Watson v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MARGARET E. WATSON,
Plaintiff-Appellant,
v. No. 99-1450
GALE A. NORTON, 1 Secretary, U.S. (D.C. No. 97-WY-1166-WD)
Department of the Interior, (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT 2
Before BRISCOE, BALDOCK, and MURPHY , Circuit Judges.
Plaintiff Margaret E. Watson appeals from rulings by the district court
prior to and following a jury trial on her claims of racial discrimination and
retaliation against her former employer. We affirm in part, reverse in part, and
remand for further proceedings on the racial discrimination claim.
I.
1
Pursuant to Fed. R. App. P. 43(c)(2), Gale A. Norton is substituted for
Bruce Babbitt, Secretary of the Interior, as a defendant in this action.
2
This order and judgment is not binding precedent, except under the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.
Watson was hired as a reference librarian by the United States Department
of the Interior Geological Survey (USGS) in March 1984. Between 1984 and
1991, she received performance ratings of outstanding or excellent. She was the
only African-American employee at the library from 1991 until her termination.
In 1991, Tommie Ann Gard became Watson’s supervisor. Gard began
pressuring Watson to become a member of the ethnic minority committee. In
March 1992, Gard assigned Watson the tasks of weeding out pamphlets and
articles that were no longer needed and reshelving books.
Watson filed a complaint with the Equal Employment Opportunity
Commission (EEOC) in 1993, alleging racial discrimination as a result of a
comment on her annual performance appraisal. Gard was aware that the
complaint had been filed. Barbara Wagner became branch librarian in 1994 and
was Gard’s immediate supervisor. Wagner was vaguely aware of the EEOC
claim. The complaint was dismissed for failure to accept an offer of full relief.
In October or November 1994, Watson was given one week to devise a
plan to reverse the call number order of the titles and the reference stacks. She
contacted staff at the library headquarters in Virginia for advice on the project.
She was reprimanded for failing to complete the task on time, for communicating
with library headquarters, and for failing to communicate with her superiors.
On December 29, 1994, Gard assigned Watson to prepare a serials holding
2
list, in addition to her other work. She was to list all serial publications and their
call numbers in alphabetical order, including information about missing issues,
name changes, and alternative names. The previous list was outdated and the
library was considering cutting costs by reducing the number of publications
ordered. Wagner approved the assignment. Gard instructed Watson to complete
the alphabetical list of the serial titles and their call numbers by February 15,
1995. Gard testified that she estimated how long the task should take after
looking at the Kardex file and concluding the information in that file was
accurate. Watson had limited access to the Kardex file and found it to be
inaccurate. Watson discussed the assignment with people who worked in
technical services because they had experience with comparable tasks. Based
upon those discussions, Watson concluded she had been set up to fail because the
time frame was unrealistic. Watson spoke with Peggy Merryman, the head of
acquisitions at the library headquarters, about cancellation lists and serial lists.
After learning of this conversation, Gard told Watson not to contact library
headquarters again without Gard’s permission. Other librarians regularly
communicated with library headquarters.
On February 13, Watson informed Gard that she would not be able to meet
the first deadline of February 15 because of her inability to obtain sufficient
access to the Kardex and a computer. Gard did not discipline Watson for this
3
delay. In late February, Wagner announced that the library was being
reorganized and Watson was transferred to the position of team coordinator of
technical services. Watson had never worked in technical services and had
received no training in that area for over twenty years. The duties in technical
services were the routine duties of a trained librarian. Despite the transfer, Gard
instructed Watson to continue to work on the serials list. Gard informed Watson
in March that the list was to include the specific volumes the library held of each
title and Watson was given a new deadline of May 1. In early March, Wagner
and Gard met with Watson to discuss an allegation that Watson had been
disrespectful to the director of the USGS library, Ed Liszewski.
Watson filed a charge of discrimination with the EEOC in March 1995.
Gard was aware of this claim and discussed it with Wagner. Watson alleged
racial discrimination and retaliation based on an incident in December 1994
where she was considered absent without leave instead of on bereavement leave
to attend her uncle’s funeral. The USGS denied Watson’s claim and Watson
appealed. The EEOC did not rule on her appeal. After Watson submitted
additional documentation, her leave was changed to bereavement leave in January
1995.
Between March and May 1995, Gard discussed the progress of the project
with Watson on a weekly basis. Watson told Gard that she had difficulty finding
4
time to work on the project. Gard assured Watson her performance was not being
evaluated because she was learning her new duties at technical services.
