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Tenth Circuit

Updated through December 9, 2014

Tenth Circuit

Ward v. Jewell, No 14-4006 (10th Cir. Nov. 24, 2014). Panel: BACHARACH, Kelly, Phillips. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where decision to withhold supervisory authority from plaintiff occurred years after protected activity, in the absence of more direct evidence of causation plaintiff cannot make out prima facie case. Also, no causation for failure to promote under "cat's paw" theory, where manager that made promotion decision did so with minimum input from panel on which allegedly biased managers sat.

Green v. Donahoe, 760 F.3d 1135, 123 FEP 1425 (10th Cir. 2014). Panel: HARTZ, McKay, Matheson. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff plead five separate acts of retaliation for reporting complaints of (1) a letter notifying him to attend an investigative interview; (2) the investigative interview; (3) a threat of criminal charges against him; (4) his constructive discharge; and (5) his placement on unpaid leave (also known as emergency placement). First three were not included in scope of administrative charge, thus not within court's subject-matter jurisdiction for lack of exhaustion. While threat of criminal prosecution is noted in charge, the alleged threat occurred long before the 45-day maximum for reporting allegation of retaliation. Limitations period for constructive discharge does not continue violation up until termination date; claim accrued when harassing/discriminatory events took place that prompted separation from company. Yet employee gets remand on forced leave claim (#5), which threatened disruption of salary (even if later withdrawn).

Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 123 FEP 1023 (10th Cir. 2014). Panel: MATHESON, Gorsuch, Bacharach. Claim on Appeal: Title VII pay, discrimination and retaliation (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Second company not an "employer" under Title VII. Applying "joint employer" test, court holds that no jury could find that plaintiff had employment relationship, where second company had no authority to terminate plaintiff's employment, did not pay her, and did not supervise her outside of the confines of vendor-client relationship. No evidence that second company was aware that plaintiff primarily worked for them (so telling the vendor to stop sending her effectively forced her termination. Payment for plaintiff's services went through actual employer, who took deductions and set plaintiff's wage rate. Company provided limited supervision (dress code, safety), having no authority to discipline. Plaintiff's application to same company for vendor status also did not raise Title VII issue, because she was seeking to enter into contract (not employment) relationship.

Barrett v. Salt Lake Cty., 754 F.3d 864, 123 FEP 510 (10th Cir. 2014). Panel: GORSUCH, Lucero, O'Brien. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($80,202.81 in back pay, $50,000 in compensatory damages, $90,025 attorney fees) [plaintiff]. Outcome on Appeal: Affirmed [defendant]. Grounds: Alleged failure of employee to make out McDonnell Douglas prima facie case at trial irrelevant to post-trial analysis of Rule 50 motion. Evidence that plaintiff and two other witnesses who support colleague's sex harassment allegations were punished by executive who had hired (and was close to) employee accused of harassment. Jury charge that jury could find mixed-motive liability superseded by Nassar, but harmless error because jury indicated on verdict form that they entered verdict on but-for standard of causation. No error in court restoring plaintiff to former pay-grade, where prior position held by plaintiff was already filled. Attorneys' fees affirmed, except for fees incurred representing plaintiff during employer's optional dispute resolution program, because Title VII (unlike § 1988) applies only to fees expended in any "action or proceeding."

Hwang v. Kansas State Univ., 753 F.3d 1159, 29 A.D. Cases 1509 (10th Cir. 2014). Panel: GORSUCH, Lucero, Hartz. Claims on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below: Dismissal for failure to state a claim, Rule 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Extension of maximum six-month leave for cancer treatment not a reasonable accommodation.

Fields v. City of Tulsa, 753 F.3d 1000, 123 FEP 1445 (10th Cir. 2014). Panel: HARTZ, Tymcovich, Jackson. Claims on Appeal: § 1983 discipline and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Suspension of captain for failure to order officers to attend community event held at mosque not a violation of captain's religious rights against establishment or of free exercise, where visit did not involve participation in religious services.

Eisenhour v. Weber Cty., 744 F.3d 1220, 121 FEP 1746 (10th Cir. 2014). Panel: BACHARACH, Gorsuch, Baldock. Claims on Appeal: 1. Title VII retaliation. 2. § 1981 harassment (sex). Utah Whistleblower Act, First Amendment, and Fourteenth Amendment's Due Process claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Employee failed to include retaliation allegations in EEOC charge, and was thus barred jurisdictionally from raising them in her civil action. 2. Genuine dispute of material fact existed as to whether judge sexually harassed employee. No qualified immunity, where right against sex harassment was clearly established, and fact allegations included that defendant judge wrote an inappropriate poem about plaintiff, told her that he had a dream about her in which she was naked, and rubbed his groin against her. Plaintiff's failure to complain about harassing behavior would not alter liability of judge. County not liability because judge did not constitute "official policymaker."

Eisenhour v. Weber Cnty., 744 F.3d 1220, 121 FEP 1746 (10th Cir. 2014). Panel: BACHARACH, Gorsuch, Baldock. Claim on Appeal: 1. Title VII retaliation. 2. § 1983 harassment (sex). Utah Whistleblower Act, First Amendment, and Fourteenth Amendment's Due Process claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1.  Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Employee failed to include retaliation allegations in EEOC charge, and was thus barred jurisdictionally from raising them in her civil action. 2. Genuine dispute of material fact existed as to whether judge sexually harassed employee. No qualified immunity, where right against sex harassment was clearly established, and fact allegations included that defendant judge wrote an inappropriate poem about plaintiff, told her that he had a dream about her in which she was naked, and rubbed his groin against her. Plaintiff's failure to complain about harassing behavior would not alter liability of judge. County not liability because judge did not constitute "official policymaker."

Kramer v. Wasatch Co. Sheriff's Office, 743 F.3d 726, 121 FEP 1329 (10th Cir. 2014). Panel: SEYMOUR, Briscoe, Bacharach. Claim on Appeal: 1. Title VII harassment (sex). 2. § 1983 harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Sergeant who allegedly committed multiple sexual assaults on plaintiff could be supervisor under Vance v. Ball State Univ., 133 S. Ct. 2434 (2013), Only the Sheriff had such formal authority over employee. But county could be held liable directly for Sergeant's behavior on one of two theories: (1) Sergeant was, in fact, a supervisor, so a jury could find that the county delegated him sufficient control over plaintiff's employment to be a "supervisor" (e.g. "providing for reliance on recommendations from sergeants ... when making decisions regarding firing, promotion, demotion, and reassignment," and such performance evaluations, disciplinary actions and recommendations were among the proximate causes of the Sheriff's decision-making). (2) Sergeant had apparent authority over plaintiff, where county "created such an appearance of things that it causes a third party [plaintiff] reasonably and prudently to believe that [Sergeant] has the power to act on behalf of the first [the County]"; jury could find that "Sergeant worked at the same site with [plaintiff] every day, where he was [her] only immediate manager," County assigned Sergeant tasks of telling plaintiff what to do every day, evaluating her performance, and reporting on her performance to higher management. Plaintiff did not establish that any of Sergeant's actions were "tangible employment actions" that would impose strict liability on County (the rapes themselves, a threatened bad evaluation, failing to relieve plaintiff on duty, giving unpleasant duties). Yet County does not establish affirmative defense under Faragher/Ellerth to a jury. Plaintiff has no burden to prove negligence in Count's handing complaint. Existence of a reasonable policy to prevent and correct harassment is County's burden; "summary judgment on the affirmative defense cannot be entered on the basis of anything the plaintiff failed to do until the defendant has supported its motion with evidence 'that would entitle it to a directed verdict if not controverted at trial.'" Grossly deficient investigation of sex harassment by the county and detective alone would preclude summary judgment on the defense: "investigations targeting the victim for unrelated misconduct [allegedly having affair with co-worker] are especially contraindicative of reasonably calculated efforts to promptly correct sexual harassment." On the second part of the defense, plaintiff's failure to report harassment immediately may have been reasonable under the circumstances: Sergeant who allegedly raped plaintiff "subsequently told her to 'be quiet' and 'not say anything' or it would be 'a career ender.'" Sergeant allegedly persistently texted plaintiff and tracked her, even while the investigation was going on. Plaintiff's fear that Sergeant would make good on his threats was not per se unreasonable given that he did in fact take adverse job actions against her at work - denying her leave time, threatening her with a bad performance evaluation, and giving her long shifts ... ." She also had reason to believe that complaining would be futile: prior complaints of even milder harassment resulted in no action, and retaliation against women who complained, and men engaged in harassment were in fact promoted in the organization, that prior investigations into charges of harassment were carried out in way that was humiliating to the women complaining. 2. Plaintiff could not prove that the County had custom or policy of permitting sex harassment. "[N]o reasonable jury could find that the risk of sergeants sexually assaulting their subordinates was 'so obvious' the County's policymakers should have known about it. Nor would the particular risks posed by [Sergeant] meet the obviousness threshold for the reasons we discussed when we examined [plaintiff's] negligence claim."

Smothers v. Solvay Chemicals Inc., 740 F.3d 530, 29 AD Cases 6 (10th Cir. 2014). Panel: MATHESON, Lucero, McKay. Claim on Appeal: ADA termination. FMLA and state-law contract claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether company treated plaintiff differently from similarly situated employees who committed comparable safety violations. Employee not required to establish "absolute congruence." District court erroneously insisted that the composition of the decision-maker groups be precisely the same in every relevant disciplinary decision. While other employees' safety violations were different from Plaintiffs' lock-out violation, relevant similarity is that each allegedly employee "deliberately violated clear policies." And while other employees expressed remorse for their violations and promised not to repeat them, so did plaintiff. Moreover, investigation into plaintiff's quarrel with co-worker inadequate. Failure to conduct what appeared to be a fair investigation of' the violation that purportedly prompted adverse action may support an inference of pretext. Management only interviewed one participant in fight, not plaintiff. Even under the pre-AAADA definition of "disability," jury could find that plaintiff was substantially limited in the major life activity of sleeping. Medical condition required multiple surgeries over several years, which failed to resolve his condition or eliminate his severe pain. Medical records show plaintiff consistently complained of an inability to sleep, waking between four and six times each night because of his pain and being able to sleep only four or six hours a night.

Eisenhour v. Weber Cnt'y, 739 F.3d 496, 121 F.3d 299 (10th Cir. 2013). Panel: BACHARACH, Gorsuch, Baldock. Claim on Appeal: Title VII retaliation. First and Fourteenth Amendment, state-law whistleblowing claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because each of act of retaliation must be included in charge, and plaintiff failed to amend charge to add post-filing retaliation, charge-filing requirement not satisfied.

Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642, 120 FEP 1429 (10th Cir. 2013). Panel: TYMKOVICH, Kelly, Murphy. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendnat]. 2. Affirmed [defendant]. Grounds: 1. Employer lacked timely knowledge of harassing behavior by supervisor. Prior 2001 complaint by another employee did not give employer notice of events during 2004-09. Although other women complained of harassment (three affidavits), such events occurring over years were not pervasive enough to warrant finding of constructive knowledge. Under vicarious liability approach, employer had policy that was distributed and was clear about its requirements. After learning of alleged harassment (on a Facebook post that was available publically, it interviewed employee and investigated claim. Corrective action does not always require discipline. Delay of five years unreasonable. Court could not find that complaint would have been futile solely because another employee at hospital was spouse of harasser. 2. No genuine dispute of material fact that employee was terminated for posting inflammatory and false statements about employer on Facebook (then lying about posting them), sent disruptive texts to co-workers, and pocketing $700 overpayment. Failure of employer to adequately investigate overpayment not evidence of intentional discrimination. Posting hostile comments on Facebook likely not a protected activity. Termination for dishonesty (giving verifiably false answers during investigation) was not a vague/subjective reason. Nor was falsity of answers the only reason for termination (violating work rules about confidentiality). No evidence that similarly situated individuals were not terminated. Case remanded for award of costs to defendant employer (district court erred in denying costs to employer on ground that plaintiff beat counterclaim by individual defendant).

Lobato v. State of New Mexico, 733 F.3d 1283, 120 FEP 989 (10th Cir. 2013). Panel: TYMKOVICH, Seymour, Gorsuch. Claim on Appeal: Title VII and NM state law termination and retaliation (race, national origin). First Amendment and NM state whistleblowing claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Alleged inconsistencies in employer's explanation for termination insufficient to create genuine dispute of material fact about pretext. Employee failed to prove that probationary employees were entitled to progressive discipline, and indeed there were other similarly-situated probationary employees who were likewise terminated without progressive discipline. That manager testified that it was his "practice generally" to talk to employees where discharge in this case was otherwise consistent with policy. Plaintiff did not dispel good-faith basis for agency believing that employee misled it in resume by stating inaccurate reason for separating from prior employer. No genuine dispute that employee also misled agency about expense account; reimbursing overpayment did not mitigate the act of dishonesty. Agency also had good-faith basis for believing that he was rude to co-workers. Close proximity (for retaliation claim) did not change pretext ruling where there was no other evidence of pretext. Even though lower-level manager expressed racial bias at one point in the relationship, that the supervisor set wheels in motion for termination does not mean that he proximately caused the termination (under Staub v. Proctor Hospital) if employer made decision based on independent factors. Here, employer expressly did not credit supervisor's explanation and carried out entirely separate investigation.

Roberts v. IBM Corp., 733 F.3d 1306, 120 FEP 1098 (10th Cir. 2013). Panel: GORSUCH, Baldock, Bacharach. Claim on Appeal: ADEA termination. Okla. state tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reference to employee's "shelf life" could not rationally be construed as age bias, where it context it referred to employee's remaining cache of billable work. Likewise, reference to "Projet Blue Resource Action" could be taken to refer to "blue hair," a code for age. That employee had previously had both positive and negative reviews does not serve to negate proffered reason for termination (low productivity, poor performance). Other employees who received customer complaints not managed by same manager or did not have as extensive a background of performance issues.

EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 120 FEP 212 (10th Cir. 2013). Panel: HOLMES, Kelly [EBEL, dissenting]. Claim on Appeal: Title VII religious accommodation. Disposition Below: Summary judgment for EEOC [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employer entitled to summary judgment because there is no genuine dispute of material fact employee never informed employer prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and company's clothing policy. Company management was never once aware that employee wore a headscarf for specifically religious as opposed to cultural reasons. Noting that some activities can partake of both religious and secular purposes, it is the adherent - not the employer - that is obliged to inform the employer of a religious objection to a workplace rule. Because the Tenth Circuit applies a version of the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), requiring the employee (at the prima facie stage) to "show that . . . he or she informed his or her employer of this belief," court holds that the EEOC failed to prove this threshold fact. Even if an employee were not obliged to explicitly declare the need for an accommodation under circuit law, "notice would need to be based on an employer's particularized, actual knowledge of the key facts that trigger its duty to accommodate. And, as explicated below, there is no genuine dispute of material fact that no Abercrombie agent responsible for, or involved in, the hiring process had such actual knowledge-from any source-that [plaintiff's] practice of wearing a hijab stemmed from her religious beliefs and that she needed an accommodation for it." To place the burden on the employer to inquire about the need for accommodations would require them to intrude upon the employee's religious beliefs, and possibly to "recount[] a laundry list of all of the practices that employees cannot do in the workplace" to avoid liability. Citing various EEOC documents, the panel notes that an employer might even place itself at legal peril if it initiated the conversation, because "under Title VII an employer is affirmatively discouraged from asking" or even speculating about employee's religious beliefs.

Pettigrew v. State of Oklahoma, 722 F.3d 1209, 119 FEP 188 (10th Cir. 2013). Panel: HARTZ, McKay, O'Brien. Claim on Appeal: Title VII settlement. Disposition Below: Motion to dismiss denied [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Settlement agreement between plaintiff an state that provided that enforcement action "will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal," waived state Eleventh Amendment immunity.

Koessel v. Sublette Co. Sheriff's Dept., 717 F.3d 736, 27 A.D. Cases 1569 (10th Cir. 2013). Panel: TYMKOVICH, Ebel, O'Brien. Claim on Appeal: ADA termination. Contract and constitutional claims  (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Inability of police officer to perform high-stress work following stroke meant he could not perform essential functions of job (e.g., preserve peace at public events, testify in court, and apprehend suspects). Being physically fit for ordinary duties of job did not mean plaintiff could perform all essential functions. Passing psychological test did not mitigate fact that plaintiff was observed suffering fatigue, lightheadedness and emotional disinhibition. Not a suitable reasonable accommodation to reassign to other duties, where only job he could perform was temporary and funding was eliminated.

Conroy v. Vilsack, 707 F.3d 1163, 117 FEP 385 (10th Cir. 2013). Panel: HOLMES, Tymkovich, Ebel. Claim on Appeal:1. Title VII hiring Fall 2001 (sex). 2. Title VII hiring Spring 2001 (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant].  Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Affirming exclusion of expert witnesses. First witness (Nancy Dodd) on sex-stereotyping conceded she had never researched or written about sex stereotyping; that she became familiar with the topic only after being retained for this case; and that she could not recall articles or relevant cases supporting the application of sex-stereotyping research to disparate-treatment claims. Second expert (Paul Katz), though qualified, "demonstrate[d] a lack of knowledge" regarding the agency's decisions. Employee failed to present genuine dispute of material fact over whether agency's proffered reason was pretextual - "'leadership and program management,' as well as the knowledge and experience necessary to be able to coordinate and communicate successfully with officials." No evidence that employee was overwhelmingly more qualified than male candidate, or that other candidate lacked the minimum technical qualifications for the position. Employee failed to establish that panel recommendation of male candidate, though not unanimous, was unworthy of belief. No irregularity in procedure. Failure to reach employee's references not pretextual. Use of some subjective criteria not a violation of Title VII; only wholly subjective criteria raise inference of discrimination. 2. Assuming argument was not waived and reclassification of job was "adverse action," re-opening position that employee applied for and alteration of qualifications not calculated to discriminate. Vacancy announcement was revised to produce a larger pool of qualified applicants. District court did not abuse discretion in considering reason for decision presented in reply brief, where employee's original claim was unclear and employee never asked for surreply. 3. No genuine dispute of material fact about causation. Denial of position in 2004 was two years after protected activity did not establish temporal proximity. Employee's argument that real period was 46 days (between when employee expressed desire for position and reclassification) fails because it ignores long gap prior: the agency had multiple opportunities to retaliate in a variety of ways, prior to 2004. Assuming that job did not require college degree, employee lacked either degree or equivalent experience. Decisionmaker's "negative" view of employee formed from observing performance, rather than 2002 discrimination complaint. Evidence of alleged post-dating of relevant documents inadmissible hearsay.

Tabor v. Hilti, Inc., 703 F.3d 1206, 117 FEP 157 (10th Cir. 2013). Panel: MATHESON, Lucero, O'Brien. Claim on Appeal: 1. Title VII promotion, plaintiff #1 (sex). 2. Title VII retaliation, plaintiff #1. 3. Title VII disparate impact promotion, plaintiffs #1 and 2 (sex). 4. Title VII promotion, plaintiff #2 (sex). 5. Title VII class pattern-or-practice. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Class certification denied [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Reversed [plaintiff]. 4. Affirmed [defendant]. 5. Affirmed [defendant] Grounds: 1. Plaintiff presented a genuine issue of material fact about discrimination using both the direct and inferential methods of proof. The record included remarks indicating a gender bias: "Here, Mr. Teel [decisionmaker] explicitly stated a view that women have inferior knowledge of tools and inferior ability to sell tools. These statements spoke directly to central requirements of the job for which Ms. Tabor was interviewing, and he made them during a discussion about her fitness for the position. The content of his statements, the interview context, and the temporal proximity to the adverse employment decision directly link the discriminatory statements to his decision not to promote Ms. Tabor." Under McDonnell Douglas method of proof, there was evidence that the ratings assigned to Tabor were tainted by sex bias: "A reasonable jury could infer that the negative ratings the interviewers assigned Ms. Tabor did not represent objective individualized assessments of her qualifications but rather a reflection of the discriminatory views Mr. Teel expressed during the interview." 2. One alleged action - assigning the plaintiff a lower performance rating - occurred before her protected activity, and simply maintaining that rating after her protected activity did not constitute a separate act. Assuming that failure to train as an adverse action, the employer presented a legitimate, non-discriminatory reason, no Customer Service employees were allowed to attend field training because the department was short-handed. 3. There was sufficient evidence that the company's GDCP rating process used for promotions excluded far more women than men. In particular, managers and supervisors exercise discretion under the GDCP system in a discriminatory fashion. Supervisors could choose to assign (or sometimes not assign) the subjective GDCP ratings differently for male and female employees, or use discretion to waive GDCP minimum requirements to promote male employees with low or no P ratings, while requiring female employees to obtain a P1 rating before applying for promotion. Statistical evidence presented by the plaintiffs' expert revealed that "the rate of promotion for women (5.5 percent) was only about half the rate of promotion for men (10.8 percent)," which more than met the four-fifth/80% rule-of-thumb used by the Equal Employment Opportunity Commission to evaluate disparate-impact claims. Likewise, using another recognized test of statistical significance, the expert found the disparity statistically significant at 2.777 standard deviations. District court erred in requiring plaintiffs' expert to limit the applicant pool to "qualified" applicants, as the factors used by the GDCP were themselves suspect, lacking an objective basis: "The GDCP system allowed supervisors and managers such broad discretion that there was no such thing as a true 'qualified' subgroup for promotion Because employer did not point to "objective factors that genuinely limited the pool of employees from which Hilti selected its promotees," plaintiffs' expert used the appropriate pool in running his study. 4. Plaintiff fails to establish the second factor of prima facie test because she has not shown she was qualified for a promotion. Multiple managers testified that she had been warned about many issues, including excessive tardiness and absenteeism, poor attitude, and sleeping at her desk. 5. No abuse of discretion denying certification where under FRCP23(a)(2) and Dukes, employees failed to identify a single, common policy underlying individual promotion decisions, and under FRCP 23(b)(3) individual inquiries would predominate.

Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 116 FEP 1578 (10th Cir. 2013). Panel: LUCERO, Briscoe, McKay. Claim on Appeal: Enforcement of settlement agreement of Title VII/ADEA case. Disposition Below: Agreement enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in finding that "Settlement Terms" document signed by plaintiff evidenced parties' intent to effectuate a defined settlement. That certain formalities remained-namely, the drafting of a final, formal document-does not undermine plaintiff's' acceptance of employer's offer. OWBPA twenty-one day provision does not apply to the settlement of a court case. 29 U.S.C. § 626(f)(2).

Barlow v. C.R. England, Inc., 703 F.3d 497, 116 FEP 1596 (10th Cir. 2012). Panel: BRISCOE, Gorsuch, Matheson. Claim on Appeal: Title VII and § 1981 termination (race). Colo. state law and FLSA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No inference of discrimination may be raised by a co-worker telling a racially-offensive joke in supervisor's presence three years before termination.

