* This order and judgment is not binding precedent, except under the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 10 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DELILAH STAHL,

Plaintiff-Appellant No. 03-3068

v. (D. Kansas) BOARD OF COUNTY COMMISSIONERS OF THE UNIFIED GOVERNMENT OF WYNANDOTTE COUNTY/KANSAS CITY, KANSAS,

Defendant-Appellee. (D.C. No. 01-CV-2539-CM)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY, and McCONNELL , Circuit Judges.
Sergeant Delilah Stahl appeals the district court’s grant of summary judgment against her and in favor of the Board of C ounty Commissioners of the Unified Government of Wyandotte County (the County) on her claims for gender discrimination and retaliation under Title VII of t he Civil Rights Act of 1964, 42-2-

U.S.C. § 2000e. Sergeant Stahl’s complaints arise out of the County’s administration of a physical fitness test to applic ants for positions in its newlycreated Special Enforcement Unit (SEU). For substantially the same reasons as the district court, we conclude that Sergeant Stahl failed to present sufficient evidenc e from which a factfinder could conclude that the County discriminated against her because of her gender or in retaliation for conduct protected by Title VII. Ac cordingly, we affirm the grant of summary judgment to the County.

I. FACTUAL BACKGROUND Sergeant Stahl has worked for the County as a polic e officer since 1981 and has served as a sergeant since 1992. From October 1998 until January 14, 2001, she was a supervisor in the County Police Departmen t’s Vice and Narcotics Unit. In June 2000, newly-appointed Chief of Police Ronal d Miller decided to combine the Vice and Narcotics Unit and the Departm ent’s tactical SWAT team (referred to as its “S.C.O.R.E Unit”) into the SEU. According to the district court “[i]t [was] uncontroverted that the decision to com bine the two units was not made to remove [Sergeant Stahl] from her position o r otherwise discriminate against her. Rather, the decision was a legitimate restructuring.” Aplt’s App. at 119 (Dist. Ct. Order, filed Jan. 24, 2003).-3-

Since the mid 1980s, the County had required its S. C.O.R.E. Unit officers, including sergeants, to pass both an initial fitnes s test as a qualification for the job and subsequent tests to remain in the unit. Th e County also required S.C.O.R.E. officers to participate in on-duty physi cal fitness training. In contrast, officers in the Vice and Narcotics Unit, where Serg eant Stahl worked, were not required to complete a fitness test, nor were those officers required to participate in fitness training. Because all officers in the SEU would be expected t o undergo tactical training and perform tactical duties, Chief Miller and the command staff decided that successful completion of a physical fitness te st also should be a qualification for selection. Chief Miller decided to use the sam e fitness test that had been used for S.C.O.R.E. applicants. According to Chief Mill er, “many women have taken that same test and passed it.” Aplt’s App. at 111. The test consisted of the following components: (1) skinfold assessment; (2) trunk flexion; (3) trunk extension; (4) bent-kn ee sit-ups; (5) a twelve-minute run; (6) push-ups; (7) pull-ups; (8) squat thrusts; (9) bench press; (10) standing broad jump; and (11) standing vertical leap. The C ounty required a composite score of seventy to pass the test, which was determ ined by adding together the percentage scores on each event and dividing the nu mber by eleven. An applicant did not have to complete every event successfully t o pass the test.-4-

In July 2000, Sergeant Stahl learned that the Vice and Narcotics Unit and the S.C.O.R.E. Unit would be combined into the SEU. Around the third week of September 2000, officers in the Vice and Narcotics Unit began discussing the possibility of requiring a physical fitness test. At the end of September 2000, Sergeant Stahl obtained a copy of the physical fitn ess test that had been required for the S.C.O.R.E. Unit. In mid-October, Police De partment supervisors notified her that the test would be required for the SEU. During the last week of September or the first weekof October, Sergeant Stahl began working out at home to prepare for the physical fitness test. She requested that she be allowed to attend workout ses sions with S.C.O.R.E. officers. Although her request was initially denied, her supe rvisors reconsidered that decision and granted the request. During the previous two years, Sergeant Stahl had n ot engaged in a regular exercise program She considered herself 25 to 30 pounds overweight and had smoked roughly a pack of cigarettes each day for th e past 30 years. She continued to smoke while she was training for the t est. Sergeant Stahl believed that she needed more time t o prepare for the test, particularly the bench press and the vertical and b road jumps. She informed her supervisors, telling them that the test was not “fe male-friendly,” Aplt’s App. at 52. The supervisors encouraged her to continue wor king out but refused to grant-5-

