Lucas v. Office of the Colorado State Public Defender ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 4, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ROGER J. LUCAS,
Plaintiff - Appellant,
v. No. 16-1378
(D.C. No. 1:15-CV-00713-CBS)
THE OFFICE OF THE COLORADO (D. Colo.)
STATE PUBLIC DEFENDER, a public
entity; DOUGLAS K. WILSON,
individually and in his official capacity as
the Colorado State Public Defender;
CARRIE THOMPSON, individually and in
her official capacity as the Office Head for
the Colorado Springs Public Defender’s
Regional Office,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Roger J. Lucas, an attorney representing himself pro se, filed a complaint
asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and state tort law against his former employer, the Office of the Colorado State
Public Defender (Defender’s Office); Douglas K. Wilson, the Colorado State Public
Defender; and Carrie Thompson, the head of the Colorado Springs Regional Office of
the Defender’s Office. Lucas was fired after he violated a corrective action
prohibiting him from unwanted contact with a younger, female attorney in the
Defender’s Office. He alleges that his termination was based on race, reverse-sexual-
discrimination, and prohibited retaliation; that his Equal Protection rights were
violated; and that the individual defendants interfered with a post-termination
employment opportunity. On cross-motions for summary judgment, the district court
denied Lucas’s motion and granted the defendants’ motion. Lucas appeals, and we
affirm.
I.
The Defender’s Office hired a new Deputy Public Defender, Catherine
Peterson, in June 2013, shortly after she graduated from law school. Lucas, a Deputy
Public Defender hired in 2007, immediately began coming to her office daily to talk.
Lucas texted Peterson, saying he thought they would be great together and wanting
an opportunity to get to know her. Peterson told Lucas his texts were inappropriate
and he should only talk to her about work. Lucas continued sending her non-work-
related messages on Facebook. He told her he had “check[ed] her out” by looking at
her photos, comments, and likes on Facebook; had “completely” fallen for her, “a
thousand times harder than” before; thought they “would complement each other
2
well”; and hoped she would unblock him from her Facebook page. Aplt. App. Vol.
II-A at 430.
In July 2013, Peterson told her supervisor, Michelle Newell, that Lucas’s
attention made her uncomfortable, and that she wanted him to leave her alone.
Newell and defendant Thompson spoke with Lucas’s supervisor, who, in turn, met
with Lucas and told him to keep all future communications with Peterson strictly
work-related. But Lucas continued to have non-work-related contact with Peterson.
For example, he spoke to her aggressively and drunkenly at a hotel bar after a work
conference. When Lucas refused to leave Peterson alone, a supervisor escorted him
out of the bar and later told him he was not to call, text, or e-mail Peterson unless it
was work-related.
Lucas persisted. He continued to send Peterson non-work-related messages on
Facebook and sent her flowers. In one message, Lucas said, “I just wanted to see you
happy –whether that be by congratulating you on your trial wins, giving you a card,
or giving you anonymous flowers.” Id. at 432. After an office party, Lucas came
into Peterson’s office without knocking, and made lewd comments when he saw her
there in the presence of a male co-worker. Peterson told Lucas she would report him
if he came in her office again without permission. A few weeks later, Lucas sent an
e-mail to all staff saying he had brought back candy from a trip but “[i]f I didn’t
leave any on your desk, it’s cuz I want you to stop by my office for a kiss, or maybe
something more . . . .” Id. at 490. Peterson interpreted this as directed at her because
Lucas did not leave candy on her desk. Peterson reported to Newell that Lucas was
3
continuing unwanted communications with her, that she was very upset, and that she
wanted no further contact with him.
Thompson met with Lucas, who admitted he was attracted to Peterson. In
January 2014, Thompson issued Lucas a formal corrective action, instructing him not
to communicate with Peterson in any way and to direct all work-related
communications with Peterson through another attorney. The corrective action
warned Lucas he was subject to dismissal if he violated its no-contact directive.
Even so, Lucas directly contacted Peterson about a work matter in May 2014, without
going through another co-worker, in violation of the corrective action.
