## F I L E D United States Court of Appeals Tenth Circuit 

### APR 18 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARION J. WELLS,

Plaintiff-Appellant,

v. No. 01-1508 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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 97-WM-95)

John Mosby (Elisa Moran, with him on the briefs), D enver, 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.-2-

Plaintiff Marion Wells appeals the district court’s grant of summary judgment dismissing all her claims. She sued her f ormer employer, the Colorado Department of Transportation (CDOT), under Title VI I 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, a lleging that they had violated her constitutional right to petition the g overnment by retaliating against her for bringing a gender-discrimination complaint against the CDOT. We have jurisdiction under 28 U.S.C. § 1291. We reverse an d 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 ri se to the level of an adverse action subject to Title VII or because Plaintiff fa iled to establish the necessary causal connection between the adverse action and he r protected conduct.
I. Background We review the district court’s grant of summary jud gment de novo, considering the evidence in the light most favorabl e to the appellant. Wilson v.-3-

Meeks , 98 F.3d 1247, 1252-53 (10th Cir. 1996). We affirm unless the appellant points to evidence in the record establishing a gen uine 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 (1986). Plaintiff worked as a Civil Engineering Project Man ager at the CDOT. Defendant Orton was the Glenwood Springs Resident E ngineer and Plaintiff’s direct supervisor during most of the events underly ing this litigation. Defendant Moston had indirect supervisory authority over Plai ntiff in his position as the Regional Transportation Director of Region 3, whichincluded 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 gove rnment (as applied to the states under the Fourteenth Amendment, DeJonge v. Oregon , 299 U.S. 353, 364-65 (1937)) protected her from retaliation for filing alawsuit to enforce an agreement she had reached with the CDOT in settlement of a pr ior Title VII claim.-4-

Mr. Moston and Mr. Orton do not dispute the legal p remise behind Plaintiff’s claim, but they deny that they engaged in retaliati on. Plaintiff’s Title VII claim against the CDOT is als o based on the conduct of Mr. Moston and Mr. Orton. In her Title VII claim s he contends that Title VII protected her from retaliation for (1) seeking to e nforce the earlier settlement agreement, (2) filing a complaint with the CDOT’s i nternal employmentdiscrimination unit, (3) filing an internal discrim ination 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 it s actions was motivated by retaliation for her protected conduct. The pertinent events began more than two decades ag o. On September 16, 1980, Plaintiff filed a Title VII class action laws uit against the CDOT, alleging gender discrimination. The parties to the suit ent ered 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 n ot apparent in the record before us, the magistrate judge did not issue a rep ort and recommendation until January 3, 1995. The judge concluded that the CDOT was not in compliance with-5-

the agreement. The district court disagreed, and o n 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 reassignm ent. 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 J uly 27, 1995, Mr. Orton assigned her to work full-time as the assistant pro ject engineer on the Glenwood Springs project, thereby depriving her of the title of project engineer. Several months later Plaintiff and Mr. Orton had analtercation with respect to the Glenwood Springs project. Mr. Orton had ask ed Plaintiff to supervise a concrete pour scheduled for November 3, 1995. At the pour site Plaintiff and Mr. Orton disagreed over which contract specificati ons should govern the pour. Mr. Orton overruled Plaintiff in front of coworkers and the contractors, and she, in turn, challenged his decision. Mr. Orton respon ded by telling Plaintiff that they could discuss the matter later and ordered herto leave the construction site. Plaintiff claims the dispute undermined her authori ty 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 g ave her orders. On November 7 she telephoned Mr. Orton, told him he had created p roblems for her with the-6-

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 co ntacted Mr. Moston to complain about Mr. Orton’s conduct. Mr. Moston tol d 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, 199 5, Plaintiff filed a formal grievance with Mr. Moston regarding the matter. Mr . Moston investigated Plaintiff’s complaints, concluded that Mr. Orton ha d acted improperly, and counseled Mr. Orton that his conduct was both inapp ropriate 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 thathe had discussed the dispute with Mr. Orton and that he believed Mr. Orton’s act ions warranted no formal discipline. Mr. Moston also discussed with Plainti ff 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 Employme nt Opportunity (CEEO) on November 14, 1995. Her complaint alleged that M r. Orton discriminated-7-

against her based on gender and retaliated against her for her lawsuit against the
CDOT. On November 16, the day she filed her formal grieva nce with Mr. Moston, Plaintiff took leave under the federal Family and M edical Leave Act (FMLA) due to job-related stress. She returned to work on Dec ember 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 l eave 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 w ork on April 12, she was told to report to the Glenwood Springs Residency un der Mr. Orton’s supervision. Seven days later, however, Mr. Moston informed Plai ntiff that she would be transferred to the Grand Junction Residency. Accor ding to Mr. Moston, he decided to transfer Plaintiff rather than Mr. Orton because Mr. Orton was involved in several expensive and ongoing construct ion projects and it did not make sense to remove a person with that kind of res ponsibility. Despite Plaintiff’s objection, the transfer took effect on April 24. At Grand Junction, Plaintiff was to work as a proje ct engineer under the supervision of James Patton, without any change in her job classification, rate of pay, or benefits. Initially, until additional proj ect engineering work could be-8-

transferred to keep Plaintiff busy, she was to spli t 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 ha d no project engineering work available for Plaintiff, so she was temporarily rea ssigned 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 assignme nt standing on a street corner manually counting cars. Mr. Moston explained that he had no choice but to assign Plaintiff to work full-time in the traffic s ection, because while she was on leave the CDOT had allocated all the project engine ering work for the season to other engineers. He claimed that Plaintiff would h ave been assigned project engineering work as it became available but it was not feasible to disrupt the work flow by pulling engineers off their assignment s simply to accommodate Plaintiff’s desire for a specific kind of work. Di ssatisfied with her work situation, on June 22, 1996, Plaintiff filed Charge s of Discrimination with the EEOC, alleging Mr. Moston and Mr. Orton discriminat ed against her based on gender and retaliated against her because of her pr ior lawsuit against the CDOT. In addition, Plaintiff requested and received furth er medical leave based on work-related stress. Before starting her leave on July 1, 1996, she told-9-

Mr. Moston that she would return to work when appro priate engineering assignments became available. When Plaintiff exhausted her accrued leave time on September 27, 1996, Mr. Moston terminated her effective September 30, 1 996. Before doing so, he did not ask Plaintiff to return to work, even though pr oject engineering work had become available by the time of her termination. M r. Moston claimed that he had no choice but to terminate Plaintiff because he had never received notice that she was able to return to work.
II. Title VII Retaliation Claim Plaintiff claims that the CDOT, through the conductof Mr. Moston and Mr. Orton, discriminated against her in retaliation for actions she took in opposition to unlawful employment practices. This claim is based on 42 U.S.C. § 2000e-3(a), which states: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . bec ause [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, t estified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. We consider these retaliation claims under the McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802- 03 (1973). Under that framework, Plaintiff must fi rst establish a prima facie case by showing “that: (1) [she] engaged in protected op position to discrimination; (2)-10-

