Adams v. Washburn University , 66 F. App'x 819 ( 2003 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 5 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    SUE E. ADAMS,
    Plaintiff-Appellant,
    v.                                                           No. 02-3071
    WASHBURN UNIVERSITY OF                              (D.C. No. 98-CV-4199-RDR)
    TOPEKA,                                                     (D. Kansas)
    Defendant-Appellee.
    ORDER AND JUDGMENT*
    Before TACHA, Chief Judge, BRISCOE, Circuit Judge, and SHADUR, District
    Judge.**
    Plaintiff Dr. Sue Adams filed this action against her former employer, defendant
    Washburn University, under Title VII, 42 U.S.C. § 2000e et. seq. Plaintiff appeals the
    district court's entry of summary judgment in favor of Washburn. We exercise
    jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirm.
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    **
    The Honorable Milton I. Shadur, Senior District Judge, Northern District of
    Illinois, sitting by designation.
    I.
    In 1994, plaintiff applied for an educational technology lecturer position in the
    Department of Education at Washburn. The position was a non-tenure track, three-year
    appointment. During the interview process, she met with the search committee, faculty
    members, and administrators, including Dr. Wayne Sheley, who was then vice president
    of academic affairs. During the same time period, plaintiff also applied for the position
    of director of continuing education at Washburn.
    After she was denied both positions, plaintiff filed a complaint with Washburn
    alleging Dr. Sheley made improper sexual advances and comments toward her during the
    interview process. She asserted that he contacted her outside of the interview process,
    commented about her body and appearance, offered her a higher salary if she would work
    on special projects directly with him, and encouraged her to apply for a position where
    she could work more closely with him. Plaintiff alleged that, due to her rejection of these
    overtures, she was denied the lecturer position notwithstanding the fact that the other
    qualified candidates had withdrawn from consideration for the position. Plaintiff and
    Washburn negotiated a settlement and plaintiff was awarded the three-year lecturer
    position in exchange for her release of any claim against Washburn.
    From 1994 to 1997, plaintiff successfully fulfilled the requirements of her position.
    During her tenure, she helped create and teach new graduate courses in educational
    technology and produced two manuscripts for publication. Her reviews from students and
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    peers were favorable. In 1997, Washburn determined that the lecturer position should
    become a permanent tenure track position. Washburn advertised the position and initiated
    a formal application and interview process. Dr. David Van Cleaf, chair of the
    Department of Education, asked plaintiff and other faculty members for input into the job
    description for the position. A doctorate in educational technology, which plaintiff
    lacked, was removed as a requirement for the position. Instead, a doctorate in education
    with an emphasis in educational technology was listed as a requirement.
    Pursuant to Washburn policy, Dr. Van Cleaf selected a five-member search
    committee to review applications and make recommendations for the position. None of
    the members who served on the 1994 search committee served on the 1997 search
    committee. Plaintiff was not selected as one of the top candidates chosen to be
    interviewed for the position because the committee concluded she did not have the
    requisite course work or background in educational technology. Another person, whose
    background included several courses in educational technology, was selected for the
    position.
    Plaintiff filed this action against Washburn alleging she was denied the tenure
    track position in retaliation for her 1994 internal sexual harassment complaint.
    Specifically, she alleged that Dr. Sheley used his position at Washburn and his friendship
    with Dr. Van Cleaf to influence the search committee. The district court granted
    Washburn's motion for summary judgment, concluding that plaintiff's case was “too
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    heavily dependent upon conjecture to establish a reasonable inference that her failure to
    obtain an interview or to be hired for the tenure track position was because she filed a
    discrimination complaint in 1994.” Aplt. App. at 407.
    II.
    We review the district court's grant of summary judgment de novo, applying the
    same legal standard used by the district court. See Simms v. Okla. ex rel. Dep't of Mental
    Health & Substance Abuse Servs., 
    165 F.3d 1321
    , 1326 (10th Cir. 1999). Summary
    judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show that there is no genuine issue
    as to any material fact and that the moving party is entitled to a judgment as a matter of
    law.” Fed. R. Civ. P. 56(c). In applying this standard, we view the evidence and draw all
    reasonable inferences therefrom in the light most favorable to the nonmoving party.
    Simms, 
    165 F.3d at 1326
    .
    III.
