Gorny v. Salazar

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 22, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
BEVERLY GORNY,
Plaintiff-Appellant,
No. 10-8047
v.
(D.C. No. 2:09-CV-00113-ABJ)
(D. Wyo.)
KEN SALAZAR, Secretary of the
United States Department of Interior,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH, McKAY, and GORSUCH, Circuit Judges.
Beverly Gorny, an employee of the Bureau of Land Management, brought
this lawsuit alleging that BLM unlawfully retaliated against her for filing multiple
Equal Employment Opportunity (“EEO”) complaints. In the end, however, the
district court granted BLM’s request for summary judgment. We now affirm that
judgment because, as the district court correctly observed, Ms. Gorny has failed
to rebut the many lawful reasons BLM offered for its conduct.
*
This order and judgment is not binding precedent except under the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
The facts giving rise to this case are well-familiar to the parties and
extensively recounted in the district court’s opinion, so we offer only a brief
sketch of them here.
For some time, Ms. Gorny worked as a public affairs specialist in the
Office of External Affairs (“OEA”), a division of the Wyoming State Office of
BLM. The troubles giving rise to this case began after she agreed to settle an
EEO complaint against her then-supervisor Susanne Moore and Associate State
Director Alan Kesterke. Soon afterward, Ms. Moore decided to leave her position
as OEA chief of the Wyoming State Office, and when she did Ms. Gorny and
others alternated as acting chief while BLM searched for a replacement. At the
same time, Ms. Gorny applied to fill the chief position permanently. BLM
eventually narrowed the pool of candidates to six individuals, including Ms.
Gorny and Steven Hall. After two BLM officials interviewed and ranked the
candidates, Mr. Hall won the job. In reply, Ms. Gorny filed a second EEO
complaint, alleging that she had not been selected in retaliation for her earlier
EEO complaint.
According to Ms. Gorny, BLM’s retaliation intensified after Mr. Hall’s
arrival. Early in his tenure, Mr. Hall became concerned about what he perceived
to be the overuse of flexible work schedules at OEA. At that time, OEA had only
two full time employees, Ms. Gorny and Cindy Wertz, as well as an intern,
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Ashley Colgan. Both Ms. Gorny and Ms. Wertz had flexible schedules. Ms.
Gorny took every other Friday off and Ms. Wertz was permitted to adjust her
work days as she saw fit. After discussions with OEA staff and others, Mr. Hall
implemented a new policy requiring both Ms. Gorny and Ms. Wertz to work a
standard schedule. Unhappy with this change, Ms. Gorny again threatened legal
action, and from this point forward the relationship between Mr. Hall and Ms.
Gorny became increasingly strained. On a number of occasions, Mr. Hall
expressed dissatisfaction with Ms. Gorny’s work product and her failure to meet
deadlines; Ms. Gorny was formally reprimanded when, in response to one such
conversation, she asked Mr. Hall if he expected her to “just bend over and take
it.” Aplt. App. at 520-21. These disagreements also led Ms. Gorny to file a third
EEO complaint, which included more allegations of retaliation.
Ms. Gorny’s troubles with Mr. Hall came to a head when, following still
another confrontation about the quality of her work, she says she suffered a
nervous breakdown. At that point, she sought and was granted leave to recover
from anxiety and depression. During her absence, Mr. Hall contacted her on
occasion to request documentation of her medical condition and to ask when she
planned to return. When Ms. Gorny finally returned to work almost a year later,
it was only for a short period while Mr. Hall was out of the office on a detail;
when Mr. Hall returned to the office, Ms. Gorny again took leave. A few weeks
later, Mr. Hall proposed firing Ms. Gorny due to “non-availability.” In response,
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Ms. Gorny returned to the office but asked to work only half days. Unwilling to
accept this part-time arrangement, Mr. Hall informed Ms. Gorny that she needed
to work eight hours a day five days a week or she would be considered absent
without leave. When Ms. Gorny still chose to work only a half day, BLM
terminated her employment. Ms. Gorny replied by filing a fourth administrative
complaint alleging retaliation, though this time with the Merit Systems Protection
Board.
