Wood v. City of Topeka, KS

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 12 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

DENNIS G. WOOD,

Plaintiff-Appellant,

v. No. 00-3060
(D.C. No. 98-CV-4011-DES)
CITY OF TOPEKA, KANSAS, (D. Kan.)
Topeka Housing Authority,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Plaintiff-appellant Dennis G. Wood sued his former employer,

defendant-appellee City of Topeka, alleging discrimination in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and

retaliation in violation of the First Amendment. 1
He appeals the district court’s

entry of summary judgment. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and we affirm.

BACKGROUND

Wood was fifty-two years old when the City fired him from the position of

maintenance worker for the Topeka Housing Authority. His personnel record

shows that his actions were the basis of two sexual harassment lawsuits filed by

two of his co-workers against the City in 1993. The cases were settled, and Wood

was suspended for thirty days without pay for each complaint.

In January 1997, Wood was again the subject of two co-workers’ sexual

harassment complaints. Around the same time, a tenant of the housing authority

also made a sexual harassment complaint. The City investigated the allegations

and concluded that, with regard to the workplace complaints, Wood had engaged

1
Wood’s complaint also alleged sexual harassment, gender discrimination,
§ 1983 violations of equal protection and due process, breach of express and
implied contract, wrongful discharge, intentional infliction of emotional distress,
negligence, and loss of consortium. Wood does not challenge the district court’s
dismissal of these claims on appeal.

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in inappropriate conduct in violation of the City’s sexual harassment policy. By

letter dated February 7, 1997, the City advised Wood of its conclusion, referenced

his earlier suspensions, and notified him that his employment was terminated. In

the ensuing wrongful discharge lawsuit, the district court entered summary

judgment in favor of the City. This appeal followed.

DISCUSSION

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court.” Bullington v. United Air

Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is

appropriate on a record demonstrating “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “[W]e view the factual record and inferences

therefrom in the light most favorable to the nonmoving party.” Bullington , 186

F.3d at 1313.

First Amendment Claim

“[A] public employer cannot retaliate against an employee for exercising

his constitutionally protected right of free speech.” Finn v. N. M. , No. 00-2276,

2001 WL 502399, at *3 (10th Cir. May 11, 2001) (quotation omitted). A First

Amendment retaliation claim is evaluated under a well-established balancing test

requiring: (1) a determination of “whether the employee’s speech involves a

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matter of public concern” and (2) a balancing of the employee’s interest “against

the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Id. (quotations omitted). If this

“balance tips in favor of the employee, the employee then must show that the

speech was a substantial factor or a motivating factor” in the challenged

employment decision. Id. (quotations omitted) Finally, if the employee

establishes that the speech was a factor, “the employer may demonstrate that it

would have taken the same action against the employee even in the absence of the

protected speech.” Id. (quotation omitted).

Here, Wood alleged that he was fired for making it known that his

supervisor endangered the health, safety, and welfare of housing department

tenants by refusing to respond to emergency repair requests. In evaluating this

claim, the district court reached the third step of the applicable test. The court

determined that Wood’s statements involved a matter of public concern that

outweighed the State’s interest in efficiency. It concluded, however, that Wood

had not sufficiently established that his protected speech was a motivating factor

in his discharge.

We agree with the district court that Wood provided no more than a

scintilla of evidence in support of his claim. Although his primary evidence,

Wood’s affidavit, is specific as to his perception of the supervisor’s

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shortcomings, it provides no connection between Wood’s discharge and his

speaking out about the supervisor’s perceived failings. Moreover, we have

viewed the affidavit, as Wood urges, in “the total fabric of the City’s overall

animosity.” Appellant’s Br. at 15-16. We conclude that the district court

properly resolved Wood’s First Amendment claim.

Age Discrimination Claim

On appeal, Wood claims that the district court failed to credit his argument

that he presented direct evidence of age discrimination, and that the district court

reached an incorrect result in applying the burden-shifting analysis for

circumstantial cases, first articulated in McDonnell Douglas Corp. v. Green , 411

U.S. 792, 802-04 (1973).

Wood asserts that evidence of his supervisor repeatedly making comments

about how he would fire old employees constituted direct proof of intentional

discrimination.

A plaintiff proves discrimination through direct evidence by
establishing proof of an existing policy which itself constitutes
discrimination.