Daniels v. UPS, Inc, 701 F.3d 620,116 FEP 1281 (10th Cir. 2012). Panel: TYMKOVICH, Baldock, Gorsuch. Claim on Appeal: 1. Title VII , ADEA and Kan. state law promotion (sex). 2. Title VII , ADEA and Kan. state law training (sex). 3. Title VII , ADEA and Kan. state law reassignment (sex). 4. Title VII , ADEA and Kan. state law classification (sex) and EPA. 5. Title VII , ADEA and Kan. state law retaliation (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. 5. Affirmed [defendant]. Grounds: 1. Because plaintiff knew as of 1/1/06 and 1/1/07 that she would not get promotions, claims accrued then, not when she was informed in 2008 by someone at the company that the decisions might have been discriminatory. Employee did not lay predicate, moreover, for showing that application for promotions would have been futile (she was, by her own account, unaware of potential discrimination until 2008; there was no evidence of a "consistently enforced discriminatory policy," and indeed women were promoted). Promotion decision is a discrete action under Morgan, not a continuing violation under Lilly Ledbetter Fair Pay Act (and LLFPA did not overrule Morgan). 2. Denial of training not a continuing violation. Argument was also waived in district court. Effort to recast as pattern-or-practice fails because individual employees cannot bring such claims. That effects of failure to train occurred only later did not mean that claim only accrued only when effects were felt. Record does not support claim that similarly situated male received training as late as 2008. 3. Move to night shift not inherently adverse, where there is no evidence that change effected pay, promotion opportunities or other attributes of employment. 4. Employee cannot compare herself, for McDonnell Douglas or EPA purposes, to higher paid males. She handled a lower volume of traffic than full-time supervisors, could not discipline subordinates, and could not handle the window by herself. 5. Mere warnings about alleged time-entry violations not sufficiently adverse to constitute retaliation. Alternatively, the employer introduced evidence that a month before protected activity, the company audited the time records of a number of employees suspected of keeping inaccurate time, including plaintiff. Alleged shunning of employee not shown to interfere with employee's ability to perform job. Failure to investigate allegations of discrimination not itself retaliatory where thre is no evidence plantiff suffered any harm as a result.

Sanchez v. Vilsack, 695 F.3d 1174, 26 A.D. Cases 1540 (10th Cir. 2012). Panel: LUCERO, Holloway, Matheson. Claim on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee

Sanchez v. Vilsack, 695 F.3d 1174, 26 A.D. Cases 1540 (10th Cir.  2012). Panel:  LUCERO, Holloway, Matheson. Claim on Appeal: Rehabilitation Act reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about whether she was substantially limited in the major life activity of seeing, where irreversible condition caused by head injury (homonymous hemianopsia) prevented her from seeing to her left. In addition to medical testimony, employee also presented evidence that she affected in day-to-day activities such as reading, housework, shopping and driving. One form of reasonable accommodation that employer may be required to grant, is available, is a transfer to a large metropolitan area where the employee can get medical treatment. Accommodation need not necessarily be related to performance of essential functions, citing 29 U.S.C. § 1630.2(o)(ii) and (3), so even if employee can perform essential functions, transfer might still be warranted.

Elwell v. State of Okla., No. 11-6061 (10th Cir. Sept. 11, 2012). Panel: GORSUCH, Holmes, Matheson. Claim on Appeal: ADA and Okla. State law termination. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ADA Title II, banning discrimination in "the services, programs, or activities of a public entity," does not apply to public employment. Moreover, state did not waive/forfeit sovereign immunity under state law.

Robert v. Board of County Comm'rs of Brown Co., No. 11-3092 (10th Cir. Aug. 29, 2012). Panel: LUCERO, Briscoe, Ebe. Claim on Appeal: ADA termination. FMLA, constitutional and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Temporary leave from work can be an accommodation under the ADA. But where in-person work was clearly an essential function of her position (counseling ex-offenders, conducting visits to their homes and workplaces, and monitoring drug tests), plaintiff cannot use employer's temporary tolerance of her nonperformance of these duties as evidence that those duties are nonessential. This was especially true in light of the small number of employees available to perform her duties during her absence 29 C.F.R. § 1630.2(n)(2)(ii). Only possible accommodation that would fit the circumstances - to enable the plaintiff eventually to perform the essential function of site visits - was a period to recover from a second surgery. The panel recognizes that such leave, in some instances, is authorized by the ADA, but imposes important qualifications: employee must provide the employer an estimated date when she can resume her essential duties and leave request must assure an employer that an employee can perform the essential functions of her position in the "near future." Record did not reflect whether the employer was ever informed when the employee would be able to resume fieldwork. Estimates ranged from an optimistic three to four weeks to a couple of months. "In any event, the doctor's prediction that Robert could walk with a cane in a month's time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork. As Robert herself recognized, she needed near-full mobility to ensure her safety as she visited felony offenders in their homes, workplaces, and treatment facilities, an activity that could be dangerous."

Apsley v. The Boeing Co., No. 11-3238 (10th Cir. Aug. 27, 2012). Panel: BRISCOE, Baldock, Holmes. Claim on Appeal: 1. ADEA termination (plant closure). 2. Title VII and ADA retaliation ERISA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Pattern-or-practice claim fails. Statistical disparities, though meeting standard of statistical experience, did not meet standard of "practical significance" in face of large sample; workforce had nearly the number (99%) of age 40 and over workers that plaintiff's expert analysis predicted. Although noting criticisms of practical significance in literature, district court did not err in relying on this analysis. Breaking down statistics into director groups made disparity disappear. Comments by managers and executive, regarding the economic health and prospects of the plant, age comments by lower-level managers and communications about pension contributions insufficient to make up for weak statistics. Comments about having too old a workforce were in context of discussing succession planning and pension negotiations, not stereotyping older employees. Though some of the lower-management statements might (in the setting of a different case) be relevant, in face of weak statistical showing it is insufficient to present genuine issue of material fact. No inference can be drawn from fact that company may changes in process to correct disparate impact on minorities and women, but not older employees. Aggregated tracking of ages by human resources of employees, not shared with managers, not probative. Proposed expert testimony on hiring process being too subjective properly excluded under FRE702. Lack of significant statistics also dooms disparate impact claims. 2. Claim was not presented in EEOC charge; narrative section of charges referred only to retaliation caused by forms they were required to sign as part of layoff, not a protected activity.

Somerlott v. Cherokee Nation Distributors, Inc., 686 F.3d 1144, 115 FEP 1085 (10th Cir. 2012). Panel: MURPHY, Brorby [GORSUCH, concurring]. Claim on Appeal: ADEA and Title VII termination. Disposition Below: Dismissed for lack of subject-matter jurisdiction, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Cherokee-owned corporation that provided medical staff for local army hospital under Department of Defense contract lacked sovereign immunity, because it was organized under state, not tribal law; thus, "subordinate economic entity" doctrine did not apply. Nevertheless, the employee did not preserve this issue in the district court, so plain error rule applies and any error below did not cause manifest injustice. District court within its discretion to deny post-judgment relief under Rule 59.

EEOC v. The Picture People, Inc., 684 F.3d 981, 26 AD Cases 776 (10th Cir. 2012). Panel: KELLY, Briscoe [HOLLOWAY, dissenting]. Claim on Appeal: 1. ADA termination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Deaf employee was camera room photographer hired for seasonal work. Requests for an ASL signer were met only sporadically. Employee was not a "qualified person with a disability" because she could not perform the essential function of verbal communications. "Although she can fully perform the lab function, her ability to (a) efficiently register and recruit customers, (b) instruct young children while taking their photos, and (c) sell photo packages by addressing customer critiques and concerns, is problematic, particularly given Employer's business model. Employer allows only 20 minutes for each Camera Room sitting-a relatively short period of time, especially when photographing young children." Studio had at least one other employee with a hearing disability, who could engage with customers more directly (she could speak and understand customers). Moreover, ASL interpreter was not a reasonable accommodation. "Employee's position . . . required her to communicate extensively with customers and to conduct photo sessions with dispatch. Providing [her] with an ASL interpreter at staff meetings would not ameliorate her inability to interact verbally with customers - an essential function of the performer job." 2. No genuine issue of material fact regarding retaliation, finding that the employee's reduction in hours and eventual termination was warranted by non-discriminatory reasons (a slowdown in business and deficiencies in performance).

Bertsch v. Overstock.com, 684 F.3d 1023, 115 FEP 745 (10th Cir. 2012). Panel: KELLY, Murphy, Hartz. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation 3. Title VII termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. A coworker viewed sexually explicit videos at work, putting up a poster of a 'scantily clad' woman in his cubicle, regularly demeaned and belittled plaintiff, and made remarks such as "this department would run better if the males were doing the job." While the above-facts presented a genuine issue of material fact regarding pervasive harassment because of sex, harassment could not be imputed to the employer because it remedied the situation promptly after employee complained by serving a written disciplinary notice on the alleged harasser. 2. Genuine issue of material fact whether threats and termination were motivated by her harassment complaint. Plaintiff received disciplinary notice on the same day as alleged harasser after e-mail exchange, stating that she too was supposedly "contribut[ing] to a hostile work environment," and plaintiff testified that on the day before she received her written notice, she was called in by a supervisor and told that "I was the problem and that I could either quit or be sent to the warehouse." When fired three months later, termination letter used language like "[r]esistant," "difficult," "attitude has isolated her," "productivity suffers," "sarcastic," "creates disharmony," and "insubordinate comments." 3. Employee failed to file EEOC or state charge citing disparate-impact termination.

Hernandez v. Valley View Hosp. Assoc., 684 F.3d 950, 115 FEP 592 (10th Cir. 2012). Panel: MATHESON, Kelly, Murphy. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII constructive discharge (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Case inappropriate for application of sham-affidavit rule, where employee did not contradict testimony about number of harassing incidents, but merely described two incidents at deposition without limitation, while testifying that there were many others. Supervisor over 14 months subjected employee to racial jokes about Latinos, accused a family member of being a murderer because of a common last name, accused her of theft and used at least one racial slur about African-American cook. Presented genuine issue of material fact about pervasiveness. Not all incidents need to be personally be directed at employee or specifically about race to be part of a hostile work environment claim. 2. Combination of above-alleged harassment, plus being denied transfer away from harasser, threatening to fire on the day plaintiff complained of harassment, being placed on unpaid leave for factually unfounded reason, being prevented from returning to work, and being criticized about old work issues immediately upon return from FMLA leave presents genuine issue of constructive discharge. 3. Limitations period ran out on claim when it was not included in the original complaint and proposed amendment came five months later. Amendment cannot relate back because there was no claim in original complaint to "relate" back to.

Jaramillo v. Adams County Sch. Dist. 14, 680 F.3d 1267, 115 FEP 274 (10th Cir. 2012). Panel: KELLY, Brorby, O'Brien. Claim on Appeal: § 1981 termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Termination for insubordination (not disclosing name of source of information that school district intended to do away with bilingual education) legitimate, non-discriminatory reason. Testimony of dissenting board member that decision to terminate was racially motivated was conjecture. No evidence that original decision-maker had racial animus, so no application of cat's paw.

EEOC v. Burlington Northern Santa Fe RR, 669 F.3d 1154, 25 FEP 1572 (10th Cir. 2012). Panel: KELLY, Murphy, O'Brien. Claims on Appeal: EEOC enforcement action. Disposition Below: Subpoena not enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two individual ADA charges did not support an EEOC investigation into nationwide hiring data.

Khalik v. United Air Lines, Inc., 671 F.3d 1188, 114 FEP 500 (10th Cir. 2012). Panel: MCKAY, Brsicoe, O'Brien. Claims on Appeal: Title VII discrimination (race, religion, national origin) and retaliation. FMLA (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to state a claim with the following barebones allegations: "(1) Plaintiff is an Arab-American who was born in Kuwait; (2) Plaintiff's religion is Islam; (3) Plaintiff performed her job well; (4) Plaintiff was grabbed by the arm in the office; (5) Plaintiff complained internally about discrimination; (6) Plaintiff also complained internally about being denied FMLA leave; (7) Plaintiff complained about an email that described a criminal act; and (8) Defendant terminated Plaintiff's employment position."

Morris v. City of Colorado Springs, 666 F.3d 654, 114 FEP 225 (10th Cir. 2012). Panel: HOLMES, O'Brien, Gilman. Claims on Appeal: Title VII harassment (sex). § 1983 First Amendment (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Two incidents of being hit on head, one instance of having human tissue thrown at employee (a nursing) in an operating room and occasional comments ("get your ass in gear") not severe or pervasive.

Luster v. Vilsack, 667 F.3d 1089 (10th Cir. 2011). Panel: GILMAN, Kelly, Lucero. Claims on Appeal: 1. Title VII promotion (sex). 2. Title VII retaliation. Privacy Act (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that reasons for not promoting plaintiff (that successful candidate was the strongest and plaintiff's application was not advanced in process) were pretextual. Notation in file that successful candidate "should not be considered" was not seen by participants in decision. Fact that women were disproportionally greater in number in the GS-7 category, which group the panel decided to ignore, did not eliminate valid reasons for excluding that referral list. No evidence that assignment of lesser duties was based on sex, either, other than nationwide statistical disparity of women in Forest Service. 2. No evidence of causation, where record establishes that decision to change work duties preceded manager's discovery of the employees complaint of discrimination.

Almond v. Unified School Dist., 665 F.3d 1174, 113 FEP 1473 (10th Cir. 2011). Panel: GORSUCH, Murphy, Brorby. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Demotion is not a "discrimination in compensation" claim for purposes of limitations accrual under Lilly Ledbetter Fair Pay Act.

Carter v. Pathfinder Energy, Inc., 662 F.3d 1134, 25 A.D. Cases 679 (10th Cir. 2011). Panel: GILMAN, Kelly, Lucero. Claims on Appeal: ADA termination. ERISA and state contract claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee with diabetes and hepatitis C presented genuine issue of material fact regarding termination. Employee, citing 29 C.F.R. §1630.2(I), presente factual dispute about whether he was significantly limited in the major life activities of caring for oneself (he needed help showering, eating, doing laundry, and getting dressed, among other activities) and performing manual tasks. Because ADA Amendments Act (ADAAA) is not retroactive, case is evaluated under prior law. Regarding mitigating measures, employee met his burden of raising a genuine dispute as to whether he would have been symptom-free even if he had taken medication for his diabetes. Employee proffered medical evidence that corroborates his own deposition testimony that he was too weak to perform a wide variety of common household tasks that an average person could perform without difficulty. Fact that disability may not have impaired employee at the workplace itself does not mean that employee is not disabled. Part-time work may be reasonable accommodation, 42 U.S.C. § 12111(9)(B). Genuine issue of material fact that employee could have performed all essential functions of job at the time of his firing-which is the relevant time for purposes of the ADA if offered opportunity to rest and recover after long shift. Direct evidence of discriminatory motive for termination where employee was told by decisionmaker at time of termination that "other employees [were] working 25, 26 days" per month, that company "felt they were going to start quitting" if plaintiff was not fired., and "you can't work 24-hour shifts, so there you go." These statements could lead a jury to reasonably conclude that employee was fired because he needed more rest than others between jobs. Although employer offered alternative explanation for termination (two workplace altercations), there was a genuine issue of material fact about motive: along with above direct admission of motive, reason seemed far-fetched "in the context of the oil field, where employees complete strenuous tasks and work long shifts, the occasional spat between coworkers seems inevitable." No need, in light of direct evidence, to present evidence of similarly-situated employees who were treated better

Cypert v. Indep't School Dist., No. 10-5122 (10th Cir. Oct. 19, 2011). Panel: O'BRIEN, Briscoe, Ebel. Claims on Appeal: Title VII (sex) and ADEA contract claim. Constitutional claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer demonstrated as a matter of law that failure to offer extra-duty contract to support employee was consistent with policy that extra-duty contracts were offered to teachers, and were only offered to support employees if no teacher applied. that younger, male support employee was offered contract not evidence of discrimination, where board members accidently believed that the he was certified to teach.

Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 113 FEP 938 (10th Cir. 2011). Panel: EBEL, Briscoe, Tymkovich. Claims on Appeal: § 1981 retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to present genuine issue of material fact under direct motivating factor approach about retaliatory motive (for reporting mistreatment of African-American colleague). (1) The allegedly false reason offered by employer for terminating plaintiff''s employment does not tend to prove retaliatory motive directly. (2) The close temporal proximity between plaintiff's complaints of racial discrimination and her termination undermined by fact that reason for termination (alleged unreported absences) occurred after employee's protected activity. (3) Employer's allegedly inconsistent explanations for the decision to terminate plaintiff,.as with (1) is associated only with indirect method of proof. (4) HBC's alleged deviation from normal company procedures for approving disability leave was not established, and no evidence of similarly-situated employees being treated better.

Helm v. State of Kansas, 656 F.3d 1277, 113 FEP 225 (10th Cir. 2011). Panel: EBEL, Kelly, Gorsuch. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer met Faragher/Ellerth defense as a matter of law. Alleged harasser who was judge was not "alter ego" of state, because he did not exercise ownership or wide executive control over operations of state; he operated in a limited sphere in a limited role. There was also no evidence that harassment culminated in a tangible employment action; although the plaintiff was terminated on other grounds, the alleged harasser was already recused from any career decisions having to do with the employee. Distribution of anti-harassment policy in an employee handbook acknowledged by employee was sufficient to establish reasonable care, even if the employer did not follow up with training for employees below management level. Employee's original complaint was so amorphous (and shortly afterwards, withdrawn) that employer could not be held liable for failing to act on it. When employee made more specific subsequent complaint, employer took immediate action. Employee unreasonably failed to take advantage of preventative or corrective measures by waiting years into commencement of harassment before reporting harassment.

Tomlinson v. El Paso Corp., 653 F.3d 1281, 112 FEP 1687 (10th Cir. 2011). Panel: LUCERO, Kelly, Baldock. Claims on Appeal: ADEA benefit plan. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant].  Outcome on Appeal: Affirmed [defendant]. Grounds: "Wear-away periods" that occurred during employer's transition to new pension pland did not disfavor or discriminate against protected age employees.

Simmons v. Sykes Enterprises, Inc., 647 F.3d 943, 112 FEP 596 (10th Cir. 2011). Panel: MCKAY, Murphy, Tymkovich. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employer could have honestly believed that employee had disclosed sensitive information in violation of work rules. Althought there was some evidence of subordinate bias that might support a "cat's paw" theory, the recently decided Staub case had no applicability to ADEA - it was decided under a "motivating factor" standard that does not fit the "but-for" standard of liability under Gross - and plaintiff must prove that the subordinate bias was the but-for cause for termination. Here, there was a separate investigation and interview, and employee would have been terminated anyway.

Mathews v. Denver Newspaper Agency LLP, No. 09-1233 (10th Cir. May 17, 2011). Panel: MURPHY, McKay, O'Brien. Claims on Appeal: 1. Title VII and § 1981 demotion (race, national origin). 2. Title VII retaliation. Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee's decision to submit complaint of discrimination to grievance and arbitration process under collective bargaining agreement did not waive right to bring subsequent civil action under Title VII, per Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), where parties did not agree to arbitration of statutory claims. Summary judgment affirmed on alternative argument that employee was judicially estopped by his SSA filing from denying that is qualified to work. 2. Arbitration award against employee is not "strong evidence" that the employer's decision was correct (noting split with the Second Circuit on this issue). Where employee has presented some evidence of pretext (similarly situated employees were not demoted for comparable conduct), district court erred by giving excessive weight to award against employee. Regarding causal connection, employer mistakenly believed that claim was based on protected activity (a letter complaining about discrimination) that arrived only after employee was placed on administrative leave; employer disregarded that there was another, earlier email on same topic.

McDonald-Cuba v. Santa Fe Protective Services, Inc., 644 F.3d 1096, 112 FEP 327 (10th Cir. 2011). Panel: ANDERSON. O'Brien, Tacha. Claims on Appeal: 1. Title VII and NM state law retaliation. 2. Title VII and NM state law termination (sex). Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff failed to exhaust with EEOC over claim that the filing of counterclaims against her in a Title VII action was a form of retaliation; that claim was dismissed for lack of subject-matter jurisdiction pending exhaustion. As to claims that were exhausted, employee failed to establish a protected activity (the filing of a claim for unemployment is not protected under Title VII). 2. Termination for plaintiff entering what appeared to be competitive employment with her spouse's new business was legitimate, non-discriminatory reason for termination. Employer could have honestly believed that her new business, which provided security services, would compete with employer. Moreover, two other male managers were not shown to have been given a pass on comparable conflicts of interest. Manager had discretion to administer policy, and he believed male employees had been more forthright, level of conflict appeared not as severe and that conflict was discovered (in one case) only after manager left employment voluntarily. Other alleged disparate treatment (award of raises to men) not shown to be pretextual where men had previously not received a raise, but she received a 13% raise.,

EEOC v. C.R. England, Inc., 644 F.3d 1028, 24 A.D. Cases 897 (10th Cir. 2011). Panel: HOLMES, Kelly, Ebel. Claims on Appeal: 1. ADA discrimination. 2. ADA discrimination. 3. ADA termination. 4. ADA medical disclosure, 42 U.S.C. § 12112(d). 5. ADA reasonable accommodation. 6. ADA retaliation. State tort claims (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. 6. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. 3.Affirmed [defendant]. 4.Affirmed [defendant]. 5.Affirmed [defendant]. 6. Affirmed [defendant]. Grounds: 1. Not an adverse action for employee (truck drive) to agree to inform his trainee of his HIV status and obtain written consent, which did not actually impair his ability to do his job. 2. One-time misdirection of load was not materially adverse.3. Removal as trainer for a variety of reasons (that he sat up with his student and "burned up" his hours, that he refused a load, that he deadheaded 1000 miles home) were legitimate and non-discriminatory reasons. Even if the employer was mistaken about one or more reasons, that does not create a genuine issue of material fact about pretext. In fact, employee did not contest two of these reasons but argued instead that the company did not require termination for such violations of company policy. But justification need not be based on official company policy. Termination of plaintiff as a driver justified by track record of poor performance, and although employee could point to one other driver who was not fired after abandoning a truck, employee was terminated for this in combination with several other work rule violations. 4. This section does not protect disclosure of voluntarily-furnished medical information not otherwise elicited due to an employment-related medical examination. Contrary EEOC Enforcement Guideline is non-binding and inconsistent with statutory language. 5. Employee has no claim for reasonable accommodation where he did not ask for assistance related to his disability (his request for scheduling had to do with requesting "home time"). 6. No evidence of causal connection between EEOC charge and referring employee's debt to collection agency a year later; indeed, employee had been informed by company before he filed his EEOC charge that company might lodge account with such agency. Also, company's belief that debt was still owing was a legitimate, nondiscriminatory reason for company to try to collect it.

Crowe v. ADT Security Serv., Inc., No. 10-1298 (10th Cir. Apr. 25, 2011). Panel: KELLY, Seymour, Holmes. Claims on Appeal: 1. Title VII termination (race). 2. Title VII retaliation. Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Where African-American plaintiff had been accused of repeated incidents of sex harassment and insubordination, HR memo indicating that anti-harassment policy should be enforced here or could present difficulties later if a white employee was accused of the same conduct was not direct evidence of racial animus, but a plea for even-handed enforcement of rule. Under McDonnell Douglas rubric, plaintiff fails to establish genuine issue about pretext over proffered rationale for termination (eight year record of harassment). History of tolerating his misconduct up to that point not evidence of discrimination.2. No genuine issue of material fact about pretext where employer tolerated plaintiff's behavior, then acted after three more incidents occurred following his filing a claim of race discrimination.

Mauerhan v. Wagner Corp., No. 09-4179 (10th Cir. Apr. 19, 2011). Panel: SEYMOUR, Murphy, O'Brien. Claims on Appeal: ADA failure to rehire. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Former employee failed to present genuine issue of material fact about whether employer erroneously classified him as "currently engaging in the illegal use of drugs," 42 U.S.C. § 12114(a) -- who are not protected from discrimination under the Act - instead of recovered or otherwise not "engaging" in such drug use under 42 U.S.C. § 12114(b). Panel holds that "currently engaged" means that the drug use was sufficiently recent to justify the employer's reasonable belief that the drug abuse remained an ongoing problem. In this case, employee had refrained from drug use for 30 days, but rehabilitation center said that prognosis for recovery was "guarded." Employer presented evidence that at least ninety days of non-use would be warranted before safe harbor applies.

Jensen v. Solvay Chemicals, Inc ., 625 F.3d 641, 110 FEP 278 (10th Cir. 2010). Panel: HARTZ, Holloway, Gorsuch. Claims on Appeal: ADEA benefits. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Cash balance plan observed requirements of ADEA § 4(i), 29 U.S.C. § 623(i). Recasting claim as one for disparate impact did not take claim out of statutory exemption. ADEA § 4(i) covered early retirement benefits.

Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 110 FEP 4 (10th Cir. 2010). Panel: LUCERO, Briscoe, Seymour. Claims on Appeal: ADEA demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Gross decision does not require proof that age was the "sole factor" in an adverse action, as long as age was the factor that "made a difference." Gross does not supercede application of McDonnell Douglas burden - shifting burden of proof. Plaintiff presented a genuine issue of material fact about whether her new position constituted a demotion, where a year later she suffered a $17,000 decrease in salary, vacation and retirement benefits were reduced and she lost professional prestige and fell to a lower level in the district hierarchy. District court also erroneously applied a "pretext- plus" analysis, essentially requiring the employee not only to present a genuine issue of material fact that the employer's reasons were pretextual, but additional evidence establishing that age was a motive. summary judgment must ordinarily be denied where the employee presents a genuine issue of material fact about the veracity of the employer's proffered reasons for its decision. Here, the two reasons given (desire to reorganize executive team, belief that employee's duties could be reassigned to others) were belied by creation of new position closely similar to employee's eliminated position. In determining that plaintiff presented only "weak" pretext case, district court weighed inferences in favor of defendant (e.g., who was involved in decisionmaking).

Flitton v. Primary Residential Mortg., Inc. , 614 F.3d 1173, 109 FEP 1610 (10th Cir. 2010). Panel: TACHA [MCKAY, concurring and dissenting] [GORSUCH, concurring and dissenting]. Claims on Appeal: Title VII discrimination and retaliation. Disposition Below: 1. Fee award of $367,689 [plaintiff]. 2. Appellate fees denied [defendant]. Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff's successful retaliation claim in first trial and her unsuccessful discrimination and punitive damages claims in second trial were interrelated. In second trial plaintiff pursued punitive damages for the retaliation claim on which she had obtained a jury verdict in the first trial. Furthermore, during the second jury trial, plaintiff alleged that her termination was discriminatory. This claim concerns underlying fact also addressed in plaintiff's successful retaliation claim - the reason for her termination. Thus, the unsuccessful claims in the second jury trial were not distinct in all respects from the successful claims she pursued in the first jury trial, and the district court did not abuse its discretion by refusing to exclude the fees accrued during the second jury trial from final fee award. District court did not abuse discretin denying a discount based on limited success; although plaintiff's ultimate award did not approach the amount of damages she sought, her award of over $350,000 in this Title VII suit was not inconsequential. 2. By not submitting a claim for appellate attorney's fee in the first instance to the Tenth Circuit, the plaintiff jurisdictionally forfeited her right to seek those fees in the district court, following Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993).

Skrzypczak v. Roman Catholic Diocese of Tulsa , 611 F.3d 1238, 109 FEP 1293 (10th Cir. 2010). Panel: MCKAY, Lucero, O'Brien. Claims on Appeal: ADEA, Title VII, and EPA, plus state law claims. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court had subject- matter jurisdiction to consider, on a converted Fed. R. Civ. P. 56 motion, whether claim was barred by ministerial exception. Exception applied where employee duties as director of the Department of Religious Formation included "responsibilities that furthered the core of the spiritual mission of the Diocese, " e.g., supervising the Pastoral Studies Institute to "provide a solid foundation in Catholic theology to educate, nourish, strengthen, and renew the Catholic faith "; "the development and planning of theological and other religious education programs "; and teaching multiple religious courses at the Institute. Employee 's own employment application cited her wish "to use [her] talents and experience in education to promote the Catholic faith through [her] leadership as Director of Religious Formation. " Declarations that her duties were primarily administrative in nature discredited; they cited the legal standards in conclusory fashion without facts in support. Court declares split with Elvig v. Calvin Presbyterian Church , 375 F.3d 951 (9th Cir. 2004), which permitted harassment claims to proceed.

Medlock v. United Parcel Service, Inc ., 608 F.3d 1185, 109 FEP 1010 (10th Cir. 2010). Panel: EBEL, McKay, Brorby. Claims on Appeal: ADEA denial of reinstatement. State tort claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although it is possible to state a claim based on disparate grievance settlements (disaffirming a district court opinion holding otherwise), plaintiff truck driver who was terminated and not reinstated under CBA after avoidable accident failed to make a genuine issue of material fact about pretext. Panel rejects defendant 's argument that employee failed to make out prima facie case: employee was not rigidly compelled to establish that his route was taken over by a younger driver; one or more comparators were reinstated after termination, and "similarly- situated " analysis goes to pretext. It is not evidence of pretext that decision- maker had to review company records to refresh recollection about the reasons for the termination. Reference by decisionmaker to one of plaintiff 's comparables as "this young man " was purely a common colloquialism. Management prerogative of reinstating those drivers who admitted responsibility was not evidence of pretext, despite it being an unwritten practice. Plaintiff did not present evidence of pretext by admission of decisionmaker that he might still have refused to reinstate plaintiff, even if he had admitted fault. Although this statement can be construed as an admission that there is another, undisclosed reason that might be age- based, ADEA plaintiff under Gross must prove but- for liability. Several other alleged comparables had mitigating circumstances that negated or attenuated fault. One alleged comparable for whom there was no information does not present a triable issue of fact because fact- finder could not determine why the other driver was reinstated. Facts that might have mitigated the plaintiff 's own responsibility for accident (e.g., repair record for truck) were not presented to decisionmakers and could not have influenced their decisions. Company 's alleged misrepresentations about plaintiff in his unemployment hearing were not connected to decisionmakers. Statements that employee needed to "speed up " work, asking when he intended to retire and stating (facetiously) that he would not be allowed to remain to age 80 were not uttered by decisionmakers.

Duvall v. Georgia- Pacific Consumer Products, L.P ., 607 F.3d 1255, 23 A.D. Cases 420 (10th Cir. 2010). Panel : EBEL, Murphy, Hartz. Claims on Appeal : ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : To reasonably accommodate disabled employees under the ADA, and employer may be required to consider "reassignment [of the disabled employee] to a vacant position. " 42 U.S.C. § 12111(9)(B). Court holds "that a position is 'vacant ' with respect to a disabled employee for the purposes of the ADA if it would be available for a similarly- situated non- disabled employee to apply for and obtain. " Employee did not point to vacant position under this definition. Although employee 's former position (to which he requested reinsatement) was occupied by a temporary contract worker, pending the permanent outsourcing of the department, position could not be filled by internal candidate because the ultimate plan was to outsource the same work to another contractor. "[F]rom the perspective of GP 's employees, the positions were not vacant and available to any of them at the time Duvall sought an accommodating assignment into one of those positions. "

Wilkerson v. Shinseki , 606 F.3d 1256, 109 FEP 660, 23 A.D. Cases 321 (10th Cir. 2010). Panel : HENRY, Tacha, Hartz. Claims on Appeal : 1. Rehabilitation Act reassignment. 2. ADEA reassignment. Privacy Act claim (not discussed here). Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Assuming employee with diabetes and obesity is disabled, summary judgment proper because employee was not otherwise qualified for the job. Physical fitness requirements for job in boiler room (e.g., lifting and climbing) that may required to respond to exceptional emergency circumstances were job- related, uniformly enforced and consistent with business necessity. Relocation to a different, lower- paying job was a reasonable accommodation where the employee could not safely remain in his original job. 2. Avowed reason for reassigning employee, because he could not meet physical qualifications, not shown to be pretextual

Rodriguez v. Wet Ink, LLC , 603 F.3d 810, 109 FEP 129 (10th Cir. 2010). Panel : TYMKOVICH, Briscoe, Holmes. Claims on Appeal : Title VII and Colo. state law discrimination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Receipt of state civil- rights agency notice of right- to- sue did not trigger running of 90- day limitations period for Title VII claim. In addition to language in notice itself, which did not pertain to federal law rights, EEOC- Colorado worksharing agreement does not authorize state agency to issue right- to- sue letters for EEOC.

Reinhardt v. Albuquerque Public Schools Bd. of Ed ., 595 F.3d 1126, 22 A.D. Cases 1625 (10th Cir. 2010). Panel : KELLY, Tacha, Holloway. Claims on Appeal : Rehabilitation Act retaliation. First Amendment (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Teacher's filing of Individuals with Disabilities Education Act (IDEA) complaint on behalf of students a protected activity under the Rehabilitation Act § 504. Being assigned to work only with ninth graders arguably constituted a "materially adverse action"; record shows that being assigned to serve only ninth grade students was not merely an alteration in job responsibilities; the changed assignment directly led to a reduction in compensation because she longer qualified for an extended contract. When her caseload increased, school did not grant her an extended contract, and this also affected her salary. Adverse actions taken even months after the employee complains may still be held casually related, where there is an intervening event that delays the employer from acting, such as here where a summer- vacation period delayed implementation of the school's decision. Genuine issue of material fact about whether school district in proffering a supposedly legitimate, non- discriminatory reason for its action -- "that it assigned Ms. Reinhardt only 9th grade students for the 2004- 2005 school year because she had experience transitioning middle school" -- where there were two other teachers with equally relevant experience, but neither was limited to work only with ninth graders, and the school district could not explain the difference in treatment.

Johnson v. Weld County, Colo . , 594 F.3d 1202, 108 FEP 681 (10th Cir. 2010). Panel : GORSUCH, McKay, Holmes. Claims on Appeal : 1. Title VII hiring (sex). 2. Title VII compensation (sex). 3. Title VII retaliation. 4. ADA hiring. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds : 1. Alleged admission by hiring manager that he did not hire plaintiff because of sex (and disability) inadmissible, where admission was communicated through another employee not involved in the decision process. The retelling of the statement violates a core hearsay purpose (the truth of the matter asserted), and the retelling itself is not a party- admission, FRE801(d)(2)(D). Although evidence submitted at the summary judgment stage need not be in admissible form, its substance must be admissible; statements might have been admissible if declarants who supposedly heard hiring manager's comments had offered sworn evidence. Employee did not present genuine issue of material fact about employer's proffered legitimate, non- discriminatory reason for hiring decision (other candidate's superior qualifications). Evidence that hiring manager treated male employees nicer than women not probative where evidence was limited to a single instance where manager supposedly lost temper at female employee. No evidence that having seven, as opposed to six, members on hiring committee was a violation of policy. 2. While disapproving of district court's analysis (the plaintiff had not abandoned the claim), dismissal affirmed on alternative ground that high paid male employee had greater responsibilities that warranted pay differential. 3. Snubbing of employee and request that she "not get the lawyers involved" not materially adverse. Evidence was also insufficinet to support parallel claim of constructive discharge. 4. Employee did not present genuine issue of material fact that she was disabled or regarded as disabled because of MS. She was not substantially limited in the major life activity of work (she maintained satisfactory level of performance), seeing and sleeping (insufficient evidence of either kind of limitation).Alleged comment by hiring manager that she was not hired because of her MS was inadmissible hearsay.

Kannady v. City of Kiowa , 590 F.3d 1161, 108 FEP 128 (10th Cir. 2010). Panel : HOLMES, O'Brien, McKay. Claims on Appeal : ADEA hiring. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : OPPRS- the state pension and retirement system for Oklahoma police officers - was established in 1977, and was grandfathered by a 1983 amendment to the ADEA, 29 U.S.C. § 623(j). Municipalities that choose to participate in the OPPRS are subject to age- 45 cap on hiring. Defendant affirmatively joined OPPRS in October 2004 and became subject to its provisions. Employee presented no genuine issue of material fact whether he was denied employment before the date that the defendant opted- in to the OPPRS system. Clandestine audio tapes taken by plaintiff demonstrate on their face that he was informed of decision not to hire him because of OPPRS requirements after October 2004 (tapes include references to dates and events after that date). Alternatively, there was no genuine issue of material fact that application of OPPRS was a subterfuge for discrimination, i.e., no evidence that employer used exemption as a way to evade another substantive provision of the ADEA. Even if reason for age- 45 limit was economics rather than public safety, exemption still applies.

Hennagir v. Utah Dept. of Corrections , 587 F.3d 1255 (10th Cir. 2009). Panel : LUCERO, Briscoe, Seymour. Claims on Appeal : 1. ADA forced leave. 2. ADA retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. A physician's assistant (PA) with multiple disabilities was hired in 1997 to work in a state prison. When she was hired, department did not require Peace Officer Standards and Training ('POST') certification for medical and clinical staff, but later decided to do so. POST certification was an "essential function" of the job under the ADA, and that plaintiff's inability to meet the standard meant that she was not a "qualified individual" under the ADA, even if the need to resist an attack by an inmate was improbable. The risks involved in direct inmate contact "strike at the heart of" a factor used to determine whether a job function is essential: the consequences of not requiring an employee to perform the function. See 29 C.F.R. § 1630.2(n)(3)(iv). No accommodation that required employer to waive the POST certification (an essential function) is reasonable. Failure to engage interactive process immaterial if no accommodation was possible. 2. Requiring employee to accept transfer (or be fired) when no accommodation was otherwise possible at former worksite not retaliatory; decision had already been made before she complained about discrimination, and in any event she was offered alternative employment. Other activity, even if materially adverse, occurred many months after the discrimination complaints. No proof of causation.

Thompson v. The Weyerhaeuser Co ., 582 F.3d 1125 (10th Cir. 2009). Panel : HENRY, Murphy, Tymcovich. Claims on Appeal : ADEA termination. Disposition Below : Denial of motion to strike pretrial brief [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : "Pattern or practice" method of proof applicable to the ADEA. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), requires "but- for" causation, but does not disaffirm availability of pattern- or- practice proof.

DeFreitas v. Horizon Investment Mgt. Corp ., 577 F.3d 1151, 106 FEP 1829 (10th Cir. 2009). Panel: HARTZ, Holloway, McKay. Claims on Appeal : Title VII termination (religion). FMLA claim (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Prima facie case conceded. District court erred in finding that there was insufficient evidence of pretext, finding that the various reasons proffered for the employee's termination were undermined by a lack of support in the paper record. But summary judgment is affirmed on the alternative ground that there was sufficient evidence of intent to discriminate on the basis of religion because she was not member of Church of Latter Day Saints. Plaintiff's Catholicism was known throughout her tenure, yet in 21 months manager who hired her had given her two raises- the second of which was more than a 1/3 increase in salary- and had given her praise as well as increasing responsibilities. Plaintiff points to nothing with religious overtones that occurred during her final months with employer that could account for any religious animosity by manager .

Dillon v. Mountain Coal Co ., 569 F.3d 1215, 21 AD Cases 1831 (10th Cir. 2009). Panel : TACHA, Seymour, Holmes. Claim on Appeal : ADA termination. Disposition Below : Judgment as a matter of law [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Although there was sufficient evidence in the record that the employer regarded employee (a mechanic) as substantially limited in the ability to perform his former job (it maintained a "100% healed" policy), there was insufficient evidence to support finding that itregarded his as limited in a broad range of jobs, or that "mining jobs" constitute a class of jobs. Employer did not waive argument in its Rule 50 motion. Exclusion of testimony about availability of other jobs in nearby mines affirmed because objection was waived at trial.

Pinkerton v. Colorado Dep't of Transportation , 563 F.3d 1052, 105 FEP 1765 (10th Cir. 2009). Panel : KELLY, Gorsuch [EBEL, dissenting]. Claims on Appeal : 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. No genuine issue of material fact about whether harassment by supervisor could be imputed to employer. Under tangible employment action theory, uncontested evidence showed that supervisor 's negative evaluations were supported by employee 's lack of productivity; thus, no evidence that evaluations were used to groom employee for sexual favors or that evaluations culminated in harassment. Under cat 's paw theory, no evidence that subordinate was biased against the employee or that there was causal relationship between poor evaluations and employee 's eventual termination. Applying Faragher/Ellerth affirmative defense, employer established that it exercised reasonable care to prevent and correct harassment (agency had policy, and when employee submitted complaint, agency immediately began investigation, harassment ceased at once). Although agency did not remove supervisor from authority over employee, employee had not requested this step and investigation ended in a matter of weeks. Generalized fear of retaliation as reason to delay making report not sufficient. Two- and- one- half month delay might be reasonable is allegations of harassment were relatively minor, but here the statements were alleged to be so severe as to make the employee physically ill. Also uncontested that employee knew how to make report of harassment and deliberately decided not to do so. 2. Prima facie case and legitimate, non- discriminatory reason (poor performance) were conceded, so ultimate issue was pretext. Agency 's effort to find lesser job, dispute of wording of reason for discharge and alleged temporal proximity (employee was aware that he job was in jeopardy months before making complaint of harassment) insufficient as a matter of law.

Zokari v. Gates , 561 F.3d 1076, 105 FEP 1313 (10th Cir. 2009). Panel : HARTZ, Lucero, Ebel. Claims on Appeal: 1. Title VII retaliation. 2. Title VII termination (race, national origin). Wage law claim (not discussed here). Disposition Below : 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal : 1. Affirmed [defendant. 2. Affirmed [defendant]. Grounds : 1. Employee 's refusal to take English classes to improve his accent was not inherently "protected. " Record was uncontested that supervisors were unaware of employee 's motive for refusing to attend classes. Employee did not otherwise communication opposition to discrimination. Hence employee did nto establish causation. 2. Exclusion of testimony by senior auditor of agency about plaintiff 's ratings relative to non- minority employees affirmed on FRE602 grounds. He knew scores for employees tow to three years after plaintiffs ' termination, but dinot know about job performance of employees or whether evaluations were discriminatory. District court did not err in denying additional instruction that jury could consider comments about plaintiff 's accent as evidence of bias. Connection of employees accent and nationality was clear at trial and employee 's lawyer raised issue in the closing argument.

Perkins v. Silver Mtn. Sports Club , 557 F.3d 1141, 105 FEP 977 (10th Cir. 2009). Panel : TYMCOVICH, Kelly, McConnell. Claims on Appeal : Title VII termination (pregnancy). FMLA claim (not discussed here). Disposition Below : Judgment following a jury trial ($20,000 lost wages; $30,000 punitives) [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : District court did not err in refusing to allow employer to present after- acquired evidence of alleged theft under McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995), based on evidence learned after termination that employee allegedly billed $73.22 of personal cell phone calls to the company. The employer presented a pre- trial motion in limine on this issue. The court reserved the question of whether after- acquired evidence could come until trial. But the employer ultimately failed to make the proffer at trial as required by Fed. R. Evid. 103. Proffer should have included, "among other things ... (1) a basis for authenticating the $73 August 2005 payment record; (2) the payment was unauthorized; (3) Perkins was in fact responsible or credibly thought to be responsible for the payment; (4) the unauthorized payment would have been sufficient alone to justify her termination through testimony of a company." Because of waiver, plain error controls the review of the decision and no plain error occurred. District court also did not err in excluding defense rebuttal evidence that the plaintiff had filed and withdrawn a defamation claim against employer. Again, the employer failed to make a proper proffer and under plain error (or even abuse of discretion) review, the exclusion of the evidence was justified: "Silver Mountain never demonstrated to the district court how or what evidence it intended to present that would have demonstrated a factual inconsistency in Perkins's testimony or court filings."

Strickland v. UPS, Inc ., 555 F.3d 1224, 105 FEP 971 (10th Cir. 2009). Panel : MURPHY, McKay [GORSUCH, dissenting in part]. Claims on Appeal : Title VII termination (sex). FLSA claim (not discussed here). Disposition Below : Judgment as a matter of law [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Employee presented sufficient evidence to go to the jury about whether she was "constructively discharged." Court finds it an open issue whether an employee must manifest a subjective intention to quit to state a claim for constructive discharge, but finds that even under this standard there was ample evidence of an intent to cease working with manager who she thought discriminated against her. The panel also holds that the managers' behavior arguably reached the intolerable range: "[she did believe her job was in jeopardy, she was repeatedly told by her supervisors her performance was unacceptable, and she was not provided support to perform her job when she requested it. In addition, her supervisors forced her to make written 'commitments' to win certain contracts, which in her view was a deliberate attempt to set her up to fail. She testified her meetings with supervisors to discuss her performance interfered with her ability to do her job. [Direct supervisor] exploded when she tried to take advantage of the company's open door policy and effectively told her she could not utilize the policy. She was held to higher standards than her co- workers. Finally, she attempted to improve her situation by filing an internal complaint and requesting a transfer, but neither action was helpful." The panel also holds that UPS offering another position four months after plaintiff left did not compel a finding that she had reasonable alternatives to quitting. On the Title VII claim, employer argues that the other female employee in the department testified that she herself suffered no discrimination, to her knowledge. District court erred in concluding that this evidence -- combined with testimony from male employees that the direct supervisor was generally a harsh manager - entirely occluded any inference that the employee suffered because of her sex. "Even though the male co- workers complained of [manager's] style, they and others also testified [employee] was treated differently from every male employee [manager] supervised." Genuine issue of material fact about level of sales number ans whether lower numbers were due to decisions of manager.

Semsroth v. City of Wichita , No. 08- 3143 (10th Cir. Feb. 17, 2009). Panel : MCKAY, Murphy, Anderson. Claims on Appeal : Titel VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Panel holds that unconsummated threat to deny a transfer to a desirable assignment, later rescinded, was not materially adverse. Apart from doubting whether the denial of a transfer was even actionable (without evidence that the alternative assignment was objectively superior), the panel holds that the announcement of the denial of the transfer was not actionable as a matter of law. "A more accurate formulation of the Burlington Northern inquiry here is: would a reasonable employee be dissuaded from making a complaint if she knew that her request for a transfer would be temporarily denied but ultimately granted before the transfer was to take effect? We agree with the district court that the answer to this inquiry is no."

Sanders v. Southwestern Bell Telephone, L.P . , 544 F.3d 1101, 104 FEP 833 (10th Cir. 2008). Panel : TACHA, Tymkovich [McKAY, dissenting in part]. Claims on Appeal : ADEA and Title VII (sex)termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed for one plaintiff. Grounds : One employee presented direct evidence that her termination in RIF was the result of age. Employee testified that manager who had been part of the team responsible for ranking her fifth from the bottom among managers in her affected work group, told her that her age - not her job performance - was the cause of her surplus. When manager furnished OWBPA disclosures, he "pointed to the document, explained that she was being surplussed because of her age, and stated that this was necessary to prevent age discrimination." Other plaintiffs failed to present direct evidence or to rebut legitimate, non- discriminatory reason for their termination (i.e., their ranking during the RIF), despite evidence that allegedly (1) their qualifications did not warrant their placement in Band C; (2) company inconsistently applied its ranking criteria; (3) an Area Manager was permitted to take a voluntary demotion that resulted in one plaintiff's job loss; and (4) older employees were disproportionately affected by the RIF. Ranking methods were valid and consistent, voluntary demotion occurred after ranking and plaintiffs' statistical evidence does not take into consideration nondiscriminatory explanations for the disparity.

Kellogg v. Energy Safety Services Inc ., 544 F.3d 1121, 21 A.D. Cases 193 (10th Cir. 2008). Panel : HARTZ, O'Brien [HOLLOWAY, dissenting in part]. Claims on Appeal : ADA termination. FLSA claim (not discussed here). Disposition Below : Judgment after a jury trial ($125,000 in compensatory damages, reduced by the district court to the statutory maximum of $100,000; $46,935 back pay; $18,087 in front pay; $2,347 in prejudgment interest, $147,888 in attorney fees) [plaintiff]. Outcome on Appeal : Reversed [defendant]. Grounds : Jury instruction defining driving as a "major life activity" was erroneous as a matter of law (citing Colwell v. Suffolk County Police Dept ., 158 F.3d 635, 643 (2nd Cir.1998); Chenoweth v. Hillsborough County , 250 F.3d 1328, 1329- 30 (11th Cir.2001)). Case remanded because jury had sufficient evidence to support liability for "regarded as" liability (which employer did not challenge on appeal). Evidence was also in dispute about whether employee could perform essential functions of job, i.e., (1) ability to drive, and (2) ability to meet the standards in DOT "pipeline regulations" to perform "safety- sensitive" work in the shop; these standards were not consistently described or enforced by company.

Kelley v. City of Albuquerque , 542 F.3d 802, 104 FEP 459 (10th Cir. 2008). Panel : HOLMES, Kelly, McConnell. Claims on Appeal : Title VII and N.M. state law retaliation. Equal protection claim (not discussed here). Disposition Below : Judgment after a jury trial ($372,975.90 in damages, including $172,974.90 in back pay, $200,000 for loss of future benefits, and $1 in nonpecuniary compensatory damages) [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : District court did not err in granting to plaintiff judgment as a matter of law on defense under 42 U.S.C. § 2000e(f) that employee - an assistant city attorney - was not an "immediate adviser with respect to the exercise of the constitutional or legal powers of the office." Looking principally to responsibility and powers inherent in position, trial record established that individuals at plaintiff's level were hired by chief administrative officer rather than mayor. Plaintiff no longer held "deputy city attorney" position when she was ordered to submit resignation (and at any rate, only one of the deputies - not plaintiff - had direct reporting relationship to mayor). Employee, who had been engaged as defense lawyer for city at the time that the mayor was a private lawyer representing a plaintiff in a mediation, protected by "participation" clause under plain language of 42 U.S.C. § 2000e- 3(a). Court declines to apply "absurd results" doctrine to construe statute; conferring protection on defense lawyer reinforces objective of statute to ensure overall integrity of administrative process. City waived objection to sufficiency of evidence on causation by failing to include issue in post- verdict motions. Jury instructions were accurate or, alternatively, city waived timely objections.

Vaughn v. Epworth Villa , 537 F.3d 1147, 104 FEP 135 (10th Cir. 2008). Panel : EBEL, Kelly, McConnell. Claims on Appeal : Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Participation clause provides that individuals may not be retaliated against when they 'participate[] in any manner in an investigation, proceeding, or hearing under' Title VII. 42 U.S.C. § 2000e- 3(a) This section does not place obligation on employee (as district court believed) to resort only to honest and loyal conduct. Thus, providing potentially- relevant patient information to EEOC as evidence of disparate treatment is a "protected activity." Summary judgment affirmed on alternative ground that employer proffered legitimate, non- discriminatory reason for termination (disclosure of private information violated work rules and HIPAA). No evidence that other employees ever committed the same violation.

Carney v. City and County of Denver , 534 F.3d 1269, 103 FEP 1451 (10th Cir. 2008). Panel : EBEL, McConnell, Gorsuch. Claim on Appeal : 1. Section 1981 hostile work environment. 2. Section 1981 retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff did not establish custom of discrimination for purposes of municipal liability. Plaintiff proffered statistical evidence demonstrating that black women made up less than one- percent of the Denver police department. The panel held that (1) the sample was limited to black women instead of African- Americans generally; (2) no qualified applicant pool was identified; (3) proof of hiring and promotion disparities were not probative of her hostile work environment and retaliation claims; and (4) plaintiff did not test the numbers for statistical significance. 2. Evidence that one other employee allegedly suffered retaliation for filing a national- origin complaint for unrelated activity insufficient to establish custom of retaliation.

Orr v. City of Albuquerque , 531 F.3d 1210, 103 FEP 1249 (10th Cir. 2008). Panel : GORSUCH, Lucero [HARTZ, concurring]. Claim on Appeal : Pregnancy Discrimination Act and N.M. state law leave. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Plaintiffs presented genuine issue of material fact that policy of requiring women who take maternity leave to exhaust sick leave before they take compensatory leave was discriminatory. Policy adversely affected women's eligibility for early retirement and overtime opportunities, and was less favorable than treatment of other persons taking leave. Record established that while city claimed that it was following a written department policy that applied equally to all employees, written policy did not exist at time plaintiffs took leave. Regulations at the time permitted the use of vacation time for leave. Even if there was an unwritten policy, record established that it was not consistently followed but was applied uniformly to pregnant women (plaintiffs and others who supplied affidavits). Although three men seeking leave for medical purposes were subjected to the same policy, that was only after city was on notice of plaintiffs' complaints. Evidence that eight other pregnant officers eventually got city to reverse decision and restore sick leave was admissible notwithstanding FRE408.

Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 20 A.D. Cases 1188 (10th Cir. 2008). Panel : BRISCOE, McKay, Lucero. Claim on Appeal : ADA "regarded as" demotion. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Employee electrician presented genuine issue of material fact whether he was demoted because after a stroke, he was unable to hold his balance in high places. Employee regarded him as substantially limited in the major life activity of work, because even though there were vacancies in other parts of the plant, he was found eligible only for janitorial work. On record it mis- perceived nature of disability and the extent that it effected his ability to work, especially in light of accommodations that employee had already used for two years (harnesses, avoiding high ladders and unprotected spaces, working days instead of nights). Comments by managers indicated their (erroneous) belief that employee could not work around current or heavy machinery. That he was offered another position did not mitigate suggestion that he was not qualified to work in broad class of jobs. On summary judgment record, demotion decision was not justified by medical restrictions. Opinion of occupational therapist retained by employer might be distrusted where it was based on tour of plant guided by the same manager who experts doubt a bout employee's fitness, she didn't see electrician actually perform the job, and other employees testified that safety issues had been exaggerated. Summary judgment also denied on direct threat defense on the same record as above (leaving open question about who had burden of proof).

Dossa v. Wynne , 529 F.3d 911, 103 FEP 374 (10th Cir. 2008). Panel : MCKAY, Murphy, Gorsuch. Claims on Appeal: Title VII termination (sex, national origin) and retaliation. Disposition Below: Dismissal for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: U.S. district court adjudicating a federal employee's "mixed" case (i.e., a complaint of employment discrimination filed with a federal agency, related to or stemming from an action appealable to the Merit Systems Protection Board) may also have jurisdiction over a Title VII retaliation claim. Although 5 U.S.C. § 7703(b)(2) authorized a federal employee to file suit under 42 U.S.C. § 2000e- 16(c), it only referred to discrimination in § 2000e- 16(a). The section does not expressly mention retaliation. But court holds that retaliation may be implied: "Pursuant to § 2000e- 5, an employee shall not be reinstated if she was discharged "for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e- 3(a) of this title." 42 U.S.C. § 2000e- 5(g)(2)(A) (emphasis added). In turn, § 2000e- 3(a) prohibits discrimination against an employee for opposing a discriminatory employment practice or because she made a charge of discrimination. 42 U.S.C. § 2000e- 3(a). Therefore, Title VII includes retaliation claims and § 7703(b)(2) authorizes judicial review of them." Employee also exhausted discrimination claims. Despite that ALJ found evidence sufficient, employee did present evidence of working conditions and reasons for claim that she suffered discrimination.

Fischer v. Forestwood Co., Inc ., 525 F.3d 972, 103 FEP 353 (10th Cir. 2008). Panel : TYMKOVICH, Hartz, McConnell. Claims on Appeal: 1. Title VII termination (religion) and retaliation. 2. Title VII failure to hire (religion). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff did not prove prima facie case, because employee resigned in protest of termination of companion who left FLDS church, but was not pressured to do so. No constructive discharge where employee was heckled, but had alternatives to quitting that he did not use (such as reporting complaints to management). Evidence that employer almost never hired employees outside of the faith was not basis for constructive discharge. 2. District court erred by excluding evidence of conversations with president who was also father of the plaintiff. The taped conversations constitute admissions of a party- opponent because employee was president at the time of the conversations. As president, he was authorized "'to make a statement concerning" hiring and firing under FRE 801(d)(2)(C). Likewise, he was acting as an agent for employer and was making statements within the scope of his authority under FRE 801(d)(2)(D). The district court also erred in holding that (1) the statements were not uttered as the agent of employer, but between father and son ("Title VII contains no exception for family- owned businesses or intrafamily disputes"); and (2) "Forestwood does not have an opportunity to cross- examine Erwin because he is deceased" (not necessary for a party- admission, Fed. R. Evid. 801(d)(2)(D)).

Trujillo v. PacifiCorp , 524 F.3d 1149, 20 A.D. Cases 897 (10th Cir. 2008). Panel : SEYMOUR, Tacha, Holmes. Claims on Appeal: ADA association claim, 42 U.S.C. § 12112(b)(4). ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employees with sick child (named Charlie) fired for some 34 unaccounted- for hours between them, in spite of evidence that other employees who were investigated for the same violations got off with warnings. According to the summary judgment record, "PacifiCorp designated claims of over $50,000 as high- dollar ones. Charlie's medical expenses during his relapse exceeded that figure by at least $12,000. On June 10, 2003, just eleven days after Charlie's relapse, the company began an investigation into suspected time theft by plaintiffs. Plaintiffs presented enough circumstantial evidence that the company was motivated by the high costs of their son's medical treatment to present a genuine issue of material fact about motive: "Evidencing that management knew about the cost of Charlie's healthcare, the Trujillos offer an email regarding Mrs. Trujillo's personal leave related to Charlie's illness in which the company stated it monitored both health and welfare benefits in conjunction with an employee's personal leave. From the evidence the Trujillos presented - concerns about rising healthcare costs, numerous efforts to cut those costs, corporate monitoring of general healthcare costs and of Charlie's claims specifically - a jury could reasonably infer that PacifiCorp terminated the Trujillos because they were expensive employees."

Milligan- Hitt v. Board of Trustees of Sheridan County School Dist. No. 2 , 523 F.3d 1219, 103 FEP 185 (10th Cir. 2008). Panel : MCCONNELL, Tacha, Hartz. Claims on Appeal: § 1983 Equal Protection (sexual orientation). Disposition Below: Judgment after a jury trial, $160,515 award [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: Two women -- adminstrators in different schools in the same district in Sheridan, Wyoming -- who were the subject of a complaint by a parent that a pupil spotted them "holding hands and walking into a Victoria's Secret store" (a story that both women denied). Although the superintendent -- defendant Craig Dougherty -- apparently waved off the complaint, the jury heard conflicting stories about whether the superintendent bore any anti- gay animus against the two women. When the district was reorganized, neither woman had her contract renewed. District court erred in allowing jury to consider whether Dougherty was a "decisionmaker" -- for purposes of imputing liability to the district -- where under controlling law it is the court, not the jury, decides who exercises final policymaking authority for a government agency (Jett v. Dallas Indep. Sch. Dist ., 491 U.S. 701 (1989)). Reexamining the issue on appeal, the panel holds as a matter of law that Wyoming law confers personnel decisions to the Board of Trustees, not to the superintendent. The superintendent's power to recommend hiring was not tantamount to policymaking for purposes of municipal liability. The individual case against the superintendent, meanwhile, was properly dismissed on qualified immunity. The district court granted summary judgment on the individual case, and the panel affirms that in 2003 (when the nonrenewal occurred), the plaintiffs did not enjoy a "clearly established" Equal Protection right against discrimination on account of sexual orientation. The dominant cases at that time were Romer v. Evans , 517 U.S. 620 (1996) and Bowers v. Hardwick , 478 U.S. 186 (1986), which either ran contrary to plaintiffs' Equal Protection theory or only ambiguously supported it. Lawrence v. Texas , 539 U.S. 558 (2003), overruling Bowers , came too late to help the plaintiffs.

Hinds v. Sprint/United Management Co. , 523 F.3d 1187, 103 FEP 145 (10th Cir. 2008). Panel: GORSUCH, McConnell, Baldock. Claims on Appeal: 1. ADEA termination. 2. ADEA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Jury could not infer pretext for possible inconsistencies in the RIF process, and evidence that the company tracked the ages of individuals who were being selected for termination (by the use of codes in password- protected cells, not visible to decisionmakers). Court reaffirms circuit case law (in opposition to recent D.C. Circuit decision, Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 102 FEP 1815 (D.C. Cir. 2008)) that court still reviews all three stages of the McDonnell Douglas framework, even if employer asserts legitimate, non- discriminatory reason for action. 2. To the extent that any of plaintiff's numerous complaints constituted protected activity, some eleven months passed between the last unambiguous complaint of discrimination and the termination, vitiating causation.

Tademy v. Union Pacific Corp., 520 F.3d 1149, 102 FEP 1798 (10th Cir. 2008). Panel: HENRY, Baldock, Marten. Claims on Appeal: Title VII/ § 1981 harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact whether he was subjected to a racially hostile work environment by co- workers(eight years of racial slurs, culminating in display of noose after employee filed a charge of discrimination). Although random drug tests were not part of pattern of harassment, display of noose was part of harassment; fact- finder not required to credit co- worker's assertion that he was taking rope home to use as a tow- rope. Although one 1995 incident did not link to the harassment (did not involve epithets), other comments, racial graffiti, vandalism of locker, racist cartoons and use of word "boy" were part of same pattern. Record could show that plaintiff suffered racial incidents every day, all in the same unit, directed at him. Incidents do not have to be perpetrated by same individuals. Both employee and black co- worker had reported incidents to the employer, and employer received reports of racial incidents in other facilities. That some incidents were anonymous did not excuse employer's failure to take steps to prevent it or (in the event of the graffiti) to clean it up and search for perpetrators. Employer's response to noose incident (locating and firing offender) shows that it would have been feasible for employer to take further measures against other anonymous events. Even though employee did not bring action on prior right- to- sue on earlier harassment charge, that does not render such events non- actionable in a subsequent action, where employee resolved prior charge informally with employer. On section 1981 claim, Morgan continuing violation rule applies and allows employee to reach back beyond four- year period. Same standard of liability applies under § 1981 as with Title VII.

Fye v. Oklahoma Corp. Commission ., 516 F.3d 1217, 102 FEP 1386 (10th Cir. 2008). Panel : TACHA, McKay, Tymkovich. Claims on Appeal : Title VII/ § 1981 retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : District court did not abuse discretion by disregarding one summary judgment exhibit filed by employee but not specifically referenced in the summary judgment briefing, and another exhibit only added belatedly on a motion to reconsider. Employee failed to show retaliation through direct method by termination letter that referred to her lack of "cooperation and team work." Although employee made out prima facie case under direct method, she did not rebut legitimate, non- discriminatory reason for her termination (employee made demand that she would work with manager only if another employee was in the room, which would interfere with reorganization process).

Adamson v. Multi Community Diversified Services, Inc ., 514 F.3d 1136, 102 FEP 1061 (10th Cir. 2008). Panel : KANE, Tacha, Ebel. Claims on Appeal : 1. ADEA termination. 2. Title VII termination (sex and reverse sex). Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. One plaintiff (the husband and father of the other two plaintiffs) failed to make out prima facie case. He was replaced by older employee, and failed to present sufficient evidence to demonstrate directly that age was a motivating factor. Evidence that plaintiff told company board months before termination that he was planning on retiring soon not probative of board's intent. 2. Three plaintiffs were terminated at the same time: husband, wife and daughter. Application of anti- nepotism rule not discrimination because of sex. For woman plaintiffs, "familial status"' is not a classification based on sex any more than is being a 'sibling' or 'relative' generally. It is, by definition, gender neutral. Reverse sex discrimination against father/husband not demonstrated. Statement by board member that plaintiff may "exert undue influence" over the rest of his family was not gender- related. As to the two female plaintiffs, failure of employer to apply anti- nepotism policy to a father- son pair of mother- daughter pair did not present inference of gender- based discrimination, thus no prima facie case.

Somoza v. University of Denver , 513 F.3d 1206, 102 FEP 979 (10th Cir. 2008). Panel : HOLLOWAY, Lucero, Tymcovich. Claims On Appeal : Title VII/ § 1981 retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Combination of activities alleged (being laughed and sneered at during department meting, reversal of hiring recommendation of search committee on which one of the plaintiffs sat, denial of opportunity to give input into decision affecting hiring of lecturer into their department, incivility by untenured junior colleague, rude e- mails, non- compensation for volunteer assumption of section coordinator responsibilities) did not constitute materially adverse action. Several affected Spanish department as a whole, and so were not targeted and plaintiffs.

Lindstrom v. Norton, 510 F.3d 1191, 102 FEP 551, 20 A.D. Cases 20 (10th Cir. 2007). Panel : KELLY, Baldock, Briscoe. Claims On Appeal : Rehabilitation Act and Title VII settlement agreement enforcement. Disposition Below : Dismissed for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome On Appeal : Affirmed [defendant]. Grounds : Federal district court lacks subject matter jurisdiction to enforce agreement between federal agency and employee. Employee had alternative under 29 C.F.R. § 1614.504(a) of informing agency's EEO Director of breach within 30 days of discovery and either seeking enforcement or reinstating original discrimination complaint.

Etsitty v. Utah Transit Auth ., 502 F.3d 1215, 101 FEP 1357 (10th Cir. 2007) . Panel: MURPHY, Henry, Figa. Claims On Appeal : Title VII/Equal Protection termination (sex). Disposition Below : Summary judgment [defendant]. Outcome On Appeal : Affirmed [defendant]. Grounds : Employee, a bus driver who was a transsexual with Adult Gender Identity Disorder, did not suffer sex discrimination within the meaning of Title VII's definition of "sex," following other circuits that define sex as conventionally male or female (following other circuits). Transsexualism as a gender definition does not fall into a protected class. Alternative attempt to recast case as a sex- stereotyping claim under Price Waterhouse fails. Plaintiff complained that employer discriminated against her as a biological male who did not conform to masculine stereotype. Without deciding whether Price Waterhouse supported such a theory, employer advanced legitimate, non- discriminatory reason for termination (transit agency was unable to accommodate employee's bathroom needs), and employee failed to demonstrate that reason was pretextual. Plaintiff's argument that reason was facially discriminatory (because it enforced a stereotype) rejected, because concept of stereotype could be stretched to use of women's room by males. On pretext, isolated deposition testimony concerning employee's appearance fell into larger context of restroom usage. Agency's belief that employee would use women's room well founded, and employer reasonably feared possibility of liability or public complaints were that to occur. Equal protection claim not separate from Title VII theory.

Proctor v. UPS., Inc., 502 F.3d 1200, 19 A.D. Cases 1259 (10th Cir. 2007). Panel : TACHA, Tymkovich, Holmes. Claims On Appeal : ADA and Kan. state law retaliation. State law tort (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome On Appeal : Affirmed [defendant]. Grounds : Claim of retaliatory termination was timely, where record establishes that employer did not give employee unequivocal notice of his termination when it refused to allow him to return to work as a package car driver or to furnish an accommodation. The accompanying letter to the employee did not state that he was terminated, but that he should call the district workforce planning manager with questions about his work status.. Nonetheless, court holds that employee failed to present a genuine issue of material fact about causation. Because discharge was communicated some four months after his protected activity, there is no inference purely by temporal proximity. Panel could consider pretext evidence at prima facie stage, but here employee did not establish that the employer's reason for termination was a pretext for retaliation (that employee was unable to perform essential functions of the job, an issue fully grieved under the CBA). That employer had 2003 doctor's evaluation clearing employee for return to work and had even allowed employee to return to work in 2004 provisionally with lightened load was not probative of whether employer reasonably believed it was required to reinstate him to full- time unrestricted duties. Moreover, employee's implied claim regarding the earlier incidents itself would be time- barred. Employee does not challenge neutral policy of terminating employee based on final and binding doctor's decision under the CBA.