When BLM advertised the vacancy created by Ms. Gorny’s departure, she
promptly applied for her old job. She was soon told, however, that the posting
had been withdrawn because a reorganization of OEA had resulted in the
elimination of her old position. Even so, Ms. Gorny ultimately succeeded in
appealing her dismissal through various administrative processes and BLM was
forced to reinstate Ms. Gorny as a public affairs specialist in the Division of
Lands and Minerals. Soon thereafter, Ms. Gorny filed a fifth EEO complaint.
Several months later, this lawsuit followed. In it, Ms. Gorny alleged,
among other things, that BLM repeatedly retaliated against her for filing her
various EEO complaints. Separately, she also argued that BLM’s retaliatory
actions, in the aggregate, created a hostile work environment. For its part, BLM
disputed all this and moved for summary judgment. Ultimately, the district court
granted BLM’s motion, and it is this judgment Ms. Gorny now appeals.
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II
Title VII of the Civil Rights Act forbids retaliation against an employee
who voices opposition to, or participates in, an investigation or proceeding
alleging an unlawful employment practice by his or her federal employer. See 42
U.S.C. § 2000e-16; Dossa v. Wynne, 529 F.3d 911, 915-16 (10th Cir. 2008)
(holding that § 2000e-3(a)’s general ban on retaliation by private employers
applies also to federal employers through § 2000e-16(c)). In what follows, we
analyze Ms. Gorny’s various Title VII retaliation arguments in sequence. Part A
focuses on Ms. Gorny’s claim that she has a triable retaliation claim in light of
direct evidence. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985). In Part B, meanwhile, we examine Ms. Gorny’s circumstantial evidence
of discrete retaliatory actions, using the familiar burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Finally, in
Part C we focus on Ms. Gorny’s additional claim that those discrete actions, in
the aggregate, created a retaliatory hostile work environment. As always, we
review the district court’s grant of summary judgment on these questions de novo,
and in doing so we view the facts, and all reasonable inferences those facts
support, in the light most favorable to Ms. Gorny, as the non-movant.
A
Seeking to suggest that direct evidence of retaliation exists in this case, Ms.
Gorny refers us to certain comments allegedly made by Mr. Kesterke and Mr.
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Hall. But direct evidence of retaliation is evidence, which if credited, does not
require any inference or presumption to establish that unlawful retaliation
motivated an employer’s action. See Riggs v. AirTran Airways, Inc., 497 F.3d
1108, 1117 (10th Cir. 2007); Spengler v. Worthington Cyclinders, 615 F.3d 481,
491 (6th Cir. 2010). And none of Ms. Gorny’s proffered statements fits this bill.
We offer three examples illustrating our conclusion on this score.
First, Ms. Gorny refers us to a statement Mr. Kesterke made in which he
admitted that he did not trust her. This comment, Ms. Gorny stresses, came after
she had filed an EEO complaint. For this reason, she says the statement proves
that Mr. Kesterke harbored an unlawful retaliatory animus against her. But not
only does Mr. Kesterke’s statement have little apparent connection to any
particular allegedly retaliatory action, even more importantly it doesn’t —
directly, at least — suggest any unlawful animus. Mr. Kesterke may have
distrusted Ms. Gorny for any number of perfectly benign (for Title VII purposes)
reasons; his statement does not establish, directly, that he wished to retaliate
against her because of her EEO activity. To arrive at that conclusion, some
additional inference is required. And the necessity of such an inference means
the comment isn’t direct evidence of a retaliatory animus for purposes of Title
VII. See Hall v. U.S. Dep’t of Labor Admin. Review Bd., 476 F.3d 847, 855 (10th
Cir. 2007).
