Petition for Writ of Certiorari — Boynton v. Western Wyoming Community College (No. 05-1554)

Supreme Court U.S

FILE |.

we 951554 5UN 5 - ON

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

s,RENDA BOYNTON, PETITIONER

WESTERN WYOMING COMMUNITY COLLEGE,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BERNARD Q. PHELAN

Counsel of Record

1712 Pioneer Ave.

Cheyenne, WY 8200]

(307) 634-8085

CURRY & TAYLOR @ WASH OC. @(202' 393 4 4 @usscinro.co™

i

QUESTIONS PRESENTED

1. In a Title VII Civil Rights retaliation case, where

motive and intent are at issue, should a Motion for

Summary Judgment against the plaintiff be considered

-— under heightened Scrutiny?

z. In a Title VII Civil Rights retaliation case, where

motive and intent are in issue, is a plaintiffs Seventh

Amendment right to a jury trial infringed where, under

the "Celotex Trilogy", summary judgment is granted

based upon discrete facts rather than upon the totality of

the circumstances?

il

TABLE OF CONTENTS

Page

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EES OT 1

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RELEVANT PROVISIONS INVOLVED .........sccsccccceecscessecesersercecesees 2

EE SELLE LEAT 3

REASONS FOR GRANTING THE PETITION .........cccesceececceececeeceee 15

i sssuppudgnsnaseenoreseonsqneetecsos 29

APPENDIX

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TABLE OF AUTHORITIES

Page

CASES

ALEXANDER V. WISCONSIN DEPT. OF HEALTH, 263

poi OU Le Rh ) Reena en rnmne eI 18

ANDERSON V. LIBERTY LOBBY, 477 U.S. 242, 251-252

9 ERIE A Leen ners Na UNE Meee oe aoe A 17, 21

BATEY V. STONE, 24 F.3D 1330, 1336 (11TH CIR. 1994)......... 18

BAUSMAN V. INTERSTATE BRANDS CorpP., 252 F.3D

bee Mee ee fk Gt |; eee 20

BRUMBACK V. CALLAS CONTRACTOR, 913 F.SUPP.

BD Be Ga Oe wisictictitiintiteida nite enicniceaiacienctnidiingensaiean 22

CANDELARIA V. EG&G ENERGY, 33 F.3D 1259, 1262

CE Ci, SI hisses shanna tchntsininla tes tates tictadtes 22

CELOTEX CORP. V. CATRETT, 477 U.S. 317 (1986)......13, 16, 17

CHAPMAN V. AI TRANSPORT, 229 F.3D 1012, 1026

CE aie eee iia censseeaeinenthcncsicinsecpiicsh tcaicienclniadatiieiincibeiitieaid 4,19

CHERTKOVA V. CONN. GEN. LIFE INS. Co., 92 F.3D

mE he | eee 4

CLARK COUNTY SCHOOL DISTRICT V. BREEDEN, 532

CA ID hata secicscicnatpAaiccencsiarriaiibidcetdeadeae 3, 20, 23

DELGADO V. LOCKHEED-GEORGIA Co., 815 F.2D 641,

Be Fa Re, Be Meccan ahicdiee ciniahcbecsbictilinciediharsatiitnediihinaalipiaciades 18

DEPT. OF MENTAL HEALTH AND SUBSTANCE ABUSE

SERVICES, 65 F.3D 1321, 1326 (LOTH CIR. 1999)................. 15

iv

DEY V. COLT CONSTRUCTION, 28 F.3D 1446, 1459 (7TH

Is I a a a 24

EVANS V. TECHNOLOGIES APPLICATIONS & SERV.

Co., 80 F.3D 954, 958-59 (4TH CIR. 1996) .........cscsssssecssnceseeees 4

GALLAGHER V. DELANEY, 139 F.3D 338, 342-343 (2ND

ey SUI Anche: ecsiidaiie dich times stcinsisiekhi?’ “idpdasthbaiediidbshadiadecinaadin 27

GARRISON V. GAMBRO, 428 F.3D 933, 935 (10TH CIR.

