FILED

United States Court of Appeals

Tenth Circuit

June 2, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PATRICIA F. SIMMONS, 

Plaintiff–Appellant,

v. No. 09-1558

SYKES ENTERPRISES,

INCORPORATED, a Florida

corporation,

Defendant–Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:08-CV-00449-JLK)

Elwyn F. Schaefer (Gary B. Witt with him on the briefs), of Elwyn F. Schaefer

and Associates, P.C., Denver, Colorado, for Plaintiff–Appellant.

John W. Campbell of Constangy, Brooks & Smith, LLP, Tampa, Florida, for

Defendant–Appellee.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

Patricia Simmons appeals from the district court’s grant of summary

judgment in favor of her former employer, Sykes Enterprises, on her claim of

discrimination in violation of the Age Discrimination in Employment Act of 1967
-2-

(“ADEA”), 29 U.S.C. § 621 et seq. The district court concluded Ms. Simmons

had failed to establish that Sykes’ reason for terminating her employment was

pretextual. For the following reasons, we AFFIRM. 

BACKGROUND

Ms. Simmons began working for Sykes in 1997, first as a phone technician

then later as a technician/assistant within the Human Resources (“HR”)

Department at Sykes’ Sterling, Colorado office. By all reports, Ms. Simmons was

a good employee during the ten years she was employed. 

Ms. Simmons alleges her work environment grew hostile in June 2007 upon

the return of Persephone James as the Sterling office’s site director. Shortly after

returning to the Sterling office, Ms. James allegedly told Ms. Simmons in an

“almost vicious” manner she thought Ms. Simmons had already retired. 

(Simmons Dep. 170:7-11, Aug. 7, 2008, Appellant’s App. at 128.) Ms. James

also allegedly told Ms. Simmons at an office party: “You better slow down

because at your age you’re going to have a heart attack if you keep this up.” (Id.

173:7-9.) Ms. Simmons also alleges Amanda Owen, Sykes’ Sterling HR

supervisor, made hostile comments about her to other co-workers. Specifically,

Ms. Owen allegedly asked another employee whether Ms. Simmons repeated

herself and stated “now that Pat is getting older she seems to forget a lot and is

always repeating herself.” (Gaddis Aff. ¶ 2, Aug. 14, 2008, Appellant’s App. at

321.) Ms. Simmons never complained to management about either Ms. James or
-3-

Ms. Owen. 

In early August 2007, an aggrieved employee complained to Ms. Owen that

somebody within the company had improperly disclosed the employee’s

confidential medical information. Ms. Owen notified Jeff Bieker, Sykes’ regional

HR Manager, and Mr. Bieker instructed Ms. Owen to begin interviewing those

mentioned in the complaint. Shortly thereafter, Janice DiRose, Sykes’ corporate

employment counsel and senior director of HR compliance, was notified of the

complaint. Ms. DiRose instructed Ms. James to interview and obtain written

statements from those involved. Ms. James, Ms. Owen, and Mr. Bieker all

participated in the investigation. They determined from initial interviews and

statements that Ms. Simmons had disclosed the confidential information to

another HR associate, Sharon Gaddis, who in turn disclosed it to others outside of

their department. 

On August 2, Ms. Gaddis answered questions and signed a statement, typed

by Ms. James, implicating Ms. Simmons as the source of the confidential

information. On August 7, Ms. Gaddis supplemented her statement with

information suggesting the confidential information had also been disclosed in a

manner independent from Ms. Simmons’ conduct. Although Ms. Gaddis has since

disavowed her statements, at no time during the investigation did she recant her

allegations despite having the opportunity to do so. 

Ms. James and Mr. Bieker twice met with Ms. Simmons to question her
1

 It is unclear whether Mr. Bieker recommended termination during the

conference call. However, he did conclude that Ms. Simmons should be

terminated and discussed his conclusion with Ms. James. (Bieker Dep. 40:19-24,

Aug. 8, 2008, Appellant’s App. at 225.)

