Annett v. University of Kansas

F I L E D
United States Court of Appeals
Tenth Circuit

JUN 15 2004
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DR. CYNTHIA ANNETT, Ph.D.,

Plaintiff-Appellant,
v. No. 03-3069

UNIVERSITY OF KANSAS,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 01-2367-JAR)

Alan V. Johnson, (Stephen D. Lanterman with him on the brief), Sloan, Listrom,
Eisenbarth, Sloan & Glassman, LLC, Topeka Kansas for the Plaintiff-Appellant.

Sara L. Trower of Lawrence, Kansas, for the Defendant-Appellee.

Before SEYMOUR, BALDOCK and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Dr. Cynthia Annett filed suit against the University of Kansas under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3, alleging that the University

had unlawfully retaliated against her for exercising her rights under Title VII. The
district court granted summary judgment to the University. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we AFFIRM.

I

In August 1992, Annett began her employment as a tenure-track assistant

professor at the University of Kansas (“University”). She was denied tenure in

March 1998, and her employment was terminated at the end of the 1998–1999 school

year. Annett filed suit in federal court in February 1999, alleging that her

termination was the result of discrimination and retaliation. On March 3, 2000, a

jury found in favor of the University; post-trial motions continued into June 2000.

In July 1999, Dr. Maria Carlson, Director of the Center for Russian and East

European Studies, requested that Provost David Shulenburger appoint Annett to the

position of adjunct assistant professor to allow Annett to continue her work on a

USAID-funded University grant. Shulenburger appointed Annett to an adjunct

lecturer position rather than an adjunct assistant professor position for a one-year

term beginning July 1, 1999. He reappointed Annett as an adjunct lecturer for the

period between August 18, 2000 and August 17, 2001.

Annett alleges that in the spring of 1999, she applied for principal investigator

(“PI”) status through Carlson. PI status permits an individual to act as the director

on grant applications sponsored by the University. According to University

regulations, regular faculty are entitled to automatic PI or Co-PI status, whereas

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adjunct faculty must apply for “special” or “project” PI status through a University

sponsor. Annett claims that Carlson informed her that she was not eligible for PI

status at the University, yet failed to inform her that she was eligible for special or

project PI status.

On April 14, 2000, Annett applied for the position of assistant director at the

University’s Equal Opportunity Office (“EOO”), a position which included

facilitating recruitment and hiring for faculty and unclassified staff. The search

committee decided not to interview Annett for the position; Annett was notified of

this decision in a letter dated May 11, 2000. She also received a letter dated June 12,

2000, stating that another candidate had been selected.

During April and May 2000, Annett and a colleague repeatedly visited the

EOO office to research a report they were writing on the status of women and

minorities at the University. Annett reviewed a copy of a conciliation agreement

between the University and the Office of the Federal Contract Compliance Program

(“OFCCP”)—the federal agency which oversees affirmative action programs for

federal contractors pursuant to Executive Order 11246. The conciliation agreement

required the University to: (1) annually compile a report of the results of its

affirmative action program; (2) revise its procedures to include the gender of

minorities in its employment application, hiring, and promotion data; and (3) address

the underutilization of minorities and females and identify corrective action. After

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reviewing data documenting the University’s compliance, on April 24, 2000, Annett

and her colleague commented to the EOO director and associate director that they

believed the University was not in compliance with the agreement.

On September 6, 2000, Annett filed an administrative charge with the Equal

Employment Opportunity Commission (“EEOC”), claiming that the University failed

to hire her as assistant director of the EOO and failed to grant her PI status in

retaliation for engaging in Title VII protected activity. Annett filed suit in federal

district court and in separate orders the court granted summary judgment to the

University on Annett’s retaliation claims and denied Annett’s motion to reconsider

its judgment. Annett appeals.

