Somoza v. University of Denver

Decision Date18 January 2008
Docket NumberNo. 06-1488.,06-1488.
Citation513 F.3d 1206
PartiesOscar U. SOMOZA and Miriam Bornstein-Gómez, Plaintiffs-Appellants, v. UNIVERSITY OF DENVER, Board of Trustees of the University of Denver, Helga Watt, Luc Beaudoin and Javier Torre in their individual capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Dolores S. Atencio, of the Atencio Law Firm, Denver, CO, for the Plaintiffs-Appellants.

Jim Goh (Christina Gómez with him on the brief), of Holland & Hart Law Firm, Denver, CO, for the Defendants-Appellees.

Before LUCERO, HOLLOWAY and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.

I. INTRODUCTION

Plaintiffs-Appellants, Professors Oscar Somoza and Miriam Bornstein-Gómez, brought an action against the Defendants-Apellees University of Denver and several others, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §. 1981, for disparate treatment, hostile work environment and retaliation on the basis of their race/national origin. Plaintiffs-Appellants also brought various state law claims against the University of Denver. The parties consented to have the case decided by a Magistrate Judge under 28 U.S.C. § 636(c). The Magistrate Judge granted the Defendants-Appellees' motion for summary judgment and dismissed Plaintiffs-Appellants' action.

Appellants appeal one issue from the Magistrate's ruling. That issue is whether the Magistrate Judge committed reversible error in dismissing the Appellants' retaliation claims by failing to apply the new standard adopted by the United States Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Thus, the state law claims, disparate treatment claims, and hostile work environment claims are not at issue in this appeal. Furthermore, at oral argument and in a later letter to this court, Appellants' counsel stated that Appellants have waived two issues originally asserted, in this appeal, those dealing with salary and workload.

II. BACKGROUND

Appellants are Mexican-American and are faculty members of the Spanish section of the Department of Languages and Literature at the University of Denver. Appellants claim to have engaged in over twenty acts of protected conduct during the period of February 2003 through February 2005, with retaliatory actions following the conduct. The Magistrate provided a thorough synopsis of Appellants' claims and the factual elements therein; therefore we reproduce the instances spelled out by the Appellants in the brief as relevant conduct for establishing a prima facie case for employment retaliation.

In Appellants' brief, they detail thirteen scenarios in which the professors allegedly engaged in protected activity, after which retaliatory conduct allegedly followed. They are as follows:

1. Appellants complained to Susan Lee, Director of Equal Employment Opportunity at the University of Denver, and Department Chair Luc Beaudoin about their unfavorable and biased treatment during the Assistant Professor search in February 2003 and also about their perception of the sexist treatment of a teaching candidate, Joseph McClanahan. Appellants were allegedly subjected to public humiliation at a February 2003 department-wide meeting.

2. On February 17, 2003, Appellants met with Dean Kvistad, Chair Beaudoin and Professor DiFranco, who explained that they had elected to postpone the search for an Assistant Professor. Chair Beaudoin convened a Department meeting to vote on a decision regarding the search.

3. Dean Kvistad allegedly takes a lecturer position away from the Spanish Section.

4. On April 9, 2003 Chair Beaudoin allegedly precluded Appellants from selecting a Spanish section lecturer.

5 Chair Beaudoin allegedly prevented them from participating in the search process for a new Spanish section lecturer.

6. Appellants met with Dean Kvistad and Susan Lee where they raised issues of a hostile working environment and discriminatory, disparate treatment. On June 15, 2003 Miriam Bornstein-Gomez asked Dean Kvistad for compensation as section coordinator.

7. Chair Beaudoin allegedly allowed Javier Torre, a junior Spanish faculty member, to harass Appellants.

8. Appellants filed their discrimination complaints with Susan Lee against Chair Beaudoin and Javier Torre.

9. Appellants wrote to Provost Coombe, Dean Kvistad and Chair Beaudoin about Torre's harassing and retaliatory behavior.

10. Chair Beaudoin allegedly abolished the Spanish section.

11. Appellant Bornstein-Gómez sent another memo to Javier Torre outlining the ongoing harassment by Torre which was copied to Provost Coombe, Dean Kvistad and Chair Beaudoin.

12. On December 1, 2003, Appellants filed their first Equal Employment Opportunity Commission complaint.

13. Appellant Miriam Bornstein-Cómez was allegedly precluded from participating in the selection of the Basic Language Coordinator for the Spanish program.

14. In October 2004, Appellants filed their second Equal Employment Opportunity Commission complaints, and on February 25, 2005, they filed their lawsuit. Department Chair Jennifer Pap allegedly made alterations to the Spanish section.

Appellants' only contention is that granting summary judgment in favor of the Defendants-Appellees was inappropriate in light of the evidence supplied when analyzed under the broader retaliation claim standard set forth in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

III. DISCUSSION
A. 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." Simms v. Okla.. ex rel. Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). 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 of material fact and that the moving party' is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). We examine the factual record and draw all reasonable inferences in the light most favorable to the nonmoving party. Simms, 165 F.3d at 1326.

B. Retaliation Claims under Title VII and 42 U.S.C. § 1981

The test for establishing a prima facie case for retaliation is the same under both Title VII and 42 U.S.C. § 1981. See Roberts v. Roadway Exp., Inc., 149 F.3d, 1098, 1103 n. 1, 1110 (10th Cir.1998); Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir.1997). In analyzing retaliation claims, we apply the three-part test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1263-64 (10th Cir.1998). This structure requires the plaintiff to first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Should the plaintiff succeed in proving a prima facie case, the employer must provide a legitimate and facially non-discriminatory reason for its decision. Id. Finally, if the employer satisfies this burden, the plaintiff must establish that the defendant's reasons were a pretext for discrimination. Id. at 804, 93 S.Ct. 1817.

In order to establish a prima facie case of retaliation, Plaintiffs must show that "(1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006)

C. Burlington Northern & Santa Fe Ry. Co. v. White

The sole issue in this appeal is whether the Magistrate Judge applied the wrong standard in evaluating Plaintiffs' case, thereby improperly granting the' Defendants' motion for summary judgment. Specifically, Plaintiffs contend that Burlington Northern broadened the scope of actions that could be considered adverse employment actions, which necessarily alters the second prong of the McDonnell Douglas test.

In Burlington Northern, the Court dealt with the scope of conduct considered forbidden by Title VII's anti-retaliation provision. Specifically, the Court compared the anti-discrimination provisions found in Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), with the anti-retaliation provision found in Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).

The Court rejected the argument of the Solicitor General that the two provisions should be read in pari materia, thereby limiting the conduct sufficient to sustain an anti-retaliation claim to the conduct sufficient to meet the standard defined in the anti-discrimination provision. The Court determined that the differences in language between the two provisions were intentional and that these distinctions effectuate important differing objectives carried out by the two individual provisions. Burlington Northern, 126 S.Ct. at 2412. The Court stated this "purpose reinforces what language already indicates, namely that the anti-retaliation provision ... is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 2412-13. After finding that the two provisions are not coterminous, the Court stated that "the scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm" and is thereby not limited to "ultimate employment decisions." Id. at 2414.

Significantly, the Court endeavored to define the contours of this expansion by qualifying what type of retaliatory action rises to the level of being unlawful. In order to be unlawful, the retaliation must produce an injury or harm, the Court stated. Id. Adopting the tests used by the Seventh and District of Columbia Circuits, the Court stated that "a plaintiff must show that a reasonable employee would have...

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