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Second, Ms. Gorny refers us to a conversation between Mr. Hall and
Ashley Colgan. The conversation took place after Mr. Hall learned that Ms.
Colgan had been interviewed in connection with Ms. Gorny’s pending EEO case.
Ms. Gorny submits that Mr. Hall told Ms. Colgan that, “when this is all over,
Beverly Gorny is going to be gone.” Aplt. App. at 231. In Ms. Gorny’s view,
“this” plainly referred to her pending EEO case and so directly shows Mr. Hall’s
desire to terminate her on account of her EEO activity. But even assuming that
Ms. Gorny is correct — even assuming “this” did refer to her EEO case — the
remainder of Mr. Hall’s comment is ambiguous. Mr. Hall had many (lawful)
reasons for wanting Ms. Gorny gone, including Ms. Gorny’s failure to complete
projects in a timely manner. Mr. Hall’s comment to Ms. Colgan doesn’t directly
indicate that he wished Ms. Gorny “gone” because she filed EEO complaints
rather than because she failed to perform her work adequately. To be sure, the
comment does suggest that Mr. Hall intended to delay any firing until Ms.
Gorny’s pending EEO case was resolved. But an employer might well wish to
delay even a lawful firing until after an administrative EEO complaint is resolved
— and do so specifically to avoid any appearance, however mistaken, of unlawful
retaliation for the employee’s decision to file a complaint. While Ms. Gorny
would have this court draw a very different inference than this, our precedent,
again, “makes clear that evidence is not ‘direct’ [evidence of discrimination] if an
inference of discrimination is required.” Riggs, 497 F.3d at 1118.
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Third, Ms. Gorny points to another episode between Mr. Hall and Ms.
Colgan in which Mr. Hall said he needed to implement a standard work schedule
for all employees in OEA so that it did not “look like he was singling out” Ms.
Gorny in eliminating flexible schedules. Aplt. App. at 111; see Opening Br. at
12. As Ms. Gorny sees it, this comment proves, directly, that Mr. Hall intended
to retaliate against her based on her earlier EEO activity. Again, we cannot agree.
One could interpret Mr. Hall’s statement as expressing the legitimate concern that
no single employee should feel targeted by a scheduling change. And one can
just as easily interpret the comment as evidence that Mr. Hall, if perhaps
grudgingly, sought to comply with anti-discrimination laws by seeking to avoid
any policy that singled out Ms. Gorny. In order to construe Mr. Hall’s statement
as Ms. Gorny asks us, an additional inference is again required and the necessity
of such an inference again confirms that this evidence is not direct. 1
1
Perhaps recognizing this fact, Ms. Gorny’s lawyer claimed for the first
time at oral argument that Ms. Gorny was entitled to present her retaliation claim
to a jury under a mixed-motive theory. See Fye v. Okla. Corp. Comm’n, 516 F.3d
1217, 1225-26 (10th Cir. 2008) (explaining a mixed motive theory); Medlock v.
Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir. 1999) (same). The problem is
Ms. Gorny never mentioned she was proceeding under such a theory in either of
her briefs on appeal; in fact, the words “mixed motive” are entirely absent. And
as we have repeatedly said, an issue injected in the litigation for the first time at
oral argument “comes too late” to compel this court’s consideration of it. Thomas
v. Denny’s, Inc., 111 F.3d 1506, 1510 n.5 (10th Cir. 1997); Mondragon v.
Thompson, 519 F.3d 1078, 1081 n.2 (10th Cir. 2008).
-8-
B
Even if she lacks direct evidence of retaliation, Ms. Gorny submits she
should be permitted to proceed to trial in light of the circumstantial evidence of
retaliation she has amassed. Under McDonnell Douglas’s burden-shifting
framework, we analyze Title VII claims based on circumstantial evidence in three
steps. First, a plaintiff opposing summary judgment must make a prima facie case
of discrimination. Young v. Dillon Co., 468 F.3d 1243, 1249 (10th Cir. 2006).
Second, the defendant then must articulate a legitimate, non-discriminatory reason
for the adverse employment action. Id. Third, should the defendant satisfy its
obligation on this score, the burden shifts back to the plaintiff who must prove by
a preponderance of the evidence that the employer’s reasons are a pretext for
unlawful discrimination. Id.The first two steps are easily disposed of. We assume without deciding
that Ms. Gorny has met her prima facie burden. And we readily conclude that
BLM has met its “exceedingly light” burden of establishing a legitimate, non-
discriminatory reason for each of the allegedly adverse employment actions Ms.
Gorny asserts. Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1173 (10th Cir. 2007)
(internal quotation omitted).
On this latter score, and by way of example only, BLM has offered
legitimate reasons for its decision to hire Mr. Hall as Chief of OEA rather than
Ms. Gorny. It has done so by introducing the deposition testimony of Celia
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Boddington and Bob Bennett, both of whom interviewed the six finalists for the
chief position. Both stated that they ranked Mr. Hall as their preferred candidate
over Ms. Gorny, and Ms. Boddington added that Mr. Hall’s interview was “one of
the best” she’d heard in a number of years. Aple. App. at 205. According to Mr.
Bennett, he was looking for a chief who would be “proactive,” Aplt. App. at 41,
and he “perceived” this in Mr. Hall when he chose to “talk about . . . strategic
things” during his interview, including the current image of BLM and his ideas on
how to improve it, Aplt. App. at 132. Mr. Bennett also believed that Mr. Hall had
a “wider variety” of experience than Ms. Gorny, whose work at BLM was “for the
most part . . . all in one location,” the Wyoming State Office. Aplt. App. at 133-
34. Although Ms. Gorny complains about the subjective nature of Mr. Bennett’s
comments, subjective evaluations of a job candidate are often unavoidable — and
even critical — in hiring decisions. For this reason, we have said (and reaffirm
here) that such subjective reasons can constitute legitimate, non-discriminatory
reasons for a challenged hiring decision. See Birge v. Apfel, No. 97-2158, 1998
WL 165118, at *3 (10th Cir. Apr. 2, 1998) (unpublished) (“[T]he mere fact that
subjective criteria are involved in the reason articulated by an employer does not
mean it cannot be accorded sufficient rebuttal weight to dispel the inference of
discrimination raised by the prima facie case.”); Harris v. Sweetwater Cnty Sch.
Dist. No. 2, No. 96-8078, 1997 WL 292124, at *2 (10th Cir. June 3, 1997)
(unpublished) (same).
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Similarly, BLM introduced evidence that Mr. Hall’s decision to eliminate
flexible work schedules at OEA was designed to increase efficiency, not to
retaliate against Ms. Gorny. Mr. Hall stated in his sworn testimony that Ms.
Gorny’s absence every other Friday was “not feasible” given that OEA was only a
three-person office. Aple. App. at 137. There is also record evidence that the
only other full time employee in OEA, Ms. Wertz, asked for a scheduling change
because she was tired of covering the office on her own every other Friday.
The government also submitted ample evidence in the district court
suggesting that Ms. Gorny was ultimately discharged due to her unavailability,
not her EEO activity. Indeed, Ms. Gorny readily admits that when she returned to
OEA after almost a year of absence on sick leave, she informed Mr. Hall she
could work only four hours a day for an undetermined time period. As OEA was
a very small office, Mr. Hall deemed this arrangement unworkable, and Ms.
Gorny was terminated due to her schedule limitations. Likewise, BLM justified
Ms. Gorny’s non-selection as Chief of OEA following Mr. Hall’s departure by
producing evidence that Ms. Gorny lacked the requisite qualifications to be
eligible for the position, and Ms. Gorny herself does not now dispute this fact.