That same month, a co-worker informed Thompson that Lucas believed the
corrective action was unfair, thought Peterson was creating a hostile work
environment and wanted her fired, and threatened to contact the Equal Employment
Opportunity Commission (EEOC). Lucas then spoke directly with Thompson, stating
he wanted Thompson to lift the no-contact restrictions and fire Peterson, and that he
would report her if she did not do so. Thompson refused to lift the restrictions or fire
Peterson and told Lucas she had arranged for a mediator to assist in resolving this
conflict. Before the mediation occurred, however, Lucas again violated the
no-contact directive by e-mailing Peterson to ask for her assistance on a sexual-
assault case. Peterson was upset and forwarded the e-mail to Thompson. When
Thompson confronted Lucas to ask why he had flagrantly violated the no-contact
directive, Lucas said the no-contact directive was discriminatory, challenged the
accuracy of Peterson’s allegations, and said that Peterson’s body language told him
4
she was okay with contact. Thompson told Lucas the corrective action would remain
in place. Lucas said if his concerns were not addressed he would contact the EEOC
to intervene. Thompson told him to take whatever action he felt was necessary.
The next day, Thompson sent a detailed letter to defendant Wilson describing
Lucas’s unwelcome communications with Peterson and his failure to comply with the
no-contact directive. Thompson recommended that Wilson terminate Lucas’s
employment “due to [his] unwillingness to abide by the restrictions as laid out in the
corrective action.” Id. at 352. Wilson terminated Lucas that day. Lucas later applied
for a contract position with the Office of Alternative Defense Counsel (OADC), but
was not hired.
After exhausting his remedies and receiving a right-to-sue letter from the
EEOC, Lucas filed suit against defendants, asserting three Title VII claims against
the Defender’s Office: race discrimination (he is a Filipino-American), reverse-
sexual-discrimination, and retaliation. He asserted two claims against Thompson and
Wilson in their individual and official capacities: a § 1983 claim asserting race and
gender discrimination under the Equal Protection Clause of the Fourteenth
Amendment and a state-law tortious-interference claim, alleging Thompson and
Wilson had interfered with his opportunity to be hired by OADC. The parties
consented to proceed before a magistrate judge and filed cross-motions for summary
judgment. The magistrate judge denied Lucas’s motion and granted defendants’
motion. Lucas appeals.
II.
5
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). We review de novo a magistrate judge’s
summary-judgment decisions, drawing all reasonable inferences in the non-moving
party’s favor. Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016)
(treating cross-motions for summary judgment separately and viewing the evidence
in the light most favorable to each non-moving party).
A. Title VII and Equal Protection Discrimination Claims. In McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973), the Supreme Court set
forth a three-part burden-shifting framework to analyze circumstantial-evidence Title
VII discrimination claims. The McDonnell Douglas framework applies as well to
§ 1983 claims based on allegations of discrimination under the Equal Protection
Clause. English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1007 (10th Cir. 2001).
Under this framework, a plaintiff must first establish a prima facie case of
discrimination by demonstrating that he is a member of a protected class and suffered
an adverse employment action under circumstances giving rise to an inference of
discrimination. DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir.
2017). In a reverse-gender-discrimination case, a plaintiff “must, in lieu of showing
that he belongs to a protected group, establish background circumstances that support
an inference that the defendant is one of those unusual employers who discriminates
against the majority.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d
1193, 1201 (10th Cir. 2006) (internal quotation marks omitted).
6
If the plaintiff establishes a prima facie case of discrimination, the defendant
must then articulate a legitimate, nondiscriminatory reason for the adverse
employment action. DePaula, 859 F.3d at 970. This circuit has held that “[t]he
defendant’s burden is exceedingly light, as its stated reasons need only be legitimate
and non-discriminatory on their face.” Id. (internal quotation marks and citation
omitted). If the defendant carries this burden, the burden shifts back to the plaintiff
to demonstrate by a preponderance of the evidence that the defendant’s proffered
reason for the employment decision is not the true reason, but a pretext for
discrimination. Id.
The magistrate judge ruled that the corrective action did not constitute an
adverse employment action, but that the termination did. He assumed for the sake of
argument that Lucas had established a prima facie case of race and reverse-gender-
discrimination as to his termination. He ruled that the defendants had met their
McDonnell Douglas burden because they had consistently articulated a legitimate,
non-discriminatory reason for terminating Lucas—namely, his repeated and
unwanted contact with Peterson and his insubordination and unwillingness to comply
with the corrective action. The magistrate judge ruled Lucas had failed to establish a
genuine issue of material fact that the reasons articulated by the defendants for
terminating him were pretext for discrimination; thus, he granted the defendants’
motion for summary judgment.
On appeal, Lucas argues the magistrate judge erred in ruling that the
imposition of the corrective action was not an adverse employment action. He also
7
challenges the application of the McDonnell Douglas framework, arguing that
employer defendants should be required to prove that their proffered reason for an
adverse action is true before the burden shifts to plaintiffs to show pretext.
