PUBLISH UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

MIKE C. WARD,
Plaintiff - Appellant,

v. No. 14-4006
SALLY JEWELL, in her official capacity as Secretar y, United States Department of Interior, Defendant - Appellee.

Appeal from the United States District Court For the District of Utah (D.C. No. 2: 10-CV-00087-DAK)

Nan T. Bassett, Kipp a nd Christian, P.C., Salt Lake City, Utah, for Plaintiff-Appellant. Jeffrey E. Nelson, Assistant United St ates Attorney (D avid B. Barlow, United States Attorney, on the brief), District of Utah, Salt Lake City, Utah, for Defendant-Appellee.

Before KELLY , BACHARACH , and PHILLIPS , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### November 24, 2014
Elisabeth A. Shumaker Clerk of Court2 BACHARACH , Circuit Judge.

Mr. Mike C. Ward is an employee of the United States Department of the Interior, Bureau of Reclamation. Mr. Ward once held a supervisory position; but during a depa rtment reorganization in 2005, he was demoted and given only te chnical duties. When the department began a second reorganization in 2008, Mr. Ward asked for a position with his old supervisory responsibilities. But those responsibilities were then be ing handled by anot her employee, Mr. James Durrant. Without a vacancy, Mr. Ward had to remain in his nonsupervisory job. Dissatisfied with that job, Mr. Ward applied in 2010 for a managerial position in Provo, Ut ah. The application proce ss included interviews with a panel and the person who would ulti mately make the hiring decision. After interviewing with the panel a nd the decision-mak er, however, Mr. Ward did not get the job. He blames his employer (the Department of In terior), invoking Title VII and claiming retaliation for the refu sal (1) to reinstate him in his old job and (2) to promote him to the Provo managerial positi on. To survive summary judgment on these claims, Mr. Ward had to show a connection between the protected activity and the refusal to give Mr. Ward his prior supervisory responsibilities or to hire him for the Provo managerial job.3 In this appeal, we must decide:

● Can Mr. Ward survive a motion for summary judgment on the first claim without any evid ence of a causal connection between his protected activity and the refusal to demote or fire Mr. Durrant?

● Can Mr. Ward overcome a motion for summary judgment on the second claim without any eviden ce of a causal connection between his protected activity and the hiring decision? We conclude no reasonable fact-finder could infer reta liation; thus, we affirm the district cour t’s award of summary judg ment to the Department of Interior. I. Reorganization and Retaliation These claims are based on three series of actions:

● two reorganizations,

● Mr. Ward’s involvement in proceedings in the Equal Employment Opportunity Commission, and

● demotion of Mr. Ward and his inability to get back his prior supervisory responsibilities. A. The EEOC Proceedings In 2004, Mr. Ward’s subordinate , Ms. Michaela Ne lson, filed a discrimination complaint a bout Mr. Ward. The complaint was investigated by the EEOC, and Mr. Ward participated. The Department of Interior then reorganized, and Mr. Ward’s supervisory responsibilities were turned over to anot her person (Mr. James Durrant). Upset by this change, Mr. Ward complained to the EEOC. A4 few years later, Mr. Ward unsuccessfully tried to get these responsibilities back.
B. The Provo Job Mr. Ward was unable to get Mr. Durrant’s job. Thus, when a managerial vacancy arose in Provo, Mr. Ward applied along with four other individuals. Though Mr. Ward was not recommended by th e initial panel, he and the other candidat es were interviewed by the decision-maker, Mr. Larry Walkoviak. Mr. Ward was not selected fo r the position. C. The Retaliation Claims Mr. Ward complains in this suit about