Jones v. U.P.S., Inc ., 502 F.3d 1176, 19 A.D. Cases 1320 (10th Cir. 2007). Panel : TACHA, Tymkovich, Holmes. Claims on Appeal : 1. ADA failure to reinstate. 2. ADA retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed in part for plaintiff, but summary judgment affirmed on alternative grounds [defendant]. 2. Affirmed [defendant]. Grounds : 1. ADA lawsuit challenging a "100%- healed" policy, which prevented plaintiff from returning to work with lifting restrictions. Court affirms denial of summary judgment on exhaustion grounds. Claim not jurisdictionally barred on ground that the employee's contact with the EEOC ended without the filing of a "formal charge." Intake Questionnaire (used by the EEOC district offices to determine their jurisdiction). Intake Questionnaire met the legal requirements for a charge. Record indicated that the employee believed that the Intake Questionnaire was a charge. District court erred on one aspect of its order -- employee's failure to check off disability and retaliation as prohibited bases of discrimination on the form on page- 2 did not forfeit those claims. The balance of the charge clearly indicated an a purpose to complain about ADA discrimination and retaliation violations, and in particular the application of the "100%- healed" policy to prevent his return to work. Summary judgment affirmed on the alternative basis that the employee could not prove that UPS regarded him as substantially limited in the major life activity of "working," thus employee not disabled for purposes of statute. 2. Record revealed no basis for holding that UPS was aware that Jones sought an accommodation so that he could return to work. While requesting a reasonable accommodation may be treated as a protected activity under the statute, plaintiff "offer[ed] only his remarks in response to UPS's labor manager ('I can't just go home. I need to work a job.'). In the absence of other evidence, these remarks could not have put UPS on notice that Mr. Jones was requesting reassignment based, at least in part, on his belief that UPS regarded him as disabled."

Jarvis v. Potter , 500 F.3d 1113, 19 A.D. Cases 1057 (10th Cir. 2007). Panel : HARTZ, McKay, Gorsuch. Claims on Appeal : 1 Rehabilitation Act termination. 2. Rehabilitation Act retaliation. Disposition Below : 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds : 1. Employee had ost- traumatic stress disorder (PTSD). He suffered violent reactions whenever anyone startled him or walked unexpectedly behind him. PTSD compelled him to assault unwary passers- by. This pattern escalated until one day he locked the arm of a co- worker (Al Nielson) and hit him, at which point he was removed from duty and eventually terminated. The plaintiff testified that at the time he assaulted Nielson, he was "ready to kill the guy" and he was "afraid [that he] might do it to someone else." Summary judgment affirmed on the termination claim; employer established defense that Jarvis posed a "direct threat" to the workplace (29 U.S.C. § 504(d); 42 U.S.C. § 12113(a); 29 C.F.R. §1630.29(r)). Jarvis requested, as an accommodation, that his co- workers be warned not to approach him from behind. But the Court held that "even if it is appropriate to place on coworkers the burden of protecting themselves from an employee, it is hard to imagine an active workplace in which there would be no chance of accidentally startling a worker. . . . The Postal Service was not required to ignore the risk of inadvertent startling." Employer's determination that he was a "direct threat" was objectively reasonable (based on interviews, hearing and individual assessment). 2. Retaliation claims based on one investigator's failing to send along evidence supporting a request for an accommodation and imposition of administrative leave not causally related to retaliatory motive. Other retaliation claims (placed on leave without pay, denial of ability to retire, denying request for accumulation vacation and sick leave) made out prima facie case and employer failed to advance legitimate, nondiscriminatory reason to explain.

Montes v. Vail Clinic, Inc. , 497 F.3d 1160, 101 FEP 492 (10th Cir. 2007). Panel : GORSUCH, Lucero, Murphy. Claims on Appeal : 1. Title VII harassment and discrimination, English- only rule (national origin). 2. Title VII harassment and job assignment (national origin). 3. Title VII retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Five employees argued that they met the charge- filing requirements under Title VII when "they contacted the Colorado Civil Rights Division ('CCRD') -- first by letter from their counsel on August 17, 1999, and then, shortly thereafter, by completing 'intake forms' with the division." But they did not file the intake forms in the record. Though they later filed formal charges with the EEOC, by then it was more than 300 days since they were terminated. Employees' contention that they filed "intake forms" was insufficient to defeat summary judgment, because without counsel's letter or the intake forms (all materials that are uniquely within plaintiffs' control), court can only speculate whether they qualified as "charges" or whether they were "filed" within the time period prescribed by law. No "relation- back" under 29 C.F.R. §1601.12(b) where there is no proof of an original "charge" to relate back to. Alternative argument that limitations challenges are affirmative defenses, and that the employer must disprove the existence of the charges, fails. Compliance with Title VII's filing deadline a condition precedent rather than an affirmative defense. For three plaintiffs not time- barred, English- only rule tailored only to the operating- room did not violate Title VII. Rule prohibited housekeepers from speaking Spanish solely while working in the operating room department, and apparently only for job- related discussions, where there was a conceded business necessity and absence of improper motive, citing 29 C.F.R. § 1606.7(b). The policy bore no apparent effect in any other place within the Clinic or during employees' breaks or to discussions unrelated to her job. 2. Assuming employees made out prima facie case, employee did not rebut legitimate, non- discriminatory explanation that it had to assign more work to avoid hiring staff. No evidence of ridicule or mistreatment that would support harassment allegations. 3. No admissible evidence that decision- maker was aware of terminated employee's meeting with a lawyer. Alternatively, employee did not deny that she had been insubordinate.

Riggs v. Airtran Airways, Inc ., 497 F.3d 1108, 101 FEP 545 (10th Cir. 2007). Panel : KELLY, Anderson, Henry. Claims on Appeal : ADEA termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : District court does not violate Seventh Amendment jury right by determining whether plaintiff presented sufficient evidence tending to show that employees were "similarly situated" for purposes of applying McDonnell Douglas test. Plaintiff did not present direct evidence by supervisor's adverse comments (old as her mother, too old to move heavy luggage, assigned to less demanding gate work), none of which were shown to be connected to termination. Using indirect method, though prima facie case was conceded, employer proffered legitimate, non- discriminatory reason for termination (that she offended a group tour customer and misrepresented her name as "Gina" to the same customer). Failure to investigate employee's side of the story , or informing employee directly that she may be fired, did not constitute "disturbing procedural regularity." Although employee supposedly identified six persons treated more favorably than she (they were allowed to respond to allegatiosn against them), three committed rule violations that did not involve customers, two were only questioned as individuals, and the last was not shown on record to have committed a violation or to have been disciplined. Hearsay evidence that younger employees were quizzed about whether they use the name of "Gina" was inadmissible. Plaintiff showed no material inconsistency in employer's reasons for termination.

Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 101 FEP 357 (10th Cir. 2007). Panel : GORSUCH, Kelly, Ebel. Claims on Appeal : 1. Title VII retaliation. 2. Title VII harassment (sex). Disposition Below : 1. Summary judgment [defendant]. 2. Judgment following a bench trial [defendant] . Outcome on Appeal : 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Employee who filed complaint with state agency immediately informed by manager of rumors that she had sexual relationships with tem coach, players and some season ticket holders; manager offered her a severance package and told her that if fought him on the termination, he would make the rumors public. Manager informed state unemployment compensation office that she was terminated for cause owing to sexual misconduct. Company lawyer offered that if employee dropped charge, company would not oppose her on unemployment. Although benefits were not in fact delayed, plaintiff need only show that a jury could conclude that a reasonable employee would have bee deterred by the threat alone. Employer "starkly pos[ed]" employee with choice of seeking vindication of Title VII rights or risk forfeiture of reputation and prevent payment of unemployment benefits. Company's lawyer's comment was direct causal ling to retaliatory motive. Record contained evidence that company was aware of the employee's charge and was interviewing witnesses around the same time. Employee also presented genuine issue of material fact about pretext (employer originally defended case that it had not fired employee at all, then contradicted itself with sex allegations. 2. Objections to jury instructions overruled, either because they were forfeited at trial or on the merits.

Swackhammer v. Sprint/United Mgt. Co. , 493 F.3d 1160, 100 FEP 1704 (10th Cir. 2007). Panel : EBEL, Lucero, McWilliams. Claims on Appeal : Title VII and Kan. state law termination (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employee fired for alleged ethical violation (accepting gratuities from vendors) failed to present genuine issue of material fact on pretext. That manager who made decision to terminate employee was under investigation for same violation did not make decision more likely to be affected by gender bias. There was a genuine issue of material fact about differential treatment between plaintiff and male co- worker, but the record record conclusively established either (1) that the plaintiff's behavior was more egregious; or (2) that reason for differential treatment was close, personal friendship between male co- worker and manager, not bias. Employee was not required to concede non- discriminatory reason for district court to conclude that such reason conclusively forecloses an inference of discrimination; in any event, employee did concede repeatedly in deposition that the two men were close personal friends.Berry v. T- Mobile USA, Inc., No. 05- 1533 (10th Cir. June 27, 2007). Panel: O'BRIEN, Lucero, Seymour. Claims of Appeal: 1. ADA termination. 2. ADEA and Title VII termination (gender). State law claims (not discussed here). Disposition Below: 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee contended that she was substantially limited in the life activities of caring for herself, walking and performance of manual tasks owing to MS. Under standards of 29 C.F.R. § 1630.2(j)(2)(ii)- (iii), employee was not substantially limited. Medical records submitted by employee's physician demonstrate her activities were not substantially limited and many of her symptoms could be addressed through medication. Concerning "regarded as" claim, employee argued that employer asked her to take leave to get treatment for his MS. But court holds that "the leave provisions of the FMLA are wholly distinct from the statutory definition of 'disability' and an employer's reasonable accommodation obligations covered under the ADA." 2. No evidence of pretext, that she was fired for poor performance, based on following record: she was repeatedly counseled regarding her failure to improve her interactions, the check- off on the termination form (for RIF, instead of performance) does not imply a lie so much as a clerical error, and there was no evidence that company enforced a progressive disciplinary policy.

Berry v. T- Mobile USA, Inc., 490 F.3d 1211, 100 FEP 1623, 19 A.D. Cases 877 (10th Cir. 2007). Panel : O'BRIEN, Lucero, Seymour. Claims on Appeal : 1. ADA termination. 2. ADEA and Title VII termination (gender). State law claims (not discussed here). Disposition Below : 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Employee contended that she was substantially limited in the life activities of caring for herself, walking and performance of manual tasks owing to MS. Under standards of 29 C.F.R. § 1630.2(j)(2)(ii)- (iii), employee was not substantially limited. Medical records submitted by employee's physician demonstrate her activities were not substantially limited and many of her symptoms could be addressed through medication. Concerning "regarded as" claim, employee argued that employer asked her to take leave to get treatment for his MS. But court holds that "the leave provisions of the FMLA are wholly distinct from the statutory definition of 'disability' and an employer's reasonable accommodation obligations covered under the ADA." 2. No evidence of pretext, that she was fired for poor performance, based on following record: she was repeatedly counseled regarding her failure to improve her interactions, the check- off on the termination form (for RIF, instead of performance) does not imply a lie so much as a clerical error, and there was no evidence that company enforced a progressive disciplinary policy.

Santana v. City and County of Denver , 488 F.3d 860, 100 FEP 1160 (10th Cir. 2007). Panel : SILER, Briscoe, McConnell. Claims on Appeal : 1. Title VII disparate treatment promotion (sex). 2. Title VII disparate impact promotion (sex). State law claims (not discussed here). Disposition Below : 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds : 1. Female sergeant seeking promotion to captain did not establish genuine issue of material fact on pretext, where interview panel concluded that she had been emotional and unable to handle the stress of the interview. That her scores and prior reviews were higher than successful male candidate's and interview process might be deemed subjective does not rebut employer's non- discriminatory explanation. No abuse of discretion barring deposition and admission of exhibits/witnesses not timely designated. 2. District court erred in holding that employee who loses disparate impact theory lacks standing to advance impact theory.

EEOC v. PVNF, L.L.C ., 487 F.3d 790, 100 FEP 1043 (10th Cir. 2007). Panel : TACHA, McWilliams, Lucero. Claims on Appeal : 1. Title VII hostile work environment (sex). 2. Title VII discrimination (sex). 3. Title VII retaliation. 4. Title VII constructive discharge (sex). Disposition Below : 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. 3. Judgment as a matter of law [defendant]. 4. Judgment as a matter of law [defendant]. Outcome on Appeal : 1. Reversed [plaintiff]. 2.Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds : 1. Statements made out of presence of employee may be part of hostile work environment, even if employee was not intended to hear it. Jury could have concluded that descriptions of female employee's body by co- workers and managers, repeated use of word "bitch," comments about women's appropriate roles, sexual epithets and vulgar e- mails over four- month period was severe or pervasive. Fee award to employer and against EEOC vacated as to that employee (although second award concerning another employee is affirmed on ground that EEOC failed to lay adequate appeal record). 2. Warning notice about tardiness and waste of office time, even if it constituted an adverse action and employee made out prima facie case, was not pretext for discrimination. Only comparable male employee did not have same productivity- related issues, and female plaintiff's unavailability in the workplace cause objectibve harm to employer. Although there was evidence that other men were not written up for other infringements (sending derogatory e- mails, leaving work to take kids to daycare), employee likewise was not written up for other of her violations (personal use of e- mail, profanity). Employee also did not deny the particulars of her violations. No evidence that newly implemented pay plan involving pooling of commissions made employee worse off than male co- workers. 3. Employee could satisfy prima facie case, that she engaged in protected activity (oral complaints to manager of sex animus, failure to hire women and vulgar e- mail) and that their was a causal connection (challenged actions took place a month after complaints). But result was same as above regarding pretext. 4. Harassment and allegations of disparate treatment do not cumulatively present circumstances where employee had no choice but to resign.

Timmerman v. U.S. Bancorp, N.A. , 483 F.3d 1106, 100 FEP 803 (10th Cir. 2007). Panel : KELLY, Alcaron [LUCERO, concurring in the judgment]. Claims on Appeal : 1. Title VII and ADEA termination. 2. Title VII and ADEA retaliation. 3. Conspiracy claim under 42 U.S.C. § 1985(2). Disposition Below : 1.Summary judgment [defendant]. 2.Summary judgment [defendant]. 3.Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Application of 20- page limit on summary judgment response brief not abuse of discretion. Employee, 52- year- old woman, terminated as bank branch manager after being audited and discovered to have refunded thirty- one overdraft charges, totaling $1,099, to two coworkers' accounts in violation of company policy. Although employee made out prima facie case, she was unable to establish a genuine issue of material fact regarding pretext. Plaintiff's record included evidence (1) within two years of becoming district manager, "replaced every single older female branch manager with a young man"; (2) employer failed to apply its progressive discipline policy; (3) district manager supposedly treated employee more harshly than other employees who violated the same policy; and (4) there were procedural irregularities surrounding employee's termination. The evidence in the record demonstrates that only one of the incumbent branch managers applied for the new branch manager position following the reorganization. Thus, employee did not eliminated the possibility that the district manager replaced every female branch manager with a young man not out of discriminatory animus, but because the female branch managers either did not apply for the new branch manager position or were not as qualified as a competing younger male. Company policy permitted immediate termination for the offense committed by the employee. Even if other U.S. Bank branch managers elsewhere in the system committed a similar offense, they were supervised by different managers at different worksites. Evidence that male successor to employee also committed same offense was not pertinent because there was no evidence that the bank knew about the offense at the time. There was no evidence of irregularity, other than a delay in the firing engendered by the time necessary for a proper investigation.2. Even assuming that filing a civil counterclaim is an adverse action for purposes of Burlington Northern , employee's potential diversion and withdrawal of bank's funds is a legitimate, nondiscriminatory reason for the employer to file counterclaims against that employee in her discrimination lawsuit, in an attempt to retrieve what was alleged (and here admitted) to have been taken.3. Insufficient evidence for jury to infer an agreement between U.S. Bank and its attorneys to either intimidate or threaten pursuit of this case by (a) filing non- frivolous state law counterclaims against plaintiff and (b) placing pressure on co- worker to execute inaccurate declaration against plaintiff.

Zwygart v. Bd. of County Commissioners, Jefferson Co., Kansas , 483 F.3d 1086, 19 A.D. Cases 330 (10th Cir. 2007). Panel : MCCONNELL, Kelly, Holmes. Claims on Appeal : ADA termination. Due process claim (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employee fails to present genuine issue of material fact about having a "record of" disability, where - though claiming that he was substantially limited in the major life activity of work - he failed to present any evidence addressing his vocational training, geographic area to which he had access and number and type of jobs available for person with comparable background. Doctor's note and certification do not bear on employee's ability to perform in a broad range of jobs, and contained FRE802 hearsay.

Allen v. State of Utah , 483 F.3d 1057, 100 FEP 911 (10th Cir. 2007). Panel : FIGA, Tymkovich, Baldock. Claims on Appeal : Title VII harassment (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employees, four women at branch office of state agency, present no genuine issue of material fact regarding the timeliness of their claims of harassment concerning the same supervisor. Plaintiff Jackson cited no events occurring within 300 days of filing her charge. Plaintiff Holmes alleged that supervisor had hugged her inappropriately, but that single event occurred six months after the last event, by which time the employee was no longer working under that supervisor (having transferred) in the office where the hug occurred, and employee did not show that she subjectively perceived that hug as harassing (did not file complaint with agency or EEOC at the time). Plaintiff Giacoletto also alleged a single incident within the 300 days that occurred months after the last event, after the supervisor had been reprimanded, after the supervisor had already resigned and was visiting the office merely for social reasons, and without contemporaneous complaint by the employee. Plaintiff Stevens complained of stalking and grabbing by supervisor, but these events occurred after he had already resigned and off the work premises; moreover, when she complained to the agency, it immediately took steps to bar him from returning to the branch office location. District court did not abuse discretion in granting summary judgment sua sponte on harassment claims not originally claimed in motion, where employee had opportunity to respond in oral argument. Agency's investigation of hostile work environment, which plaintiffs contended continued the harassment (interviewed without counsel present and not informed of outcome), was not separately mentioned in the charge, therefore waived.

Piercy v. Maketa , 480 F.3d 1192, 100 FEP 288 (10th Cir. 2007). Panel : TYMKOVICH, Briscoe, Baldock. Claims on Appeal : \1. Title VII retaliation. 2. Title VII discrimination (sex). Disposition Below : 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds : 1. District court erred in considering only temporal proximity on issue of causation where record showed other contested facts that supported inference of causation: (1) employee notified her superiors she planned to pursue formal discrimination charges, (2) her supervisors subsequently commenced an investigation based on her violation of personnel policies (i.e., wearing tounge- stud), which (3) culminated in a recommendation she be fired, and (4) employee was in fact fired. But employee did not present any issue of material fact as to pretext, as there was a substantial record that employee was aware of the grooming policy, had been warned about violation and may have been guilty of insubordination. Evidence of other who were not fired for other violations were in a different chain of command, so their experiences were not comparable. 2. Being required to bid for shift was not an adverse employment action, because there was no substantial difference between shifts, but there was a genuine issue of material fact about whether barring all women from serving at male- only facility was materially adverse. BFOQ defense remanded to the district court.

Jencks v. Modern Woodmen of Am. , 479 F.3d 1261, 100 FEP 307 (10th Cir. 2007). Panel : O'BRIEN, Lucero, O'Brien. Claims on Appeal : Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Plaintiff who (as former employee) sought independent contractor relationship with company had standing to bring retaliation action. Summary judgment affirmed on ground that company had legitimate, non- discriminatory reason for not entering into contract (it had entered into settlement agreement which barred plaintiff from future employment). Even if contract was ambiguous regarding whether contractual relationship fell within the terms, employer had good faith basis for its interpretation. It was open issue whether denial of contract was materially adverse.

Zamora v. Elite Logistics, Inc. , 478 F.3d 1160, 99 FEP 1377 (10th Cir. 2007). Panel : EBEL, Tacha, Kelly, Hartz, O'Brien, McConnell, Tymkovich, Gorsuch, Holmes. [HARTZ, Tymcovich, concurring]. [MCCONNELL, Kelly, O'Brien, Tymkovich, Gorsuch, Holmes, concurring]. [GORSUCH, concurring]. [LUCERO, Holloway, Henry, Briscoe, Murphy, dissenting]. Claims on Appeal : Title VII termination (national origin). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Assuming that employee made out prima facie case of discrimination, employer proffered legitimate, non- discriminatory reason for termination, that human resources manager believed that plaintiff would not return to work from his suspension unless the manager apologized for demanding documentation that the employee had a legal Social Security number (which manager refused to do). Letter from employee specifically stated that "before I could consider going back to work I need . . . an apology in writing." Employee did not present genuine issue of material of fact that this explanation was a pretext. Even crediting the employee's testimony that the manager acted angrily to the demand for an apology, that did not establish that the reaction was because employee was a Mexican- born Hispanic. In fact, same decision- maker had already offered to reinstate plaintiff from his suspension, and there was nothing in the record that this was not sincere. (Court also divides 7- 7 on national origin suspension claim.)

Renner vs. Harsco Corp ., 475 F.3d 1179, 99 FEP 145 (10th Cir. 2007). Panel : HOLLOWAY, Briscoe, McConnell. Claim on Appeal : Title VII harassment (race). Disposition Below : Judgment entered after jury trial; $30,000 pain and suffering, $30,000 emotional distress, $20,000 punitives [plaintiff]. Outcome on Appeal : Affirmed except as to punitive damages [plaintiff]. Grounds : The plaintiff, a female quality control inspector, suffered a two- year campaign of typically vulgar name- calling and cursing by co- workers whose work she was in charge of examining. Plaintiff's complaints to management went unheeded over most of that period. If anything, the harassment escalated, with male employees following the plaintiff around and spitting tobacco on her car. District court properly denied judgment as a matter of law. Employer had argued at trial that the animosity was not sex- based at all, but had to do with the plaintiff's unreasonable standards during inspections. Panel concluded that the "jury heard about several gender- based comments and actions that only [plaintiff, as opposed to male inspectors] was subjected to. Harsco Corporation has not demonstrated that no reasonable inference from the facts presented could support [employee's] claim." Harassment was severe or pervasive; environment waqs "polluted with gender- specific comments and behavior" exceeding "mere flirtatiousness." Company properly found liable for co- worker harassment where company did not respond to repeated oral complaints. Punitive damage award of $20,000 punitive award vacated, because the employee failed to rebut the evidence that the corporation -- in contrast to the individual managers -- took affirmative steps to comply with Title VII in good faith under Kolstad v. American Dental Ass'n , 527 U.S. 526, 545- 46 (1999). Employer "submitted substantial evidence showing that the company established comprehensive polices and training procedures in an effort to comply with Title VII. In response, Ms. Renner alleges that her supervisors were not properly trained, but the only evidence she provides of that faulty training is the fact that her supervisors did not comply with the company's policies and procedures in various respects. If failure of supervisors to comply with company policy were sufficient evidence to prove the lack of a good- faith effort to train, the Kolstad defense would be effectively eliminated." Panel affirms exclusion of evidence under FRE608(b) that the employee failed to disclose her Title VII claim properly in a bankruptcy petition as cumulative and liable to produce "mini- trial."

