Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Services

• Citation: 165 F.3d 1321
• Decision Date: 25 January 1999
• Docket Number: No. 97-6366,97-6366
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 94, 75 Empl. Prac. Dec. P 45,749, 1999 CJ C.A.R. 490 Cedric D. SIMMS, Plaintiff-Appellant, v. The State of OKLAHOMA, ex rel., The DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, a state agency, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1321

165 F.3d 1321

79 Fair Empl.Prac.Cas. (BNA) 94, 75 Empl.

Prac. Dec. P 45,749,

1999 CJ C.A.R. 490

Cedric D. SIMMS, Plaintiff-Appellant, v. The State of OKLAHOMA, ex rel., The DEPARTMENT OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES, a state agency, Defendant-Appellee.

No. 97-6366.

United States Court of Appeals Tenth Circuit.

Jan. 25, 1999.

Ken Feagins, (Stanley M. Ward, with him on the briefs), Norman, Oklahoma, appearing for Plaintiff-Appellant.

Penny Broughton McCracken, Deputy General Counsel (Craig Sutter, General Counsel, on the answer brief), Department of Mental Health and Substance Abuse Services, Oklahoma City, Oklahoma, appearing for Defendant-Appellee.

Before TACHA, BRISCOE, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff-Appellant Cedric D. Simms appeals two orders of the district court granting summary judgment in favor of defendant, the Oklahoma Department of Mental Health and Substance Abuse Services ("DMHSAS") on claims of unlawful employment discrimination and retaliation. On appeal, plaintiff argues that: (1) his pre-1995 retaliation claims are not time-barred and (2) the district court erred in granting summary judgment on his failure to promote claim because he presented sufficient evidence of pretext, creating a genuine dispute as to an issue of material fact. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

The procedural history of this case is somewhat complicated. Mr. Simms, an African-American, began his employment with defendant at Griffin Memorial Hospital around April 29, 1991, as a Fire and Safety Officer I. On September 11, 1991, defendant posted a job announcement for the position of Fire and Safety Officer II. Mr. Simms applied for the position, but defendant gave it to a white employee whom he thought was less qualified. Consequently, he filed a charge with the Equal Employment Opportunity Commission ("EEOC") on October 12, 1992 (No. 311930053), alleging that defendant refused to promote him because of his race. The EEOC issued a right-to-sue letter and, on December 21, 1993, Mr. Simms filed an action in federal court pursuant to Title VII of the Civil Rights Act ("Title VII"). The parties settled this action ("Simms I") on April 13, 1994. Under the settlement agreement, defendant promoted Mr. Simms to the position of Fire and Safety Officer II. Although the court stated that DMHSAS should waive its standard six-month probationary period for plaintiff, defendant's employees Carol Kellison and Stand LaBoon withheld Mr. Simms' supervisory duties until June 20, 1994.

Ten days later, defendant posted a job announcement for the position of Fire and Safety Officer Supervisor. The job announcement stated that "PREFERENCE WILL BE GIVEN TO APPLICANTS WITH SUPERVISORY EXPERIENCE. " Appellant's App. at 376. Mr. Simms applied and interviewed for the position. Mr. Simms and Bruce Valley, a white employee under Mr. Simms' supervision but who had numerous years of supervisory experience in the construction industry, received the highest scores in the first round of interviews. A panel including Carol Kellison and Stand LaBoon interviewed both men in a second round and ultimately gave the promotion to Mr. Valley. As a result, Mr. Simms filed a second EEOC charge (No. 311950136) on October 31, 1994, alleging that defendant unlawfully failed to promote him based on his race.

After filing the second EEOC charge, Mr. Simms' relationship with the defendant deteriorated. In March 1995, defendant reprimanded him for "distribution of unauthorized material" and, in April 1995, defendant suspended him for "insubordination, not devoting full time, attention and effort to the duties and responsibilities of position during assigned hours of duty, and failure or inability to perform the duties in which employed." Appellant's App. at 83. On June 5, 1995, Mr. Simms filed a third EEOC charge (No. 311950898) alleging that these acts were in retaliation for filing and pursuing his second EEOC charge. On July 20, 1995, Mr. Simms received his first adverse job performance evaluation. Defendant demoted him to Fire and Safety Officer I on August 13, 1995, and ultimately terminated his employment on September 22, 1995.

