Jones v. Oklahoma City Public Schools

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
August 24, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JUDY F. JONES,

Plaintiff–Appellant,

v.

OKLAHOMA CITY PUBLIC
SCHOOLS, INDEPENDENT SCHOOL
DISTRICT NO. 89 OF OKLAHOMA
CITY, OKLAHOMA, No. 09-6108

Defendant–Appellee.
________________________________

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Amicus Curiae.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:08-CV-00562-C)

Scott F. Brockman (Stanley M. Ward and Woodrow K. Glass with him on the briefs),
Ward & Glass, LLP, Norman, Oklahoma, for the Plaintiff–Appellant.

Laura L. Holmes, The Center for Education Law, Inc., Oklahoma City, Oklahoma, for the
Defendant–Appellee.

James M. Tucker, James L. Lee, Carolyn L. Wheeler, and Vincent Blackwood filed a
brief on behalf of amicus curiae, U.S. Equal Employment Opportunity Commission, in
support of Appellant.
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Judy F. Jones appeals from the district court’s grant of summary judgment in favor

of her employer, Oklahoma City Public Schools (“OKC”), dismissing her claim of

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621, et seq. Although the district court found that Jones produced sufficient

evidence to establish a prima facie case of discrimination and submitted evidence to show

that OKC’s proffered explanations for her demotion were pretextual, the court granted

summary judgment to OKC on the ground that no reasonable juror could find that OKC

had committed age discrimination. Because we conclude that the district court engaged

in a “pretext plus” analysis in rendering its decision, we reverse.

I

Jones began working for OKC as a teacher in 1969. She then served as a principal

of an elementary school for approximately fifteen years. In 2002, Jones was promoted to

Executive Director of Curriculum and Instruction. Colleagues evaluated Jones’

performance in this position as satisfactory or better. For the 2006-2007 fiscal year,

Jones’ negotiated salary was $98,270, with a daily pay rate of $396.25 per day.

In July 2006, Linda Brown became OKC’s interim superintendant. Brown altered

OKC protocol such that Jones reported first to Manny Soto and later to Linda Toure, two

of OKC’s five executive directors in charge of schools and support services. Over the

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course of the next year, both Soto and Toure asked Jones when she was going to retire.

On one occasion, Brown also questioned Jones about her retirement plans.

OKC eventually hired John Porter as its permanent superintendant in spring 2007.

Porter was to start full-time work in July 2007, but was employed as a consultant during

the months of May and June. According to Porter, he and Brown “worked closely”

during this period “to ensure a smooth transition into the position of Superintendant.”

After reviewing the district’s organizational chart, Porter determined that OKC’s

executive team should be reorganized. In particular, he decided that Jones’ position

could be eliminated and its duties absorbed by other directors. This elimination would

allow Porter to reorganize the district’s administration in a budget-neutral manner. Porter

directed Michael Shanahan, OKC’s senior human resources officer, to notify Jones that

her position would be eliminated and she would be reassigned as an elementary school

principal. Brown was present during this exchange, but averred that she did not have any

input into Porter’s decision.

Jones met with Shanahan in early June 2007. Shanahan communicated Porter’s

orders and informed Jones that her salary would stay the same for the ensuing school year

only.1 Jones asked Shanahan who made the decision to demote her, and Shanahan

responded that it was Brown and Porter. Shanahan subsequently stated that four other

executive directors were involved in the reassignment decision. Scott Randall, OKC’s

senior finance officer, later told Jones that she was the only director the administration

1
Shanahan also told Jones that she could apply for other open positions. Jones
declined to apply for these positions because doing so would require her to apply to “the
very people” who made the decision to eliminate her former position.
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had “gone after.” Randall also stated that if Porter was transferring Jones for financial or

budgetary reasons, Porter would have “run” it by him.

After her reassignment and during her first year of employment as an elementary

school principal, Jones retained her previous salary level. Her vacation benefits,

however, were affected immediately. After Jones completed her first year as principal,

her salary was decreased by approximately $17,000. This pay cut had the effect of

reducing her retirement benefits. Jones’ daily pay rate was also reduced by roughly five

dollars per day.

One month after Jones’ reassignment, Porter decided to create a new OKC

executive position, Executive Director of Teaching and Learning. The job description

and responsibilities for this position were quite similar to those of Jones’ former position

of Executive Director of Curriculum and Instruction. Both positions required a master’s

degree in curriculum and instruction, and the job responsibilities for both positions

included oversight of programs designed to improve teacher instruction and curricular

development. OKC filled this new position with an individual who was forty-seven years

of age. At the time of Jones’ reassignment, she was nearly sixty years old.

