UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOHN R. MCCAULEY, Plaintiff - Appellant,

v. BOARD OF COMMISSIONERS FOR BERNALILLO COUNTY, Defendant - Appellee. No. 14-2064 (D.C. No. 1:11-CV-00003-GBW-CG) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and MORITZ , Circuit Judges.
John R. McCauley appeals the district court’s grant of su mmary judgment to the Board of Commissioners of Bernalillo County (Bernalillo Co unty or County) on his employment discrimination and reta liation claims. McCauley, a former Lieutenant with the Bernal illo County Sheriff’s De partment (BCSD), applied unsuccessfully on three occasion s in 2011 for promotion to Captain. In this action

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 2, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - against the County, McCauley claimed the County discriminated against him on the basis of his age in denying him a promo tion and retaliated against him for his complaints about gender discriminati on in BCSD, in violation of the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, and New Mexico law. The district court grante d Bernalillo County’s motion for summary judgment on all claims. Exer cising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Background McCauley began employment with BCSD in 1992 as a deputy, but at all times relevant hereto, he served as a Lieutenant with supervisory duties. In his original complaint in this action, McCauley alleged he complained in June 2009 to his supervisor, Captain Matthew Thomas, that Thomas’ preferential treatment of a female employee caused morale problems fo r other female department employees and created a hostile work e nvironment. In October 20 09, McCauley was placed on administrative leave for six months pending investigation of a complaint against him by a female employee. In February 2010, McCauley fi led a discrimination charge with the Equal Employment Opportunity Co mmission (EEOC) alleging Thomas gave preferential treatment to a female employ ee. McCauley furthe r maintained he was discriminated against base d on his sex and subjected to retaliation for opposing discriminatory actions and a hostile work envi ronment. McCauley filed this action in January 2011 alleging gender disc rimination and retaliation.- 3 - About that same time, Danny Houston t ook office as Sheriff of BCSD. Under Houston’s direction, Undershe riff Ron Paiz developed a scr eening process to be used for promotions to certain positions, including Ca ptain. Under this process, a panel of three experienced law enforcement profe ssionals, none of whom were employed by BCSD, interviewed eligible candidates. Prior to the interv iews, panel members reviewed only the candidates’ resumes and r eceived confirmation of their eligibility to participate in the promotion process. Paiz also formulated three interview questions for the panel to ask each candidate. While the panel members could take notes during th e interviews, BCSD’s standard procedure called for destruction of any documentation immediately after the interview. In contrast, BCSD’s standard procedure provided for retention of audio recordings of interviews. Th e last step in th e screening process required the panel, after conducting interviews, to identify its top three candida tes for promotion. Sheriff Houston then had discretion to promote a ny of the three recommended candidates. In 2011, McCauley applied on three oc casions for promotion to a Captain position. In each instance, BCSD followed the screening process described above. The three 2011 interview panels consisted of current and retired command staff from the Albuquerque Police Department, the Ri o Rancho Police Department, and the New Mexico State Police, as well as a United States Marshal. None of the three panels identified McCauley as one of the top three candidates submitted to Houston. In each instance, Sheriff Houston chose to promot e the panel’s top candidate, and in one- 4 - instance, he promoted a panel’s top two candi dates. All four candidates promoted in 2011 were qualified for the position but we re younger than McCauley, who was in his late 50s. Following its standard procedure, BCSD destroyed all written documentation after completion of each of the three panel processes. However, according to the County, the audio recordi ngs of the 2011 pane l interviews were inadvertently lost. In July 2011 and August 2011, McCa uley filed additional EEOC charges alleging age discrimination and retaliation in connection with the County’s failure to promote him to Captain. He alleged the same claims in his second amended complaint in this action, file d in December 2012. The di strict court granted summary judgment in favor of the County on all claims, concluding that while McCauley established a prima facie case of age discrimination, he failed to show that the County’s legitimate, non-discriminato ry reason for not promoting him was pretextual. The court furthe r concluded McCauley failed to establish a prima facie case of retaliation. In addition, the cour t denied his request to sanction the County for spoliation of evidence based on its destru ction of the interview panel notes and its loss of the interv iew recordings. II. Discussion We review a district court’s grant of summary judgment de novo, but we view the facts and the reasonable inferences th erefrom in the light most favorable to McCauley. Daniels v. United Parcel Serv., Inc. 701 F.3d 620, 627 (10th Cir. 2012).- 5 - Summary judgment shall be granted “if th e movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56( a). We review a district court’s denial of spoliation sanctions for an abuse of discretion and its related finding of no bad faith for clear