Given that BLM has met its burden under McDonnell Douglas’s second
step, the real dispute in this case, as in many Title VII suits, hinges on the third
step and the question of pretext. To reach trial, Ms. Gorny must show that BLM’s
proffered justifications for its actions are “so incoherent, weak, inconsistent, or
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contradictory that a rational factfinder could conclude [they are] unworthy of
belief,” and thus really constitute pretext for discrimination. Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008) (quoting Young,
468 F.3d at 1250). Attempting to do just that, Ms. Gorny points to several pieces
of evidence, the three most significant of which we discuss here.
First, Ms. Gorny attacks BLM’s explanation for selecting Mr. Hall as OEA
Chief, arguing that she was more qualified for the job. Our authority to hold for
Ms. Gorny on this basis is limited, however. As we’ve said, our role isn’t to “act
as a super personnel department that second guesses employers’ business
judgments,” Jaramillo v. Colorado Judicial Dept., 427 F.3d 1303, 1308 (10th Cir.
2005) (internal quotation omitted), but to serve as a vital means for redressing
discriminatory decisions. For this reason, “minor differences between a
plaintiff’s qualifications and those of a successful applicant are not sufficient to
show pretext”; rather, a plaintiff must come forward with facts showing an
“overwhelming” disparity in qualifications. Id. (internal quotation omitted).
Applying this standard, we agree with the district court that any difference
between Ms. Gorny’s and Mr. Hall’s qualifications does not come close to
suggesting pretext. We do not doubt that Ms. Gorny worked at BLM for longer
than Mr. Hall. Neither do we question that Ms. Gorny had greater experience as a
public affairs specialist. But, as the district court noted, Mr. Hall also enjoyed
extensive and diverse qualifications. He had public affairs experience with both
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BLM and the State of Colorado, and prior to that he had served for over two years
as an adjunct professor of journalism. As Mr. Bennett noted, Mr. Hall also had
more experience with the field offices of BLM than Ms. Gorny, who had served
primarily in the state offices — a legitimate consideration given that the OEA
Chief works with the field offices. In fact, Ms. Gorny herself admits “it’s helpful
for state office personnel to experience working in field offices.” Aple. App. at
70. Unlike Ms. Gorny, Mr. Hall also had experience working as a newspaper
journalist for more than two years, a qualification relevant to OEA which has
“routine contact with the media.” Aple. App. at 137. And Mr. Hall had a
master’s degree in journalism while Ms. Gorny possessed a bachelor’s degree.
Given all this, we cannot help but conclude that BLM could have believed in
good faith that Mr. Hall was at least as well qualified as Ms. Gorny, and perhaps
even more so. 2
2
Ms. Gorny replies that Mr. Bennett’s observations of her during the final
interview were “tainted” by the fact that he knew of her prior EEO complaints.
Opening Br. at 54. But Ms. Gorny has not pointed us to any evidence suggesting
that Mr. Bennett’s evaluation of her candidacy was in any way affected by her
earlier EEO complaints. To the contrary, Mr. Bennett testified that he “tried to
remain objective” and did not allow Ms. Gorny’s prior EEO activity to affect his
deliberations, Aple. App. at 284, and Ms. Gorny has offered no evidence to
suggest this statement is unworthy of credence. Further, although Ms. Gorny
claims Mr. “Kesterke said that not only did he have issues with Gorny, but
Bennett did as well,” Opening Br. at 54, she provides no citation in the
voluminous record before us to support this assertion. Under these circumstances,
we have said “it is within our power as a court to refuse to consider [the]
argument.” Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. 2008)
(“[R]eading a record should not be like a game of Where’s Waldo?”); Fed. R.
(continued...)