II

We review a grant of summary judgment de novo. Garrett v. Hewlett-

Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). “When applying this

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

light most favorable to the nonmoving party.” Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999). However, “[u]nsupported conclusory allegations . . . do not create a

genuine issue of fact.” L&M Enterprises, Inc. v. BEI Sensors & Systems Co., 231

F.3d 1284, 1287 (10th Cir. 2000).

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 Title VII makes it unlawful to retaliate against an employee because she has

“opposed” any practice made unlawful by Title VII, or because she has

“participated . . . in an investigation, proceeding or hearing under this

subchapter.” 42 U.S.C. § 2000e-3(a). Annett alleges that in retaliation for

exercising her rights under Title VII, the University denied her (1) an assistant

director EOO position, (2) the title of adjunct professor, and (3) PI status.

Where, as here, there is no direct evidence of retaliation, we analyze a

retaliation claim under the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jeffries v. State of

Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998) (applying the McDonnell-Douglas

framework to a claim of retaliation). To that end, Annett must first present a

prima facie case of retaliation, which then shifts the burden to the University to

produce a legitimate, nondiscriminatory justification for taking the disputed

employment action. EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir.

1992). If the University satisfies this standard, the burden shifts back to Annett

to provide evidence showing that the University’s proffered reasons are a pretext

for discrimination. Id.

A

To state a prima facie case of retaliation, Annett must show that: (1) she

engaged in protected activity; (2) the University took an adverse employment

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action against her; and (3) there exists a causal connection between the protected

activity and the adverse action. See Jeffries, 147 F.3d at 1231. It is undisputed

that Annett’s 1999 lawsuit against the University is a protected activity. On

appeal, Annett argues that her statement to the EOO director regarding the

University’s compliance with the conciliation agreement also constitutes a

protected activity. In her affidavit, Annett states that she complained that the

University failed to: (1) compile annual reports of its affirmative action plan; (2)

maintain adequate records concerning gender and minority status in application

flow data; and (3) take action to correct underutilization of minority and female

employees. We will assume, without deciding, that with respect to her complaint

concerning underutilization of minorities and women, Annett has met her burden

of establishing a protected activity for the purposes of stating a prima facie case. 1

We thus turn to the second prong that Annett must establish—that she

suffered an adverse employment action. An adverse employment action

constitutes “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.” Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 761 (1998); see Sanchez v. Denver Pub. Schs.,164 F.3d

1
As a result, we need not address whether general grievances regarding
the proper record-keeping of affirmative action programs constitute engaging in
protected Title VII activities.

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527, 532 (10th Cir. 1998) (citing Burlington to define adverse employment

action). The University does not contest that its decision not to hire Annett for

the assistant director EOO position constitutes an adverse action. Rather, it

challenges Annett’s arguments on appeal that (1) the University’s decision to

grant Annett the title of adjunct lecturer versus adjunct professor, and (2)

Carlson’s alleged failure to inform Annett of her eligibility to apply for special or

project PI status similarly represent a significant change in employment status.

We decline to consider Annett’s claim that receiving an adjunct lecturer

versus an adjunct professor position constitutes an adverse employment action as

she has failed to exhaust her administrative remedies. We have reviewed her

charge of discrimination filed on September 6, 2000 and her “complaint

narrative” submitted to the OFCCP on May 31, 2000 and find no reference to the

distinction between “lecturer” and “professor” as probative of discrimination or

retaliation. Her complaint merely states: “I was given an Adjunct faculty

position, but no Principal Investigator status, which prevents me from obtaining

grants.” (Appellee’s App. at 198). 2

2
We note that Annett’s complaint narrative states: “My own position as
an Adjunct Faculty member at KU was downgraded to prevent me from
submitting grants that could act as an alternative source of income.” (Appellee’s
App. at 201.) However, we cannot conclude that this sentence represents the
distinction between being appointed an adjunct lecturer versus an adjunct
professor in 1999 or 2000.

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 We lack jurisdiction to review Title VII claims that are not part of a timely-

filed EEOC charge. Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th

Cir. 1997). Previously, we would proceed to examine whether the alleged

employment action, provided it occurred after the filing of the EEOC charge, was

“like or reasonably related to the allegations of the EEOC charge.” Ingels v.

Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). However, our recent holding in

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003), has foreclosed this line of

inquiry. In Martinez, we abrogated the continuing violation exception to our

jurisdictional requirements to allege a claim of retaliation and held that

“unexhausted claims involving discrete employment actions are no longer viable.”

Id. at 1210. In so doing, we relied on National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002), which concluded that each discrete retaliatory action

constitutes its own “unlawful employment practice for which administrative

remedies must be exhausted,” Martinez, 347 F.3d at 1210 (quotation omitted), and

we applied Morgan to incidents occurring after an employee’s filing of an EEO

complaint. Pursuant to our holding in Martinez, we dismiss this claim for failure

to exhaust administrative remedies.

Turning to Annett’s claim of adverse employment relating to her ability to

obtain PI status, Annett argues that Carlson “effectively blocked” her from

naming herself PI on grant applications. (Appellant’s Br. at 36.) Annett alleges

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that in the spring of 1999, she applied for PI status through Carlson, and that

Carlson informed her that she was not eligible for PI status at the University. 3

Annett argues that in reliance on Carlson’s representations, she declined to submit

four grant applications naming herself PI or Co-PI, which, according to

deposition testimony before the district court, is a prestigious designation that

may have increased Annett’s likelihood of winning grants and receiving funding

in the form of a salary for Annett.

We “liberally define[] the phrase adverse employment action” and do not

limit such actions to “monetary losses in the form of wages or benefits.”

Sanchez, 164 F.3d at 532 (quotation omitted). In so defining the phrase, we

consider acts that carry “a significant risk of humiliation, damage to reputation,

and a concomitant harm to future employment prospects.” Berry v. Stevinson

Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996). Therefore, an action that

significantly harms a plaintiff’s future employment prospects may be considered

an adverse action. See Berry, 74 F.3d at 986 (holding that the filing of false

criminal charges constituted an adverse employment action because of its

potential to harm future employment prospects); but see Aquilino v. Univ. of

Kan., 268 F.3d 930, 936 (10th Cir. 2001) (rejecting plaintiff’s claim that denial of

3
Carlson testified that Annett “informally requested that I inquire as to
her eligibility for PI status.” (Appellant’s App. at 63.)

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an appointment as a research associate constituted an adverse action when the

alleged harm to her future employment prospects was speculative and rested

solely in her untested belief in an alterative career path as a private scholar).

However, “a mere inconvenience or an alteration of job responsibilities,” will not

suffice. Sanchez, 164 F.3d at 532 (quotation omitted).

Annett’s argument that she was blocked from receiving PI status and

therefore suffered harm to future employment prospects is not without force.

However, the evidence in the record does not support the allegation. Annett

simply alleges that despite the University’s regulations stating that adjunct faculty

could apply for special or project PI status, Carlson failed to inform her of her

eligibility to apply for PI status within the University, and, as a result, Annett

maintains she did not include herself as PI or Co-PI on specific grants. Annett

also alleges that Carlson advised her to submit a MacArthur grant application as

an independent scholar. To that end, Annett presents evidence of a February 2000

e-mail correspondence from Carlson to Shulenburger stating: “I have not

requested Project PI status [for Annett in regard to her application for a

MacArthur grant] and would not do so without agreement all around.”

(Appellant’s App. at 136.)

Construing this evidence in the light most favorable to Annett, and thus

inferring that Carlson (1) failed to request PI status for Annett on the MacArthur

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grant, and (2) failed to affirmatively inform Annett of written University

regulations which would allow Annett to apply for PI status on other grants, we

find ourselves in agreement with the district court that the resulting burden on

Annett to investigate the University regulations on her own is no more than a

mere inconvenience that did not significantly impact Annett’s future employment

prospects. Similarly, the presumed failure of Carlson to request PI status on one

grant does not constitute a harm to future employment prospects that carries a

“significant risk of humiliation [or] damage to reputation,” Berry, 74 F.3d at 986,

tantamount to a false accusation of criminal charges or a negative letter of

reference. Because we conclude that Annett’s claims regarding her ability to

obtain PI status do not constitute an adverse action, we are left with the

University’s decision not to hire Annett for the assistant director EOO position as

the only adverse action before us.

