PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JOHN MATHEWS, Plaintiff - Appellant, v. No. 09-1233 DENVER NEWSPAPE R AGENCY LLP, Defendant - Appellee.

ORDER GRANTING PETITION FOR PANEL REHEARING

Before MURPHY , McKAY , and O’BRIEN , Circuit Judges.

Appellee Denver Newspaper Agency’s Pe tition for Panel Rehearing is GRANTED in part, for the purpose of adding footnote 5 on page 20. The Opinion filed March 16, 2011, is vacated. The revised opinion, filed nu nc pro tunc to the original filing date, is attached.

Entered for the Court

Elisabeth A. Shumaker, Clerk FILED United States Court of Appeals Tenth Circuit 

### May 17, 2011
Elisabeth A. Shumaker Clerk of CourtPUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JOHN MATHEWS, Plaintiff - Appellant, v. No. 09-1233 DENVER NEWSPAPE R AGENCY LLP, Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 1:07-C V-02097-WDM-KLM)

Barry D. Roseman, McNamara, Roseman, Ma rtínez & Kazmierski, LLP, Denver, CO, for Plaintiff-Appellant. Mary Hurley Stuart (Jason R. Prussman with her on the brief), Husch Blackwell Sanders LLP, Denver, CO, for Defendant-Appellee.

Before MURPHY , McKAY , and O’BRIEN , Circuit Judges.

MURPHY , Circuit Judge.

I. Introduction This case concerns the efforts of John Ma thews, formerly a unionized employee of Denver Newspaper Agency, LLP (the “Agency” ), to litigate certain statutory employment FILED United States Court of Appeals Tenth Circuit 

### March 16, 2011
Elisabeth A. Shumaker Clerk of Court2 discrimination claims despite ha ving previously arbitrated sim ilar contractual claims to a final, adverse determination. Believing the Supreme Court’s recent decision in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), to control the i ssue, the district court gave the arbitral decision preclusive force and grante d summary judgment against Mathews on all counts. The district court also concluded Mathews was unable to demonstrate that he was qualified for his former position, a show ing necessary to the establishment of a prima facie case of discriminatory demotion. Su mmary judgment was therefore granted on Mathews’s discriminatory demotion clai ms on this alternate ground, as well. The circumstances under which civil rights claims may be litigated despite a prior arbitral ruling have been long established under Alexander v. Gardner-Denver Co. , 415 U.S. 36 (1974), and 14 Penn Plaza does nothing to disturb th e rule set forth therein. Because the facts in this case f it squarely within the holding of Gardner-Denver , no preclusive or waiver effect should have been given to the prior arbitral decision. Nevertheless, the district court properly dete rmined that Mathews was unable to establish his prima facie case of discriminatory demotion as a matter of law. Exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE in part, and AFFIRM in part, and REMAND for proceedings not incons istent with this opinion.
II. Background Mathews, originally from southern In dia, worked for the Agency and its predecessors almost continuo usly from 1983 through 2005. He was a member of the Denver Mailers Union No. 8 (the “Union”) th roughout this period, and the terms of his employment were controlled by a collective-bargaining agreem ent (the “CBA”). At the3 time of the events giving rise to his curre nt claims, Mathews held the position of Unit Supervisor. 1 In June 2005, a female employee under Mathews’s supervision advised her union steward of inappropriate comments allegedly made by Mathews on the 11th and 12th of that month. Beginning on June 17, 20 05, the Agency placed Mathews on paid administrative leave pending its investigation of the incident. The Union filed a formal grievance against Mathews on behalf of th e complaining employee on June 20, 2005, and Mathews was informed that he would be de moted from his unit supervisor position on July 1, 2005. Later that da y, Mathews left the work fl oor and obtained a doctor’s certification that he could not return to work for medical reasons. Mathews subsequently filed an initial gr ievance against the Agency, alleging his demotion was motivated by national origin di scrimination, in violation of Article II, Section 11 of the CBA, as well as state and federal laws. Article II, Section 11 provides: The Employer and the Union acknowledge continuation of their policies of no discrimination against employees and ap plicants on the basis of age, sex, race, religious beliefs, color, national orig in or disability in accordance with and as required by applicab le state and federal laws. Mathews’s initial grievance also alleged that he was demoted in retaliation for previous complaints. It appears Ma thews had previously accused the Agency of deciding managerial and supervisory ro les based on considerations of race, color, and national origin. Mathews conveyed th ese accusations to Agency’s ma nagement in an email sent