her more time to prepare. Sergeant Stahl acknowle dged in deposition testimony that she was not treated any differently after she complained about the test. On October 30, 2000, Sergeant Stahl submitted her application for a sergeant’s position in the SEU. Along with all the other candidates, Sergeant Stahl took the physical fitness on November 7, 2000 . She failed the bench press, vertical jump, broad jump, and trunk extension comp onents, and, as a result, received a failing composite score. The County sel ected three male candidates, all of whom had passed the physical fitness test. According to Sergeant Stahl, the County discriminat ed against her in the manner in which it administered the test. In parti cular, she testified that Captain Mike Armstrong allowed Officer Mike Whitfield (who had applied for a canine officer position) to lie on the floor between each of his last five push-ups. In contrast, Sergeant Stahl maintained, Captain Armstr ong required her to perform extra push-ups, stating that she had performed seve ral incorrectly. However, Sergeant Stahl pointed to no other occasion when a male applicant had been given favorable treatment. In November 2001, Sergeant Stahl filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as serting claims for (1) gender discrimination, and (2) retaliation. She also asse rted a state law claim for breach of an implied employment contract. As to her gende r discrimination claim,1 Sergeant Stahl alleged in her Complaint that “[t] he actions of [the

County] were intentional discrimination against pla intiff or were, in the alternative, the result of an allegedly neutral emp loyment practice employed in a manner which served to work a disparate impact upon plaintiff as a female member of [the County’s] workforce.” Aplt’s App. at 2, ¶ 13. -6- Sergeant Stahl initially sought to recover under di sparate impact and disparate treatment theories. See Aplt’s App at 2, ¶ 13 (Complaint, filed Nov. 13, 2 001). 1 However, in the pretrial order, the parties stated that Sergeant Stahl had abandoned her disparate impact claim and her state law claim. See id. at 20 (Pretrial Order, filed Sept. 5, 2002) (stating that“[p]laintiff has abandoned her Title VII disparate impact claim (Count I) and her Kansas common law claim for breach of implied contract of employment (Count III )).” After Sergeant Stahl filed this action, the County suspended the physical fitness test for SEU applicants and hired a consult ant to recommend the most appropriate selection method. The County has hired several more officers for positions with the SEU, on the condition that they may retain their positions only if they pass any new fitness test that is adopted. Following discovery, the district court granted the County’s motion for summary judgment. As to the gender discrimination claim, the court concluded that Sergeant Stahl had failed to present evidence from which a factfinder could reasonably conclude that the County’s reliance on t he physical fitness test as a-7-

means of selecting candidates for the SEU was a pre text for discrimination. The court reached a similar conclusion as to Sergeant S tahl’s retaliation claim.

II. DISCUSSION On appeal, Sergeant Stahl challenges the district c ourt’s grant of summary judgment on her gender discrimination claim on thre e grounds. She argues that the district court erred in (1) applying the subseq uent remedial measure rule, F ED
. R. E VID
. 407, to conclude that the County’s suspension of th e fitness test was not admissible to prove discriminatory intent; (2) find ing no evidence of discrimination in the manner in which the test was administered; and (3) rejecting her contentions about the preferential treatment re ceived by Officer Whitfield. As to her retaliation claim, Sergeant Stahl argues that the district court erred in concluding that she offered no evidence that her fa ilure to obtain a position in the SEU resulted from retaliation for conduct protected by Title VII. We review a summary judgment grant de novo, applyin g the same standard as the district court pursuant to F ED
. R. C IV
. P. 56, McCowan v. All Star Maint.,
Inc. , 273 F.3d 917, 921 (10th Cir. 2001), and “examin[i ng] the factual record and reasonable inferences therefrom in the light most f avorable to the party opposing the motion.” McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998) (internal quotation marks omitted). “Credibi lity determinations, the-8-

