Wells v. Colorado Dept. of Transp.

• Decision Date: 18 April 2003
• Docket Number: No. 01-1508.,01-1508.
• Citation: 325 F.3d 1205
• Parties: Marion J. WELLS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION, Guillermo Vidal, in his official capacity as Executive Director, Department of Transportation, Richard L. Orton, in his individual capacity, and Robert P. Moston, in his individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1205

325 F.3d 1205

Marion J. WELLS, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION, Guillermo Vidal, in his official capacity as Executive Director, Department of Transportation, Richard L. Orton, in his individual capacity, and Robert P. Moston, in his individual capacity, Defendants-Appellees.

No. 01-1508.

United States Court of Appeals, Tenth Circuit.

April 18, 2003.

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John Mosby (Elisa Moran, with him on the briefs), Denver, Colorado, for Plaintiff-Appellant.

Thomas J. Lyons of Hall & Evans, L.L.C. (Andrew D. Ringel, with him on the brief), Denver, Colorado, for Defendants-Appellees.

Before KELLY, McKAY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiff Marion Wells appeals the district court's grant of summary judgment dismissing all her claims. She sued her former employer, the Colorado Department of Transportation (CDOT), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the CDOT had taken various adverse actions against her in retaliation for her repeated complaints of gender discrimination. She also sued two of her former supervisors in the CDOT, Robert Moston and Richard Orton, under 42 U.S.C. § 1983, alleging that they had violated her constitutional right to petition the government by retaliating against her for bringing a gender-discrimination complaint against the CDOT. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand on her Title VII claim that she was fired in retaliation for gender-discrimination complaints. But we affirm on all other claims against the CDOT and the individual defendants, either because CDOT's alleged misconduct did not rise to the level of an adverse action subject to Title VII or because Plaintiff failed to establish the necessary causal connection between the adverse action and her protected conduct.

I. Background

We review the district court's grant of summary judgment de novo, considering the evidence in the light most favorable to the appellant. Wilson v. Meeks, 98 F.3d 1247, 1252-53 (10th Cir.1996). We affirm unless the appellant points to evidence in the record establishing a genuine issue of material fact. See Fed.R.Civ.P. 56(c). In other words, if a jury could not render a verdict in favor of the plaintiff even if it viewed all the evidence presented on the summary judgment motion in the light most favorable to the plaintiff, then the court should grant the defendant summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Plaintiff worked as a Civil Engineering Project Manager at the CDOT. Defendant Orton was the Glenwood Springs Resident Engineer and Plaintiff's direct supervisor during most of the events underlying this litigation. Defendant Moston had indirect supervisory authority over Plaintiff in his position as the Regional Transportation Director of Region 3, which included the Glenwood Springs Residency. Mr. Moston was the "appointing authority" for the region, giving him final authority over personnel decisions.

In Plaintiff's § 1983 claims against Mr. Moston and Mr. Orton, she contends that the First Amendment right to petition the government (as applied to the states under the Fourteenth Amendment, De Jonge v. Oregon, 299 U.S. 353, 364-65, 57 S.Ct. 255, 81 L.Ed. 278 (1937)) protected her from retaliation for filing a lawsuit to enforce an agreement she had reached with the CDOT in settlement of a prior Title VII claim. Mr. Moston and Mr. Orton do not dispute the legal premise behind Plaintiff's claim, but they deny that they engaged in retaliation.

Plaintiff's Title VII claim against the CDOT is also based on the conduct of Mr. Moston and Mr. Orton. In her Title VII claim she contends that Title VII protected her from retaliation for (1) seeking to enforce the earlier settlement agreement, (2) filing a complaint with the CDOT's internal employment-discrimination unit, (3) filing an internal discrimination grievance against Mr. Orton, and (4) filing charges with the federal Equal Employment Opportunity Commission (EEOC). The CDOT defends on the grounds that (1) its actions with respect to Plaintiff were not substantial enough to constitute adverse employment actions prohibited by Title VII, and (2) none of its actions was motivated by retaliation for her protected conduct.

The pertinent events began more than two decades ago. On September 16, 1980, Plaintiff filed a Title VII class action lawsuit against the CDOT, alleging gender discrimination. The parties to the suit entered into a court-approved settlement agreement in February 1986. Nine months later, Plaintiff, believing the CDOT was not honoring its commitments, filed a motion in district court to compel enforcement of the agreement. For reasons not apparent in the record before us, the magistrate judge did not issue a report and recommendation until January 3, 1995. The judge concluded that the CDOT was not in compliance with the agreement. The district court disagreed, and on May 4, 1995, it orally informed the parties that it was going to close the case, which it did by written order of May 26, 1995.