[she] suffered an adverse employment action; and (3 ) there is a causal connection between the protected activity and the adverse empl oyment action.” O’Neal v. Ferguson Contr. Co. , 237 F.3d 1248, 1252 (10th Cir. 2001). “Once [Pla intiff] makes a prima facie showing, [the CDOT] must articu late a legitimate, nondiscriminatory reason for the adverse employmentaction. [Plaintiff] must [then] respond by demonstrating [that the CDOT’s] a sserted reasons for the adverse action are pretextual.” Id. (internal citation omitted).
A. Prima facie case
1. Protected activity The first element of the prima facie case—protected opposition to discrimination—is not at issue on appeal. The CDOT does not contest that Title VII protects Plaintiff against discrimination for ( 1) her lawsuit to enforce the settlement, which was resolved on May 26, 1995; (2) her internal CEEO complaint of November 14, 1995; (3) her internal gr ievance against Mr. Orton on November 16, 1995; and (4) her filing of EEOC charg es on June 22, 1996.

2. Adverse action Plaintiff must establish that she suffered an adver se employment action. “Although the Tenth Circuit liberally defines an ‘a dverse employment action,’ its existence is determined on a case by case basis and does not extend to a mere inconvenience or an alteration of job responsibilit ies.” Heno v. Sprint/United-11-

Mgmt. Co. , 208 F.3d 847, 857 (10th Cir. 2000) (internal quot ation marks omitted). To be an adverse action, the employer’s conduct must be “materially adverse” to the employee’s job status. Sanchez v. Denver Pub. Schs. , 164 F.3d 527, 533 (10th Cir. 1998); see Aquilino v. Univ. of Kansas , 268 F.3d 930, 934 (10th Cir. 2001) (indicating that adverse action mu st be “a significant change in employment status, such as . . . firing, failing to promote, reassignment with significantly different responsibilities, or a deci sion causing a significant change in benefits” (quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998))). Plaintiff asserts that eight of the CDOT’s acts wer e adverse actions within the meaning of our precedents: (1) her removal as p roject engineer on the Aspen Guardrail Project to work full-time as the assistant project engineer on the Alternate Route Project; (2) Mr. Orton’s poor treatment of her on the cement pour site; (3) Mr. Orton’s vow to have her removed from his residency; (4) Mr. Orton’s refusal to assign her work after their disagreement s; (5) Mr. Moston’s refusal to discipline Mr. Orton; (6) her transfer from the Gle nwood Springs Residency to the Grand Junction Residency; (7) her reassignment to count cars in the traffic section; and (8) her termination. We reject Plaint iff’s first five assertions and accept the remainder. We begin with those we rejec t.-12-

Plaintiff claims that it was an adverse action for Mr. Orton to remove her from her position as project engineer on the Aspen Guardrail Project and place her full-time as the assistant project engineer on the Glenwood Springs Alternate Route Project. To resolve this issue, we must firs t put the matter in context. Within the CDOT there are two types of engineers—Pr ofessional Engineers and Civil Engineering Project Managers (CEPM). Pro fessional Engineers have engineering degrees and are licensed. CEPMs usuall y do not have engineering degrees and are not licensed. Professional Enginee rs work as “project engineers” on large, complicated construction projects, wherea s CEPMs work as “project engineers” on smaller, less complicated projects an d as “assistant project engineers” (under the supervision of Professional E ngineers) on larger projects. The descriptors “project engineer” and “assistant p roject engineer” are not official job titles and have no effect on pay; they merely r eflect the positions that engineers occupy on particular construction project s. Plaintiff was officially classified as a CEPM II (o r its equivalent) in the years prior to the events of this litigation. Begi nning in 1987 and continuing until November 1995, she worked as a project engineer on small- to medium-sized projects, and as an assistant project engineer on l arger projects. Between late 1994 and mid-1995, she worked on two projects in di fferent roles; she served as the project engineer on the smaller, less complex A spen Guardrail Project, and,-13-

beginning in March 1995, she served as the assistant project engineer on the larger Alternate Route Project. On July 27, 1995, Mr. Orton reassigned her to spend all her time on the Alternate Route Project. She claims the reassignment was an adverse action. We disagree. Plaintiff’s reassignment to work as an assistant pr oject engineer on the Alternate Route Project was not out of the ordinary . Her job classification and rate of pay remained the same, and her position was similar to those she had occupied in prior years. As early as 1987 Plaintif f had worked as a project engineer and as late as 1994 she had worked as an a ssistant project engineer. On the Alternate Route Project, Plaintiff’s work was s imilar to what she had been doing on the Aspen Guardrail Project, and at times the work was more sophisticated. Plaintiff frequently served as the acting project engineer on the $4 million Alternate Route Project when the assigned p roject engineer was away from the project. On these occasions Plaintiff ove rsaw larger and more complicated construction work than when she was the full-time project engineer on the $88,000 Aspen Guardrail Project. The recordthus compels the conclusion that the reassignment did not adversely affect Plai ntiff’s employment status. See Sanchez , 164 F.3d at 532 (an involuntary lateral transfer did not constitute an adverse employment action when the transfer did notalter the plaintiff’s responsibilities, salary, or benefits).-14-

Plaintiff fares no better with her contention that Mr. Orton’s poor treatment of her on the cement pour site was an adverse actio n. At the site Plaintiff and Mr. Orton had a disagreement over what contractual specifications should govern the pour. Mr. Orton had assigned Plaintiff to supe rvise the pour that day, but he was still Plaintiff’s supervisor and the ultimate authority on projects occurring within his residency. Although Mr. Orton’s behavio r may have been inappropriate, we have followed other courts in hol ding that “unsubstantiated oral reprimands” and “unnecessary derogatory comments” are not in themselves “materially adverse employment action[s].” Sanchez , 164 F.3d at 533 (internal quotation marks deleted). Plaintiff emphasizes that the reprimand was uttered in the presence of persons who needed to respect her i nstructions. Nevertheless, the evidence pointed to by Plaintiff (the disrespect sh own her by a contractor a few days after the incident) does not establish a loss of authority that was severe or prolonged enough to constitute a “materially advers e” reduction in job responsibilities. Accordingly, she suffered no adv erse action under Title VII. Plaintiff also claims that Mr. Orton’s vow to trans fer her was an adverse action. During a telephone conversation four days after the dispute at the pour site, Plaintiff demanded to know “what [Mr. Orton] was going to do about” the difficulties she claimed to be having with contract ors. Aplt. App. at 266-67. In response he told her that she would soon be out of his residency. This “threat,”-15-