1 Although this position required Mathews to oversee the work of other employees, he remained part of the bargaining unit, subject to the terms of the CBA.4 May 31, 2005, and in a letter dated June 15, 20 05, but not delivered until some later date. The initial grievance was later amended to re move any reference to state and federal laws, leaving only a claim of discrimination in violation of Article II, Section 11 of the CBA and the cryptic phrase “Also Retaliation complaints including but not limited to.” Article XIII of the CBA contains a disput e resolution procedur e, providing that “[i]n the event of a disagreement as to the in terpretation, application or construction of this contract, including all disputes involving discharge or discipline, which cannot be amicably adjusted by the Em ployer and the employees c oncerned,” such disagreement shall be submitted to final and binding arbitr ation. Despite this seemingly compulsory language, the parties agree that aggrieved employees can instead opt to litigate their disputes in a judicial forum. Mathews hi mself had previously litigated a claim against the Denver Post (a pred ecessor of the Agency). See Mathews v. Denver Post , 263 F.3d 1164 (10th Cir. 2001). This time, however, Mathews chose to submit his amended grievance to arbitration as provided by the CBA. The arbitration proceeding was held over fo ur days in February and March 2006. Although the question of discrimination wa s stated in terms of the CBA’s antidiscrimination provisions (“[D]id GRIEVANT’S demotion violate the contractual provisions prohibiting discrimination?”), Mathews and the Agen cy presented their arguments by reference to controlling Supr eme Court and Tenth Ci rcuit law under Title VII and related statutes. The arbitrator agre ed this approach was proper, because Article II, Section 11 of the CBA did “nothing more than recognize actions or omissions that would otherwise constitute statutory violations [are] also vi olations of [the CBA], so that5 a contractual remedy is available to any aggrie ved party, as well.” Applying the burdenshifting technique adopted by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), the arbitrator dete rmined (1) Mathews had established a prima facie case of discriminatory demotion; (2) the Ag ency had established a reasonably clear and specific non-discriminatory reason for its actions; and (3) Mathews was demoted not because of his national origin , but rather because a numbe r of complaints had been submitted against him, such that the Agency “began to entertain a good faith concern whether [Mathews’s] personality . . . was such as to allow him to be an effective supervisor.” 2 The arbitrator consequently denied Mathews’s grievance in its entirety. Shortly following the arbitrator’s adverse ruling, Mathews filed an application for disability benefits with the Social Secu rity Administration (the “SSA”), alleging complete and total disability beginning on June 11, 2005 (the date of the alleged comments precipitating his demotion). After initially rejecting Mathews’s claim, the SSA determined he was afflicted with a bu lging disc of the cervical spine and an affective disorder, rendering him disabled as of June 11, 2005. Mathews was therefore awarded monthly disability be nefits, as well as a lump-s um payment for the period between his disability and the SSA’s r ecognition thereof in September 2007. Mathews then initiated the in stant litigation in Colorado state court, asserting statutory claims under Title VII and 42 U.S. C. § 1981. The Agency removed the action to the District of Colorado. Following discovery, both parties moved for summary