weighing of the evidence, and the drawing of legiti mate inferences from the facts are jury functions, not those of a judge” consideri ng a summary judgment motion. Foster v. AlliedSignal, Inc ., 293 F.3d 1187, 1195 (10th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986)). In this procedural posture, therefore, “our role is simply to determin e whether the evidence proffered by [Sergeant Stahl] would be sufficient, if believed by the ultimate factfinder, to sustain [her] claim.” Foster , 293 F.3d at 1195. However, as the nonmoving party, Ms. Stahl must id entify “sufficient evidence that would require submission of the case to a jury.” Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550, 1555 (10th Cir. 1993). It is not enough that Ms. Stahl’s evidence is “‘merely colorable’” or anything short of “‘significantly probative.’” Id. (quoting Anderson , 477 U.S. at 249-50).

A. Gender Discrimination Claim In order to assess Sergeant Stahl’s claim for gende r discrimination under Title VII, we apply the burden-shifting framework s et forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Under this approach, Sergea nt Stahl may establish a prima facie case of discrimin ation by producing evidence (1) that she belonged to the protected class; (2) t hat she was qualified for the position; (3) that she was not selected for the pos ition at issue; and (4) that the-9-

position either remained open or was filled by a pe rson who was not a member of the protected class. Id . at 802; Reynolds v. Sch. Dist. No. 1 , 69 F.3d 1523, 1534 (10th Cir. 1995). “At the prima facie stage, the c ourt need only conclude that the plaintiff has shown, through credible evidence, inc luding her own testimony, that she was minimally qualified for the position she so ught, even if the defendant disputes that evidence. ” See Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1316 n.11 (10th Cir. 1999). Upon production of this evidence, the burden shifts to the County “to articulate some legitimate, nondiscriminatory reaso n” for the challenged decision. McDonnell Douglas , 411 U.S. at 802. Sergeant Stahl may then demonst rate that the employer’s stated reason for not selecting the plaintiff was a pretext for discrimination. McDonnell Douglas , 411 U.S. at 804. To establish pretext Sergeant Stahl must show either that “a discriminat ory reason more likely motivated the employer or . . . that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affair s v. Burdine , 450 U.S. 248, 256 (1981). She may establish pretext by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, o r contradictions in the employer’s proffered legitimate reasons for its act ion that a reasonable factfinder could rationally find them unworthy of credence.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (internal quotation mar ks and citation omitted).-10-

Here, we agree with the district court that Sergean t Stahl has established a prima facie case by offering “credible evidence, in cluding her own testimony, that she was minimally qualified for the position [in th e SEU unit].” See Bullington , 186 F.3d at 1316. n.11. Thus, the question before us is whether Sergeant Stahl presented sufficient evidence from which a reasonab le factfinder could conclude that the reason provided by the County for not sele cting her for the SEU—her failure of the fitness test—was a pretext for gende r discrimination.

1. Suspension of the Test In arguing that the test was pretextual, Sergeant S tahl first points to the County’s suspension of the test following the filin g of this lawsuit. She maintains that the district court erred in ruling that the su spension of the test was inadmissible under F ED
. R. E VID
. 407. According to Sergeant Stahl, because the suspension of the test constituted evidence of pret ext, Rule 407 is inapplicable. This argument involves the interpretation of the Fe deral Rules of Evidence, and we thus examine it de novo. See Davoll v. Webb , 194 F.3d 1116, 1136 (10th Cir. 1999). Although the application of Rule 407 here i s perhaps not in the traditional context, we agree with the district court that prec edent allows the conclusion that the County’s suspension of the physical fitness tes t is inadmissible.

