her not to;² (2) keeping work in her desk, in contravention of DOL's policy to keep files accessible to all employees; (3) bringing questions and concerns with assignments to coworkers, rather than to Ms. Sosaya, and becoming argumentative and defensive when instructed that this was not proper procedure; and (4) improperly filling out forms. The reprimand instructed Ms. Green that "[a]n immediate improvement in your behavior is expected or you will be subject to dismissal during your probationary period."

Nevertheless, Ms. Green continued to have problems at work. Contrary to the explicit instruction in her reprimand, Ms. Green did not refrain from discussing concerns she had with her assignments with employees other than Ms. Sosaya. Specifically, in October 2002, Ms. Green discussed a concern she had with a specific assignment with Jackie Martinez, another supervisor at the DOL. In addition, also in October 2002, Ms. Green failed to complete a task assigned to her by Ms. Sosaya. When Ms. Sosaya asked why the assignment had not been finished, Ms. Green simply claimed not to remember anything about it. That day, Ms. Sosaya recommended Ms. Green for dismissal, citing these two incidents. Ms. Green was terminated on October 11, 2002.

II. DISCUSSION

A. Title VII Disparate Treatment

We review the District Court's entry of summary judgment de novo. Plotke v. White, 405 F.3d 1092, 1093 (10th Cir.2005). 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). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party. Plotke, 405 F.3d at 1093-94.

Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's. . . sex." 42 U.S.C. § 2000e-2(a)(1). Because Ms. Green relies on circumstantial evidence to establish unlawful discrimination, we apply the now-familiar three-step burden-shifting framework set forth in McDonnell Douglas and its progeny. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-07, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Plotke, 405 F.3d at 1099. The aggrieved employee must first establish a prima facie case of prohibited employment action. Plotke, 405 F.3d at 1099. If the employee makes such a prima facie showing, the burden shifts to the employer to state a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the employer meets this burden, then "summary judgment is warranted unless the employee can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual." Id.

The parties agree that Ms. Green has met her burden to establish a prima facie case of discrimination.³ It is therefore incumbent on the DOL to proffer a legitimate, nondiscriminatory reason for firing Ms. Green. The DOL asserts that Ms. Green was fired for violations of the DOL's Code of Conduct,⁴ insubordination, and for failing to perform her job satisfactorily. More specifically, the DOL asserts that after Ms. Green received a written reprimand in August regarding deviations from the chain of command and violations of the code of conduct, she thereafter failed to follow Ms. Sosaya's specific instructions not to discuss her job duties with other employees and failed to complete a particular task, claiming that she did not know what Ms. Sosaya wanted her to do. The DOL has therefore met its burden to provide a nondiscriminatory reason for firing Ms. Green. As a result, the burden shifts back to Ms. Green to establish a genuine issue of material fact as to whether the DOL's proffered reasons are pretextual.

A plaintiff can show pretext by revealing "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quotations omitted). Although "a plaintiff may not be forced to pursue any particular means of demonstrating that a defendant's stated reasons are pretextual," Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000) (alterations omitted), pretext is typically shown in one of three ways:

(1) with evidence that the defendant's stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an unwritten policy or contrary to company practice when making the adverse employment decision affecting the plaintiff. A plaintiff who wishes to show that the company acted contrary to an unwritten policy or to company practice often does so by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.

Id. (internal citations omitted).

Ms. Green makes several arguments in support of her claim that the DOL's justification for her discharge is pretextual. She argues that the reasons for her termination were false, that similarly situated men were not fired for equally serious conduct, that she was subjected to "heightened scrutiny," that the decision to fire her was based on subjective criteria, and that she was fired immediately prior to the completion of her probationary employment, all of which support an inference that the DOL's proffered reasons were a pretext for discrimination. We disagree.

1. Falsity of Proffered Nondiscriminatory Reason

Ms. Green argues that the DOL's assertion that she was fired for failing to satisfactorily perform her job is false. In support of this contention, Ms. Green claims that her performance evaluations indicate she was a good employee and therefore could not have been fired for job-related issues. This Court has previously found evidence of pretext when there were, among other things, "glaring contradictions" between the plaintiff's evaluations and the employer's proffered reason for taking the adverse action. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380 (10th Cir.1994). In addition, we have noted that memoranda from supervisors praising the plaintiff on an issue later claimed to be the reason for the adverse action may be evidence of pretext. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 564 (10th Cir.1996).

In this case, however, neither situation is present. The DOL evaluates its employees using a five-point scale with a score of one being "unsatisfactory" and five being "exceptional." The average score, three, is considered "successful." Green mainly received fours and fives on productivity-related questions, and her written evaluations are largely favorable. Nevertheless, as the District Court noted, these favorable evaluations do not contradict the DOL's proffered reason for firing her: that she failed to follow instructions. It was in this regard—as opposed to her productivity—that she did not perform satisfactorily.

Both Cole and Greene are readily distinguishable from the case at bar. In Greene, the defendant employer's proffered reasons for terminating the aggrieved employee was that he was a poor merchandiser, his stores' sales were declining, he was "pessimistic" about the...