2 The parties presented no evidence on Mathews’ s retaliation claim at arbitration, and the arbitral decision makes no mention of it.6 judgment. The district court concluded the parties “recognize d that the CBA’s arbitration agreement covered [Mathews’s] statutory cl aims.” Under such circumstances, it reasoned, Mathews’s submission to binding arbitration constitute d a waiver of his right to seek a judicial remedy. The arbitral decisi on was consequently give n preclusive effect, barring Mathews from litigating his statutory di scrimination and retaliation claims. The district court also determined that, in light of the evidence presented, no reasonable factfinder could find Mathews was medically qu alified for the position from which he was demoted. To the extent Mathews claime d that his disability arose only after his demotion, his prior sworn assertions to the SSA of total disability arising on June 11, 2005, served to judicially es top him from taking that position. He was therefore unable to establish a prima facie case of discrimination under the McDonnell Douglas framework. The district court thus gran ted summary judgment on each of Mathews’s claims based on waiver and preclusion grounds, and additionally on Mathews’s discriminatory demotion claim for failure to establish a prima facie case. Mathews now appeals the district court’s order granting summary judgment for the Agency.
III. Discussion This court reviews the grant of summary judgment de novo. Lewis v. Circuit City Stores, Inc. , 500 F.3d 1140, 1146 (10th Cir. 2007). Summary judgment is appropriate if the admissible evidence s hows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a ma tter of law.” Fed. R. Civ. P. 56(a). In determining whether summary judgment is appropriate, the court must “view the7 evidence and draw all reasonable inferences th erefrom in the light mo st favorable to the party opposing summary judgment.” Lewis , 500 F.3d at 1146. (quotation omitted).
A. Waiver and Preclusion of Statutory Claims Mathews’s first argument on appeal is th at the decision to submit his amended grievance to arbitration did not constitute a waiver of his right to litigate statutory discrimination and retaliation claims, and th at the arbitral decision rendered on his grievance should not preclude the instant litigation. Th e issue is controlled by GardnerDenver.
In Gardner-Denver , the Supreme Court set forth several tenets regarding the relationship between contract-dispute arbitra tion and subsequent civil rights litigation. First, the Gardner-Denver Court stated that, while an employee may presumably “waive his cause of action under Title VII . . . mere resort to the arbitr al forum to enforce contractual rights constitutes no such waiver.” 415 U.S. at 52 (emphasis added). Second, where the arbitration agreement betw een the parties empowers the arbitrator “to resolve only questions of contractual right s” under a collective-bargaining agreement, such arbitrator’s decision c ould not preclude the employee from later bringing his Title VII claims in federal court “regardless of wh ether certain contractual rights are similar to, or duplicative of, the substantiv e rights secured by Title VII.” Id. at 53-54; see also 14 Penn Plaza , 129 S. Ct. at 1467 (discussing the holding of Gardner-Denver ).
In Gardner-Denver , these basic rules combined to permit the plaintiff an opportunity to litigate Title VII claims against his em ployer despite ha ving previously lost at arbitration on a grie vance alleging unjust discharge in violation of the “just cause”8 provision of his collective-bargaining agreement. See 415 U.S. at 38-42. Critically, the arbitration agreement in Gardner-Denver did not provide the arbitr ator with authority to resolve questions of statutory rights. Id. at 53. Under such circumstances, the arbitral decision had resolved only th e contractual violations a lleged by plaintiff, and the “distinctly separate nature of [his] contr actual and statutory rights [was] not vitiated merely because both were violated as a result of the same factual occurrence.” Id. at 49. The preclusive doctrines of election of reme dies, waiver, res judicata, and collateral estoppel were therefore inapplicable “in lig ht of the collective-bargaining agreement’s failure to address arbitration of Title VII claims.” 3 14 Penn Plaza , 129 S. Ct. at 1467 (explaining the reasoning behind Gardner-Denver ’s holding); see also Gardner-Denver , 415 U.S. at 50 n.10 (“The po licy reasons for rejecting th e doctrines of election of remedies and waiver in the context of Title V II are equally applicable to the doctrines of res judicata and collateral estoppel.”). In addition to its core holding, the Gardner-Denver Court expressed doubts about the competence of arbitrators to evaluate and decide statutory claims, and about the validity of union-negotiated waivers of empl oyees’ federal forum rights for statutory claims. 415 U.S. at 51-52, 56-61. In subsequent years, the Supreme Court has

3 The reasoning articulated in Gardner-Denver also formed the core of the Court’s decisions in Barrentine v. Arkansas-Best Freight Sys., Inc. , 450 U.S. 728, 737 (1981) (denying preclusive effect to unsuccessfully arbitrated contractual wage claims in subsequent Fair Labor St andards Act litigation), and McDonald v. City of West Branch , 466 U.S. 284, 289 ( 1984) (denying preclusive effect to unsuccessfully arbitrated contractual “just cause” claims in subs equent litigation unde r 42 U.S.C. § 1983).9 disavowed Gardner-Denver ’s anti-arbitration language as misguided, 4 and clarified that an arbitration agreement can constitute an enforceable waiv er of judicial forum for statutory civil rights claims regardless whethe r negotiated individually or collectively. See Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 26 (1991) (holding individually negotiated arbitration ag reement encompassing statutory claims enforceable); Wright , 525 U.S. at 80 (holding union-ne gotiated waiver of employees’ right to judicial forum for statutory clai ms must be “clear and unmistakable”); 14 Penn Plaza , 129 S. Ct. 1456 (2009) (h olding union-negotiated waiv er of employees’ right to judicial forum for statutory claims en forceable where waiver was “clear and unmistakable”). Gardner-Denver ’s core holding, however, that the decision to arbitrate an employee’s contractual claim by itself neither waives nor precludes the subsequent litigation of statutory claims arising out of the same underlying facts, remains intact. See 14 Penn Plaza , 129 S. Ct. at 1467. As the law now stands, both individual employees and unions may prospectively agree with the employer to arbitrate all employmentrelated disputes, including stat utory rights normally enforced through litigation, but only so long as this intentio n is clearly expressed. See id. at 1465; Gilmer , 500 U.S. at 26. The continued vitality of Gardner-Denver in cases where the parties had not agreed to arbitrate statutory claims was mo st recently affirmed by the Supreme Court in