Statements which on their face are expressions of personal
opinion, however, can only support an inference of discrimination if
the trier of fact finds the inference reasonable, and so constitute only
circumstantial or indirect evidence of discrimination against the
plaintiff.

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Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir.), cert. denied , 121 S.

Ct. 182 (2000) (citations and quotations omitted).

At most, the cited supervisor’s comments were an expression of personal

opinion by an individual without hiring and firing authority. “However

inappropriate [these] statements may be, [they] are not direct evidence of

causation on the employment decision.” Id. (quotation omitted).

The district court properly addressed Wood’s age discrimination claim

under the burden-shifting analysis. Using this three-step framework, the plaintiff

“bears the initial burden of establishing a prima facie case by a
preponderance of the evidence. One way a plaintiff may establish a
prima facie case of wrongful termination is by showing that: (1)[ ]he
belongs to a protected class; (2)[ ]he was qualified for [his] job; (3)
despite [his] qualifications, [ ]he was discharged; and (4) the job
was not eliminated after [his] discharge. If the plaintiff establishes
[his] prima facie case, a rebuttable presumption arises that the
defendants unlawfully discriminated against [him]. The defendants
must then articulate a legitimate, nondiscriminatory reason for the
adverse employment action suffered by the plaintiff. If the
defendant is able to articulate a valid reason, the plaintiff can avoid
summary judgment only if [ ]he is able to show that a genuine
dispute of material fact exists as to whether the defendant's
articulated reason was pretextual.”

Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1165 (10th Cir. 2000) (quoting

Perry v. Woodward , 199 F.3d 1126, 1135 (10th Cir. 1999) (alteration in original).

The underlying rationale is that an employee’s “prima facie case, combined with

sufficient evidence to find that the employer’s asserted justification is false, may

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permit the trier of fact to conclude that the employer unlawfully discriminated.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

Initially, the court entered summary judgment on Wood’s claim based on its

determination that Wood had failed to establish a prima facie case. Subsequently,

Wood filed a motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment

on this issue. On reconsideration, the court determined that Wood had indeed

established a prima facie case, thus allowing him to proceed to the later stages of

the McDonnell-Douglas analysis. The court concluded, however, that the City

had come forward with Wood’s history of sexual harassment as a

nondiscriminatory reason for discharging him and that Wood had failed to provide

evidence that the City’s proffered reason was pretextual. Notwithstanding its

changed analysis, the court re-affirmed its previous summary judgment ruling.

For purposes of the McDonnell-Douglas analysis, we assume on appeal that

Wood presented evidence establishing a prima facie case of age discrimination

and that the burden shifted to the City to provide a legitimate, non-discriminatory

explanation for its discharge decision. Like the district court, we conclude that

the City came forward with such an explanation–the record of sexual harassment

complaints made against Wood. Thus, it was Wood’s task to show that the City’s

justification was pretextual.

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 In some instances, evidence of discriminatory comments may be relevant to

the issue of pretext. See Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1209-10

(10th Cir. 1999). To be significant evidence of pretext, however, the

objectionable conduct or remarks should be attributable to an individual

responsible for the employment decision. See Kendrick v. Penske Trans. Serv.,

Inc. , 220 F.3d 1220, 1231 (10th Cir. 2000) (remarking that, where manager was

not “simply a rubber stamp or conduit for an employment decision made in reality

by underlings, he was not responsible for an underling’s allegedly discriminatory

actions); see also Reeves , 530 U.S. at 151 (evaluating age-based comments made

by the individual “principally responsible” for plaintiff’s firing).

Wood’s speculation that his supervisor “had the ability to join with [others]

to trump up sexual harassment claims,” Appellant’s Br. at 12, does not meet this

qualification. Under the circumstances of the present case, the supervisor’s

comments do not suffice to raise an inference of pretext. 2

The record reveals no other reasons to disbelieve the City’s proffered

explanation for terminating Wood’s employment. Accordingly, Wood has not

created a genuine issue of material fact on his age discrimination claim, either by

showing direct evidence of discrimination or by demonstrating pretext under the

2
We note that these comments were characterized in Wood’s deposition as
“lunchroom banter.” Appellant’s App. at 347.

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McDonnell Douglas framework. The district court correctly granted the City’s

motion for summary judgment on this claim.

The judgment of the district court is AFFIRMED.

Entered for the Court

Michael R. Murphy
Circuit Judge

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