F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 10 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
DWIGHT L. GRADY,
Plaintiff-Appellant,
v. No. 98-6099 (D.C. No. CIV-96-2006-T) SHAWNEE PUBLIC SCHOOL (W.D. Okla.) DISTRICT I-93, a political subdivision of the State of Oklahoma; JOHN P. BROBERG; JUDY BULL; RONALD D. DEMPSEY, in his individual capacity; DALE BEARD, J.D., in his individual capacity; KIM PURDOM, in her individual capacity; CHERYL WRIGHT, in her individual capacity; ERIC HOPKINS, D.D.S., in his individual capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Dwight L. Grady appeals from the district court’s grant of
summary judgment in favor of defendants on his claims of retaliation. We
exercise jurisdiction under 28 U.S.C. § 1291, and affirm.
I. Background
Plaintiff was employed as an administrator for the Shawnee Public Schools
(“Shawnee”) in September 1989, first as an elementary school principal, and then
as a high school assistant principal. Defendant John Broberg is the
superintendent of schools for Shawnee. Plaintiff’s employment with Shawnee
was rocky almost from the start. On November 18, 1991, Broberg proposed a
ten-day suspension for plaintiff because he could not get along with one of his
teachers and because he had been uncooperative and insubordinate. See
App. Vol. II at 225-26. The next day, plaintiff filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging that Broberg had
harassed and retaliated against him since December of 1990 because of his age.
See id. at 224. He claimed that the harassment was a plot to keep him from
retiring in four years and so that Broberg could hire a younger person for the
-2- position. See id. at 227. Plaintiff voluntarily withdrew the charge in January of
1992. See id. at 230.
Plaintiff then had problems with his secretary, and in March 1993 Broberg
gave plaintiff a written reprimand for personally contacting a school board
member to discuss the problem, for ignoring instructions to only send memos to
the board about personnel problems, and for seeking to have his secretary
transferred without first using the evaluation process. See id. at 244. Broberg
gave plaintiff a negative performance evaluation in 1994, identifying four areas in
which plaintiff needed improvement. See id. at 248.
During 1993 and 1994, plaintiff was active in organizing a union for
administrators and became its first president. Brenda Hodges, the principal of
Shawnee High School, was also a union organizer and became its second
president. In March of 1993, Broberg made a comment at a principals’ meeting
attended by both plaintiff and Hodges that he was opposed to administrator
unionization. See id. Vol. III at 588.
In 1994 Broberg transferred plaintiff to an assistant principal’s job at the
high school where Hodges served as principal. His reasons for reassigning
plaintiff were that he perceived parent involvement at plaintiff’s elementary
school to be low, that Broberg was upset at plaintiff’s reaction to and attitude
regarding his 1994 evaluation, and that he thought that plaintiff should have a
-3- new reviewing official evaluate plaintiff’s performance. See id. Vol. II at 246-47.
Plaintiff was given the same salary and benefits.
In June 1994 plaintiff filed a second EEOC charge of retaliation based upon
the reprimand, the negative performance evaluation, and the transfer. See id. at
501-03. In November 1994 he filed suit against the school district and Broberg,
alleging that Broberg retaliated against him for filing his first EEOC complaint in
1991 in violation of the Age Discrimination in Employment Act (“ADEA”) and
the First Amendment, and for participating in unionization activities. See id. at
214, 216-17, 218-19. The district court granted summary judgment for the school
district and Broberg, finding as a matter of law that the 1993 reprimand was too
remote from the 1991 EEOC charge to be causally connected. See id. at 245. The
court further found that the school district and Broberg had articulated a
legitimate, nondiscriminatory reason for the reassignment to the high school and
that plaintiff had failed to present any evidence of pretext. See id. at 247. The
court also found that plaintiff had failed to offer evidence to refute Broberg’s
nondiscriminatory reasons for the negative 1994 employment evaluation. See id.
at 248. Plaintiff dismissed his appeal from the court’s judgment on January 3,
1996. See id. at 251.
The allegations that formed the basis of the 1994 lawsuit that were rejected
by the district court in 1996 may not serve as “evidence” for summary judgment
-4- purposes in this case, and the court’s findings are binding on the parties. See Fox
v. Maulding , 112 F.3d 453, 456 (10th Cir. 1997) (noting that Oklahoma applies
the doctrine of collateral estoppel, which provides that “once a court has decided
an issue of fact or law necessary to its judgment, that issue may not be relitigated
between the same parties or their privies in a suit upon a different cause of
action”) (quotation omitted). Therefore, we reject plaintiff’s argument that the
“historical context” revealed by the prior charges and litigation shows an
“ongoing and progressively worsening pattern of retaliatory conduct and adverse
employment actions that the School District has visited upon [plaintiff].”