Rule 407 provides:-11- When, after an injury or harm allegedly caused by a n event, measures are taken that, if taken previously , would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to pro ve negligence, culpable conduct, a defect in a product , a defect in a product’s design, or a need for a warni ng or instruction. This rule does not require the exclusi on of evidence of subsequent measures when offered for an other purpose, such as proving ownership, control, or fea sibility of precautionary measures, if controverted, or impeachment.
F ED
. R. E VID
. 407. As the County notes, there are two primary grounds for the exclusion of evidence under Rule 407: (1) the limited probative value of subsequent remedial measures; and (2) “[the] social policy of encouragi ng people to take . . . steps in furtherance of added safety.” Hull v. Chevron, U.S .A. , 812 F.2d 584, 587 (10th Cir. 1987) (quoting F ED
. R. E VID
. 407 advisory committee’s note). Applying this rule, courts have excluded “repairs, changes in con struction, installation of new safety devices . . . , changes in rules and regulat ions, [and] changes in the practice of the business.” 23 Charles Alan Wright & Kenneth W. Graham, Jr., F EDERAL P RACTICE AND P ROCEDURE § 5284, at 105 (2d ed. 1980) (internal quotation m arks and citation omitted). Here, as the district court concluded, the County’s suspension of the fitness test is inadmissible under Rule 407. The test is t he subject of this lawsuit, and as a result, its suspension is a measure that “if take n previously, would have made the injury or harm less likely to occur.” F ED
. R. E VID
. 407; cf. Hickman v. Gem-12-

Ins. Co. , 299 F.3d 1208, 1214 (10th Cir. 2002) (concluding that an insurance company’s “discontinu[ation] [of] its practice of l imiting payment of hospital room and board charges,” which was the subject of a n ERISA claim, was “not admissible to establish liability because it is evi dence of a subsequent remedial measure under Rule 407”). Moreover, Sergeant Stahl seeks to offer the suspension of the test as evidence that the test it self was a pretext for discrimination, thus seeking to prove “culpable con duct” in a manner forbidden by Rule 407. Additionally, and even more basic, is the fact that even if the suspension of the test were admissible, Sergeant Stahl has failed to establish that this evidence supports the particular claim she asserts here. Se rgeant Stahl is now challenging only the manner in which the test was administered, not the test itself. Thus, the fact that the County suspended the test in January 2001—which it might have done for a number of reasons—does not indicate thatthe specific practice of which Sergeant Stahl complains (refusing, in Octobe r and November 2000, to grant her more time to prepare for the test) was di scriminatory.

2. Administration of the Test Sergeant Stahl also argues that the manner in which the County administered the fitness test constitutes evidence of pretext. Here, she focuses on the short period of time that she had to prepare fo r the test, arguing that the1 Perhaps Sergeant Stahl could have made such an ar gument. See Aplt’s

App. at 39 (Plaintiff’s Br. in Opposition to Defend ant’s Motion for Summary Judgment, filed Nov. 18, 2002) (explaining the basi s for Sergeant Stahl’s belief that the test was discriminatory and noting that “t he requirements were heavily weighted in favor of upper-body strength tests” and that the test did not provide for alternative scoring in the elements of bench pr ess, pull-ups, and push-ups); cf. Lanning v. S.E. Pa. Transp. Auth. , 181 F.3d 478, 485 (3d Cir. 1999) (considering a gender discrimination challenge to a police department’s requirement that officers be able to run 1.5 miles in under 12 minut es and noting that the department conceded that the requirement had a disp arate impact upon women); 29 C.F.R. § 1607 et seq (establishing guidelines fo r examination procedures in employment); § 1607.3 (stating that “[t]he use of a ny selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, se x, or ethnic group will be considered to be discriminatory and inconsistent wi th these guidelines, unless the procedure has been validated in accordance with the se guidelines”). The County did not indicate that it had consulted these guidel ines; it might be prudent to do so. -13- officers who had served in the existing S.C.O.R.E. unit (all of whom were men) were allowed to train on the job for a period of ye ars, while she received only two to three weeks formal notice of the test and thus h ad insufficient time to train. In considering this argument, we again note that Se rgeant Stahl does not now argue that the test itself was in any manner di scriminatory against women or that women as a class needed more time to train forit. 1 Accordingly, we presume that the test itself provided men and women with eq ual opportunities to pass it. Thus, the issue before us now is merely whether the County’s failing to grant Sergeant Stahl’s request for additional time to tra in for the test constitutes evidence of pretext.2 Sergeant Stahl acknowledged that several male off icers in the Vice and Narcotics Unit also complained that they did not ha ve enough time to train for the test. See Aple’s Supp. App. at 66 (“[A] couple of those guys didn’t even put in for taking the test because they didn’t think they could get in shape fast enough, and they said they weren’t going to test for a job that they already had.”). -14- Because Sergeant Stahl has not challenged the test itself, we agree with the district court’s analysis. The fact that officers in the existing S.C.O.R.E. unit were allowed to “train” on the job for an extended period while Sergeant Stahl was only allowed to do so when she made a request afew weeks before the fitness test resulted from bona fide differences in their j ob duties. Thus, as the district court explained, “the fact that [Sergeant Stahl] ha s not previously been required to participate in physical fitness training was by virtue of the unit to which she was assigned, not her gender.” Aplt’s App. at 129. Moreover, all of the officers in the Vice and Narcotics Unit in which Sergeant St ahl worked, both male and female, received the same notice of the fitness tes t and had the same opportunity to train for it. 2

