Gallo-Loeks v. U S West Communications, Inc. ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PEGGY A. GALLO-LOEKS,
Plaintiff - Appellant,
No. 02-1167
v. D.C. No. 00-WM-1863
(D. Colorado)
U S WEST COMMUNICATIONS,
INC.,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Peggy A. Gallo-Loeks appeals the district court’s summary
judgment in favor of her employer, U S West, on her claims that U S West
engaged in reverse discrimination in violation of Title VII, 42 U.S.C. §§ 2000e to
2000e-17, and the Colorado Anti-Discrimination Act, Colo. Rev. Stat.
§ 24-34-402. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
Ms. Gallo-Loeks, who is white, was disciplined after she submitted a
request for tuition reimbursement from an educational provider that was not
eligible for tuition reimbursement. When she was informed that the provider was
ineligible, Ms. Gallo-Loeks submitted additional documentation and received
reimbursement. Following an investigation that included her explanation for the
confusion over the billing, Ms. Gallo-Loeks was required to repay the tuition
money, she was placed on warning of dismissal for one year, and an entry was
placed permanently in her employment file.
During the approximate time period that Ms. Gallo-Loeks was investigated
and reprimanded, another employee was the subject of an investigation into her
use of a company credit card. The other employee, Ms. Christian, is an
African-American. Ms. Christian used the credit card to charge two days’
personal use of a rental car, which was a change from the original authorization
for a rental car. Although she had obtained a supervisor’s prior permission for
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the car expense, it was determined that she had used bad judgment by not
reconfirming her travel plans. She received a warning and was required to
reimburse her employer for the two days’ rental car charge.
Based on these circumstances, Ms. Gallo-Loeks claimed that U S West
treated her less favorably than Ms. Christian, in violation of Title VII and
Colorado state law. She asserted that she was reprimanded more severely than
Ms. Christian because she is white.
The district court first considered whether Ms. Gallo-Loeks established a
prima facie case under the familiar McDonnell Douglas burden-shifting scheme,
whereby the plaintiff must first establish a prima facie case of discrimination,
after which the employer must present a nondiscriminatory reason for the
challenged workplace action. Notari v. Denver Water Dep’t , 971 F.2d 585, 588
(10th Cir. 1992) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792(1973)). If those conditions are met, the plaintiff then has an opportunity to show
that the proffered reason was a pretext for discrimination. Id.In evaluating Ms. Gallo-Loeks’ prima facie showing, the district court
applied the Notari standard. Under Notari , for a reverse discrimination claimant
to establish a prima facie case of discrimination under the McDonnell Douglas
paradigm, she must “establish background circumstances that support an inference
that the defendant is one of those unusual employers who discriminates against
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the majority.” Id. at 589. After finding that Ms. Gallo-Loeks had not made the
requisite allegations of background circumstances, the district court evaluated
whether she had produced direct evidence of discrimination or indirect evidence
that made it reasonably probable that she would have been treated more favorably
but for her status as a white person. Appellant’s App. at 247 (citing Notari ,
971 F.2d at 590). The district court determined that Ms. Gallo-Loeks had not
offered any direct evidence of discrimination. Id. at 249 & n.4. Therefore, the
district court examined the indirect evidence of discrimination and concluded that
Ms. Gallo-Loeks had “not produced evidence ‘to support specific facts that are
sufficient to support a reasonable inference that but for plaintiff’s status the
challenged decision would not have occurred.’” Id. at 252 (quoting Notari ,
971 F.2d at 590). Accordingly, the district court granted summary judgment in
U S West’s favor on the Title VII claims. Because Ms. Gallo-Loeks did not argue
that a different standard or analysis applied to the state-law claims, the district
court granted summary judgment in U S West’s favor on those claims, as well.
Ms. Gallo-Loeks appeals, arguing that this court should abandon the Notari
requirements for a prima facie case in a reverse discrimination claim. She also
challenges the district court’s conclusion that her indirect evidence of
discrimination was insufficient to resist summary judgment. She does not claim
that she had direct evidence of discrimination.
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Analysis
We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the party opposing summary judgment.
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).
We decline Ms. Gallo-Loeks’ invitation to abandon Notari , because one
panel of this court cannot overrule the judgment of another, “absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.”
Barber v. T.D. Williamson, Inc. , 254 F.3d 1223, 1229 (10th Cir. 2001) (further
quotation omitted).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
judgment for the reasons stated in the district court’s March 22, 2002 order on
motion for summary judgment.
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The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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