Sunderman v. Westar Energy, Inc.

FILED
United States Court of Appeals
Tenth Circuit

January 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

DEREK SUNDERMAN,

Plaintiff-Appellant,

v. No. 08-3059
(D.C. No. 2:05-CV-02347-JAR)
WESTAR ENERGY, INC., (D. Kan.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

Derek Sunderman appeals the district court’s entry of summary judgment in

favor of his prior employer, Westar Energy, Inc. (Westar), on his claim that he

was terminated from his job in retaliation for engaging in protected activity under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 I. Background.

In her published “Memorandum and Order Granting Defendant’s Motion

for Summary Judgment,” the district judge thoroughly detailed the complicated

factual background pertaining to plaintiff’s retaliation claim, see Sunderman v.

Westar Energy, Inc., 520 F. Supp. 2d 1269, 1271-76 (D. Kan. 2007), and we

commend the district judge for her excellent work in this case. Further, we see no

reason to repeat her efforts here.

Accordingly, we incorporate by reference the district judge’s lengthy

statement of “Uncontroverted Facts” regarding the following matters:

(1) Westar’s business operations as a public utility company, id. at 1271;

(2) plaintiff’s employment history with Westar and his position as a “Manager,

Origination” in Westar’s Generation and Marketing Group, id. at 1271-72; (3) the

background regarding Westar’s creation of two Manager, Origination positions

and the placement of plaintiff and Tony Delacluyse in the newly-created

positions, id. at 1272; (4) Westar’s 2002-2003 corporate reorganization, id.

at 1272-75; (5) Westar’s elimination of the Manager, Origination positions and

the transfer of plaintiff’s and Delacluyse’s job responsibilities to Westar’s

Customer Support Group, id. at 1275-76; (6) plaintiff’s placement in Westar’s

Career Placement Center program in June 2003, id. at 1276; (7) Westar’s

termination of plaintiff’s employment in August 2003, id.; (8) plaintiff’s

complaint to Westar’s Human Resources (HR) Department in March 2002

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regarding a supervisor’s alleged offensive statements of a sexual nature, id.;

(9) the written memorandum that plaintiff wrote to his then-supervisor, John

Olsen, on October 28, 2002, in which plaintiff alleged that Westar had retaliated

against him for submitting his complaint to the HR Department, id.; (10) the

complaint that plaintiff filed with the Kansas Human Rights Commission (KHRC)

on November 7, 2002, which was later cross-filed with the Equal Employment

Opportunity Commission, in which plaintiff alleged that Westar had reduced his

compensation and suspended him in retaliation for his complaints to the HR

Department and John Olsen, id.; and (11) the written reprimand for alleged

insubordination that John Olsen gave plaintiff on January 14, 2003, which was

subsequently removed from plaintiff’s personnel file after the matter was

investigated by the HR Department, id.

II. Summary Judgment Standards.

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

the same legal standards used below.” Burke v. Utah Transit Auth. & Local 382,

462 F.3d 1253, 1257 (10th Cir. 2006). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In applying this

standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Burke, 462 F.3d at 1258 (quotation

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omitted). “Moreover, on a motion for summary judgment we cannot evaluate

credibility nor can we weigh evidence.” Nat’l Am. Ins. Co. v. Am. Re-Ins. Co.,

358 F.3d 736, 742 (10th Cir. 2004) (quotation omitted).

III. Plaintiff’s Retaliation Claim.

“In analyzing retaliation claims [under Title VII], we apply the three-part

test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).”

Somoza v. Univ. of Denver, 513 F.3d 1206, 1211 (10th Cir. 2008). “Pursuant to

this test, [plaintiff] bears the initial burden of establishing a prima facie case of

retaliation.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir. 2008)

(quotation omitted). “To establish a prima facie case of retaliation, a plaintiff

must demonstrate (1) that he engaged in protected opposition to discrimination

[under Title VII], (2) that a reasonable employee would have found the

challenged action materially adverse, and (3) that a causal connection existed

between the protected activity and the materially adverse action.” Argo v. Blue

Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (footnote

omitted).

If plaintiff meets his burden of establishing a prima facie case of

retaliation, then Westar “must offer a legitimate, non-retaliatory reason for [its]

employment action against [plaintiff].” Vaughn, 537 F.3d at 1150 (quotation

omitted; first alteration in original). Should Westar satisfy this burden, plaintiff

then “bears the ultimate burden of demonstrating that [Westar’s] proffered reason

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is pretextual.” Id. (quotation omitted). Plaintiff “may show pretext by

demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the employer’s proffered legitimate reasons for its action that

a reasonable factfinder could rationally find them unworthy of credence and

hence infer that the employer did not act for the asserted non-[retaliatory]

reasons.” Id. at 1153 (quotation omitted; alteration in original).

In the district court proceedings, plaintiff alleged that Westar eliminated his

position as a Manager, Origination in Westar’s Generation and Marketing Group

and eventually terminated his employment in retaliation for his filing of a

complaint with the KHRC on November 7, 2002. In his KHRC complaint,

plaintiff had asserted separate retaliation claims against Westar related to his

complaint to Westar’s HR Department in March 2002 and his written

memorandum to John Olsen in October 2002. See Aplt. App. at 291-92.