-4-

about the disclosure. Prior to answering their questions, Ms. Simmons read and

signed a Notice of Investigation (“NOI”). The NOI informed her she would not

be retaliated against for participating in the investigation but she would be subject

to discipline or termination for disclosing confidential information, providing

false or misleading information, or sharing any information regarding the

investigation. During both interviews, Ms. Simmons denied any wrongdoing. 

After Ms. James, Ms. Owen, and Mr. Bieker completed their interviews,

Ms. DiRose reviewed the collected statements and personally interviewed Ms.

Gaddis and Ms. Simmons. Ms. Simmons again denied having disclosed the

confidential information. However, Ms. DiRose believed that, over the course of

the investigation, Ms. Simmons gave inconsistent answers regarding her

knowledge of the confidential information and discussed other employees’

confidential medical information. During a conference call between Ms. James,

Ms. Owen, Mr. Bieker, and Ms. DiRose, Mses. James and Owen recommended

Ms. Simmons be terminated.1 Ms. DiRose then recommended to Jenna Nelson,

Sykes’ senior vice president of HR, that Ms. Simmons be terminated, and Ms.

Nelson authorized the termination.

Sykes fired both Ms. Simmons, who was sixty-two, and Ms. Gaddis, who
-5-

was twenty-three. After her termination, Ms. Simmons filed a complaint with the

Equal Employment Opportunity Commission. After receiving a Dismissal and

Notice of Rights, she filed this lawsuit in district court. The court granted

summary judgment in favor of Sykes, concluding Ms. Simmons did not establish

any dispute of material fact that Sykes’ stated reasons for her termination were

pretext for age discrimination. This appeal followed.

DISCUSSION

We review the grant of summary judgment de novo, applying the same

standards as the district court. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1195 (10th Cir. 2008). We view the facts, and all reasonable inferences

those facts support, in the light most favorable to the nonmoving party, here Ms.

Simmons, see id., but we will not as a general matter consider issues that were not

raised below, see United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007)

(citing Singleton v. Wulff, 428 U.S. 106, 120 (1976)). Because our review is de

novo, we need not separately address arguments that the district court erred by

viewing evidence in the light most favorable to Sykes and by treating disputed

issues of fact as undisputed. See Rivera v. City and Cnty. of Denver, 365 F.3d

912, 920 10th Cir. 2004). “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to
-6-

hire or to discharge any individual or otherwise discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C. § 623(a). “[T]he

ordinary meaning of the ADEA’s requirement that an employer took adverse

action ‘because of’ age is that age was the ‘reason’ that the employer decided to

act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. ___, 129 S. Ct. 2343, 2350 (2009).

In other words, we must determine whether age was a “but-for” cause, id., or “the

factor that made a difference,” Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1277

(10th Cir. 2010); cf. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and

Keeton on Torts § 41, at 265 (5th ed. 1984) (“An act or omission is not regarded

as a cause of an event if the particular event would have occurred without it.”). 

Ms. Simmons has not challenged the district court’s holding that there is no

direct evidence of discrimination, so we evaluate her ADEA claim using the

three-step framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973). See Jones, 617 F.3d at 1278-79. Under this framework, the

plaintiff must initially establish a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802. If the plaintiff establishes a prima facie case, the

burden shifts to the employer to articulate some legitimate, nondiscriminatory

reason for its action. Id. at 802-03. Should the defendant carry this burden, the

plaintiff must then have an opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its true
-7-

reasons, but were a pretext for discrimination. Id. at 804.

Pretext

Our relevant inquiry for determining pretext is “whether the employer’s

stated reasons were held in good faith at the time of the discharge, even if they

later prove to be untrue, or whether plaintiff can show that the employer’s

explanation was so weak, implausible, inconsistent or incoherent that a reasonable

fact finder could conclude that it was not an honestly held belief but rather was

subterfuge for discrimination.” Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250

(10th Cir. 2006). In making this determination we “look at the facts as they

appear to the person making the decision to terminate.” Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000). 

Any argument by Ms. Simmons for pretext based on whether she actually

disclosed the confidential information fails to address our inquiry of whether

Sykes honestly relied in good faith upon the reported inconsistencies both in Ms.

Simmons’ statements and between her statements and the statements of others. 

“Evidence that the employer should not have made the termination decision—for

example, that the employer was mistaken or used poor business judgment—is not

sufficient to show that the employer’s explanation is unworthy of credibility.” 

Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169-70 (10th Cir.

2007). 

Turning then to the basis for Sykes’ decision, it claims it relied on
-8-

perceived inconsistencies in Ms. Simmons’ statements, including her initial

statement that she was unsure if others knew the confidential information even

though she later told the investigators other people were aware of the information

and her claims that she did not know certain details of confidential information

despite mentioning those details during the course of her interviews and

statements. Sykes also claims to have relied on Ms. Simmons’ voluntary

disclosure of unrelated confidential medical information in a written statement

submitted to the investigators as evidence that she could not be trusted with

confidential information. 

Sykes has consistently relied upon these concerns as its justification for

believing Ms. Gaddis’ statements over those of Ms. Simmons and concluding Ms.

Simmons disclosed the confidential information. Here, “[o]ur role is . . . not to

act as a ‘super personnel department’ that second guesses employers’ business

judgments.” Simms v. Oklahoma ex rel. Dep’t of Mental Health and Substance

Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999). As it appeared to Sykes, Ms.

Simmons’ statements contained illogical changes in degrees of knowledge and

certainty. Furthermore, Ms. Simmons’ position as an HR assistant carried with it

a special duty to safeguard and maintain confidential employee information. 

Given the information she had before her, Ms. DiRose had discretion to err on the

side of caution and conclude Ms. Simmons “could not be trusted to protect the

confidentiality of private employee and Company information.” (DiRose Decl.
3

 Ms. Simmons argues for the first time in her reply brief that Sykes

authorized Ms. Gaddis to have access to the confidential information and thus it

would be impossible for Ms. Simmons to disclose anything to Ms. Gaddis about

which Ms. Gaddis did not already have the right to know. This argument comes

too late. “This court does not ordinarily review issues raised for the first time in a

reply brief.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).

4

 The term “cat’s paw” entered the employment discrimination lexicon in

Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). For background on the

term, see EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484

(continued...)

-9-

¶20, Dec. 23, 2008, Appellant’s App. at 240); cf. Bauer v. Bailar, 647 F.2d 1037,

1046 (10th Cir. 1981) (holding employer’s subjective hiring criteria to be nonpretextual where the subjective factors considered were articulated and generally

relevant to the job). Sykes’ desire for greater confidence in its HR staff is further

evinced by its decision to also terminate Ms. Gaddis, a younger employee who

allegedly violated similar rules of confidentiality and investigatory protocol and

was fired at the same time as Ms. Simmons.3

Subordinate Bias

Our inquiry is not limited, however, to evaluating whether Sykes’

justification for terminating Ms. Simmons was, in the eyes of the final decisionmakers, honestly held in good faith. We must also address whether Mses. James

and Owen harbored discriminatory animus toward Ms. Simmons and, through

their biased influence on the final decision, caused Ms. Simmons’ termination.

The Supreme Court recently affirmed the theory of subordinate bias—or

“cat’s paw”4—liability in Staub v. Proctor Hospital, 562 U.S. ___, 131 S. Ct.
4

(...continued)

(10th Cir. 2006).

-10-

1186 (Mar. 1, 2011), holding that, in a discrimination suit arising under the

Uniformed Services Employment and Reemployment Rights Act (“USERRA”), an

employer is liable if: (1) a supervisor performs an act motivated by antimilitary

animus that is intended to cause an adverse employment action, and (2) that act is

a proximate cause of the ultimate employment action. 

We must first consider whether the holding in Staub applies to

discrimination cases brought under the ADEA. Unlike Title VII and the

USERRA, “the ADEA’s text does not provide that a plaintiff may establish

discrimination by showing that age was simply a motivating factor,” the operative

phrase relied upon in Staub. Gross, 129 S. Ct. at 2349. A plaintiff alleging age

discrimination must instead prove age was a “but for” cause of her termination. 