4 “[W]e are well past the time wh en judicial suspicion of th e desirability of arbitration and of the competence of arbitr al tribunals inhibited the development of arbitration as an alternative means of dispute resolution.” Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 34 n.5 (1991) (quotation omitted).10 14 Penn Plaza v. Pyett , 129 S. Ct. 1456 (2009). Th ere, the plaintiffs’ collectivebargaining agreement containe d the following language: There shall be no discrimination agai nst any present or future employee by reason of race, creed, color, age, di sability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to T itle VII of the Civil Rights Act, the Americans with Disabilities Act, th e Age Discrimination in Employment Act . . . . All such claims shall be subject to the grievance and arbitration procedures (Article V and VI) as the sole and exclusive remedy for violations. Id. at 1461. Despite this explicit language, the 14 Penn Plaza plaintiffs filed a complaint against their employer in federal court, alle ging violations of thei r rights under the Age Discrimination in Employment Act. Citing the terms of the collective-bargaining agreement, the defendant-employer sought dismissal of the complaint and an order compelling the plaintiffs to subm it their claims to arbitration. Although the district court and Second Circuit concluded that Gardner-Denvercontrolled (rendering the collectivebargaining agreement’s waiver of federal forum ineffective), the Supreme Court reversed and held the provision enforceable. Id. at 1463. Gardner-Denver , the Supreme Court explained, deni ed preclusive effect to a prior arbitral decision “because the collective-ba rgaining agreement did not cover statutory claims.” Id. at 1467. It therefore followed that the Gardner-Denver arbitrator could not decide questions of statutory rights regardless whether the plaintiff’s “contractual rights [were] similar to, or duplic ative of, the substantive righ ts secured by Title VII.” Id. (quoting Gardner-Denver , 415 U.S. at 53-54). This juri sprudence remained sound, but does not “control the outcome where . . . the collective-bargai ning agreement’s11 arbitration provision expressly covers both statutory and contractual discrimination claims .” Id. at 1469 (emphasis added). Because the collective-bargaining agreement in 14 Penn Plaza did expressly cover statutory claims, Gardner-Denver had no bearing and the terms of the arbitrati on agreement controlled. Id. at 1466-69. This body of precedent determines the out come of Mathews’s current challenge, and the district court correctly recognized th at the crucial inquiry is whether the CBA’s arbitration provisions covered Mathews’s st atutory claims. It noted that Article II, Section 11 of the CBA provided contractual guarantees against discrimination precisely coterminous with those given in federal la w, and that Mathews and the Agency both treated this provision “as doing nothing more than recognizing actions or omission that would otherwise constitute statutory violations as also vi olations of their agreement.” From this, the district court concluded the parties “recognized that the CBA’s arbitration agreement covered Plaintiff’s statutor y claims,” placing the case within 14 Penn Plaza ’s holding rather than Gardner-Denver ’s. The court concluded Mathews’s prior submission to arbitration therefore constitu ted a waiver of his right to seek a judicial remedy. Nothing in the record supports the district court’s logical jump. Although the parties acknowledged that viola tions of statutory law would also constitute violations of the contract, this does not mean that the CBA covered statutory claims or that the parties believed it to do so. Indeed, the district court’s conclusion ignores the “distinctly separate nature” of contractual and statutory rights, which is “not vitiated merely because both were violated as a result of the same factual occurrence.” Gardner-Denver , 415 U.S. at 50. This reasoning does not chan ge even though the contours of the CBA’s anti-12 discrimination protections were defined by reference to federal law. See id. at 54. Rather, unionized employees of the Agency subjected to di scriminatory treatment hold two similar claims, one based in statute, and one based in cont ract. The operative question remains whether the CBA’s arbitr ation provisions are broad enough to encompass Mathews’s statutory claims, such that his submission to arbitration operated as a waiver of forum or election of remedy. Applying Supreme Court precedent to the facts of Mathews’s case, it is evident no waiver of judicial forum has occurred. Ag ain, such a waiver ma y only occur where the arbitration agreement expressly grants the arbitr ator authority to decide statutory claims. See 14 Penn Plaza , 129 S. Ct. at 1469; Gilmer , 525 U.S. at 70-80. The arbitration clause of the CBA, from which the arbitrator derived all authority, states that “[t]he arbitrator shall have no power to add to, subtract from, change or modify a ny provision of this Agreement, but shall be authorized only to resolv e the dispute submitted to him or her .” CBA, Article XIII (emphasis added). The di spute submitted to arbitration by Mathews asserted a violation of Article II, Secti on 11 of the CBA and a vague complaint of retaliation, but no statutory cl aims under Title VII or 42 U.S.C. § 1981. Because the arbitration agreement empowered the arbitrator to resolve only the dispute submitted, and because the dispute submitted made no mention of statutory claims, the arbitral decision could in no way determine the question of Mathews’s statutory rights. Appropriately, the Agency’s representative at arb itration agreed that the issu e before the arbitrator was whether “the company discriminate[d] against Mr. Mathews in violation of Section 11, Article II of the contract ,” and the arbitral decision phrased the question decided strictly13 in terms of Mathews’s contractual rights under the CBA (“[D]id GRIEVANT’S demotion violate the contractual provisions prohibiting discrimination? ”) (emphases added). Thus, the relevant facts of Mathew s’s case precisely track those of GardnerDenver

