Gaskin v. Science Applications Intl. ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GAYLA A. GASKIN,
Plaintiff - Appellant,
v. No. 19-6053
(D.C. No. 5:18-CV-00091-R)
SCIENCE APPLICATIONS (W.D. Okla.)
INTERNATIONAL, INC.,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and EID, Circuit Judges.
_________________________________
Gayla Gaskin appeals from the district court’s grant of summary judgment to
her former employer, Science Applications International, Inc. (SAIC), on her claim
of sex discrimination under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Background
SAIC contracts with the Federal Aviation Administration (FAA) to provide
instructors for air traffic controller candidates at the FAA Academy in Oklahoma
City. SAIC hired Gaskin as an Instructor II in September 2015. All instructor
positions for SAIC at the FAA Academy, including Instructor II positions, require
FAA certification.
By March 2016, SAIC had warned Gaskin at least three times to remedy
misconduct that included distracting students during their simulations, setting a tone
detrimental to training, and denigrating the curriculum. Then in January 2017 the
FAA asked SAIC to investigate several comments made by students in their
end-of-course evaluations. Those students reported that Gaskin, among other things,
“hit on [their] classmates a lot,” “was very inappropriate as an instructor,” and “made
many . . . students feel uncomfortable.” Aplt. App. at 123. Gaskin responded to the
comments at SAIC’s request and denied engaging in any inappropriate conduct.
Unbeknownst to Gaskin, the FAA launched an independent investigation into
her conduct. The FAA’s investigation revealed that “[m]ultiple students witnessed
Ms. Gaskin partake in inappropriate behavior.” Id. at 91. According to the FAA, this
behavior included making crude comments, extensively touching students in a way
that made them feel uncomfortable, degrading student performance in class, and
inviting at least one student to fraternize outside of class. On February 3, 2017, the
FAA reported its findings to SAIC and “decertified [Gaskin] as an Academy
Instructor.” Id.2
SAIC terminated Gaskin’s employment on February 6, 2017. It told Gaskin
that “the reason for your termination is violation of SAIC’s Code of Conduct.” Id. at
129. SAIC did not inform Gaskin that the FAA had decertified her.
Gaskin then brought this suit, alleging SAIC terminated her because she is
female. Her case rests on circumstantial evidence of sex discrimination. She argues
that the evidence shows SAIC treated similarly situated male employees differently,
failed to conduct a fair investigation, and provided false and shifting reasons for her
termination.
The district court found on summary judgment that Gaskin failed to establish a
prima facie case of discrimination because the FAA’s decertification rendered her
unqualified for continued employment with SAIC. The district court further found
that Gaskin failed to show that SAIC’s non-discriminatory rationale for firing her
was pretextual.
II. Discussion
We review the district court’s summary judgment decision de novo, viewing
the factual record and making reasonable inferences from it in the light most
favorable to the nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199
(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is
such that a reasonable jury could return a verdict for the nonmoving party, and a fact
is material when it might affect the outcome of the suit under the governing
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substantive law.” Bird, 832 F.3d at 1199 (internal quotation marks and alteration
omitted). “A movant that will not bear the burden of persuasion at trial need not
negate the nonmovant’s claim. Such a movant may make its prima facie
demonstration simply by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Felkins v. City of
Lakewood, 774 F.3d 647, 653 (10th Cir. 2014) (internal quotation marks and
alteration omitted).
Because Gaskin relies on circumstantial evidence to support her sex
discrimination claim, we “apply the three-step burden-shifting framework set forth in
McDonnell Douglas and its progeny.” Plotke v. White, 405 F.3d 1092, 1099
(10th Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–07
(1973)).
At step one of the McDonnell Douglas burden-shifting framework, a plaintiff
has the burden on summary judgment of demonstrating a prima facie case of
discrimination. See McDonnell Douglas, 411 U.S. at 802. This can be done in a
wrongful termination case by producing evidence “that (1) [the plaintiff] was a
member of a protected class (2) who was terminated (3) despite being qualified for
her position, and (4) the job wasn’t eliminated.” Fassbender v. Correct Care Sols.,
LLC, 890 F.3d 875, 884 (10th Cir. 2018). Regarding qualification for the position,
“[t]he relevant inquiry at the prima facie stage is . . . whether the employee has
introduced some evidence that she possesses the objective qualifications necessary to
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perform the job . . . .” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,
1193 (10th Cir. 2000).