however, did not in itself adversely affect Plainti ff’s employment. Mr. Orton had no authority to transfer Plaintiff. Later, we will examine the transfer itself as a possible adverse action. Plaintiff further contends that Mr. Orton’s refusal to assign her work after their dispute was an adverse action. But the failu re to assign work was for too brief a period to rise to the level of an adverse a ction. Mr. Orton and Plaintiff had their telephone confrontation on Tuesday, Novem ber 7, 1995. Later that evening Plaintiff contacted Mr. Moston to discuss the incident, and Mr. Moston told her that he would investigate the situation an d get back to her. Seven business days later, on Thursday, November 16, 1995 , Plaintiff went on medical leave. She returned to Mr. Orton’s residency for f ive work days in December and then went back on leave until April 1996. After re turning in April, she was back in Mr. Orton’s residency for seven days before bein g transferred to Grand Junction. Thus, when she complains of not receivin g work from Mr. Orton, she is talking about at most a total of 19 working days (s even in November, five in December, and seven in April), over a period of app roximately five months. Seven of these days immediately followed Plaintiff’ s confrontation with Mr. Orton—a period during which Mr. Moston was inve stigating Plaintiff’s complaints. And the seven days at the end of Plain tiff’s tenure in Mr. Orton’s-16-

residency was the period during which Mr. Moston wa s considering, and then arranging for, Plaintiff’s transfer to Grand Juncti on. The long-term planning involved in the CDOT’s road construction projects makes it difficult to assign an engineer to a proje ct on short notice. Generally, engineers are assigned months before construction i s to begin. Of course, assignments can be shuffled to accommodate new engi neers who can use work, but immediate accommodation could cause significantlosses in efficiency. As a consequence, failure to assign a project immediatel y to an engineer who has unexpectedly become available is not a reflection o n the engineer’s quality of work and does not diminish the engineer’s status. Plaintiff has failed to present sufficient evidence to establish that the failure t o assign her work for three brief periods constituted a “materially adverse” reductio n in job responsibilities. Plaintiff also asserts that Mr. Moston’s refusal to discipline Mr. Orton for Mr. Orton’s inappropriate treatment of her was an a dverse action. We fail to see how Mr. Moston’s lack of action with respect to a third party (Mr. Orton) materially affected Plaintiff’s employment status. Although Plaintiff might receive some personal satisfaction or vindication f rom punishment of her perceived nemesis, her conditions of employment wer e not materially affected by the lack of discipline. After all, by the time Mr. Moston reached a conclusion on Plaintiff’s grievance against Mr. Orton in January 1996, she was already on leave-17-

and was having no contact with Mr. Orton. When she returned to work in April 1996, she was under Mr. Orton’s supervision for onl y seven days before being transferred. Nothing in the record indicates that Mr. Moston’s failure to punish Mr. Orton had any effect on Plaintiff’s employment status during the time she remained under his supervision. Moreover, if the f ailure to punish Mr. Orton did lead to adverse actions against her, her Title VII claim would need to be based on those actions rather than on the failure to discipl ine Mr. Orton. Plaintiff’s last three assertions of adverse actionprove more successful. We address together the first two—her transfer fromGlenwood Springs to Grand Junction and her reassignment to count cars in the traffic section. Prior to the transfer from Glenwood Springs to Grand Junction, P laintiff served as either an assistant project engineer or a project engineer on construction projects in the Glenwood Springs Residency. She had fairly signifi cant responsibilities; among other things, she supervised contractors, kept exte nsive records of project development and cost, contacted landowners to discu ss the effect of construction projects on their land, and coordinated efforts wit h various other governmental agencies and utility companies. Those work duties changed dramatically when she was transferred. Although Plaintiff retained the same rate of pay an d the same job classification, she never performed project engineering work at the new location. Upon transfer,-18-

she was immediately reassigned to a temporary stintin the traffic section. Plaintiff’s job, for the nearly two months that she was assigned to the traffic section, consisted of standing on a street corner m anually counting cars. This evidence would support a determination that Plainti ff suffered a “materially adverse” alteration in job responsibilities. See Forkkio v. Powell , 306 F.3d 1127, 1131 (D.C. Cir. 2002) (“[R]eassignment with signifi cantly different responsibilities . . . generally indicates an adver se action.” (internal quotation marks omitted)); Richardson v. New York State Dep’t of Corr. Serv. , 180 F.3d 426, 444 (2d Cir. 1999) (factfinder could conclude that employee’s reassignment to position with different job responsibilities andmore contact with inmates was an adverse employment action). Similarly, Mr. Moston’s termination of Plaintiff wa s an adverse action. It hardly requires stating that when an employer tells an employee that she no longer has a job, that employee’s job status has been sign ificantly and materially altered.
See Pastran v. K-Mart Corp. , 210 F.3d 1201, 1205 (10th Cir. 2000) (termination is an adverse action under Title VII).

3. Causal connection Next we consider whether there is sufficient eviden ce to support the causalconnection element of Plaintiff’s prima facie case—that is, whether there was a retaliatory motive behind the adverse actions.-19- a. Transfer to Grand Junction and assignment to traffic section There are three instances of protected activity pre dating Plaintiff’s transfer to Grand Junction and her reassignment to the traff ic section: (1) her participation in the class action lawsuit; (2) her internal CEEO complaint of November 14, 1995, alleging misconduct by Mr. Orton ; and (3) her internal grievance against Mr. Orton on November 16, 1995. Plaintiff has produced insufficient evidence to establish a causal connect ion to the first of these protected activities, but can show a causal connect ion to the second and third. The claim of retaliation for her class action lawsu it strains credulity. To support her claim, Plaintiff contends that Mr. Most on thought her lawsuit was frivolous. She points to the deposition testimony of one of Mr. Moston’s colleagues, Rebecca Doane, who testified that “[Mr. Moston] probably didn’t say to me, ‘I disapprove of Marion Wells’ lawsuit,’ buthe made it quite clear that he considered it frivolous, not valid, a pain in the a ss.” Aplt. App. at 44. Plaintiff offers no evidence of when Mr. Moston had these tho ughts. There is no evidence of how Mr. Moston made his feelings “quite clear” t o Ms. Doane. And, perhaps most importantly, there is no evidence that Mr. Mos ton ever took action based on his feelings. In fact, Ms. Doane herself testified that she did not believe that Mr. Moston retaliated against Plaintiff.-20-