. There, as here, no waiver of the right to litigate statutory claims has occurred, because “mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver.” Gardner-Denver , 415 U.S. at 52. That Math ews’s contractual rights and statutory rights were coterminous is of no moment: As the Supreme Court has recently reaffirmed, “[b]ecause the coll ective-bargaining agreement gave the arbitrator ‘authority to resolve only questions of contractual rights,’ his decision could not prevent the employee from bringing the Title VII claim in federal court ‘ regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. ’” 14 Penn Plaza , 129 S. Ct at 1467 (emphasis added) (quoting GardnerDenver , 415 U.S. at 53-54). Nor can it be argued that the arbitra tion agreement required submission of statutory claims, such that Mathews’s failure to assert them in arbitr ation resulted in their waiver. By its own terms, the arbitration ag reement applied only to disagreements “as to the interpretation, application or construction of this contract [i.e. the CBA], including all disputes involving discharge or discipline. ” CBA, Article XIII (emphasis added). Mathews’s statutory claims consequently fall outside the scope of the arbitration agreement, and he has not waiv ed such claims by failing to raise them at arbitration. For these same reasons, no preclusive effe ct should be accord ed to the arbitral decision. Again, nothing in the arbitrati on agreement permitted or required Mathews to14 submit statutory claims to the arbitrator, not hing in the amended grievance purports to do so, and the arbitration agreement nowhere empow ered the arbitrator to decide questions of statutory rights. The facts of Mathews’s case thus mirror those of Gardner-Denver in all relevant aspects. Because the Gardner-Denver employees “had not agreed to arbitrate their statutory claims, and the labor arbitrat ors were not authorized to resolve such claims, the arbitration in [ Gardner-Denver ] understandably was held not to preclude subsequent statutory actions.” Gilmer , 500 U.S. at 35. Seeing no relevant distinction between that case and the one before us, the same reasoning holds. The Agency’s reliance on Lewis v. Circuit City Stores , in which we granted preclusive effect to a prior arbitral decisi on, is unavailing. There, the plaintiff had submitted “specific claims under the Kansas Act Against Discrimination . . . and Title VII of the Civil Rights Act” against his em ployer to binding arbitr ation. 500 F.3d at 1144. The arbitration agreement in Lewis , moreover, required arbitration of “ any claims arising under federal, state or local statut ory or common law . . . includ[ing], but not limited to . . . Title VII of th e Civil Rights Act of 1964 . . . state discrimination statutes, state statutes and/or common law regulating employment termin ation, the law of contract or the law of tort.” Id. at 1143 (emphasis added). Following the arbitrator’s adverse determination, the Lewis plaintiff initiated a federal lawsuit against his employer, asserting violations of his stat utory rights arising from the same set of facts as his arbitral complaints. Id. at 1145. In affirming the district court’s grant of summary judgment against plaintiff on claim preclusion gr ounds, we explicitly distinguished GardnerDenver and its progeny, which had allowed litigati on to proceed because the parties had15 arbitrated “contract-based claims, in contrast to statutory claims [and] the employees had never agreed to have an arbitrator deci de their individual statutory rights.” Id. at 1148 n.9. “In contrast, Lewis’s arbitration ag reement . . . was not limited to contractual disputes, [and] Lewis broadly agreed to ar bitrate any statutory or tort claims.” Id. Under those circumstances, the doctrines of preclusion and waiver applied. As is evident from our fore going discussion, Mathews’s case falls squarely within the reasoning of Gardner-Denver , and is easily distinguished from Lewis . Because the submission of Mathews’s contractual claims to binding arbitration results in no waiver or preclusion of his statutory claims, summary judg ment on such grounds was inappropriate.
B. Failure to Establish Qua lification for the Position Mathews next challenges the district court’s alternate gr ounds for summary judgment on his discriminatory demotion clai m. In support of his Title VII claim of discriminatory demotion, Mathews presente d only indirect evidence suggesting he received harsher treatment than his similarl y situated, non-Indian peers. Because Mathews relies upon such indirect evidence to defend against summary judgment, the court evaluates that claim under the rubric set forth in McDonnell Douglas Corp. v.