GILBROOK V. CITY OF WESTMINSTER, 177 F.3D 889,

NE ies Se itreiindsciecsstisadcachetidieiniinelinbeincasinisenete 24

GRIFFIN V. WASHINGTON CONVENTION CENTER,

142 FSD 1506, 1512 (DG. CIR. [GBB ) cncacescvcnccseccsovescvescesesscves 24

GRIGSBY V. REYNOLDS METALS CoO., 821 F.2D 590,

595 (11TH CIR. 1987)................00006. RESON LOOM LUM RES NCEIESOD 17

HAAS V. ADVosyYS., INC., 168 F.3D 782 (5TH CIR. 1999) .. 14, 21

JEFFRIES V. STATE OF KANSAS, 147 F.3D 1220, 1231

CE ee em asd icc ccenetestieeacusaipuitisaolicaticcsphdiaaibnaigidakcanaaei 16, 17

LUCKIE V. AMERITECH CORP., 389 F.2D 708, (7TH

A UIE ix sicschicecacietesdicecediptlicnsccsacAcctciegadldesdanivadtiaas missieiatsioais 13, 24

MATSUSHITA ELECTRIC INDUSTRIAL CoO. V. ZENITH

PE CP Te Ea Ee CR cecsintnencsoincssasinieeanisituetionesinuces 16

McCoy v. WGH CONTINENTAL BROADCASTING CoO.,

957 F.2D 368, 370-371 (7TH CIR. 1992) .........ccccccscscecscorsecsscoeces 4

MCDONNELL-DOUGLAS V. GREEN, 411 U.S. 793

a nicsiceicscctedsicssiisscaeipisceeahanmcnivadedicheinedicinbstianilin desecsboiuiioiaas 3, 16, 20

Z? Saf. Ff . a .

a “he ad ~ * - —% ss

we atte,

MILLER V. AUTO CLUB OF NEW MEXICO, INC., 420

F.3D 1098, 1119-1120 (LOTH CIR. 2005) ..0......ccccecccesscssesosseeee 20

O'NEAL V. FERGUSON, 237 F.3D 1248, 1253 (10TH CIR.

PETERSON V. UTAH DEPT. OF CORRECTIONS, 301

FSD LIG2, LIBS COTE Cite, BOO) vocrinsiscccccsceccsecsssvsiiecressors 13, 24

RANDLE V. CITY OF AURORA, 69 F.3D 441, 443 (10TH

Ss I caccicciesdacccssnctiechsondebaaedncticisibacdcndut uccekebisaasaiioi uaa pauceamme 4

REEVES V. SANDERSON PLUMBING PRODUCTS, INC.,

SP 530d. SOM CPOE cin cpencinsnsnnsscitinincntassnnstblemampenelianiutiinied 21, 22

ROBINSON V. SOUTHEASTERN PA TRANSPORTATION

AUTHORITY, RED ARROW DIV., 982 F.2D 892, 895

IE ae ihc NI vecicdaubiniecnitiesacdichiasictiiiniedtnaasiacinie tie aS 23

ROEBUCK V. DREXEL UNIVERSITY, 852 F.2D 715, 727

ae S| ___. ERRRIS peat One Re a Pi OID MONI NY SEEM PUR SURO ACS 24

SANTIAGO-RAMOS V. CENTENNIAL P.R. WIRELESS

COMP. 217 F 0 46, GE IGT Cie, BO ssvtcciceecsccncssnnvnecnsstesin 4

SIMPSON V. DIVERSITECH GENERAL, INC., 945 F.2D

eg Lit RE +; 3 emRe Re mipt nse ep P OOO na NONE ON ERE ROEM RCC on 24

SISCHO-NOWNEJAD V. MERCED COMMUNITY

COLLEGE DIST., 934 F.2D 1104, 1111 (9TH CIR.

