F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 19, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JEA N M cG O WA N ,
Plaintiff-Appellant,
v. No. 04-7083
CITY OF EUFA LA, a municipal
corporation, M A Y O R B ILLY RAY
DAY, in his official and individual
capacities, and CHAD FRENCH, in
his individual and official capacities,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E EASTERN DISTRICT O F O K LAH O M A
(D.C. NO . CV-03-4-W )
N. Kay Bridger-Riley, Bridger-Riley Bailey & A ssociates, P.C., Tulsa, Oklahoma
for Plaintiff-Appellant.
Stephen C. Lewis, United States Attorney’s Office, Tulsa, Oklahoma, for
Defendants-Appellees.
Before M cCO NNELL, A ND ER SO N, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
A prisoner at the Eufala, Oklahoma city jail committed suicide while under
Appellant Jean M cGowan’s supervision as jailer. M cGowan was later suspended
for thirty days without pay after a three-month investigation by the City and the
Oklahoma Bureau of Investigation concluded that she had failed to carry out her
legal duty to conduct regular visual inspections of the prisoner, and that she
falsified the w ritten records of her inspections. M cG owan claims in this Title VII
suit that the City retaliated against her for supporting the race discrimination
allegations of a co-worker. She appeals the district court’s order of summary
judgment on her Title VII retaliation claims against the City and several of its
officials. Because we agree with the district court that her claims lack sufficient
evidentiary support, we affirm.
I. Background
The background facts are taken from the complaint and materials submitted
in summary judgment proceedings.
Jean M cGowan was employed by the C ity as a police dispatcher and jailer.
Hired in 1983, her employment was uneventful until sometime in 1999 when then
Chief of Police Randy Johnston approached M cGowan and attempted to enlist her
aid in an investigation of Officer Sherman Lollis. Lollis was a black police
officer who had filed an EEOC discrimination claim against the City in M arch,
1999. M cGowan refused to help Johnston in his investigation and in fact
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supported Lollis in the race discrimination lawsuit he eventually filed against the
City. Lollis and the City settled that litigation in October 2001.
M cGowan claims because of her support of Lollis, Johnston and other
officers in the Eufaula Police Department retaliated against her. M cGowan
claims numerous instances of retaliation or harassment. W e briefly summarize
them and the City’s response:
(1) After Lollis’s complaint against the City, Chief Johnston began
complaining about M cGowan in front of and to other dispatchers. He asked that
M cGowan’s mistakes in completing her time slips be reviewed by another
dispatcher and brought to his attention. M cGowan concedes, though, that
Johnston’s predecessor, Billy Ray Day, also had time slips reviewed by other
dispatchers. Johnston claims he did not order the practice and had it discontinued
when he became aware of it.
(2) M cGowan claims her son, Ronnie M cGowan, and his girlfriend, Linda
Shepard, have also been the target of harassment by members of the department.
Officer Chad French first issued a citation to M cGowan for two unleashed dogs
belonging to Ronnie M cGowan and Shepard. A warrant was later issued for
Ronnie M cGowan and Shepard on charges relating to the citation. Johnston
personally served Shepard with her w arrant at M cG owan’s residence. Later,
French allegedly tried to have M cGowan’s pickup truck impounded after he
arrested Ronnie M cGowan and Shepard for attempting to evade him as he sought
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to detain Shepard on an outstanding warrant for assault and battery. Chief Larry
Osmond (who took over shortly after Johnston’s resignation in 2002) intervened
and ordered that the truck be returned.
(3) Next, M cGowan claims that Officer W esley Dawson trespassed on
M cGowan’s property to take a picture of an unleashed dog on her property. The
case was forwarded for criminal trespassing charges to the District Attorney, but
charges were never filed.
(4) M cGowan claims she was denied compensatory time for hours she
missed after leaving work early one evening. Other department employees had
similar complaints during Johnston’s tenure as Chief. The acting Chief upon
Johnston’s departure, Lt. Charles Hammett, gave M cGowan credit for all her
claimed compensatory time.
(5) At a meeting of officers and dispatchers, Johnston allegedly looked at
M cGowan and said that he didn’t want “the damn bill collectors” calling the
department anymore. M cGowan’s creditors had, in fact, called the department.
Vol. II at 173.
(6) M cGowan was denied a requested assignment to the day shift and
regular weekends off despite her seniority in the department. Johnston testified
that M cGowan was not assigned to the day shift because (a) counsel advised the
City not to place her with Lollis until after his lawsuit was settled, and (b)
because day shift dispatchers had to do more clerical work than those on other
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shifts and M cGowan’s clerical skills were not up to par. M cGowan provided an
affidavit by Johnston in which he states that day shift dispatchers do not actually
need to have better clerical skills than dispatchers on other shifts, which
contradicted an earlier affidavit by Johnston and his deposition testimony. Other
dispatchers testified that they thought M cGowan’s clerical skills were poor and
that she would not be able to be successful on the day shift. M cGowan had
previously unsuccessfully applied for the day shift during Day’s tenure as chief,
before Lollis filed his Title VII claim. Day denied this earlier application because
he perceived that M cGowan did not possess what he considered the requisite
clerical and computer skills.
(7) W hile on duty, M cGowan received a complaint from Shepard alleging
that Officer French was following her. After M cGowan recorded the call in the
department’s log book, French berated M cGowan. She also alleges that French
continued to make derisive comments about her w ork over the police radio.
In the end, Chief Osmond dismissed M cGowan on September 13, 2003, one
day after she gave deposition testimony in this case. The City claims M cG owan’s
firing was the result of a three-month investigation into circumstances
surrounding the suicide of a prisoner being held in the City’s jail on June 14,
2003. In that incident, Officer Dawson arrested a man and delivered him to the
City jail, failing to remove the prisoner’s belt per department policy. M cGowan
was the jailer on duty that day. State law required M cGowan perform a series of
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visual inspections of the prisoner and his cell to ensure his safety and well being.
During the course of M cGowan’s shift, the prisoner hanged himself with his belt.
By reviewing videotape of the jail from the day in question, Osmond
determined that M cGowan did not perform the required inspections and, in fact,
falsified a log book to make it appear as though she did. M cGowan maintains
that she performed the required checks and that the videotape of the day in
question had been tampered with. Osmond suspended Dawson for his role in the
prisoner suicide and terminated M cGowan. Osmond claimed the difference in
Dawson’s and M cGowan’s punishment was justified by their relative culpability
for the suicide and his belief that M cGowan lied during the investigation. The
firing was later overturned by the Eufaula City Council, and M cGowan was
instead given a thirty-day suspension and probation, the same punishment as
Dawson.
II. Standard of Review
W e review a district court’s decision granting summary judgment de novo.
Summary judgment is appropriate only if the pleadings, together with the
affidavits show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Argo v. Blue Cross and
Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). W e resolve all
factual disputes and draw all reasonable inferences in favor of the non-moving
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party. To determine whether genuine issues of material fact exist for the jury, the
court may “consider only the evidence that would be available to the jury.” Id.
III. Discussion
To establish a prima facie claim under Title VII for retaliation, a plaintiff
must establish three elements: (1) she engaged in protected opposition to
discrimination; (2) a reasonable employee would have found the challenged action
materially adverse; and (3) a causal connection exists between the protected
activity and the materially adverse action. Argo, 452 F.3d at 1202. 1 Once the
plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate nondiscriminatory reason for the adverse action. If the
employer does so, the burden shifts back to the plaintiff to show that the
employer’s reasons are pretextual. M cDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973); M ickelson v. New York Life Ins. Co., 460 F.3d 1304, 1316
(10th Cir. 2006). If there is reason to believe the employer’s reasons are
pretextual, the case may be submitted to the jury.
The district court concluded that M cGowan met the first element— her
support of Lollis’s discrimination claim was protected activity. But the court
found that M cGowan failed to establish the second and third elements of a prima
1
After the case w as at issue on appeal, the U nited States Supreme Court
decided Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006),
subjecting a challenged adverse employment action to a standard of
reasonableness. W e resolve this appeal under the new standard.
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facie case because (1) the refusal to grant the shift change or remedy work place
harassment were not adverse actions; and (2) the City’s reasons for suspending
her were legitimate, and therefore, she could not show a causal connection
between the allegations of retaliation and her suspension.
M cGowan argues that the district court erred in not finding the denial of
shift assignment adverse, as well as discounting the cumulative affect of her
working environment. She also claims the City’s reason for suspending her was
pretextual.
W e address each of these claims in turn.
A. Adverse Employment Action
M cGowan maintains that the City retaliated in three ways to adversely
affect her employment: (1) it suspended her; (2) it failed to reassign her from the
night shift to the day shift; (3) it sanctioned harassment by members of the police
department, which, in the aggregate, constituted a hostile w ork environment. 2
According to the district court, the evidence did not support the conclusion that
the second or third actions by the City constituted an adverse employment action.
2
The City concedes, of course, that M cGowan’s termination (later modified
to a suspension) was a materially adverse action. See Roberts v. Roadway
Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (“Actions such as
suspensions or terminations are by their nature adverse, even if subsequently
withdrawn.”).
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A challenged employment action is adverse for the purposes of a claim for
retaliation under Title VII if “a reasonable employee would have found [it]
materially adverse.” M ickelson, 460 F.3d at 1315. As the Supreme Court put it
in Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006), an
employer’s action is adverse under Title VII if it “well might have ‘dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Id. at
2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D .C. Cir. 2006)).
Applying this standard, the Court held that a jury could reasonably find a material
adverse action under Title VII where an employee was involuntarily transferred
from a job as a railroad forklift operator to a less desirable position as a track
laborer, even though the duties of both positions were similar. Id. at 2416–18.
After Burlington Northern we have continued to examine claims of adverse
action through a “case-by-case approach, examining the unique factors relevant to
the situation at hand.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.
1998) (internal quotations and citations omitted). The materiality of a claimed
adverse action is to be determined objectively; “petty slights, minor annoyances,
and simple lack of good manners” will not deter “a reasonable worker from
making or supporting a charge of discrimination.” 126 S. Ct. at 2415. The
Supreme Court further noted, however, that “[c]ontext matters.” Id.
In a recent case applying the Burlington Northern standard, we found that
the “prospect of losing wages, benefits, and ultimately a job” would dissuade a
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reasonable worker from supporting a charge of discrimination. M ickelson, 460
F.3d at 1316. Even prior to Burlington Northern, we found adverse action if it
“constitutes a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different [job] responsibilities,
or a decision causing a significant change in benefits.” Stinnett v. Safeway, Inc.,
337 F.3d 1213, 1217 (10th Cir. 2003) (internal citations and quotations omitted).
Examples of adverse action from our pre-Burlington Northern cases include: (1)
the transfer of an experienced female police detective to a position in the police
academy after the detective filed an EEOC complaint due to “concern for her
safety,” Duncan v. M gr., Dep’t of Safety, City & County of Denver, 397 F.3d
1300, 1307 (10th Cir. 2005); (2) issuing written reprimands where those
reprimands made it more likely that a complaining employee could be fired,
Roberts v. Roadway Express, 149 F.3d 1098, 1104 (10th Cir. 1998); and (3)
management’s goading of an employee’s co-workers into filing a false criminal
complaint against him, Berry v. Stevinson Chevrolet, 74 F.3d 980, 986–87 (10th
Cir. 1996).
Since M cGowan’s termination was obviously an adverse action, we turn to
her claim that the City also took materially adverse action by (1) failing to assign
her to a day shift, and (2) sanctioning workplace harassment by her co-workers.
1. Eligibility for Day Shift
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M cGow an contends the failure to reassign her to the day shift is a
materially adverse action. The district court disagreed, finding her preference for
the day shift “a mere inconvenience or an alteration of job responsibilities” that
was not actionable, relying on Sanchez v. Denver Pub. Sch., supra, 164 F.3d at
532 (holding that teacher transfer not adverse).
The question, then, in the wake of Burlington Northern, is whether a
reasonable person would be deterred from making or supporting a discrimination
claim if she knew she would be denied a shift change. Here, the answer is no,
because on this record the claim fails the test of materiality. W hile M cGowan
may have desired a change in shift, she identified no specific rationale for the
transfer other than an undefined subjective preference for the change. In fact, the
shifts offered no differences in pay and benefits, nor was the night shift more
arduous. Although claiming it to be a better assignment, her stated desire for
change was purely for personal reasons. M oreover, before Lollis filed his claim,
Day had refused to transfer her to the day shift because she lacked the necessary
administrative skills. Finally, the record does not indicate that M cGowan was
permanently denied a shift change. The City’s legal counsel advised that the
status quo be maintained during the pendency of Lollis’s lawsuit, which settled
several months after M cG owan requested the change. Nothing in the record
suggest that M cGowan requested a shift change or that one was denied after
Lollis’s suit settled.
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As the Supreme Court observed, “reassignment of job duties is not
automatically actionable.” Burlington Northern, 126 S. Ct. at 2417. Absent
evidence of materiality, M cGowan has not presented a claim for a jury. In sum,
we agree with the district court that on these facts the challenged action was not
materially adverse. 3
2. Em ployee H arassm ent
M cGowan also contends that the City sanctioned work site harassment by
her supervisors and fellow employees. M cGowan asserts this harassment created
a hostile w ork environment that itself constituted a materially adverse action. A s
discussed above, the complained-of harassment must be sufficiently severe to
qualify as a materially adverse action under Title VII. In addition, to succeed on
a retaliation claim based on a hostile work environment, a Title VII plaintiff must
present evidence that supervisory or management personnel either (1) orchestrated
the harassment of the plaintiff by other employees, or (2) knew about the
harassment and acquiesced in such a manner as to condone it. Gunnell v. Utah
Valley State College, 152 F.3d 1253, 1265 (10th Cir. 1998). The behavior
complained of must render “the w orkplace . . . permeated w ith discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
3
Even if we w ere to assume under Burlington Northern that M cGowan has
successfully alleged a materially adverse action, as we discuss below, the City
had a legitimate reason to deny her transfer.
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environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal quotations
omitted). The district court concluded none of the allegations supported a finding
of a hostile w ork environment.
W e agree that M cGowan has not met her burden of showing that the
harassment she complains of amounted to a materially adverse action. For the
most part, the harassing behavior by line officers was not directed at M cGowan,
but rather at her son and his girlfriend. The record shows the harassing behavior
discontinued when brought to the attention of the police chief. The record does
not support a conclusion that harassment was orchestrated by supervisory
personnel or that the City tacitly approved of it. Additionally, many of
M cGowan’s allegations such as her complaints regarding the highlighting of her
time slips and French’s petty criticism of her work are of a trivial nature and do
not rise to a claim of an “abusive” materially adverse work environment.
In conclusion, the record does not contain disputed facts sufficient to show
that the conduct of the City created a hostile work place sufficient to constitute a
materially adverse action under Title VII.
B. Causation
W e now turn to whether M cGowan has established disputed material facts
on the third element of a Title VII claim— whether a causal connection exists
between the protected activity and the materially adverse action. According to
the district court, M cGowan provided no direct or circumstantial evidence
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showing that her support of Lollis was the cause of the adverse employment
actions. Since only her termination-turned-suspension and (for the sake of
argument) her day shift claims qualify as materially adverse actions, we examine
those next.
1. Term ination/Suspension
M cG owan argues the City suspended her for supporting Lollis’s
discrimination claim. The district court concluded that because the suspension
came over two years after her support of Lollis and was based on a legitimate
reason (her responsibility for a prison suicide), M cGowan had failed to show the
requisite causal connection. M cGowan claims she has demonstrated
circumstantial evidence of causation by alleging in her amended complaint that
she was fired the day after giving a deposition in her Title VII lawsuit. W e agree.
Testifying in a Title VII lawsuit— including one’s own— can be protected
activity. See 42 U.S.C. § 2000e-3(a); see also Robbins v. Jefferson County Sch.
Dist., 186 F.3d 1253, 1258 (10th Cir. 1999) (acknowledging that Title VII extends
protection to those who testify in proceedings related to their own Title VII action
even if the action is w ithout merit); Glover v. South Carolina Law Enforcement
Div., 170 F.3d 411, 413 (4th Cir. 1999) (“[I]t is [] plain that testifying in a
deposition in a Title VII case generally constitutes protected activity under [Title
VII’s] participation clause.”).
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M oreover, the required link between the protected activity and subsequent
adverse employment action can be inferred if the action occurs within a short
period of time after the protected activity. See O’Neal v. Ferguson Constr. Co.,
237 F.3d 1248, 1253 (10th Cir. 2001) (“Unless there is very close temporal
proximity between the protected activity and the retaliatory conduct, the plaintiff
must offer additional evidence to establish causation.”); Haynes v. Level 3
Commc’n, 456 F.3d 1215, 1229 (10th Cir. 2006) (quoting O’Neal for same
proposition). Here, M cGowan was fired the day after she gave deposition
testimony in this case. W hile proximity alone may not always support an adverse
inference of retaliation, M cGowan’s deposition testimony containing allegations
of w rongful conduct by current police department employees suffices to establish
an inference of causation.
Having found sufficient circumstantial evidence of causation, we turn to the
remaining analysis under the M cDonnell-Douglas framew ork. W here a Title VII
plaintiff has made a prima facie case of discrimination, the burden then shifts to
the defendant to offer a legitimate, non-discriminatory reason for the adverse
employment action taken against the plaintiff. M cDonnell-Douglas, 411 U.S.
792, 802 (1973). 4
4
It is worth noting that while timing can suffice to support a prima facie
case of discrimination, it will not satisfy a Title VII plaintiff’s burden to respond
to an articulated non-discriminatory reason for the challenged adverse
employment action. Selenke v. M ed. Imaging of Colo., 248 F.3d 1249, 1260 (10th
(continued...)
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The City provided two related non-discriminatory reasons for firing
M cGowan— (1) a prisoner suicide that occurred on her watch as jailer, and (2)
M cGowan’s perceived dishonesty in the investigation following the suicide.
M cGowan responds that the City’s proffered non-discriminatory reason for
terminating her was actually a pretext for discriminatory behavior. She claims
that pretext can be inferred in two ways: (1) she was treated differently than a
similarly situated officer who booked the prisoner involved in the suicide, and (2)
the stated reasons for her firing by Chief Osmond were not sincere.
Disparate Treatm ent. M cGowan argues she was treated differently than
Officer Dawson, the jailer who booked the prisoner who hanged himself, but
failed to remove the prisoner’s belt. To show disparate treatment, M cGowan
must establish she was similarly situated to Dawson in all relevant respects.
Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). “Similarly
situated employees are those who deal with the same supervisor and are subject to
the same standards governing performance evaluation and discipline.” Id. In
determining whether two employees are similarly situated, a “court should also
compare the relevant employment circumstances, such as work history and
company policies, applicable to the plaintiff and the intended comparable
employees.” Id. M oreover, even employees who are similarly situated must have
4
(...continued)
Cir. 2001).
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been disciplined for conduct of “comparable seriousness” in order for their
disparate treatment to be relevant. Kendrick v. Penske Transp. Servs., 220 F.3d
1220, 1230 (10th Cir. 2000).
Applying this standard, M cGowan was not similarly situated to Dawson.
Although they both reported to Osmond and monitored prisoners in the City jail,
their jobs that night were very different. Dawson was the booking officer, while
M cGowan was the jailer. He admitted the prisoner, she ultimately was
responsible for his safety.
In addition to having different responsibilities, M cGowan and Dawson
engaged in different conduct and made different mistakes that contributed to the
suicide. First, M cGowan was obliged under state law and City policy to visually
observe prisoners. Based in part on an independent investigation by the
Oklahoma Bureau of Investigation (OSBI), Osmond determined that M cGowan, as
jailer, w as more culpable in the hanging than Dawson, the booking officer.
Dawson was found to have violated an internal police department policy, in
failing to remove the prisoner’s belt at booking, but Osmond concluded Dawson
was truthful and cooperative in the OSBI investigation. M cGowan, by contrast,
was found to have violated both state law and City policy, 5 falsified the jail
5
The City found that M cGowan had violated the Oklahoma Jail Standards
Act, 74 Okla. Stat. § 192, and Oklahoma State Department of Health Jail
Standards Chapter 670 § 310:670-5-2, which requires jailers to conduct regular
visual inspections of prisoners in their custody. M cGowan was determined to
(continued...)
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register regarding her visual inspections, and been uncooperative during the OSBI
investigation.
In sum, because M cGowan and Dawson were (1) not performing the same
job, (2) not subject to the same policies, statutes and findings of wrongdoing, and
(3) different in their relative level of culpability, they were not similarly situated.
Additionally, even if they were similarly situated, M cGowan’s conduct was not
sufficiently similar to Dawson’s to allow an inference of pretext on the basis of
their disparate treatment.
Proffered Reasons. In an attempt to show the City was insincere in finding
her more culpable, M cGowan argues that Osmond lied about his reasons for the
termination. In a letter recommending her termination, he stated that M cGowan
attempted to deceive OSBI investigators regarding the number of times she
checked on the prisoner in person. She maintains that the OSBI report does not
conclude that she lied to investigators.
W e find the O SBI report and Osmond’s letter to be consistent. The report
stated M cGowan told investigators she had conducted two or three in-person
checks of the prisoner in the four hours between his booking and the discovery of
his body. The report also noted that Oklahoma law and regulations required at
least one in-person check per hour by the jailer on duty. Osmond’s letter cited
5
(...continued)
have performed inspections by means of closed-circuit television, despite her
entries in the prison register indicating otherw ise.
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the report and concluded on the basis of the report and evidence from the
department’s jail video of the day in question that M cGowan had not made a
physical inspection of the prisoner’s cell until four hours after she came on duty.
Osmond also based his decision to fire M cGowan on M cGowan’s admitted
failure to make the required four in-person hourly checks on the prisoner.
Nothing in the record suggests this rationale was insincere. In other words, the
City’s proffered non-retaliatory reason was not “so incoherent, weak,
inconsistent, or contradictory that a rational fact finder could conclude the
reason[] was unworthy of belief.” Stover v. M artinez, 382 F.3d 1064, 1076 (10th
Cir. 2004). Accordingly, M cGowan has not shown that the City’s non-
discriminatory reason for her discharge was pretextual. 6
In sum, we agree with the district court that M cGowan did not show
disputed facts that would establish pretext based on disparate treatment.
2. Reassignm ent.
M cGowan’s only other claim of adverse action is the City’s failure to
reassign her to the day shift in M ay of 2001. Even assuming an adverse action
exists, M cGowan must still satisfy the causation element. In support of causation,
6
It is worth noting that the ultimate decision maker over M cG owan’s
employment was not Osmond but the City Council. Upon its review of O smond’s
recommendation of termination, the Council eventually concluded that a
suspension was more appropriate punishment. In the end, M cGowan received a
thirty-day suspension and probation, the same punishment as Dawson.
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she points to evidence that the City refused to assign her to the day shift because
it meant she w ould be working with Lollis.
The City argues that the refusal was proper for two reasons. First, its legal
counsel defending the Lollis lawsuit advised it not to put Lollis together with a
potential w itness while the law suit was pending. Second, it was a legitimate
business decision to separate M cGowan and Lollis during that time.
W e agree that the City’s temporary refusal to approve a shift change upon
the advice of legal counsel in this case was not impermissible retaliation. Title
VII prohibits adverse action “based on a retaliatory motive and [that] is
reasonably likely to deter the charging party or others from engaging in protected
activity.” Burlington Northern, 126 S. Ct. at 2411 (emphasis added); see also
EEOC Compliance M anual § 8 D-3. W e thus look to motive in addition to
consequences. If the reason for the claimed adverse action does not flow from a
discriminatory motive, it lacks the requisite causal connection to the adverse
action. Here, it was entirely reasonable for an employer in the City’s legal
circumstances to follow the advice of counsel regarding M cGowan’s shift
assignment during the pendency of Lollis’s litigation. The City was faced with a
discrimination claim by an employee who already worked the day shift.
M cGowan sought a shift change to work with Lollis, whose claim she was
actively supporting. The City through its counsel merely acted to maintain the
status quo, a natural response to the lawsuit. Nothing in the record suggests the
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City’s action was the result of retaliatory intent or was anything more than a
necessary consequence of its defense of litigation.
To be sure, an employer cannot immunize itself from Title VII liability by
following the advice of its law yers. Still, given the facts of this case, the City
was not required to compromise its defense of Lollis’s claims simply to
accommodate M cGowan’s subjective desire for a change in shifts. In sum, this
record does not support a conclusion that the City’s reason for denying M cGowan
a shift change was pretextual. The City’s temporary refusal to grant M cG owan’s
request for a shift change w as perhaps reactive, but cannot be said on this record
to have been retaliatory.
IV. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
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McGowan v. The City of Eufaula
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-12-19
Citations: 472 F.3d 736
Copy Citations