FILED
United States Court of Appeals
Tenth Circuit
April 28, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SUSAN K. TURNER,
Plaintiff-Appellant,
v. No. 07-1396
PUBLIC SERVICE COMPANY OF
COLORADO, doing business as Xcel
Energy Inc.,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 05-cv-2100-REB-KLM)
James A. Carleo, Pueblo, Colorado, for Appellant.
Meghan W. Martinez (Richard P. Barkley with her on the brief), Brownstein
Hyatt Farber Schreck, LLP, Denver, Colorado, for Appellee.
Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
This case requires us to review the testing and interview procedures for new
hires at a power plant in Pueblo, Colorado. Susan Turner alleges that Public
Service Company of Colorado (PSCo) discriminated against her because of her sex
in violation of Title VII of the Civil Rights Act of 1964 when it refused to hire her
for an entry-level position at its Comanche Power Plant. The district court granted
summary judgment for PSCo, finding that although Turner presented a prima facie
case of sex discrimination, PSCo showed that its testing and interview procedures
were not a pretext for unlawful discrimination.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. Background
The background facts in this case span several years.
Susan Turner applied for a “Plant Specialist C” position at PSCo’s
Comanche Power Plant three times, in 2000, 2004, and 2006. Though PSCo
declined to hire Turner for the Plant Specialist C position each time she applied,
only Turner’s 2004 application is at issue in this appeal. 1 Dave Edmisson, the
Manager of Operations at Comanche, had been in charge of hiring since 1997 and
was in charge of PSCo’s hiring for the vacant Plant Specialist C positions in 2004.
The Plant Specialist C position is an entry-level job requiring little
experience. Though a candidate who had previously worked in a power plant
would have an edge over others with no power plant experience, Edmisson
1
Turner does not base her present claim on PSCo’s decision not to hire her
in 2000 or 2006. Additionally, the record does not disclose whether she
exhausted her administrative remedies with respect to those vacancies. See, e.g.,
Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (a Title VII plaintiff
must exhaust administrative remedies for each individual discriminatory or
retaliatory act).
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generally preferred inexperienced workers for the position so he could teach them
specific skills relevant to operating the Comanche power plant. Thus, an
applicant’s behavioral traits—e.g., the applicant’s willingness to work with others,
motivation to learn new skills, and adaptability—were the chief considerations in
the hiring decision.
To evaluate applicants for the Plant Specialist C positions, PSCo used a
three-step process. First, it administered a standardized written test to measure
applicants’ mechanical aptitude. The test, called the POSS/MASS test, was
developed by the Edison Electric Institute and is used by numerous industrial
companies across the country as a screening mechanism for job applicants.
Applicants interested in the Plant Specialist C position could register for the test at
PSCo’s website and take the test at a location in Denver. PSCo maintained a list
of applicants who received passing scores, but neither the applicant nor the hiring
personnel at PSCo were notified of the applicant’s actual score.
Applicants who passed the POSS/MASS test moved to the second stage of
the hiring process, where PSCo screened the remaining applicants’ resumes. At
this stage, the company was searching for predetermined criteria such as relevant
work experience and skills pertinent to the Plant Specialist C position. PSCo
awarded points to applicants if their resumes satisfied the predetermined criteria,
and the applicants with the most points moved to the third stage of the hiring
process—a job interview with a panel of four PSCo employees.
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During the job interviews, the interview panel asked each applicant an
identical set of pre-selected questions. The questions were derived from a human
resources document called the Interview Guide, and were designed to elicit
information from the interviewees pertinent to particular qualities, or
“competencies,” appropriate for the vacancy. The competencies relevant to the
Plant Specialist C position included initiative and risk taking, adaptability and
dealing with ambiguity, and team building. Each interviewer on the panel took
notes of the applicants’ responses to these standardized questions and assigned
numerical ratings to the applicants for each competency. The numerical ratings
were based upon the “behaviors” the applicants demonstrated through their
responses to the interview questions and whether those behaviors were “less
effective” or “highly effective” according to the Interview Guide.
