Martens v. Potter , 94 F. App'x 684 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 15 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JUDITH A. MARTENS,
Plaintiff-Appellant,
v. No. 02-6407
(D.C. No. 01-CV-1741-C)
JOHN E. POTTER, Postmaster (W.D. Okla.)
General, United States Postal Service,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered submitted without oral argument.
Judith A. Martens sued her employer, the United States Postal Service
(USPS), alleging it failed to promote her because of her age, in violation of the
*
This order and judgment is not binding precedent, except under the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.
Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), and in
retaliation for prior discrimination claims. The district court granted summary
judgment to USPS. We review the grant of summary judgment de novo applying
the same standards used by the district court, Watts v. City of Norman , 270 F.3d
1288, 1293 (10th Cir. 2001), and affirm.
USPS hired Ms. Martens as a letter carrier in 1993. In 1997, when
Ms. Martens was fifty-five years old, she applied for one of three accounting
technician openings. The job posting for the three positions directed employees
to apply by completing and submitting Postal Service Form 991 (Form 991), and
stated that information in their official records would be used to determine their
qualifications. A review committee evaluated the applicants and recommended
six to the selecting official, Arlynda Moody. Ms. Moody ranked Ms. Martens as
the third best-qualified and selected her for one of the three openings. But the
local USPS human resources manager, Ed Pitts, reopened the review. Acting on a
complaint, he concluded that the review committee had improperly rejected some
applications without considering information in their Office Personnel Folder
(OPF) in accordance with the job posting and past practice. He ordered the
review committee to reconsider all of the applicants using all of the information
in their OPFs.
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As a result, the review committee recommended an additional four
applicants. Ms. Moody ranked Ms. Martens as fifth best-qualified of the now-ten
applicants, and selected one of the new applicants, Margaret Gorman, for the third
opening instead of Ms. Martens. Ms. Moody stated in an affidavit that
Ms. Gorman had “already performed the full duties of the position of accounting
technician” and had demonstrated “outstanding work ethic and performance” to
Ms. Moody, who was her immediate supervisor on the project. Aplt. App. at 28,
27. She said she would have selected Ms. Gorman over Ms. Martens if she had
been on the original list of recommended applicants.
ADEA claims are analyzed under the familiar burden-shifting requirements
of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Garrett v.
Hewlett Packard Co. , 305 F.3d 1210, 1216 (10th Cir. 2002). The district court
correctly found that Ms. Martens established a prima facie case of age
discrimination, and that USPS provided a legitimate non-discriminatory reason for
the discharge. The court concluded, however, that Ms. Martens did not present
sufficient evidence to create a genuine dispute of material fact as to whether
USPS’s proffered reasons were a pretext for age discrimination.
Ms. Martens contends on appeal that the explanation for selecting
Ms. Gorman over her was pretextual. “Pretext can be shown by such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
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employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc. ,
108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). Because the job
posting stated that only properly completed Form 991s would be considered,
Ms. Martens asserts Ms. Moody could not consider her personal knowledge of the
applicants. She also questions whether there was authority for Mr. Pitts to reopen
the selection process, and she asserts that she did not have the same opportunity
as Ms. Gorman to do the project supervised by Ms. Moody. Finally, she points
out that the score given her by the review committee was higher than its score for
Ms. Gorman. We address this last contention first.
Pretext can be inferred “when the facts assure us that the plaintiff is better
qualified than the other candidates for the position,” Jones v. Barnhart , 349 F.3d
1260, 1267-68 (10th Cir. 2003). Here, the evaluation of applicants by the review
committee was used to create a “short” list of “best qualified” candidates. Aplt.
App. at 17. As in Jones , the review committee’s scoring does not demonstrate
that Ms. Martens was better qualified than Ms. Gorman because there is no
evidence to suggest that the review committee’s scores were anything other than
“a screening tool” to identify those who were best qualified for the position.
Jones , 349 F.3d at 1267-68. The undisputed evidence is that Ms. Moody was free
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to select or reject best-qualified applicants based on her own rating of their
qualifications.
Although “[c]ourts view with skepticism subjective evaluation methods,”
Garrett , 305 F.3d at 1218, “our role . . . is not to act as a super personnel
department that second guesses employers’ business judgments,” and “we
typically infer pretext in these contexts only when the criteria on which the
employers ultimately rely are entirely subjective in nature.” Jones , 349 F.3d
at 1267-68 (quotations omitted). Ms. Martens presents no evidence to dispute
USPS’s evidence that Ms. Gorman had legitimate advantages over Ms. Martens
because of her prior experience on an accounting technician project and
Ms. Moody’s personal knowledge of her work ethic and performance on that
project. See id . at 1268. Ms. Martens presented no evidence, circumstantial or
otherwise, in support of her assertion that she was denied an opportunity to do an
accounting technician project under Ms. Moody’s supervision.
Ms. Martens has also failed to support her remaining allegations of pretext
with any specific facts or evidence. She presented no evidence that only the
information in the Form 991 could be considered, or that Mr. Pitts lacked
authority to reopen the selection process. The job posting informed employees
that information in their official records would be used to determine their
qualifications, which is consistent with Mr. Pitts’ undisputed testimony that he
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reopened the process because the review committee improperly failed to consider
the applicants’ OPFs. The district court properly held that Ms. Martens failed to
raise a fact question on pretext. See Munoz v. St. Mary-Corwin Hosp. , 221 F.3d
1160, 1167-68 (10th Cir. 2000) (“Even though all doubts must be resolved in
plaintiff’s favor, allegations alone will not defeat summary judgment.” (quotation
omitted)).
Ms. Martens also asserts she was not promoted in retaliation for sex
discrimination claims she filed more than one year before the promotion decision.
We agree with the district court that this time lapse is too great to draw a causal
connection between Ms. Martens’ protected action and the USPS’s failure to
promote her. See Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1395
(10th Cir. 1997) (holding four-month lapse between protected activity and adverse
action insufficient to justify inference of causation).
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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