Two months later Plaintiff received a job reassignment. Since 1994 she had served as the project engineer on the Aspen Guardrail Project, and since March of 1995 she had also served as the assistant project engineer on the Glenwood Springs Alternate Route Project. But on July 27, 1995, Mr. Orton assigned her to work full-time as the assistant project engineer on the Glenwood Springs project, thereby depriving her of the title of project engineer.

Several months later Plaintiff and Mr. Orton had an altercation with respect to the Glenwood Springs project. Mr. Orton had asked Plaintiff to supervise a concrete pour scheduled for November 3, 1995. At the pour site Plaintiff and Mr. Orton disagreed over which contract specifications should govern the pour. Mr. Orton overruled Plaintiff in front of coworkers and the contractors, and she, in turn, challenged his decision. Mr. Orton responded by telling Plaintiff that they could discuss the matter later and ordered her to leave the construction site. Plaintiff claims the dispute undermined her authority with the contractors. She cites an occasion after the pour when a contractor contacted the design consultant directly, rather than going through her, and then gave her orders. On November 7 she telephoned Mr. Orton, told him he had created problems for her with the contractors, and asked him "what he was going to do about it." Aplt.App. at 266-67. Mr. Orton responded that within two weeks she would no longer be working under his supervision and that she would be "Moston's problem." Aplt.App. at 5. He then hung up on her.

After her conversation with Mr. Orton, Plaintiff contacted Mr. Moston to complain about Mr. Orton's conduct. Mr. Moston told Plaintiff that Mr. Orton did not have the authority to transfer or terminate her and that he, Mr. Moston, would look into the situation. On November 16, 1995, Plaintiff filed a formal grievance with Mr. Moston regarding the matter. Mr. Moston investigated Plaintiff's complaints, concluded that Mr. Orton had acted improperly, and counseled Mr. Orton that his conduct was both inappropriate and beyond his authority. Mr. Moston's investigation also caused him to conclude that Plaintiff and Mr. Orton could no longer work together and that one of them would have to be transferred. Mr. Moston notified Plaintiff that he had discussed the dispute with Mr. Orton and that he believed Mr. Orton's actions warranted no formal discipline. Mr. Moston also discussed with Plaintiff the possibility of finding her a different job assignment commensurate with her experience and qualifications.

In addition to complaining to Mr. Moston, Plaintiff filed a formal complaint with the CDOT's Center for Equal Employment Opportunity (CEEO) on November 14, 1995. Her complaint alleged that Mr. Orton discriminated against her based on gender and retaliated against her for her lawsuit against the CDOT.

On November 16, the day she filed her formal grievance with Mr. Moston, Plaintiff took leave under the federal Family and Medical Leave Act (FMLA) due to job-related stress. She returned to work on December 6, 1995, but after five work days went back on leave starting December 15. At the direction of her physician and psychologist, Plaintiff remained on leave for an additional four months.

In April 1996 Mr. Moston asked Plaintiff to report back to work because her FMLA leave had expired. When she returned to work on April 12, she was told to report to the Glenwood Springs Residency under Mr. Orton's supervision. Seven days later, however, Mr. Moston informed Plaintiff that she would be transferred to the Grand Junction Residency. According to Mr. Moston, he decided to transfer Plaintiff rather than Mr. Orton because Mr. Orton was involved in several expensive and ongoing construction projects and it did not make sense to remove a person with that kind of responsibility. Despite Plaintiff's objection, the transfer took effect on April 24.

At Grand Junction, Plaintiff was to work as a project engineer under the supervision of James Patton, without any change in her job classification, rate of pay, or benefits. Initially, until additional project engineering work could be transferred to keep Plaintiff busy, she was to split her time between two assignments, spending 55% of her time at the Grand Junction Residency and 45% at the CDOT traffic section. But Grand Junction had no project engineering work available for Plaintiff, so she was temporarily reassigned to spend all her time working in the traffic section.

Plaintiff considered the traffic work demeaning and below her job classification. She spent her time on the assignment standing on a street corner manually counting cars. Mr. Moston explained that he had no...