In May 2008, Jones filed suit in the District Court for the Western District of

Oklahoma alleging OKC violated the ADEA when it demoted her to the position of

elementary school principal.2 OKC filed a motion for summary judgment, denying that

2
Jones also alleged wrongful discharge in violation of the Oklahoma Anti-
Discrimination Act, Okla. Stat. tit. 25, § 1101, et seq., but conceded below that this claim
should be dismissed.

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Jones was demoted and arguing, in the alternative, that if Jones had suffered an adverse

employment action it was due exclusively to the elimination of her former position.

Analyzing Jones’ claims under the traditional McDonnell Douglas3 framework,

the district court concluded that Jones had established a prima facie case of age

discrimination. The court determined that Jones suffered an adverse employment action

because her transfer resulted in an immediate reduction in her vacation pay, retirement

benefits, and the prestige of her position. Proceeding to the next step of the McDonnell

Douglas analysis, the district court concluded that OKC met its burden of offering

legitimate, nondiscriminatory reasons for its actions: (1) Porter decided to create a new

deputy superintendant position in a revenue-neutral manner; and (2) Jones’ position was

eliminated to fund the new position. The court held that this evidence was sufficient to

shift the burden back to Jones to demonstrate that OKC’s reasons for her reassignment

were pretextual.

In response, Jones noted that funding for her previous position stayed on the books

for the 2007-2008 fiscal year, and staff in her former department continued working in

that department before and after the position of Executive Director of Teaching and

Learning was created. Moreover, Jones stressed the similarities between her previous

position and the new position created just after her demotion. She also stated under oath

that fellow OKC directors, including Brown, made age-related comments regarding her

retirement plans and that these comments occurred outside of the context of a normal

3
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As discussed infra,
McDonnell Douglas allows plaintiffs to prove age discrimination using a three-step,
burden-shifting method of proof.
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course of conversation. Viewing the evidence in the light most favorable to Jones, the

district court determined that a reasonable factfinder could conclude that OKC’s

proffered reasons for Jones’ reassignment were inconsistent or unworthy of belief.

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

however, the court reasoned: “[T]here will be instances where, although the plaintiff has

established a prima facie case and set forth sufficient evidence to reject the defendant’s

explanation, no rational factfinder could conclude that the action was discriminatory.”

According to the district court, Jones’ case fell within this exception. Her evidence for

pretext was not “particularly strong” and “a reasonable juror could very well find no

inconsistencies in [OKC’s] position.” Although the court acknowledged that OKC

leadership had made age-related comments, it faulted Jones for not providing any

“additional evidence” to show that age played a role in the reassignment decision. As a

result, the district court granted summary judgment in favor of OKC. This appeal

followed.

II

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

same legal standard used by the lower court. McKenzie v. Dovala, 242 F.3d 967, 969

(10th Cir. 2001). Summary judgment is proper only if “there is no genuine issue as to

any material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). “We examine the factual record and reasonable inferences therefrom in the

light most favorable to [Jones], who opposed summary judgment.” Thomas v. Int’l Bus.

Machs., 48 F.3d 478, 484 (10th Cir. 1995).

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 A

1

Before reaching the merits of parties’ arguments, we must first determine whether

the Supreme Court’s holding in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343

(2009), decided after the district court issued its summary judgment order, affects our

analysis on appeal. OKC argues that Gross compels dismissal of Jones’ claim because it

requires an ADEA plaintiff to provide some evidence that her employer was motivated

solely by age when making an adverse employment decision.4

OKC’s argument is flawed on several levels, but we need address only one: It

conflates two separate standards for causation. The ADEA, like other anti-discrimination

statutes, includes a causation requirement. It prohibits employers from “discriminat[ing]

against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis

added). The statute, however, does not define the phrase “because of,” and before Gross,

it was unclear which causal standard applied. Gross clarified that the ADEA requires

“but-for” causation. 129 S. Ct. at 2351. Consequently, to succeed on a claim of age

discrimination, a plaintiff must prove by a preponderance of the evidence that her

employer would not have taken the challenged action but for the plaintiff’s age. Id.

4
“Although this argument was not raised below, inasmuch as [Gross] was decided
after [Jones] filed her notice of appeal, we may consider changes in governing law arising
during the pendency of the appeal.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215,
1222 (10th Cir. 1996).
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OKC argues that in mandating but-for causation, Gross established that “age must have

been the only factor” in the employer’s decision-making process.

