Mattioda v. Caldera

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 1 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ANDREW MATTIODA,

Plaintiff-Appellant,
No. 01-5171
v.

THOMAS E. WHITE, Secretary,
Department of the Army,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 00-CV-772-E)

Steven M. Angel, Angel & Associates, LLC, Oklahoma City, Oklahoma, for
Plaintiff-Appellant.

Wyn Dee Baker, Assistant United States Attorney, (David E. O’Meilia, United
States Attorney, with her on the brief), for Defendant-Appellee.

Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
 Plaintiff Andrew Mattioda (“Mattioda”) sued Defendant Thomas E. White,

Secretary of the Department of the Army (the “Army”) alleging retaliation and

racial discrimination in violation of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e-3, 2000e-16. The district court granted

summary judgment in favor of the Army. In granting the motion, the court

concluded that Mattioda failed to establish a prima facie case of racial

discrimination, failed to demonstrate that the Army’s proffered explanation was a

pretext for racial discrimination, and failed to establish a prima facie case of

retaliation. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

affirms, rejecting Mattioda’s assertion that Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75 (1998), and Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000), overruled this court’s decision in Notari v. Denver

Water Department, 971 F.2d 585 (10th Cir. 1992), which establishes the elements

of a Title VII reverse racial discrimination claim.

I. BACKGROUND

Mattioda is a white male who was employed by the Army in the

Engineering & Construction Division, United States Army Engineer District, in

Tulsa, Oklahoma (“Tulsa district”), as a temporary chemist beginning September

5, 1995. On January 19, 1997, his status was converted from a temporary position

to a one-year term appointment. The term appointment was later extended for one

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year and was scheduled to expire on February 18, 1999. At the time, the Tulsa

district had two term chemist positions.

In March 1998, Mattioda was informed that a co-worker, Cliff Murray

(“Murray”), had reported to his supervisor that Mattioda’s actions toward him

were bordering on harassment. As a result, Mattioda was removed from projects

managed by Murray.

During March and April 1998, management began discussions concerning

Investigative Technology Advocate (“ITA”) functions and Site Characterization

and Analysis Penetrometer System (“SCAPS”) activities. At this time, Mattioda

was informed that his involvement in Army projects was uncertain.

On June 23, 1998, Mattioda filed an informal complaint alleging that he

was suffering from stress and that he was prevented from maintaining current job

responsibilities and from attending a SCAPS meeting. He requested that the

Equal Employment Opportunity (“EEO”) office mediate a resolution to his

problems with Murray. On June 26, 1998, Mattioda, an EEO counselor, and

Mattioda’s supervisor, Rex Ostrander, met to discuss Mattioda’s concerns.

During the meeting, the participants concluded that Mattioda’s case did not

appear to be an EEO complaint. Mattioda stated that he considered the complaint

to be “more of a grievance.”

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 That summer, management began to question whether the Tulsa district

could sustain the two term chemist positions, although Mattioda was informed by

his supervisor that there would be sufficient workload to extend the term

appointments of both chemists. Subsequently, on October 16, 1998, Mattioda was

given a memorandum which informed him that his ITA responsibilities would be

transferred to other individuals. In the memorandum, management also

recommended that Mattioda’s conduct be reviewed prior to a decision on the

possible extension of his term appointment.

On October 23, 1998, Mattioda initiated an informal complaint with the

EEO office, alleging that management diverted work from him in retaliation for

filing the informal complaint in June 1998. Four days later, the division chief,

Ralph Hight (“Hight”), confirmed that Mattioda should not be involved in ITA

functions and SCAPS activities because of his term employment. Hight also

mentioned that “workload had fallen off.”

In late November or early December, the branch chief, Paul Erdner

(“Erdner”), conducted an annual workload analysis to measure the percentage of

time each of the five chemists spent on actual chemistry work. As part of the

analysis, Erdner documented that only four chemists were needed and

recommended Greg Williams (“Williams”), the other term-appointment chemist,

be retained. On January 6, 1999, the results of the workload analysis were

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published. The results confirmed that only one term chemist was necessary and

that Mattioda would be recommended for termination.

On December 28, 1998, Mattioda filed a formal EEO complaint, alleging

that the reduction in job responsibilities was the result of gender and disability

discrimination, reprisal, and sexual harassment. On January 11, 1999, Mattioda

was formally notified that his term appointment would not be extended. He then

filed an informal complaint with the EEO office on January 20, 1999. He filed a

formal complaint on February 17, 1999, alleging that the Army’s decision not to

renew his appointment was unlawfully based on race, disability, and sex. Prior to

the formal complaint, Mattioda sought an extension of his term appointment in

order to transfer to another district. Erdner was informed by human resources that

Mattioda’s appointment could not be extended because of “lack of work.”