1. Adverse Employment Action. An “[a]dverse employment action”
for purposes of a discrimination claim is limited “to adverse actions that affect
employment or alter the conditions of the workplace.” Piercy v. Maketa, 480 F.3d
1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 62 (2006) (alteration omitted). These actions involve a “significant
change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change
in benefits.” Id. (internal quotation marks omitted).
Lucas, citing Annett v. University of Kansas, 371 F.3d 1233, 1239 (10th Cir.
2004), argues that “[a]cts that carry a significant risk of humiliation, damage to
reputation, and a concomitant harm to future employment prospects may be
considered adverse actions,” Aplt. Opening Br. at 27. He claims, without evidentiary
support, that the corrective action subjected him to potential humiliation as a sexual
predator. But his argument rests on a flawed legal premise: Annett defined an
“adverse employment action” for purposes of a Title VII retaliation claim, which is
broader than the definition of an “adverse employment action” for a Title VII
discrimination claim. See Burlington N., 548 U.S. at 61-65, 68 (holding that Title
VII’s anti-retaliation provision prohibits any employer action that might “dissuade[ ]
a reasonable worker from making or supporting a [discrimination] charge” and thus,
8
covers a broader range of employer conduct than its substantive discrimination
provision); see also Piercy, 480 F.3d at 1203 (explaining the Burlington Northern
made clear that the contours of an adverse action for discrimination claims are
narrower than those for retaliation claims). We have held that a disciplinary or
corrective action “standing alone, is not an adverse employment action.” Haynes v.
Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006). “A written warning
may be an adverse employment action only if it effects a significant change in the
plaintiff’s employment status.” Id. Lucas presented no evidence that the corrective
action had any effect on his salary or benefits, or that it caused a significant adverse
change in the terms and conditions of his employment. The magistrate judge did not
err in ruling the corrective action was not an adverse employment action.1
2. McDonnell Douglas Burdens. Lucas argues we should overturn this
Circuit’s long-held precedent that under the McDonnell Douglas framework
employers need only articulate a reason for the challenged employment action that is
1
Lucas argues that the imposition of the corrective action is an adverse
employment action because it violated his constitutional freedom of association to
interact with co-workers and to pursue intimate human relationships. Whether a
potential, clearly unwanted, dating relationship could qualify for constitutional
protection is entirely irrelevant, however, to the issue of whether the corrective action
qualifies as an adverse employment action under Title VII. Lucas also argues for the
first time on appeal that the corrective action was an adverse employment action
because it violated his procedural due-process rights. This argument is as frivolous
as his freedom-of-association theory and suffers from the additional defect of not
having been raised below. Lucas also attempts several other due-process arguments
in his Opening Brief, which we will not address because he did not assert any due-
process claim in his complaint. See Davis v. Clifford, 825 F.3d 1131, 1137 n.3
(10th Cir. 2016) (refusing to consider claims not presented in complaint).
9
legitimate and nondiscriminatory on its face. He argues employers should instead be
required to show their proffered reasons are true. Lucas does not challenge the
magistrate judge’s ruling that he failed to present evidence of pretext. Instead, he
argues that under his proposed application of McDonnell Douglas, the magistrate
judge should never have shifted the burden back to him to show pretext because the
defendants failed to present evidence showing that their reasons for terminating him
were true.
The Supreme Court settled this debate almost forty years ago, holding that
“[t]he defendant need not persuade the court that it was actually motivated by the
proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981). The Court reaffirmed this holding more recently in Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000), again stating the defendant’s
“burden is one of production, not persuasion; it ‘can involve no credibility
assessment.’” Id. at 142 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993).2 Moreover, our Circuit has repeatedly and recently held that a defendant
need only proffer a reason that is legitimate and non-discriminatory on its face. E.g.,
DePaula, 859 F.3d at 970 (defendant’s “reasons need only be legitimate and
non-discriminatory on their face” (internal quotation marks omitted)).
2
Lucas also cites as support a Hawaii Supreme Court case that modified the
test adopted in McDonnell Douglas to analyze a state anti-discrimination statute.
A state court interpreting a state statute does not, as the magistrate judge correctly
observed, control our interpretation of Title VII.