However, on April 20, Gard counseled Watson, reminding her the list was due
May 1. In late April or May, Watson expressed to Gard her concern that her
workload was significantly higher than that of other employees. Gard allegedly
grinned at her in response and told Watson her work plan was fair. Watson did
not meet the May 1 deadline and Gard issued a written reprimand on June 30.
Gard instructed Watson to work one hour per day on the project.
Watson was reprimanded for not following proper procedure for requesting
leave for the July 4 holiday. In response, Watson filed an EEO charge on July
21. On July 25, Wagner directed Watson to work twenty hours per week on the
list, which was to be completed by September 15. On that same day, Wagner
proposed that Watson be placed on a three-day suspension without pay, and
Watson was suspended. Watson filed a formal grievance. Beginning on July 31,
Watson was required to keep a log of her time spent on the list. Watson did not
meet the September 15 deadline and turned in the list as completed to that point.
On October 2, Wagner gave Watson a new deadline of November 30. Watson
was instructed to work full-time on the project, with some exceptions. Wagner
recommended a fourteen-day suspension, but Watson was not suspended.
Watson did not meet the November 30 deadline and Gard demanded that
5
Watson give the list to her. In December 1995, Wagner and Gard discussed
whether Watson should be terminated. In February 1996, Watson received the
proposal that her employment be terminated. The next day, Wagner and Gard
notified Watson she was being transferred to the former Bureau of Mines library.
No one was assigned to complete the list.
Watson wrote to David Russ, the acting associate chief geologist at library
headquarters to protest her removal. Russ issued a “Decision on Proposal to
Remove,” sustaining the decision to remove Watson, effective April 15, 1996.
As the final decision maker, Russ stated the reasons for termination were
Watson’s refusal to perform work assignments and refusal to follow directions.
Watson appealed to the Merit Systems Protection Board (Board) and a formal
hearing was held before an Administrative Law Judge (ALJ), who affirmed the
agency’s decision.
Watson filed her complaint in district court, alleging racial discrimination
and retaliation in violation of 42 U.S.C. § 2000e-16(a), which provides that “[a]ll
personnel actions affecting employees or applicants for employment . . . shall be
made free from any discrimination based on race, color, religion, sex, or national
origin.” USGS filed a motion to dismiss or, in the alternative, for summary
judgment. A magistrate court dismissed three counts of the complaint. After
presentation of Watson’s case at the jury trial, the district court granted in part
6
USGS’s motion for judgment as a matter of law, holding that Watson’s transfer
to technical services was not an adverse action and that the only adverse action
that Watson suffered was termination. During deliberations, the jury sent a note
to the district court that included a statement of how the jury stood numerically
on the issues. The court declared a mistrial. The court then granted USGS’s
motion for judgment as a matter of law on the racial discrimination and
retaliation claims.
II.
We review discovery rulings for an abuse of discretion. See Cole v.
Ruidoso Mun. Schs., 43 F.3d 1373, 1386 (10th Cir. 1994). Similarly, evidentiary
rulings “generally are committed to the very broad discretion of the trial judge,
and they may constitute an abuse of discretion only if based on an erroneous
conclusion of law, a clearly erroneous finding of fact or a manifest error in
judgment.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1246 (10th Cir.
1998). If we find an erroneous discovery or evidentiary ruling, Watson would be
entitled to a new trial only if the error affected her substantial rights. See id.We review de novo the district court's determination of a motion for
judgment as a matter of law, applying the same standard as the district court.
Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997). Judgment
as a matter of law is appropriate “[i]f during a jury trial a party has been fully
7
heard on an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue.” Fed. R. Civ. P. 50(a). “[A]
court may grant the motion ‘only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the opposing party's
position.’” Finley v. United States, 82 F.3d 966, 968 (10th Cir. 1996) (quoting
Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989)).
III.
Watson argues that the district court erred in denying her motion to reopen
discovery, denying her motion to take preservation depositions, limiting
testimony, determining her transfer was not an adverse action, and granting
USGS’s motion for judgment as a matter of law.
Motion to Reopen Discovery
Watson argues that her May 22, 1998, motion to modify the scheduling
order to extend the discovery deadline should have been granted. The original
discovery cutoff was March 31, 1998. On March 13, 1998, Watson’s original
counsel moved to withdraw. At that point, counsel had not taken any depositions.
On March 17, the magistrate court granted the motion to withdraw, and
replacement counsel entered an appearance on May 15, 1998.
Watson requested that the scheduling order be modified to extend all of the
deadlines so she could complete discovery and prepare for trial. In denying the
8
motion for modification of the scheduling order, the magistrate explained that
“[d]iscovery was completed and prior counsel for plaintiff participated in the
Pretrial Conference.” App. I at 209. Watson did not object to the magistrate’s
order. See Fed. R. Civ. P. 72(a) (“Within 10 days after being served with a copy
of the magistrate judge's order, a party may serve and file objections to the order;
a party may not thereafter assign as error a defect in the magistrate judge's order
to which objection was not timely made.”). We lack jurisdiction over Watson’s
appeal from the magistrate’s denial of the motion to amend the scheduling order.
See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997) (holding “[p]roperly
filed objections resolved by the district court are a prerequisite to our review of a
magistrate judge’s order under 28 U.S.C. § 636(b)(1)(A)”); Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991) (holding failure to timely object to a
magistrate’s findings waives appellate review of factual and legal questions).
Motion to Take Preservation Depositions
After the district court sua sponte moved the trial date to September 21,
1998, Watson filed a motion to take the preservation depositions of Nancy Blair
and Diane Lewis. The magistrate denied the motion. The magistrate noted that
an earlier motion to reopen discovery had been denied. As to the testimony of
Blair and Lewis, the magistrate found:
9
It is clear by the transcript of Blair she has no knowledge of
Plaintiff’s attempt to compile the list of the library serial holdings in
Denver. Both Blair and Lewis would testify as to their compiling of
the lists at their respective libraries. Plaintiff has provided no case
law how that would be relevant. The issue before the Court is not
whether Defendant failed to give her sufficient time to carry out her
assigned job but evidence of whether she was removed from her
position because of her race or in retaliation.
App. II at 501-02. On November 12, Watson filed objections to the magistrate’s
ruling. The district court overruled Watson’s objections, finding the testimony of
Blair and Lewis was not relevant. Blair’s testimony from the Board hearing
showed that she had limited actual knowledge regarding Watson’s particular
project. Lewis also possessed no personal knowledge regarding Watson’s
situation, and her testimony would be cumulative to Blair’s testimony.
A district court has the authority to reopen the record and consider new
evidence at any time before final judgment is entered. See LaMarca v. Turner ,
995 F.2d 1526, 1548 (11th Cir. 1993); see also Fed. R. Civ. P. 59(a).
Appellate decisions have identified several relevant factors in
reviewing decisions concerning whether discovery should be
reopened, including: 1) whether trial is imminent, 2) whether the
request is opposed, 3) whether the non-moving party would be
prejudiced, 4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time
allowed for discovery by the district court, and 6) the likelihood that
the discovery will lead to relevant evidence.
Smith v. United States , 834 F.2d 166, 169 (10th Cir. 1987). We discuss the six
Smith factors as they relate to Blair and then discuss the issue of Lewis’
10
testimony.
First, trial was not imminent at the time the motion was filed. The second
and third Smith factors relate to the non-moving party. USGS opposed Watson’s
motion. It does not appear, however, that USGS would be prejudiced since Blair
was listed in the pretrial order as a witness, and it was expressly contemplated
that her testimony would be offered by preservation deposition. See Murrey v.
United States , 73 F.3d 1448, 1454 (7th Cir. 1996) (finding no prejudice where
witness listed in pretrial order); United States ex rel Consol. Elec. Distribs., Inc.
v. Altech, Inc. , 929 F.2d 1089, 1092 (5th Cir. 1991) (allowing reopening of
discovery where witness suddenly unavailable).
With regard to diligence in obtaining discovery within the guidelines
established by the court, depositions were scheduled for March but they did not
take place. The magistrate granted Watson’s original attorney’s motion to
withdraw on March 17. A pretrial conference was held that same day and the
court entered a final pretrial order, stating that Nancy Blair and Diane Lewis
would testify by preservation depositions. The order also stated that discovery
had not yet been completed. The order did not provide for additional time beyond
the March 31 discovery deadline. Replacement counsel entered an appearance on
May 15, 1998, and immediately moved that the scheduling order be modified.
