Johnson v. Weld County, Colo.

• Citation: 594 F.3d 1202
• Decision Date: 08 February 2010
• Docket Number: No. 08-1365.,08-1365.
• Parties: Margee JOHNSON, Plaintiff-Appellant, v. WELD COUNTY, COLORADO, a governmental entity, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

594 F.3d 1202

Margee JOHNSON, Plaintiff-Appellant, v. WELD COUNTY, COLORADO, a governmental entity, Defendant-Appellee.

No. 08-1365.

United States Court of Appeals, Tenth Circuit.

February 8, 2010.

As Amended on Grant of Rehearing February 24, 2010 nunc pro tunc.

John R. Olsen of Olsen & Brown, LLC, Niwot, CO, for Plaintiff-Appellant.

Katherine M.L. Pratt (Thomas J. Lyons with her on the brief), of Hall & Evans, Denver, CO, for Defendant-Appellee.

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

GORSUCH, Circuit Judge.

After Weld County chose to hire someone else as its Fiscal Officer, Margee Johnson, an accountant for the County, came to believe that she didn't get the job because she is a woman and has a physical disability. In response, she brought this lawsuit, alleging discrimination in violation of, among other things, Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act ("ADA"). In the end, however, the district court granted the County's request for summary judgment on all counts against it. We now affirm that decision because Ms. Johnson failed to rebut the County's evidence suggesting that the male candidate it hired as Fiscal Officer had superior qualifications to hers, as well as its evidence that she was not, at the time of the hiring decision, disabled within the meaning of the ADA.

I

Viewing the facts in the light most favorable to Ms. Johnson, as we must, see Fed.R.Civ.P. 56(c), they tell us this. In 1998, Ms. Johnson began working for Weld County as an accountant, though, several years earlier, she had been diagnosed with multiple sclerosis. By all reports, Ms. Johnson was a good employee who worked for the County without complaint for many years.

The troubles giving rise to this case began only in 2005 when Marilyn Carlino, the County's Fiscal Officer and Ms. Johnson's direct supervisor, resigned. Until a new Fiscal Officer could be hired, Walter Speckman, Director of the County Department of Human Services, placed Ms. Johnson in the position on an interim basis, for which she received a temporary 5% pay raise. At the same time, Ms. Johnson and others applied for the job on a permanent basis. Ultimately, the County narrowed the pool of candidates to five individuals: Ms. Johnson, three other female candidates, and one male candidate, Dennis Bogott. After a committee consisting of Mr. Speckman and six women interviewed, scored, and ranked the candidates, it recommended the two highest-ranked individuals to Mr. Speckman, who, as Director, made the final decision. The top two candidates were Mr. Bogott and a female candidate; Ms. Johnson was ranked fourth of the five candidates. After a background check of the top two candidates, Mr. Bogott, who had thirty-five years' experience in the accounting field, was hired and began work as the County Fiscal Officer in April 2005.

When Mr. Bogott started work, Ms. Johnson was tasked with training him, though she says she really did his job for him. Ms. Johnson continued to receive her 5% pay increase during this training period, which lasted into May 2005, though she insists she continued to perform Mr. Bogott's duties well after that.

Eventually, in September 2005, Ms. Johnson complained to the Human Resources Department, Mr. Speckman, and Mr. Bogott that she was a victim of discrimination. The Human Resources Department responded by offering to extend her temporary pay increase retroactively through August 31.¹ Within a few days of Ms. Johnson's complaints, Mr. Speckman and Mr. Bogott began to ignore her and eventually came to tease and snub her.

On November 28, 2005, Ms. Johnson filed a charge with the Equal Employment Opportunity Commission ("EEOC") and eventually received a letter giving notice of her right to sue. Ms. Johnson resigned from Weld County on May 12, 2006, and then filed this lawsuit alleging discrimination on the basis of sex and disability. In due course, the County moved for summary judgment, which the district court granted on all of Ms. Johnson's claims.

Ms. Johnson responded by bringing this appeal. In what follows, we analyze her various claims in sequence. Parts II-IV focus on her Title VII sex discrimination claims — including for failure to hire (Part II), pay discrimination (Part III), and retaliation (Part IV). Part V, meanwhile, focuses on her disability claims under the ADA. Because this case comes to us on summary judgment, we assess all of Ms. Johnson's claims de novo: that is, we will affirm the district court's disposition only if our independent review of the record, viewing the facts in the light most favorable to Ms. Johnson, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. At the same time, we review challenges to the district court's determinations regarding what is and is not competent evidence for our consideration at the summary judgment stage for abuse of discretion. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006).