    Plaintiff contends the district court erred in granting summary judgment because
    she presented sufficient evidence to establish a prima facie case of retaliation. Under
    Title VII, an employer may not discriminate against an employee in retaliation for the
    employee’s opposition to unlawful employment practices. See 42 U.S.C. § 2000e-3(a).
    Title VII retaliation claims are subject to the burden-shifting analysis of McDonnell
    Douglas Corp. v. Green, 
    411 U.S. 792
    , 802-04 (1973). See Pastran v. K-Mart Corp., 210
    
    4 F.3d 1201
    , 1205 (10th Cir. 2000). Under this framework, the plaintiff bears the initial
    burden of establishing a prima facie case. 
    Id. at 1205-06
    . To establish a prima facie case
    of retaliation, plaintiff must show that (1) she engaged in protected opposition to
    discrimination, (2) adverse employment action was taken against her subsequent to the
    protected activity, and (3) a causal connection exists between the protected activity and
    the adverse employment action. 
    Id. at 1205
    . Plaintiff can establish the requisite causal
    connection by producing “evidence of circumstances that justify an inference of
    retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus
    v. United Tel. Co. of Kan., Inc., 
    683 F.2d 339
    , 343 (10th Cir. 1982). If plaintiff
    successfully establishes a prima facie case, then Washburn must offer a legitimate, non-
    discriminatory reason for its employment decision. See Pastran, 210 F.3d at 1206. If
    Washburn offers such a reason, then plaintiff must demonstrate that its proffered reason is
    pretextual. Id.
    The district court concluded that summary judgment was appropriate because
    plaintiff failed to establish the third element of the prima facie case. Specifically, the
    court concluded she failed to show a causal connection between her 1994 internal
    complaint and Washburn’s hiring selection in 1997. Plaintiff contends that she presented
    sufficient evidence to create a genuine issue as to whether Dr. Sheley used his
    relationship with Dr. Van Cleaf and his position of authority at Washburn to influence the
    selection process in retaliation for her 1994 complaint.
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    In support of her claim, plaintiff presented evidence that Dr. Sheley and Dr. Van
    Cleaf had a mentor relationship, that Dr. Sheley was upset when plaintiff made the
    allegations against him in 1994, and that Dr. Sheley believed Washburn should have
    investigated the allegations more thoroughly. In addition, Dr. Sheley once commented to
    Dr. Van Cleaf that he did not think plaintiff would be interested in staying at Washburn
    beyond her three-year lecturer position. Plaintiff also claimed that a faculty member
    informed her that Dr. Sheley and Dr. Van Cleaf had traveled together and had discussed
    the job search. Plaintiff contended that another faculty member told her that he “felt” that
    Dr. Van Cleaf and Dr. Sheley had “gotten together” and prevented plaintiff from getting
    the job. Aplt. App. at 145. Plaintiff further claimed that Dr. Van Cleaf showed her where
    her new office would be if she was selected for the position and encouraged her to create
    her schedule for Fall 1997, but that his encouragement abruptly changed after he
    allegedly met with Dr. Sheley.
    Plaintiff also attacks the legitimacy of the search committee's selection process.
    She points to the fact that Dr. Van Cleaf attended the first committee meeting where
    plaintiff was in effect eliminated as a candidate, yet he failed to attend additional
    committee meetings. At that meeting, Dr. Van Cleaf took the position that plaintiff was
    not qualified for the position. She alleges that once Dr. Van Cleaf did Dr. Sheley’s “dirty
    work” by eliminating her as a candidate, Dr. Van Cleaf no longer had a reason to attend
    the meetings. In addition, the search committee was prevented from looking beyond the
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    face of her application because Dr. Van Cleaf instructed the committee not to check into
    the accuracy of the information submitted by each candidate. Plaintiff also points to the
    fact that Dr. Van Cleaf did not inform the committee that she had provided input into the
    position description, and that the search committee did not consist of faculty members
    who were the most knowledgeable in the field of educational technology. Finally,
    plaintiff contends that she was clearly qualified for the position. She points to the 1994
    search committee’s conclusion that she was specialized in the field of educational
    technology, her favorable student and peer reviews, and the three years of experience she
    gained in the field as a lecturer.
    After reviewing the record and viewing the evidence in the light most favorable to
    plaintiff, we conclude that she has failed to establish the requisite nexus between her 1994
    complaint and Washburn’s decision not to hire her for the tenure track position in 1997.