See id. Despite this distinction, the underlying principles of agency upon which

subordinate bias theories are based apply equally to all types of employment

discrimination discussed here. Indeed, this circuit has applied the subordinate

bias doctrine to cases arising under both Title VII, see, e.g., EEOC v. BCI CocaCola Bottling Co. of Los Angeles, 450 F.3d 476, 485 (10th Cir. 2006), and the

ADEA, see Schulte v. Potter, 218 F. App’x 703, 719 (10th Cir. 2007). 

Although we apply the subordinate bias doctrine to age discrimination

cases, the ADEA requires more than what must ordinarily be proven under an
-11-

analogous Title VII or USERRA action. If we were to apply Staub directly to an

age-discrimination case, the plaintiff would then only need to prove her

supervisor’s animus was somehow related to the termination and not that the

animus was necessary to bring about the termination. Compare Staub, 131 S. Ct.

at 1192 (“Proximate cause requires only some direct relation between the injury

asserted and the injurious conduct alleged, and excludes only those links that are

too remote, purely contingent, or indirect.”) (internal quotation marks and

brackets omitted), with Gross, 129 S. Ct. at 2349-50. In age-discrimination cases,

however, the relationship between a subordinate’s animus and the ultimate

employment decision must be more closely linked. Cf. Lindsey v. Walgreen Co.,

615 F.3d 873, 876 (7th Cir. 2010) (“[E]ven if Jenkins were a cat’s paw, Lindsey

could not prevail because the evidence established at most that her age was a

motivating factor in Walgreens’ decision to fire her. To establish liability under

the ADEA, however, Lindsey had to show that her age was the determinative

factor.”). Thus, even after Staub, an ADEA plaintiff seeking to hold an employer

liable through the discriminatory conduct of its subordinate must show the

subordinate’s animus was a “but-for” cause of the adverse employment action, i.e.

it was the factor that made a difference. See Jones, 617 F.3d at 1277. 

To illustrate, a supervisor’s animus might be a “but-for” cause of

termination where, for example, the biased supervisor falsely reports the

employee violated the company’s policies, which in turn leads to an investigation
-12-

supported by the same supervisor and eventual termination. Or the biased

supervisor may write a series of unfavorable periodic reviews which, when

brought to the attention of the final decision-maker, serve as the basis for

disciplinary action against the employee. But where a violation of company

policy was reported through channels independent from the biased supervisor, or

the undisputed evidence in the record supports the employer’s assertion that it

fired the employee for its own unbiased reasons that were sufficient in themselves

to justify termination, the plaintiff’s age may very well have been in play—and

could even bear some direct relationship to the termination if, for instance, the

biased supervisor participated in the investigation or recommended

termination—but age was not a determinative cause of the employer’s final

decision. 

Here, assuming without deciding that Mses. James and Owen were

motivated by ageist animus and intended to have Ms. Simmons’ employment

terminated, we must still determine whether Ms. Simmons’ age was a “but-for”

cause of her termination by asking whether Sykes would have fired Ms. Simmons

but for Mses. James and Owen’s alleged bias. It is undisputed that neither Ms.

James nor Ms. Owen caused the investigation to begin. Rather, Mr. Bieker and

Ms. DiRose acted in response to a complaint initiated by an aggrieved, unbiased

employee. Mr. Bieker ordered the first interview, and Ms. DiRose ordered the full

investigation. Ms. DiRose received input from individuals other than Mses. James
-13-

and Owen and personally interviewed both Ms. Simmons and Ms. Gaddis before

deciding to recommend termination to Ms. Nelson. Mr. Bieker, against whom

there is no allegation of discriminatory bias, similarly concluded Ms. Simmons

should be terminated. Sykes also terminated Ms. Gaddis’ employment for similar

violations of company policy despite an absence of discriminatory animus. 

These undisputed facts permit only the inference that, absent the alleged

discriminatory bias, Sykes would still have fired Ms. Simmons because, from

Sykes’ perspective, she violated company policy and could not be trusted with

confidential information. Thus, a reasonable jury could not find Ms. Simmons was

terminated because of her age. 

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order granting

summary judgment.