To establish the third element of her prima facie case, Annett must show a

causal connection between the protected activity and the University’s decision not

to hire her. She may establish the causal connection by proffering “evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.” Bullington v. United Air Lines,

Inc., 186 F.3d 1301, 1320 (10th Cir. 1999). Again, we agree with the district

court. Temporal proximity between Annett’s previous lawsuit, resulting in a

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verdict rendered in March 2000 with post-trial motions continuing into June 2000,

and the University’s decision not to interview and hire Annett in May 2000 and

June 2000 respectively, suffice to demonstrate causation for the purpose of

establishing a prima facie case. See Ramirez v. Oklahoma Dep’t. of Mental

Health, 41 F.3d 584, 596 (10th Cir. 1994) (concluding that a one and one-half

month period between protected activity and adverse action may establish

causation); see also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th

Cir. 1999) (assuming that temporal proximity of two months and one week is

sufficient to support a prima facie case of retaliation). Thus, Annett has

established a prima facie case of retaliation with respect to the University’s

decision not to hire her for the EOO position.

B

Because Annett has established a prima facie case of retaliation, the burden

shifts to the University to proffer a nondiscriminatory reason for its decision. The

University presented the following nondiscriminatory reasons before the district

court: (1) Annett’s prior experience was limited to teaching and researching in

environmental science and statistics and did not include university administration;

(2) Annett had not previously held positions in affirmative action, equal

opportunity, human resources, or in university recruitment; (3) all persons chosen

for an interview had some administrative experience in recruitment; and (4) the

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person chosen for the position had fourteen years of relevant experience in

recruitment. Because these reasons are not “facially prohibited by Title VII,”

Flasher, 986 F.2d at 1317, we agree with the district court that the University has

articulated a legitimate, nondiscriminatory reason for declining to hire Annett.

C

In order to prevail on her retaliation claim, Annett must proceed to show

that there is a genuine dispute of material fact as to whether the University’s

proffered reasons for failing to hire her are “pretextual—i.e. unworthy of belief.”

Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). To that end, Annett

relies on four pieces of circumstantial evidence: (1) the “very close” temporal

proximity between her April 24, 2002 complaint to the EOO office that it was not

in compliance with the conciliation agreement and the EOO’s decision prior to

May 8, 2002 not to interview her for the EOO assistant directorship; (2) a

handwritten note made by an unnamed EOO search committee member stating

that Annett “may be strong but would she be for KU,” (Appellant’s App. at 134),

and a question by another committee member regarding whether Annett had filed

suit against the University; (3) evidence that Annett was initially ranked equal to

or better than the applicant eventually selected; and (4) the letter to Annett

declining her candidacy, which incorrectly stated that the applicant hired had

experience in “unclassified searches.” (Appellant’s App. at 117.)

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 Regarding Annett’s claim that temporal proximity alone may demonstrate

pretext, we have stated that close temporal proximity is a factor in showing

pretext, yet is not alone sufficient to defeat summary judgment. Pastran v. K-

Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000). Annett seeks to distinguish

Pastran by pointing to the “very close” temporal proximity between her complaint

before the EOO office and its decision not to interview her. (Appellant’s Br. at

42.) She also draws our attention to language in Ramirez stating that temporal

proximity of under two months was “sufficiently probative of a retaliatory motive

to withstand summary judgment.” 41 F.3d at 596. However, our discussion in

Ramirez focused on whether temporal proximity could establish causation for

purposes of establishing a prima facie case, and not whether it sufficed to

demonstrate pretext at the third prong of the McDonnell-Douglas burden-shifting

framework . See, e.g., Anderson, 181 F.3d at 1179 (characterizing Ramirez as

holding that a “one and one-half month period between protected activity and

adverse action may, by itself, establish causation”).