For example, for the initiative and risk taking competency, the Interview
Guide states that an applicant exhibits a “less effective behavior” if his or her
answer to an interview question suggests the applicant “acts only after being
prompted.” Aplt. App. Vol. I at 133. In contrast, the applicant exhibits a “highly
effective behavior” if the applicant’s answer suggests he or she “knows when to
act alone and when to ask for help.” Id. After each interview, the interviewers
discussed and debated the numerical ratings they assigned to the applicant. The
interviewers then decided upon consensus scores for each of the applicant’s
competencies. These consensus scores were tallied to arrive at an applicant’s
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“overall rating,” which determined whether or not Edmisson offered the applicant
a job.
For the six vacant Plant Specialist C positions in 2004, twenty-six
candidates passed the POSS/MASS test. The company then narrowed the field to
seventeen interviewees based on their resumes. Fifteen interviewees were male
and two—Turner and another applicant—were female.
Turner performed poorly during her interview. She received an overall
rating of 48.5, the second-lowest of any interviewee, and later testified that she
“felt like [she] struggled during the entire thing.” Aplt. App. Vol. II at 203
(Turner Dep. Tr. 49:4–7). The other woman applicant, however, performed well
in the interview and received a score of 63.5, the second-highest overall rating.
With one exception—a candidate who displayed a fear of heights during a
tour of the upper reaches of the plant—Edmisson extended offers to the six
highest-scoring candidates. Edmisson later testified that his practice was to hire
the “most qualified” candidate, based upon his or her performance during the job
interview. Aplt. App. Vol. II at 185 (Edmisson Dep. Tr. at 83:20–84:4). He did
not offer Turner a job. He did, however, offer the other woman applicant a
position, but she decided not to accept it for personal reasons. The other five
applicants accepted PSCo’s offer, and Edmisson offered the remaining position to
the applicant with the next-highest overall interview rating.
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After being rejected for the Plant Specialist C position in 2004, Turner filed
a Charge of Discrimination with the Equal Employment Opportunity Commission.
She received a right to sue letter from the Commission and subsequently filed this
action. In 2006, while her suit against PSCo was pending, she again applied for a
job at Comanche, and was again rejected. PSCo moved for summary judgment,
arguing it refused to hire Turner because she performed poorly during her job
interview and Turner failed to offer any evidence that PSCo’s hiring practices
were mere pretext for sex discrimination. The district court granted judgment for
PSCo and this appeal followed. 2
II. Analysis
We review de novo the district court’s decision to grant summary judgment
in favor of PSCo. See Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007).
We view the facts in a light most favorable to Turner, the non-movant, and draw
all reasonable inferences in her favor. See Young v. Dillon Cos., 468 F.3d 1243,
1249 (10th Cir. 2006). But Turner “must still identify sufficient evidence
requiring submission to the jury.” Piercy, 480 F.3d at 1197. She cannot avoid
summary judgment merely by presenting a scintilla of evidence to support her
2
Carolyn Davis, a PSCo employee, was originally a co-plaintiff in this
case. Davis claimed that PSCo refused to promote her because of her sex. The
district court entered summary judgment against Davis, finding that she failed to
establish a prima facie case of sex discrimination and failed to present evidence
showing PSCo’s legitimate reason for refusing to promote her was pretextual.
Though Davis appealed the district court’s judgment, she subsequently settled
with PSCo and is no longer a party to this case.
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claim; she must proffer facts such that a reasonable jury could find in her favor.
See Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
Turner has not pointed to direct evidence of sex discrimination. We thus
view her claim through the familiar burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Garrison, 428 F.3d at
937. Under this framework, Turner has the burden of initially establishing a prima
facie case of sex discrimination, namely that (1) she is a member of a protected
class, (2) she suffered an adverse employment action, (3) she was qualified for the
Plant Specialist C position, and (4) she was treated less favorably than others not
in the protected class. See Piercy, 480 F.3d at 1203 (citing Sanchez v. Denver
Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998)). The district court below found
that Turner established a prima facie case, and PSCo does not dispute this finding.
With the prima facie requirements met, the burden shifts to PSCo “to
articulate some legitimate, nondiscriminatory reason” for its decision not to hire
Turner. See McDonnell Douglas, 411 U.S. at 802; see also Timmerman v. U.S.
Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). If it does so, Turner “then has
the full burden to show that the employer discriminated on the basis of sex.”
Timmerman, 483 F.3d at 1113. She may carry this burden by showing that PSCo’s
legitimate, nondiscriminatory reason for failing to hire her was merely pretextual.
See id. A claim of pretext need not be supported with direct evidence, but may be
based on “‘weaknesses, implausibilities, inconsistencies, incoherencies, or
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contradictions’ in the employer’s claimed legitimate, non-discriminatory reason
such that a rational trier of fact could find the reason unworthy of belief.” Id.
(quoting Morgan v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
Turner makes three arguments on appeal. First, she claims PSCo failed to
offer sufficient evidence that it had legitimate reasons for refusing to extend her
an offer and therefore failed to rebut her prima facie case of sex discrimination.
Next, she claims sufficient disputed facts support her argument that PSCo’s
proffered reason for refusing to hire her—her poor interview performance—was
pretextual. Finally, she claims PSCo destroyed or withheld from discovery
incriminating notes from the job interviews and did so in bad faith, thus entitling
her to an inference of discrimination.
We find none of these arguments persuasive.
A. Rebuttal of Prima Facie Case
The district court found that PSCo provided a legitimate, nondiscriminatory
reason for refusing to hire Turner: she performed poorly on the job interview
compared to other candidates for the Plant Specialist C position. But Turner now
claims the record does not support the district court’s determination.
Turner raises this argument for the first time on appeal. Absent
extraordinary circumstances, we will not consider arguments raised for the first
time on appeal. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir.
2002). Turner “may not lose in the district court on one theory of the case, and
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then prevail on appeal on a different theory,” even if the new theory “falls under
the same general category as an argument presented at trial.” Id. (internal
quotation marks omitted) (quoting Lyons v. Jefferson Bank & Trust, 994 F.2d 716,
721–22 (10th Cir. 1993)).
But even if Turner had preserved her argument for appeal, it is clear from
the record the argument fails. PSCo was not required to prove that it refused to
hire Turner based on her interview performance; it was only required to put forth
enough evidence to carry its burden of production and rebut Turner’s prima facie
case. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993); see also
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). PSCo more than
satisfied this burden. It produced score sheets showing that Turner ranked second-
to-last among the interviewees. These same documents revealed that only the top
interviewees received job offers. Finally, Edmisson—the principal decision
maker—testified that his decision not to hire Turner was based on her poor job
interview. This evidence “frame[d] the factual issue with sufficient clarity” such
that Turner had “a full and fair opportunity to demonstrate pretext.” Burdine, 450
U.S. at 255–56. Therefore, PSCo carried its burden of production and rebutted
Turner’s prima facie case.
B. Pretext
We now turn to the question of pretext. Because PSCo has provided a
legitimate, nondiscriminatory reason for refusing to hire Turner, the burden shifts
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back to Turner to show sufficient disputed facts that PSCo’s reason was merely a
pretext for sex discrimination. See Timmerman, 483 F.3d at 1112–13. If Turner
cannot meet this burden, we must affirm summary judgment in favor of PSCo. See
Piercy, 480 F.3d at 1200.
Our task, therefore, is to examine whether Turner’s characterization of the
evidence would persuade a reasonable jury that PSCo used its hiring process to
disguise sex discrimination. See Young, 468 F.3d at 1249–50; see also Rivera v.
City and County of Denver, 365 F.3d 912, 925 (10th Cir. 2004). But in conducting
this analysis, we cannot act as a “super personnel department” or second-guess
PSCo’s good-faith business judgments. Young, 468 F.3d at 1250 (quoting Jones v.
Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2004)).
Turner attacks PSCo’s hiring process in three ways. First, she claims PSCo
has a history of sex discrimination, and points to a sexual harassment lawsuit it
lost in the 1980s to show PSCo’s general bias against women in 2004. Second, she
claims the 2004 interview process was excessively subjective and was designed to
exclude women from positions at the plant. Third, she argues that various
statistics regarding PSCo’s workforce and hiring practices create the inference she
was not hired because of her sex.
1. Prior Litigation Against PSCo
Turner’s first argument is easily disposed of on staleness grounds.
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In 1991, PSCo lost a sexual harassment lawsuit involving conduct at the
Comanche Plant from 1980 to 1988. Hansel v. Pub. Serv. Co. of Colo., 778 F.
Supp. 1126, 1133–34 (D. Colo. 1991). This lawsuit, Turner claims, proves PSCo
discriminated against her.
In some instances, evidence that an employer’s decision makers harbored a
general bias against a protected class may support an inference that the decision
makers were influenced by the bias in making a particular employment decision.
See Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001). “This does not mean,
however, that evidence as to the prior mistreatment of employees in a protected
class necessarily gives rise to an inference that all subsequent employment
decisions adversely affecting that protected class or someone in it, no matter how
unrelated, are also tainted with bias.” Timmerman, 483 F.3d at 1117. For
evidence of general bias to be pertinent, we require some connection or logical
“nexus” between a showing of general bias and a particular employment decision.
Id. at 1117–18. The general bias must play “a direct role in the adverse
employment decision in the plaintiff’s case.” Id. at 1118 (emphasis added).
Turner relies on Hansel’s finding of a hostile work environment for conduct
that ended in 1988 to show that PSCo harbored a general bias against women when
it refused to hire her in 2004. Here, the required nexus obviously does not exist.
First, the hostile work environment in Hansel is not proximate in time to the
discrimination alleged in this case. In some instances, numerous adverse
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employment actions involving other protected employees, each occurring within a
year of the adverse employment action at issue, may suggest the decision maker
was motivated by the same general discriminatory bias. See Greene v. Safeway
Stores, Inc., 98 F.3d 554, 560–61 (10th Cir. 1996). But we have clarified that a
gap of two years between the alleged general bias and the adverse employment
action signals a lack of “temporal proximity.” Timmerman, 483 F.3d at 1115 n.3.
In Turner’s case, the gap was over fifteen years, certainly long enough to be
outside the range of “temporal proximity.”
Moreover, Hansel involved different individuals engaging in different
conduct. Because the focus of a pretext analysis under Title VII is on the decision
maker, see Piercy, 480 F.3d at 1200, the nexus between an alleged general bias
and a particular employment decision made years later becomes even more
tenuous when the bias existed before the relevant decision maker was in a position
to make employment decisions. Here, Edmisson was not a manager at Comanche
when the conduct in Hansel occurred, and Hansel involved a different form of
discrimination—the plaintiff alleged a hostile work environment, not an adverse
employment action—from the discrimination alleged in this case.
In sum, the existence of prior litigation for sex harassment in the 1980s is in
this case insufficient to warrant an inference of sex discrimination in hiring in
2004.
2. Subjectivity of Interviews
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Turner’s next argument is that PSCo’s interview process was a sham meant
to hide its discriminatory hiring practices. She characterizes the interview
questions as “purely subjective” and “lacking any relationship to actual job tasks
or skills.” Aplt. Br. at 9. She also notes that no female interviewers sat on her
interview panel. Turner, however, fails to explain exactly how the interview
questions disadvantaged women over men, and, more importantly, ignores the fact
that the other female candidate for the Plant Specialist C position in 2004 was
rated second-best among all 2004 interviewees and was offered a job.
Although “the presence of subjective decision-making can create a strong
inference of discrimination,” the use of subjective considerations by employers is
“not unlawful per se.” Bauer v. Bailar, 647 F.2d 1037, 1045–1046 (10th Cir.
1981). Rather, “we have consistently recognized that such criteria ‘must play
some role’ in certain management decisions and accordingly have reviewed the
use of subjective factors on a case-by-case basis.” Green v. New Mexico, 420 F.3d
1189, 1195 (10th Cir. 2005) (quoting Pitre v. W. Elec. Co., 843 F.2d 1262, 1272
(10th Cir. 1988)). Though “there is certainly a level of subjectivity in any
interview-based selection process,” interviewers do not always “use[] their
discretion as a means for unlawful discrimination.” Santana v. City and County of
Denver, 488 F.3d 860, 866 (10th Cir. 2007) (emphasis added). We thus “typically
infer pretext . . . only when the criteria on which the employers ultimately rely are
entirely subjective in nature.” Jones, 349 F.3d at 1267–68 (emphasis added).
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Here, the criteria PSCo used to rate interviewees were not excessively
subjective for several reasons. First, each applicant answered the same questions,
and the interviewers ranked the applicants’ responses using predetermined criteria
from PSCo’s Interview Guide. See Santana, 488 F.3d at 866 (finding that though
the interview process at issue was subjective, it was not discriminatory in part
because “[t]he panelists asked every applicant the same three questions and then
ranked the candidates based on their responses”); see also Bauer, 647 F.2d at 1043
(“the standards from which the selection committee made a choice were written
down and in that sense were objective”).
Second, the questions inquired into job-related areas, or “competencies,”
such as the interviewee’s technical orientation, team building skills,
communication skills, and willingness to learn. These competencies were
mandatory considerations for PSCo’s interviewers. The interviewers thus were
not given discretion to determine the scope of the interviews, and Turner points to
no evidence suggesting the interviewers injected their own additional subjective
criteria into the evaluation process. See Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1121 (10th Cir. 2007) (in determining the subjectivity of an employee
investigation, the “important question” is whether the plaintiff’s supervisor had
“unfettered discretion”). In this light, the competencies cannot be considered
wholly subjective, as Turner contends, merely because they cannot be precisely
quantified. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195
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(10th Cir. 2006) (because the employer used an evaluation form that “included
multiple mandatory areas for evaluation,” the evaluation process was not “wholly
subjective” even though these evaluation areas related to “soft skills”).
Third, even to the extent the questions did not elicit measurable data, the
interview process required the interviewees to think on their feet and thereby
supply insight as to adaptability and trainability. Cf. id. (though an evaluation
process included “such subjective considerations as team building, personal
leadership, and personal accountability,” the process was not “wholly
subjective”). PSCo sought to mold new hires into effective Plant Specialist C
workers, and believed the preselected competencies were important indicators of a
candidate’s likelihood of succeeding in the position. Thus, the interview questions
and the candidates’ agility in responding to identical inquiries were relevant to the
candidates’ qualifications; the evaluations made by the interview panels were not
based on whims or unguided opinions.
Nor does the fact that Turner’s interview panel consisted of four men raise
any concerns. Turner proffered no evidence that any of the interviewers held
discriminatory attitudes or participated in past discrimination. Cf. Pitre, 843 F.2d
at 1272. Furthermore, Turner admitted in deposition testimony that she performed
poorly during the interview. She said, for example, she “was definitely befuddled”
and “felt like [she] struggled during the entire thing.” Aplt. App. Vol. II at
202–203 (Turner Dep. Tr. 47:22, 49:4–7). These admissions confirm the
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interviewers’ assessments—which placed Turner second-to-last among all the
interviewees—and undermine Turner’s claim her male interviewers’ evaluations
were based on her sex rather than her interview performance. See Santana, 488
F.3d at 866 (“The interviewers thought, and Santana agreed, that she did not
present herself as a strong candidate . . . .”). The only other woman applicant, of
course, performed well in the interviews and received a job offer.
Thus, considering the record as a whole, no reasonable jury could agree with
Turner’s assertion that the interview “serve[d] only as a device to exclude women,”
Aplt. Br. at 24, or that PSCo’s interview process was “wholly subjective” and
therefore pretextual. Cf. Pippin, 440 F.3d at 1195 (analyzing an employee
evaluation process and concluding that it was not “wholly subjective”).
3. Statistics
Finally, Turner points to a hodgepodge of plant employment statistics to
support an inference of pretext. First, she states that only one of 115 workers in
“non-traditional” positions at Comanche is a woman. 3 Second, she notes that from
1992 to 2005, no women were hired for entry-level positions at Comanche but
twenty men were. Finally, she asserts that though she applied for a job at the
Comanche Power Plant on three separate occasions and was “qualified” for the job,
3
Turner defines a “non-traditional” position as one involving “production”
rather than clerical or professional duties. Aplt. Br. at 4 n.1.
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she was rejected each time. 4 Turner argues these statistics prove that PSCo’s
reason for refusing to hire her was pretextual.
We have long required that “[s]tatistical evidence should be closely related
to the issues in the case. . . . Even statistics which show prolonged and marked
imbalance may not be controlling in an individual discrimination case where a
legitimate reason for the employer’s action is present.” Bauer, 647 F.2d at 1045.
Thus, the “real question is whether the [employment actions at issue], and those
[actions] alone, involved discrimination on the basis of sex.” Id. (emphasis
added). “[I]n order for statistical evidence to create an inference of discrimination,
the statistics must show a significant disparity and eliminate nondiscriminatory
explanations for the disparity. In other words, a plaintiff’s statistical evidence
must focus on eliminating nondiscriminatory explanations for the disparate
treatment by showing disparate treatment between comparable individuals.” Fallis
v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991) (citation omitted)
(emphasis in original); see also Pippin, 440 F.3d at 1197–98.
Each category of statistical evidence Turner cites fails to create a genuine
issue of material fact. First, Turner’s statistic regarding the gender imbalance of
the “non-traditional” workforce at Comanche does not, without additional
4
Evidence of past and subsequent adverse employment actions may be
introduced to provide “background” for the adverse employment action at issue in
a Title VII case though the past and subsequent actions are not the basis of the
claim before the court. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.
2003).
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evidence, suggest that Turner herself experienced discrimination. The numbers fail
to provide any information regarding whether the decision not to hire Turner, and
that decision alone, “involved discrimination on the basis of sex.” Bauer, 647 F.2d
at 1045. Without evidence regarding the number of male and female applicants,
interviewees, and the like, the employment statistic is nearly meaningless. See
Sanders v. Sw. Bell Tel., LP, 544 F.3d 1101, 1110 (10th Cir. 2008) (“Because the
statistics fail to account for [numerous relevant] variables, they do not constitute
evidence of pretext.”); Timmerman, 483 F.3d at 1126 (Lucero, J., concurring)
(“[T]he statistics in this case ultimately provide little material support to
Timmerman’s claim . . . . [M]ale applicants significantly outnumbered female
applicants . . . .”); see also LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir.
1993) (“[A] company’s overall employment statistics will, in at least many cases,
have little direct bearing on the specific intentions of the employer when
dismissing a particular individual.”).
Second, Turner once again fails to account for the fact that another woman
participated in the same 2004 application process as Turner, performed second-best
among seventeen interviewees, and received a job offer. Indeed, neither Turner’s
initial brief nor her reply brief even mentions this important fact; she instead
incorrectly states in her initial brief that PSCo made “zero selection [of women]
over a 15-year period of time.” Aplt. Br. at 25 (emphasis in original). PSCo points
out that if the other woman’s candidacy is included in the statistics for the 2004
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hiring, PSCo’s offer rate stood at an entirely reasonable rate of 50 percent for
women (one offer out of two candidates). Cf. Carney v. City and County of
Denver, 534 F.3d 1269, 1275 (10th Cir. 2008) (suggesting that “gross statistical
disparities” may show pretext, but refusing to determine whether the statistical
disparities at issue were gross because there were numerous problems with the
plaintiff’s statistical evidence) (internal quotation marks and citation omitted).
Furthermore, though Turner places great emphasis on the fact that PSCo
“was unable to hire a single female from 1992 to 2005,” Aplt. Br. at 26, she admits
that Comanche was subject to a hiring freeze for a large portion of that time period,
and no candidates—regardless of their sex—could have been hired then. Also,
Turner once again distorts the numbers. She fails to acknowledge that from 1999
to 2005, after the hiring freeze was lifted, the hiring pool included only two
women—Turner and one other candidate—and the other woman received a job
offer.
And although PSCo again refused to hire Turner in 2006, Turner neglects to
mention it hired three women for entry-level positions that year. For Turner’s
statistics to be probative of discrimination, they must “relate to the proper
population,” see Carpenter v. Boeing Co., 456 F.3d 1183, 1196 (10th Cir. 2006),
and by conspicuously excluding from her data the fact that PSCo hired three
women in 2006, Turner undercuts her statistical argument. The numbers may not
be derived from a sufficiently large sample to be entirely reliable one way or the
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other, but at the very least, it is obvious they fail to show “disparate treatment
between comparable individuals.” Fallis, 944 F.2d at 746 (emphasis in original);
see also Carney, 534 F.3d at 1275–76 (expressing concern for whether “the
statistical disparities [the plaintiff] cites are statistically significant,” and
concluding “the record provides no basis on which a rational fact finder could
conclude” the plaintiff had proven her discrimination claim).
Finally, none of Turner’s statistics eliminates PSCo’s nondiscriminatory
reason for refusing to hire her. See Pippin, 440 F.3d at 1198. She suggests she
completed PSCo’s hiring process with flying colors in 2000, 2004, and 2006. But
the record contradicts this assertion: while she may have satisfied the screening
criteria (the POSS/MASS test and PSCo’s resume review), she failed the most
important portion of the selection process, the interview itself. In 2004, Turner
received the second-to-lowest overall interview rating, and like other applicants
who performed poorly on the interview, was not offered a job. Because Turner’s
statistics do not account for her poor interview performance, they are insufficient
to create an inference of pretext. See Fallis, 944 F.2d at 747 (holding that because
a group of workers who were in a protected class received “lower proficiency
ratings” than their peers and the plaintiff’s statistical evidence did not account for
these low ratings, the statistics failed to create an inference of discrimination).
C. Lost Documents
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Turner’s last argument concerns missing notes the interviewers took during
the 2000 and 2004 hiring sessions, which the interviewers used to assess the
applicants’ interview performances and assign interview scores. Turner claims that
because PSCo allegedly lost or refused to produce the notes, she is entitled to
judgment as a matter of law on her Title VII claim. PSCo argues it did not
intentionally withhold the interview notes, but that they were apparently lost in
transit when they were mailed from the Comanche Power Plant to PSCo’s central
staffing office in Minneapolis. 5
During discovery, PSCo produced thousands of pages of documents,
including 195 pages related to the 2000 and 2004 hirings. Because the documents
did not include the interview notes from the 2000 and 2004 hirings, Turner filed a
motion to compel in the district court, seeking an “accounting” of the missing
interview notes and arguing that she was “entitled to an adverse instruction.” App.
Vol. II at 244. The district court referred the motion to a magistrate judge, who
issued an order denying the motion because of its overbreadth.
Turner did not appeal the magistrate judge’s order to the district judge, nor
did she move for sanctions under Federal Rule of Civil Procedure 37 for PSCo’s
nondisclosure. Instead, she argued in her response brief to PSCo’s motion for
summary judgment that she was “left without any ability to challenge the interview
5
PSCo sent these documents to Minneapolis before Turner filed her charge
of discrimination with the Equal Employment Opportunity Commission.
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scoring” because PSCo failed to produce the 2000 and 2004 interview notes. App.
Vol. I at 54. PSCo interpreted Turner’s argument as a spoliation of evidence claim.
If Turner prevailed on this claim, the district court could have imposed various
sanctions on PSCo for nondisclosure of the interview notes, including an adverse
inference that the lost interview notes would have proved Turner’s claim of pretext.
See, e.g., Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008).
PSCo argued in its summary judgment reply brief that Turner failed to
provide evidence of bad faith on the part of PSCo and therefore could not prove she
was entitled to an adverse inference under her spoliation theory. In its order
granting summary judgment for PSCo, the district court noted that Turner failed to
“specify what relief she seeks based on PSCo’s inability to produce these
[interview] notes.” App. Vol. I at 80. The court concluded there was no evidence
of bad faith on the part of PSCo, and even if PSCo had been negligent with respect
to the interview notes, its negligence would not have created a triable issue of fact
as to whether the decision not to hire Turner was pretextual.
Turner again presses her spoliation claim on appeal. She argues that PSCo
was required under 29 C.F.R. § 1602.14 to retain the interview notes “until final
disposition” of Turner’s discrimination charge. She further contends that she
suffered prejudice because she now lacks evidence to challenge the interviewers’
assessments of her interview performance. Finally, she alleges that PSCo acted in
bad faith when it failed to produce the interview notes.
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Even in cases where employers destroy evidence they are required to retain
under 29 C.F.R. § 1602.14, plaintiffs must be “diligent in the defense of their own
interests,” and should seek sanctions under Federal Rule of Civil Procedure 37 to
remedy any prejudice caused by spoliation. See Mathis v. John Morden Buick,
Inc., 136 F.3d 1153, 1156 (7th Cir. 1998). When a plaintiff fails to seek sanctions
under Rule 37 and thus “forecloses access to the substantial weaponry in the
district court’s arsenal,” the plaintiff’s only remaining option is to seek sanctions
under a spoliation of evidence theory. Id. at 1155; see also Aramburu v. Boeing
Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (applying the spoliation of evidence
doctrine in a discrimination case).
Spoliation sanctions are proper when “(1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and
(2) the adverse party was prejudiced by the destruction of the evidence.”
Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007).
But if the aggrieved party seeks an adverse inference to remedy the spoliation, it
must also prove bad faith. “Mere negligence in losing or destroying records is not
enough because it does not support an inference of consciousness of a weak case.”
Aramburu, 112 F.3d at 1407. Without a showing of bad faith, a district court may
only impose lesser sanctions. Henning, 530 F.3d at 1220. We review a district
court’s finding of bad faith or “mere negligence” for clear error, id., and the district
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court’s decision to impose or deny spoliation sanctions for abuse of discretion.
Grant, 505 F.3d at 1032.
The district court did not clearly err in concluding that PSCo lacked bad
faith. Considering the record as a whole, we cannot say the district court’s finding
was without factual support, nor do we have a definite and firm conviction that the
district court’s finding was a mistake. See Aquila, Inc. v. C.W. Mining Co., 545
F.3d 1258, 1263 (10th Cir. 2008). PSCo provided evidence, in the form of an email
from Edmisson to a staff member in Minneapolis, that Edmisson attempted to send
the interview notes to Minneapolis before Turner filed her charge of
discrimination. Additionally, PSCo produced numerous documents relating to the
2000 and 2004 hiring, including Edmisson’s “hiring plan,” Turner’s 2004 interview
score sheet, a document revealing the scores of each candidate interviewed in 2004,
and PSCo’s Competency-Based Interview Guide. See Aramburu, 112 F.3d at 1407
(though the employer lost pertinent employment records, “any inference of bad
faith is undermined by the other [] records produced by [the employer]”). Finally,
PSCo made Edmisson available for a deposition by Turner’s counsel, during which
Edmisson answered extensive questions regarding the interview process and his
decision not to hire Turner. The record as a whole therefore does not suggest that
PSCo acted in bad faith when it lost the 2000 and 2004 interview notes, and Turner
was not entitled to an inference that the lost interview notes would have proved her
pretext claim. See id. (because the record did not support a finding of bad faith, the
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plaintiff had “not shown himself entitled to an adverse inference under the
spoilation doctrine”).
The court moreover did not abuse its discretion when it refused to impose a
lesser sanction to remedy PSCo’s alleged spoliation. Assuming PSCo had a duty to
retain the interview notes under the spoliation doctrine, there is no evidence that
Turner was “actually, rather than merely theoretically” prejudiced by their loss.
See Grant, 505 F.3d at 1032–33. As noted above, Turner had access to a
significant amount of evidence regarding the interview process and her
performance during the 2004 interview. Turner herself admitted in deposition
testimony that she performed poorly during her 2004 interview. Her interview
score sheet confirmed this admission, as did Edmisson’s deposition testimony.
Turner has presented no evidence suggesting that Edmisson or anyone else at PSCo
made their decisions based upon a bias against women, and it is unlikely that the
sole reason why Turner has been unable to prove her claim is the loss of the
interview notes.
III. Conclusion
For these reasons, we AFFIRM the district court’s grant of summary
judgment in favor of PSCo.
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Turner v. Public Service Co. of Colorado
Court: Court of Appeals for the Tenth Circuit
Date filed: 2009-04-28
Citations: 563 F.3d 1136
Copy Citations