Moreover, there is a remarkable delay of more than seven years between when Mr. Moston learned of Plaintiff’s lawsuit and when he allegedly took adverse employment action against her. Plaintiff f iled the suit in 1980, and it was settled in 1986. Later in 1986, she moved to compe l enforcement of the settlement. Mr. Moston learned of the suit in 1988 . The district court announced that it would deny the motion and close the case in May 1995. Why anyone in the CDOT would wait until April 1996 to retaliate again st Plaintiff is a mystery she fails to explain. She suggests that those who wish ed to retaliate were simply waiting to be free from the settlement agreement, b ut that is sheer speculation. Plaintiff can, however, show a causal connection be tween her CEEO complaint and grievance submitted in November 1995, and her transfer and reassignment in April 1996. In November 1995, two days after she filed her CEEO complaint and the day she filed her internal g rievance, Plaintiff went on medical leave. She returned to work for five days in December, but then went back on leave until Mr. Moston told her to return t o work in April 1996. Seven days after her return—five months after her complai nts—Plaintiff was transferred to Grand Junction and immediately reassigned to the traffic section. A five-month gap between a protected activity and an adverse action would ordinarily be too great a time lapse to support an inference of causation based on timing alone . See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1179 (10th-21-

Cir. 1999) (“[W]e have held that a one and one-half month period between protected activity and adverse action may, by itsel f, establish causation. By contrast, we have held that a three-month period, s tanding alone, is insufficient to establish causation.”) (internal citation omitted). But the unique circumstances here suggest that this is properly considered a clo se-proximity case. The reason that a five-month gap generally does not in itself suffice to establish causation is that anger or resentment—the motivation for possibl e retaliation—is an emotion that tends to diminish with time. When retaliation for an act occurs well after the act, one wonders why the retaliator failed to act s ooner. In this case, however, Plaintiff was on leave during most of the time betw een her filing the CEEO complaint and grievance, and her transfer and reass ignment. Even if Mr. Moston had a desire to retaliate for the November complain ts, it did not make sense for him to do so until Plaintiff returned to work. In fact, that is just what happened—only days after Plaintiff’s return to workin April, the transfer and reassignment were effectuated. We think a jury cou ld reasonably draw a retaliatory inference based on the timing of these events. See Richardson , 180 F.3d 426, 434, 444 (causal connection shown when pl aintiff was transferred immediately after returning from a year-long leave of absence, eight months after filing EEOC complaint).

b. Termination-22-

We also believe that Plaintiff can point to suffici ent evidence in the record to show a causal connection between her September 3 0, 1996, termination and her June 22, 1996, EEOC charge. Three circumstances support her claim. First, the person who fired her, Mr. Moston, was specifically accused of discrimination in her EEOC complaint and was aware of its filing. Second, the termination was close in time to when M r. Moston learned of her EEOC complaint. The record is not precise rega rding when Mr. Moston first heard of the complaint. The record contains only astipulation that he knew of the complaint by September 3. Thus, the temporal proxi mity was between four weeks (if Mr. Moston did not learn of the complaint until September 3) and three months (if Mr. Moston learned of the complaint immediatelyupon its filing). Three months ordinarily would not be a sufficiently shortperiod to imply causation, see Anderson , 181 F.3d at 1179; here again, however, the specia l circumstances suggest that we should treat this as a close-proxim ity case. Plaintiff was on leave during the entire period between her filing the EEO C complaint and her termination. Mr. Moston could not have taken retaliatory action against her during that period, at least not without his motive being painfully obvious, since she could have performed no work during that periodto justify any discipline. As soon as Mr. Moston had a plausible basis for taking action against Plaintiff—the fact that her accrued leave time had expired—he did so immediately. The timing-23-

of Plaintiff’s termination is consistent with the c ontention that Mr. Moston desired to terminate her promptly upon learning of the EEOC complaint. See Richardson , 180 F.3d at 434, 444. The third source of support for this claim is the e vidence that the reason given for her termination was pretextual. When evi dence indicates that an employer’s proffered reason for taking an adverse a ction is false, a factfinder can decide that the employer was lying to mask its true unlawful purpose. In Reeves v. Sanderson Plumbing, Inc. , 530 U.S. 133, 147 (2000), the Supreme Court, in an Age Discrimination in Employment Act case, noted th at the trier of fact can reasonably infer from the fal sity of the explanation that the employer is dissembling to cov er up a discriminatory purpose. Such an inference is consi stent with the general principle of evidence law that the factfind er is entitled to consider a party’s dishonesty about a material factas affirmative evidence of guilt. Moreover, once the employer’s j ustification has been eliminated, discrimination may well be the mos t likely alternative explanation, especially since the emplo yer is in the best position to put forth the actual reason for its dec ision. (internal quotation marks and citations omitted).
Reeves ’ reasoning applies with equal force to Title VII r etaliation claims. The causal-connection element of a prima facie reta liation claim requires the employee to show that the employer’s motive for tak ing adverse action was its desire to retaliate for the protected activity. If the employee can show that the-24-

employer’s proffered reason for taking adverse acti on is false, the factfinder could infer that the employer was lying to conceal its retaliatory motive. We understand that by considering an employer’s pro ffered reasons for taking adverse action in the causal-connection port ion of the prima facie case, we are assessing pretext evidence that is typically co nsidered in a later phase of the McDonnell Douglas analysis. But we agree with the Third Circuit that evidence of pretext can be useful in multiple stages of a Ti tle VII retaliation claim. See Farrell v. Planters Lifesavers Co. , 206 F.3d 271 (3rd Cir. 2000). The Farrell

court wrote:We recognize that by acknowledging that evidence in the causal chain can include more than demonstrative ac ts of antagonism or acts actually reflecting animus, we may possiblyconflate the test for causation under the prima facie case with that for pretext. But perhaps that is inherent in the nature of the two q uestions being asked—which are quite similar. The question: “Did her firing result from her rejection of his advance?” is not easily d istinguishable from the question: “Was the explanation given for her f iring the real reason?” Both should permit permissible inferences to be drawn in order to be answered. As our cases have recognized , almost in passing, evidence supporting the prima facie case i s often helpful in the pretext stage and nothing about the McDonnell Douglas formula requires us to ration the evidence between one stag e or the other. It is enough to note that we will not limit the kinds of evidence that can be probative of a causal link any more than the cou rts have limited the type of evidence that can be used to demonstrat e pretext. Id. at 286 (internal citations omitted). In this case Mr. Moston testified that he terminate d Plaintiff because she had exhausted her sick leave and had failed to prov ide a medical release allowing-25-