Green , 411 U.S. at 802-04; Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1226 (10th Cir. 2000). Applying that framework to the present case, Ma thews bears the initial burden of establishing a prima facie case of discriminatory demotion. Kendrick , 220 F.3d at 1226. He may satisfy his burden by presenting evidence that (i) he is a member of a protected class, (ii) he was qualified for the job as Unit Supervisor, (iii) he was demoted from that job, and (iv) the position was not eliminated. See Jones v. Denver16 Post Corp. , 203 F.3d 748, 753 (10t h Cir. 2000). Once the prima facie case has been made, the burden shifts to the employer to ar ticulate some legitimate, non-discriminatory reason for the demotion. Id. at 752. Finally, the burden shifts ba ck to the plaintiff to demonstrate that the employer’s stated reason is in fact a mere pretext. Id. at 752-53. The district court conclude d Mathews had not satisfie d his initial burden because he could not demonstrate he wa s qualified for the job as Unit Supervisor. Specifically, it determined the significant medical evidence in the record in dicates Mathews was medically unable to perform his job (or any jo b) since June 11, 2005 (i.e. several weeks before the Agency demoted him ). The district court also de termined that, to the extent Mathews argued he was qualified to perform hi s job at the time of his demotion on July 1, 2005, he was judicially estopped from ta king such position in light of his previous sworn statements to the SSA that he has been completely disabled as of June 11, 2005. Mathews does not dispute that he is currently unqualified to work as a Unit Supervisor, but claims his disability arose on ly as a result of the Agency’s allegedly wrongful decision to demote him, and that it would be inequitable for the Agency to escape liability for its wrongful act because of its dramatic consequences. He emphasizes that, regardless what the medical records in evidence may show, it is undisputed he actually worked as Unit Supervisor until bein g placed on administra tive leave on June 17, 2005. Finally, Mathews contends the doctrin e of judicial estoppe l should not apply because his sworn statements to the SSA of to tal disability as of June 11, 2005, are not inconsistent with his current claims that he was qualified for unit supervisor position until suffering debilitating depression as a result of his demotion.17 Viewing the record before us in the light most favorable to Mathews, we conclude he cannot establish his prima facie case of discriminatory demotion because he is judicially estopped from asserting he was qua lified for the job of Unit Supervisor at the time he was demoted. “The doctrine of ju dicial estoppel is ba sed upon protecting the integrity of the judicial system by ‘pro hibiting parties from deliberately changing positions according to the exig encies of the moment.’” Bradford v. Wiggins , 516 F.3d 1189, 1194 (10th Cir. 2008) (quoting New Hampshire v. Maine , 532 U.S. 742, 749-59 (2001)). In deciding whether to apply judicial estoppel, courts look to such factors as whether “1) a party’s later position is clearly inconsistent with its earlier position; 2) a party has persuaded a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a la ter proceeding would cr eate the perception that either the first or second court was mi sled; and 3) the party seeking to assert the inconsistent position would derive an unfair advantage if not estopped.” Id. (quotation omitted). Where a plaintiff’s pr ior inconsistent position is a cl aim of total disability made in an SSA proceeding, he is not necessarily estopped from asserting qualification for his job in a subsequent lawsuit. See Cleveland v. Policy Mgmt. Sys. Corp. , 526 U.S. 795, 804-06 (1999) (discussing instances in whic h a plaintiff may be disabled for SSA purposes, yet sufficiently qualified to a ssert a claim under the Americans with Disabilities Act). In such circumstances, however, the plaintiff mu st provide an explanation of the apparent inconsistency w ith the necessary elements of plaintiff’s claim. Id. at 806-07.18 Guided by these principles, we review the district court’ s decision to apply judicial estoppel for abuse of discretion. Eastman v. Union Pac. R.R. , 493 F.3d 1151, 1156 (10th Cir. 2007). Here, Mathews persuaded an ad ministrative law judge for the SSA that a bulging disc of the cervical spine and an affective disorder rendered him completely disabled from working in any capacity as of June 11, 2005. He now asserts that to “the best of [his] recollection,” hi s disabling depression only occu rred after the Agency placed him on administrative leave on June 17, 2005. The two positions are clearly inconsistent and satisfy the standard test for judicial est oppel. Mathews makes no effort to explain the apparent inconsiste ncy as required by Cleveland . Instead, Mathews meekly asserts there
