Jones v. Okla. City Pub. Sch.

• Decision Date: 24 August 2010
• Docket Number: No. 09-6108.,09-6108.
• Citation: 617 F.3d 1273
• Parties: Judy F. JONES, Plaintiff-Appellant,v.OKLAHOMA CITY PUBLIC SCHOOLS, Independent School District No. 89 of Oklahoma City, Oklahoma, Defendant-Appellee.U.S. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

617 F.3d 1273

Judy F. JONES, Plaintiff-Appellant,v. OKLAHOMA CITY PUBLIC SCHOOLS, Independent School District No. 89 of Oklahoma City, Oklahoma, Defendant-Appellee.U.S. Equal Employment Opportunity Commission, Amicus Curiae.

No. 09-6108.

United States Court of Appeals, Tenth Circuit.

Aug. 24, 2010.

Scott F. Brockman (Stanley M. Ward and Woodrow K. Glass with him on the briefs), Ward & Glass, LLP, Norman, OK, for the Plaintiff-Appellant.

Laura L. Holmes, The Center for Education Law, Inc., Oklahoma City, OK, for the Defendant-Appellee.

James M. Tucker, James L. Lee, Carolyn L. Wheeler, and Vincent Blackwood filed a brief on behalf of amicus curiae, U.S. Equal Employment Opportunity Commission, in support of Appellant.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Judy F. Jones appeals from the district court's grant of summary judgment in favor of her employer, Oklahoma City Public Schools (“OKC”), dismissing her claim of discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Although the district court found that Jones produced sufficient evidence to establish a prima facie case of discrimination and submitted evidence to show that OKC's proffered explanations for her demotion were pretextual, the court granted summary judgment to OKC on the ground that no reasonable juror could find that OKC had committed age discrimination. Because we conclude that the district court engaged in a “pretext plus” analysis in rendering its decision, we reverse.

I

Jones began working for OKC as a teacher in 1969. She then served as a principal of an elementary school for approximately fifteen years. In 2002, Jones was promoted to Executive Director of Curriculum and Instruction. Colleagues evaluated Jones' performance in this position as satisfactory or better. For the 2006-2007 fiscal year, Jones' negotiated salary was $98,270, with a daily pay rate of $396.25 per day.

In July 2006, Linda Brown became OKC's interim superintendent. Brown altered OKC protocol such that Jones reported first to Manny Soto and later to Linda Toure, two of OKC's five executive directors in charge of schools and support services. Over the course of the next year, both Soto and Toure asked Jones when she was going to retire. On one occasion, Brown also questioned Jones about her retirement plans.

OKC eventually hired John Porter as its permanent superintendent in spring 2007. Porter was to start full-time work in July 2007, but was employed as a consultant during the months of May and June. According to Porter, he and Brown “worked closely” during this period “to ensure a smooth transition into the position of Superintendent.” After reviewing the district's organizational chart, Porter determined that OKC's executive team should be reorganized. In particular, he decided that Jones' position could be eliminated and its duties absorbed by other directors. This elimination would allow Porter to reorganize the district's administration in a budget-neutral manner. Porter directed Michael Shanahan, OKC's senior human resources officer, to notify Jones that her position would be eliminated and she would be reassigned as an elementary school principal. Brown was present during this exchange, but averred that she did not have any input into Porter's decision.

Jones met with Shanahan in early June 2007. Shanahan communicated Porter's orders and informed Jones that her salary would stay the same for the ensuing school year only.¹ Jones asked Shanahan who made the decision to demote her, and Shanahan responded that it was Brown and Porter. Shanahan subsequently stated that four other executive directors were involved in the reassignment decision. Scott Randall, OKC's senior finance officer, later told Jones that she was the only director the administration had “gone after.” Randall also stated that if Porter was transferring Jones for financial or budgetary reasons, Porter would have “run” it by him.