This motion was denied. After the motion was denied, counsel “made
11
arrangements with both Ms. Blair and Ms. Lewis to have them testify.” App. II at
369. As it got close to the trial date, Blair and Lewis (who were not under
subpoena) refused to testify voluntarily. Absent a voluntary appearance by the
witness, the “sole means of presenting [such a witness’] testimony . . . is through
use of a preservation deposition.” Odell v. Burlington N. R.R. Co. , 151 F.R.D.
661, 663 (D. Colo. 1993). Counsel was diligent in asking to take a preservation
deposition once he understood that Blair would not testify voluntarily. It
therefore appears that Watson’s original counsel was not as diligent as he should
have been, but Watson’s replacement counsel was diligent in pursuing the matter.
The fifth factor is foreseeability of the need for additional discovery in
light of the time allowed for discovery. As discussed above, the need for these
preservation depositions was foreseen in the pretrial order. When the magistrate
simultaneously agreed that Watson could take the additional depositions and that
Watson’s counsel could withdraw, it was foreseeable that Watson might be unable
to obtain counsel within the remaining two weeks before the discovery period
ended. At that point, discovery would need to be reopened to complete the
promised depositions. Further, the court was on notice there were problems
completing discovery prior to the pretrial conference.
The final Smith factor is the likelihood that the discovery will lead to
12
relevant evidence. 3
It was on this ground that the magistrate and district court
rejected Watson’s request for additional discovery. The ALJ noted that he did not
find Blair’s testimony relevant. The only area in which Blair’s testimony may be
relevant is with respect to the Kardex file. Blair had redone the Denver Kardex
approximately five years prior to the Board hearing. Blair testified that the
periodical records “had not been kept up during all the years and there were kind
of non-centralized locations where serials were entered” and that there were “a lot
of miscellaneous records that were very hard to read.” App. II at 351.
Watson’s overall argument is that she was set up to fail in this assignment
by being given a project that was too time-consuming and complex to be
completed in the allotted time. Gard testified that Watson could have relied on
the Kardex files, making this a very simple task. Nancy Greer, who testified
regarding how long this task should have taken, relied on the accuracy of the
Kardex files in making her determinations. Testimony substantiating Watson’s
claim that the Kardex files could not be relied upon to complete this assignment
would have helped to show that the project required a great deal of time and the
checking of multiple sources. Blair’s testimony somewhat impeaches the
3
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Fed. R.
Evid. 401.
13
reliability of the expert testimony. While there is an argument to be made that
Blair’s testimony is relevant, reasonable minds could differ. Whether the Kardex
was reliable was one factor in the issue of whether the serials list was a time-
consuming and difficult task. That issue, in turn, was part of the larger issue of
whether Watson was set up to fail. The set-up-to-fail theory is part of the larger
argument that Watson suffered racial discrimination. Considering the six factors
overall, the district court did not abuse its discretion in refusing to reopen
discovery for Blair’s preservation deposition.
The final question is whether the district court abused its discretion in
refusing to reopen discovery so that Watson could take Lewis’ deposition.
Throughout the proceedings, Watson has conceded that Lewis’ testimony would
be essentially the same as Blair’s with respect to how to prepare a serials list.
Lewis would not have been able to testify about Watson’s assignment specifically,
nor was she familiar with the Denver Kardex. Accordingly, the district court did
not abuse its discretion.
Limitation of Testimony
Isabella Hopkins gave sworn testimony at the Board hearing. Prior to trial,
Hopkins passed away. Watson asked to read Hopkins’ entire testimony into the
record, but the district court limited the portions to be presented to the jury,
rejecting certain testimony as irrelevant and as more prejudicial than probative.
14
Watson argues that the court should have allowed Hopkins’s testimony regarding
Watson’s encounter with Liszewski. Hopkins testified: “And, a thing I observed
when the director of the USGS library visited us, they claimed that she had sort of
snubbed him and we were all there. I couldn’t understand what they were talking
about or how they came up with that.” App. I at 244. The district court ruled that
this testimony was hearsay within hearsay and vague. We agree. Even if it were
error, there is no explanation as to how failure to allow the statement was
prejudicial to Watson’s case.
Watson argues that the district court should have allowed Hopkins’
testimony regarding Gard’s expression of racial prejudice. Hopkins testified that
Gard made comments about Hopkins’ family that suggested Gard harbored
prejudice against Hispanics. Hopkins also testified that Gard’s attitude appeared
prejudicial against Watson because she made comments that did not address
Watson’s abilities as an employee. The district court found the testimony to be
imprecise. We agree. The testimony regarding Hispanics does not show
prejudice against Watson. Hopkins’ description of Gard’s attitude is extremely
vague and subjective. Hopkins did not identify any racist comments made by
Gard or testify to any other specific indications that Gard was prejudiced.