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Second, Ms. Gorny challenges BLM’s explanations for Mr. Hall’s
elimination of her flexible schedule and his critiques of her work product, as well
as the agency’s stated reasons for her discharge and her later reinstatement in a
division other than OEA. As evidence that BLM’s proffered reasons for its
actions are pretextual, Ms. Gorny points to the affidavit of Floyd Watson, a
former EEO counselor at the Wyoming State Office. In particular, she relies on
Mr. Watson’s statement that he “observed that management” of the Wyoming
State Office carried “vendettas against employees who would challenge managers
. . . through the EEO office,” and would harass those employees “either to find a
way to get rid of them or to force them from their jobs.” Aplt. App. at 240. From
this, Ms. Gorny suggests a jury could infer that BLM management took adverse
actions against her in order to “push her out” on account of her EEO activity.
Opening Br. at 41.
The difficulty with Ms. Gorny’s argument is that it relies only on a snippet
of Mr. Watson’s testimony, failing to note that Mr. Watson’s observations were
limited to his “time with the Wyoming State Office.” Aplt. App. at 240. And, as
Mr. Watson has explained, he “served as an EEO counselor for BLM employees
2
(...continued)
App. P. 28(a)(9)(A) (appellant’s argument must contain “appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the record
on which appellant relies”). We now do just that. Finally, to the extent Ms.
Gorny seeks to rely on statements by Mr. Hall to disprove BLM’s reasons for her
non-selection, she admits that he arrived at OEA only after her non-selection as
chief. His statements are thus insufficient to suggest pretext.
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at the Wyoming State Office from 1993 until 2004.” Aplt. App. at 239. After
that time, he worked as an “EEO counselor in other states at the request of the
Washington, D.C., EEO office” and “served as an informal advisor to Wyoming
employees on EEO matters.” Id. (emphasis added). Given that Mr. Watson’s
observations of management vendettas were limited to “my time with the
Wyoming State Office” from 1993 to 2004, they offer no help to Ms. Gorny in
suggesting BLM’s proffered explanations are unworthy of credence. Ms. Gorny
admits that management of OEA changed in March 2005 when Mr. Hall was
selected as the new chief. And Ms. Gorny does not dispute that the elimination of
her flexible schedule, the critiques of her work, her eventual discharge, and her
later reinstatement all occurred after March 2005. In fact, almost all of the
alleged adverse employment actions taken against Ms. Gorny occurred after 2004.
So it is that Mr. Watson’s observations of management behavior prior to 2005
have little, if any, relevance to the specific conduct Ms. Gorny now challenges.
Indeed, Ms. Gorny’s direct supervisor with whom she has the most complaints,
Mr. Hall, had not even arrived at the Wyoming Office when Mr. Watson left that
office. Without any meaningful connection in time to the elimination of her
flexible schedule, the critiques of her work product, her discharge, and her later
reinstatement, Mr. Watson’s observations cannot give rise to an inference that
BLM’s explanations for those decisions are pretextual.
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Third, Ms. Gorny relies on the affidavit of Ms. Colgan to attack BLM’s
proffered reason for her discharge. As we’ve already discussed, Ms. Colgan
claims that, before Ms. Gorny was terminated, Mr. Hall told her that “when this is
all over, Beverly Gorny is going to be gone.” Aplt. App. at 231. Perhaps
anticipating our earlier conclusion that this statement isn’t direct evidence of
retaliation, Ms. Gorny now asks us to find that the comment is at least
circumstantial evidence from which an inference of retaliatory intent might be
drawn. But for many of the same reasons we rejected this comment as direct
evidence of retaliation, we reject it now as evidence of pretext.
As we have already explained, while Mr. Hall’s alleged comment suggests
that he believed Ms. Gorny would be forced to leave after her then pending EEO
case concluded, it says nothing about why Mr. Hall believed Ms. Gorny would be
forced to go. Meanwhile, a number of legally benign potential explanations exist
in the record for Mr. Hall’s comment, including his evident displeasure with the
quality of Ms. Gorny’s work product and her failure to complete projects in a
timely manner. And, as we have already discussed, an employer might well —
reasonably and without any unlawful animus — wish to defer a lawful termination
until after the completion of an EEO complaint specifically to avoid even the
appearance of unlawful retaliation. Given all this, we fail to see how Mr. Hall’s
comment could reasonably be viewed as evidence of pretext and a latent intent to
retaliate; Ms. Gorny’s contrary view rests on no more than speculation,
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impermissible under our precedent. See, e.g., Lewis v. D.R. Horton, Inc., 375 F.
