PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT

MIKE C. WARD, 

 Plaintiff - Appellant, 

v. No. 14-4006 

SALLY JEWELL, in her official 

capacity as Secretary, 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 and Christian, P.C., Salt Lake City, Utah, for 

Plaintiff-Appellant. 

Jeffrey E. Nelson, Assistant United States Attorney (David 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 Court
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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 department reorganization in 2005, he was demoted 

and given only technical 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 being handled by another 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, Utah. The application process included interviews with 

a panel and the person who would ultimately make the hiring decision. 

After interviewing with the panel and the decision-maker, however, Mr. 

Ward did not get the job. 

He blames his employer (the Department of Interior), invoking Title 

VII and claiming retaliation for the refusal (1) to reinstate him in his old 

job and (2) to promote him to the Provo managerial position. 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. 
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In this appeal, we must decide: 

● Can Mr. Ward survive a motion for summary judgment on the 

first claim without any evidence 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 evidence of a causal connection 

between his protected activity and the hiring decision? 

We conclude no reasonable fact-finder could infer retaliation; thus, we 

affirm the district court’s award of summary judgment 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 Nelson, filed a 

discrimination complaint about 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 another person (Mr. James 

Durrant). Upset by this change, Mr. Ward complained to the EEOC. A 
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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 the initial panel, 

he and the other candidates were interviewed by the decision-maker, Mr. 

Larry Walkoviak. Mr. Ward was not selected for 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 applicant for the Provo job. 

In Mr. Ward’s view, these decisions involved retaliation for his 

involvement in the EEOC proceedings years earlier. 

II. The Test for Retaliation 

“We review the district court’s summary judgment 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 judgment if the Department of Interior showed the 

absence of a genuine dispute on any material fact. Fed. R. Civ. P. 56(a). 
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To determine whether a genuine issue of material fact existed, we view the 

evidence in the light most favorable to Mr. Ward. Doe, 667 F.3d at 1122. 

Mr. Ward can state a valid Title VII 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). Because 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 protected opposition to discrimination, 

(2) he suffered an adverse employment action, and 

(3) a causal connection existed between 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 only whether Mr. Ward established 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 hiring of another applicant for the Provo position). 
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To establish a causal connection, Mr. Ward must present “evidence 

of circumstances that justify an inference of retaliatory motive.” Williams 

v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007). If the 

protected conduct is closely followed by the adverse action, courts have 

often inferred a causal 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 the 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 adverse employment actions 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 Court 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). The evidence of but-for 

causation “must be based on more than mere speculation, conjecture, or 

surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 

2004). 

Mr. Ward has not presented evidence connecting the adverse 

employment actions to his participation in the EEOC proceedings. Thus, 

he has not satisfied his burden to present a prima facie case. Without 
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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 theory is that the Department 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 “things that had happened in the past.” 

 

(2) Mr. Ward, Ms. Nelson, and Ms. Postell were stripped of their 

supervisory responsibilities after 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. Durrant did not. 

Mr. Ward believes these pieces of evidence link his EEOC participation to 

the failure to give him his old supervisory responsibilities. But this link 

rests on surmise. 

Mr. Rhees’s statement is probative of retaliation only if we speculate 

on his meaning. Even Mr. Ward testified that he was not sure if Mr. Rhees 

was referring to the EEOC proceedings. Appellant’s App. at 58. We 

cannot speculate on Mr. Rhees’s meaning. Thus, this statement does not 
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provide the required link between Mr. Ward’s statements 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 causation by pointing to demotions 

for other individuals participating in EEOC proceedings. Mr. Ward’s first 

claim does not involve a demotion; the claim involves the decision not to 

give him his old job responsibilities years after they had been taken away. 

He also relies on his performance evaluations, stating that they do 

not refer to any personality conflicts or communication problems. This 

reliance is misguided because the performance evaluations are not in the 

record,1

 and Mr. Ward’s description would not support an inference of 

causation. Mr. Ward admitted “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 evaluations, he would have been 

reinstated to a position already being occupied if he had not 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 position. 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 could not infer retaliation from the 

decision to keep another employee in his job rather than replace him with 

someone who had admittedly experienced “interaction issues” with other 

employees. Accordingly, the district court properly granted summary 

judgment to the Department of Interior on the claim involving a refusal to 

give Mr. Ward his prior supervisory responsibilities. 

IV. Retaliation Claim 2: The Decision Not to Promote Mr. Ward to 

the Position as Provo Area Manager 

The second retaliation claim involves Regional Director Larry 

Walkoviak’s decision not to hire Mr. Ward as the Provo Manager. On this 

claim, the element of causation is again lacking. 

Three facts are undisputed: 

(1) Five qualified candidates were interviewed 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 among the panel’s 

two recommendations. But, Mr. Walkoviak interviewed all five 

of the candidates. After these interviews, he selected someone 

other than Mr. Ward. 

(2) During a prior EEOC claim, Mr. Ward had alleged retaliation 

by Ann Gold’s husband. At the time of the panel interview, 

Mr. Ward also had a pending claim alleging discrimination by 

Mr. Rhees. 
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(3) In 2010, Mr. Ward completed additional work at the 

department’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 award, but he reduced 

the amount to $2,000. 

 

These facts do not support causation because Mr. Ward does not 

claim retaliation by Mr. Walkoviak. In the absence of retaliation by Mr. 

Walkoviak, Mr. Ward could create a fact issue only through a theory of 

“Cat’s Paw” liability. Under this theory, 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 does not apply when decision-makers conduct their own 

investigations without relying on biased subordinates. 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 and Mrs. Gold, 

● their influence in the decision-making process, and 

● Mr. Walkoviak’s adoption of Mr. Rhees and Ms. Gold’s biased 

 recommendation without an independent 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 not accept the panel’s recommendation, but he 

interviewed all of the candidates (including Mr. Ward). Mr. Walkoviak 
11 

then selected another applicant who had served as the Deputy Area 

Manager in Provo for three years and had experience with landmanagement issues, recreational issues, dam safety, planning activities, 

and interaction with stakeholders in the Provo area. The panel ultimately 

had little input into the hiring decision. That decision was made by Mr. 

Walkoviak. Accordingly, liability cannot be based on a “Cat’s Paw” 

theory. See Simmons v. Sykes Enters., Inc., 647 F.3d 943, 950 (10th Cir 

2011) (holding that the “Cat’s Paw” theory did not apply when the 

decision-makers conducted their own investigation and personally 

interviewed the employee before firing her). Without the “Cat’s Paw” 

theory, Mr. Ward lacks any evidence of retaliation 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 would have been given his old supervisory responsibilities 

or been selected as the Provo manager. He has not made this showing. 

Thus, we affirm the district court’s award of summary judgment to the 

Department of Interior.