Appellant’s Br. at 3 n. 1. Plaintiff’s claims must stand or fall on only those
incidents occurring subsequent to August of 1994.
Plaintiff’s situation did not improve in 1994 after he began work at the high
school with Ms. Hodges, who had been his comrade and associate in organizing
the administrator’s union. Plaintiff alleges that at the beginning of the 1995
school year, at the direction of Broberg, Hodges replaced many of his leadership
job responsibilities with menial tasks. See App. Vol. II at 314. He states,
however, that “it did not bother me that I was now being taken out of all
leadership decision-making process [sic],” id. , and he did not object to the
change in job assignment. See id. Vol. III at 538. Hodges found it difficult to
work with plaintiff and testified that she “had not seen anyone in education for
-5- this period of time that lacked as many skills as [plaintiff] did.” Id. Vol. II at
395. She further testified that she changed plaintiff’s responsibilities after
plaintiff informed her that “he felt very strongly that he would win the [1994]
lawsuit . . . and would not be at the high school” for very long in 1995. Id. at
360. Plaintiff did not dispute this testimony. Because plaintiff insists that
Hodges told him that Broberg made the decision to change plaintiff’s job
assignment, see id. at 314, but Hodges testified that it was her decision alone and
that she had never talked to Broberg about the changes before she made them, see
id. at 376, there is a genuine issue in this regard. However, it is not an issue of
material fact that controls whether summary judgment was properly granted.
Hodges testified, and plaintiff does not disagree, that the new duties assigned to
plaintiff were all within the realm of duties of an assistant principal, see id. at
359, 362, and plaintiff admits that he was agreeable to the change in assignments.
As a matter of law, this was not an adverse employment action that can provide
support for a claim of retaliation or discrimination.
On March 27, 1996, Hodges gave plaintiff an evaluation for the 1995-96
school year that stated that plaintiff needed improvement in nine areas. She also
stated that plaintiff frequently did not fulfill the contractual day attendance
requirements. See id. at 482-89. After receiving the evaluation, Hodges testified
that plaintiff became “angry, critical, hostile, threatening, [and] intimidating” to
-6- her in a conference held on March 29. Id. at 382, 493. He threatened to tell other
administrators “how the staff had no respect for [her], how [her] staff did not
support [her]”, and that she “needed to think about changing these [negative]
areas” of the evaluation. Id. at 382. Hodges refused to change the evaluation.
See id. at 384. On April 1, 1996, plaintiff filed a third EEOC complaint alleging
that he was being subjected to retaliation for filing his 1994 EEOC complaint and
was being discriminated against because he was a male and because of his age.
See id. Vol. I at 70-71. He complained that in January 1996 he was embarrassed
and degraded by unfounded comments made by Broberg to his co-workers and
that he had been subjected to unequal terms and conditions of employment
because of the job assignment changes. See id. at 70.
Despite the negative evaluation and her difficulties in working with
plaintiff, Hodges had already recommended plaintiff’s reemployment with the
district. See id. Vol. II at 386. The school board approved a new contract for
plaintiff for the 1996-97 school year on April 2, 1996. See id. at 431. Hodges
testified that by May, however, she believed she had “exhausted my avenues of
working with Dr. Grady and I did believe that it would be necessary that I make a
recommendation for termination.” Id. at 402, 398.
Aware of the conflicts between plaintiff and Hodges and other
administrative personnel at the high school, see id. at 422-23, 481, in mid-April
-7- Broberg had asked plaintiff to transfer to a position of librarian at another high
school and also inquired whether plaintiff was still interested in an early
retirement. See id. at 329, 339, 402. Plaintiff refused the transfer and declined to
retire early. Hodges testified that, in the middle of May, she determined that
plaintiff should be terminated after having a conversation with plaintiff in which
he stated that “he would remain as an employee of the district for the next ten
years or as long as his health held out and he would do nothing and let the district
pay him.” Id. at 397, 398. In his summary judgment evidence, Plaintiff does not
dispute her testimony. Hodges then prepared a letter to Broberg formally
recommending plaintiff’s termination. In it she listed three reasons: his “failure
to respond to the guidance provided in his evaluation; his failure to fulfill his
assigned daily work hours; and his inability to work with the administrative staff
or to fulfill his assigned duties.” Id. at 476. She noted that her mutual
involvement in the union with plaintiff and her sense of loyalty to a fellow union
member had intensified her efforts to work cooperatively with plaintiff, but
recommended that he not be reassigned to another position because she believed
that he would “continue to avoid responsibility, threaten those who disagree with
him or dare to evaluate him . . . and would make charges of discrimination against
anyone who honestly sought to correct his deficiencies.” Id. at 477. Broberg
concurred with Hodges’ recommendation and recommended plaintiff’s dismissal
-8- to the school board. See id. at 473. After seventeen hours of hearings in which
plaintiff had the opportunity to testify, call witnesses, and cross-examine Broberg
and Hodges, the board voted to terminate plaintiff’s employment. See id. at 526,
454-55. Hodges was no longer employed by the Shawnee schools at the time she
testified at the hearing. See id. at 353.
Plaintiff then filed another EEOC charge on August 19, 1996, alleging that
his termination was the result of retaliation for filing his 1994 and April 1996
charges, for his union affiliation, and because of his age. See id. Vol. I at 76. In
this lawsuit, however, he does not allege age discrimination as a separate claim.
See id. Vol. II at 210-22.
II. Applicable legal standards
We review the district court’s grant of summary judgment de novo. See
McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). In
conducting that review,
[w]e examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine [whether] the substantive law was applied correctly, and in so doing we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion. However, where the non-moving party will bear the burden of proof at trial on a dispositive issue, that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence of an element essential to that party’s case in order to survive summary judgment.
-9- Id. (quotations and citations omitted). The movant need not negate the
nonmovant’s claim, but need only point to an “absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).
“[I]t is not enough that the nonmovant’s evidence be ‘merely colorable’ or
anything short of ‘significantly probative.’” Committee for the First Amendment
v. Campbell , 962 F.2d 1517, 1521 (10th Cir. 1992). There is no genuine issue of
fact “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp. , 475 U.S. 574, 587 (1986).
Title VII makes it an unlawful employment practice “for an employer to
discriminate against any of his employees . . . because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). We examine
plaintiff’s retaliation claims using the three-stage analysis outlined in McDonnell
Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See Richmond v. ONEOK,
Inc. , 120 F.3d 205, 208 (10th Cir. 1997). Thus, in order to prevail in a retaliation
suit,
the plaintiff initially must establish a prima facie case [of retaliation]. The burden [of production] then shifts to the employer to offer a legitimate non-retaliatory reason for the plaintiff’s termination. If the employer offers such a reason, the burden then shifts back to the plaintiff to show that there is a genuine dispute of
-10- material fact as to whether the employer’s proffered reason for the challenged action is pretextual.
Id. (quotations and citations omitted). A prima facie case of retaliation is
established on a showing of: “(1) protected opposition to discrimination or
participation in a proceeding arising out of discrimination; (2) adverse action by
the employer; and (3) a causal connection between the protected activity and the
adverse action.” Sauers v. Salt Lake County , 1 F.3d 1122, 1128 (10th Cir. 1993).
For retaliation cases based on protected First Amendment activity, to
establish a “causal connection,” the plaintiff must show that engaging in the
protected activity was a substantial or motivating factor in the adverse
employment action. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429
U.S. 274, 287 (1977). If the employee establishes the prima facie case, the
burden then shifts to the employer to produce evidence that it would have made
the same decision in the absence of the protected activity. See id.
“Pretext . . . may be established by showing either that a discriminatory
reason more likely motivated the employer or . . . that the employer’s proffered
explanation is unworthy of credence.” McKnight , 149 F.3d at 1129 (quotation
omitted). Pretext is demonstrated by showing “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its actions.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323
(10th Cir. 1997) (quotations omitted).
-11- In this case, defendants argued below, and the district court agreed, that
plaintiff could not show that engaging in unionization activities protected by the
First Amendment was a motivating factor in his termination. See App. Vol. II at
197-201; id. Vol. III at 652. In regard to his retaliation claim for filing a
discrimination charge with the EEOC, defendants asserted, and the court
concluded, that plaintiff could not make out a prima facie case of retaliation. See
id. Vol. II at 193-94; id. Vol. III at 653. Alternatively, defendants argued and the
court held that plaintiff could not show that the reasons stated for plaintiff’s
termination were a pretext for retaliation. See id. Vol. II at 194-97; id. Vol. III at
655-57. The issues before us are the same as they were in the district court:
whether plaintiff met his burden of producing either (1) evidence that defendants
based their adverse employment decisions on plaintiff having filed EEOC charges
or on his unionization activities, or (2) evidence that the defendants’ proffered
explanations for his termination were merely a pretext. We conclude he did not
meet either burden.
