Fresh from the Tenth Circuit: A Sprint RIF age-discrimination (and retaliation) case tanks, while two public school administrators who won a $160,515 civil rights jury verdict hit the rocky shoals of qualified immunity and municipal liability.
Hinds vs. Sprint/United Management Co., No. 07-3027 (10th Cir. Apr. 21, 2008) : The Sprint company made a recent trip to the Supreme Court to reverse the Tenth Circuit in an ADEA RIF case, Sprint/United Management Co. v. Mendelsohn. This latest case, decided on summary judgment, is not destined to make the same splash, but does contribute incrementally to an ongoing dialogue among the federal courts about the function of the prima facie case under the McDonnell Douglas pretext method of proof.
The employee in this case was a 48-year-old project manager with charge of several Sprint call centers. By the company’s reckoning, Hinds’ interpersonal skills left something to be desired (i.e., Hinds “had developed certain communication problems in dealing with his peers, customers, and supervisors”). Curiously, Hinds’ did not deny the criticism but thought it irrelevant to his performance: “Although [director] Ms. Barr communicated this to Mr. Hinds, apparently he did not comply, explaining that he simply had a different ‘management paradigm’ than his supervisors and that, as long as he met objective goals, how well he got along with peers, management, and clients should not matter.” (Now as a lawyer, you might be tempted to stop reading right here — any veteran of the summary judgment wars can already tell where this is going. But read on for an object lesson in case selection.)
Predictably, for someone whose communications skills had come under attack, Hinds became his own worst enemy. He began sending senior management (CEO on down) e-mails, and even a PowerPoint presentation, arguing that the latest criticisms of his performance were wrong, that his new direct supervisor was less qualified than he was, and that the criticisms of his performance might have been motivated by age discrimination. (Already this sounds like a doomed case, even before we hear the defense side.) Without a trace of irony, Hinds was criticized in a subsequent 2003 performance review as being “‘high maintenance’ for consuming high-level management and human resources time.” Things go on in this vein for a while, but the inevitable RIF, termination and lawsuit (charging discrimination and retaliation) followed.
The panel affirmed summary judgment on both claims. It rejected Hinds’ argument that a jury could 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 decision makers). It also found that, to the extent that any of Hinds’ numerous complaints constituted protected activity, some eleven months passed between the last unambiguous complaint of discrimination and the termination, vitiating causation.
The panel takes a moment to discuss the emerging issue of whether a court (whether trial or reviewing) ought to dwell on the plaintiff’s prima facie case after the employer proffers a “legitimate, non-discriminatory” reason for the decision. A recent panel in the D.C. Circuit said “no,” but the present panel demurs in a footnote:
“Some may question whether we should pause to assess the existence of a prima facie case when, at summary judgment, an employer puts forth a nondiscriminatory reason for its adverse employment action. See, e.g., Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1225-26 (10th Cir. 2003) (Hartz, J., writing separately); Brady v. Office of the Sergeant at Arms, — F.3d —, 2008 WL 819989 (D.C. Cir. 2008). Although we readily concede that the prima facie case requirement may sometimes prove a sideshow to the main action of pretext, this court has indicated that it reserves the right to undertake each step of the Supreme Court’s McDonnell Douglas framework in analyzing discrimination and retaliation claims on summary judgment, and has not infrequently dismissed such claims for failure to establish a prima facie case. See Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1183 (10th Cir. 2002) (concluding that plaintiff failed to make a prima facie case of retaliation); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (emphasizing that, although the McDonnell Douglas “sequential analytical model” drops out after a trial on the merits, it applies on summary judgment). And, so long as McDonnell Douglas remains the law governing our summary judgment analysis, it seems to us that if an employee fails to present even the limited quantum of evidence necessary to raise a prima facie inference that his or her protected activity led to an adverse employment action, it can become pointless to go through the motions of the remainder of the McDonnell Douglas framework to determine that unlawful retaliation was not at play.”
Milligan-Hitt vs. Board of Trustees, No. 06-8086 (10th Cir. Apr. 21, 2008): Though the opinion spares details, the case involves two women — administrators 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 superintendant bore any anti-gay animus against the two women. When the district was reorganized, neither woman had her contract renewed.
Though a jury found that the school district made Dougherty a “decision maker” — for purposes of imputing liability to the district — the Tenth Circuit reversed. The panel noted that 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)), and that the district court erred in instructing the jury on this issue. 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, foundered because of 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. Lawarence v. Texas, 539 U.S. 558 (2003), which overruled Bowers, came too late to help the plaintiffs.