Mattioda declined an offer for a thirty-day extension in exchange for dropping his

EEO complaint.

II. DISCUSSION

This court reviews the district court’s grant of summary judgment de novo.

Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1531 (10th Cir. 1995). Summary

judgment is appropriate if “there is no genuine issue as to any material fact” and

“the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). This court examines the record and draws “reasonable inferences

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therefrom in the light most favorable to the party opposing summary judgment.”

Reynolds, 69 F.3d at 1531. To survive summary judgment, there must be

sufficient evidence in favor of an opposing party to support a jury verdict.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

A. Reverse Racial Discrimination 1

Title VII prohibits race discrimination in actions affecting federal

employees. 42 U.S.C. § 2000e-16. To proceed on a claim of reverse racial

discrimination, a plaintiff can rely on the burden-shifting analysis as set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Reynolds, 69 F.3d at

1533. Under such analysis, a plaintiff must first establish a prima facie case of

discrimination. Notari, 971 F.2d at 588. If a plaintiff establishes a prima facie

case, the burden shifts to the defendant to provide a legitimate, non-

discriminatory reason for the employment action. Id. If the defendant satisfies its

burden, the plaintiff must then demonstrate that the legitimate reasons are merely

a pretext for racial discrimination. Id.

The district court ruled that Mattioda failed to offer evidence that supported

a prima facie case of discrimination under the McDonnell Douglas framework. 2

1
Mattioda did not allege gender or disability discrimination in his complaint
filed in the district court on September 6, 2000.
2
The district court also determined that Mattioda did not produce sufficient
evidence to satisfy the alternative method for proceeding on a reverse racial
discrimination claim. See Notari v. Denver Water Dep’t, 971 F.2d 585, 590 (10th

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In addition, the court concluded that even if Mattioda successfully presented a

prima facie case, he failed to satisfy his burden of showing pretext.

Mattioda argues that in order to establish a prima facie case under the

McDonnell Douglas burden-shifting framework, he need only show that, as a

white plaintiff: (1) he was a member of a protected group; (2) he was qualified

for his position; (3) he was terminated; and (4) a non-white employee holding the

same job was retained. In a traditional race discrimination case involving a

plaintiff who is a member of a minority group, the plaintiff can satisfy the first

element of the prima facie burden by demonstrating that he belongs to a minority

group. See Reynolds, 69 F.3d at 1534. In Notari, this court held that in cases of

reverse racial discrimination, instead of showing minority group membership, a

plaintiff must “establish background circumstances that support an inference that

the defendant is one of those unusual employers who discriminates against the

majority.” 971 F.2d at 589. In modifying the first prima facie requirement, this

court recognized that members of the majority group are not necessarily entitled

to a presumption of discrimination afforded to members of a minority group. Id.;

Reynolds, 69 F.3d at 1534.

Cir. 1992). On appeal, Mattioda does not challenge the district court’s
conclusion. This court, therefore, will not consider whether Mattioda failed to
satisfy the alternative method. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d
979, 984 n.7 (10th Cir. 1994) (noting that failure to raise issue on appeal in the
opening brief is a waiver of that issue).

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 Mattioda contends that Notari is no longer viable in light of Supreme Court

decisions in Oncale and Reeves. This court, however, concludes that his

arguments are unavailing.

Mattioda misconstrues the holding in Oncale as conflicting with Notari. In

Oncale, the Supreme Court confirmed that there can be no “conclusive

presumption that an employer will not discriminate against members of his own

race.” 523 U.S. at 78. In other words, plaintiffs alleging same-group

discrimination are not precluded from receiving Title VII protection. See id.

This court has similarly recognized that Title VII prohibits discrimination against

members of a majority group. McGarry v. Bd. of County Comm’rs, 175 F.3d

1193, 1199 (10th Cir. 1999). Oncale, however, does not prohibit applying a

different burden on members of the majority group in order to raise an inference

of discrimination. In Notari, this court did not establish a conclusive presumption

against discrimination of the majority, as alleged by Mattioda, but merely

recognized that discrimination against the majority is less frequent than

discrimination against a member of a minority group. Notari, 971 F.2d at 589-90.

Because instances of reverse discrimination are less common, this court modified

the requirements of a prima facie case to reflect a plaintiff’s membership in a

historically favored group. See id. at 589. In either case, however, any plaintiff

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benefits from an inference of discrimination once the prima facie elements are

satisfied. Id.