her to return to work. He stated that he had no ob ligation to contact her to ask whether she was ready to resume her duties. Plaintiff contends, however, that she made clear to Mr. Moston that she needed to take leave only until suitable work was available. She has evidence from which a rational factfinder could infer that h er version is correct. When Plaintiff went on medical leave on June 16, 1996, t he medical certification form filled out by Plaintiff’s psychologist stated that leave was required because “[e]mployee was not allowed to return to work at th e level of which she was capable. This resulted in further deterioration of emotional equilibrium.” Aplt. App. at 910. The form said that she could not retu rn to work “under current condition[s].” Id . In addition, Plaintiff testified that she inform ed Mr. Moston that she was prepared, and medically able, to retur n to work when appropriate project engineering assignments became available. Nevertheless, after Plaintiff left, Mr. Moston never contacted her to ask that sh e return to do job-appropriate project engineering work, despite the fact that suc h work soon became available. Plaintiff further points out that Mr. Moston never contacted her to ask her to return to work as her leave time was about to expire; instead, he simply sent her a termination letter. In contrast, when her FM LA leave had expired in April 1996, Mr. Moston sent a letter to ask that she retu rn to work (which she did). Even if Mr. Moston is correct that he was under no legal duty to ask employees to-26-

return, his failure to do so, in light of her reque st and explanation to him, could reasonably be viewed as retaliation. The issue is not what the personnel rules required Mr. Moston to do, but whether he treated h er differently than he would have if she had not engaged in protected activity. In sum, Plaintiff’s evidence that she was terminate d in retaliation for her EEOC complaint is sufficient to satisfy the causal- connection element of the prima facie case. B. Nondiscriminatory reasons and evidence of prete xt We now turn to the second and third steps of the McDonnell Douglas burden-shifting framework for Plaintiff’s retaliati on claim. The CDOT has proffered nondiscriminatory reasons for the transfe r, the reassignment to the traffic section, and the termination of Plaintiff. Our task is to consider whether Plaintiff has shown those asserted reasons to be pr etextual.

1. Transfer to Grand Junction and assignment to traffi c section Plaintiff is unable to rebut the legitimate reasons the CDOT has offered for transferring Plaintiff and reassigning her to the traffic section. The CDOT’s purpose for Plaintiff’s transfer to Grand Junction was to end the hostile relationship between her and Mr. Orton. Both Plaintiff and Mr. Orton expressed the belief that they could not work together. Ordi narily one would expect that the subordinate rather than the supervisor would be transferred. Grand Junction was-27-

the site nearest Plaintiff’s home other than Mr. Orton’s Glenwood Springs Residency. Plaintiff has produced no evidence to i ndicate that the reason given for the transfer was pretextual. Similarly, the CDOT presented unrebutted reasons fo r assigning Plaintiff to count cars. Mr. Moston testified that Plaintiff wa s given the assignment on a temporary basis, not to exceed six months, because he had no project engineering work available for her in Grand Junction and becaus e there was work that needed to be done in the traffic section. The residency’s engineering work for the season had already been assigned while Plaintiff was still on leave. Other project engineers had begun developing those projects and M r. Moston did not consider it feasible to disrupt the work flow by removing a pro ject engineer from an existing project solely to accommodate Plaintiff. When he d ecided to transfer Plaintiff to Grand Junction, he knew that no project engineering work was available, but thought some soon would be. Two project engineers then working in the residency were expected to retire soon. When they did, Plaintiff was to take over their work. Additionally, if other work became ava ilable in Region 3, it was Mr. Moston’s stated intention to transfer it to Pla intiff at Grand Junction. Mr. Moston claims that the only reason Plaintiff ne ver received project engineering work is that she went back on medical l eave on June 16, 1996, before any such work materialized.-28-

Plaintiff is unable to point to evidence indicating that Mr. Moston’s explanation for the car-counting assignment was pre textual. She presented no evidence that previously unassigned project enginee ring work was available when she was working in the traffic section. And she of fered nothing to show that it would have been feasible for Mr. Moston to reassignan existing project to her. Given the lack of engineering work, Mr. Moston had no perfectly attractive alternative. Should he have displaced another engi neer who had invested valuable time on a project just to make room for Plaintiff? Was he supposed to allow her to sit at a desk and await work she considered appr opriate? The most reasonable course of action was the one selected: assign Plai ntiff temporary work that needed to be done and then reassign her to project engineering work when it became available.

2. Termination Plaintiff is more successful on the termination portion of her claim. Although the CDOT offered legitimate nondiscriminat ory reasons for terminating Plaintiff, the causal-connection discussion above s hows that Plaintiff produced sufficient evidence that those reasons were pretext ual. Accordingly, resolution of this portion of the dispute must be left to a jury. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995) (“If the plaintiff s ucceeds in showing a prima facie case and presents evidence that the defendant’s pro ffered reason for the-29-

employment decision was pretextual—i.e. unworthy of belief, the plaintiff can withstand a summary judgment motion and is entitledto go to trial.”). We therefore reverse the district court’s grant of sum mary judgment on Plaintiff’s Title VII claim that her termination was in retaliation for her EEOC complaint, and remand to the district court for further procee dings consistent with this opinion.
III. First Amendment Claim We can dispose summarily of Plaintiff’s First Amend ment claim under 42 U.S.C. § 1983. The basis of this claim is that Mr. Orton and Mr. Moston retaliated against her because of the class action suit she brought against the CDOT in 1986, which was dismissed on May 26, 1995. The alleged retaliation ranged from her July 27, 19 95, transfer from her assignment as project engineer on the Aspen Guardra il Project to her termination in September 1996. Although we have held that some of this alleged retaliation did not rise to the level of adverse action under T itle VII, those same actions may suffice to support a claim under §1983. Cf. Schuler v. City of Boulder , 189 F.3d 1304, 1310 (10th Cir. 1999) (transfer with same tit le and job responsibilities is portion of foundation of claim held actionable unde r First Amendment). Regardless, we hold that the summary judgment on th is claim must be affirmed. As previously discussed with respect to Plaintiff’s Title VII claim, we-30-

refuse to sustain a claim that must rest on speculation that those offended by a lawsuit that had been ongoing for nearly nine years would retaliate only after the suit was dismissed. We need address only one item of evidence relied up on by Plaintiff that we had no occasion to mention in discussing her Title VII claim. She contends that Mr. Orton’s discriminatory motive in removing her a s the project engineer on the Aspen Guardrail Project (which was not an adverse a ction under Title VII) is established by the falsity of his deposition testim ony concerning why he assigned her to work full-time as assistant project engineeron the Alternate Route Project. We disagree. Mr. Orton was never asked why he modi fied her assignment. The “false” testimony was no more than Mr. Orton’s faul ty recollection—four years after the fact, and without any documentation to re fresh his memory—regarding when the modification occurred and how active the A spen project was at the time. Even examining the evidence in the light most favor able to Plaintiff, she lacks sufficient evidence to support her § 1983 retaliati on claim.
IV. Conclusion
We AFFIRM the summary judgment in favor of the individual de fendants
Mr. Moston and Mr. Orton on Plaintiff’s First Amend ment claims, and AFFIRM the summary judgment against Plaintiff on her Title VII claims against the CDOT, except that we REVERSE the summary judgment on Plaintiff’s claim that her-31-

termination was in retaliation for her EEOC complai nt and REMAND for further proceedings on that claim.No. 01-1508 - Wells v. Colorado Department of Transportation

