FILED

United States Court of Appeals

Tenth Circuit

November 29, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

REBECCA A. WEEKS,

Plaintiff-Appellant,

v.

STATE OF KANSAS, OFFICE OF

THE FIRE MARSHAL,

Defendant-Appellee,

and

DAN MCLAUGHLIN,

Defendant.

No. 11-3215

(D.C. No. 2:09-CV-02498-CM)

(D. Kan.)

ORDER AND JUDGMENT*

Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.

As the lawyer for the Kansas State Fire Marshal, Rebecca Weeks had all

the usual responsibilities of an in-house counsel working for a state agency. Her

job included drafting proposed legislation and agency regulations, assisting with

employment disputes, and the like. That is, until she was fired. 

*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
As Ms. Weeks tells it, she was fired because her boss didn’t like the advice

she gave. Ms. Weeks points to the fact that two employees approached her with

allegations of unlawful discrimination. She says she took these cases to the Fire

Marshal, Dan McLaughlin, and advised him to take them seriously. She claims

this displeased Mr. McLaughlin. And, she says, he retaliated against her for

being the bearer of bad news. More than that, she insists, his decision to fire her

for the advice she rendered is legally impermissible, a form of retaliation

forbidden by Title VII. 

Of course Mr. McLaughlin sees things differently. In his view, Ms. Weeks

just didn’t do much work. Asked to produce a piece of draft legislation in 2007,

she didn’t finish it until September 2008. Told to update a set of regulations later 

in 2007, months slipped by with almost nothing to show for it. Besides that, he

says, Ms. Weeks spent altogether too much time on personal matters at the office

— as many as five hours a day. This, the Fire Marshal insists, is why she was

fired, not the content of the legal advice she rendered.

At summary judgment, the district court found it could resolve the case

without resolving the parties’ competing factual accounts. Even taking Ms.

Weeks’s version of events at face value, it held she could not establish a prima

facie case of retaliation under Title VII. A prima facie case requires the plaintiff

to present facts from which a reasonable jury could conclude (among other things)

that she had engaged in “protected opposition” to Title VII discrimination. See,

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e.g., Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1227 (10th Cir. 2008). The

district court held that Ms. Weeks had shown only that she “perform[ed] the

duties of her position” as a lawyer by “advising the agency of potential personnel

issues” and doing that much didn’t amount to “protected opposition to

discrimination.” Weeks v. McLaughlin, No. 09-CV-02498-CM, 2011 WL

2631831, at *8 (D. Kan. June 28, 2011).

The district court’s holding is consistent with this circuit’s precedent. This

court has held that for an in-house lawyer to engage in protected opposition she

must do more than provide legal advice to her employer on how best to resolve a

claim of discrimination asserted by another employee. To engage in protected

opposition the lawyer must instead “step outside . . . her role of representing the

company and either file (or threaten to file) an action adverse to the employer,

actively assist other employees in asserting [Title VII] rights, or otherwise engage

in activities that reasonably could be perceived as directed towards the assertion

of rights protected by [Title VII].” McKenzie v. Renberg’s Inc., 94 F.3d 1478,

1486-87 & n.8 (10th Cir. 1996). For her part, Ms. Weeks stipulated in the district

court that, when she rendered the advice she was allegedly fired for offering, she

was merely “acting within the scope of her duties as general counsel . . . in order

to assist the agency in complying with its obligations under the law.” See Aplt.

App. at 34 ¶ 18, 35 ¶ 20. That stipulation — that acknowledgment that she was at

all relevant times acting within her role as counsel for the agency and simply

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seeking to assist it in fulfilling its legal obligations — was enough to doom her

case under McKenzie’s rule. 

Seeking to avoid this result, Ms. Weeks argues to us that she did more than

merely offer advice to her client-employer. She says this is most apparent in her

April 10, 2009 memorandum to Mr. McLaughlin discussing an employee’s

pregnancy discrimination complaint. In at least this instance, she insists, she

surely adopted “a position adverse to her employer.” Reply Br. at 11. She says

this much is driven home by the fact Mr. McLaughlin wrote an email to a

colleague complaining about Ms. Weeks soon after reviewing her memorandum. 

Id.

The difficulty with this theory is that Ms. Weeks stipulated to a very

different one in the district court. Before the district court Ms. Weeks

represented that her April 10, 2009 memorandum was prepared and presented

“within the scope of her duties as general counsel” and aimed at helping “the

agency comply[] with its obligations under the law.” Aplt. App. at 34 ¶ 18. Ms.

Weeks took the position that she was simply representing her client, giving the

agency her candid and best legal advice on a potential claim. Now Ms. Weeks

essentially asks us to fault the district court for accepting her own representation. 

No litigant, however, can count on winning an appeal by complaining about a

putative error by the district court the litigant herself invited. That much is

dictated by the invited error doctrine. See United States v. Burson, 952 F.2d

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1196, 1203 (10th Cir. 1991) (“[T]he Invited Error Doctrine . . . prevents a party

who induces an erroneous ruling from being able to have it set aside on appeal.”).

Without viable evidence to suggest a triable claim under McKenzie, one

might perhaps argue that McKenzie’s rule itself has been superseded. A few years

ago, and well after McKenzie, the Supreme Court suggested that all one has to do

to oppose an unlawful employment practice in Title VII cases is to “antagonize

. . . ; contend against; . . . confront; resist; [or] withstand” it. Crawford v. Metro.

Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009) (quoting

Webster’s New International Dictionary 1710 (2d ed. 1958)). Whether and how

this general standard meshes with McKenzie’s preexisting and more particular

rule for retaliation claims by in-house attorneys is not clear. But this, too, is a

matter Ms. Weeks never raised in the district court — or, for that matter, in this

court. Instead, she has consistently and expressly throughout these proceedings

invoked McKenzie as properly controlling the question of protected opposition

(never citing Crawford) and argued merely that in “[a]pplying this standard to the

facts here,” she has a triable claim. Opening Br. at 21. So once again if any

possible error might lurk here (and we do not mean to pass on that question one

way or the other), it could only be an invited error. See Burson, 952 F.2d at 1203. 

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The judgment of the district court is affirmed. 

 ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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