Crumpacker v. State of Kansas , 474 F.3d 747, 99 FEP 890 (10th Cir. 2007). Panel : TYMKOVICH, Lucero, Anderson. Claims on Appeal : Title VII termination. Disposition Below : Judgment following a jury trial; $20,000 compensatory, $1240 back pay [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Employee -- the division director of a state agency -- was an exempt "appointee on the policy making level." 42 U.S.C. § 2000e(f). The court affirms holding that she was not exempt because, under Kansas state law, the secretary of the department -- an unelected figure -- made the appointment. Title VII requires that an exempt employee be appointed by an elected official, not his or her cabinet officers. Requirement that governor had to "consent" to the candidate, and evidence of the governor's actual involvement in the hiring and firing of the employee, did not convert event into gubernatorial appointment. Appeal- related fees includingfees from an interlocutory appeal must be award by the Court of Appeals, but such fees may be determined in the first instance by the district court, with de novo review on appeal.

Herrera vs. Lufkin Industries , 474 F.3d 675, 99 FEP 809 (10th Cir. 2007). Panel : EBEL, Tacha [CASSELL, dissenting]. Claim on Appeal : Title VII harassment (national origin). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : District court erred in holding that evidence was insufficient as a matter of law to establish a severe or pervasive environment of harassment. Evidence included several discrete incidents of racial harassment by service center manager, including refusing to shake employee's hand, having employee's direct supervisor assign him to work with Mexican customers, and complaining to the supervisor about the condition of the employee's truck (which he said was "Mexicanized"). Moreover, several times a week the manager referred to the employee as the "Mexican" or the "fucking Mexican." Although many of the comments were made among the managers, and not specifically to the employee, the supervisor and others at the facility let the employee know what the manager was saying and warned him that he was bigoted. The manager also transferred in a new supervisor who yelled at the employee and his son, enforced policies more harshly against him and admitted that he was brought to the facility by the manager to get rid of the employee. Court did not abuse discretion in ordering the plaintiff to submit to a Fed. R. Civ. P. 35 mental examination to which he stipulated, where employee admitted that he had placed his mental state into controversy.

McGowan v. City of Eufala , 472 F.3d 736, 99 FEP 747 (10th Cir. 2006). Panel : TYMCOVICH, McConnell, Anderson. Claim on Appeal : Title VII retaliation. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds :Jail guard claims that she was denied a requested reassignment, subject to co- worker harassment, and was suspended without pay -- after a prisoner committed suicide on her watch -- allegedly in retaliation for her cooperation in a co- worker's Title VII suit. Except for suspension, other actions did not meet the standard of "adverse action" laid out under Burlington Northern v. White , 126 S. Ct. 2405 (2006). Desire for shift change was wholly subjective, while harassment was directed (if at all) at plaintiff's son and his girlfriend. As to suspension, employee established causal connection by temporal proximity; because suspension came one day after she testified in a deposition. But employee loses in the final stage of the pretext analysis, because she cannot challenge legitimate, non- discriminatory reason (falsification of records, failure to conduct inspections leading to prisoner suicide). Booking officer who was not punished not "similarly situated," because guard had primary charge of prisoner safety. Employer could separate the original Title VII complainant and plaintiff -- on advice of city counsel -- by keeping them on different shifts, because of the city's interest in defending against the original Title VII lawsuit: "the City was not required to compromise its defense of [co- worker's] claims simply to accommodate McGowan's subjective desire for a change in shifts. In sum, this record does not support a conclusion that the City's reason for denying McGowan a shift change was pretextual. The City's temporary refusal to grant McGowan's request for a shift change was perhaps reactive, but cannot be said on this record to have been retaliatory."

Young v. Dillon Companies, Inc . , 468 F.3d 1243, 99 FEP 341 (10th Cir. 2006) . Panel : GORSUCH, Lucero, O'Brien. Claim on Appeal : Title VII termination (race). State law claims (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Court properly credited employer's honest belief that employee had departed before his shift concluded, pointing to video surveillance evidence, despite that evidence was also consistent with the employee's explanation that he had left facility to explore outside perimeter of store and later investigation revealed that employee returned later to properly punch out. Evidence that manager who participated in investigation was racist against blacks did not present triable issue of fact, because (1) most of the comments were inadmissible hearsay by co- workers unsupported by the witness's own testimony or affidavit; (2) the one comment he did here ("monkey") was unrelated to the termination decision; and (3) no evidence that person who investigated and made termination decision was influenced by the manager.

Mendelsohn v. Sprint/United Management Co. , 466 F.3d 1223, 99 FEP 172 (10th Cir. 2006) . Panel : BALDOCK, Briscoe [TYMCOVICH, dissenting]. Claim on Appeal : ADEA termination. Disposition Below : Judgment after a jury trial [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : In an ADEA reduction- in- force (RIF) case, plaintiff -- terminated at age 51 -- had been the oldest manager in her unit. District court committed legal error in failing to admit evidence that Sprint terminated five other employees over the age of forty as part of the same RIF, as proof of Sprint's alleged discriminatory animus toward older employees These employees apparently believed they too were victims of age discrimination. Although other witnesses were supervised by different managers, evidence was still admissible in termination case (limiting prior case law, Aramburu v. The Boeing Co. , 112 F.3d 1398, 1404 (10th Cir. 1997), requiring that comparable employees originate from the same supervisor's unit to disciplinary cases).

EEOC v. Heartway Corp . , 466 F.3d 1156, 18 A.D. Cases 993 (10th Cir. 2006). Panel : EBEL, Tacha, Cassell. Claim on Appeal : ADA "regarded as" termination. Disposition Below : Judgment following a jury trial; $20,000 compensatory, $1240 back pay [plaintiff]. Outcome on Appeal : Affirmed and remanded for trial on punitive damages [plaintiff]. Grounds : EEOC presented sufficient evidence to establish that employee was terminated because the employer believed her to be substantially limited in the major life activity of working. Employee was a cook at a nursing home infected with hepatitis C. To make claim, employee was required to show that employer subjectively believed that employee was significantly restricted as to a class of jobs or broad range of jobs in various classes (although what constitutes a class or broad range of jobs is objective). Court notes EEOC Compliance Manual § 902.4 and .8 guidance and 29 C.F.R. § 1630.2(j)(3)(ii)(B), that class of jobs includes "heavy labor," "manual labor," "semi- skilled" etc., and classes of jobs may include (according to some circuits) truck driving, law enforcement, welding, manufacturing, and assembly line. Evidence included supervisor's statement that "you having Hepatitis C, you will not work in out kitchen"; same supervisor telling EEOC investigator "how would you like to eat food containing her blood, if she ever cut her finger," and "that if this got out to their clients they[] would have a mass exodus from their nursing home"; and expert testimony that tasks, education and experience for employee's job covered some 55% of all jobs in service worker category in relevant geographic area. Evidence that employee was fired because of disability revealed by supervisor's "you having Hepatitis C" statement. Employer's avowed non- discriminatory reason (that employee was fired because of not disclosing her medical condition truthfully on her application) was based solely on supervisor's testimony and could have been disbelieved by jury (citing Reeves v. Sanderson Plumbing ). On cross- appeal, district court erred in granting judgment as a matter of law on punitive damages where there was some evidence that supervisor had been trained in and aware of ADA prohibitions; although testimony was subject to interpretation, issue should have been for jury.

Brown v. Unified School Dist. 501 , 465 F.3d 1184, 99 FEP 11 (10th Cir. 2006) . Panel : ANDERSON, Hartz, Tymkovich. Claim on Appeal : Title VII/ § 1981 refusal to rehire and retaliation (race). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant] Claims based on failure to rehire accrued when employer definitively informed employee that he would not be considered for reemployment, and claim was not revived by subsequent application. Neither charge not complaint spelled out basis for concluding that subsequent denial letter was an independent event, especially since the subsequent rejection letter referred to prior correspondence denying employee reconsideration.

Hardin v. First Cash Fin. Services, Inc. , 465 F.3d 470, 98 FEP 1797 (10th Cir. 2006). Panel : TYMCOVICH, Hartz, McKay. Claim on Appeal : Sex discrimination. Disposition Below : Motion to compel arbitration denied [plaintiff]. Outcome on Appeal : Reversed [defendant]. Grounds : District court did not err in entering stay of litigation pending appeal, as it lost jurisdiction when the employer took a non- frivolous appeal (9 U.S.C. § 16(a)). Court was not required to conduct a trial under 9 U.S.C. § 4 where it was able to determine enforceability of contract as a matter of law. Denial of motion to compel appealable as a final order. Though not free of doubt, Oklahoma law will enforce contract that is accepted by continued employment. Alternatively, case can also be resolved by principles of offer, counteroffer and acceptance, where supervisor told recalcitrant employee that she would be bound by the arbitration policy if she continued to work (manifesting a "contrary intention" not to end negotiations), and she did so without renewing objection. Contract was not illusory, because employer could only alter terms prospectively and with 10- days notice.

McWilliams v. Jefferson Co. , 463 F.3d 1113, 98 FEP 1395 (10th Cir. 2006) . Panel : MCKAY, Kelly, O'Brien. Claim on Appeal : 1. Title VII termination (sex). 2. ADA termination. FMLA and state contract claims (not discussed here). Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Inappropriate behavior with co- workers and unexcused absences were legitimate, non- discriminatory reasons for termination, even if they were motivated by depression. 2. Employee failed to show that she was substantially limited in the major life activities of sleeping and interacting with others.

Mickelson v. New York Life Ins. Co. , 460 F.3d 1304, 98 FEP 1485 (10th Cir. 2006) . Panel : TACHA, Baldock, Lucero. Claim on Appeal : 1. Title VII retaliation. 2. Title VII termination (race, national origin). Disposition Below : 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds : 1. Although employer proffered allegedly legitimate, non- discriminatory reasons for pay disparity between male and female marketing service consultants (MSCs), summary judgment analysis differs on the EPA and Title VII claims. Under the EPA, employer had burden of proving that the proffered reasons (male MSC's experience and expertise in broker- dealer market) constituted "reasonable factors other than sex." District court erred in finding that this reason in fact explained the wage disparity as a matter of law: no contemporaneous documentation of this reason, employer did not originally give this reason to the plaintiff, first indication that this reason motivated setting of salaries was in response to plaintiff's complaint, market for the product sold by the male MSC had already collapsed when he was hired and employer admitted that male and female MSCs had essentially same duties. Also, it was undisputed that plaintiff had more expereince in the life insurance industry than the plaintiff. Also disputed issues of fact about whether "market factors," "salary history," or licensing requirements played a role. On Title VII claim, district court erred in excluding evidence of other women's experience in the same office; affidavits met Fed. R. Civ. P. 56 requirement of being based on personal knowledge (regarding level of training of MSCs and records about raise that a male MSC received). Applying indirect method, same disputed facts set forth above presented genuine issue of pretext. 2. Refusal to extend FMLA part- time status to employee for depression, while allowing other employee who had not made Title VII complaint to take leave, was materially adverse action under Burlington Northern v. White , 126 S. Ct. 2405 (2006). Also, plaintiff presented genuine issue of material fact about whether reason for decision (that position had to be filled by a full- time employee) was pretextual, where another employee who had not filed an EEO complaint and who worked in same title was allowed to return to work part- time. That employee did not bring stand- along FMLA challenge does not mean that disparate treatment was not actionable under Title VII. Other claims by employee (reassignment to another NSC group, failure to promote to key accounts position, denial of leave time to study for bar exam, derogatory e- mail and unruly treatment at meeting) properly dismissed either because there was no evidence of a causal connection or because they were not materially adverse actions.

Cortez v. Wal- Mart Stores, Inc. , 460 F.3d 1268, 98 FEP 1252 (10th Cir. 2006). Panel : MURPHY, Henry, Briscoe. Claim on Appeal : ADEA promotion. Disposition Below : Judgment after a jury trial [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Under circuit law, plaintiff's failure to meet subjective criteria is not automatically fatal to the plaintiff's prima facie case; he or she only need show that they possessed the objective qualifications and did not suffer froman absence or relative lack of subjective qualifications. Although employee was allegedly denied promotion due to objective (though unwritten) policy of restricting eligibility for employees who received a written "coaching," the content of the coaching was itself subjective, so employer's reason was only "facially objective." Employee also presented sufficient evidence at trial to support finding that denial of promotion was motivated by age (more relative experience in manager's job, job rating at time were above- average, never previously gave employee notice that the unwritten no- coaching policy was being applied to him, lack of support for coaching, and he and other older employee were told by manager that they needed to step aside to make room for "younger" managers). Employer waived limitations issue by not putting it in the pretrial order.

Antonio v. The Sygma Network, Inc. , 458 F.3d 1177, 98 FEP 1562 (10th Cir. 2006) . Panel : BRORBY, Briscoe, McKay. Claim on Appeal : 1. Title VII retaliation. 2. Title VII termination (race, national origin). Disposition Below : 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Termination that followed nine months after employee complained about ethnically- insensitive remark by manager (quating bad body oder with hert "culture") did not support inference of retaliation. Testimony presented by plaintiff that others on personnel committee would rehire her dispels inference that company intended to retaliate, and during intervening months manager who employee complained about gave her a good performance evaluation. Employer's reason for terminating employee (job abandonment) did not require application of progressive discipline. 2. Same persons who made termination decision, and who were aware of employee's race and national origin, were involved in hiring plaintiff ten months earlier. Court adopts and applies "same actor" inference. Body odor remark too isolated to establish pretext, since it was made by only one of four people involved in decision. Overall small number of minority staff does not rebut explanation for decision in light of job abandonment.

McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 98 FEP 1194 (10th Cir. 2006) . Panel : EBEL, Murphy, Hartz. Claim on Appeal : Title VII retaliation. Disposition Below : Judgment after a jury trial ($90,000 back pay, $38,000 compensatory damages, $167,000 punitive damages) [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Punitive damage award affirmed over Kolstad defense; sufficinet evidence established that the employee complained through multiple levels of company up to vice president about supervisor's harassment, who then made decision to terminate her. Management employees were trained in requirements of Title VII. (Dictum regarding whether employer could be held liable directly for punitive damages for management- level misconduct.) Although employee issued complaints for over a year, company failed to respond to complaints or take corrective action. Because employer tool tangible employment action, it was not entitled to Faragher/Ellerth defense. In any case, record included evidence that employee followed employee handbook procedures. No error in refusing instruction on "fear of retaliation" not being a legitimate reason for failing to follow a reasonable procedure to report harassment, where employer took tangible employment action. Challenge to wording of Kolstad defense waived. E- mails written by one of the managers who allegedly retaliated against plaintiff excluded as hearsay; e- mails not admissible as FRE801(d)(1)(B) prior consistent statements, FRE803 state of mind, or FRE1002 best evidence; at any rate, exclusion was not prejudicial because manager was able to testify at trial about the substance of the excluded e- mails. District court erred in denying plaintiff Rule 54(d) costs without findings supporting decision. Because court found that reinstatement was infeasible, it erred in denying front pay in light of uncontested evidence that she would not be able to find comparable employment in the community, and that her current employment pays less and requires longer commutes. Regarding attorneys' fees, district court did not err in denying plaintiff discovery into defense fees, but it erred in denying plaintiff leave to file a reply brief to the opposition to fees. Fee awrd was vacated, though court noted that there was nothing "intrinsically wrong" with the bottom- line outcome of the judge's findings on the reasonableness of the hours or lodestar.

Haynes v. Level 3 Communications LLC , 456 F.3d 1215, 98 FEP 1520 (10th Cir. 2006) . Panel : O'BRIEN, Tacha, Baldock . Claim on Appeal : 1. ADA, ADEA and Title VII (sex) discrimination. 2. ADA, ADEA and Title VII (sex) termination. 3. ADA, ADEA and Title VII retaliation. Disposition Below : 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3.Affirmed [defendant] . Grounds : 1. Some of employer's acts prior to employee being placed on performance improvement plan (PIP) (a request to work while ill, lack of managerial support) were not adverse employment actions, but employer's reassignment of accounts away from employee to younger male were each discrete events, and employee's failure to file timely EEOC charge forfeited those claims. PIP itself was not an adverse employment action (it did not affect status or pay). 2. Assuming employee made out prima facie case, she failed to establish that reason for termination (PIP candidates were placed on RIF list) was pretextual. Termination decision was general policy applied universally; that PIP status might have been tainted did not establish that discrimination was motivated by bias. 3. Assuming that decision to place employee on PIP was biased, decision by a different decisionmaker seven months later to terminate employee seven months later does not establish causation.

Carpenter v. The Boeing Co. , 456 F.3d 1183 (10th Cir. 2006) . Panel : HARTZ, Anderson, O'Brien . Claim on Appeal : 1. Title VII class certification. 2. Title VII disparate impact overtime pay (sex). Disposition Below : 1. Denied [defendant]. 2. Summary judgment defendant]. Outcome on Appeal : 1. Appeal dismissed; removal of named plaintiffs affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Appeal of decision to decertify a class action dismissed as untimely. Though an order denying a motion to reconsider a decision on class certification [under Rule 23(c)(1)(C)] is an 'order . . . granting or denying class action certification'," as set forth in Fed. R. Civ. P. 23(f), the literal terms of subsection (f) do not rescue from untimeliness an appeal taken more than 10 days after the principal order respecting class certification. A motion to reconsider does not toll the ten days allowed by law under that rule, unless filed (as with a Rule 50 or 59 motion) no more than ten days of the original order. Appeal of the order denying a motion to reconsider would preserve only the arguments raised anew in that motion and deprive the reviewing court of authority to reopen the prior decision. Class representatives who demanded to be paid a "consultant's fee" of 15% of any attorney fees obtained by class counsel and made repeated public references to privileged conversations with class counsel properly removed when they put their own interests above those of the class. 2. In a Title VII disparate impact case (here challenging the managers' discretionary allocation of overtime), it iss insufficient to establish a prima facie case simply by exposing a statistically- significant disparity between the protected group and its similarly- situated cohort group. Court affirmed the district court's finding that the plaintiff's statistical expert failed to incorporate the employees' collective bargaining agreement (CBA) eligibility requirements in his analysis, to establish that employees studied were equally eligible for overtime. Class claimed that reliable electronic data was unavailable, but record did not show that employees lacked an alternative non- electronic format. Even if data were not available, there was no record that the statistical analysis produced a reliable surrogate for qualifications for overtime; that is, that the results accurately reflect comparisons between individuals who were equally eligible for overtime assignments under the CBA. Court notes that expert committed fallacy of confusing the magnitude of the disparities with their level of statistical significance, as measured in standard deviations. The very large number of standard deviations in plaintiffs' study did not mean that the gross difference in the amount of overtime worked by men and women is itself large; it just means that the difference is very unlikely to be random. But lack of randomness here did not equate to an inference of discrimination, where the statistical study did not consider the relevant CBA eligibility standards.

Stone v. Dep't of Aviation , 453 F.3d 1271, 18 A.D. Cases 106 (10th Cir. 2006) . Panel : EBEL, O'Brien, McKay . Claim on Appeal : ADA termination . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Summary judgment on claim preclusion ground was erroneous. Employee was not required to assert his ADA claim as a compulsory counterclaim in a state- court action filed by employer seeking review of an administrative decision by city's Career Service Authority, where employee had not received right- to- sue letter from EEOC at time answer was due. Mere possibility that employee could have sought early right- to- sue letter not basis for preclusion; party not required to surrender EEOC remedies to bring civil action.

Argo v. Blue Cross and Blue Shield of Kansas , 452 F.3d 1193, 98 FEP 614 (10th Cir. 2006) . Panel : MCCONNELL, Murphy, Ebel . Claim on Appeal : 1. Title VII termination (reverse sex). 2. Title VII retaliation. Disposition Below : 1.Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Male employee failed to establish prima facie case, under heightened standard applied to reverse sex discrimination cases. District court properly gave no weight to assertion in employee's affidavit (without personal knowledge) that here was unaware of women terminated for failing to make monthly or yearly goals. No other evidence establishing inference of discrimination against men by this employer, or that after he was terminated that the job remained open or was filled by a woman. 2. Although plaintiff made out prima facie case of retaliation, he failed to show that reason given for termination (one year decline in meeting goals and attendance problems) was pretextual. Timing not suspicious; he was already under warning about his performance before he filed EEO complaint. Employer entitled to make termination decision based on employee's performance record, even if employee argues that the performance concerns were overblown.

Shrum v. City of Coweta , 449 F.3d 1132, 98 FEP 499 (10th Cir. 2006) . Panel : MCCONNELL, McWilliams [BRISCOE, concurring] . Claim on Appeal : First Amendment free exercise transfer of shifts. Other First Amendment, due process and freedom of association claims (not discussed here) . Disposition Below : Qualified immunity denied [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Officer prevailed upon city police department for eight years to schedule his shifts around his duties as pastor to church. After a career unblemished by disciplinary actions, officer suffered a reprimand and suspension for allegedly turning in late time sheets. He successfully arbitrated these actions. Then he and a cooperating witness in the arbitration were ordered into "remedial training" (which an arbitrator later found to be retaliatory), and officer was shifted to day shifts "so that he could be monitored," even though this conflicted with his Sunday duties at church. On interlocutory appeal by the defendants, panel rejects city's challenge the free exercise claim on two legal grounds -- that the free exercise clause by its terms applies only to legislative, not executive, acts; and that even if the First Amendment applied to executive action, the claimant must prove religious animus by the defendant. Employee presented genuine issue of material fact regarding pretext, where commanding officer could not point to specific problems in the officer's behavior, show that remedial training was indicated or discredit evidence that officer had found another officer to take Sunday shift for him.

EEOC v. BCI Coca- Cola Bottling Co. of Los Angeles , 450 F.3d 476, 98 FEP 571 (10th Cir. 2006) . Panel: MCCONNELL, Lucero, McKay . Claim on Appeal : Title VII termination (race) . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Actual decisionmaker did not know race of employee he fired, but there was genuine issue of material fact on pretext. Company files indicating that the employee had been insubordinate to manager (failed to follow orders, didn't show to work), passed along to manager. Manager who made decision testified that she did not notice employee's race (though it was identified in the personnel file). Allegedly biased subordinate provided the information to the manager who made the final decision. On "cat's paw" or "rubber stamp" theory, subordinate need not formally recommend adverse action be taken against employee, because subordinate accomplishes discriminatory goals by misusing the authority granted to him by the employer. Noting split in the circuits on the issue, court holds that subordinate's actions must be more than mere input into decision, but instead must show that subordinate's conduct caused the adverse employment action. Employee presented genuine issue of material fact about (1) subordinate's racial bias (several affidavits substantiating personal knowledge of subordinate's use of racial slurs and put- downs, and discriminatory discipline); (2) differing reasons given for termination decision (insubordination versus attendance); (3) decisionmaker's reliance on subordinate's account of events without further inquiry (including asking the employee his version of events).

