* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 12 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DENNIS G. WOOD,

Plaintiff-Appellant,

v. CITY OF TOPEKA, KANSAS, Topeka Housing Authority,

Defendant-Appellee. No. 00-3060 (D.C. No. 98-CV-4011-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Wood’s complaint also alleged sexual harassment, ge nder discrimination,

§ 1983 violations of equal protection and due proce ss, breach of express and implied contract, wrongful discharge, intentional i nfliction of emotional distress, negligence, and loss of consortium. Wood does not challenge the district court’s dismissal of these claims on appeal. -2- Plaintiff-appellant Dennis G. Wood sued his former employer, defendant-appellee City of Topeka, alleging discrim ination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and retaliation in violation of the First Amendment. 1 He appeals the district court’s entry of summary judgment. We exercise jurisdictio n pursuant to 28 U.S.C. § 1291 and we affirm.

BACKGROUND Wood was fifty-two years old when the City fired hi m from the position of maintenance worker for the Topeka Housing Authority . His personnel record shows that his actions were the basis of two sexual harassment lawsuits filed by two of his co-workers against the City in 1993. Th e cases were settled, and Wood was suspended for thirty days without pay for each complaint. In January 1997, Wood was again the subject of two co-workers’ sexual harassment complaints. Around the same time, a ten ant of the housing authority also made a sexual harassment complaint. The City investigated the allegations and concluded that, with regard to the workplace co mplaints, Wood had engaged-3-

in inappropriate conduct in violation of the City’s sexual harassment policy. By letter dated February 7, 1997, the City advised Woo d of its conclusion, referenced his earlier suspensions, and notified him that his employment was terminated. In the ensuing wrongful discharge lawsuit, the distric t court entered summary judgment in favor of the City. This appeal followe d.

DISCUSSION “We review the district court’s grant of summary judgment de novo, applying the same legal standard as the district court.” Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary ju dgment is appropriate on a record demonstrating “that there i s no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[W]e view the factu al record and inferences therefrom in the light most favorable to the nonmoving party.” Bullington , 186 F.3d at 1313.
First Amendment Claim “[A] public employer cannot retaliate against an employee for exercising his constitutionally protected right of free speech.” Finn v. N. M. , No. 00-2276, 2001 WL 502399, at *3 (10th Cir. May 11, 2001) (quo tation omitted). A First Amendment retaliation claim is evaluated under a we ll-established balancing test requiring: (1) a determination of “whether the emp loyee’s speech involves a-4-

matter of public concern” and (2) a balancing of th e employee’s interest “against the interest of the State, as an employer, in promo ting the efficiency of the public services it performs through its employees.” Id. (quotations omitted). If this “balance tips in favor of the employee, the employe e then must show that the speech was a substantial factor or a motivating fac tor” in the challenged employment decision. Id. (quotations omitted) Finally, if the employee establishes that the speech was a factor, “the empl oyer may demonstrate that it would have taken the same action against the employ ee even in the absence of the protected speech.” Id . (quotation omitted). Here, Wood alleged that he was fired for making itknown that his supervisor endangered the health, safety, and welfa re of housing department tenants by refusing to respond to emergency repair requests. In evaluating this claim, the district court reached the third step of the applicable test. The court determined that Wood’s statements involved a matterof public concern that outweighed the State’s interest in efficiency. It concluded, however, that Wood had not sufficiently established that his protected speech was a motivating factor in his discharge. We agree with the district court that Wood provided no more than a scintilla of evidence in support of his claim. Alt hough his primary evidence, Wood’s affidavit, is specific as to his perception of the supervisor’s-5-

shortcomings, it provides no connection between Woo d’s discharge and his speaking out about the supervisor’s perceived faili ngs. Moreover, we have viewed the affidavit, as Wood urges, in “the total fabric of the City’s overall animosity.” Appellant’s Br. at 15-16. We conclude that the district court properly resolved Wood’s First Amendment claim. Age Discrimination Claim On appeal, Wood claims that the district court fail ed to credit his argument that he presented direct evidence of age discrimination, and that the district court reached an incorrect result in applying the burden- shifting analysis for circumstantial cases, first articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). Wood asserts that evidence of his supervisor repeat edly making comments about how he would fire old employees constituted d irect proof of intentional discrimination. A plaintiff proves discrimination through direct e vidence by establishing proof of an existing policy which itse lf constitutes discrimination. Statements which on their face are expressions of p ersonal opinion, however, can only support an inference of discrimination if the trier of fact finds the inference reasonable, a nd so constitute only circumstantial or indirect evidence of discriminati on against the plaintiff.-6-

Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir.), cert. denied , 121 S. Ct. 182 (2000) (citations and quotations omitted). At most, the cited supervisor’s comments were an expression of personal opinion by an individual without hiring and firing authority. “However inappropriate [these] statements may be, [they] are not direct evidence of causation on the employment decision.” Id. (quotation omitted). The district court properly addressed Wood’s age di scrimination claim under the burden-shifting analysis. Using this thr ee-step framework, the plaintiff “bears the initial burden of establishing a prima f acie case by a preponderance of the evidence. One way a plaintif f may establish a prima facie case of wrongful termination is by show ing that: (1)[ ]he belongs to a protected class; (2)[ ]he was qualifi ed for [his] job; (3) despite [his] qualifications, [ ]he was discharged; and (4) the job was not eliminated after [his] discharge. If the plaintiff establishes [his] prima facie case, a rebuttable presumption ar ises that the defendants unlawfully discriminated against [him]. The defendants must then articulate a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff. If the defendant is able to articulate a valid reason, the plaintiff can avoid summary judgment only if [ ]he is able to show thata genuine dispute of material fact exists as to whether the d efendant's articulated reason was pretextual.” Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1165 (10th Cir. 2000) (quoting Perry v. Woodward , 199 F.3d 1126, 1135 (10th Cir. 1999) (alteration in original). The underlying rationale is that an employee’s “pri ma facie case, combined with sufficient evidence to find that the employer’s ass erted justification is false, may-7-

permit the trier of fact to conclude that the emplo yer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Initially, the court entered summary judgment on Wo od’s claim based on its determination that Wood had failed to establish a prima facie case. Subsequently, Wood filed a motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment on this issue. On reconsideration, the court determined that Wood had indeed established a prima facie case, thus allowing him t o proceed to the later stages of the McDonnell-Douglas analysis. The court concluded, however, that the City had come forward with Wood’s history of sexual hara ssment as a nondiscriminatory reason for discharging him and th at Wood had failed to provide evidence that the City’s proffered reason was prete xtual. Notwithstanding its changed analysis, the court re-affirmed its previou s summary judgment ruling. For purposes of the McDonnell-Douglas analysis, we assume on appeal that Wood presented evidence establishing a prima facie case of age discrimination and that the burden shifted to the City to provide a legitimate, non-discriminatory explanation for its discharge decision. Like the d istrict court, we conclude that the City came forward with such an explanation–the record of sexual harassment complaints made against Wood. Thus, it was Wood’s task to show that the City’s justification was pretextual.2 We note that these comments were characterized in W ood’s deposition as

“lunchroom banter.” Appellant’s App. at 347. -8- In some instances, evidence of discriminatory comme nts may be relevant to the issue of pretext. See Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1209-10 (10th Cir. 1999). To be significant evidence of pr etext, however, the objectionable conduct or remarks should be attribut able to an individual responsible for the employment decision. See Kendrick v. Penske Trans. Serv.,
Inc. , 220 F.3d 1220, 1231 (10th Cir. 2000) (remarking that, where manager was not “simply a rubber stamp or conduit for an employ ment decision made in reality by underlings, he was not responsible for an underl ing’s allegedly discriminatory actions); see also Reeves , 530 U.S. at 151 (evaluating age-based comments ma de by the individual “principally responsible” for pla intiff’s firing). Wood’s speculation that his supervisor “had the abi lity to join with [others] to trump up sexual harassment claims,” Appellant’s Br. at 12, does not meet this qualification. Under the circumstances of the pres ent case, the supervisor’s comments do not suffice to raise an inference of pretext. 2
The record reveals no other reasons to disbelieve the City’s proffered explanation for terminating Wood’s employment. Acc ordingly, Wood has not created a genuine issue of material fact on his age discrimination claim, either by showing direct evidence of discrimination or by dem onstrating pretext under the-9-

McDonnell Douglas framework. The district court correctly granted t he City’s motion for summary judgment on this claim. The judgment of the district court is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge