Stover v. Martinez

• Decision Date: 30 August 2004
• Docket Number: No. 03-1017.,03-1017.
• Citation: 382 F.3d 1064
• Parties: Michal F. STOVER, Plaintiff-Appellant, v. Mel MARTINEZ, Secretary, U.S. Department of Housing and Urban Development, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.3d 1064

Michal F. STOVER, Plaintiff-Appellant, v. Mel MARTINEZ, Secretary, U.S. Department of Housing and Urban Development, Defendant-Appellee.

No. 03-1017.

United States Court of Appeals, Tenth Circuit.

August 30, 2004.

Appeal from the United States District Court for the District of Colorado.

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Darold W. Killmer, Killmer & Lane, LLP, Denver, CO, (Andrea E. Faley, Law Office of Andrea E. Faley, LLC, Denver, CO with him on the briefs), for the Plaintiff-Appellant.

Kathleen L. Torres, Assistant United States Attorney, (John W. Suthers, United States Attorney, William G. Pharo, Assistant United States Attorney with her on the brief), United States Attorneys Office, Denver, CO for the Defendant-Appellee.

Before TACHA, Chief Circuit Judge, McWILLIAMS, Senior Circuit Judge, and LUCERO, Circuit Judge.

LUCERO, Circuit Judge.

Michal Stover brought an employment discrimination suit against the Department of Housing and Urban Development ("HUD"), arguing that HUD discriminated against her based on her race and religion, and that HUD retaliated against her for exercising her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3. The district court granted summary judgment to HUD on all claims; Stover appeals. Jurisdiction in this court is proper under 28 U.S.C. § 1291, and we AFFIRM.

I

Michal Stover, a white, Jewish female attorney, began her employment with the Department of Housing and Urban Development ("HUD") in 1974, immediately after graduating from law school. She eventually was promoted to Regional Counsel (later renamed Assistant General Counsel for the Rocky Mountains) in 1984, the highest legal position in the Denver HUD office. Stover's performance reviews were almost consistently "outstanding"—the highest ranking available.

Nelson Diaz was HUD General Counsel in 1993. In September of that year, Diaz, while speaking to a group of HUD's Field Counsel including Stover, indicated that he was dissatisfied with the low number of minority Field Counsels in HUD. In August of 1994, Stover testified in an interrogatory about her recollection of Diaz's September 1993 remarks for former HUD attorney John Dellera's Title VII suit against HUD.

Stover remained Assistant General Counsel until three years following Diaz's remarks to the HUD field counsel group and two years following her interrogatory response in the Dellera matter. In November 1996, she was reassigned to the newly created "Managing Attorney" position in the Denver office. (I R. at 16.) Although she retained her salary and benefits, she no longer exercised her former supervisory tasks; the district court below found that the reassignment was "a demotion in status and responsibilities." (Dist. Ct. Order at 2.) Diane Lindsay, Assistant General Counsel in Kansas City, also a white female, was assigned to replace Stover as Assistant General Counsel in Denver and assumed Stover's former supervisory role. Defending this reassignment, Diaz asserted that Stover's management style was inappropriate for the Denver office; he based this assessment on complaints and "somewhat critical" evaluations from staff in the Denver office, and his personal belief that Stover lacked communication skills. (I R. at 27, 97.)

Stover filed an EEO complaint in February 1997, alleging that her reassignment to the position of Managing Attorney was a result of her race, sex, age, and religion, and in reprisal for participating in EEO activity. In April 1997, Stover received a "Highly Successful" rating from George Weidenfeller, the rating official, on her performance appraisal for the period February 1, 1996 to January 31, 1997, which Diaz reviewed. (I R. at 28, 54, 432.) Stover filed an EEO complaint in June 1997, alleging that her "Highly Successful" rating was the result of racial, gender, age, and religious discrimination. She also asserted that her lower rating was retaliation for her interrogatory answers in the Dellera suit and her previous EEO complaint. In August, as the result of an "Informal Grievance Disposition," in response to her complaint, Stover's performance appraisal rating was changed to "Outstanding." (I R. at 29, 486.)