● the refusal to give him Mr. Durrant’s supervisory responsibilities, and

● the hiring of another app licant for the Provo job. In Mr. Ward’s view, these decisi ons involved retaliation for his involvement in the EEOC pr oceedings years earlier.
II. The Test for Retaliation “We review the district court’s summary judgm ent order de novo, and apply the same legal standards as [did] the district court.” Doe v. City of Albuquerque , 667 F.3d 1111, 1122 (10th Cir. 2012 ). The district court had to grant summary j udgment if the Department of Interior showed the absence of a genuine disput e on any material fact. Fe d. R. Civ. P. 56(a).5 To determine whether a genu ine issue of material fact existed, we view the evidence in the li ght most favorabl e to Mr. Ward. Doe , 667 F.3d at 1122. Mr. Ward can state a valid Title V II claim in one of two ways. He can present direct evidence, or he can rely on circumstantial evidence and utilize the McDonnell Douglas burden-shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Becau se Mr. Ward’s evidence is circumstantial, he must rely on McDonnell Douglas. Under McDonnell Douglas , Mr. Ward bears the burden of proving a prima facie case of retaliation by a preponderance of the evidence. Smothers v. Solvay Chems., Inc. , 740 F.3d 530, 539 (10th Cir. 2014). In the prima facie case, Mr. Ward must show that (1) he engaged in protecte d opposition to discrimination, (2) he suffered an advers e employment action, and (3) a causal connection existed be tween the protected activity and the adverse employment action. Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1212 (10th Cir. 2003). The Department of Interior does not dispute the first two elements, so we consider on ly whether Mr. Ward estab lished a causal connection between his protected activity (participation in the EEOC proceedings) and the adverse employment action (the refusal to give him his prior job responsibilities and the hiri ng of another applican t for the Pr ovo position).6 To establish a causal connection, Mr. Ward must present “evidence of circumstances that justify an in ference of retalia tory motive.” Williams v. W.D. Sports, N.M., Inc. , 497 F.3d 1079, 1091 (10t h Cir. 2007). If the protected conduct is closel y followed by th e adverse action, courts have often inferred a caus al connection. Id. Because Mr. Ward ’s participation in the EEOC proceedings took place years earlier, Mr. Ward must use “additional evidence . . . to establish causation.” See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1179 (10th Cir. 1999) (stating that a threemonth period between the protected conduct and th e adverse action was too long for a fact-finder to infer causation). To survive summary judgment, Mr. Ward had to present “additional evidence” tying the a dverse employment acti ons to Mr. Ward’s participation in the EEOC proceedings. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). The Supreme Co urt has likened this burden to a showing of “but-for causation.” Univ. of Tex. Sw. Med. Ctr. v.
Nassar , __ U.S. __, 133 S. Ct . 2517, 2533 (2013). Th e evidence of but-for causation “must be based on more than mere specu lation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). Mr. Ward has not presented ev idence connecting the adverse employment actions to his participat ion in the EEOC proceedings. Thus, he has not satisfied his burden to present a prim a facie case. Without7 presentation of a prima facie case, the district court properly awarded summary judgment to the Department of Interior. III. Retaliation Claim 1: The Refusal to Fire or Demote Mr. Durrant and Give Mr. Ward His Prior Supervisory Responsibilities The first retaliation theo ry is that the Departme nt of Interior should have demoted or fired Mr. Durrant and given Mr. Ward his previous supervisory responsibilities. Mr. Ward points to four pieces of evidence to support his claim of retaliation: (1) Mr. Rhees told Mr. Ward that it would be “essentially impossible” to put Mr. Ward or Ms. Nelson in a supervisory position because of “t hings that had happened in the past.” (2) Mr. Ward, Ms. Nelson, and Ms . Postell were st ripped of their supervisory responsibilities afte r participating in the EEOC process. (3) Mr. Ward’s performance evaluations as a supervisor did not refer to personality conflicts or communication problems. (4) Mr. Ward had the required classification for a supervisory position, but Mr. Du rrant did not. Mr. Ward believes these pieces of ev idence link his EEOC participation to the failure to give him his old superv isory responsibiliti es. But this link rests on surmise. Mr. Rhees’s statement is probative of retaliation only if we speculate on his meaning. Even Mr. Ward testif ied that he was not sure if Mr. Rhees was referring to the EEOC proceedings . Appellant’s App. at 58. We cannot speculate on Mr. Rh ees’s meaning. Thus, th is statement does not8 provide the required lin k between Mr. Ward’s st atements in the EEOC proceedings and the refusal to give him his old supervisory responsibilities. See Bones , 366 F.3d at 875. Mr. Ward likewise cannot prove ca usation by pointing to demotions for other individuals participating in EEOC proceedings. Mr. Ward’s first claim does not involve a demotion; the claim involv es the decision not to give him his old job responsibilities y ears after they had been taken away. He also relies on his pe rformance evaluations, stating that they do not refer to any persona lity conflicts or communica tion problems. This reliance is misguided beca use the performance eval uations are not in the record, 1 and Mr. Ward’s description woul d not support an inference of causation. Mr. Ward adm itted “there [had been] interaction issues” with Ms. Postell and Ms. Nelson. Appellant’s App. at 59 . We cannot infer that just because Mr. Ward had positive eval uations, he would have been reinstated to a position already being oc cupied if he had no t participated in the EEOC proceedings. We also cannot infer causation based on Mr. Durrant’s classification. According to Mr. Ward, Mr. Durrant did not have the required classification for a supervisory positi on. But reclassification would have been easy, involving only a ministerial adjustment . Appellant’s App. at