HARTZ , Circuit Judge, writing separately:

I write separately to express my displeasure with the mode of analysis employed in the panel opinion (which I authored). The McDonnell Douglas framework only creates confusion and distracts courts from “the ultimate question of discrimination vel non .” United States Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 714 (1983). McDonnell Douglas has served its purpose and should be abandoned. Moreover, and perhaps more importantly, the Supreme Court has recognized the problems created by McDonnell Douglas and given us a precedent which enables us to ignore McDonnell Douglas without violating our lower-court duty to follow the dictates of the Supr eme Court. See Aikens, 460
U.S. at 714-16. The McDonnell Douglas framework is a departure from the approach appellate courts customarily use in evaluating the sufficiency of the evidence to sustain a plaintiff’s case, whether reviewing judgm ents after trial or summary judgments. Our usual procedure is to set forth the elements of the plaintiff’s cause of action and then determine whether there is sufficient evidence for a reasonable person to find that each element has bee n proved. If the defendant relies on an affirmative defense (where the defenda nt has the burden of persuasion), we may need to conduct a similar analy sis with respect to the-2-

elements of the defense. In evaluating the suffici ency of the evidence to support an element of the claim or defense, we employ an in formed common sense. We are guided by the thinking expressed by other court s. But, recognizing that every case is unique, we know that we cannot simply incorporate some formula and make our task a mechanical one. So how did the Supreme Court come to adopt the arti ficial formalism of the McDonnell Douglas framework? I am sure it was for the best of motive s, and the framework likely conveyed some important points that educated the nation’s courts. Now, however, these lessons are deeply ing rained in the judiciary, and the artificiality of the framework exacts a significant , unnecessary expense—in terms of both wasted judicial effort and greater opportun ity for judicial error. It is useful to review the development of the frame work. InMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 796 (1973), the plaintiff’s complaint accused McDonnell Douglas of discriminating againsthim on the basis of race and in retaliation for his civil rights activity. The district court dismissed the racial discrimination claim because the Equal Emplo yment Opportunity Commission (EEOC) had failed to make a finding of r easonable cause to believe the claim. Id. at 797. After a bench trial on the retaliation cla im, the court found in favor of McDonnell Douglas. Id. The evidence at trial was as follows: The plaintiff had been laid off as part of a general re duction in force. Id. at 794.-3-

Protesting his discharge and McDonnell Douglas’s hi ring practices, the plaintiff led a protest which disrupted the company’s operati ons. Id. at 794-95. Three weeks later McDonnell Douglas advertised openings i n positions for which the plaintiff was qualified. Id. at 796. When the plaintiff applied, McDonnell Douglas refused to hire him, justifying the refusal on the basis of his obstructive protests. Id. On appeal the circuit court had affirmed the judgme nt on the retaliation claim but reversed on the discrimination claim, hol ding that the plaintiff could bring the action without a prior reasonable-cause f inding by the EEOC. Id. at 797-98. The court also enunciated standards to gui de the trial on remand. Id. at 798. The content of those standards was the chief concer n of the Supreme
Court’s McDonnell Douglas opinion. The Supreme Court set forth its initial formulation of what has become known as the McDonnell Douglas framework. First, it held that a plaintiff may establish “a pr ima facie case of racial discrimination . . . by showing: (i) that he belon gs to a racial minority; (ii) that he applied and was qualified for a job for which th e employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff’s] qualificat ions.” Id. at 802. The Court did-4-

not explain precisely what it meant by “a prima fac ie case.” That task was left to a footnote in Texas Department of Community Affairs v. Burdine , 450 U.S. 248 (1981), which I will discuss later. The Court did say, however, that since plaintiff had proved his prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reaso n for the employee’s rejection.” McDonnell Douglas , 411 U.S. at 802. Finally, the Court held that even if the employer does supply such a reason, the employee must have a fair opportunity to prove that the proffered reason is p retextual. Id. at 804-05. The Court concluded its opinion as follows: In sum, respondent should have been allowed to purs ue his claim [of racial discrimination]. If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a pri ma facie case of racial discrimination and that petitioner successfu lly rebutted that case. But this does not end the matter. On retria l, respondent must be afforded a fair opportunity to demonstrate that petitioner's assigned reason for refusing to re-employ was a pre text or discriminatory in its application. If the DistrictJudge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner's refusal to rehire must stan d.-5-

Id . at 807. Thus, the Court established a three-step framework: (1) the plaintiff’s proof of a prima facie case, (2) the employer’s pre sentation of a legitimate reason for its adverse action, and (3) the employee’s oppo rtunity to prove that the proffered reason was pretextual. Among the lessons taught by McDonnell Douglas are (1) discriminatory motive may be proved by circumstantial evidence, in particular by the prima facie case described in the opinion; (2) the employer mayprevail over such circumstantial evidence by providing evidence of a proper motive; and (3) the plaintiff is not bound by the employer’s evidence o f a proper motive and may show the proffered motive to be pretextual. Now, a ll of these lessons could be taught, and applied, using the customary method of evaluating the sufficiency of the evidence. No additional formal three-step fram ework is necessary to recognize that circumstantial evidence can prove in tent, etc. The McDonnell Douglas reader is therefore likely to infer that there mustbe some additional reason for establishing the framework—the frameworkmust be imposing some further constraints on the analysis. For instance, rather than evidence of a proper motive being just a way of overcoming a circumstant ial case, perhaps establishing a proper motive is an affirmative defense, for whic h the employer bears the burden of persuasion.-6-

The answer to that question was provided by Burdine . In that opinion the Court considered “[t]he narrow question . . . wheth er, after the plaintiff has proved a prima facie case of discriminatory treatme nt, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the chall enged employment action existed.” 450 U.S. at 250. The Court began the an alysis by reformulating the McDonnell Douglas framework: Establishment of the prima facie case in effect cre ates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence , and if the employer is silent in the face of the presumption, the courtmust enter judgment for the plaintiff because no issue of fact remains in the case.

Id. at 254. A footnote at the end of the last sentence pointed out that the Court had been using the term “prima facie case” in a spe cial sense: The phrase “prima facie case” not only may denote t he establishment of a legally mandatory, rebuttable presumption, butalso may be used by courts to describe the plaintiff’s burden of pro ducing enough evidence to permit the trier of fact to infer the f act at issue. McDonnell Douglas should have made it apparent that in the Title VII context we use “prima facie case” in the formersense.