III. EEOC retaliation claim
Plaintiff argues that the causal connection between his protected activity of
filing the April 1996 EEOC charge and Hodges’ June 1996 recommendation of
termination may be established simply by the facts that the recommendation
closely followed the filing of the charge, see Burrus v. United Tel. Co. of Kan.,
-12- Inc. , 683 F.2d 339, 343 (10th Cir. 1982), and there was continuing friction
between the parties, see Chavez v. City of Arvada , 88 F.3d 861, 866 (10th Cir.
1996). We agree that close temporal proximity between a protected activity and
an adverse employment action may be enough evidence of causal connection to
survive summary judgment in regard to establishing the prima facie case. We
conclude, however, that defendants presented overwhelming evidence of
legitimate nonretaliatory reasons for Hodges’ recommendation of termination and
the school board’s decision to terminate, and plaintiff presented no probative
evidence on which a jury could find that those reasons were pretextual.
When a defendant presents evidence of legitimate reasons for adverse
actions, as Hodges did in this case, a plaintiff cannot just sit back and remain
silent or make conclusory statements that the witness was generally being
“untruthful”--he must refute each allegation with his version of the facts or with
other countervailing evidence. The record is clear and undisputed that plaintiff’s
difficulties and conflict with defendants began before the first EEOC charge was
filed. Further, Hodges’ negative employment evaluation occurred before, not
after, the 1996 EEOC charge was filed, and there had been no previous claim that
she participated in age or unionization discrimination. Plaintiff therefore can
hardly say that the negative evaluation was the product of retaliation. Hodges
also presented written documentation of dates and times during which she
-13- observed that plaintiff failed to fulfill his contractual day. Plaintiff cannot
sufficiently refute that evidence by simply saying “she did not tell the truth at that
due process hearing.” App. Vol. II at 315; see id. at 319. “To survive summary
judgment, non-movant’s affidavits must be based upon personal knowledge and
set forth facts that would be admissible in evidence; conclusory and self-serving
affidavits are not sufficient.” Murray v. City of Sapulpa , 45 F.3d 1417, 1422
(10th Cir. 1995) (quotations omitted). Further, even if Hodges was mistaken in
her perceptions of plaintiff’s skills and performance, plaintiff has raised no
question of Hodges’ sincerity regarding her evaluation of plaintiff’s abilities nor
of her feelings that she could no longer work with plaintiff. Cf. McKnight , 149
F.3d at 1129 (holding that if employer actually believed plaintiff committed
claimed sexual assault, its proffered reason for termination was not pretextual,
even if later shown to be erroneous).
Plaintiff argues that because Hodges gave him some acceptable ratings
before he filed his claim but recommended termination afterwards, that is
evidence of pretext. Plaintiff disregards, however, the adversarial conference and
exchanges of memos and Hodges’ undisputed testimony that he personally
attacked her credibility and abilities after the evaluation was prepared. It is not
inconsistent to recognize that an employee’s performance may be acceptable in
some areas and totally unacceptable in others.
-14- Plaintiff also argues that the fact that Hodges did not give him a formal and
separate plan of development prior to terminating his employment as allegedly
required by the collective bargaining agreement is evidence of pretext. We fail to
see the connection between the alleged fact and plaintiff’s assertion. We
conclude that the district court appropriately granted summary judgment in favor
of defendants on plaintiff’s EEOC retaliation claims.
IV. First Amendment retaliation claim
Plaintiff’s claim that his involvement in union activities was a motivating
factor in his termination also appropriately did not survive summary judgment.
The recommendation for termination undisputedly came from Hodges, who was at
that time the president of the administrator’s union. At the time she testified, she
was no longer affiliated with the Shawnee schools, nor was she under the
supervision of Broberg. There is absolutely no evidence that any of the school
board members, who made the final decision regarding termination, individually
or as a group opposed union efforts. Based on the evidence, no rational jury
could find that the board would not have terminated plaintiff in the absence of his
union activities.
-15- The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock Circuit Judge
-16-