F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 27, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LIN D A A. TIM M ER MA N ,
Plaintiff - Appellant,
No. 06-1185
v.
U.S. BANK, N.A.,
Defendant - Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 04-CV-01903-REB-M JW )
M ari A. New man, (Darold W . Killmer and Sara J. Rich, with her on the briefs),
Killmer, Lane & Newman, L.L.P., Denver, Colorado, for Plaintiff - A ppellant.
Christine K. Lamb (and Thomas D. LeLand, on the brief), H ale, Friesen, L.L.P.,
Denver, Colorado, for Defendant - Appellee.
Before K ELLY , A LA RC ON, * and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
*
The Honorable Arthur L. Alarcon, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
Plaintiff-Appellant Linda A. Timmerman was terminated from her position
as branch manager at U.S. Bank after bank management discovered that she had
refunded at least $1,099 worth of overdraft fees to two subordinates’ bank
accounts. In response, M s. Timmerman brought sex and age discrimination
claims against U.S. Bank pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).
After U.S. Bank brought several state law counterclaims against M s. Timmerman,
she amended her complaint to add an abuse of process claim against U.S. Bank
under state law, retaliation claims against U.S. Bank under both Title VII and the
ADEA, and conspiracy claims against U.S. Bank under 42 U.S.C. § 1985(2).
Following discovery, the district court granted U .S. Bank’s motion for summary
judgment as to each of M s. Timmerman’s federal claims and refused to exercise
supplemental jurisdiction over the parties’ remaining state law claims. See
Timmerman v. U.S. Bank, No. 04-CV-01903, 2006 W L 894894, at *1 (D. Colo.
M ar. 31, 2006). This appeal followed. Our jurisdiction arises under 28 U.S.C. §
1291, and we affirm the district court’s grant of summary judgment.
Background
M s. Timmerman began her career in 1988 at U.S. Bank’s predecessor
company, Bank W estern, as a part-time teller. By 1997, M s. Timmerman had
attained the position of retail market manager, a position in which she was
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responsible for managing (with co-worker Chad Royle) several bank branches and
supervising the branch managers at those locations. In 2001, Trish Johnson
became the northern Colorado district manager to whom M s. Timmerman
reported. That same year, during the course of a post-acquisition restructuring at
U.S. Bank, the position of retail market manager, M s. Timmerman’s position, was
re-titled. As a result of the changes, both M s. Timmerman and her male co-
worker were demoted to the position of branch manager.
M s. Timmerman continued in the position of branch manager until April
30, 2003 when her employment with U.S. Bank was terminated. At the time of
her termination, M s. Timmerman was fifty-two years old. As part of corporate
security, U.S. Bank runs quarterly checks on fee reversals in its employees’
accounts and automatically generates a report for fee reversals in excess of $100.
According to U.S. Bank, it fired M s. Timmerman because, during the review
period from November 2002 to January 2003, she refunded thirty-one overdraft
charges, totaling $1,099, to two coworkers’ accounts in violation of company
policy. M s. Timmerman does not dispute that she made the refunds, but claims
instead that she was not aware the refunds were made in contravention of
company policy, that she was only looking out for the financial interests of her
co-employees, and that she did not think the refunds cost U.S. Bank any money.
Shortly after her termination, M s. Timmerman brought suit against U.S.
Bank, alleging sex and age discrimination in violation of Title VII and the ADEA.
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During the course of discovery, M s. Timmerman admitted that, as branch
manager, she had inherited an internal “party fund” account and had partially
funded that account using bank fees, including coin counting and notary fees. In
deposition testimony, M s. Timmerman also revealed that, subsequent to her
termination, she removed $480 dollars from the “party fund” and deposited it into
a personal account at another bank. Shortly after these admissions, U.S. Bank
sought and w as granted leave to assert state law counterclaims against M s.
Timmerman for civil theft, conversion, unjust enrichment, conspiracy, aiding and
abetting a breach of fiduciary duty, and fraudulent misrepresentation. In response
to U.S. Bank’s counterclaims, M s. Timmerman sought and was granted leave to
am end her complaint to add claims for retaliation under Title VII and the ADEA ,
abuse of process, and conspiracy to violate her civil rights in violation of 42
U.S.C. § 1985(2).
U.S. Bank next moved for summary judgment as to all of M s.
Timmerman’s claims along with its own claim against M s. Timmerman for civil
theft. The district court granted U .S. Bank’s motion as to each of M s.
Timmerman’s federal claims and declined to exercise supplemental jurisdiction
over both parties’ remaining state law claims. In so doing, the district court
imposed a twenty-page limit on the length of both parties’ summary judgment
briefs. On appeal, M s. Timmerman argues: (1) that the district court abused its
discretion in limiting the length of the parties’ summary judgment briefs to
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twenty pages; (2) that the district court erred in granting summary judgment to
U.S. Bank on her sex and age discrimination claims because she brought forth
sufficient evidence to demonstrate that U.S. Bank’s asserted legitimate reason for
her termination is pretextual; (3) that the district court erred in granting summary
judgment to U.S. Bank on her Title VII and ADEA retaliation claims; and (4) that
the district court erred in granting summary judgment to U.S. Bank on her 42
U.S.C. § 1985(2) claims.
Discussion
I. The District Court’s Twenty-Page Limit on Summary Judgment Briefs
M s. Timmerman contends that the district court committed reversible error
when it denied her request to submit a response brief to U.S. Bank’s motion for
summary judgment that exceeded the district court’s self-imposed twenty-page
limit. M s. Timmerman maintains that the “20-page limitation, as applied to this
particular case, prevented a full (or even adequate) recitation of the facts and
legal arguments necessary to effectively combat the summary judgment motion.”
Aplt. Br. at 42-43. The district court’s refusal to allow M s. Timmerman
additional pages of briefing is best characterized as a “supervision of litigation”
decision, which we review for an abuse of discretion. See Pierce v. Underwood,
487 U.S. 552, 559 n.1 (1998); see also Pippin v. Burlington Res. Oil & Gas Co.,
440 F.3d 1186, 1192 (10th Cir. 2006).
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W hen there is no federal rule pertaining to a particular subject or issue,
federal judges may regulate the practice of law in their courts “in any manner
consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and
local rules of the district.” Fed. R. Civ. P. 83(b). Here, M s. Timmerman does not
argue that the district court’s self-imposed twenty-page limitation is on its face
inconsistent with federal law. M oreover, no federal rule, including Fed. R. Civ.
P. 56, dictates the number of pages to be permitted litigants in a response brief to
a summary judgment motion. And the local rules of the D istrict of Colorado are
similarly silent regarding page limitations on such briefs. See D. Colo. L. Civ. R.
56.1. M s. Timmerman’s primary complaint about the district court’s page
limitation is that she was unable to present “further and more detailed
information” regarding her claims, and that it led to the dismissal of her case due
to insufficient evidence or argument. Aplt. Br. at 42-43.
The only specific evidence that M s. Timmerman claims she would have
been able to present to the district court in the absence of its page limitation is
evidence that U.S. Bank knew of the “party fund,” that M s. Timmerman had
inherited the fund from a predecessor, and that the “party fund” was funded
through various sources. See Aplt. Br. at 57 n.10. A review of M s. Timmerman’s
amended response to U.S. Bank’s motion for summary judgment, which fully
complied with the district court’s page limitation, reveals that M s. Timmerman
indeed presented all of this evidence to the district court, albeit in a footnote, and
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we presume it was considered. See Aplt. App. at 587-88 n.11. M oreover, the
district court’s twenty-page limitation also applied to U .S. Bank’s summary
judgment briefs, and therefore, M s. Timmerman was given twenty pages of
briefing in order to respond to twenty pages of argument.
To be sure, one value implicit in Fed. R. Civ. P. 56 is that each party to a
summary judgment motion, both moving and non-moving, be given an adequate
opportunity to present argument and evidence supporting its respective position.
See Fed. R. Civ. P. 56(f); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5
(1986). W e can imagine a case where a page limitation (even one set at tw enty
pages) w ould be an abuse of discretion, and so district courts should remain
flexible in the application of such a limitation. Nonetheless, M s. Timmerman has
not demonstrated that the district court’s twenty-page limitation, in this case, rises
to the level of an abuse of discretion.
II. Summary Judgment as to M s. Timmerman’s Federal Claims
W e review a district court’s grant of summary judgment de novo, applying
the same standards as the district court. Hackworth v. Progressive Cas. Ins. Co.,
468 F.3d 722, 725 (10th Cir. 2006). Summary judgment is appropriate 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 judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
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A. Title VII and ADEA Sex and Age Discrimination Claims
M s. Timmerman alleges that she was terminated from her branch manager
position at U.S. Bank because she is a woman over forty years of age. She claims
that her manager, Trish Johnson, preferred younger men in the position of branch
manager and that U.S. Bank’s proffered legitimate reason for her termination is
merely pretext for M s. Johnson’s animus against females over the age of forty.
U.S. Bank, in turn, argues that M s. Timmerman has failed to bring forth sufficient
evidence that its proffered nondiscriminatory reason for her firing is pretextual.
The district court agreed with U.S. Bank.
M s. Timmerman asserts both a sex discrimination claim pursuant to Title
VII and an age discrimination claim pursuant to the ADEA. Title VII, among
other things, makes it unlawful for an employer to discharge any individual on
account of that individual’s “race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). The ADEA, on the other hand, “broadly prohibits
arbitrary discrimination in the workplace based on age.” Lorillard v. Pons, 434
U.S. 575, 577 (1978) (citing 29 U.S.C. § 623(a)).
W here, as here, an employee’s sex or age discrimination claim relies
exclusively on circumstantial, rather than direct, evidence, we apply the burden-
shifting scheme of M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). See Garrison v. Gambro, Inc., 428 F.3d 933, 936-37 (10th Cir. 2005)
(invoking the M cDonnell Douglas scheme where the plaintiff had asserted both a
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Title VII sex discrimination claim and an ADEA age discrimination claim). That
scheme first allocates the burden of production to the employee to establish a
prima facie case of discrimination. M cDonnell Douglas, 411 U.S. at 802. If the
employee is successful in doing so, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. The employer’s articulation of a legitimate,
nondiscriminatory reason for the adverse employment action causes the
presumption of discrimination attendant to the prima facie showing of
discrimination “to simply drop[] out of the picture.” St. M ary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993). The employee then has the full burden to show
that the employer discriminated on the basis of sex or age. Bryant v. Farmers Ins.
Exch., 432 F.3d 1114, 1125 (10th Cir. 2005). “The [employee] may do so by . . .
showing that the proffered reason is a pretext for illegal discrimination . . . .”
Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994), abrogated on other
grounds by M artinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003).
A showing of pretext does not require a plaintiff to offer any direct
evidence of actual discrimination. Bryant, 432 F.3d at 1125. An employee may
show pretext based on “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the employer’s claimed legitimate, non-
discriminatory reason such that a rational trier of fact could find the reason
unworthy of belief. M organ v. Hilti Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
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Demonstrating pretext enables a plaintiff to survive summary judgment. Randle
v. City of Aurora, 69 F.3d 441, 452 (10th Cir. 1995).
Here, U.S. Bank does not dispute that M s. Timmerman has established a
prima facie case of sex and age discrimination. M s. Timmerman, for her part,
does not dispute that U.S. Bank has come forth with a legitimate,
nondiscriminatory reason for her termination— that she reversed overdraft fees on
two fellow employees’ accounts in the amount of $1,099. The sex and age
discrimination claims, then, hinge upon a showing of pretext. M s. Timmerman
asserts that the following evidence demonstrates the pretextual nature of U.S.
Bank’s proffered nondiscriminatory reason for her firing: (1) within two years of
becoming district manager, M s. Johnson, “replaced every single older female
branch manager with a young man,” A plt. Br. at 46; (2) U.S. Bank failed to apply
its progressive discipline policy in M s. Timmerman’s case; (3) M s. Johnson
treated M s. Timmerman more harshly than other employees who violated the
same policy; and (4) there were “disturbing procedural irregularities” surrounding
M s. Timmerman’s termination, Aplt. Br. at 51.
W e note at the outset, however, that there exists fairly strong evidence in
the record that M s. Johnson did not make the final decision to terminate M s.
Timmerman. Rather, it appears that Steve Lovas, the president of the region in
which M s. Timmerman’s branch was located, made the final termination decision,
and Linda Sincoff, an employee in Human Resources, made the recommendation
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that she be fired. See Aplt. App. at 640-42. Because there is no evidence that
M s. Johnson actually caused M s. Timmerman’s termination, nor that M r. Lovas
was merely a rubber stamp for M s. Johnson’s alleged prejudice, M s.
Timmerman’s claims against U.S. Bank necessarily fail. See Campbell v.
Gambro Healthcare, Inc., 478 F.3d 1282, 1290 (10th Cir. 2007). Nonetheless,
there is deposition testimony from M s. Timmerman indicating that M s. Johnson
informed her she was being terminated, see Aplt. App. at 130, and U.S. Bank, in
its brief on appeal, admits that “Johnson terminated Timmerman’s employment,”
Aplee. Br. at 30. As a result, and in an abundance of caution, our analysis
proceeds as if M s. Johnson did indeed terminate M s. Timmerman.
1. M s. Johnson’s Replacing Female Branch M anagers Over the Age of
Forty W ith Younger M en
As previously mentioned, in 2001, U.S. Bank underwent a post-acquisition
reorganization, at which time M s. Johnson became the northern Colorado district
manager in charge of six northern Colorado U.S. Bank branches. M oreover, M s.
Timmerman, who prior to the reorganization was a retail market manager (a
position higher than a branch manager), was demoted to branch manager.
W hereas five of the six branches under M s. Johnson’s control were managed by
females over forty years of age prior to the reorganization, 1 after the
1
The one branch not managed by a female over forty years of age was
managed by a female under forty years of age. See Aplt. Br. at 29.
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reorganization only one of the six branches— M s. Timmerman’s Loveland,
Colorado branch— was managed by a female over forty. Despite the fact that M s.
Timmerman was given a branch manager position, she argues that M s. Johnson’s
replacement of older female branch managers with younger males during the
reorganization demonstrates that the proffered reason for her firing is pretext for
M s. Johnson’s alleged animus against older females.
“It is uniformly recognized that statistical data showing an employer’s
pattern of conduct toward a protected class can create an inference that an
employer discriminated against individual members of the class.” Fallis v. Kerr-
M cGee Corp., 944 F.2d 743, 746 (10th Cir. 1991). On the other hand,
“[s]tatistics taken in isolation are generally not probative of . . . discrimination,”
Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995), and statistical evidence
on its own “will rarely suffice” to show pretext, Ortiz v. Norton, 254 F.3d 889,
897 (10th Cir. 2001). At the very least, in order to create an inference of pretext,
“a plaintiff’s statistical evidence must focus on eliminating nondiscriminatory
explanations for the disparate treatment by showing disparate treatment between
comparable individuals.” Fallis, 944 F.2d at 746.
M s. Johnson’s failure to rehire other older female branch managers two
years prior does not suffice to demonstrate a genuine issue of material fact as to
whether the reason given for M s. Timmerman’s termination was false. In order
for an employer’s former adverse employment actions to have any probative
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effect on an employee’s ability to demonstrate pretext as to subsequent adverse
employment actions, there must be some logical nexus between the former and
subsequent actions. Cf. Coletti v. Cudd Pressure Control, 165 F.3d 767, 777
(10th Cir. 1999) (allowing the testimony of other employees as to an alleged
pattern and practice of discrimination only where the plaintiff “show[s] the
circumstances involving the other employees are such that their statements can
‘logically or reasonably be tied to the decision to terminate the plaintiff’”(internal
modifications omitted)); Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526,
531-32 (10th Cir. 1994). W hen we say that statistical evidence must compare
employees that are “similarly situated,” we ordinarily mean that the situation of
the employees in the protected class must have been comparable to the situation
of the employees in the non-protected class w ho were allegedly treated more
favorably. See Cone, 14 F.3d at 532-33. Nonetheless, we think it a matter of
common sense that the probative value of statistical evidence will also vary
depending upon the degree of difference between the situations of the protected
employees within the statistical data set and the employee seeking to utilize that
data. The fact that a plaintiff is required to demonstrate pretext does not grant a
jury license to second-guess all prior hiring, firing and disciplinary decisions no
matter how attenuated they might be from the challenged action. Cf. Simms v.
Okla. ex rel. Dep’t of M ental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir.1999). (“Our role is to prevent unlawful hiring practices, not to act
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as a ‘super personnel department’ that second guesses employers’ business
judgments.”).
M s. Timmerman’s circumstances are not remotely comparable to what
occurred when M s. Johnson did not rehire the female branch managers. To begin,
M s. Timmerman was not among the group of incumbent branch managers that had
to reapply for their positions. See Aplt. App. 114-16. Instead, M s. Timmerman
and Chad Royle, a male retail market manager, were both simply assigned
branches to manage. 2 In fact, M s. Timmerman admits that “[a]nyone that was in
my position or the sales manager position[] sort of got to choose what branches
they wanted to be in.” Aplt. A pp. at 116.
Also, despite M s. Johnson’s alleged animus, M s. Timmerman survived the
reorganization. Two years later, 3 she was terminated for disciplinary reasons.
Thus, there is a logical disconnect between the situation of the incumbent female
branch managers and M s. Timmerman’s firing. Had M s. Timmerman brought a
charge of discrimination arising out of her demotion during the reorganization,
2
M s. Timmerman does not bring a claim that her demotion from retail
market manager to branch manager was discriminatory.
3
For a logical nexus to exist, there must be temporal proximity between
the former and the contested adverse employment actions. See Bingman v.
Natkin & Co., 937 F.2d 553, 556-57 (10th Cir. 1991) (“[E]vidence not too remote
in time that defendant terminated others in the [same] age group would be entirely
relevant to the question of defendant’s [discrimination].”(emphasis added)).
Thus, the two year gap between the employment actions at issue in this case
diminishes the evidentiary value of the former adverse employment actions.
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then statistical evidence that a large percentage of female branch managers over
the age of forty were not rehired during the same time period would surely have
been probative of pretext. On the other hand, the same statistical evidence is not
probative in this lawsuit where the alleged discriminatory animus in the decision
to term inate— an entirely different adverse employment action— occured two
years after the protected employees within the statistical data set were not rehired
and under completely different circumstances. 4 See Baylie v. Fed. Reserve Bank,
476 F.3d 522, 524 (7th Cir. 2007) (“In individual [discrimination] cases, studies
of probabilities are less helpful.”); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,
848 (1st Cir. 1993) (“[A] company’s overall employment statistics will have little
direct bearing on the specific intentions of the employer when dismissing a
particular individual.”). Given the large disparity in circumstances, we doubt the
evidence regarding the two-year-old failure to rehire the incumbent female branch
managers meets the relevance standard of Fed. R. Evid. 401, 5 but even if it does,
4
W e also note that M s. Timmerman’s proffered sample is too small to
provide reliable results. See Fallis, 944 F.2d at 746 (explaining that a sample size
of nine is too small to provide reliable statistical results); cf. M ayor of Phila. v.
Educ. Equal. League, 415 U.S. 605, 621 (1974) (noting concern with sample size
of thirteen).
5
See Baylie, 476 F.3d at 524 (“Statistical analysis is relevant in the
technical sense that it ‘has a tendency to make the existence of a material fact
more probable or less probable than it would be without the evidence.’ Fed. R.
Evid. 401. But data showing a small increase in the probability of discrimination
cannot by itself get a plaintiff over the more-likely-than-not threshold; it must be
coupled w ith other evidence, which does most of the w ork.”).
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no rational trier of fact could infer pretext from it in M s. Timmerman’s case. See
Anderson, 477 U.S. at 250-51.
Finally, the evidence does not support M s. Timmerman’s argument that M s.
Johnson’s failure to rehire more incumbent female branch managers was
discriminatory in the first place. During the August 2001 reorganization at U.S.
Bank, the position of branch manager w as re-titled sales and service manager, a
position which focused primarily on operations and service. The new branch
manager position, post-reorganization, was heavily focused on sales. Apparently,
as a result, the incumbent branch managers automatically became sales and
service managers and were given the option of applying for a branch manager
position if they so desired.
The problem for M s. Timmerman is that the evidence in the record
demonstrates that only one of the incumbent branch managers (Connie Harding)
applied for the new branch manager position. 6 M s. Harding was interview ed for a
6
The five branch managers at the time of the reorganization, other than
M s. Timmerman, were Connie Harding, Kelly M oe, Janet M cDowell, M arilyn
M cJilton, and Janeen Johnson. See Aplt. Br. at 29. M s. Harding did apply for the
branch manager position, and was interviewed, but was not selected. Aplt. App.
105. M s. M oe remained in the position of sales and service manager, and there is
no evidence in the record that in 2001 she applied for the position of branch
manager. Id. at 207-08. M oreover, when a branch manager position became
available in 2003 she was not interested in applying because she felt she had an
insufficient background in sales. Id. at 208. M s. M cDowell specifically stated in
a declaration that she “was not interested and . . . did not apply for a Branch
M anager position because [she does] not have a strong sales background.” A plt.
App. at 199. Although the record is otherwise silent as to w hether either M s.
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branch manager position, but M s. Johnson determined she was not the best-
qualified candidate because she did not have a strong sales background. 7 Aplt.
App. at 105, 638. M s. Timmerman has offered no evidence that this reason was
pretextual. Nor is there evidence tending to show that any of the incumbent
branch managers, other than M s. Harding, even applied for a new branch manager
position. Although M s. Timmerman contends in her affidavit that M s. Johnson
discouraged M s. M cDowell from applying, no supporting facts based on personal
knowledge are included. Additionally, M s. Timmerman’s assessment of the
applicants’ relative qualifications is based on her subjective and limited
knowledge of the respective applicants and applicant pools. And she has not
shown an overwhelming disparity in the qualifications of those who were and
were not hired as branch managers. See Bullington v. United Air Lines, Inc., 186
F.3d 1301, 1319 (10th Cir. 1999), abrogated on other grounds by Nat’l R.R.
Passenger Corp. v. M organ, 536 U.S. 101 (2002) (“[W]e emphasize that an
employer does not violate Title VII by choosing between equally qualified
M cJilton or M s. J. Johnson applied for a new branch manager position, Trish
Johnson testified that M s. Harding was the only incumbent branch manager to
apply for the position, Aplt. App. at 638, and M s. Timmerman has offered no
evidence to the contrary.
7
That M s. Johnson could have concluded that M s. Harding was not the
best-qualified candidate for the sales-intensive position of branch manager is
supported by the uncontradicted evidence that Jeff Jiron, the individual who
received the branch manager position instead of M s. Harding, had many years of
sales experience and was in the top ten percent of all U.S. Bank employees in
sales. Aplt. App. at 180.
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candidates, so long as the decision is not based on unlawful criteria. . . . The
disparity in qualifications must be ‘overw helming’ to be evidence of pretext.”).
Finally, the evidence indicates that more men applied for the open branch
manager positions than did women, and thus the chance that those positions
would be filled with men was naturally greater. In short, M s. Timmerman has not
eliminated the very distinct possibility that “[M s.] Johnson replaced every female
branch manager with a young man” not out of discriminatory animus, but because
the female branch managers either did not apply for the new branch manager
position or w ere not as qualified as a competing younger male.
It also appears that M s. Timmerman is attempting to use M s. Johnson’s
prior treatment of the female branch managers when compared with the hiring
decisions of another district manager (in a contiguous W yoming district) to show
that some general disdain for females over forty years of age tainted M s.
Johnson’s decision to terminate her. Admittedly, we have previously held that
evidence of discrimination in employment decisions affecting other w orkers
“could support an inference that the decision makers harbored a bias against [the
protected class] which might have affected other decisions, including the
decisions adverse to [the plaintiff].” Ortiz, 254 F.3d at 896. 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
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unrelated, are also tainted with bias. Rather, “some nexus between th[e]
circumstantial evidence [of general bias] and [the] decision to terminate . . .” is
required. English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1010 (10th Cir. 2001).
This generally requires the plaintiff to show that the alleged general
discriminatory animus on the part of the employer played a direct role in the
adverse employment decision in the plaintiff’s case. Id.; see also id. at 1013
(Lucero, J., concurring). In the instant case, M s. Timmerman has brought forth
no evidence that might arguably show a nexus between M s. Johnson’s alleged
general bias against older females (assuming she even had one) and her firing of
M s. Timmerman for the reversal of overdraft fees. Thus, M s. Timmerman’s
proffered evidence regarding M s. Johnson’s hiring of younger males to run five of
the six northern Colorado branches does not demonstrate pretext.
Although M s. Timmerman argues otherwise, our prior decision in Greene v.
Safeway Stores, 98 F.3d 554 (10th Cir. 1996) does not dictate a different
conclusion. To begin, G reene is not a case about pretext. The issue we
confronted in Greene was whether the district court erred in taking the case away
from the jury by granting judgment as a matter of law at the close of the
plaintiff’s case. Id. at 558. Our task, therefore, was to determine w hether M r.
Greene had succeeded in establishing a prima facie case of age discrimination
under the M cDonnell Douglas scheme or, in the alternative, whether he had met
his evidentiary “burden directly, by presenting direct or circumstantial evidence
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that age w as a determining factor in his discharge.” Id. at 557. Because M r.
Greene had succeeded in presenting sufficient evidence to establish a prima facie
case directly, we did not answer the question of whether he had also established a
prima facie case under the M cDonnell Douglas burden-shifting scheme. 8 M s.
Timmerman, on the other hand, relies exclusively on the M cDonnell Douglas
burden-shifting framew ork, not on direct evidence of discrimination, and thus any
value Greene might have to her case is strictly through analogy.
Unfortunately for M s. Timmerman, Greene is hardly analogous to the
instant case. In Greene, each and every one of the adverse employment actions
on which the plaintiff relied had occurred w ithin twelve months of the adverse
employment action that the plaintiff suffered. See id. at 560. Thus, the temporal
proximity that is lacking in this case was obviously present in Greene. There was
also a stronger indication in Greene that the other employees had been adversely
affected by the same discrimination that M r. Greene claimed to have suffered; all
retired, resigned, or w ere fired within a short period of time. See id. at 560-61.
Here, the incumbent branch managers merely had their titles changed and were
offered the opportunity to apply for the new branch manager position (and only
8
W e did suggest, however, that M r. Greene had failed to establish one or
more elements of a prima facie case under M cDonnell Douglas. See id. at 560
(“In the instant case, however, we need not reach the issue whether this Circuit
allow s a plaintiff in an ‘extraordinary’ situation to present a prima facie case
through the M cDonnell Douglas burden shifting approach even though the
plaintiff fails to satisfy one or more of the prongs.”).
-20-
one took advantage of that opportunity). It is a stretch to say that these “adverse”
employment actions (if that is even an accurate characterization of them) fall into
the same category as M s. Timmerman’s termination two years later for refunding
overdraft fees on coworkers’ accounts. Finally, in Greene, there was additional
evidence of discrimination— namely, the statements of Safeway’s president— from
which a jury could infer discriminatory animus. As will be discussed further
below, there is no similar evidence of discriminatory animus in this case.
Consequently, Greene is of no assistance to M s. Timmerman in her quest to avoid
summary judgment.
2. U.S. Bank’s Failure to Utilize its Progressive Discipline Policy
M s. Timmerman next maintains that U.S. Bank’s failure to utilize its policy
of progressive discipline in her case demonstrates pretext. It is well-established
that pretext can be shown by “evidence that the defendant acted contrary to a
written company policy prescribing the action to be taken by the defendant under
the circumstances.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230
(10th Cir. 2000).
As an initial matter, it is abundantly clear that U.S. Bank’s policies, at the
time of M s. Timmerman’s firing, forbade a branch manager from refunding fees
on branch employees’ accounts without approval from higher powers. U.S.
Bank’s employee handbook stated:
Employees are not allowed to process or approve transactions relating
-21-
to . . . the accounts of . . . personal acquaintances . . . . Specifically,
this includes, but is not limited to, refunding, reversing or waiving
fees . . . . There may be other specific restrictions pertaining to
transactions on . . . the accounts of . . . co-w orkers.
Aplt App. at 162. And both U.S. Bank’s code of ethics and business conduct and
its manager’s guide to the code of ethics contained the same, or a very similar,
provision. See Aplt. App. at 165, 167. M oreover, any ambiguity regarding the
ability of a branch manager to unilaterally approve fee reversals on her
employees’ accounts w as resolved when in December 2001 M r. Lovas sent a
memorandum to all employees reiterating U.S. Bank’s policy on fee reversals and
explaining that “there may be times w hen employees have legitimate requests to
have fees refunded or waived. However, in order to avoid conflicts or
misunderstandings, all such requests must go through a District M anager, M arket
President or myself.” Aplt. App. at 168. Lastly, numerous other branch
managers indicated that they were aware and understood that all fee reversals on
coworkers’ accounts required at least district manager approval. 9 See Aplt. App.
at 173, 181, 183, 185. As a result, U.S. Bank could reasonably believe that M s.
9
M s. Timmerman argues that she never received M r. Lovas’ memo and
that she did not believe that her subordinates fell under the definition of
“coworker.” M s. Timmerman’s subjective intentions, however, have no bearing
on the question of pretext. Cf. Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th
Cir. 1996). W hat matters is whether U.S. Bank and M s. Johnson could have
reasonably believed that company policy had been violated. See M cKnight v.
Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (“The test is good
faith belief.”).
-22-
Timmerman had violated company policy. See Pastran v. K-M art Corp., 210 F.3d
1201, 1206 (10th Cir. 2000) (“[T]he pertinent question in determining pretext is
not whether the employer was right to think the employee engaged in misconduct,
but w hether that belief was genuine . . . .”).
W hether, given U.S. Bank’s reasonable belief that M s. Timmerman had
violated company policy, its decision to immediately terminate her is evidence of
pretext constitutes an entirely distinct question. It is one that M s. Timmerman
requests we answ er in the affirmative because she claims that U.S. Bank failed to
follow a mandatory progressive discipline policy when it fired her. The fallacy in
M s. Timmerman’s argument is that U.S. Bank, at the time of her termination, had
no policy requiring progressive discipline where employees w ere discovered to
have refunded fees on coworkers’ accounts. Instead, U.S. Bank policy made it
crystal clear that termination could result from improper fee reversals. 10 M s.
Timmerman even admits that “the decision of what kind of discipline should be
imposed w as up to the discretion of the supervisor.” Aplt. Br. at 48. M s.
Timmerman focuses on the fact that termination was not mandatory, but that
assertion, while factually correct, is inapposite. W hat matters is not whether
termination was mandatory, but whether progressive discipline for employees
10
See, e.g., Aplt. App. at 162 (“Violation of this policy may be grounds
for disciplinary action, including termination.”); A plt App. at 165 (same); Aplt.
App. at 168 (same).
-23-
violating the fee reversal policy was mandatory. Because progressive discipline
was entirely discretionary in such cases, and U.S. Bank, therefore, did not ignore
any established company policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.
W e offer one last observation with respect to U.S. Bank’s failure to utilize
progressive discipline as evidence of pretext. The district court noted that “[i]t
may well be true that defendant’s decision was intemperate and unfair” but that
“[s]uch considerations . . . are not within the purview of Title VII or the ADEA.”
Timmerman, 2006 W L 894894, at *4. W e agree, and note that the issue is not
whether the decision to terminate M s. Timmerman was wise, fair or correct, but
whether U.S. Bank reasonably believed at the time of the termination that M s.
Timmerman had violated company policy, and acted in good faith upon that
belief. Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006). Neither
Title VII nor the ADEA prohibits an employer from making hasty decisions that
appear harsh; what they forbid are decisions made with discriminatory animus.
See E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1321 (10th Cir. 1992).
3. U.S. Bank’s M ore Favorable Treatment of Other Employees
M s. Timmerman asserts that U.S. Bank’s disparate treatment of her in
comparison to other U.S. Bank employees caught reversing fees on cow orkers’
accounts also establishes pretext. A plaintiff seeking to show pretext “often does
so by providing evidence that he was treated differently from other similarly-
-24-
situated employees who violated work rules of comparable seriousness.”
Kendrick, 220 F.3d at 1230. “Similarly situated employees are those who deal
with the same supervisor and are subject to the same standards governing
performance evaluation and discipline.” 11 Aramburu v. Boeing Co., 112 F.3d
1398, 1404 (10th C ir. 1997). A lso, a difference in treatment between two
employees by the same supervisor does not automatically give rise to a Title VII
or ADEA claim:
Sometimes apparently irrational differences in treatment between
different employees that cannot be explained on the basis of clearly
articulated company policies may be explained by the fact that the
discipline was administered by different supervisors, or that the
events occurred at different times when the company’s attitudes
toward certain infractions were different, or that the individualized
circumstances surrounding the infractions offered some mitigation for
the infractions less severely punished, or even that the less severely
sanctioned employee may be more valuable to the company for
nondiscriminatory reasons than is the other employee. Other times, no
rational explanation for the differential treatment between the plaintiff
and the comparison employees may be offered other than the
inevitability that human relationships cannot be structured with
mathematical precision, and even that explanation does not compel
the conclusion that the defendant was acting with a secret, illegal
discriminatory motive.
11
Just recently, we held that the same supervisor rule announced in
“Aramburu has no application where . . . plaintiff claims to be a victim of a
company-w ide discriminatory RIF.” M endelsohn v. Sprint/U nited M gmt. Co.,
466 F.3d 1223, 1228 (10th Cir. 2006). Despite our limitation of Aramburu in
M endelsohn, the same supervisor rule remains wholly applicable where, as here,
an employee claims to be the victim of an allegedly discriminatory disciplinary
action. See id. at 1227 (“Since deciding Aramburu, we have only applied the
‘same supervisor’ rule in the context of alleged discriminatory discipline.”).
-25-
Flasher Co., 986 F.2d at 1320 (internal citations and footnote omitted). Hence, it
is up to the plaintiff to establish not only that differential treatment occurred, but
also to rule out nondiscriminatory explanations for the differential treatment. See
id.
M s. Timmerman points first to the disparate treatment of Shaunna Stew art,
a branch manager in W yoming, as evidence of pretext. According to M s.
Tim merm an, M s. Stew art reversed overdraft charges on her own account on two
separate occasions but was given only a written warning. M s. Timmerman and
M s. Stewart, however, are not similarly situated because M s. Stewart did not
report to M s. Johnson. 12 See Kendrick, 220 F.3d at 1233 (“D ifferent supervisors
will inevitably react differently to employee subordination”). There is also no
evidence that the number and amount of M s. Stew art’s reversals w ere comparable
to the thirty-one reversals for $1,099 that M s. Timmerman performed.
Accordingly, the fact that M s. Stewart only received a written warning is of no
relevance.
M s. Timmerman also states that a Greeley, Colorado branch employee
refunded fees on her own account but was not terminated. M s. Timmerman has
presented no evidence, however, to show that this employee was a branch
manager, was under the supervision of M s. Johnson at the time of the incident,
12
M s. Stewart reported instead to a district manager in Cheyenne,
W yoming named Jamie Schaneman. See Aplt. App. at 504, 979.
-26-
was not also a female over forty years of age, or refunded an amount of fees
comparable to the $1,099 M s. Timmerman refunded.
Finally, M s. Timmerman argues that pretext is established by the fact that,
shortly after her termination, Jeff Jiron, a male branch manager under the
supervision of M s. Johnson, refunded a coworker’s fee and received no discipline
at all. W hile this evidence comes closest to the type needed to show pretext, it
nonetheless falls short. First, as the district court noted, M s. Timmerman has
provided no information that M s. Johnson, or anyone else at U.S. Bank, was even
aware that M r. Jiron had reversed a coworker’s fee. This lack of knowledge, and
not discriminatory animus, therefore, explains the disparate treatment. Also, even
assuming knowledge on the part of M s. Johnson, M s. Timmerman has failed to
show that the amount of M r. Jiron’s fee reversal was comparable to the $1,099 in
fees M s. Timmerman refunded. This is crucial because in order to infer that the
disparate treatment of two similarly situated employees w as tinged with
discriminatory animus, the two employees’ violations of company policy must be
of comparable seriousness. See id. at 1232 (explaining that the failure to
terminate similar situated employees for violations of work rules did not show
pretext “because the[] employees did not violate work rules of comparable
seriousness to [plaintiff]”). Because M s. Timmerman has not shown such to be
the case, M s. Johnson’s alleged disparate treatment of M r. Jiron is insufficient for
M s. Timmerman to survive summary judgment on the issue of pretext.
-27-
4. The “D isturbing Procedural Irregularities”
Lastly, M s. Timmerman argues that there existed “disturbing procedural
irregularities” surrounding her termination and that this is evidence of pretext.
W e have previously held that disturbing procedural irregularities surrounding an
adverse employment action may demonstrate that an employer’s proffered
nondiscriminatory business reason is pretextual. See Simms, 165 F.3d at 1329.
The procedural irregularities about which M s. Timmerman complains are a ten-
week gap between the time M s. Johnson first contacted M s. Timmerman about the
fee reversals and the time M s. Timmerman was terminated, and the omission of
any mention of the fee reversal issue in an employee performance appraisal M s.
Timmerman underwent just a month prior to her termination. But neither of these
things are evidence of pretext because neither can, objectively, be described as a
“disturbing procedural irregularity.” M s. Timmerman has pointed to no U.S.
Bank policy which required either immediate termination or that a fee reversal
issue be included in an employee’s performance appraisal. Rather, the evidence
indicates that M s. Johnson waited before taking any action in order to confirm
that the fee reversals occurred, to verify that M s. Timmerman was responsible for
them, and to consider termination versus a final written warning. Aplee. Supp.
App. at 22-26. Simply put, M s. Timmerman has not shown that there were
“disturbing procedural irregularities” surrounding her termination. Thus, the
district court properly granted summary judgment to U .S. Bank on M s.
-28-
Timmerman’s sex and age discrimination claims.
B. Title VII and ADEA Retaliation Claims
Along with her sex and age discrimination claims, M s. Timmerman brought
Title VII and ADEA retaliation claims as a result of U.S. Bank’s filing of
counterclaims against her in this litigation. U.S. Bank filed state law
counterclaims for civil theft, conversion, unjust enrichment, civil conspiracy,
aiding and abetting a breach of fiduciary duty, and fraudulent misrepresentation.
These claims all arose out of M s. Timmerman’s alleged use of coin counting and
notary fees to partially fund an internal “party fund” account from which, at the
time of her termination, she withdrew $480. M s. Timmerman contends that the
only reason U.S. Bank filed its counterclaims was in retaliation for her filing of
sex and age discrimination claims against it. The district court granted summary
judgment to U.S. Bank on M s. Timmerman’s retaliation claims, reasoning that the
filing of counterclaims is not an adverse employment action and M s. Timmerman
had not shown that U.S. Bank’s decision to file its counterclaims w as causally
connected to M s. Timmerman’s protected activity. See Timmerman, 2006 W L
894894, at *5. W e agree with the district court that summary judgment for U.S.
Bank on M s. Timmerman’s retaliation claims is appropriate, although for a
different reason.
Both Title VII and the ADEA forbid employers from retaliating against an
employee when that employee takes action in opposition to a discriminatory
-29-
practice. See 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). In order to establish a
prima facie case of retaliation, an employee must show that: “(1) she engaged in
protected activity; (2) she suffered an adverse employment action; and (3) there
was a causal connection between the protected activity and the adverse action.”
Duncan v. M gr., Dep’t of Safety, 397 F.3d 1300, 1314 (10th Cir. 2005). Similar
to a discrimination claim, once the employee establishes a prima facie case of
retaliation, the burden of production shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse employment action. O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th Cir. 2001). If such a reason
is successfully articulated, the employee must then demonstrate that the
employer’s proffered reason for the adverse action is pretextual. Id.
There is no doubt that M s. Timmerman has satisfied the first prong of a
prima facie case of retaliation— she engaged in the protected activity of filing a
lawsuit against U.S. Bank for alleged sex and age discrimination. The parties
disagree, however, on whether the counterclaims filed against M s. Timmerman
constitute an adverse employment action and whether there is a causal connection
between M s. Timmerman’s filing of sex and age discrimination claims and U.S.
Bank’s allegedly retaliatory counterclaims.
M s. Timmerman is correct that following the Supreme Court’s recent
decision in Burlington Northern & Santa Fe Railway Co. v. W hite, 126 S. Ct.
2405 (2006), the applicable standard for whether an adverse employment action
-30-
has occurred is w hether the employer’s actions “would have been materially
adverse to a reasonable employee or job applicant.” Id. at 2409. In other words,
“the employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. W hile it is certainly an interesting question whether the
filing of counterclaims in response to discrimination claims brought by a former
employee constitutes an adverse employment action, that question, along with the
disputed causation issue, need not be decided in this case. Even assuming,
arguendo, that M s. Timmerman has established a prima facie case of retaliation,
U.S. Bank has come forward with a legitimate, nondiscriminatory reason for
filing its counterclaims, and M s. Timmerman has failed to demonstrate that U.S.
Bank’s reason is pretextual.
U.S. Bank explains that it decided to bring its counterclaims against M s.
Timmerman only after she admitted, during deposition testimony, that she
partially funded an internal U.S. Bank “party fund” account using coin counting
and notary fees, that she knew the money did not belong to her personally, and
that she withdrew a portion of the money from the “party fund” after she was
fired and deposited it in her own account at another bank. Aplt. A pp. at 149-53.
W e think that the potential diversion and withdrawal of U .S. Bank’s funds is a
legitimate, nondiscriminatory reason for the employer to file counterclaims
against that employee in an attempt to retrieve w hat was alleged (and here
-31-
admitted) to have been taken.
Given U.S. Bank’s legitimate, nondiscriminatory reason for filing its
counterclaims, the burden shifts to M s. Timmerman to show that the proffered
reason is merely pretext for a retaliatory adverse employment action. This M s.
Timmerman has not done. M ost importantly, M s. Timmerman has not shown, nor
does she even seem to argue, that U.S. Bank’s counterclaims are devoid of merit.
Cf. Bill Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 743 (1983) (“The filing
and prosecution of a well-founded law suit may not be enjoined . . . even if it
would not have been commenced but for the plaintiff’s desire to retaliate against
the defendant for exercising [his or her] rights . . . .”). As indicated above, based
on M s. Timmerman’s admissions during deposition testimony, U.S. Bank’s state
law counterclaims against M s. Timmerman had a factual basis.
In her attempt to show that U.S. Bank’s counterclaims w ere purely
retaliatory, M s. Timmerman primarily relies on the fact that U.S. Bank did not
file its counterclaims against her until nine months after her original
complaint— asserting sex and age discrimination— was filed. M s. Timmerman
claims that U.S. Bank was aware that she had taken the party account funds as far
back as September 2003, but did nothing about it until nine months after the
September 2004 filing of her discrimination claims. W hile M s. Timmerman is
correct that there is some evidence indicating that, in September 2003, several
U.S. Bank employees, including corporate security, became aware of the sources
-32-
of the internal party fund along with M s. Timmerman’s withdrawal of funds upon
her departure, this evidence, standing alone, is not enough to show pretext. Even
assuming that U.S. Bank was aware, in 2003, that M s. Timmerman may have
taken bank funds, it did not have M s. Timmerman’s admission until her
deposition was taken in April 2005. In sum, M s. Timmerman has not shown that
U.S. Bank’s proffered nondiscriminatory reason for filing its state law
counterclaims was pretextual, and thus the district court correctly granted
summary judgment to U.S. Bank.
C. 42 U.S.C. § 1985(2) Conspiracy Claim Against U.S. Bank
M s. Timmerman’s final federal claim is that U.S. Bank engaged in
conspiratorial acts w ith its outside counsel to interfere with her civil rights in
violation of 42 U.S.C. § 1985(2). A claim under § 1985(2) arises when:
[T]wo or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the
United States from attending such court, or from testifying to any
matter pending therein, freely, fully, and truthfully, or . . . conspire
for the purpose of impeding, hindering, obstructing, or defeating, in
any manner, the due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of the laws . . . .
42 U.S.C. § 1985(2). “The elements of a deterrence claim under section 1985(2)
are (1) a conspiracy, (2) to deter testimony by force or intimidation, and (3) injury
to the plaintiff.” Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir.
1994). M s. Timmerman specifically avers that U.S. Bank violated § 1985(2)
when it allegedly conspired with outside counsel to intimidate a witness into
-33-
signing a false declaration by threatening her economic livelihood and to file
allegedly bad faith counterclaims against M s. Timmerman.
As previously mentioned, U.S. Bank’s state law counterclaims against M s.
Timmerman had a factual basis and were not devoid of merit. Legal claims
possessing a reasonable basis in law and fact simply do not constitute the “force
or intimidation” necessary to satisfy § 1985(2). There is also no evidence
indicating that the counterclaims were filed “for the purpose of impeding,
hindering, obstructing, or defeating, in any manner, the due course of justice.”
As to the witness intimidation component of M s. Timmerman’s § 1985 claim, she
relies exclusively on a declaration of Stacie Chacon (a co-worker). That
declaration alleges that U.S. Bank’s outside counsel tried to convince M s. Chacon
to sign a pre-typed declaration that was not an accurate representation of events,
and that one of U.S. Bank’s attorneys warned M s. Chacon to remember who signs
her paychecks and where her loyalties lie. See Aplt. App. at 745. Standing alone,
this evidence is insufficient for a jury to infer an agreement between U.S. Bank
and its attorneys to either intimidate or threaten M s. Chacon. See Green v.
Benden, 281 F.3d 661, 665 (7th Cir. 2002) (“To establish the existence of a [§
1985] conspiracy, a plaintiff must show that the conspirators agreed to inflict
injury upon him; in other words, that they acted w ith a single plan . . . .”). Thus,
M s. Timmerman’s § 1985(2) claim fails.
A FFIR ME D.
-34-
06-1185, Timmerman v. U.S. Bancorp, N.A.,
Lucero, J., concurring.
I concur in the judgment but write separately because I disagree with the
majority’s treatment of evidence that Johnson replaced all six female Branch
M anagers w ith younger males in just twenty months. In my view , the majority
conflates the individual decisions of a single supervisor with generalized, large-
scale employment decisions.
Although we have stated “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-M cGee Corp., 944 F.2d 743, 746 (10th Cir. 1991), we have thus far only
utilized this principle to evaluate the practices of an employer or a division as a
whole. In Fallis, for example, the plaintiff showed that his employer laid off four
of 42 geologists under age 40 and three of nine geologists over 40 during a
reduction in force. Id. at 746. Noting that Fallis’ employer proffered legitimate,
non-discriminatory reasons for the disparity, we declined to infer discrimination.
In Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526 (10th Cir. 1994), the
plaintiff showed that, of 13 employees who took a year-long leave of absence,
only three were permitted to return to w ork. Id. at 532. All three were
individuals under the age of 40. Of the ten terminated employees, seven were
under the age of 40 and three were over age 40. Because of the small sample size
and lack of evidence that the 13 employees had substantially similar jobs, we held
the plaintiff had not established pretext. Id. at 533.
These decisions correctly limited the range of inferences that a jury could
draw from such tenuous evidence. But not all statistics should be dismissed so
readily. 1 The relevance and nature of the generalized data on employer practices
in Fallis and Cone differ from that of the statistical proffer in the instant case.
Timmerman’s claim of discrimination centers on the alleged biases of a single
supervisor, Trish Johnson, and in particular on Johnson’s alleged desire to place
younger men in all Branch M anager positions. Evidence of Johnson’s past
Branch M anager hiring decisions speaks directly to this claim. Indeed, we have
held that statistical evidence much like Timmerman’s supports a claim of
1
In Baylie v. Fed. Reserve Bank, 476 F.3d 522 (7th Cir. 2007) (cited at
M aj. Op. 14), the Seventh Circuit recognized that, in an individual treatment case,
some statistics are more probative than others. The court provided the following
hypothetical scenario as “the kind that permit[s] a sound inference in an
individual case”:
A plaintiff who accuses Supervisor X of discrimination because he
never has promoted a black person, and often says disparaging things
about black workers, is drawing a statistical inference: that if X has
been indifferent to race, then selections from the pool of employees
eligible for promotion would have included some black workers, and
in particular w ould have included the plaintiff.
Id. at 523, 525. Other types of statistics, such as a calculation that the average
white worker received an extra promotion every 20th year compared with the
average black worker, are “only marginally relevant when an individual plaintiff
seeks an award of damages.” Id. at 525.
-2-
discriminatory termination. In Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th
Cir. 1996), the plaintiff alleged that his supervisor fired him due to a desire to
install a new team of younger managers. W e concluded that “evidence that within
12 months after [the supervisor] became President (and shortly also the CEO) of
Safeway at age 42, eight top-level executives over the age of 50 were replaced by
younger persons,” “raised a justiciable issue of material fact which must proceed
to trial.” Id. at 560-61 (citation omitted). 2
In accordance with Greene, when a plaintiff claims that her supervisor
sought to exclude members of her protected class from certain positions, I w ould
2
The majority asserts that Greene does not have persuasive value because it
“is not a case about pretext.” (M aj. Op. 19.) As the majority points out, Greene
decided whether the plaintiff established his ADEA claim “directly, by presenting
direct or circumstantial evidence that age was a determining factor in his
discharge.” 98 F.3d at 560 (quotations omitted). However, this does not render
its analysis of statistical evidence inapplicable to the instant case, decided at the
pretext step of M cDonnell D ouglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
Intentional discrimination – the focus in Greene – remains the ultimate question
throughout a M cDonnell Douglas inquiry. See Ortiz v. Norton, 254 F.3d 889,
896-97 (10th Cir. 2001) (“[I]ntentional discrimination . . . is the ultimate
question; consequently it is paradoxical to assert that evidence of discriminatory
motive cannot be considered [at the pretext stage].”) (quotations and citations
omitted).
Nor do I agree that the timing of Johnson’s decisions meaningfully
distinguishes the present case from Greene. Although Greene held that statistical
evidence of events that took place within a year of the plaintiff’s firing was
material, it did not impose a bright-line rule excluding data older than one year.
98 F.3d at 560. Here, the Branch M anager hiring decisions took place within 20
months of Timmerman’s termination. Two of these decisions – for the Branch
M anagers of the two Fort Collins locations – occurred in spring of 2002 and thus
within the one-year w indow utilized by the majority.
-3-
place significant weight on evidence of the supervisor’s past hiring practices w ith
respect to those positions. To the extent that the majority discredits such
evidence simply because it neither directly addresses an employer’s proffered
reasons nor compares identical employment actions, I disagree. In my view , this
conclusion improperly conflates our caselaw on generalized employment
decisions with analysis of an individual supervisor’s actions, thereby ignoring
qualitative differences between the two types of evidence.
Nonetheless, I agree that the statistics in this case ultimately provide little
material support to Timmerman’s claim for two reasons. 3 First, as the majority
points out, only one incumbent female Branch M anager reapplied for her position.
Second, male applicants significantly outnumbered female applicants for the
Branch M anager positions. Of six applicants for the two Fort Collins openings,
one was female. No women applied for the Longmont/Erie position, and two men
and one w oman applied for the G reeley position. 4 Upon Timmerman’s
3
Johnson also testified that she neither made the final termination decision
nor recommended Timmerman’s termination. Instead, Steve Lovas, her superior,
decided to fire Timmerman at the suggestion of Linda Sincoff. As the majority
notes, such a decision cannot be imputed to Johnson. See Campbell v. Gambro
Healthcare, Inc., 478 F.3d 1282, 1290 (10th Cir. 2007). Nonetheless, U.S. Bank
arguably waived this argument in its brief by stating that Johnson terminated
Timmerman’s employment.
4
The record reveals that another woman, Stacie Chacon, applied for the
Greeley Branch M anager position at some point in 2001, but the date of her
application as w ell as the circumstances surrounding her sw orn statements are
unclear. A November 29, 2005 declaration by Chacon states that she submitted
an internal application and resume to Johnson in October 2001– two months after
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termination, five men and four women competed for the Loveland Branch
M anager opening. Although Johnson selected a male applicant to replace
Timmerman, one of the female applicants was offered a job as Branch M anager at
another location. Thus, like the majority, I conclude the evidence of Johnson’s
Jeff Jiron assumed the Greeley position. A second affidavit by Chacon, which is
not dated, explains that she applied for the Branch M anager position “shortly after
Trish Johnson became the Northern Colorado District M anager.” A ccording to
this affidavit, Chacon felt that she was denied the position despite her “superior
qualifications” and that Johnson discriminated in hiring only young men as
Branch M anagers. Chacon also attests that a U .S. Bank attorney pressured her to
sign a false affidavit, which she refused to do. A third Chacon affidavit, dated
January 20, 2006, refutes many of the statements contained in the second affidavit
– including those concerning Johnson’s discriminatory hiring and the U.S. Bank
attorney’s attempt to secure a false affidavit. This third affidavit instead contends
that M ari Newman, an attorney for Timmerman, drafted a misleading second
affidavit that Chacon signed “just to get rid of Newman’s incessant telephone
calls.” A ttorney New man disputes this characterization. According to N ew man’s
sw orn statement, Newman review ed each paragraph of the second affidavit with
Chacon and made all requested changes.
It appears that U.S. Bank’s contention that Newman violated ethical rules
simply by contacting Chacon without U.S. Bank’s knowledge or consent is
unwarranted. Because Chacon does not have authority to comm it U.S. Bank to a
position with respect to this litigation, Chacon is a bystander w itness and not a
represented party. See Ethics Comm. of the Colo. Bar. Ass’n, Formal Op. 69 ¶ 17
(1987) (“Employees who constitute the party are differentiated from those who
are bystander witnesses by their authority to comm it the organization to a position
regarding the subject matter of representation.”). Thus, Newman did not need to
obtain opposing counsel’s consent before speaking to Chacon. Nonetheless, it is
troublesome that the record before us contains at least one affidavit with false
statements and reveals that attorneys for at least one of the parties acted
improperly in their dealings with Chacon. It is also troublesome that at oral
argument, counsel for the parties contradicted each other over w hether Chacon’s
statements were submitted as an admission against interest of U.S. Bank in the
lower court.
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past hiring decisions does not preclude a grant of summary judgment to U.S.
Bank.
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