On November 29, 1995, Mr. Simms received an EEOC right-to-sue letter regarding his third EEOC charge. He brought a Title VII action in federal court ("Simms II") on January 12, 1996, alleging race-based employment discrimination and retaliation, including allegations of retaliatory acts occurring prior to 1995 and not covered by his third EEOC charge. At the time he commenced Simms II, he had not yet received a right-to-sue letter for his second EEOC charge. On July 13, 1996, DMHSAS filed a motion for partial summary judgment on the grounds that Mr. Simms had failed to exhaust his administrative remedies as to his race discrimination and pre-1995 retaliation claims. Two days later, Mr. Simms filed an amendment to his second EEOC charge. The amendment contained allegations of pre-1995 acts of retaliation, including withholding of supervisory duties for the Fire and Safety Officer II position and failure to promote him to the Fire and Safety Supervisor position. On September 3, 1996, the district court granted defendant's motion for partial summary judgment, leaving only the post-1995 retaliation claims for trial.

The EEOC completed its investigation of the second EEOC charge on September 25, 1996, and issued a letter of determination stating that it found "reasonable cause to believe the charge is true." Appellant's App. at 274. A right-to-sue letter followed on October 2, 1996. Based on these events, plaintiff asked the district court to reconsider its September 3 Order in Simms II. The court denied Mr. Simms' motion for reconsideration on October 23, 1996. On December 31, 1996, plaintiff brought the present action ("Simms III") reasserting the claims that were dismissed in Simms II for failure to exhaust administrative remedies.

On January 6, 1997, Simms III was transferred to the district court judge presiding over Simms II, and plaintiff filed a motion to consolidate the two cases. The district court denied the motion because it would delay Simms II, which was set for trial in a week. The remaining claims in Simms II were tried to a jury. The jury found in favor of DMHSAS on the retaliatory discharge claim, but found against DMHSAS on the other post-1995 retaliation claims (the reprimand, suspension, negative performance evaluation, and demotion). On February 26, 1997, the trial court entered judgment in accordance with the jury's verdict.

On June 16, 1997, DMHSAS filed a motion for partial summary judgment in Simms III, claiming that Mr. Simms' pre-1995 retaliation claims were time-barred and did not relate back to his original second EEOC charge. The trial court granted the motion on September 3, 1997, holding that Mr. Simms failed to exhaust administrative remedies. The district court found Mr. Simms' amendment to his second EEOC charge neither timely nor related to the activities contained in the original charge. On September 11, 1997, defendant filed a summary judgment motion with respect to plaintiff's remaining claims in Simms III. The court granted defendant's motion on October 23, 1997. The trial court denied plaintiff's motion for reconsideration of the two orders, and this appeal followed.

Standard of Review

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. See Byers v. City of Albuquerque 150 F.3d 1271, 1274 (10th Cir.1998). 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. See Byers, 150 F.3d at 1274.

Although the movant must show the absence of a genuine issue of material fact, he or she need not negate the nonmovant's claim. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir.1996). 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." Id. "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." Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir.1997). If there is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996).

I. Pre-1995 Retaliation Claims--Exhaustion Doctrine

A plaintiff must generally exhaust his or her administrative remedies prior to pursuing a Title VII claim in federal court. See, e.g., Khader v. Aspin, 1 F.3d 968, 970 (10th Cir.1993). Thus, a plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 342, 139 L.Ed.2d 266 (1997). To be timely, a plaintiff must file the charge with the EEOC within 180 days or with a state agency within 300 days of the complained-of conduct. See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.13 (1998); Gunnell v. Utah Valley St. College, 152 F.3d 1253, 1260 n. 3 (10th Cir.1998). However, 29 C.F.R. § 1601.12(b) provides that certain amendmen...