Watson argues that the district court should have admitted Hopkins’
testimony regarding Watson’s EEO complaints and retaliation. Hopkins testified
15
that she complained to Harold Clayton, head of the EEO office, about the
treatment Watson received. The district court excluded this evidence because it
was unclear when the conversation took place and what exactly was said. This
exclusion was not an abuse of discretion.
In response to a question regarding whether Hopkins observed Wagner
doing or saying anything toward Watson that was discriminatory in nature on the
basis of race, the district court excluded the follow portion of Hopkins’ reply:
Because it was there in any action, in any thought, in anything that
had to do with this employee. Because how could anyone do that
under her group? You know, so it was like she had been attacked
even though it happened before her time. And, I can’t make that
different. Maybe that’s racial, maybe it’s not. See? But,
theoretically, any of us who had an EEO complaint had the right to
have the complaint and not have that held against us because it
wouldn’t be continuing. Once it was over, it was over.
App. I at 255. The district court held that this testimony was a “diatribe by this
witness” that was unhelpful to the jury. App. IV at 1252. The testimony is vague
and non-responsive to the question. Even if the district court erred, Watson’s
case was not prejudiced by not having this evidence admitted.
Transfer Not Adverse Action
In considering USGS’s motion for judgment as a matter of law, the district
court held that Watson’s transfer was not an adverse employment action. The
court held that, of the relevant events, only Watson’s termination qualified as an
adverse action for Title VII purposes.
16
The Supreme Court has explained that a “tangible employment action
constitutes 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.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998). We have liberally defined the phrase “adverse
employment action.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.
1998). “Such actions are not simply limited to monetary losses in the form of
wages or benefits. Instead, we take a ‘case-by-case approach.’” Id.Nevertheless, we will not consider “a mere inconvenience or alteration of job
responsibilities” to be adverse employment action. Id. (quoting Crady v. Liberty
Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
In Sanchez, the plaintiff was transferred from teaching fourth grade at one
school to teaching second grade at another school where she did not get along
with her supervisor. We held that the transfer was not an adverse employment
action because Sanchez’ salary and benefits remained the same, Sanchez
continued to teach at the elementary school level, and the decreasing student
population justified the transfer. The primary inconvenience that Sanchez
suffered was an increased commute. We concluded that because Sanchez
experienced “a purely lateral transfer,” there was no adverse action. Id.Similarly, Watson’s transfer to technical services did not change her salary,
17
rank, or grade. She continued to work in the same building with the same
supervisor. While her new responsibilities were different, Watson was qualified
to undertake her new duties. Watson experienced a lateral transfer that created
some inconveniences. Such a transfer does not rise to the level of adverse
employment action.
Judgment as a Matter of Law – Racial Discrimination and Retaliation
Following the mistrial, the district court granted USGS’s motion for
judgment as a matter of law on the racial discrimination and retaliation claims.
Watson argues that the district court impermissibly weighed the evidence and
evaluated credibility in making this ruling. As we review the issue de novo, the
question is whether “the evidence points but one way and is susceptible to no
reasonable inferences which may support the opposing party's position.” Q.E.R.,
880 F.2d at 1180.
Both the race and retaliation claims are analyzed using a test first
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under that test, the plaintiff carries the initial burden of establishing a prima facie
case. The burden may then shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection. The burden then shifts
back to the plaintiff to show that the employer’s stated reason is pretext. This
burden-shifting analysis drops away entirely once the case goes to trial. Kendrick
18
v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1228 n.7 (10th Cir. 2000). At that
point, it is the plaintiff’s burden to prove racial discrimination or retaliation. See
Equal Employment Opportunity Comm’n v. Flasher Co., 986 F.2d 1312, 1316
(10th Cir. 1992). Essentially, at trial the plaintiff is attempting to prove pretext.
“So long as the plaintiff has presented evidence of pretext (by demonstrating that
the defendant’s proffered non-discriminatory reason is unworthy of belief) upon
which a jury could infer discriminatory motive, the case should go to trial.
Judgments about intent are best left for trial and are within the province of the
jury.” Randle v. Aurora, 69 F.3d 441, 453 (10th Cir. 1995).