We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for

causation to hold an employer liable under the ADEA. See EEOC v. Prudential Fed. Sav.

& Loan Ass’n, 763 F.2d 1166, 1170 (10th Cir. 1985) (quoting Perrell v. Financeamerica

Corp., 726 F.2d 654, 656 (10th Cir. 1984)). Moreover, we have concluded that this

causal standard does “not require[] [plaintiffs] to show that age was the sole motivating

factor in the employment decision.” Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th

Cir. 2010) (quotations omitted). Instead, an employer may be held liable under the

ADEA if other factors contributed to its taking an adverse action, as long as “age was the

factor that made a difference.” Id.; accord Hazen Paper Co. v. Biggins, 507 U.S. 604,

610 (1993) (requiring an ADEA plaintiff to show that age had a “determinative influence

on the outcome” of her employer’s decision-making process). Gross does not hold

otherwise. Accordingly, Gross does not disturb longstanding Tenth Circuit precedent by

placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was

the sole cause of the adverse employment action.

2

A more nuanced question is whether Gross rendered the McDonnell Douglas

framework of proving discrimination inapplicable to claims brought pursuant to the

ADEA. Under McDonnell Douglas, a plaintiff may survive summary judgment by

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providing circumstantial rather than direct evidence of discrimination. See 411 U.S. at

802-04. To do so, the plaintiff must first demonstrate a prima facie case of unlawful

discrimination. Id. at 802. If she succeeds at this first stage, the burden of production

then shifts to the employer to identify a legitimate, nondiscriminatory reason for the

adverse employment action. Id. Once the employer advances such a reason, the burden

shifts back to the plaintiff to prove the employer’s proffered reason was pretextual. See

Reeves, 530 U.S. at 143.

This circuit has long held that plaintiffs may use the McDonnell Douglas three-

step analysis to prove age discrimination under the ADEA. See Danville v. Reg’l Lab

Corp., 292 F.3d 1246, 1249 (10th Cir. 2002); Ellis v. United Airlines, Inc., 73 F.3d 999,

1004 (10th Cir. 1996). We will not overrule our prior decisions applying this framework

to ADEA claims unless those decisions are in conflict with Gross. See United States v.

Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000) (“Under the doctrine of stare decisis,

this panel cannot overturn the decision of another panel of this court barring en banc

reconsideration, a superseding contrary Supreme Court decision, or authorization of all

currently active judges on the court.” (quotation and citation omitted)).

But rather than barring our use of the McDonnell Douglas paradigm, Gross

expressly left open the question of “whether the evidentiary framework of [McDonnell

Douglas], utilized in Title VII cases[,] is appropriate in the ADEA context.” Gross, 129

S. Ct. at 2349 n. 2; see also Reeves, 530 U.S. at 142 (2000) (applying McDonnell

Douglas to an ADEA claim “[b]ecause the parties do not dispute the issue”). Gross

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accordingly does not overturn circuit precedent applying McDonnell Douglas to ADEA

cases.

Moreover, the rule articulated in Gross has no logical effect on the application of

McDonnell Douglas to age discrimination claims. Gross held that “the burden of

persuasion [n]ever shifts to the party defending an alleged mixed-motives discrimination

claim brought under the ADEA.” 129 S. Ct. at 2348. McDonnell Douglas, however, does

not shift the burden of persuasion from the plaintiff to the defendant. Rather, it shifts

only the burden of production. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117,

1135 (10th Cir. 2003). Throughout the three-step process, “[t]he plaintiff . . . carries the

full burden of persuasion to show that the defendant discriminated on [an] illegal basis.”

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005).

Although we recognize that Gross created some uncertainty regarding burden-

shifting in the ADEA context, we conclude that it does not preclude our continued

application of McDonnell Douglas to ADEA claims. See Phillips v. Pepsi Bottling

Group, No. 08-1003, 2010 WL 1619259, at *3 (10th Cir. Apr. 22, 2010) (unpublished)

(“[Gross] did not overrule circuit precedents in which we have consistently employed the

[McDonnell Douglas] burden-shifting framework in ADEA cases.”). While Phillips is

not precedential, see 10th Cir. R. 32.1, we agree with its reasoning and join all of our

sibling circuits that have addressed this issue. See Jackson v. Cal-Western Packaging

Corp., 602 F.3d 374, 378 (5th Cir. 2010); Gorzynski v. Jetblue Airways Corp., 596 F.3d

93, 106 (2d Cir. 2010); Smith v. City of Allentown, 589 F.3d 684, 690-91 (3d Cir. 2009);

Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009); Geiger

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v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); see also Martino v. MCI Commc’ns

Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009) (applying McDonnell Douglas without

discussion of Gross); Bodkin v. Town of Strasburg, No. 09-2167, 2010 WL 2640461, at

*2 (4th Cir. June 29, 2010) (unpublished) (same).