Zamora v. Elite Logistics, Inc ., 449 F.3d 1106, 98 FEP 298 (10th Cir. 2006). Panel : HOLLOWAY [LUCERO, concurring] [EBEL, dissenting in part]. Claims on Appeal : Title VII suspension and termination (race and national origin). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : The court found using the indirect method of proof that the employee established a prima facie case both for the suspension and ultimate separation from employment. Employer, in response to possible audit by immigaration authorities, investigated the social security numbers of its employees and found a discrepency in the plaintiff's number. Genuine issue of material fact whether manager jumped to the conclusion that employee had used a social security number illegally, despite the lack of any strong evidence that he had, and had apparently never considered the possibility that employee was instead a victim of the misuse of his social security number by another." Employee was suspended from work because of fracas until secretary was able to verify employee's situation. When the employee returned to work, he demanded that the manager apologize for doubting him in the first place. According to the opinion, "Plaintiff testified that Tucker [the manager] grabbed the letter and told him he was fired because Tucker would not apologize and did not have to explain." Even Tucker admitted in his deposition that he might have told Zamora to "just get the hell out." Evidence of pretext included that employer demanded more documentation from him than required by law, waited six months to take action on discrepancy, then gave plaintiff only ten days to provide documentation, manager rejected documents that were authorized by federal law to verify citizenship, manager placed entire burden on employee and did not conduct separate investigation, and manager treated him rudely during investigation and adamantly refused to apologize on the day of the termination. Genuine issue of material fact also presented on whether employee quit or was fired.

Nelson v. Boeing Co . , 446 F.3d 1118, 97 FEP 1737 (10th Cir. 2006 ). Panel : McCONNELL, Anderson, Tymkovich. Claim on Appeal : Title VII termination (race, sex, national origin). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Not a basis to reverse summary judgment that privately- retained counsel supposedly breached a statutory duty of effective assistance of counsel under 42 U.S.C. § 2000e- 5(f)(1).

Kruchowski v. The Weyerhaeuser Co ., 446 F.3d 1090 (10th Cir. 2006) . Panel : BRISCOE, Anderson, Brorby . Claim on Appeal : ADEA termination . Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Under Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), release held not enforceable where agreement lacked required group disclosures. Employer claimed that decisional unit was all salaried employees, contrary to 29 U.S.C. § 626(f)(1)(H) and 29 C.F.R. § 1625.22(f)(3)(iii).

Holt v. Grand Lake Mental Health Center, Inc . , No. 05- 5031 (10th Cir. Apr. 11, 2006). Panel : MURPHY, Ebel, Hartz. Claims on Appeal : ADEA termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Employee with mild form of cerebral palsy did not establish substantial limitations in major life activities of caring for oneself or performing manual tasks, where impairments were of a limited nature (requires assistance when chopping, peel or slicing food; difficulty eating; cannot cut own nails; needs help buttoning clothes).

Reed v. Mineta , 438 F.3d 1063, 97 FEP 956 (10th Cir. 2006). Panel : KELLY, Henry, McConnell. Claim on Appeal : ADEA termination. Disposition Below : Judgment after a jury trial ($248,356 back pay; $168,469.97 in prejudgment interest) [plaintiff]. Outcome on Appeal : Interest award vacated [defendant]. Grounds : Interest must attach as injury occurs; back pay injury did not accrue at once on the date the employee was terminated ".One method of calculating prejudgment interest here, with the aid of a computerized spreadsheet, is to calculate the future value of each payment (i.e., the amount that Mr. Reed would have been paid bi- weekly) from the date each payment would have been owing to Mr. Reed to the date of judgment and then subtract the original value of each payment."

Pippin v. Burlington Resources Oil & Gas Co . , 440 F.3d 1186, 97 FEP 745 (10th Cir. 2006). Panel : EBEL, Tacha, McConnell. . Claim on Appeal : 1. ADEA disparate treatment termination. 2. ADEA disparate impact termination. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No abuse of discretion in proceeding with summary judgment decision where employee failed to seek leave to respond to employer's reply brief on summary judgment, which included new material. Employee presented no genuine issue of material fact regarding employer's decision, in the course of a RIF, to continue to recruit recent college graduates, where offers had already been made before RIF was implemented. That employee's engineering duties devolved onto others did not present genuine issue of fact, where overall number of engineers were cut. No need to second- guess employer's judgment about which employees were "best performers." Evaluation process for RIF was not wholly subjective. Employee's challenge to performance evaluations leading to his termination based solely on plaintiff's own self- evaluation of skills and did not show that employer might rationally have evaluated him lower than others. Alleged statistical pattern of age discrimination in terminations not supported by the record (too small a sample and no control for skills or performance). 2. Plaintiff did not waive theory of disparate impact against RIF procedure, but employer established reasonable factors other than age (RFOA), where policies to make lay- offs based on prior performance and need top keep commitments to recent college hires.

Maldonado v. City of Altus , 433 F.3d 1294, 97 FEP 257 (10th Cir. 2006) . Panel : HARTZ, Seymour, Brack. Claims on Appeal : 1. Title VI and VII English- only rule, disparate impact (national origin) 2. Title VII, Section 1981 and Equal Protection English- only rule, disparate treatment (national origin) 3. Title VII retaliation First Amendment claims (not discussed here). Disposition Below : 1. Summary judgment [defendant] 2. Summary judgment [defendant] 3. Summary judgment [defendant]. Outcome on Appeal : 1. Reversed [plaintiff] 2. Reversed [plaintiff] 3..Affirmed [defendant]. Grounds: 1. Title VI claims dismissed because there was no proof that federal funding received by city had primary objective of providing employee's performance. Plaintiffs allege under Title VII that policy, though even- handed on its face, creates a hostile environment for Latinos. Plaintiff established prima facie case, that policy fired up ethnic taunting against Latinos, and absent a legitimate reason for promulgating policy that intrusdes even into private conversations and phone calls, policy itself may be deemed hostile. Court follows EEOC guideline in 29 C.F.R. §1606.7. Evidence of business necessity was scant (no written record of morale, communication or safety problems). 2. Plaintiff present genuine issue of material fact on intent, where disparate impact of policy is itself evidence of intent, combined with record that management knew policy was likely to lead to ethnic taunting. Lack of substantial work- related reason for policy, especially extending to nonwork periods, suggested true reason was illegitimate. 3. No evidence that English- only opted in response to complaints of several Latino employees.

Sorbo v. United Parcel Service , 432 F.3d 1169, 97 FEP 100 (10th Cir. 2005). Panel : ANDERSON, Lucero, Brorby. Claim on Appeal : ADEA, Title VII (reverse discrimination race and sex) termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Court clarifies error in district court analysis, reaffirming circuit law that proof of similarly- situated employee outside of protected group who was treated more favorably not a precondition of a prima facie case, provided that other circumstantial evidence giving rise to an inference of discrimination is present in the record. Nevertheless, evidence of discrimination/pretext failed as a matter of law. Although employer had previously identified wrong decision- maker, employer corrected error in supplemental interrogatory, and employee failed to pursue options to conduct follow- up discovery, including Fed. R. Civ. P. 56(f) affidavit (nor were objections to procedure preserved). Employer had legitimate basis for termination (e.g. record of poor performance, including evidence that employee sexually harassed customers). Alleged inconsistency in identification of decision- maker not evidence of pretext, where prior erroneous identification was made by defense lawyer in oral argument, was admitted to be incorrect and was subsequently rectified. (Statement of counsel was not evidence.) Employer's misstatement about employee's probationary status was not material for purposes of summary judgment. Accusations of lying by defense witnesses also not shown to be material. Fed. R. Civ. P. 60 motion properly denied where original filing presented insufficient grounds (i.e. not based on subsequently discovered evidence), thus not "made within a reasonable time," and attempt to supplement motion came more than one year after judgment was entered. Only allegation based on newly discovered evidence casting doubt on veracity of complaining customer had no material impact on employer's intent. Court- awarded costs of $52,461.87 legally erroneous, because it allowed various charges not authorized by 28 U.S.C. §1920 (e.g., computer- aided research) and were excessive. Wile such costs might be recoverable under 42 U.S.C. §2000e- 5(k) for defense of frivolous action, employer made no such showing

Bryant v. Farmers Ins. Exchange , 432 F.3d 1114, 97 FEP 202 (10th Cir. 2005) . Panel : EBEL, Briscoe, Tymkovich. Claim on Appeal : ADEA, Title VII (sex) and Kan. state law termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: District court abused discretion in striking portions of non- movant employee's affidavit under Fed. R. Civ. P. 56(e) on grounds of lack of personal knowledge FRE602 and FRE701. Employee as former supervisor had personal knowledge that audit results were not intended to be used to dismiss employees and that poor audit results should be attributed to another employee's actions. Underlying audit reports would be admissible uner FRE801(d)(2)(A) (statement by a party offered against that party) or FRE803(6) (business records exception). Taking simplae average of 103 numbers from record need not be expert testimony under FRE702, and may be lay opinin under FRE701 (also drawing support from FRE1006, presentation of voluminous writings as a "calculation"). Employee presented genuine issue of material fact regarding pretext under burden- shifting method of proof. Neither party disputed that employee made out prima facie burden of proof. Employer presented poor performance as legitimate, non- discriminatory explanation. Employee's affidavit and statistical summary showed that her unit's audit scores were not deficient compared to other units, and that poor performance of employee's unit was due to her younger, male successor. Also, employee presented genuine issue of material fact regarding the accuracy of the audit data, with company representative aware of manipulation of files, possibly to artificially lower unit's scores. Other alleged deficiencies in employee's performance also present genuine issue of material fact, which (though not disputed) were purely secondary in consideration to the audit reports, placing employer's entire explanation into doubt.

Jaramillo v. Colorado Judicial Dept ., 427 F.3d 1303, 96 FEP 1345 (10th Cir. 2005) . Panel : Per Curiam [Briscoe, Anderson, O'Brien]. Claim on Appeal : Title VII promotion (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Conceding that employee made out prima facie McDonnell Douglas case, employee, employer met burden of production by advancing reason that male candidate was more qualified. Following evidence failed to present a genuine issue of material fact: dispute over relative qualifications was not sufficiently overwhelming to support pretext. Agency's initial (though incorrect) contention that male candidate had higher test score may present issue of fact, but does not rebut several other objective qualifications favoring male (employee must generally discredit all explanations); original explanation did not cast doubt on balance of explanation. No sign that district court applied pretext- plus analysis. Evidence that procedures were manipulated to pre- favor male candidate speculative, and at most shows that process was unfair, not that the decision was discriminatory.

Wittington v. The Nordam Group Inc . , 429 F.3d 986, 96 FEP 1729 (10th Cir. 2005). Panel : HARTZ, Anderson Tymkovich. Claim on Appeal : ADEA termination. Disposition Below : Judgment after a jury trial [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Judgment as a matter of law properly denied. Review was hampered by employer's failure to include a full transcript of the trial, omitting opening statements, closing arguments and most of the exhibits. McDonnell Douglas framework is irrelevant to evaluation of judgment after trial. Jury could have credited evidence of procedural irregularities (e.g., employee was not chosen by management team but by individual manager, employer looked into possible early retirement for employee, employee did not meet criteria for termination under reduction in force), and inconsistent testimony by decisionmaker about his involvement in decision. Court rejects application of ten- year standard to determine whether employee is "insignificantly younger" (noting possible split with Sixth, Seventh and Eighth Circuits). Difference of five years was relevant in this case. No abuse of discretion in denying following instructions: burden shifting, "honest belief," no right to bumping, "insignificant- age" difference. No abuse of discretion to reuse testimony by company that tenure with the company was a factor in subsequent reductions in force; employer made no offer of proof regarding the relevance of this fact. Employee's cross- appeal of front pay calculation denied; employee had previously testified that he intended to retire at 65, so judge could disbelieve later testimony that he would have continued to age 70. Fees awarded on discretionary basis to plaintiff for defending appeal; case remanded for calculation of fee.

Garrison v. Gambro, Inc ., 428 F.3d 933, 96 FEP 1446 (10th Cir. 2005) . Panel : ANDERSON, Henry, Tymkovich. Claim on Appeal : 1. ADEA and Title VII) demotion/termination (sex). 2. ADEA and Title VII retaliation. 3. Title VII disparate impact. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Females ages 40 and over who took and failed diagnostic test for assembly- line jobs that they formally held but that were reclassified were not "qualified" in McDonnell Douglas second prong of prima facie case. Employees offered no evidence that test was given for a discriminatory purpose, was corrupted by administration errors or was otherwise invalid. 2. Vice president who asked employee to "not get the lawyers involved in this" when she responded to a severance plan package not retaliatory where employee accepted comparable employment elsewhere in the organization. 3. Comparison of female employees to male replacements invalid, because males held different job titles than females.

Shikles v. Sprint/United Management Co . , 426 F.3d 1304, 96 FEP 1156 (10th Cir. 2005). Panel : EBEL, McWilliams, Friot. Claim on Appeal : ADEA promotion/termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed for lack of subject- matter jurisdiction [plaintiff]. Grounds : ADEA plaintiff who fails to cooperate with EEOC during its 60- day jurisdiction over the claim fails to exhaust administrative remedies, and thereby under 29 U.S.C. § 626(d) deprives the district court of jurisdiction over the case. Absence of precise language in the ADEA, or regulation comparable to 29 C.F.R. § 1601.18 under Title VII, not determinative; it is a natural implication of criteria already in the statute and public policy as espoused by ADEA makes cooperation indispensable. No deference to EEOC amicus position on behalf of claimant. Compliance must be judged by commonsense standard; only non- cooperation that effectively prevents an investigation amounts to failure to exhaust. District court reviews conduct de novo, independent of basis for EEOC decision to dismiss charge. Because exhaustion is a jurisdictional prerequisite (noting split in circuits), summary judgment is vacated and order entered dismissing case for lack of jurisdiction.

Green v. State of New Mexico , 420 F.3d 1189, , 96 FEP 789 (10th Cir. 2005). Panel : TACHA, McConnell [EBEL, dissenting]. Claim on Appeal : Title VII and § 1983 termination (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : Employee was terminated for failing to follow instructions in written reprimand during probationary period. Although defendant conceded prima facie stage, plaintiff did not create genuine issue of material fact regarding employer's explanation for decision. Instruction by supervisor not to violate chain of command by discussing her assignments with other employees was not "subjective." Prior performance evaluations did not contradict the employer's explanation for the termination. Plaintiff failed to find comparable male employee who was treated relatively more favorably by same supervisor. No evidence that employees was placed under progressively higher scrutiny than other employees. Supervisor was herself female. Nothing suspicious about timing of termination (11 days before probationary period was over). District court did not abuse discretion in not accepting plaintiff's surreply, when defendant offered no new arguments in reply.

Miller v. Automobile Club of New Mexico, Inc . , 420 F.3d 1098, 96 FEP 404 (10th Cir. 2005). Panel : SEYMOUR, McKay, Murphy . Claim on Appeal : 1. Title VII (sex) and ADEA compensation. 2. ADEA, Title VII and N.M. state law retaliation.. 3. Equal Pay Act . Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds : 1. Employee did not establish that she was paid less as a part- time, hourly employee than male counterparts. She alleged that she performed extra duties, but that fact merely made her not comparable to the male employees (who worked 15 hours versus her 35 hours per week). No disparity with male successor, either, because he occupied a newly- created full- time salaried position with different duties. Plaintiff's motion to compel discovery motion properly disallowed by magistrate on ground that it was filed too late under local rules and, on appeal to district court under Fed. R. Civ. P. 72(a), she failed adequately to call the motion to the district court's attention.. Moreover, if she needed additional discovery to oppose a motion for summary judgment, she should have instead filed a Rule 56(f) motion and affidavit. 2. No causation between report of discrimination and elimination of employee's hourly job, where six months separated the events, and the decision to eliminate the employee's position was already long underway before plaintiff complained of discrimination. New full- time position created after employee left was not comparable (full- time, different duties).3. Same as (1).

Orr v. City of Albuquerque , 417 F.3d 1144, 96 FEP 231 (10th Cir. 2005). Panel : MCKAY, Ebel, O'Brien . Claim on Appeal : Title VII and N.M state law leave time benefit.(pregnancy). § 1983 Due Process,. Equal Protection and First Amendment claims (not discussed here). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Challenge to city's policy of refusing mothers to use compensatory time (i.e. time accumulated as overtime) for FMLA purpose (parental leave) constituted adverse employment action, because it required them to use limited sick leave time, denied them access to compensatory time that they earned and prevented them from earning additional compensatory time (which was capped). One plaintiff was also denied compensation for part- time work performed during leave, also an adverse employment action. District court also erred, at prima facie stage, in finding that plaintiffs did not show they were treated differently than similarly situated individuals. Although there was evidence that employer was unaware that male employees were using compensatory time for FMLA purposes, such evidence pertained to pretext rather than the prima facie showing.

MacKenzie v. City and County of Denver, 414 F.3d 1266, 95 FEP 357 (10th Cir. 2005). Panel : O'BRIEN, Hartz, McKay. Claim on Appeal : 1. ADA discrimination. 2. ADEA discipline and promotion. 3. ADEA retaliation. 4. ADEA harassment and constructive discharge. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds : 1. Failure to list depression, along with heart condition, as disability in EEOC charge waives recourse to that disability. Plaintiff did not establish prima facie case. She failed to show that she was disabled person. "Physical exertion" itself is not a major life activity; and while working may be a major life activity, plaintiff did not demonstrate that she was barred from a class of broad range of jobs. Moreover, there was no actionable discrimination, because plaintiff was seeking to reverse change in her schedule and she did not establish any disability- based reason for change. 2. No similarly- situated individual identified, where other younger persons disciplined less severely than plaintiff committed "fundamentally distinct" violations. Promotion claim fails because plaintiff could not rebut legitimate, non- discriminatory reason for decision (her relative lack of relevant experience). Decision not to promote plaintiff came nine months after she filed an ADEA complaint. Evidence of relative qualifications did not substantially favor plaintiff. 3. Failure to promote occurred before she filed ADEA complaint. Complaint of "silent treatment" by manager was not an "adverse employment action." Low performance evaluation rating and one- day suspension were separated by 5- 7 months from complaint and not other evidence supports causation. 4. Modest age- based comments and complaints about plaintiff's performance (which she could respond to in turn) not severe or pervasive.

Medina v. Income Support Division, State of New Mexico , 413 F.3d 1131, 95 FEP 1765 (10th Cir. 2005). Panel : TACHA, Lucero, McConnell. Claim on Appeal : 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Plaintiff failed to establish grounds that acts of same- sex harassment (e.g. offensive comments and e- mails) were "because of sex." Claim that lesbian supervisor was punishing plaintiff for non- compliance with gender stereotypes not presented by record; at most, plaintiff's claim amounted to complaint that she was being singled out because of her heterosexuality, which is not a protected classification under Title VII. 2. Alleged co- worker hostility and warning letter (which was a reprimand with no consequences) not adverse employment actions. Assuming that plaintiff made out prima facie claim of retaliation for denial of promotion five weeks after making complaint of discrimination, fact that successful candidate had higher score and more experience not shown to be pretextual.

Kelly v. Metallics West, Inc ., 410 F.3d 670, 16 AD Cases 1538 (10th Cir. 2005). Panel : LUCERO, McKay, Anderson. Claim on Appeal : ADA reasonable accommodation. Disposition Below : Judgment after a jury verdict, $50,000 compensatory damages [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Employee who used supplemental oxygen was not allowed to bring tank to the office. Although plaintiff proceeded on termination claim, verdict form allowed to jury to find liability based on a failure to accommodate. Despite error in drafting charge, verdict could still be upheld. Reasonable accommodation may be required even in a "regarded as disabled" case. Noting split in circuits (First and Third Circuits allow such claims, Fifth, Sixth and Ninth do not.) "That is to say, an employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employee's abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions. In this sense, the ADA encourages employers to become more enlightened about their employees' capabilities, while protecting employees from employers whose attitudes remain mired in prejudice." Defendant waived argument that there is no compensatory damage relief for ADA retaliation.

Board of County Commissioners, Fremont County, Colorado v. EEOC , 405 F.3d 840, 95 FEP 897 (10th Cir. 2005). Panel : LUCERO, Kelly, Holloway . Claim on Appeal : Title VII retaliation . Disposition Below : Petition for review of EEOC decision [plaintiff] . Outcome on Appeal : Affirmed [plaintiff]. Grounds : Public employees excluded from Title VII under the policy making exemption (42 U.S.C. § 2000e(f)) may petition the EEOC for an administrative remedy under the terms of the Government Employee Rights Act of 1991 ("GERA"), 42 U.S.C. § § 2000e- 16a, 2000e- 16b, and 2000e- 16c. Court holds held that retaliation is covered by this section, rejecting respondent county argument that (1) the plain language of GERA omitted such a remedy; and (2) no Chevron deference was due the EEOC's interpretation of the statute, because the Tenth Amendment erected a presumption against governmental liability.

Praseuth v. Rubbermaid, Inc. , 406 F.3d 1245, 16 AD Cases 1197 (10th Cir. 2005). Panel : FRIOT, McConnell, McKay. Claim on Appeal : ADA and Kan. state law termination. State tort claim (not discussed here). Disposition on Appeal : Judgment after a jury verdict, $200,000 lost front and back pay, $50,000 compensatory damages, $336,025.50 fees and $97,581.11 costs [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Plaintiff with idiopathic thrombocytopenia purpura, which causes uncontrollable bleeding, was restricted from jobs involving sharp objects. Objections to jury instructions which allegedly misdirected panel on major life activities and allowed to jury to award front pay waived. Plaintiff's expert testified that she was substantially limited in the major life activity of working. Jury could also find that in production line rotation, plaintiff could have been assigned to thew 50% of positions that did not require the use of knives, or could have used other tools instead. Sufficient evidence supported damages (W- 2 form plus reasonable estimate of lost benefits) and mitigation (efforts to search for work). Expert psychiatric testimony supported compensatory damages. Exclusion of SSA and LTD documents affirmed on undue prejudice grounds, FRE403 (jury confusion). Rule 50 motion properly granted on punitive damages where there was not evidence of wilfulness. Court did not abuse discretion in cutting fee request by 2/3rds, based on excessiveness (hundreds of hours on background research, unreasonable settlement posture) and unsuccessful claims. However, hours awarded also legitimately reflected time spent responding to an unnecessarily aggressive defense. No abuse of discretion in awarding prevailing Wichita, KS rates apply, rather than California rates, andnot awarding interest on fees.

Plotke v. White , 405 F.3d 1092, 95 FEP 1025 (10th Cir. 2005). Panel : SEYMOUR, McKay [TYMKOVICH, concurring]. Claim on Appeal : Title VII termination (sex). Disposition on Appeal : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Plaintiff historian using indirect, pretext method of proof created genuine issue of material fact regarding fourth prima facie factor. Even though her job was eliminated, the department did not proffer this is an explanation for her termination. When the employer contends that the actual reason for the termination was performance rather than elimination of the job, the status of the position after the employee's termination is irrelevant. In this case, the inference of discrimination was provided by other facts (admission that she was hired because there was pressure to add a woman, job duties were limited compared to male counterpart, male colleagues did not accord her same courtesies as other staff, suspicious circumstances about reassignment to dead- end project). In response to proffered explanation for termination, employee presented same evidence, plus inconsistency of employer's assessment of her abilities, post hoc explanations of adverse events, procedural irregularities, excessive subjectivity of decision, suspicious timing of decision and fabrication of memo to support discharge. District court erred in drawing inference in favor of employer for accepting as true its explanation that there were numerous reasons that motivated the termination, when only one specific reason was given at the time of the termination. District court also erred by not crediting evidence of name calling ("femi- Nazi"), exclusion of employee from male events, and discourtesy to only female staffer.