    The three-year gap between her complaint and Washburn’s employment decision is too
    great to support an inference of retaliatory motive. See Bullington v. United Air Lines,
    Inc., 
    186 F.3d 1301
    , 1321 (10th Cir. 1999) (opining that two-year gap undercut an
    inference of retaliatory motive).
    In the absence of a close temporal relationship between her 1994 complaint and
    the 1997 adverse hiring decision, plaintiff must present additional evidence to establish
    causation. See Conner v. Schnuck Mkts., Inc., 
    121 F.3d 1390
    , 1395 (10th Cir. 1997).
    Her evidence that Dr. Sheley was upset when she filed her complaint in 1994 is not
    7
    evidence of causation. Nor does Dr. Sheley’s comment to Dr. Van Cleaf that he believed
    plaintiff would not want to continue in the position beyond her three-year lecturer
    position, on its face, indicate a discriminatory animus toward her. Further, plaintiff's
    statements that faculty members, who were not on the selection committee, informed her
    that Dr. Sheley and Dr. Van Cleaf met and discussed the job search is inadmissible
    hearsay that we cannot consider. See Starr v. Pearle Vision, Inc., 
    54 F.3d 1548
    , 1555
    (10th Cir. 1995) (holding “Rule 56 precludes the use of inadmissible hearsay testimony in
    depositions submitted in support of, or in opposition to, summary judgment”).
    More importantly, plaintiff failed to present any evidence that Dr. Sheley or Dr.
    Van Cleaf played a part in the adverse employment decision. The crux of her claim is
    that Dr. Sheley used his relationship with Dr. Van Cleaf and his position at Washburn to
    influence the search committee. “However, evidence of an opportunity to influence does
    not amount to evidence of actual influence and [plaintiff's] mere speculation about [Dr.
    Sheley’s and/or Dr. Van Cleaf’s] influence is not enough to demonstrate a genuine issue
    of material fact.” Bullington, 
    186 F.3d at 1321
    . Indeed, the evidence is to the contrary.
    Although Dr. Van Cleaf expressed his opinion regarding plaintiff's qualifications to the
    committee, “he didn’t dwell on how bad she was.” Aplt. App. at 173. Nor was he “an
    advocate for or against anybody in the committee deliberations.” 
    Id.
     Rather than being
    unduly influenced by Dr. Van Cleaf, the record demonstrates that the committee
    independently eliminated plaintiff as a candidate because she lacked the necessary course
    8
    work and background in educational technology. Dr. Jerry Gray, head of the search
    committee, stated that he believed the committee selected the best candidate for the job
    and that, based on an analysis of plaintiff's transcripts, Dr. Van Cleaf could have
    concluded plaintiff was not qualified for the position. In fact, plaintiff does not challenge
    the qualifications of the candidate who was hired for the position, and the fact that
    plaintiff may have been qualified for the position does not support an inference of
    discrimination. Further, Dr. Van Cleaf winnowed out the applications of clearly
    unqualified candidates before he submitted the applications to the search committee for
    review. Thus, if, as plaintiff suggests, Dr. Van Cleaf wanted to ensure that she did not get
    the position, it appears unlikely that he would submit her application to the committee
    where he would have little, if any, influence over their hiring decision.
    Similarly, plaintiff's complaints regarding the procedures used by the search
    committee do not support an inference of retaliation because the committee applied the
    same standards and procedures when considering each applicant. The evidence of Dr.
    Van Cleaf’s “attitude change” and the fact that he attended only the first committee
    meeting where plaintiff was eliminated as a candidate, coupled with other evidence,
    potentially could support an inference of retaliation. However, plaintiff failed to provide
    this court with additional evidence needed to support such an inference and “[t]he mere
    existence of a scintilla of evidence in support of the nonmovant’s position is insufficient
    to create a dispute of fact that is ‘genuine.’” Lawmaster v. Ward, 
    125 F.3d 1341
    , 1347
    9
    (10th Cir. 1997).
    We conclude that plaintiff has failed to establish a nexus between her 1994
    complaint and Washburn’s 1997 employment decision. Because she cannot demonstrate
    a prima facie case of retaliation, it is unnecessary to address her pretext argument.
    AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
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