F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
March 27, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LIN D A M . PIER CY ,
Plaintiff-Appellant,
v. No. 05-1192
TERRY M AK ETA, as Sheriff of El
Paso County Sheriff’s Office, EL
PASO COUNTY SHERIFF’S
O FFICE, and TH E B OA RD O F
C OU N TY CO M M ISSIO N ER S OF
TH E COU N TY O F EL PA SO ,
Defendants-Appellants.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 03-N-2311 (CBS))
Stefan Kazmierski, Roseman & Kazmierski, L.L.C., Denver, Colorado, for
Appellant.
Jessica Kyle M uzzio (Gordon L. Vaughan with her on the brief) Vaughan &
DeM uro, Colorado Springs, Colorado, for Appellees.
Before BR ISC OE, B AL DOC K , and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge.
Linda Piercy sued the El Paso County Sheriff’s O ffice and several of its
employees, alleging sex discrimination and retaliation. The district court granted
the defendants’ motion for summary judgment, finding (1) no causal connection
between a complaint Piercy filed with the Colorado EEOC and her termination
that would support the retaliation claim, and (2) no adverse employment action
that would support the sex discrimination claim.
W e affirm the district court’s grant of summary judgment on the retaliation
claim, but reverse and remand for further proceedings on one aspect of the
discrimination claim— Piercy’s allegation that she was precluded from
transferring to El Paso’s male-only jail.
I. Background
In 1996, Piercy was hired as a Deputy Sheriff at the Colorado Springs jail
(CJC). She claims that after her hiring, she and her female coworkers
experienced sex discrimination in the workplace, primarily in the form of
discriminatory practices that prevented w omen from getting desirable shifts,
transfers, and break times. At the time, the El Paso County Sheriff’s Office
(EPSO) had two jails. CJC was a general facility housing both male and female
inmates. M etro Jail w as a maximum security facility housing only male inmates.
EPSO ’s practice was to classify prisoners based on the inmates’ sex and
security level. Thus, for example, women prisoners would be housed in Alpha 3,
the female ward in CJC. That ward is a large, open unit with no separation of
prisoners based on seriousness of offense, mental illness, or security risk. As a
result, Piercy claims that Alpha 3 is a more difficult ward to work than some of
the other w ards at CJC. M etro, on the other hand, houses only male inmates in
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separate cells, and its inmates are not allowed in open areas after curfew. Piercy
alleges w ork in M etro can be less stressful and safer because the inmate
population is smaller and does not have direct access to staff at all tim es.
Piercy also complains that certain job duties are restricted by the sex of an
employee. For example, women are allow ed to work in A lpha 3 by themselves,
but men can work there only if accompanied by another deputy sheriff (male or
female). M ale deputies in CJC are not allow ed to pat down female prisoners,
conduct checks in the female cells, or enter a female cell without another deputy
present. By contrast, female deputies have no such restrictions in the male wards.
Because of staffing allocations, women are often required to work in Alpha 3
alone, which means they are not allowed to bid for shifts in other areas, despite
any seniority they might have. Also, although males are not allow ed to w ork
alone in Alpha 3, they are allowed to escort female prisoners to other parts of the
prison without another escort. 1
In late August 2002, the allegedly discriminatory practices came to a head
when EPSO posted a job opening to work at M etro Jail, stating that
“Unfortunately, at this time, only requests from male deputies will be accepted.”
R. at 89. About the same time, a series of events commenced that ended in
Piercy’s termination.
1
Piercy claims these policies differ from other prison systems. She
conducted an informal survey of Colorado jails in November 2001 and concluded
the majority of other facilities did not share the same policies as EPSO.
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First Tongue Stud Incident. On August 1, 2002, one of Piercy’s
supervisors, Lieutenant Paula Presley, saw Piercy wearing a tongue stud. Presley
believed the stud was a dress-code violation and asked Piercy’s immediate
supervisor, Sergeant M atthew Kortrey, to address the issue.
Kortrey met with Piercy to discuss EPSO ’s dress code policy, but the
parties dispute what Kortrey told her about the tongue stud. Kortrey claims that
when he initially approached Piercy about the matter, he was uncertain w hether a
tongue stud was prohibited under the policy. He promised to “research it to be
sure” but told her in the mean time, “I think it would be prudent if you didn’t
wear it in full duty.” R . at 152, 13:24–25.
Kortrey later discovered the policy prohibited “visible body piercings . . .
while on duty (other than post type earrings for females).” R. at 823. On A ugust
12, 2002, he asked Piercy if she was still wearing the tongue stud. She said she
was. Kortrey claims that “[w]hile [the dress] policy does not mention ‘tongue
studs’ directly, I determined that it met the standard of a visible body piercing
that is not allowed by policy. Commander Presley concurred, and I directed
Deputy Piercy accordingly that a ‘tongue stud’ could not be worn while on duty.”
Id.
Piercy, on the other hand, claimed Kortrey only told her she could not wear
a visible tongue stud but that he had no problem w ith a transparent stud. She
claims she responded she would “just get a clear piercing and that should solve
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the issue,” to which Kortrey apparently made no objection. R. at 228.
Consequently, Piercy replaced the metallic stud with a clear one.
Piercy’s Employee Grievance. On September 1, 2002, Piercy submitted an
informal employee grievance memo to Undersheriff Teri Goodall, 2 complaining
about the August 27 job posting stating female deputies would not be considered
for a position at M etro. She also informed Sergeants Kortrey and Caron Allen 3
that she intended to take her complaint outside the department if it was not
addressed. On November 7 or 8, she informed Allen and Kortrey that she was
filing an EEOC complaint, although she did not actually do so until November 18.
Second Tongue Stud Incident. In the meantime, on November 13, 2002,
Sergeant A llen saw Piercy wearing a tongue ring and ordered her to remove it.
Allen asked Piercy if she had been counseled not to wear a tongue stud, and
Piercy denied ever receiving such counsel. Allen recorded in a written statement
that Piercy claimed “Sergeant Kortrey had told her that as long as it was small,
clear, and not visible, it would be okay.” R. at 185. Allen responded that “it was
visible, that [she] could see it, and . . . reiterated [the] order not to wear it on duty
or in uniform.” Id. A week later, Lieutenant Dale G oodell and Allen met with
2
The record here refers to Bureau Chief T. L. Johnson. Johnson was later
promoted to Undersheriff and changed her last name to Goodall, becoming
Undersheriff Teri Goodall for many of the following events. W e use her latter
name and title for continuity and clarity throughout the opinion.
3
Allen replaced Kortrey as Piercy’s immediate supervisor in late October
2002.
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Piercy to discuss the tongue ring incident. She again told them K ortrey had never
ordered her not to wear a tongue stud.
At Goodell’s request, Kortrey wrote a memorandum w hich stated he had
twice counseled Piercy not to wear a tongue stud, as policy prohibited visible
body piercings, and on November 26, 2002, Goodell filed a formal complaint with
the Internal Affairs office complaining that Piercy had violated personnel policies
and then lied about it. As the investigation progressed, Piercy complained she
was being retaliated against because of her employee grievance and singled out
for violating operating policies. On December 13, 2002, she submitted a memo
requesting a transfer and complaining of retaliation.
The Internal Affairs Recommendation. The internal affairs investigation
was completed in late January 2003. The disposition recommended that Piercy be
terminated for (1) disobeying orders, (2) dishonesty, and (3) dress-code
violations. Various prison officials reviewed the findings, and all but one agreed
Piercy should be terminated. 4 On February 11, 2003, Undersheriff Teri Goodall
terminated Piercy on the basis of the three violations found by internal affairs. [R.
at 237.] Piercy appealed the discharge to Sheriff Terry M aketa, stating her belief
that “the internal investigation was originally initiated as a result of a
miscomm unication between [herself] and Sergeant Kortrey” and that she “ha[d]
4
The dissenting voice recommended suspension and disciplinary probation
rather than termination, but sustained the findings against Piercy.
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not yet been able to present [her] side of this case.” R. at 239. Nevertheless,
M aketa affirmed the decision.
On M arch 12, 2003, Piercy filed an amended EEOC complaint, adding a
retaliation claim. After receiving a right to sue letter for both her discrimination
and retaliation claims, she filed a complaint in district court, alleging Sheriff
M aketa, EPSO , and the Board of County Commissioners engaged in sex
discrimination and retaliation prohibited under Title VII. The complaint also
named various defendants associated with EPSO . All defendants moved for
summary judgment on the grounds that Piercy had not sustained her burden of
proof on either claim. The district court agreed and granted the motion.
This appeal followed.
II. Analysis
W e review the grant of summary judgment de novo. Argo v. Blue Cross &
Blue Shield of Kan., 452 F.3d 1193, 1199 (10th Cir. 2006). Summary judgment is
warranted only “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). In conducting our analysis,
we view all of the facts in the light most favorable to the non-movant and
reasonable inferences from the record must be drawn in favor of the non-moving
party. Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006).
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W hile we view the record in the light most favorable to the non-moving
party, that party must still identify sufficient evidence requiring submission to the
jury to survive summary judgment. Adler v. Wal-M art Stores, 144 F.3d 664,
671–72 (10th Cir. 1998). W hen a party relies on affidavit evidence, it may be
insufficient to create a triable fact if it is nonspecific or otherwise non-responsive,
vague, conclusory, or self-serving. See Salguero v. City of Clovis, 366 F.3d 1168,
1177 n.4 (10th Cir. 2004).
W ith these principles in mind, we turn to Piercy’s retaliation and
discrimination claims.
A. Retaliation
Piercy claims EPSO fired her in retaliation for her complaints about the
M etro Jail transfer policy.
To establish a prima facie claim for retaliation, an employee must establish
(1) he or 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. M cGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006).
Following the well-known M cDonnell Douglas test, if a prima facie case is
established, the employer can rebut it by articulating a “legitimate
nondiscriminatory reason” for the adverse action. Id. (citing M cDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–04 (1973)). The burden then shifts back to the
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employee to show that the proffered reason actually is a pretext masking
discriminatory animus. Id.
The district court concluded Piercy had not established a prima facie case.
The court found Piercy had not established the third prong of a causal connection
between her termination in February 2003 and the filing of an employee grievance
about the M etro Jail policy in September 2002 or the EEOC complaint in
November 2002. On appeal, Piercy claims the internal affairs investigation that
led to her dismissal was, itself, evidence of retaliation.
W e agree with Piercy that the investigation was evidence to consider in
ruling on causation. But because we determine no basis exists for finding the
termination was pretextual, we affirm the district court’s grant of summary
judgment.
1. Prim a Facie Case
The first two elements of a retaliation claim are easily satisfied. Piercy’s
filing of an EEOC complaint is protected conduct; her dismissal was an adverse
employment action.
The last hurdle Piercy must overcome is establishing that her dismissal was
causally connected to the filing of the complaint. W e have held, “A retaliatory
motive may be inferred when an adverse action closely follows protected activity.
How ever, unless the termination is very closely connected in time to the protected
activity, the plaintiff must rely on additional evidence beyond tem poral proximity
to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
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(10th Cir. 1999) (emphasis in original) (internal citations omitted); see also
O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001).
These temporal proximity cases stand for two important points. First, if the
only evidence of causation is a temporal relationship, then the adverse action
must occur closely follow ing the protected activity. For example, an adverse
employment action that happened more than three months after the protected
activity was not entitled to a presumption of causation. Hysten v. Burlington
Northern & Santa Fe Ry., 296 F.3d 1177, 1183–84 (10th Cir. 2002); Richmond v.
Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (noting a three-month separation
did not destroy any causal connection but simply failed to establish by itself such
a connection).
Second, the passage of time does not necessarily bar a plaintiff’s retaliation
claim if additional evidence establishes the retaliatory motive. Other evidence in
the record could establish an adverse employment action taken after a lengthy
period of time was still in response to the earlier, protected activity— temporal
remoteness is not necessarily dispositive. W hile “[w]e have recognized that
protected conduct closely followed by adverse action may justify an inference of
retaliatory motive,” nonetheless, “the phrase ‘closely followed’ must not be read
too restrictively where the pattern of retaliatory conduct begins soon after the
[protected action] and only culminates later in actual discharge.” M arx v.
Schnuck M kts., Inc., 76 F.3d 324, 329 (10th Cir. 1996).
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Guided by these authorities, we must consider whether Piercy can make a
prima facie showing of retaliation if we treat the internal affairs investigation,
which began on November 26, 2002, as additional evidence of retaliation. 5 The
possible predicate protected acts would be (1) the September 1, 2002, informal
grievance memo about the M etro Jail vacancies; (2) her informal threat in
September 2002 to take her complaints “outside the department”; and (3) the
November 18, 2002, EEOC complaint. 6
W e need not resolve whether the informal September complaints are too
early to support a retaliation claim because the EEOC complaint in mid-
November is closely juxtaposed with the beginning of the internal affairs
investigation on November 26. The salient facts are as follow s:
• November 7 or 8, 2002 - Piercy informed her supervisors that she
was filing formal charges.
• November 13, 2002 - Sergeant Allen saw Piercy wearing a tongue
stud and ordered her to remove it. Allen also asked Piercy if she had
been counseled not to wear a tongue stud, and Piercy denied ever
receiving such counsel.
• November 18, 2002 - Piercy filed a complaint with the Colorado
EEOC.
5
Piercy does not take the position that the investigation itself was an
adverse employment action.
6
The district court also rejected two minor events that happened in
December as protected acts when Piercy complained about retaliation. These
complaints can have no causal connection to either the internal affairs
investigation or the actual termination because, as the district court concluded (1)
they involved persons outside her chain of command, or (2) they involved the
already pending internal affairs investigation.
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• November 20, 2002 - Lieutenant Goodell and Sergeant Allen met
with Piercy to discuss the tongue stud incident. Piercy referred to
her September 1, 2002 grievance memo in that meeting.
• November 26, 2002 - Goodell submitted a complaint regarding
Piercy to Internal Affairs.
Viewed in the light most favorable to Piercy, these facts support a theory
that (1) Piercy notified her superiors she planned to pursue formal discrimination
charges, (2) her supervisors subsequently commenced an investigation based on
her violation of personnel policies, which (3) culminated in a recommendation
Piercy be fired, and (4) Piercy was fired. Although some of these facts are
disputed— especially the question of the motive behind the investigation— if true,
they link her protected conduct with an adverse employment action in a
temporally sufficient manner. Piercy has therefore satisfied the causation element
of a prima facie case for purposes of summary judgment.
W e must therefore examine the remaining M cDonnell Douglas factors to
determine if summary judgment was appropriate.
2. Legitimate, Nondiscriminatory R eason
In response to Piercy’s prima facie showing, defendants are entitled to offer
a “legitimate, nondiscriminatory reason for the adverse employment action.”
O’Neal, 237 F.3d at 1252. Defendants claim Piercy was fired for three reasons:
(1) failure to obey orders, (2) “departure from the truth,” and (3) a uniform
violation (wearing a tongue ring).
Piercy argues these reasons were not legitimate grounds for firing her
because EPSO did not typically fire employees for violating these rules. She
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submits a chart showing several employees who were not fired, despite having
several violations, including departure from the truth. The record also suggests
dress code violations often went undisciplined, even unnoticed, i.e. no discipline
for jew elry violation, no discipline for uniform violations, another employee’s
tongue stud. Defendants concede the uniform violation alone would not have
been enough to terminate Piercy. But defendants argue the three violations
together justify Piercy’s dismissal. Piercy’s chart does not undercut defendants’
claim that the three violations taken together were legitimate grounds for firing
her. In every 2002 case cited by Piercy’s chart in which departure from the truth
was alleged and sustained, the employee was terminated. If anything, Piercy’s
chart shows a firm pattern of discipline against employees who do not tell the
truth. While the chart shows only superficial details about other disciplinary
cases, it plainly establishes that the three proffered reasons, when sustained, were
adequate grounds for firing Piercy.
W e therefore must move to the final factor necessary to avoid summary
judgment: Is there evidence that the termination was pretextual?
3. Pretext
Because defendants can show legitimate reasons for Piercy’s dismissal, the
burden shifts back to Piercy to demonstrate why the stated reasons are pretextual.
See O’Neal, 237 F.3d at 1252. “[S]ummary judgment is appropriate where a
plaintiff cannot meet the burden of proving that an employer’s articulated
nondiscriminatory reason for an alleged retaliatory action is pretextual.” M iller v.
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Auto. Club of New M exico, Inc., 420 F.3d 1098, 1123 (10th Cir. 2005). In
establishing pretext, an employee can show “the employer’s proffered reason was
so inconsistent, implausible, incoherent, or contradictory that it is unworthy of
belief.” Id. (internal quotations omitted).
“[A] challenge of pretext,” however, “requires a court to look at the facts as
they appear to the person making the decision to terminate, not the aggrieved
employee.” Green v. New M exico, 420 F.3d 1189, 1191 n.2 (10th Cir. 2005);
Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1231 (10th Cir. 2000). In this
case, the relevant eyes through w hich to view the termination decision are those
of Undersheriff Goodall and Sheriff M aketa. “The relevant inquiry is not whether
[their] proffered reasons were wise, fair or correct,” but rather we ask whether
they believed those reasons to be true and “acted in good faith upon those
beliefs.” Rivera v. City and County of Denver, 365 F.3d 912, 924–25 (10th Cir.
2004) (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th
Cir. 1999)). Even a mistaken belief can be a legitimate, non-pretextual reason for
an employment decision. EEOC v. Flasher Co., 986 F.2d 1312, 1322 n.12 (10th
Cir. 1992). Accordingly, “[their good faith] perception of the employee’s
perform ance . . . is relevant, not plaintiff’s subjective evaluation of [her] own
relative performance.” Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th
Cir. 1999) (internal quotations omitted).
W e have recently elaborated on the “quantum of evidence” that must be
shown for a trier of fact in a discrimination claim to reasonably infer that an
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employer is acting in bad faith to cover up a discriminatory purpose. Young, 468
F.3d at 1250. The fact finder must be able to conclude “discrimination was a
determinative factor in the employer’s actions— simply disbelieving the employer
is insufficient.” Id. Our standard for a retaliation claim, then, leads to our central
question: Did Piercy offer any evidence that the decisionmakers who terminated
her— Undersheriff Goodall and Sheriff M aketa— did not honestly believe Piercy
committed the three violations or terminated Piercy for retaliatory reasons? W e
conclude she did not.
Piercy mainly argues conflicting evidence exists about what she was told
regarding wearing a tongue ring, so summary judgment was improper. But
conflicting evidence only affects summary judgment if it is relevant to the
inquiry. W hile both sides present a different explanation of the communications
between Kortrey and Piercy regarding her tongue ring, in the end, Piercy has not
shown any reason to believe M aketa or Goodall dismissed her to mask retaliatory
motives.
First of all, the decision to recommend dismissal of Piercy was made on
February 11, 2003, by Undersheriff Goodall only after completion of the internal
affairs investigation. Goodall testified she made the decision based on all of the
evidence presented to her, including Piercy’s version of the events surrounding
the tongue stud. Piercy was then given the opportunity to appeal Goodall’s
recommendation to Sheriff M aketa, who sustained the dismissal. The evidence
before them included, among other things, (1) Kortrey’s contemporaneous
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memorandum in August summarizing his conversation with Piercy; (2) undisputed
evidence that Piercy was admonished against wearing a visible tongue ring; (3)
suggestions that Piercy shaded the truth about her conversation with Kortrey
when she was admonished a second time about her tongue ring in November; and
(4) a history of insubordination by Piercy that pre-dated the tongue ring
incidents. 7 Thus, nothing suggests the proffered reasons for termination are weak,
implausible, or inconsistent. Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303, 1308
(10th Cir. 2005).
Second, even if Piercy and Kortrey simply misunderstood each other when
Kortrey discussed the policy with her, nothing suggests the Undersheriff acted in
bad faith in ordering the termination of Piercy or that the Sheriff acted in bad
faith in sustaining the dismissal based on the evidence before them. 8 As
discussed above, the previous Sheriff sustained every termination involving
departure from the truth in 2002, 9 and Piercy has not pointed to material disputed
facts that Goodall or M aketa treated her differently from other employees subject
7
Piercy claims an internal EPSO memo referencing “problem people”
further supports her contentions. Given the lack of context— date, authorship,
origins, intent— the vague references do not provide evidence of retaliation. Rea
v. M artin M arietta Corp., 29 F.3d 1450, 1457 (10th Cir. 1994) (“the plaintiff
must demonstrate a nexus between the allegedly discriminatory statements and the
defendant’s decision to terminate her.”).
8
Piercy speculates G oodall could be retaliating in bad faith for Piercy’s
filing of complaints, but she offers no evidence beyond conjecture and conclusory
statements.
9
In 2002, M aketa was the undersheriff. He became sheriff in January of
2003.
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to discipline. If the employer’s stated reasons were held in good faith at the time
of the discharge, even if they later prove to be untrue, we cannot conclude they
were a subterfuge for discrimination or, likewise, retaliation. Rivera, 365 F.3d at
924–25. 10
In her response to defendants’ motion for summary judgment below, Piercy
relied primarily on two pieces of evidence, (1) a chart of disciplinary actions
regarding other officers, (2) as w ell as specific discussion of certain disciplinary
cases to demonstrate pretext by indicating she was treated differently than other
officers in her termination. 11 It has been held that evidence of less severe
discipline for other employees that are not members of the same protected group
who violated work rules of comparable seriousness can establish pretext. See
M cDonnell Douglas, 411 U .S. at 804. But such evidence usually requires a
consistent chain of command for relevance, however, since different supervisors
may simply discipline employees with differing severity across the board.
10
Our decision in EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476
(10th Cir. 2006), discusses a theory where evidence that the terminating officers’
decisions were manipulated by subordinates w ith discriminatory or retaliatory
motives could lead to a finding of pretext. Such a theory was not raised by the
plaintiff in this case, so we need not analyze the possibility. Piercy, in any event,
charges G oodall and M aketa w ith intentionally retaliating against her.
11
Piercy also contends the failure to use polygraphs, which “are used in
[Internal Affairs] investigations at the discretion of the supervisors at EPSO”
demonstrates that EPSO acted contrary to company practice when taking action
against her and this is evidence of pretext. R. at 327. But Piercy’s own words
betray her contention. She admits polygraph use is discretionary, thus deciding
against the employment of polygraphs here cannot be contrary to company
practice. And Piercy submitted evidence that polygraphs w ere not uniformly
employed in Internal Affairs investigations.
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Piercy admitted that none of the individuals in her alleged examples shared
the sam e chain of command. She argued to the district court, however, that we
previously held different supervisors do not preclude consideration of differential
treatment evidence in determining pretext and cited to Gossett v. Oklahoma ex
rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1177–78 (10th Cir. 2001)
and EEOC v. Horizon/CM S Healthcare Corp., 220 F.3d 1184, 1198 n.10 (10th
Cir. 2000). In both of those cases, we determined the same supervisor test was
irrelevant when considering allegations of a company-w ide discriminatory policy.
But there were no allegations of a company-w ide policy of retaliation in this case.
Accordingly, the same supervisor test applies, undermining Piercy’s claim of
disparate treatment. See Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir.
1997).
Piercy has failed to bring forward evidence to show that retaliatory motive
was a determinative factor in her dismissal. Accordingly, she has not sustained
her burden under M cDonnell Douglas to establish fact issues for trial.
B. Sex Discrim ination
In addition to her retaliation claim, Piercy claims EPSO discriminated
against her prior to her termination through various sex-based policies that led to
adverse employment actions in the form of: (1) less desirable assignments at CFC,
and (2) a barrier to transferring to M etro Jail. The district court granted summary
judgment on this claim because it concluded Piercy had not established an adverse
employment action under the M cDonnell Douglas burden-shifting test. W e agree
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on its assessment of the first policy, but find the district court erred when
examining the question of transfer to M etro.
The parties and the district court applied the M cDonnell Douglas
framew ork to the sex discrimination claim. On Piercy’s first allegation of
discrimination, we agree that M cDonnell Douglas is appropriate.
1. Shift-Bidding Policy
To make her prima facie M cDonnell Douglas case for sex discrimination,
Piercy must establish (1) she is a member of a protected class; (2) she suffered an
adverse employment action; (3) she was qualified for the position at issue; and (4)
she was treated less favorably than others not in the protected class. Sanchez v.
Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). The district court found
Piercy could not establish an adverse employment action because EPSO’s shift-
bidding process created a “mere inconvenience” that did not rise to the level of an
adverse action.
The Supreme Court most recently addressed the contours of adverse
employment actions in Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct.
2405 (2006). The Court made clear the substantive discrimination provisions of
Title VII are limited “to [adverse] actions that affect employment or alter the
conditions of the workplace.” 126 S. Ct. at 2412. Thus, while Burlington
Northern modified our retaliation standards for adverse actions, it had no similar
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effect on our discrimination jurisprudence. 12 Accordingly, we continue to
examine claims of adverse action on the basis of race or sex discrimination on a
case-by-case basis, “examining the unique factors relevant to the situation at
hand.” Sanchez, 164 F.3d at 532.
Adverse employment action includes “significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.”
Hillig v. Rumsfeld, 381 F.3d 1028, 1032–33 (10th Cir. 2004). But we still will
not consider “a mere inconvenience or an alteration of job responsibilities to be
an adverse employment action.” Sanchez, 164 F.3d at 532 (internal quotations
omitted).
In Sanchez, we held that a female teacher denied transfer to a position with
“the same salary and benefits . . . [and] substantially similar duties” did not suffer
an adverse employment action because the position was “a purely lateral
transfer.” Id. “If a transfer is truly lateral and involves no significant changes in
an employee’s conditions of employment, the fact that the employee views the
12
Burlington Northern applied a more lenient standard in analyzing the
anti-retaliation provisions of Title VII. A challenged action may be adverse in a
retaliation case if “a reasonable employee would have found [it] materially
adverse.” M cGowan, 472 F.3d at 742 (quoting M ickelson v. New York Life Ins.
Co., 460 F.3d 1304, 1315 (10th Cir. 2006)); Argo, 452 F.3d at 1202 n.2. The
relevant inquiry is whether the employer’s action “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern, 126 S. Ct. at 2415 (internal quotations omitted).
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transfer either positively or negatively does not of itself render the denial or
receipt of the transfer [an] adverse employment action.” Id. at 532 n.6.
Piercy’s allegation of discrimination in shift-bidding fails for the same
reasons as the claims in Sanchez. M ost of Piercy’s arguments go to the
desirability of certain shifts at CJC. But all of the shifts had similar duties and
responsibilities, and, on this record, cannot be seen as substantially different than
one another. Piercy, moreover, was eligible for different shifts, it was only the
frequency with which she succeeded in her bids that was at issue. In this context,
the district court properly found EPSO ’s shift-bidding policies that required
certain numbers of female and male guards to be available at CJC were a “mere
inconvenience” and did not constitute an adverse employment action. W e agree
with the district court’s assessment. 13
2. M etro Jail Transfer Policy
The parties and the district court also applied M cDonnell Douglas in
analyzing the job posting at M etro where “only requests from male deputies will
be accepted.” R. at 89. In applying M cDonnell Douglas, the district court found
the M etro job constituted no more than a lateral transfer and based on Sanchez
determined no adverse employment action had occurred. W e disagree.
The prima facie case from M cDonnell Douglas helps establish “an
inference of discrimination” and “eliminates the most common nondiscriminatory
13
W e also agree with the district court that the additional duties of patting
down the female inmates at CJC (which the male guards did not have to do) does
not rise to the level of an adverse employment action.
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reasons for the plaintiff's rejection.” Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981). But where an employer’s policy is
discriminatory on its face, we need not worry about eliminating
nondiscriminatory reasons for an employer’s action. In cases of facial
discrimination, “There is no need to probe for a potentially discriminatory motive
circumstantially, or to apply the burden-shifting approach outlined in M cDonnell
Douglas Corp. v. Green.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1501
n.16 (10th Cir. 1995); see also Healey v. Southwood Psychiatric Hosp., 78 F.3d
128, 131–132 (3d Cir. 1996); Reidt v. County of Trempealeau, 975 F.2d 1336,
1340–41 (7th Cir. 1992). Once facial discrimination has been established in the
record, we review only to see (1) if the affected person is a member of the
discriminated class for purposes of standing; (2) whether the policy affects rights
protected by the statute; and (3) whether any affirmative defenses exist to the
discrimination.
In her motion for summary judgment below, Piercy asserted the policy
preventing women from taking jobs at M etro discriminated on its face and thus
only a bona fide occupational qualification per 42 U.S.C. § 2000e-2(e) could
justify such facial discrimination. Given the job posting’s clear language that
women need not apply, the facial discrimination is equally clear. As the job
posting’s language is plainly discriminatory on its face and Piercy is clearly an
affected member of the class, we turn to whether the discriminatory policy
affected protected rights.
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Section 703(a) of the Civil Rights Act of 1964, as amended, makes it illegal
for an employer “to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 2000e-
2(a)(1). “[E]mployment decisions that adversely affect an employee’s status” are
covered by the statute. Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 197
(1991). And as we noted earlier, this approach requires us to consider “the
unique factors relevant to the situation at hand.” Sanchez, 164 F.3d at 532.
Even if we were to analogize this case to Sanchez and its language
regarding lateral transfers as the district court did, we are not convinced the case
before us constitutes a truly “lateral transfer” w here the job duties w ere
substantially the same such that no adverse employment action occurred. Piercy
claims EPSO ’s policy preventing any female from transferring to M etro
materially discriminated against her and the other women deputies, and that, as a
consequence, they were ineligible for work in M etro. Piercy points to evidence
in the record (1) that work in M etro would be less arduous and stressful than CJC
due to the indirect nature of supervision, and (2) that the opportunity to w ork
M etro shifts increased her chances of obtaining additional job and leave
flexibility. W e think the differences in duties between the two prisons are
sufficiently substantial to preclude the district court’s finding that a transfer to
M etro from CJC would be purely lateral.
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Summary judgment was improperly granted on whether Piercy’s inability to
transfer to M etro Jail w as an adverse employment action.
3. Bona Fide O ccupational Q ualification
EPSO suggests two reasons for the policy that restricted Piercy from
bidding for a shift at M etro: (1) at the time, there were not enough female guards
available to staff the female w ard at CJC; and (2) privacy and safety
considerations required sufficient female staff at CJC. W hile these reasons may
be adequate to support EPSO ’s policy as a bona fide occupational qualification
that permits discrimination under 42 U.S.C. § 2000e-2(e), the district court did
not reach this question. W e remand for it to do so.
III. Conclusion
For these reasons, we AFFIRM the district court in part and REVERSE in
part, remanding for further proceedings with respect to the M etro Jail transfer
policy.
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