3. Treatment of Officer Whitfield Sergeant Stahl also argues that a male candidate, O fficer Mike Whitfield, was afforded favorable treatment during the fitness test because he was allowed to rest on the floor between the final few push-ups while she was not. We agree with the district court that this evidence is “isol ated and inconsequential.” id. at-15-

131. Sergeant Stahl stated that she was aware of n o other occasion in which an applicant was given favorable treatment. Moreover, even with the alleged unfavorable treatment that she received, Sergeant S tahl received a passing score. on the push-up element. Finally, Sergeant Stahl pr esented no evidence of unfavorable treatment on the elements that she fail ed. We therefore agree with the district court that the County is entitled to summary judgment on Sergeant Stahl’s gender discrim ination claim.

B. Retaliation Claim Finally, Sergeant Stahl argues that the district co urt erred in granting summary judgment against her on her retaliation cla im. As the district court noted, in order to establish this claim, Sergeant S tahl must prove that: (1) “[s]he engaged in protected opposition to discrimination[; ]” (2) the County “subjected [her] to an adverse employment action subsequent to the protected activity[;]” and (3) “a causal connection exists between the protect ed activity and the adverse employment action.” Pastran v. K-Mart Corp. , 210 F.3d 1201, 1205 (10th Cir. 2000). Once Sergeant Stahl establishes a prima fac ie case, the burden of production again shifts to the County to articulate a legitimate, nondiscriminatory reason for the adverse action. Id. If the County presents evidence of a legitimate business reason, Sergeant Stahl must then be allowe d to demonstrate that the County’s proffered reasons are a mere pretext for d iscrimination. Id.3 As noted above, Sergeant Stahl does not now alleg e that the test itself

was not “female friendly.” Instead, her complaint is with the manner in which the test was administered. In order to prevail on a re taliation claim, she need not establish that the test was actually discriminatory . See Meeks v. Computer Assocs. Int’l ., 15 F.3d 1013, 1021 (11th Cir.1994) (“To recover for retaliation, the plaintiff need not prove the underlying claim o f discrimination which led to her protest, so long as she had a reasonable good f aith belief that the discrimination existed”) (internal quotation marks omitted). -16- Here, Sergeant Stahl did complain to her supervisors thatthe fitness test was not “female-friendly.” Aplt’s App. at 52. 3 However, Sergeant Stahl conceded that she was not treated differently aftershe complained about the test and that none of her fellow officers made any comme nts indicating an intent to retaliate. Moreover, it is undisputed that passing the test was a requirement for the position at issue and that Sergeant Stahl faile d the test. Accordingly, a reasonable factfinder could not find a causal connection between Sergeant Stahl’s complaint about the test a nd the County’s decision not to select her for a position in the SEU. The distr ict court thus properly granted summary judgment to the County on Sergeant Stahl’s retaliation claim.

III. CONCLUSION Accordingly, for substantially the same reasons as set forth by the district-17-

court, we AFFIRM the district court’s grant of summ ary judgment to the County.

Entered for the Court,

Robert H. Henry Circuit Judge