Although Annett would have us broaden the scope of Ramirez to apply to

pretext analysis where there is “very close” temporal proximity, we decline to do

so. “The burden of establishing a prima facie case [in the McDonnell Douglas

framework] is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 253 (1981). It is because of this relatively lax burden that we allow

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temporal proximity between a protected activity and an adverse action to

establish a prima facie case; for the same reason, we have not imported this

lessened standard to pretext analysis where the burden is more demanding and

requires a plaintiff to assume “the normal burden of any plaintiff to prove his or

her case at trial.” Flasher, 986 F.2d at 1316. Allowing “very close” temporal

proximity to operate as a proxy for this evidentiary requirement would not further

the substantive purposes of our inquiry at this stage.

Thus, we must consider whether Annett’s evidence of temporal proximity

combined with the other factors demonstrate “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the University’s proffered

reasons for its failure to hire her such that “a reasonable factfinder could

rationally find them unworthy of credence . . . .” Anderson, 181 F.3d at 1179.

Mere conjecture that the University acted with discriminatory reasons will not

suffice to establish pretext. Id.

We agree with the district court that none of the comments made by the

committee members are probative of pretext. “When assessing whether [a]

plaintiff has made an appropriate showing of pretext, we must consider the

evidence as a whole.” Danville v. Regional Lab Corp., 292 F.3d 1246, 1250 (10th

Cir. 2002). According to deposition testimony, the only discussion of Annett’s

prior lawsuit was an answer in the affirmative to a committee member’s question

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whether Annett was “the person who had filed a lawsuit.” (Appellant’s App. at

93). Moreover, mere mention of Annett’s lawsuit did not prevent committee

members from giving Annett relatively high rankings. Indeed, neither mentioning

Annett’s prior suit nor questioning whether Annett was the right person for the

job, in the context of evaluating her candidacy and when viewed in light of the

evidence as a whole, supports a reasonable inference of pretext.

Turning to Annett’s argument that three out of what she considered to be

the four “official” committee members initially ranked Annett higher than or

equal to the selected candidate, we agree with the district court that this allegation

is not supported by the record. First, the record establishes that six committee

members ranked the candidates. 4 Of those six committee members, only two

ranked Annett higher than the selected candidate. Moreover, of the remaining

three interviewees, two were ranked higher than Annett by all six committee

members, and one was ranked higher than Annett by four members. Because

these rankings reveal that the four candidates interviewed were all ranked higher

than Annett, we conclude that Annett has failed to establish pretext on this point.

Finally, Annett alleges that the EOO’s letter falsely stated that each of the

4
Annett’s argument that the “official” search committee consisted of four
people is grounded in a Recruitment Plan dated March 15, 2000, which only lists
four individuals. However, the affidavits of four EOO staff members along with
the actual evaluations completed by the committee members demonstrate that six
individuals completed evaluations in April and May, 2000.

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interviews had experience, inter alia, in “facilitating unclassified searches.”

(Appellant’s App. at 117.) Annett points to language in the selected candidate’s

deposition stating that she was involved in recruitment only for classified

positions in her previous employment as recruitment coordinator in the

University’s political science division, as the division did not have unclassified

staff positions. Although Annett would have us conclude that this inconsistency

demonstrates that the EOO’s explanation for not hiring Annett was a front for

unlawful discrimination, we agree with the district court that in light of the

“overwhelming evidence corroborating the explanations given by [the] letter,”

Annett v. Univ. of Kansas, 216 F. Supp. 2d 1249, 1264 (D. Kan. 2002), the

mistaken use of the words “unclassified searches” does not create a genuine issue

of material fact.

Because Annett has failed to demonstrate that the University’s legitimate

reasons for failing to hire her as assistant direct of the EOO are pretextual, we

AFFIRM the grant of summary judgment to the University.

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