B

Having concluded that McDonnell Douglas applies to ADEA claims, we must

now address the issue of whether Jones demonstrated a prima facie case of age

discrimination. To prove a prima facie case of age discrimination, a plaintiff must show:

“1) she is a member of the class protected by the [ADEA]; 2) she suffered an adverse

employment action; 3) she was qualified for the position at issue; and 4) she was treated

less favorably than others not in the protected class.” Sanchez v. Denver Pub. Schs., 164

F.3d 527, 531 (10th Cir. 1998). The parties do not dispute that Jones demonstrated she

was a member of the class protected by the ADEA, that she was qualified for her former

position, and that she was treated less favorably than others not in the protected class.5

OKC argues, however, that Jones did not suffer an adverse employment action because

she remained employed in a position with similar responsibilities and received a daily

pay rate that was “almost exactly the same” as her per diem rate as an executive director.

5
OKC does obliquely reference the “undisputed” fact that, during his tenure as
superintendant, Porter promoted and employed several persons over the age of forty.
However, OKC makes this reference in an effort to counter Jones’ assertions that she was
demoted. OKC does not debate Jones’ ability to satisfy the fourth factor of the prima
facie test and has therefore has waived any argument to that effect. See Jordan v. Bowen,
808 F.2d 733, 736 (10th Cir. 1987) (“[Parties] who fail to argue [an] issue in their brief
are deemed to have waived [that] contention on appeal.”).
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 “The Tenth Circuit liberally defines the phrase ‘adverse employment action.’

Such actions are not simply limited to monetary losses in the form of wages or benefits.

Instead, we take a ‘case-by-case approach,’ examining the unique factors relevant to the

situation at hand.” Sanchez, 164 F.3d at 532 (citations omitted). Although we do not

deem “a mere inconvenience or an alteration of job responsibilities to be an adverse

employment action,” id. (quotation omitted), the prong is satisfied by a “significant

change in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits,” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir. 2004) (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

Under the facts of this case, the district court correctly determined that Jones

suffered an adverse employment action. Jones’ reassignment letter specifically stated

that her salary level would remain the same for the ensuing school year only, and Jones

suffered a $17,000 decrease in salary the following year. Her vacation benefits were

reduced immediately upon reassignment, and her retirement benefits were reduced the

following year. Although OKC argues that Jones did not experience a demotion, she

certainly lost professional prestige and fell to a lower position in the district’s

organizational hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay

is not sufficient to constitute an adverse employment action is simply incorrect. All told,

the record in this case conclusively shows that Jones suffered an adverse employment

action and proved a prima facie case of age discrimination.

C

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 We thus consider the ultimate question of whether OKC was entitled to summary

judgment. Despite holding that Jones established a prima facie case of discrimination

and demonstrated that OKC’s proffered reasons for her reassignment were pretextual, the

district court granted OKC’s motion for summary judgment. It concluded that Jones’

claim fell within the exception outlined in Reeves because, “even when the evidence is

viewed in the light most favorable to [Jones], no reasonable juror could find that [OKC’s]

decision to reassign her was based on her age.” Jones argues that this determination

constitutes reversible error because the rare conditions necessary to establish the Reeves

exception are not present in this case. We agree.

In Reeves, the Supreme Court rejected the so-called “pretext plus” standard that

required plaintiffs using the McDonnell Douglas framework to both show pretext and

produce “additional evidence of discrimination” in order to avoid summary judgment. Id.

at 146-48. Reeves expressly held that “a plaintiff’s prima facie case [of discrimination],

combined with sufficient evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer unlawfully

discriminated.” Id. at 148. No additional evidence is necessary to show discrimination

because “[p]roof that the defendant’s explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional discrimination.” Id. at

147.