Id. at 254 n.7 (citations omitted). In other words, a McDonnell Douglas “prima facie case” is not, contrary to the customary use o f the term, simply sufficient evidence to allow the case to go to the jury.-7-

The Court went on: The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evid ence that the plaintiff was rejected, or someone else was preferr ed, for a legitimate nondiscriminatory reason. The defendant need not p ersuade the court that it was actually motivated by the proffered rea sons. It is sufficient if the defendant’s evidence raises a gen uine issue of fact as to whether it discriminated against the plaintiff. . . . If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted . . . . The plaintiff retains the burden of persuasion.

Id. at 254-56 (citation omitted). Hence, once the defe ndant produces evidence of a legitimate nondiscriminatory reason for the adver se action (regardless of whether the factfinder believes the reason), the pr esumption disappears and one considers the case as if there were no presumption. To answer the question posed at the outset of the Court’s opinion, the employer does not bear the burden of persuasion (just a burden of production) to establi sh a proper motive for its action against the plaintiff; proving a proper motive is n ot an affirmative defense.
Burdine did not, however, dispel all confusion. Indeed, b y clarifying that the prima facie case did not shift the burden of pe rsuasion, it raised the question whether the McDonnell Douglas framework accomplished much of anything. To be sure, proof of the prima facie case put the burd en on the employer to produce evidence of a proper motive. But doesn’t the emplo yer almost always do that? And then the presumption disappears, so what has be en accomplished?-8-

The consequences could have been predicted. Often when confronting the great mysteries in life, the more we don’t understa nd them, the more we resort to unthinking use of formulas, worrying about technica lities instead of comprehension and meaning. That has happened in ap plying McDonnell Douglas

. Rather than concentrating on what should be the foc us of attention —whether the evidence supports a finding of unlawfu l discrimination—courts focus on the isolated components of the McDonnell Douglas framework, losing sight of the ultimate issue. In particular, by alw ays commencing the analysis with an examination of whether the plaintiff established a prima facie case, instead of whether the evidence as a whole could support a ver dict in favor of the plaintiff, judicial opinions imply that the court’s task is si mplified by first looking at just the prima facie case. The sense is conveyed that u nfounded claims can be disposed of more readily if one can concentrate on the prima facie case and determine whether the plaintiff can leap that hurdl e. But how could that be so? Is it really possible that McDonnell Douglas —which was viewed at the time as a plaintiff-friendly opinion—could require judgment a gainst a plaintiff when the evidence as a whole would support a plaintiff’s ver dict but the plaintiff somehow has not made out a prima facie case? Such a peculiar result could obtain only if the McDonnell Douglas framework in some way restricts how a plaintiff canprove discrimination. I don’t-9-

think that is the case, but the McDonnell Douglas framework could lead one to arrive at that conclusion. Let me give three examp les. First, in McDonnell Douglas the Court set forth the following prima facie case: a plaintiff must show “(i) that he belongs t o a racial minority; (ii) that he applied and was qualified for a job for which the e mployer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [plaintiff’s] qualificat ions.” 411 U.S. at 802. Is one to believe that a plaintiff claiming a discriminato ry failure to hire can prevail only by proving the four elements of this scenario? To be sure, McDonnell Douglas itself said that the prima facie case it described was not meant to be exclusive. The Court wrote, “The facts necessarily will vary i n Title VII cases, and the specification above of the prima facie proof requir ed from [a plaintiff] is not necessarily applicable in every respect to differin g factual situations.” 411 U.S. at 802 n.13. Yet even this qualification implies that the four elements of the McDonnell Douglas prima-facie-case scenario could be replaced only bysome other similar scenario. The very failure to say si mply, “a prima facie case is whatever evidence could convince a rational factfin der to find discrimination,” suggests that something further—a proper fit into aformal structure—is required. Second, the McDonnell Douglas formalism indicates that the evidence can,-10-

and should, be compartmentalized when evaluating it s sufficiency. It is necessary to decide initially whether the plaintiff has estab lished a prima facie case. Next the court looks at the employer’s proffered nondisc riminatory reason for the adverse action, and finally it considers the eviden ce of pretext. A natural inference is that at the prima-facie-case stage of the analysis, it is improper to address the employer’s proffered motive and whetherit is pretextual. This panel has rejected that inference (after all, for what conceivable reason should the employee’s cause of action be barred when evidence of pretext could con vince a reasonable factfinder that the employee had been su bjected to unlawful discrimination?). But the issue is not a trivial o ne. Third, the McDonnell Douglas formalism can lead to confusion regarding how to incorporate into the analysis discriminatorystatements by the employer. Such statements can, of course, be the most convinc ing evidence of discriminatory intent. If the person in charge say s, “I didn’t hire her because she’s black,” the case is made. In that event, why bother with the McDonnell Douglas framework? Indeed, there is authority for the prop osition that the McDonnell Douglas framework is “inapplicable” when the employee “pres ents direct evidence of discrimination.” Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121 (1985). Such doctrine thus requires a court to decide whether a certain item of evidence is direct evidence. In th is case, for example, would-11-

testimony that Mr. Moston called Plaintiff’s lawsui t a “frivolous . . . pain in the ass” be direct evidence of discrimination? If the evidence is “direct evidence,” must we then abandon the McDonnell Douglas framework in our review of the case? If it is not “direct evidence,” how does it fit within the McDonnell Douglas framework? Rather than simply deciding whether the evidence is sufficient to sustain the plaintiff’s claim, the courts must enga ge in the singularly unproductive exercise of deciding whether some item of evidence is “direct evidence” in order to decide how to go about analyzing whether the pla intiff’s claim survives. See, e.g., Perry v. Woodward, 199 F.3d 1126, 1134-35 (10th Cir. 1999). I would have thought that by now the distinction between direct and circumstantial evidence would have been disregarded in considering the suff iciency of the evidence to support a claim. The point I wish to emphasize her e, however, is how the use of the McDonnell Douglas framework so readily lends itself to consideration of formalities instead of the essence of the issue at hand—the sufficiency of the evidence. (A wonderful example of what the McDonnell Douglas framework can do to a good mind is the opinion in Stone v. City of Indianapolis Pub. Util. Div. , 281 F.3d 640 (7th Cir. 2002).) What is particularly puzzling about all this is that it seems completely unnecessary. Once the employer presents evidence o f a legitimate nondiscriminatory motive for its adverse action aga inst the plaintiff, the-12-

presumption disappears and the factfinder examines the evidence as if there were no prima-facie-case requirement. I would expect th at in virtually every Title VII case in which the McDonnell Douglas framework is now applied, the employer produces evidence of such a motive. One might argu e that employers produce such evidence in order to avoid application of the presumption. But even without that incentive for employers, the plaintiff will al most certainly inquire during discovery about the employer’s reason for taking ad verse action against the plaintiff. And if the employer cannot produce evid ence of a legitimate nondiscriminatory reason, the employer’s lawyer wil l insist on settling. One therefore wonders why we need to have this arti ficial, often confusing, framework. The answer is that there is no need. T he Supreme Court pointed this out in United States Postal Service Board of Governors v. Aikens , 460 U.S. 711 (1983). That opinion begins with the well-recogniz ed proposition: “[W]hen the defendant fails to persuade the district court to d ismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by off ering evidence of the reason for the plaintiff’s rejection, the fact find er must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption ‘drops from the case’ . . . .” Id. at 714-15 (quoting Burdine , 450 U.S. at 255 n.10).-13-