II

Ms. Johnson argues first and foremost that the County discriminated against her on the basis of her sex, in violation of Title VII, 42 U.S.C. § 2000e et seq., by hiring Mr. Bogott instead of her as the County's permanent Fiscal Officer. She suggests she has a triable Title VII claim in light of both direct, see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), and circumstantial evidence, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1173 (10th Cir.2007). Either mode of proof, of course, can suffice to defeat summary judgment, and so we examine each in turn.

A

Ms. Johnson's direct evidence of sex discrimination consists of her testimony that Mr. Bogott and Barb Burns, a County accounting technician, told her that Mr. Speckman admitted to them (Mr. Bogott and Ms. Burns) that he (Mr. Speckman) didn't hire her (Ms. Johnson) because of her sex and multiple sclerosis. Ms. Johnson also relies on the fact that Mike Willoughby, a Department of Labor auditor not employed by the County, told her that Mr. Bogott had told him (Mr. Willoughby) that Mr. Speckman had told him (Mr. Bogott) that he didn't hire her (Ms. Johnson) because she was a woman.

The district court held that this evidence failed to create a triable question of fact because it is inadmissible hearsay. Ms. Johnson disputes this analysis, offering three essential reasons why, in her view, we should find the district court's evidentiary ruling to constitute an abuse of discretion. None is persuasive.

Ms. Johnson first suggests that Mr. Speckman's statements are not hearsay but rather admissions by a party-opponent, emphasizing that he was the individual County officer responsible for the hiring decision. See Fed.R.Evid. 801(d)(2)(D). The difficulty with this argument is that, even accepting Mr. Speckman's statements as party-opponent admissions, a hearsay problem remains.

The remaining problem, as the district court correctly noted, is that Mr. Speckman's alleged admissions come bundled inside Mr. Bogott's, Ms. Burns's, and Mr. Willoughby's out-of-court remarks to Ms. Johnson, which are themselves hearsay. See Fed.R.Evid. 801(c). Because the district court couldn't consider the hearsay statements of Mr. Bogott, Ms. Burns, or Mr. Willoughby, by necessity it couldn't consider anything contained within them, including Mr. Speckman's alleged party-opponent admissions.

To this, Ms. Johnson replies that Mr. Bogott's statement is admissible because he, like Mr. Speckman, qualifies as a party-opponent. And it is surely the case that, were both Mr. Bogott and Mr. Speckman party-opponents, the hearsay problem would evaporate because both links in the chain of communication would involve non-hearsay party-opponent admissions. See 5 Jack Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 805.03, at 805-5 & n. 3 (Joseph M. McLaughlin ed., 2009); Moore v. KUKA Welding Sys., 171 F.3d 1073, 1081 (6th Cir.1999) (holding witness's testimony of party agent's statement to second party agent, who relayed statement to witness, admissible under Federal Rules of Evidence 801(d)(2)(D) and 805).

The difficulty for Ms. Johnson is that Mr. Bogott cannot be fairly considered a party-opponent. Under our controlling precedent, an employee's statements are not attributable to his employer as a party-opponent admission in an employment dispute unless the employee was "involved in the decisionmaking process affecting the employment action" at issue. Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir.2005) (per curiam) (quoting Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756, 762 (7th Cir.2003)). The undisputed facts confirm that Mr. Bogott wasn't remotely involved in the Fiscal Officer hiring decision: instead, he was merely another candidate for the position, not yet even a County employee. Accordingly, the district court rightly concluded that his statements are "outside the scope of his employment and not admissible as statements of a party opponent." Id.

Ms. Johnson separately contends that Mr. Bogott's, Ms. Burns's, and Mr. Willoughby's statements aren't hearsay because they are not "offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). That is, Ms. Johnson contends that their statements aren't offered "to prove the truth of what Speckman said — only that he said it." Opening Br. at 46 (emphasis omitted).

This won't solve the hearsay problem either. Even assuming without deciding that the mere fact Mr. Speckman made his comments is relevant to Ms. Johnson's case, the only way Ms. Johnson can prove the fact of Mr. Speckman's comments is through Mr. Bogott's, Ms. Burns's, and Mr. Willoughby's out-of-court hearsay statements to her. It is the same as though Ms. Johnson had testified...