is no inconsistency. The conflict, however, is self-evident. We are left with a paradigmatic case fo r judicial estoppel: Mathews’s inconsistent statement to the SSA has resulted in his receipt of significant benefits in the form of disability payments, and allowing him to reta in these benefits while he now pursues a claim predicated on a complete rejection of his prior position would give him an unfair advantage. The district cour t therefore did not abuse its di scretion in judicially estopping Mathews from asserting that he was qualifie d to work as Unit Supervisor until being placed on administrative leave. Beca use this estoppel prevents Mathews from establishing his prima facie case of discriminatory demotion, summary judgment of that claim is affirmed.
C. Mathews’s Retaliatory Demotion Claim Because we affirm summary judgment on Mathews’s statutory claim of discriminatory demotion based on his failure to establish a prima facie case, only his19 claim of retaliatory demotion remains. The Agency moved the distri ct court for summary judgment on this claim, arguing the ch ronology of events made it impossible for Mathews to establish a prima facie case of retaliatory demo tion. The Agency further argued that, even if an otherwise suffici ent showing of retaliation had been made, summary judgment was appropriate becaus e Mathews had not presented evidence sufficient to overcome the weight of the ar bitrator’s finding that legitimate management concerns caused Mathews’s demotion. Thes e arguments were not reached because the district court granted full summary judgment against Mathews on waiver and preclusion grounds, but the Agency asserts them on appeal as an alternative basis to affirm the district court decision. For the reasons di scussed above, the doctrines of waiver and preclusion do not apply to Mathews’s retali ation claim, and we must now squarely address the Agency’s alternativ e grounds for su mmary judgment. As with claims of discriminatory demoti on, when a plaintiff relies solely upon indirect evidence to avoid summary judgment on a claim of retaliation, courts employ the burden-shifting framework of McDonnell Douglas , under which the plaintiff bears the initial burden of establishing a prima facie case. See Somoza v. Univ. of Denver , 513 F.3d 1206, 1211 (10th Ci r. 2008). To establish a prima facie case of retaliatory demotion, the plaintiff must make a showing th at (i) he was engaged in protected activity, (ii) he suffered an adverse employment acti on, and (iii) there was a causal connection between the protected activity and the adverse action. See Timmerman v. U.S. Bank , 48320 F.3d 1106, 1122-23 (10th Cir. 2007). 5 Mathews contends that correspondence with his supervisors, in which he co mplains Agency management ma de personnel decisions based on improper consideration of race and ethn icity, precipitated his subsequent demotion from Unit Supervisor. The facts of Math ews’s correspondence and demotion are not disputed, establishing the first two elements of his prima facie claim. The Agency, however, asserts the third prong, a causal co nnection between the two, cannot logically be established because th e correspondence was not re ceived by the Agency until after Mathews had been placed on paid administrative leave. The argument is not persuasive. Th e record shows Math ews was placed on administrative leave on June 17, 2005, and that his demotion was announced on July 1, 2005. It also shows Mathews had communi cated his suspicions of discriminatory decision-making to his Agency supervisor s by email on May 31, 2005, and by letter sometime after June 17, 2005, but before July 1. In arguing that no causal connection can be shown between the corresp ondence and Mathews’s demotion, the Agency focuses solely upon the timing of the letter. This ignores the email, which was received well