After her reassignment and during her first year of employment as an elementary school principal, Jones retained her previous salary level. Her vacation benefits, however, were affected immediately. After Jones completed her first year as principal, her salary was decreased by approximately $17,000. This pay cut had the effect of reducing her retirement benefits. Jones' daily pay rate was also reduced by roughly five dollars per day.

One month after Jones' reassignment, Porter decided to create a new OKC executive position, Executive Director of Teaching and Learning. The job description and responsibilities for this position were quite similar to those of Jones' former position of Executive Director of Curriculum and Instruction. Both positions required a master's degree in curriculum and instruction, and the job responsibilities for both positions included oversight of programs designed to improve teacher instruction and curricular development. OKC filled this new position with an individual who was forty-seven years of age. At the time of Jones' reassignment, she was nearly sixty years old.

In May 2008, Jones filed suit in the District Court for the Western District of Oklahoma alleging OKC violated the ADEA when it demoted her to the position of elementary school principal.² OKC filed a motion for summary judgment, denying that Jones was demoted and arguing, in the alternative, that if Jones had suffered an adverse employment action it was due exclusively to the elimination of her former position.

Analyzing Jones' claims under the traditional McDonnell Douglas³ framework, the district court concluded that Jones had established a prima facie case of age discrimination. The court determined that Jones suffered an adverse employment action because her transfer resulted in an immediate reduction in her vacation pay, retirement benefits, and the prestige of her position. Proceeding to the next step of the McDonnell Douglas analysis, the district court concluded that OKC met its burden of offering legitimate, nondiscriminatory reasons for its actions: (1) Porter decided to create a new deputy superintendent position in a revenue-neutral manner; and (2) Jones' position was eliminated to fund the new position. The court held that this evidence was sufficient to shift the burden back to Jones to demonstrate that OKC's reasons for her reassignment were pretextual.

In response, Jones noted that funding for her previous position stayed on the books for the 2007-2008 fiscal year, and staff in her former department continued working in that department before and after the position of Executive Director of Teaching and Learning was created. Moreover, Jones stressed the similarities between her previous position and the new position created just after her demotion. She also stated under oath that fellow OKC directors, including Brown, made age-related comments regarding her retirement plans and that these comments occurred outside of the context of a normal course of conversation. Viewing the evidence in the light most favorable to Jones, the district court determined that a reasonable factfinder could conclude that OKC's proffered reasons for Jones' reassignment were inconsistent or unworthy of belief.

Quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), however, the court reasoned: “[T]here will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory.” According to the district court, Jones' case fell within this exception. Her evidence for pretext was not “particularly strong” and “a reasonable juror could very well find no inconsistencies in [OKC's] position.” Although the court acknowledged that OKC leadership had made age-related comments, it faulted Jones for not providing any “additional evidence” to show that age played a role in the reassignment decision. As a result, the district court granted summary judgment in favor of OKC. This appeal followed.

II

We review a district court's grant of summary judgment de novo, applying the same legal standard used by the lower court. McKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir.2001). Summary judgment is proper only if “there is no genuine issue as to any material fact” and “the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “We examine the factual record and reasonable inferences therefrom in the light most favorable to [Jones], who opposed summary judgment.” Thomas v. Int'l Bus. Machs., 48 F.3d 478, 484 (10th Cir.1995).

A

Before reaching the merits of parties' arguments, we must first determine whether the Supreme Court's holding in Gross v. FBL Financial Services, Inc., --- U.S. ----, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), decided after the district court issued its summary judgment order, affects our analysis on appeal. OKC argues that Gross compels dismissal of Jones' claim because it requires an ADEA plaintiff to provide some evidence that her employer was motivated solely by age when making an adverse employment decision.⁴

OKC's argument is flawed on several levels, but we need address only one: It conflates two separate standards for causation. The ADEA, like other anti-discrimination statutes, includes a causation requirement. It prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age.” 29 U.S.C. § 623(a)(1) (emphasis added). The statute, however, does not define the phrase “because of,” and before Gross, it was unclear which causal standard applied. Gross clarified that the ADEA requires “but-for” causation. 129 S.Ct. at 2351. Consequently, to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer...