Garcia v. City of Farmington ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 20, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JUANITA GARCIA,
Plaintiff - Appellant,
No. 17-2001
v. (D.C. No. 1:15-CV-00005-WJ-SCY)
(D. N.M.)
CITY OF FARMINGTON,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
_________________________________
This appeal grew out of the City of Farmington’s decision to fire
Ms. Juanita Garcia from her employment at a municipal power plant.
Ms. Garcia attributes the firing to (1) discrimination based on gender and
national origin and (2) retaliation for an earlier suit. Farmington justified
the firing on two alleged mistakes by Ms. Garcia that endangered the plant
*
The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
and its workers. The district court granted summary judgment to
Farmington, and we affirm.
I. The Two Incidents
Farmington’s power plant operates through a boiler that creates
steam, which is used to spin turbines and generate electricity. Boiler
pressure is controlled through operators like Ms. Garcia; if the pressure
gets too high, the boiler may explode.
Operators control the pressure through a device that runs on a
computer system. Using the computer system, operators set the pressure
level for the device.
Ordinarily, the device starts at a pressure ranging from 300 to 375
pounds per square inch. This pressure increases to 405 pounds per square
inch, which is the standard operating pressure. But on January 21, 2014,
with Ms. Garcia at the helm, the pressure skyrocketed to 451 pounds per
square inch. Ms. Garcia insists that she could not enter a set point for the
pressure because the computer malfunctioned. A coworker supports
Ms. Garcia’s account.
Farmington investigated the incident and noted an earlier incident
that had taken place in 2012. In the 2012 incident, Ms. Garcia had trouble
controlling the pressure and it rose to 424 pounds per square inch before a
supervisor told Ms. Garcia how to fix the problem.
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In light of the 2012 and 2014 mishaps, Farmington officials decided
to fire Ms. Garcia. She characterizes the firing as discriminatory and
retaliatory; in contrast, Farmington insists that it fired Ms. Garcia because
the two incidents could have resulted in injuries or deaths and damage to
the power plant.
II. The McDonnell Douglas Framework
The discrimination and retaliation claims required the district court
to apply the framework set out in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under this framework, Ms. Garcia had an initial burden to
establish a prima facie case. McDonnell Douglas, 411 U.S. at 802.
Farmington assumed, for the sake of argument, that Ms. Garcia had
satisfied this burden.
With this assumption, Farmington needed to give a legitimate,
nondiscriminatory reason for the firing. Id. Farmington contends that it
satisfied this requirement by relying on Ms. Garcia’s two failures to keep
the boiler pressure within safe limits.
As discussed below, Farmington articulated a legitimate and
nondiscriminatory explanation. Thus, Ms. Garcia needed to demonstrate
that this explanation was pretextual. Id. at 804.
III. The Admissibility of Lay Testimony
Ms. Garcia’s main challenge involves the admissibility of testimony
about her observations during the 2014 incident. Ms. Garcia and a
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coworker stated under oath that the computer had shown a malfunction,
preventing anyone from setting the pressure. Farmington disputed this
account, denying any malfunction. In support, Farmington hired an expert
witness who stated under oath that the device had not malfunctioned.
Farmington used this expert testimony to support a motion for
summary judgment. To rebut that testimony, Ms. Garcia proffered
testimony by herself and a coworker about their observations during the
2014 incident. But the district court excluded the proffered testimony.
Ms. Garcia argues that this ruling was erroneous, tainting the district
court’s grant of summary judgment and denial of a motion to alter or
amend the judgment. We reject Ms. Garcia’s argument.
The challenge involves rulings on two motions: (1) Farmington’s
motion for summary judgment and (2) Ms. Garcia’s motion to alter or
amend the judgment. We would ordinarily employ different standards of
review when addressing the rulings on these motions: For summary-
judgment rulings, we typically apply de novo review; for rulings on
motions to alter or amend the judgment, we typically review only for an
abuse of discretion. See Cillo v. City of Greenwood Vill., 739 F.3d 451,
461 (10th Cir. 2013) (de novo review of summary-judgment rulings);
Etherton v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016) (abuse-
of-discretion review for rulings on motions to alter or amend judgments).
But here the issue on summary judgment involves the admissibility of
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testimony, which is reviewed only for an abuse of discretion. James River
Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011).
Thus, we apply the abuse-of-discretion standard to review both the grant of
summary judgment and the denial of the motion to alter or amend the
judgment.
In our view, the district court had the discretion to exclude the
proposed testimony by Ms. Garcia and her coworker. But even if the
district court had allowed the testimony, it would not have supported
Ms. Garcia’s theory of liability.
Ms. Garcia and her coworker would have testified that the computer
did not allow them to set the pressure level because the computer monitor
toggled between the manual and automatic settings. The parties agree that
this testimony involved an opinion and that Ms. Garcia and her coworker
could not provide opinion testimony as expert witnesses. But Ms. Garcia
and her coworker insist that they should have been allowed to give opinion
testimony as lay witnesses. The district court disagreed, and this ruling fell
within the court’s discretion.
Lay-opinion testimony is governed by Federal Rule of Evidence 701,
and “[k]nowledge derived from previous professional experience falls
squarely within the scope of Rule 702 and thus by definition outside of
Rule 701.” James River Ins. Co., 658 F.3d at 1215 (internal quotation
marks omitted). Ms. Garcia and her coworker sought to testify about
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precisely that kind of knowledge. But even if Ms. Garcia and her coworker
had testified as lay witnesses, the testimony would not have affected
Farmington’s entitlement to summary judgment because the underlying
claims involved discrimination and retaliation rather than an incorrect
assignment of blame.
Ms. Garcia lacked direct evidence of discriminatory or retaliatory
intent, so she relied on circumstantial evidence. To evaluate that evidence,
the district court had to apply the McDonnell Douglas framework.
Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145
(10th Cir. 2008). That framework involves three steps. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973).
The first step was Ms. Garcia’s establishment of a prima facie case,
and Farmington assumed that Ms. Garcia had satisfied this step. This
assumption required Farmington to give a legitimate, nondiscriminatory
reason for the firing. Id. at 802. Farmington satisfied this requirement by
attributing the firing to Ms. Garcia’s mistakes in allowing the boiler
pressure to rise to unsafe levels in two separate incidents. In attributing the
firing to a neutral, legitimate reason, Farmington had no obligation to
present supporting evidence. Thus, Farmington’s expert testimony was
irrelevant at this step. See Etsitty v. Utah Transit Auth., 502 F.3d 1215,
1224 (10th Cir. 2007) (stating that the second step of McDonnell Douglas
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did not require the employer to “prove that the reason relied upon [had
been] bona fide” (internal quotation marks omitted)).
To rebut Farmington’s explanation, Ms. Garcia had to show pretext.
She could make this showing by presenting evidence that Farmington’s
justification was weak, implausible, inconsistent, or contradictory. Tabor
v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013). But Ms. Garcia’s
proposed testimony would not have suggested weaknesses, implausibilities,
inconsistencies, or contradictions in Farmington’s explanation.
Before hiring the expert witness, Farmington blamed Ms. Garcia for
mishandling the 2014 incident when the boiler pressure increased.
Farmington alleges that Ms. Garcia was wrong in thinking that the device
had malfunctioned, but so what if she had been right? Regardless of
whether the device had malfunctioned, Ms. Garcia admitted that the boiler
pressure had increased too fast and had been too high, that she had failed
to create a work order for the device after it allegedly malfunctioned, that
she had not told anyone about the malfunction until a week after the
incident, and that she had failed to note the malfunction in the operations
log book. Thus, Ms. Garcia implicitly admitted that she had mishandled the
incident even if the device had malfunctioned as she claimed. In light of
this implicit admission, Ms. Garcia’s proposed testimony would not have
suggested any weaknesses, implausibilities, inconsistencies, or
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contradictions in Farmington’s explanation for the firing. Thus, the district
court properly granted summary judgment to Farmington.
IV. Consideration of Ms. Garcia’s Evidence
Ms. Garcia also contends that the district court ignored eight
categories of evidence. This contention mischaracterizes the ruling. The
district court explained that it had omitted discussion of immaterial
incidents and alleged facts not supported by Ms. Garcia’s citations. This
explanation was appropriate, for the district court had no obligation to
comb the record when Ms. Garcia’s cited evidence did not support her
factual allegations. Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th
Cir. 2008).
V. The District Court’s Reliance on Kendrick v. Penske
Transportation Services, Inc.
The district court explained that the critical inquiry is how the facts
appeared to the individual who decided to fire Ms. Garcia, not
Ms. Garcia’s evaluation of herself. For this explanation, the court cited
Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir.
2000). Ms. Garcia argues that Kendrick is distinguishable because in that
case the employee failed to present evidence undermining the employer’s
honest belief.
But the district court did not state that the facts in Kendrick were
identical or even similar. The court cited Kendrick merely for the need to
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view the facts as they appeared to the employer’s decisionmaker, which is
precisely what Kendrick said. See Kendrick, 220 F.3d at 1231 (“[A]
challenge of pretext requires us to look at the facts as they appear to the
person making the decision to terminate plaintiff.”). Thus, the district
court did not err in its use of Kendrick.
VI. Farmington’s Allegedly Negative Perception of Ms. Garcia
Ms. Garcia also asserts that she was viewed by Farmington as
divisive, frustrating, and controversial. But it is not unlawful to fire
someone for being divisive, frustrating, or controversial. To prevail,
Ms. Garcia had to prove that her firing constituted
 retaliation for her earlier suit or
 discrimination based on gender or national origin.
See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1176 (10th Cir.
1996) (retaliation); Sanchez v. Phillip Morris, Inc., 992 F.2d 244, 246
(10th Cir. 1993) (discrimination). Thus, Ms. Garcia’s characterization of
Farmington’s perception of her (divisive, frustrating, and controversial)
cannot support liability. See Sanchez, 992 F.2d at 248 (stating that even if
the employer’s stated reason was pretextual, there was insufficient
evidence of discrimination “as opposed to a mere mistake, favoritism or
some other reason”).
* * *
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For these reasons, the district court did not err in (1) granting
summary judgment to Farmington or (2) denying Ms. Garcia’s motion to
alter or amend the judgment.
Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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