1 See Oral Arg. 12:03-12:10.9 114. As a result, we cannot infer that the Department of Interior acted in retaliation by refusing to oust Mr. Durrant in favor of Mr. Ward. On the first claim, Mr. Ward fails to establish a prima facie case of retaliation. A reasonable fact-finder coul d not infer retaliation from the decision to keep another employee in his job rather than replace him with someone who had admittedly experien ced “interaction i ssues” with other employees. Accordingly, the district court properly granted summary judgment to the Department of Interior on the clai m involving a refusal to give Mr. Ward his prior s upervisory responsibilities. IV. Retaliation Claim 2: The Decision Not to Promote Mr. Ward to the Position as Pr ovo Area Manager The second retaliation claim invo lves Regional Director Larry Walkoviak’s decision not to hire Mr. Ward as the Provo Manager. On this claim, the element of caus ation is again lacking. Three facts are undisputed: (1) Five qualified ca ndidates were intervie wed by a panel that included Mr. Rhees and Ms . Ann Gold. The panel recommended two candidates to Mr. Walkoviak, who would make the final selection. Mr. Ward was not am ong the panel’s two recommendations. But, Mr. Walkoviak interv iewed all five of the candidates. After these interviews, he se lected someone other than Mr. Ward. (2) During a prior EEOC claim, Mr. Ward had alle ged retaliation by Ann Gold’s husband. At th e time of the panel interview, Mr. Ward also had a pending claim alleging discrimination by Mr. Rhees.10 (3) In 2010, Mr. Ward comple ted additional work at thedepartment’s Mid-Pacific Region. For this work, the MidPacific Region recommended a $4,500 award for Mr. Ward. Mr. Rhees was required to approve the awar d, but he reduced the amount to $2,000. These facts do not suppo rt causation because Mr. Ward does not claim retaliation by Mr. Wa lkoviak. In the absenc e of retaliation by Mr. Walkoviak, Mr. Ward could create a f act issue only through a theory of “Cat’s Paw” liability. Under this th eory, the biased motive of a subordinate can be imputed to the final decision-maker. EEOC v. BCI Coca-Cola Bottling Co. of L.A. , 450 F.3d 476 , 487-88 (10th Cir. 2006). But the theory do es not apply when decision -makers conduct their own investigations without relyin g on biased s ubordinates. Lobato v. N.M. Env’t Dep’t , 733 F.3d 1283, 1295 (10th Cir. 2013). To survive summary judgment on a “Cat’s Paw” theory, Mr. Ward must establish

● bias by the subordinates, Mr. Rhees an d Mrs. Gold,

● their influence in the d ecision-making process, and

● Mr. Walkoviak’s adopti on of Mr. Rhees and Ms. Gold’s biased recommendation w ithout an independen t investigation. English v. Colo. Dep’t of Corr. , 248 F.3d 1002, 1011 (10th Cir. 2001); BCI Coca-Cola , 450 F.3d at 487-88. Mr. Walkoviak did no t accept the panel’s re commendation, but he interviewed all of the ca ndidates (including Mr. Ward). Mr. Walkoviak11 then selected another applicant who had served as the Deputy Area Manager in Provo for th ree years and had ex perience with landmanagement issues, recreational issues, dam safety, planning activities, and interaction with stak eholders in the Provo area. The panel ultimately had little input into the hi ring decision. That d ecision was made by Mr. Walkoviak. Accordingly, liability canno t be based on a “Cat’s Paw” theory. See Simmons v. S ykes Enters., Inc. , 647 F.3d 943, 950 (10th Cir 2011) (holding that the “Cat’s Paw” theory did not appl y when the decision-makers conduct ed their own investig ation and personally interviewed the employee before firing her). Wi thout the “Cat’s Paw” theory, Mr. Ward lacks any evidence of retalia tion by Mr. Walkoviak. Thus, the district court properly granted summary judgment to the Department of Interior on the second claim. V. Conclusion Mr. Ward had to show that, but for his participation in the EEOC proceedings, he wo uld have been given his ol d supervisory responsibilities or been selected as the Provo manager. He has no t made this showing. Thus, we affirm the dist rict court’s award of su mmary judgment to the Department of Interior.