error. Turner v. Pub. Serv. Co. of Colo. , 563 F.3d 1136, 1149-50 (10th Cir. 2009). A. Age Discrimination The ADEA makes it “unlawful for an employe r . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privile ges of employment, because of such individual’s age.” 29 U.S.C. § 623 (a)(1). If a plaintiff makes out a prima facie case of age discrimination, the bur den shifts to the employer to assert a legitimate nondiscriminatory reason for its actions. If the employer can do so, the burden reverts to the plaintif f to show that the stated nondiscriminatory reason is pretext for discrimi natory intent. Daniels , 701 F.3d at 627. “To establish pretext under the ADEA, an employee must show there is enough inconsistency or implausibility in his employer’s stated explanation for the [adverse employment action] that a reasonable trier of f act could find it unworthy of belief.” Roberts v. Int’l Bus. Mach. Corp. , 733 F.3d 1306, 1309 (10th Cir. 2013), cert. denied , 134 S. Ct. 2867 (2014). The district court concluded Berna lillo County provided a legitimate, nondiscriminatory reason for not selecti ng McCauley for promotion to Captain – i.e .,- 6 - the neutral interview panels’ recommenda tions based on their review of the candidates’ qualifications and their interv iews. Turning to McCauley’s proffered pretext evidence, the court concluded he presented some ev idence Houston was predisposed against McCa uley based on his age. 1 But the court also noted that with respect to each promotion, Houston pr omoted the candidates recommended by the panel, which consisted of law enfor cement officers not employed by BCSD. Consequently, the district court concluded th at to demonstrate pretext, McCauley was required to present evidence that Houston controlled the panels’ recommendations to attain his alleged goal of promoting younger employees. After carefully analyzing McCauley’s pr offered pretext evidence, the district court ultimately concluded Mc Cauley failed to show th e panel process was a sham manipulated by Sheriff Houston. The c ourt found that some of McCauley’s assertions of fact were not supported by admissible evidence; that he failed to explain how some of his evidence was releva nt to his pretext argument and his age-discrimination claim; and that his other evidence was insufficient to support a reasonable inference of contro l. The court therefore held McCauley failed to present evidence on which a reasonable jury could find that Bernalillo County’s reason for

1 The district court charact erized some of this evid ence as particularly weak evidence of age bias.- 7 - not promoting him was pretextual, and that both his ADEA and his state-law age-discrimination claims failed on the same ground. 2 McCauley first challenges the district court’s gran t of summary judgment on his age-discrimination claims. But in his ope ning appeal brief, after summarizing the evidence he presented below, McCauley as serts only that he “presented sufficient evidence of pretext for a jury to infer discriminatory mo tive.” Aplt. Opening Br. at 23. McCauley makes no effort to demonstrat e error in the district court’s rationale, and we decline to construct an argument for him. See Perry v. Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (stating court “will not craft a party’s arguments for him”); see also Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (reiterating “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at devel oped argumentation, ar e deemed waived” (internal quotation marks omitted)). Even vi ewing the facts in a light most favorable to McCauley, we conclude there is no genuin e dispute as to any ma terial fact and the County was entitled to judgm ent as a matter of law on hi s age-discrimination claims. Therefore, we affirm the di strict court’s grant of summ ary judgment on those claims.

2 The district court also denied McCaul ey’s request for an inference that the destroyed interview notes and the lost interview recordings contained evidence demonstrating pretext. We will address separately the c ourt’s denial of a spoliation sanction.- 8 - B. Retaliation Title VII prohibits discrimination ag ainst an employee “because he has opposed any practice made an unlawful em ployment practice by this subchapter, or because he has made a charge, testified, assisted, or partic ipated in any manner in an investigation, proceeding, or hearing under th is subchapter.” 42 U.SC. § 2000e-3(a). To demonstrate a prima facie case of retaliation, a plai ntiff must show “(1) [he] engaged in protected oppositi on to Title VII discriminati on; (2) [he] suffered an adverse employment action; and (3) ther e is a causal connection between the protected activity and the adverse employment action.” Meiners v. Univ. of Kan. , 359 F.3d 1222, 1229 (10th Cir. 2004). McCauley contended below that he was denied a promotion to Captain in retaliation for his protected activity, which he identified as his complaints to BCSD superiors about gender discrimination in 2009 and his EEOC charge in February 2010. The district court held McCauley’s 2009 complaints to Thomas did not qualify as protected activity in support of a prima facie case of retaliation. Regarding the February 2010 EEOC ch arge, the court found that although it qualified as protected activity, McCauley fa iled to demonstrate a causal connection between the charge and the Co unty’s failures to promote him in 2011. Specifically, the district court found no genuine dispute as to whet her any panel members were aware of McCauley’s EEOC charge. The c ourt concluded that some of McCauley’s evidence bore no relevance to that questi on, and it rejected as speculative his- 9 - assertion that Houston or Paiz disclosed th e fact of his EEOC charge to the panels. Further, the court reiterated its conclu sion that McCauley’s pretext evidence was insufficient to generate a mate rial issue of fact as to whether Houston controlled the panels. Because McCauley failed to esta blish a causal link be tween his protected activity and the adverse employment actions, the district court concluded his prima facie case of retaliation failed under both federal and state law. In challenging summary judgment on his retaliation claims, McCauley again makes only perfunctory arguments. He ba ldly asserts that “[t]here can be no argument” that his 2009 complaints to Thomas did not qualify as pr otected activity. Aplt. Opening Br. at 24. Furt her, he points out that to e ngage in a protected activity, he was not required to use di scrimination “buzz words.” Id. But McCauley fails to address the district court’s multiple rationales for rejec ting his retaliation claim, including its conclusion that while McCa uley may have expressed opposition to Thomas undermining his supervisory author ity and showing favor itism to a certain female employee, McCauley did not co mplain about gender discrimination. See Neal v. Roche , 349 F.3d 1246, 1251-52 (10th Cir. 2003) (holding Title VII does not proscribe cronyism and personal favoritism , so long as not discriminatory). As to causation, McCauley simply su mmarizes the evid ence he presented below without addressing the district cour t’s conclusion that th e evidence failed to show a genuine issue of material fact re garding either the panels’ knowledge of his EEOC charge or Houston’s alleged manipul ation of the panels ’ recommendations.- 10 - Again, we decline to craft appeal argumen ts for McCauley. Because McCauley has not shown the district court committed revers ible error in holding he failed to present sufficient evidence of a cau sal connection between his protected activity and the adverse employment actions to avoid summar y judgment on his retaliation claims, we affirm summary judgment on his retaliation claims. C. Denial of a Spoliation Sanction McCauley asserted below that Bernalillo County’s destruction of the panels’ interview notes and its loss of the audio recordings of th e panels’ interviews required the district court to infe r that the notes and reco rdings contained evidence demonstrating the County’s pr offered reason for not promo ting him was pretextual. The district court construe d this argument as a request for an adverse-inference spoliation sanction, requiring McCauley to show (1) Bern alillo County possessed a duty to preserve the evidence; (2) the destruction of the evidence prejudiced McCauley; and (3) Bernalillo County de stroyed the evidence in bad faith. See
Turner , 563 F.3d at 1149. The district cour t made no finding rega rding the County’s duty to preserve the evidence, but it specifically found McCauley suffered no prejudice from the loss or de struction of the evidence a nd the county did not act in bad faith. On appeal, McCauley contends the dist rict court should ha ve denied summary judgment on all of his claims based on the de struction of key evidence. Specifically, he contends the district court erred by relying on Turner , where this court affirmed a- 11 - district court’s denial of a spoliation sanction based on a finding of no bad faith. See id . at 1149-50. McCauley points out that in Turner , the defendant inadvertently lost its interview notes before the plaintiff filed her disc rimination charge and the employer produced through discovery nume rous other documents relating to the relevant hiring processes. See id. at 1150. 3 In contrast, McCauley contends the County’s claim in this case that it inadvert ently lost all of the audio recordings from the promotion processes in which he particip ated is simply incred ible. But McCauley ignores the district court’ s rationale for holding otherw ise and we conclude the district court did not err in finding McCauley has failed to show the County acted in bad faith in destroying the interview notes and failing to preserve the recordings. McCauley also asserts that, unlike in Turner , the County’s destruction and loss of evidence leaves him “no objective evidence of what we nt on in the promotional process,” thereby prejudicing hi m. Aplt. Opening Br. at 29. Once again, he ignores the district court’s reasoning. In findi ng that McCauley failed to demonstrate sufficient prejudice to justify a spoliation sanction, the dist rict court emphasized that his pretext argument depended on a showin g that Sheriff Houston had manipulated the panels’ recommendations. It noted that none of the panel members worked for BCSD, there was no evidence any panel me mber harbored any age bias, and no reason to conclude any panel member woul d be unwilling to honestly describe the

3 Mr. McCauley also incorrectly asserts that th e plaintiff in Turner relied solely on the lost interview notes to support her pretext argument. See 563 F.3d at 1144-48 (discussing the plaintiff’s other pretext arguments).- 12 - panel process. Yet McCauley failed to seek any eviden ce from the panel members in discovery. Thus, the court concluded the notes and recordings were not his only source of information about the panel pro cesses. On appeal, McCauley does not mention the district court’s rationale for concluding he wa s not prejudiced. Thus, he fails to show the district court abused its discretion in refusing to infer, as a spoliation sanction, that the County’s pr offered reason for not promoting him was pretextual. Having reviewed the district court’s summary judgment order, the parties’ briefs, and relevant portions of the re cord, we conclude the district court appropriately found no genuine issue of material fact a nd granted summary judgment for Bernalillo County on all claims. The judgment of the distri ct court is affirmed.

Entered for the Court
Nancy L. Moritz Circuit Judge