10
Lucas asks us to abandon this precedent, arguing that holding employers to an
“exceedingly light” step-two burden undermines the entire framework, as it permits
the employer to meet its burden with mere conclusory statements and irrelevant
information. He notes that some have criticized McDonnell Douglas, citing generally
Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. 503 (2008).
But McDonnell Douglas remains binding on us. “We are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary decision by the
Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). The magistrate
judge correctly applied the McDonnell Douglas framework. Under that framework,
the defendants met their burden and Lucas failed to present any evidence that the
proffered reason for terminating him was pretext for discrimination.3
B. Title VII Retaliation Claim. The McDonnell Douglas framework also
applies to circumstantial-evidence Title VII retaliation claims. Hansen v. SkyWest
Airlines, 844 F.3d 914, 925 (10th Cir. 2016). To establish a prima facie retaliation
claim, a plaintiff must show “(1) that he engaged in protected opposition to
discrimination, (2) that a reasonable employee would have found the challenged
action materially adverse, and (3) that a causal connection exists between the
3
Lucas claims the magistrate judge improperly granted summary judgment in
favor of defendants as a sanction for Lucas’s failure to present his evidence in
compliance with Federal Rule of Civil Procedure 56. The magistrate judge did
criticize Lucas for his inclusion of improper arguments and unsubstantiated
allegations, as well as his frequent failure to link his assertions to citations to the
record. But the magistrate judge clearly labored arduously to review the evidence
presented by both sides and granted summary judgment on the merits, not as a
sanction.
11
protected activity and the materially adverse action.” Id. (internal quotation marks
omitted). The magistrate judge ruled that Lucas presented no evidence that he had
engaged in protected opposition to discrimination.
On appeal, Lucas argues that his statements to the defendants about possibly
contacting the EEOC to complain about the corrective action amounted to protected
activity sufficient to establish a prima facie retaliation claim. We disagree. To meet
his prima facie burden, Lucas must show he “convey[ed] to the employer his or her
concern that the employer has engaged in a practice made unlawful by [Title VII].”
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). The
evidence viewed in the light most favorable to Lucas is that he complained to
Thompson of unfair treatment and threatened to complain to the EEOC about a
hostile work environment, but nothing suggests that he complained to Thompson or
to any other defendant that he was being discriminated against because of his race or
gender. “A vague reference to discrimination and harassment without any indication
that this misconduct was motivated by [race, gender, or other category protected by
Title VII] does not constitute protected activity and will not support a retaliation
claim.” Id. at 1203 n.13 (internal quotation marks omitted); see also Petersen v.
Utah Dep’t of Corrs., 301 F.3d 1182, 1188 (10th Cir. 2002) (holding the employee’s
complaints must give adequate notice to the employer that the employee is
complaining of conduct prohibited by Title VII). We agree that Lucas failed to
establish a prima facie retaliation claim.
12
C. Tortious Interference Claim. The OADC’s director submitted an affidavit,
undisputed by any other evidence, testifying that her decision not to offer Lucas an
OADC contract was based primarily on Lucas’s failure to list any references from the
Defender’s Office in his application, and that she was never contacted by Thompson
or Wilson about Lucas, his qualifications or his application. Based on this
undisputed evidence, the magistrate judge ruled that Lucas failed to present any
evidence that Thompson and White interfered with his ability to obtain an OADC
contract. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 500 (Colo. 1995) (holding that
under Colorado law, “[t]ortious interference with a prospective business relation
requires a showing of intentional and improper interference preventing formation of a
contract”).
Lucas asserts the magistrate judge failed to view the evidence in the light most
favorable to him and impermissibly made credibility determinations. He argues that
a reasonable inference could be drawn that Thompson interfered with Lucas’s
opportunity to get contract work with OADC based on evidence that Thompson and
the OADC director were friends, communicated with each other on the day Lucas
was terminated, and had a history of discussing whether Defender Office employees
should receive OADC contracts. The undisputed evidence in the record, however, is
that the OADC director never communicated with Thompson or Wilson about Lucas.
Lucas’s argument requires a factfinder to speculate that perhaps the undisputed
evidence is inaccurate, but such speculation and conjecture is insufficient to create a
genuine issue of material fact. See Pioneer Centres Holding Co. Emp. Stock
13
Ownership Plan & Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017)
(holding that an inference is unreasonable if it is a mere possibility or involves a
degree of speculation and conjecture that requires the factfinder to make a guess).
We affirm the magistrate judge’s grant of summary judgment in favor of the
defendants.
Entered for the Court
Gregory A. Phillips
Circuit Judge
14