Further, while Reeves required a plaintiff to show membership in a

“protected class” to establish a prima facie case of discrimination, such a

requirement does not eliminate the requirement set forth in Notari that a plaintiff

show background circumstances to establish a prima facie case of reverse racial

discrimination. In Reeves, the Supreme Court applied the McDonnell Douglas

framework to a claim brought under the Age Discrimination in Employment Act

of 1967 (“ADEA”), 29 U.S.C. §§ 621-634. 3 Reeves, 530 U.S. at 142. In applying

the framework, the Court established the first element of a prima facie case in an

age discrimination case to be “a member of the class protected by the ADEA.”

Id. Mattioda would have this court conclude that the reference in Reeves to

“protected class” membership is a statement by the Court that a plaintiff need

only demonstrate that he is a member of a group protected by Title VII, which

include whites, to meet his prima facie burden. The Court’s statement in Reeves,

however, has no application within the context of a reverse racial discrimination

claim brought under Title VII because the “protected class” referenced in Reeves

3
The Supreme Court did not specifically hold that the McDonnell Douglas
framework applies to ADEA claims, but merely applied the framework because
the parties did not dispute its application. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142 (2000).

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is restricted by the ADEA to individuals who are at least 40 years of age.

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (noting that

the protected class under the ADEA is limited). Reeves, therefore, does not affect

this court’s application of the modified prima facie burden in cases of reverse

racial discrimination under Title VII. Thus, Notari continues to operate as Tenth

Circuit precedent and, under Notari, Mattioda must demonstrate background

circumstances that support an inference of the Army’s discrimination against

whites if he proceeds under the McDonnell Douglas framework.

On appeal, Mattioda merely argues that Notari should be reversed. He does

not assert that, should this court reaffirm Notari, he has satisfied any of the

requirements for establishing a prima facie case of reverse racial discrimination.

Mattioda, therefore, has failed to demonstrate a prima facie case of reverse racial

discrimination under the McDonnell Douglas framework. The district court

properly granted summary judgment in favor of the Army.

B. Retaliation

Mattioda claims that his job responsibilities were reduced in retaliation for

his EEO activity and that the workload analysis which resulted in his term

appointment not being extended was conducted in retaliation for his formal EEO

complaint. A claim of retaliation under Title VII requires application of the

McDonnell Douglas burden-shifting analysis. McGarry, 175 F.3d at 1201. The

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prima facie case for retaliation requires proof that: (1) the plaintiff engaged in

protected opposition or participated in a Title VII proceeding; (2) the employer

acted adversely subsequent to or contemporaneous with employee activity; and (3)

there is causal connection between plaintiff’s activity and the employer’s action.

Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984).

The district court determined that Mattioda failed to establish a prima facie

case of retaliation because he did not complain of any activity that was protected

by Title VII. After review of the record, this court concludes that, even if

Mattioda established a prima facie case of retaliation, he has failed to show that

the reassignments and his non-renewal were based on pretext.

Because the Army offered the legitimate, nondiscriminatory reason of an

insufficient workload to justify his non-renewal, Mattioda must show that the

conclusions from the workload analysis were pretext for retaliation. See

McGarry, 175 F.3d at 1201-02. Mattioda claims that because the workload

analysis was conducted only after he initiated his EEO complaint, it was pretext

for discrimination. The record, however, does not support his claim of pretext.

In the summer of 1998 and prior to any EEO complaint, management became

concerned whether two term chemist positions could be sustained. A workload

analysis had been conducted every year and, in 1998, was completed prior to

Mattioda’s formal EEO complaint and subsequent non-renewal. Even before the

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1998 analysis, management knew that the workload had been decreasing.

Furthermore, the decision not to renew Mattioda’s term appointment was based in

part on studies conducted over the last two years prior to his non-renewal,

indicating that the Army could not sustain the number of chemists employed in

the district. As a result, his non-renewal was based on legitimate determinations

and Mattioda has failed to identify specific evidence that would suggest

retaliation. Accordingly, Mattioda has not established a claim for retaliation

under the McDonnell Douglas framework. The district court, therefore, properly

granted summary judgment in favor of the Army.

III. CONCLUSION

Mattioda has failed to establish a prima facie case of reverse racial

discrimination. Moreover, Mattioda has not presented any evidence that his non-

renewal was a pretext for retaliation in response to filing EEO complaints.

Accordingly, the district court’s grant of summary judgment in favor of the Army

is AFFIRMED.

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