5 In addition to the three- part showing required by Timmerman , some circuits have also required plaintiffs to demonstrate they are “qualified for the position at issue, or, if already employed, [had] me t the employer’s legitimat e work expectations.” Volovsek v. Wis. Dep’t of Agric., Trade & Consumer Prot. , 344 F.3d 680, 692 (7th Cir. 2003); see also Holtzclaw v. DSC Commc’ns Corp. , 255 F.3d 254, 25 9-60 (5th Cir. 2001) (concluding “that qualification fo r the job is an element of a prima facie case of ADEA retaliation” in a failure to rehire case). But see EEOC. v. Dunbar Diagnostic Servs. Inc. , 92 F. App’x 83, 84-85 (5th Ci r. 2004) (declining to requir e plaintiff to demonstrate qualification for position as part of her prima facie burden in wrongful discharge case). In its motion for summary judgment in the district court and its briefing before this court, however, the Agency has relied on Timmerman ’s three-part test for the standard against which Mathews’s prima facie case of retaliatory demo tion should be judged. Accordingly, our analys is is limited to the Timmerman rubric.21 before the events giving rise to Mathews’s placement on admi nistrative leave. A causal connection is therefore not impossible to show. Furthermore, even if there had only been the one letter, it too was received by the Agency pr ior to its decision to demote Mathews. Although he had been placed on administrative leave prior to its receipt, there is no indication the decision to demote him had already been made. Mathews has satisfied his burden of showing a causal connection betw een his complaints and his subsequent demotion, and the requisite prima facie showing has thus been made. See St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 506 (19 93) (holding that the burden of establishing prima facie case of discriminatory treatment may be satisfied by “minimal” showing). Under the McDonnell Douglas framework, the burden next shifts to th e Agency to articulate some legitimate, non-discriminatory reason for Mathews’s demotion. 411 U.S. at 802. The Agency’s proffered explana tion—namely, its doubts as to Mathews’s suitability for the Unit Supervis or position—suffices to satisfy this burden. The final burden therefore falls to Mathews, who must point to some admissible evidence showing that the Agency’s proffered e xplanation is mere pretext. Kendrick , 220 F.3d at 1226. Mathews has presented some evidence that other employ ees were not demoted for their objectionable conduct. Such evidence can, in some circumstances, provide a sufficient showing that an employer’s pro ffered explanation is pretextual to avoid summary judgment. Th e Agency, however, urges this c ourt to hold Mathews to a more stringent standard in light of the arbitrato r’s prior adverse ruling. Specifically, the Agency cites to Second Ci rcuit case law holding that, where a plaintiff’s statutory discrimination or retaliation claims have previously been rejected in an arbitral22 proceeding following an eviden tiary hearing and based upon substantial evidence, the plaintiff, “to survive a motion for summary judgment, must pr esent strong evidence that the decision was wrong as a matter of fact—e.g . new evidence not be fore the tribunal—or that the impartiality of the procee ding was somehow compromised.” Collins v. N.Y. City Transit Auth. , 305 F.3d 113, 119 (2d Ci r. 2002). We are asked to adopt this reasoning, and to hold Mathews’s eviden ce per se insufficient to overc ome the probative weight of the arbitrator’s adverse ruling. This court has not adopted the Second Circ uit’s per se “strong evidence” standard, and there is no need to do so now. In Gardner-Denver , the Supreme Court counseled that, when evaluating a plaintiff’s statutory di scrimination claims arising out of the same facts as a previously arbitrated contract disp ute, the arbitrator’s prior decision “may be admitted as evidence and accord ed such weight as the c ourt deems appropriate.” 415 U.S. at 60. The Court clarified that it c ould prescribe no fixed standard as to the probative weight accorded to such an arbitral decision, “s ince this must be determined in the [trial] court’s discretion w ith regard to the facts and circumstances of each case.” Id. at 60 n.21; accord Barrentine , 450 U.S. at 743 n.22. Cert ainly, “‘[w]here an arbitral determination gives full consideration to an employee’s [Title VII] rights, a court may properly accord it great weight,’” but the co urt must also consider the “‘degree of procedural fairness in the arbitr al forum, adequacy of the record with respect to the issue of discrimination, and the special compet ence of particular arbitrators.’” Barrentine , 450 U.S. at 743 n.22 (quoting Gardner-Denver , 415 U.S. at 60 n.21). The Collins court, in fact, acknowledged as much before artic ulating its “strong evidence” standard. See 30523 F.3d at 119 (citing cases). In light of th e Supreme Court’s clear directive to accord weight to prior arbitral decisions on a case-by-case basis, a per se standard is inappropriate and we will not affirm the grant of summary judgment on that basis.
IV. Conclusion For the foregoing reasons, the district c ourt’s grant of summary judgment against Mathews on his discriminatory demotion claim is AFFIRMED , and the district court’s grant of summary judgment on th e retaliatory demotion claim is DENIED . The case is REMANDED to the district court for further pr oceedings not inconsistent with this decision.