In February 1999, Stover again received an "Outstanding" performance rating for the previous year; in particular, Stover received a monetary performance award for her "Outstanding" rating, and her work on the "El Dorita" case was specifically mentioned in the performance appraisal. (I R. at 56, 161, 168.) Nonetheless, Stover filed an EEO complaint in March of 2000, protesting the fact that HUD had not awarded her "a special act or service award" for her handling of the "El Dorita" case, which she contended resulted in a settlement for "one of the largest amounts ever in an Administrative Law Judge case." (I R. at 59, 156.) Although she received a "Certificate of Superior Accomplishment" and a cash award of $750 for her work on the El Dorita matter, prior to the filing of the March 2000 EEO complaint regarding this issue, (I R. at 157), Stover regarded this award as untimely and "not commensurate with [her] achievement." (I R. at 59.)

HUD advertised a new "Supervisory Attorney-Advisor" position for the Denver office in November 1999. Ellen Dole, a white female, was selected for this position. Although Stover did not apply for this position, in her March 2000 EEO complaint, she alleged that HUD did not offer her this position non-competitively, as she believed it should have, in retaliation for her previous EEO complaints and her participation in the Dellera suit. Also in her March 2000 EEO complaint, Stover claimed she was denied a November 1999 special assignment in retaliation for her EEO complaints and participation in the Dellera suit. Ellen Dole had also been selected for that special assignment.

When Stover's replacement as Assistant General Counsel in Denver, Diane Lindsay, retired in June 2000, Stover requested that she be appointed to her former position of Assistant General Counsel, without HUD posting the position competitively. Gail Laster, General Counsel of HUD at the time, chose to advertise the position along with two other Assistant General Counsel positions, with an opening date of January 5, 2001. Although both Stover and Dole applied for the open position, due to insufficient time before the change in Administrations, HUD did not fill the positions competitively. Instead, Laster reassigned the three then-serving Deputy Assistant General Counsels to the open positions of Assistant General Counsels. Dole was the Deputy Assistant in the Denver office and was assigned to the Assistant position. Stover maintains that HUD's failure to reassign Stover to the Assistant General Counsel position after Lindsey's retirement was also retaliation for her EEO complaints and her answers to the Dellera interrogatory.

Stover filed suit in federal district court, alleging that HUD had discriminated against her based on her race and religion, and retaliated against her for her EEO complaints and participation in the Dellera interrogatory, in violation of Title VII, 42 U.S.C. § 2000e-3(a), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. Stover did not pursue her age discrimination claim; nor did she pursue a claim relying on a pattern or practice of discrimination. The district court granted summary judgment to HUD on all remaining claims; Stover appeals to this court, arguing that the district court erred in its ruling on her religious discrimination, racial discrimination, and retaliation claims.

II

This court reviews the district court's grant of summary judgment de novo, using the same standards applied by the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). The evidence and reasonable inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate only where "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). Mere allegations, however, are insufficient to survive a motion for summary judgment. Dep't of Commerce v. United States House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). "[W]e may affirm the district court for any reason supported by the record." Amro v. The Boeing Co., 232 F.3d 790, 796 (10th Cir.2000).

A

Title VII forbids retaliation against an employee because she has "opposed" any practice made unlawful by Title VII, or because she has "participated... in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Where there is no direct evidence of retaliation, we analyze a retaliation claim under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir.1998) (applying the McDonnell Douglas framework to a claim of retaliation). Following this framework, an employee must first present a prima facie case of retaliation, which then shifts the burden to the employer to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003). If the employer provides a legitimate, non-discriminatory justification for the action, the burden shifts back to the employee to provide evidence showing that the employer's proffered reason is a pretext for discrimination. Id. An employee may demonstrate pretext by showing the employer's proffered reason was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief. Bausman v. Interstate Brands Corp., 252 F.3d 1111,...