Consistent with Reeves, the Tenth Circuit has “definitively rejected a ‘pretext

plus’ standard.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th

Cir. 2007). Consequently, “once a plaintiff presents evidence sufficient to create a

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genuine factual dispute regarding the veracity of a defendant’s nondiscriminatory reason,

we presume the jury could infer that the employer acted for a discriminatory reason and

must deny summary judgment.” Bryant, 432 F.3d at 1125. A plaintiff produces

sufficient evidence of pretext when she shows “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-discriminatory

reasons.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005). When

evaluating the sufficiency this evidence, we look to several factors, “includ[ing] the

strength of the [employee’s] prima facie case, the probative value of the proof that the

employer’s explanation is false, and any other evidence that supports the employer’s case

and that properly may be considered” on a motion for summary judgment. Reeves, 530

U.S. at 148-49.

OKC proffered two legitimate reasons for Jones’ reassignment: Porter’s desire to

undertake a reorganization of OKC’s executive team in a revenue-neutral fashion and his

belief that Jones’ former position contained only narrow duties that could be absorbed by

other directors. With respect to Porter’s first goal, Jones produced evidence that her

former position stayed on the books for the 2007-2008 fiscal year and that staff in her

department remained employed in the same positions after her transfer. Further, Randall

told Jones that if her transfer was actually motivated by budgetary reasons, Porter would

have “run” it by him. Similarly, Randall attested to the fact that OKC could have easily

taken Jones’ former position off the books if it so desired.

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 Second, Jones presented evidence that a new position, Executive Director of

Teaching and Learning, was created shortly after her transfer. As noted supra, this

position’s job responsibilities were strikingly similar to those of Jones’ former position as

Executive Director of Curriculum and Instruction. Although OKC argues that the new

position entailed more responsibility, it also admits that the position reabsorbed many of

the same duties of Jones’ former position and was filled by someone thirteen years Jones’

junior. Together, this evidence was sufficient to satisfy McDonnell Douglas’s third step,

and the district court’s grant of summary judgment was therefore improper.

In reversing the district court, we recognize that Reeves carved out a narrow

exception to our general rule against a “pretext plus” requirement. Under Reeves, “there

will be instances where, although the plaintiff has established a prima facie case and set

forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could

conclude that the action was discriminatory.” 530 U.S. at 148. For example, an

employer would be entitled to summary judgment “if the record conclusively revealed

some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff

created only a weak issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evidence that no discrimination had

occurred.” Id. (emphasis added).

But the Reeves exception does not apply here. In reasoning that Jones generated

only a weak question of fact regarding whether OKC’s proffered reasons were pretextual,

the district court improperly favored OKC’s version of the facts. It stated, for instance,

that “[o]f the persons who [inquired into Jones’ retirement plans], only one, Ms. Brown,

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was even arguably involved in the reassignment decision, but [OKC] strongly argues she

had no role in the decision process.” After noting that “Brown’s own testimony clearly

states that the decision regarding [Jones’] reassignment was made by . . . Porter,” the

court concluded that Jones’ “lack of evidence from which a reasonable jury could find

discrimination . . . place[d] [her] case squarely within the contours of the Reeves

exception.”

However, the district court was required to view the facts in the light most

favorable to Jones. See Thomas, 48 F.3d at 484. Accordingly, it should have credited

Shanahan’s statement that four other directors were involved in the decision to reassign

Jones. Properly considered at the summary judgment stage, Jones’ evidence of

discrimination therefore included age-related comments by three executive directors, all

involved in the reassignment decision.6 Finally, even if we were to assume that Jones

“created only a weak issue of fact as to whether [OKC’s] reason was untrue,” the

corollary “abundant and uncontroverted independent evidence that no discrimination had

occurred” did not exist in this record. Reeves, 530 U.S. at 148.

Rather than properly applying Reeves, the district court erroneously held Jones to

the discredited “pretext plus” standard. The court faulted Jones for not presenting

“additional evidence” that age was a determining factor in her reassignment. But after

6
At the time of the decision to transfer Jones, OKC employed five executive
directors (including Jones). Two of these directors had made comments concerning
Jones’ retirement plans: Linda Toure and DeAnn Davis. As previously noted, Toure
questioned Jones at least once about when she was going to retire. Also, Davis asked
Jones on two occasions when she was going to retire. A witness to one of these
occasions interpreted Davis’ questions as “indicating that things would be better if Dr.
Jones would go ahead and retire and that she really ought to consider retiring.”
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showing that OKC’s reasons for her transfer were pretextual, Jones was under no

obligation to provide additional evidence of age discrimination. See Reeves, 530 U.S. at

147; accord Swackhammer, 493 F.3d at 1168. Accordingly, because we agree with Jones

that the rare conditions necessary to satisfy the Reeves exception are not present, we

REVERSE the district court’s grant of summary judgment and REMAND for further

proceedings.

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