Watson argues she presented sufficient evidence of pretext to send the case
to a jury. USGS argues that it has presented two reasons for Watson’s
termination (failure to complete the serials list and failure to communicate
properly with her supervisors), and Watson has failed to show pretext. If there is
evidence in the record that these two reasons are unworthy of belief and that the
reasons were a pretext for discrimination, Watson is entitled to a trial.
There is no dispute that Watson did not complete the serials list. There is
also no dispute that Watson missed several deadlines and often did not spend as
much time working on the project as she was directed. However, there is a
material dispute of fact as to whether Watson was assigned the task in order to set
her up to fail. Other circuits have recognized that pretext can be proven by
19
showing that a supervisor set an employee up to fail. See, e.g., Serrano-Cruz v.
DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997); Stacks v. Southwestern
Bell Yellow Pages, Inc., 27 F.3d 1316, 1325-26 (8th Cir. 1994); Shager v. Upjohn
Co., 913 F.2d 398, 405 (7th Cir. 1990).
The record contains evidence that the serials list was too complex and time-
consuming to be completed in the assigned amount of time, particularly in light of
Watson’s workload and new responsibilities in technical services. Gard testified
that she was aware Watson was checking multiple sources and acknowledged that
checking multiple sources would lengthen the amount of time required. When
Watson expressed her concern to Gard about her workload, Gard allegedly
grinned and told Watson that her work plan was fair, without investigating
whether it was fair. When Watson accused Gard and Wagner of setting her up to
fail, they did not deny the accusation. After Watson’s termination, no one was
assigned to complete the serials list. Additionally, one of the primary reasons that
Watson said she was unable to complete the task was because of the new duties
and training required by her transfer to technical services. As Watson had no
particular expertise, experience, or training in the technical services area, one
could conclude that Wagner transferred Watson in order to further decrease her
ability to complete the project because the transfer would mean that Watson
would have less time available. In fact, immediately after the transfer, Gard
20
increased the work required by asking that the list include the specific volumes in
the library. Further, Watson previously had been given a time period of only one
week to devise a plan to reverse the call number order of the titles, although the
project required more time. Consequently, Watson was reprimanded for failure to
complete the task on time. Based on this evidence, a jury could conclude that
Gard and Wagner assigned Watson the serials list because she would be unable to
complete it in the time allotted, creating an excuse to terminate Watson.
According to Russ, Wagner, and Gard, Watson failed to communicate
appropriately with her superiors. Watson did not provide her superiors with as
much information about the status of her project as they wanted. In addition, she
ignored her superiors when they spoke to her or refused to look at them while
talking to them. She was warned several times about the manner in which she
communicated with her superiors. Kay Baker, a reference librarian also testified
regarding Watson’s lack of communication with her superiors. Further, Watson
was accused of behaving rudely to Liszewski.
To some extent, Watson testified that the accusations of her failure to
communicate were inaccurate. She testified that she had not refused to perform
work and that she had told her supervisors what she needed to complete the
project. Watson denied ignoring Gard. Deborah Rowen, a coworker, testified
that Watson had not been rude to Liszewski. Some coworkers testified they did
21
not notice anything inappropriate about the way Watson communicated with her
superiors. The bulk of the testimony on Watson’s lack of communication came
from Wagner and Gard, the people who purportedly were setting Watson up to
fail. Thus, a jury could conclude that those accusations were not credible even
without conflicting testimony. Even if the jury believed Watson had
communication issues with her superiors, the question is whether a jury could
believe this failure to communicate was not a credible reason for terminating
Watson. Russ was asked whether the two reasons for terminating Watson were
independent–that is, whether Watson could have been terminated for either reason
by itself. Russ responded that the failure to complete the serials list, by itself,
was a sufficient reason for termination. This answer suggests that Watson’s lack
of communication by itself would not be a sufficient reason. Because Watson has
created an issue of fact with regard to whether she communicated with her
superiors, as well as whether lack of communication was a credible grounds for
termination, a jury could conclude that the communication issues were a pretext
for termination.
Even if the jury concluded that both of the reasons given for Watson’s
termination were pretextual, Watson would still need to show that the reasons
were a pretext for racial discrimination. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 2108 (2000). “Proof that the
22
defendant’s explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional discrimination, and it may
be quite persuasive.” Id.; see also Flasher Co., 986 F.2d at 1320 (“Of course, the
plaintiff may argue that irrational or unexplained differential treatment is secretly
motivated by illegal discrimination, and if the plaintiff persuades the fact finder
of that, the plaintiff will satisfy that portion of his or her burden of proof in a
Title VII disparate treatment claim.”).