Baca v. Sklar , 398 F.3d 1210, 95 FEP 375 (10th Cir. 2005). Panel : LUCERO, Seymour, Anderson. Claim on Appeal : Title VII, § § 1981, 1983 constructive discharge (race). First Amendment claim (not discussed here). Disposition on Appeal : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds : No genuine issue of material fact regarding constructive discharge, where employee rejected offer of continued employment in a different position, and employer continued to pay him for six months until he resigned.

Duncan v. Manager, Dep't of Safety, City and County of Denver , 397 F.3d 1300, 95 FEP 311 (10th Cir. 2005). Panel : MCCONNELL, Tacha, Kelly. Claim on Appeal : 1. Title VII harassment (sex). 2. Title VII and § 1983 retaliation . Disposition on Appeal : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Acts of harassment against female police officer from eighteen years earlier, which involved threatening physical and psychological harassment, not rationally connected to acts by other officers in more recent past involving off- color comments and rumor spreading. Timely acts (by co- workers) did not constitute actionable harassment because department either took prompt and effective corrective action against perpetrators, source of rumors and offensive statements were anonymous and untraceable, or acts were insufficiently severe or pervasive. .2. Plaintiff did not present genuine issue of material fact regarding an adverse employment action, where ostracism, bout of shouting and failure to receive back- up did not affect her employment status. Allegedly adverse transfer was not within scope of EEOC charge. Individual defendant properly dismissed on limitations grounds. No abuse of discretion in denying plaintiff an opportunity to supplement complaint under Fed. R. Civ. P. 15.2.

Dick v. Phone Directories Co., Inc. , 397 F.3d 1200, 95 FEP 293 (10th Cir. 2005). Panel : TACHA, Baldock, Henry. Claim on Appeal : 1. Title VII harassment (sex). 2. Title VII retaliation . Disposition on Appeal : 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal : 1. Reversed [plaintiff]. 2. Affirmed [defendant] . Grounds : 1. Employee presented genuine issue of material fact in same- sex harassment case, by proving (through Oncale first evidentiary route) that harasser's conduct was motivated by sexual desire. As issue of first impression in circuit, court splits with Seventh Circuit, and agrees with Third and Fifth that it is not necessary to prove harasser was homosexual. Four co- workers engaged in ongoing sexual horseplay. Although record could support inference that behavior was directed at plaintiff because of personal resentment or dislike, record also supported inference that harassment may have been motivated by sexual desire (touching personal parts, shoving sex toy in plaintiff's face, women engaged in simulated sex at work). Statement that office was known as "lesbian factory " not admissible as party admission under FRE801(d)(2).2. Plaintiff presented no genuine issue of material fact regarding adverse employment action. Threat of termination was never carried out, and a mere threat is not actionable without a "special relationship" (i.e student- teacher). Even if co- worker hoistility counted, no proof of causation. Complaint to police did not persist beyond the report. Memo to staff about appropriate behavior and write- up of plaintiff under policy not sufficiently adverse.

Chavez v. State of New Mexico , 397 F.3d 826, 95 FEP 434(10th Cir. 2005). Panel : MCCONNELL, Lucero, Anderson. Claim on Appeal : 1. Title VII and § 1983 discrimination (race). 2. Title VII harassment (sex). 3. Title VII retaliation. State law contract and § 1983 tort claims (not discussed here). Disposition on Appeal: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal : 1.Affirmed [defendant]. 2.Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds : 1. Two comments, and fact that one plaintiff was the only Latina in the chain of command, insufficient to establish racial animus or harassment. 2. Hostile work environment directed at women but not, for the most part, gender- based may be found to be "because of sex" if the neutral harassment is viewed in context of gender- based activity. Gender- based comments includes intimidating and seductive invitations, physical touching, staring and genital- grabbing by men, barrage of words (bitch, bite me) and propositioning. Gender- neutral events include physical threats (phoned- in death threat, chasing employee down highway), false accusations of illegal behavior, selective reprimands, general name- calling and interfering with clients. Jury could infer that facially- neutral behavior was part of gender- based conduct. One plaintiff, whose claim was based on a single assault not shown to be gender- motivated, nevertheless failed to present a genuine issue of material fact on motive. 3. No causal connection shown between alleged adverse employment actions and retaliatory motive.

Miller v. Eby Realty Group, LLC , 396 F.3d 1105, 95 FEP 65 (10th Cir. 2005). Panel : KELLY, McWilliams, Lucero. Claim on Appeal : ADEA termination. State law contract (not discussed here). Disposition on Appeal : Judgment after a jury verdict, $222,087 back pay,$278,316 front pay, $222,087 liquidated damages, $51,000 fees and $4880 costs [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Plaintiff general manager subjected to repeated jesting comments about his age by officers of company, then terminated and replaced by man 24 years younger. Employer gave performance as a reason for termination in response to EEOC, then stipulated during suit that performance was not a factor and proffered a RIF. Record permitted jury to infer that the RIF was a pretext for terminating plaintiff: explanation (at the time he was terminated) that his job was being eliminated was false, reason given to EEOC was unsubstantiated, RIF also turned out to be false. Factfinder could copnclude based on falsity of one reason that other proffered reasons are also lacking in credibility. Along with falsity of reasons (which is sufficient for finding of discrimination) and prima facie case, comments cited above also substantiated age motive. Employer waived challenge to wilfulness finding by not presenting it in JMOL or challenge to jury instruction. Plaintiff didnot violate stipulation by using employer's response letter to EEOC, not to prove that performance was a factor, but to show that it lied to the agency; employee did not, on the other hand, open door to employer's evidence criticizing his performance, because that would violate the stipulation.

Chavez v. Thomas & Betts Corp . , 396 F.3d 1088, 95 FEP 72 (10th Cir. 2005). Panel : BALDOCK, Murphy, Tymkovich. Claim on Appeal : Title VII and N.M. state law harassment (sex). FMLA claim (not discussed here). Disposition on Appeal : Judgment after a jury verdict, $145,625 compensatory damages and $354,375 punitive damages (employer); $20,750 compensatory damages and $3250 punitive (individual supervisor), $164,261 fees [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Female supervisor who was congenial to men but abused female staff in front of co- workers (in plaintiff's case, commenting on her body, speculating about her sex life and undergarments, pulling open plaintiff's blouse to expose her chest, pulling her pants down), found to have harassed plaintiff because of sex. Evidence fit Oncale third evidentiary route, harasser treated men and women differently in mixed- sex environment. Sufficient evidence that plaintiff subjectively perceived harassment as severe (stress related medical problems). Punitive damage instruction was not completely accurate but, still "fairly guided" jury on definition of wilfulness. Record included sufficient evidence of wilfulness. Some of the harassment was observed by management, and other incidents were reported, but employer was indifferent to complaints, waiting months to investigate. In spite of reports from managers warning that the supervisor was "unacceptable" and posed a "risk," there was no discipline. One document authenticated (FRE901) by being produced in discovery on employer's letterhead. Testimony of fact witness from co- worker on plaintiff's behalf -- which contradicted harasser's account -- admissible over FRE608(b) objection (improper impeachment on a collateral matter). Fee award upheld where verdict constituted substantial relief, even if retaliation claim failed.

Cummings v. Norton , 393 F.3d 1186, 16 AD Cases 550 (10th Cir. 2005). Panel : TACHA, Henry, White. Claim on Appeal : Rehabilitation Act termination. Disposition on Appeal : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant] . Grounds : Although plaintiff may have had valid argument under circuit authority ( Den Hartog v. Wasatch Academy , 129 F.3d 1076 (10th Cir. 1997)) that employer may not rely on disability- caused conduct (here, by PTSD) as proxy for disability, plaintiff only presented that argument in district court in context of reasonable accommodation claim, which employee abandoned on appeal. Argument could not be commuted to discrimination claim on appeal.

Lanman v. Johnson County, Kansas , 393 F.3d 1151, 16 AD Cases 449 (10th Cir. 2004). Panel : KELLY, Holloway, Lucero. Claim on Appeal : ADA harassment and constructive discharge. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Affirmed [defendant]. Grounds: Court holds, in issue of first impression, that the ADA supports a claim for hostile work environment. On the facts of the case, though, it holds that employee was not "regarded as" having disability by employer. Comments by co- workers about employee being "nuts" or "crazy" not attributable to employer, and demand that employee submit to fitness for duty exam was (in law enforcement setting) reasonable response to employee who had previously enjoyed a good record, but began to have run- ins with co- workers. Moreover, no record that employer perceived her as limited in major life activities of working, thinking or interacting with others. Exam cleared her for work and spate of difficulty was limited a period in the Spring of 2001.

Johnson v. Lodge #93 , 393 F.3d 1096, 95 FEP 42 (10th Cir. 2004). Panel : TYMKOVICH, Tacha, McKay. Claim on Appeal : Challenge to Title VII and § § 1981/1983 consent decree. Disposition Below : Settlement approved [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds: Defendant- intervenor union challenges settlement of across- the- board racial practices in police department. Decree did not violate Oklahoma state law or the collective bargaining agreement. Court applies contract (rather than clear and unmistakable) standard to construe scope of CBA under Oklahoma law. Rejects union position that CBA barred city from entering into consent decree. Court rejects as "speculative" union's argument that the consent decree violates its rights with respect to future bargaining. Union does not enjoy plenary authority to preclude entry of decrees just because they effect terms and conditions of employment. Union not entitled to trial on the merits of race discrimination claims. Decree does not violate federal- local balance under the Tenth Amendment of the U.S. Constitution; city's agreement to terms obviates or minimizes federal ism concerns. Consent decree was narrowly tailored to alleged violations, limited in time and subject to modification. Decree places no obligations on union itself.

Bastien v. Office of Senator Ben Nighthorse Campbell , 390 F.3d 1301, 94 FEP 1760 (10th Cir. 2004). Panel : HARTZ, Seymour, Baldock. Claim on Appeal : Congressional Accountability Act transfer and termination (age and retaliation). Disposition Below : Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant] . Outcome on Appeal : Reversed [plaintiff]. Grounds: Speech and Debate Clause did not superintend liability under the CAA where claims against federal lawmaker was based on activities other than "legislative" acts, and personnel decisions are not legislative acts.

Cross v. The Home Depot , 390 F.3d 1283, 94 FEP 1537 (10th Cir. 2004). Panel : SEYMOUR, Briscoe, Payne. Claim on Appeal : 1.Title VII promotion (race) and retaliation. 2. § 1981 promotion. Disposition Below : 1.Summary judgment [defendant]; 2.Summary judgment [defendant]. Outcome on Appeal : 1. Affirmed [defendant]. 2.Reversed [plaintiff]. Grounds: 1. Employee failed to contest employer's record that decision to downgrade him was made prior to any complaint of racial discrimination. District court did not unduly limit employee to proof of only April 1999 promotion, and specifically ruled in pretrial motion that employee could present other evidence. 2. District court erred in using two, rather than four, year limitation period in light of Jones v. R.R. Donnelley.

Hillig v. Rumsfeld , 381 F.3d 1028, 94 FEP 747 (10th Cir. 2004). Panel : HOLLOWAY, McWilliams [O'BRIEN, dissenting]. Claim on Appeal : Title VII retaliation . Disposition Below : Judgment as a matter of law after a jury verdict [defendant]. Outcome on Appeal : Reversed, reinstating $25,000 verdict [plaintiff]. Grounds: Plaintiff claimed that retaliatory negative job references damaged her ability to be transferred to the Department of Justice. District court erred in legal conclusion that a plaintiff establishing an "adverse employment action" had to prove the loss of a specific job. Circuit standard is that act that causes more than de minimis impact on plaintiff's future employment opportunities is actionable ( noting split in circuits, citing support from Third, Ninth and D.C. Circuits ). District court's analysis conflated "adverse" action with parallel (but analytically distinct) "tangible employment action" under Faragher / Ellerth .

Foster v. Ruhrpumpen, Inc. , 365 F.3d 1191, 93 FEP 1511 (10th Cir. 2004). Panel : HENRY, Holloway, O'Brien. Claim on Appeal : ADEA hiring. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : New acquiring company refused to hire 37, primarily older employees of predecessor. Because successor never employed plaintiffs, they could not be named for wrongful termination. Failure to hire claims sufficiently implied in charges filed by 23 plaintiffs that incorrectly described the action is a "termination"; four other plaintiffs could piggyback on those charges under single filing rule(which expressly alleged that they were brought on behalf of all similarly situated persons).

Abuan v. Level 3 Communications Inc. , 353 F.3d 1158, 93 FEP 94 (10th Cir. 2003). Panel : SEYMOUR, Halloway, Ebel. Claim on Appeal : ADEA/Title VII termination (national origin) and retaliation. Disposition Below : Judgment after jury trial;$5 million compensatory damages and $5 million punitive damages (remitted to $300,000), $300,000 back pay (remitted to $56,252.25 plus an equal amount in liquidated damages); $412,504.50 total, plus front pay of $245,160 [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Evidence support ADEA verdict - where plaintiff in his 50s was demoted from job, replaced by 35 year old lacking the technical expertise of plaintiff, and the technical duties had to be distributed to younger workers. Liquidated damages supported by record defendant's argument was rendered moot by simultaneous award of punitive damages for his Title VII claim. Vice president's statement that he resigned because of the company's unethical treatment of plaintiff was non- hearsay party admission, FRE 801(d)(2)(D). Jury instruction issues waived because employer did not tender instructions and did not benefit from the futility exception. Court not obliged to instruct on definition of adverse employment action. Plaintiff's closing argument not prejudicial On front pay, district court did not abuse discretion in finding that reinstatement was infeasible, but erred in calculating sum by not taking into account effect of discriminatory acts on plaintiff's rate of promotion.. Injunction that employer not retaliate against witnesses who testified in case in behalf of plaintiff sustained.

Croy v. Cobe Laboratories, Inc. , 345 F.3d 1199, 92 FEP 1218 (10th Cir. 2003). Panel : MCKAY, Henry, Brorby. Claim on Appeal : 1.Title VII discrimination (sex); 2.ADA reasonable accommodation; Contract [not discussed here]. Disposition Below : 1.Summary judgment [defendant]; 2.Summary judgment [defendant]. Outcome on Appeal : 1Affirmed on other grounds [defendant]; 2.Affirmed [defendant]. Grounds : Continuous failure to promote ("glass ceiling") under Morgan constitutes single practice, but diminished performance evaluations not part of some practice.. Need to take leaves because of MS did not constitute substantially limit plaintiff in major life activity of working.;

Doebele v. Sprint/United Mgt. Co. , 342 F.3d 1117, 14 A.D. Cases 1281 (10th Cir. 2003). Panel : SEYMOUR, Anderson, O'Brien. Claim on Appeal : 1.ADA termination claim; 2.ADA retaliation claim; FMLA and Kan. state law tort [not discussed here]. Disposition Below : 1.Summary judgment [defendant]; 2.Summary judgment [defendant]. Outcome on Appeal : 1.Reversed [plaintiff]; 2.Reversed [plaintiff]. Grounds : 1.Bipolar disorder, ADD and hypothyroidism did not significantly limit plaintiff in major life activity of communicating and interacting with others. Undisputed testimony was that plaintiff could communicate coherently. Assuming that interacting with others is a major life activity, record was undisputed that outside of work she experienced no problem interacting on a regular basis. Nonetheless, the record presented a genuine issue of material fact about whether employer regard her as disabled in the area of work, where management harbored fear that plaintiff could become unhinged and physically harm her co- workers. There was no reasonable, medical judgment about that risk; management may have stigmatized plaintiff as mentally imbalanced.; 2.Prima facie case conceded (she was fired, warning coincided with requests for accommodation). Reason plaintiff was supposedly fired (poor attendance) rebutted by direct evidence (e- mails criticizing plaintiff's motives for taking leave, complaints addressed to plaintiff about having to distribute her work while she was absent) and pretext evidence (others with spotty attendance not punished, absences were mostly pursuant to FMLA, evidence that employer ramped up plaintiff's workload, warnings undocumented, procedural irregularities). District court abused its discretion in considering evidnence presented in a surreply brief that plaintiff had no opportunity to answer.

Crumpacker v. Kansas Dep't of Human Resources , 338 F.3d 1163, 92 FEP 728 (10th Cir. 2003). Panel: MURPHY, Baldock, Hartz. Claim on Appeal : Title VII discrimination (sex) and retaliation. Disposition Below : Summary judgment denied on sovereign immunity [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Affirming applicability of Title VII anti- retaliation provisions to states under Eleventh and Fourteenth Amendments.

Stinnett v. Safeway, Inc. , 337 F.3d 1213, 92 FEP 672 (10th Cir. 2003). Panel : LUCERO, Seymour, Hartz. Claim on Appeal : 1.Title VII/Colo. state law discrimination claim; 2.Title VII/Colo. state law harassment claim. Disposition Below : 1.Summary judgment [defendant]; 2.Summary judgment [defendant]. Outcome on Appeal : 1.Reversed [plaintiff]; 2.Affirmed [defendant]. Grounds : Transfer from skilled technical work to wrapping meat was, in essence, a demotion and thus an adverse employment action. Employer proffered explanation that skilled work was temporary assignment, job ended and practice is to return employee to former position. But whether the job ended presented a genuine issue of material fact, and assignments of comparable work went to less- experienced men. Also, there was evidence that men in her department received superior training, while women had to clean up under checkstands and serve on- call at remote locations.; 2.Above- conduct not sufficiently severe or pervasive to constitute harassment.

Davidson v. America Online, Inc. , 337 F.3d 1179, 14 A.D. Cases 1185 (10th Cir. 2003). Panel : ROBINSON, Lucero, Hartz. Claim on Appeal : 1.ADA failure to hire; 2.ADA reasonable accommodation. Disposition Below : 1.Summary judgment [defendant]; 2.Summary judgment [defendant]. Outcome on Appeal : 1.Reversed [plaintiff]; 2.Reversed [plaintiff]. Grounds : 1.Deaf plaintiff applied to work in 1997 and 1998. Challenge to prior failure to hire time- barred by Morgan , because they are discrete acts. "Discovery rule" does not help plaintiff, as he was aware of the company's decision not to hire him, even if it maintained policy against hiring the deaf. Plaintiff presents genuine issue of material fact whether voice- phone experience is an essential function for non- voice- phone position.; 2.Restructuring of job to eliminate requirement of voice- phone experience presents genuine issue of material fact.

Hiller v. Oklahoma , 327 F.3d 1247, 91 F.3d 1341 (10th Cir. 2003). Panel : SEYMOUR, McConnell, Krieger. Claim on Appeal : Title VII termination (sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Employee failed to obtain right- to- sue letters from both EEOC and U.S. Justice Department, but owing to delays following September 11, 2001 terrorist attack, latter requirement can be equitably excused.

Wells v. Colorado Dep't of Transport. , 325 F.3d 1205, 91 FEP 1114 (10th Cir. 2003). Panel : HARTZ, Kelly, McKay. Claim on Appeal : Title VII/ §1983 retaliation; First Amendment claim [not discussed here]. Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds: Five acts deemed not adverse employment acts: removal from project, reprimand at work site, supervisor's vow to remove plaintiff from his residency, supervisor's refusal to disciple a co- worker. However, transfer from position with significant responsibilities to counting cars at a street corner for 2 months, and eventual termination, were adverse. Although five months separated internal EEO complaint and transfer, plaintiff had been absent from site almost the entire time on medical leave. Plaintiff was also terminated shortly after her supervisor learned she filed an EEOC charge that specifically named him. Agency's reason for terminating her (she'd exhausted sick leave and could not be certified ) was countered by record that manager did not attempt to discuss plaintiff's return to work under any conditions, thus possibly pre- textual.

Minshall v. McGraw Hill Broadcasting Co., Inc. , 323 F.3d 1273, 91 FEP 1095 (10th Cir. 2003). Panel : MURPHY, Baldock, O'Brien. Claim on Appeal : ADEA termination case. Disposition Below : Judgment after jury trial; $212,326 back pay (plus an equal amount in liquidated damages); front pay of $137,500 [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Plaintiff, an on- air reporter, did not have his contract renewed after new news director began to remake broadcast. Employer claimed that plaintiff was fired for poor performance. Liability finding supported by sufficient evidence. Experienced staff testified that plaintiff's performance had been steady before and after new news director and not deteriorated. Pattern of firing staff over 40 also probative. News director also prone to make statements about wanting to reach a younger demographic, plaintiff needed a "younger presentation," Willfulness finding support by sufficient evidence. Co- worker's testimony about additional acts of age discrimination admissible. On mitigation, plaintiff made reasonable effort to locate work in journalism/public relations.

Boyer v. Cordant Technologies, Inc. , 316 F.3d 1137, 90 FEP 1249 (10th Cir. 2003). Panel : BALDOCK, Kelly, Lucero. Claim on Appeal : Title VII harassment (race and sex). Disposition Below : Summary judgment [defendant]. Outcome on Appeal : Reversed [plaintiff]. Grounds : Timing issue remanded in light of Morgan decision.

Juarez v. ACS Gov't Solutions Group, Inc. , 314 F.3d 1243, 90 FRP 1104 (10th Cir. 2003). Panel: MCKAY, Seymour, Murphy. Claim on Appeal : Title VII termination (race, color and national origin). Disposition Below : Judgment after jury trial; $22,500 back pay; $250,000 punitive damages [plaintiff]. Outcome on Appeal : Affirmed [plaintiff]. Grounds : Plaintiff (Mexican- American) was one of the computer operators terminated during a reduction in force. Company retained other operator who were not Latinos and who had less experience, tenure and talent than plaintiff. Spreadsheet used to support termination decision was facially inaccurate, did not list actual selection criteria and was contradicted by plaintiffs personnel evaluations. Decision- maker also prone to making derogatory remarks about Mexican employees immediately prior to RIF. Punitive damages affirmed; decision- makers had received EEO training, and covered up the reasons for plaintiff's discharge.

Trainor v. Apollo Metal Specialties, Inc. , 318 F.3d 976, 13 A.D. Cases 1441 (10th Cir. 2003). Panel : SEYMOUR, Aldisert , Ebel. Claim on Appeal : ADA termination. Okla. state law claims [not discussed here]. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether employer had sufficient number of employees, centering on whether majority shareholder was also an employee.

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