Specifically, plaintiff claimed that, in retaliation for his complaints to the HR

Department and Olsen, Westar had reduced his compensation and Olsen

suspended him on October 31, 2002. Id. With regard to plaintiff’s claim that he

was terminated by Westar in retaliation for filing his KHRC complaint, Westar

countered that plaintiff’s termination was instead “based on a business decision as

to what was best for servicing [Westar’s] municipal and retail customer

accounts.” Sunderman, 520 F. Supp. 2d at 1280. In response to this proffered

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reason, plaintiff “contend[ed] that several pieces of evidence suggest[ed] that the

reason is ‘unworthy of belief’ and therefore a pretext for retaliation.” Id.

In her published decision granting Westar’s motion for summary judgment,

the district judge concluded that plaintiff had failed to establish a prima facie case

of retaliation because he had insufficient evidence showing a causal connection

between the filing of his complaint with the KHRC and his termination. Id.

at 1279-82. In the alternative, and also in support of her causation analysis, the

district judge concluded that plaintiff had failed to put forth sufficient evidence to

create a genuine issue of material fact for trial as to whether Westar’s proffered

reason for plaintiff’s termination was unworthy of belief and thus a pretext for

retaliation. Id. at 1280-82. With the exception of the matter discussed below, we

agree with the district judge’s well-reasoned analysis of both the causation and

pretext issues, and we therefore affirm the entry of summary judgment in favor of

Westar for substantially the same reasons relied on by the district judge. More

specifically, we note that we are particularly persuaded by the following

reasoning of the district judge with regard to the causation issue:

The only alleged retaliatory conduct that occurred after the
filing of his [complaint with the KHRC] was the January 14, 2003
write-up and plaintiff’s job elimination. The write-up was removed
from plaintiff’s file and did not have any adverse consequences on
his employment. Moreover, the write-up was issued by Olsen [in the
Generation and Marketing Group]; the evidence is that Wilson [in the
Customer Support Group] was the decisionmaker [with regard to
plaintiff’s termination] and that there was no nexus between the

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 write-up and plaintiff’s termination. This hardly constitutes a pattern.

The Court agrees with Westar that plaintiff cannot prove a
prima facie case that he was discharged in retaliation for filing the
[complaint] with the KHRC. The decision to reorganize and move
plaintiff’s job responsibilities back to the Customer Support Group
was in process before plaintiff filed administrative charges in
November 2002. Both Manager, Origination positions were subject
to the reorganization. While Wilson was aware of plaintiff’s initial
grievance filed with HR, there is no evidence that he knew plaintiff
had filed the KHRC [complaint] when he initiated the reorganization
or when he made the decision to have the Customer Support Group
assume those job responsibilities and not to offer plaintiff one of the
open positions in his group. Similarly, while Olsen may have been
aware of plaintiff’s KHRC [complaint], it is uncontroverted that he
was unaware plaintiff[’s] and Delacluyse’s positions would not be
transferred to Wilson as part of the reorganization.

Id. at 1279-80.

One point does merit further discussion, however. Plaintiff claims the

district judge erred because, in analyzing the causation and pretext issues, she

refused to consider the alleged retaliatory acts that occurred before he filed his

complaint with the KHRC (i.e., the reduction in plaintiff’s compensation and his

suspension on October 31, 2002). See Sunderman, 520 F. Supp. 2d at 1278-79

(“Because plaintiff did not include his initial grievance [in March 2002] or

subsequent memorandum [in October 2002] as protected activity in the Pretrial

Order, the Court will not consider either as a basis for plaintiff’s retaliation claim,

and will instead analyze the causation issue in the context of the formal complaint

filed with the KHRC on November 7, 2002.”). In her order denying plaintiff’s

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motion under Fed. R. Civ. P. 59(e) to alter or amend judgment, the district judge

explained her reasoning on this issue as follows:

In its [Summary Judgment] Order, this Court held that plaintiff
may not rely on prior acts of alleged retaliation that predated his
administrative charge and declined to consider this as evidence of
causation. As discussed at length in the Order, plaintiff generally
asserts that he engaged in a protected activity in approximately
March [the complaint to the HR Department] and October [the
written memorandum to John Olsen] of 2002. Each of these events
would be the basis for a separate and distinct claim of retaliation,
which plaintiff failed to identify in the Pretrial Order. Accordingly,
the Court determined that any alleged protected activity or instances
of retaliation prior to the filing of plaintiff’s administrative charge
were not the basis of plaintiff’s claim as set forth in the Pretrial
Order and would not be considered as evidence of causation.
Plaintiff has failed to show why the Court should reconsider this
holding.

Plaintiff also argues that the Court’s Order “ignored” the
Supreme Court’s ruling in National Railroad Passenger Corp. v.
Morgan[, 536 U.S. 101 (2002)]. In that hostile work environment
case, the Supreme Court held that a continuing violation theory of
discrimination is not permitted for claims [based on] discrete acts of
discrimination or retaliation. The Court noted, however, that
plaintiffs are not barred from using time-barred acts as background
evidence in support of a timely claim. Plaintiff argues that the
Court’s failure to consider what he characterizes as “background
evidence” is contrary to the ruling in Morgan. Plaintiff’s reliance on
the statement in Morgan regarding background evidence overlooks
the analysis of causation in an employment retaliation case. At the
prima facie stage of a retaliation case, the plaintiff must show that a
causal connection exists between the adverse employment action and
the protected activity sufficient to justify an inference of retaliatory
motive. In other words, for a protected activity to cause the adverse
employment action, the adverse action must necessarily occur after
the protected activity. Here, plaintiff sought to rely on alleged
retaliatory acts that occurred prior to his protected activity–the filing
of his EEOC charge. This “background evidence” is antithetical to

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 the required showing that engaging in the protected activity caused
or was in someway connected to the alleged retaliatory conduct.

Sunderman v. Westar Energy, Inc., 2008 WL 320376, at *1-2 (D. Kan. Jan. 30,

2008) (footnotes omitted).

With all due respect, we disagree with the district court’s analysis of this

issue. Although the plaintiff in Morgan did assert a hostile work environment

claim, he also asserted separate timely claims based on “discrete discriminatory

and retaliatory acts.” Morgan, 536 U.S. at 104. Further, the Supreme Court was

addressing the latter claims when it held that Title VII does not “bar an employee

from using . . . prior [time-barred discrete discriminatory and retaliatory] acts as

background evidence in support of a timely claim.” Id. at 113. As a result, while

we agree with the district court that plaintiff failed to assert separate causes of

action for retaliation based on the retaliatory acts that allegedly followed his

complaint to the HR Department in March 2002 and his written memorandum to

John Olsen in October 2002 (i.e., the reduction in plaintiff’s compensation and

plaintiff’s suspension), the court should have considered the prior retaliation

alleged by plaintiff as background evidence when considering plaintiff’s claim

that he was terminated in retaliation for filing his complaint with the KHRC.

This is especially true here since: (1) plaintiff generally referred to the prior acts

of retaliation in his “Factual Contentions” in the Pretrial Order, see Aplt. App.

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at 15-16; and (2) the prior acts of retaliation are the predicate wrongs in the

complaint that plaintiff filed with the KHRC, id. at 291-92.

That said, we see no reversible error here. Instead, we conclude that any

evidence concerning the alleged reduction in plaintiff’s compensation and/or

plaintiff’s suspension was insufficient, either standing alone or in combination

with plaintiff’s other evidence, to raise a jury question on the causation and

pretext issues that are associated with plaintiff’s termination. To begin with, the

alleged reduction in plaintiff’s compensation was presumably implemented by

Westar’s Generation and Marketing Group, and there is no evidence in the record

linking it to Terry Wilson and the Customer Support Group. Consequently, the

alleged reduction in plaintiff’s compensation is insufficient to raise an inference

of retaliation with regard to the entirely separate decision of Wilson and the

Customer Support Group to not transfer plaintiff’s position to the Customer

Support Group as part of Westar’s corporate reorganization in 2002-2003.

Likewise, the fact that plaintiff was suspended on October 31, 2002, by his

then-supervisor in the Generation and Marketing Group, John Olsen, allegedly for

complaining about retaliation for making his complaint to the HR Department in

March 2002, is also insufficient to raise an inference of retaliation with regard to

the separate decision of Wilson and the Customer Support Group to not transfer

plaintiff’s position to the Customer Support Group. Indeed, as the district court

found, although Olsen was involved in the reorganization process and, in fact,

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was the one who ultimately informed plaintiff and Delacluyse that their job

responsibilities were being transferred to the Customer Support Group, it is

uncontroverted that “[n]either Olson nor [his supervisor in the Generation and

Marketing Group] was involved in the decision by Wilson as to what would

happen [to plaintiff] when the Manager, Origination responsibilities were shifted

to the Customer Support Group.” Sunderman, 520 F. Supp. 2d at 1275.

Moreover, plaintiff has no evidence to support a “cat’s paw” or “rubber stamp”

biased-subordinate claim with regard to Olsen and Wilson or any of the other

decisionmakers in the Customer Support Group. See EEOC v. BCI Coca-Cola

Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006) (noting that

“‘cat’s paw’ refers to a situation in which a biased subordinate, who lacks

decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate

scheme to trigger a discriminatory employment action,” and that “[t]he ‘rubber

stamp’ doctrine . . . refers to a situation in which a decisionmaker gives

perfunctory approval for an adverse employment action explicitly recommended

by a biased subordinate”).

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 The judgment of the district court is AFFIRMED. To the extent that

plaintiff is also appealing the district court’s denial of his motion under

Fed. R. Civ. P. 59(e) to alter or amend the judgment, we AFFIRM that denial. 1

Entered for the Court

Michael W. McConnell
Circuit Judge

1
Although plaintiff’s notice of appeal stated that he was appealing the
district court’s denial of his Rule 59(e) motion, he did not advance any
substantive arguments challenging the denial in his opening brief, and he did not
file a reply brief. Consequently, plaintiff has waived any issues pertaining to the
denial of his Rule 59(e) motion.

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