App’x 818, 828 (10th Cir. 2010) (unpublished) (holding that regular references to
plaintiff as “Aunt Bea” were too “ambiguous” to create a triable question on
whether the defendant’s explanations were pretext for sex discrimination); Phelps
v. Yale Sec., Inc., 986 F.2d 1020, 1026 (6th Cir. 1993) (holding that a
supervisor’s statement that plaintiff’s fifty-fifth birthday was a cause for concern
“was too ambiguous to establish the necessary inference of age discrimination.”).
Confirming our conclusion is the temporal remoteness between Mr. Hall’s
alleged comment and Ms. Gorny’s termination. Ms. Gorny admits that Mr. Hall’s
alleged comment was made over a year before she was eventually discharged.
And over the course of that year, it is apparent that Mr. Hall became increasingly
dissatisfied with the quality Ms. Gorny’s work product — a perfectly lawful
reason for later terminating her. We have long held that comments temporally
remote from a challenged firing may not suffice to establish pretext, and that is
especially true where, as here, intervening events afforded the employer
substantial, lawful reasons for seeking the employee’s termination. Compare
Antonio v. Sygma Network, 458 F.3d 1177, 1184 (10th Cir. 2006) (holding that a
remark that plaintiff had offensive body odor because of his culture, made ten
months prior to termination, was too “temporally remote” to establish pretext);
and Phelps, 986 F.2d at 1025-26 (supervisor’s age-related comments about
plaintiff made “nearly a year before [her] layoff” were too remote “to have
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influenced the termination decision.”) with Danville v. Regional Lab Corp., 292
F.3d 1246, 1251 (10th Cir. 2002) (finding evidence of pretext based on comment
that plaintiff “might not be around very long anyway” made during the selection
committee meeting where it was decided that plaintiff would not be interviewed
for the open position). 3
C
In addition to her allegations of discrete retaliatory actions, Ms. Gorny
claims BLM created a hostile work environment in order to retaliate against her
for filing multiple EEO complaints. In both the race and gender discrimination
contexts, we have said that, to survive summary judgment on a hostile work
environment claim, a plaintiff must show the harassment “stemmed from racial
animus” or was “because of [the plaintiff’s] gender,” respectively. Chavez v. New
Mexico, 397 F.3d 826, 832, 833 (10th Cir. 2005) (emphasis omitted). A
retaliatory hostile work environment claim is analytically similar: a plaintiff must
demonstrate that the alleged harassment stemmed from retaliatory animus. See
Noviello v. City of Boston, 398 F.3d 76, 93 (1st Cir. 2005) (“[O]nly those actions,
directed at a complainant, that stem from a retaliatory animus . . . may be factored
3
At various points in her brief, Ms. Gorny refers to other statements she
claims Mr. Hall made, including alleged comments about her prior EEO activity.
The problem is Ms. Gorny provides no record citations to where these comments
can be found, and as we have said before, see supra n.2, we “need not sift through
the record to find this evidence.” SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507,
1513-14 (10th Cir. 1990); Aquila, 545 F.3d at 1268.
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into the hostile work environment calculus.”). For evidence of retaliatory animus
in this case, however, Ms. Gorny relies on the same actions and comments
underlying her discrete allegations of retaliation. And, as we have already
explained, none of those actions or comments establishes a triable question of
retaliatory animus. So it is that Ms. Gorny’s hostile work environment claim
necessarily fails for the same reasons her retaliation claims fail.
The district court’s judgment is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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