Watson presented evidence that she was the only black person working at
the library and that she suffered disparate treatment. Watson was pressured to
join an ethnic minority committee. She was given unfavorable tasks such as
weeding out pamphlets and reshelving books. Previously, all of the librarians
were responsible for reshelving, and after Watson was terminated all of the
librarians were again responsible for reshelving. Watson was given two
assignments with unrealistic completion dates, while her coworkers were not
assigned such allegedly complex and time-consuming additional tasks to perform.
Watson was required to document her medical leave while other employees were
not. Watson was reprimanded for not following the proper procedure for
applying for leave. Other employees who did not follow the proper procedure
were not reprimanded. Watson was not permitted to speak with librarians at
library headquarters while other librarians were permitted to do so. Only Watson
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was required to keep a log of her work hours. Watson’s comments were not
acceptable to Wagner and Gard while other employee’s comments, even if
substantively the same as Watson’s, were acceptable. Rowen testified that she
perceived that Watson was treated differently than other employees and believed
that it was because of Watson’s race.
Further, Watson’s treatment upon her transfer to the Bureau of Mines
library was unusually harsh. Watson was banned from the USGS library. When
Watson entered the USGS library to do work for her new job, Wagner yelled at
Watson to leave before she called the Federal Protective Service. No one
explained to Watson why she was not permitted to use the USGS library, and no
one else was banned from the library. Watson subsequently received a memo
from Wagner saying that if Watson came to the USGS library, Wagner would call
Federal Protective Services to remove Watson.
USGS argues that Watson is unable to prove pretext because the final
decision to terminate her was made by Russ and there is no evidence of
discriminatory animus or disparate treatment by him. There is no dispute that
Russ was an unbiased decision-maker who conducted an independent
investigation into the issues surrounding Watson’s termination. In McCue v.
Kansas Department of Human Resources, 165 F.3d 784 (10th Cir. 1999), we
affirmed a district court’s rejection of the argument that “intent [for purposes of a
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Title VII retaliation claim] must reside in the entity with final termination
authority.” Id. at 788 (alteration in original). The district court had also noted
that “were the premise true, the resulting law would be unreasonable –
‘reward[ing] deceitfulness by insulating an organization from liability for
retaliatory discharge where the decision-maker is kept ignorant of its
subordinates’ scheme.’” Id. (alteration in original). We went on to conclude that,
in Title VII cases, agency principles control liability. See id.; but see Kendrick,
220 F.3d 1220. Based on this precedent, the independent investigation by Russ
does not shield USGS from liability for the actions of its agents, Wagner and
Gard.
To prevail on a retaliation claim, Watson needs to show a causal connection
between her protected activities of filing EEO complaints and the adverse actions
taken against her. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320
(10th Cir. 1999). As discussed above, the only adverse action at issue is
Watson’s termination. Watson filed five EEO complaints. Testimony established
that Gard was aware of the 1993 complaint and the May 1995 complaint. Wagner
was vaguely aware of the 1993 complaint and was aware of the May 1995
complaint. Wagner proposed that Watson be terminated in February 1996, and
the termination was effective in April 1996. There is no evidence that there was a
relationship between the EEO complaints and Watson’s termination. There was a
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significant time lapse between those EEO complaints of which Gard and Wagner
were aware and Watson’s termination. See Bullington, 186 F.3d at 1320(remoteness in time undercuts inference of retaliatory motive). There is no
substantive testimony showing that Gard and Wagner sought to retaliate against
Watson. The only testimony on the subject was from Hopkins, but that testimony
was speculative. Hopkins did not articulate a basis for her belief that Wagner was
retaliating for the EEO complaints. Watson’s theory, that she was set up to fail in
being given the serials list assignment, is problematic because that assignment
preceded most of her EEO complaints. The only complaint prior to that
assignment was in September 1993, more than a year prior to her receiving the
assignment. In addition, Wagner was not employed by USGS at that time.
IV.
We AFFIRM the district court’s decisions denying the reopening of
discovery, denying preservation depositions, limiting testimony, and determining
Watson’s transfer was not an adverse action, and the court’s dismissal of
Watson’s retaliation claim. We REVERSE the court’s dismissal of Watson’s
claim for racial discrimination and REMAND for further proceedings on that
issue.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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.
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