If the plaintiff makes this initial showing, the burden shifts to the defendant at
step two to articulate a legitimate non-discriminatory reason for firing the plaintiff.
See McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts
back to the plaintiff at step three to produce enough evidence for a reasonable jury to
conclude the defendant’s proffered rationale was pretextual. Id. at 804.
Gaskin concedes that on the day SAIC fired her, she no longer possessed the
FAA certification “necessary to perform the job.” Horizon, 220 F.3d at 1193;
see Aplt. Opening Br. at 12–13 (“Gaskin was decertified on February 3, 2017, and
terminated on February 6, 2017 . . . .”). She therefore failed to establish a prima
facie case of discrimination. The fact that SAIC fired her for a different, albeit
related,1 reason does not alter our conclusion. Cf. MacDonald v. E. Wyo. Mental
Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991) (explaining that courts “refus[e] to
consider a defendant’s proffered reasons for discharge in assessing the existence of a
prima facie case” so that defendants cannot use their reasons for firing a plaintiff to
defeat the plaintiff’s prima facie case), abrogated on other grounds by Randle v. City
of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
Citing MacDonald, Gaskin asks us to ignore her lack of certification. In that
case, we delineated a few ways that an employee can prove he or she is qualified:
1
The same underlying conduct led to the FAA’s decertification and SAIC’s
termination.
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[A] plaintiff may make out a prima facie case of discrimination in a
discharge case by credible evidence that she continued to possess the
objective qualifications she held when she was hired, or by her own
testimony that her work was satisfactory, even when disputed by her
employer, or by evidence that she had held her position for a significant
period of time.
Id. at 1121 (emphasis added) (citations omitted). Gaskin relies on our use of the
disjunctive “or” and argues that by providing evidence that SAIC employed her for a
significant period,2 she established her prima facie case.
But Gaskin’s argument stretches MacDonald’s language too far. While
evidence of tenure alone may suffice to demonstrate qualification for a job in some
cases, it is by no means automatic. Here, Gaskin admits that her former position
requires a certification she no longer has. This stands in stark contrast to
MacDonald, where the plaintiffs “continued to possess the objective professional
qualifications they held when they were hired.” Id. Indeed, we cited with approval a
Fifth Circuit case where the court noted that an employee could only establish a
prima facie case “if the ‘plaintiff had not suffered . . . loss of a necessary professional
license.’” Id. at 1120 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506
n.3 (5th Cir. 1988)).
Gaskin further contends that her lack of qualification cannot undermine her
prima facie case at step one of the McDonnell Douglas framework because SAIC also
raises the FAA’s decertification as evidence of non-discriminatory intent at step two
2
For purposes of this appeal, we assume without deciding that SAIC employed
Gaskin for a significant period of time.
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of the McDonnell Douglas framework. To support this notion, Gaskin quotes
Horizon:
When an employee’s failure to meet objective, employer-imposed
criteria is one of the legitimate, non-discriminatory reasons advanced by
an employer to dispel the inference of discrimination raised by an
employee at the prima facie stage, it cannot also be used to defeat the
employee’s prima facie case. To hold otherwise would be tantamount to
collapsing the first and second stages of the McDonnell Douglas
analysis and would deny a plaintiff the opportunity to demonstrate that
the defendant’s explanation for the adverse employment action is
pretextual.
Aplt. Opening Br. at 22 (quoting 220 F.3d at 1193).
But the issue before the court in Horizon was “whether an employer may
defeat a plaintiff’s prima facie case by challenging the plaintiff’s qualification for the
position on the grounds she has failed to meet an objective qualification that is not
essential to the performance of the job.” 220 F.3d at 1192 (emphasis added). We
never wavered from the rule that to establish a prima facie case, a plaintiff must
produce “evidence that she possesses the objective qualifications necessary to
perform the job.” Id. at 1193. Gaskin admits that she does not possess one of the
objective qualifications necessary to perform the job of an Instructor II, and therefore
she cannot establish a prima facie case of sex discrimination.3
3
Because we hold that Gaskin did not establish a prima facie case, we need
not address Gaskin’s argument that the district court erred by alternatively holding
that she failed to show SAIC’s non-discriminatory rationale for firing her was
pretextual.
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III. Conclusion
For the reasons stated above, we affirm the district court’s grant of summary
judgment to SAIC.
Entered for the Court
Allison H. Eid
Circuit Judge
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