But the Court went further, expressing surprise that the lower courts had been concerned about whether the plaintiff had made out a prima facie case after the case had been fully tried on the merits. Id. at 713-14. It stated that when the defendant puts on evidence of its reasons, it does not matter whether the plaintiff put on evidence of, much less established, a prima facie case. Id. at 715. “Where the defendant has done everything that would be req uired of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’” Id. (quoting Burdine , 450 U.S. at 253). Criticizing the lower courts’ references to McDonnell Douglas in resolving the case before it, the Court continue d: “On the state of the record at the close of the evidence, t he District Court in this case should have proceeded to this specific question dir ectly, just as district courts decide disputed questions of fact in other civil li tigation.” Id. at 715-16. The “sensitiv[ity] and difficult[y]” of discrimination cases does not mean “that trial courts or reviewing courts should treat discriminat ion differently from other ultimate questions of fact. Nor should they make t heir inquiry even more difficult by applying legal rules which were devised to govern ‘the allocation of burdens and order of presentation of proof.’” Id. at 716 (quoting Burdine , 450 U.S. at 252). (I do not think it is coincidental that Aikens was decided only two months-14-

before the Supreme Court adopted a “totality of cir cumstances” test for evaluating probable cause under the Fourth Amendment, rejectin g what it termed a “rigid” test based on the standards set forth in Aguilar v. Texas , 378 U.S. 108 (1964), and Spinelli v. United States , 393 U.S. 410 (1969), for evaluating informant information. See Illinois v. Gates , 462 U.S. 213, 231-39 (1983).)
It seems to me that Aikens constitutes a de facto overruling of the McDonnell Douglas framework because, as previously noted, the employ er will present evidence of a proper motive in almost everycase. The only question that might remain is whether Aikens applies at the summary-judgment stage of the litigation. In other words, despite Aikens , must a court reviewing a motion for summary judgment go through each step of the McDonnell Douglas framework, “unnecessarily evad[ing] the ultimate question of d iscrimination vel non ”? Id. at 714. There are two reasons why one might answer “yes.” First, Aikens involved review after trial and the Court said, “Because thi s case was fully tried on the merits, it is surprising to find the parties and th e Court of Appeals still addressing the question whether Aikens made out a prima facie case.” Id. at 713-14. This may have been the basis for the following statementin Kendrick v. Penske Transportation Services, Inc. , 220 F.3d 1220, 1226 (10th Cir. 2000):-15-

[T]he three-part McDonnell-Douglas burden-shifting analysis is limited to the summary judgment context. Once ther e has been “a full trial on the merits, the sequential analytical model adopted from McDonnell Douglas . . . drops out and we are left with the single overarching issue whether plaintiff adduced suffici ent evidence to warrant a jury’s determination that adverse employm ent action was taken against” the plaintiff because of his or her protected status. Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir. 1991); see also U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714- 15 (1983). Because this case was decided on summary judgment, we review the district court's application of McDonnell Douglas.
As far as I can tell, this is the only reported app ellate decision that explicitly states that Aikens does not apply at the summary-judgment stage. A second reason why one might believe that the McDonnell Douglas framework still applies to summary judgments is that otherwise, after Aikens , McDonnell Douglas would have virtually no role whatsoever; and if th e Court had intended this result, one would have expected it to say so expressly. This logic has some force. But the failure of the Supreme Cou rt, for whatever institutional reasons, to acknowledge the consequences of Aikens does not imply that the McDonnell Douglas framework applies only in the summary-judgment cont ext. To be sure, after Aikens the Supreme Court has applied that framework when reviewing a summary judgment, see O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996); but even more often the Court has invoked that framework when reviewing a post-trial judgment, see, e.g., Reeves v. Sanderson-16-

Plumbing Products, Inc. , 530 U.S. 133, 138-39 (2000); St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 505 (1993). In any event, it makes no sense to apply Aikens post-trial but not at the summary-judgment stage. McDonnell Douglas was not developed as a tool for evaluation of motions for summary judgment. In McDonnell Douglas itself, the Court concluded its opinion by speaking of retrial of the case. There was no reference to summary judgment. In fact, the first, and only, Supreme Court decision to apply McDonnell Douglas at the summary-judgment stage was
O’Connor , which was not decided until 23 years after McDonnell Douglas

. There is no reason to limit Aikens to review of judgments after trial. The Aikens analysis would seem to apply equally to review of asummary judgment when the employer has proffered evidence of its rea sons for any adverse employment action against the plaintiff, at least a bsent a suggestion that discovery was in some way limited. After all, the test for s ummary judgment is whether the evidence would support a verdict at trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-50 (1986). Our review of a summary j udgment is essentially the same as our review of a challenge to the sufficienc y of evidence at trial. Id. at 250-51. If it is inappropriate to concern ourselve s with whether the plaintiff has proved a prima facie case when we review a judgmentafter a trial in which the employer introduced evidence of its reasons for adv erse actions against the-17-

plaintiff, it should also be inappropriate to worryabout the prima facie case when we review a summary-judgment proceeding in which th e employer proffered such evidence. The Supreme Court’s concern about unnece ssarily complicating the customary analysis of the sufficiency of the eviden ce is a concern that applies just as much to review of a summary judgment as to revie w of a jury verdict. Thus, at least three other circuits have applied Aikens in reviewing motions for summary judgment. See Dunaway v. Int’l Bhd. of Teamsters , 310 F.3d 758, 762-63 (D.C. Cir. 2002); Wixson v. Dowagiac Nursing Home , 87 F.3d 164, 170 (6th Cir. 1996); Lindemann v. Mobil Oil Corp. , 141 F.3d 290, 296 (7th Cir. 1998); see also MacDonald v. E. Wyo. Mental Health Ctr. , 941 F.2d 1115, 1122-23 (10th Cir. 1991) (Seth, J., concurring).
It is time for this circuit to devote our attention to “the ultimate question of discrimination vel non .” Aikens , 460 U.S. at 714. Even if we must pay lip service

to McDonnell Douglas , let us clear our minds of technical distractions by employing Aikens at the summary-judgment stage. I doubt that our ul timate conclusions will be different in any significant nu mber of cases. But our task will be easier because we will have fewer technical barr iers to the application of common sense; and there is always the risk that imp osing needless complexity on our work will increase the chance of error.