STIMPSON V. TUSCALOOSA, 186 F.3D 1328, 1332 (11TH

it SR | SNE eee ee Geen eR Ser a ee Renee Nea Ae tee ee 14, 24

vi

STOVER V. MARTINEZ, 382 F.3D 1064, 1073 (10TH CIR.

ischial tia aac cat a ae 16, 20

TEXAS DEPT. OF COMMUNITY AFFAIRS V. BURDINE,

a ED ie teitckkcs sssiasditessstharitatasabiiniedepteiniincies 3, 16, 21

WALLACE V. DTG OPERATIONS, INC., 442 F.3D 1112,

=a A A 4, 18, 27, 28

WELLS V. COLORADO DEPT. OF TRANSPORTATION,

SORE ET OE? BA CET 60K, ED cccnevcsxescrvervendoeeoennmmsnnnconsvianiie 22

WILSON V. B/E AEROSPACE, INC., 376 F.3D 1079,

i kG | SRE a nan eee Ne NGOS A Be 4

STATUTES

SECTION 704 OF TITLE VII OF THE CIVIL RIGHTS

eB FEI a oT Aicdinsitanennicshbieicianebneniniien 12

RULES

gy Sek A +, MERI Roatan cme oa opie TRENTO 14

OTHER AUTHORITIES

MARTIN H. REDISH, SUMMARY JUDGMENT AND THE

VANISHING TRIAL, 57 STAN. L. REV., 1829-1361

grace ol 2 Wasg? abe

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Tenth Circuit is not reported and appears in the

Appendix at p. 1a, infra.

The Opinion of the United States District Court for

the District of Wyoming is also unreported and appears in

the Appendix at p. 12a, infra.

JURISDICTION

The Opinion, Order and Judgment of the Tenth

Circuit Court of Appeals was entered on the 29th day of

November, 2005. Petition for Rehearing was denied on

January 6, 2006. An Order Granting Extension of Time to

File a Petition for Writ of Certiorari was granted on

February 14, 2006, extending the time to file a Petition

for Certiorari to June 5, 2006.

This Petition is being docketed in this Court within

the time period allowed by the Order of this Court. The

jurisdiction of this court is invoked pursuant to 28 USC

§1254. The basis for federal jurisdiction in the first

instance was 28 USC §1331, a civil action arising under

the Constitution laws, on treaties of the United States,

and 28 USC §1343(a)(3), a civil action to redress the

deprivation, under color of state law, statute, ordinance,

custom or usage of any right, privilege or immunity

secured by the Constitution of the United States.

2

RELF \NT PROVISIONS INVOLVED

The Seventh Amendment to the United States

Constitution, in pertinent part, provides:

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right

of trial by jury shall be preserved....

Federal law at 42 USC §2000e-3(a), in pertinent

part, provides:

Other unlawful employment practices.

It shall be an unlawful employment practice for an

employer to discriminate against any of his

employees...because he has opposed any practice

made an unlawful employment practice by this

subchapter.

Federal law, at 42 USC §1981a(c)(l), provides:

If a complaining party seeks compensatory or

punitive damages under this section--

(1) any party may demand a trial by jury.

Rule 56(b) of the Federal Rules of Civil Procedure

provides, in pertinent part, as follows:

A party against whom a claim, counterclaim or

cross-claim is asserted or a declaratory judgment

is sought may, at any time, move with or without

supporting affidavits for a summary judgment in

the party's favor as to all or any part thereof.

3

Rule 56(c) of the Federal Rules of Civil Procedure

provides in pertinent part, as follows:

The judgment sought shall be rendered if the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the

affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.

STATEMENT

This is a Title VII retaliation case under Section

704 of the Civil Rights Act of 1964, as amended, (42 USC

§2000e-3). The petitioner alleged that she was terminated

as a result of her good faith opposition to hostile

environment sex discrimination. The District Court

granted Summary Judgment based upon petitioner's

purported failure to show evidence of causal connection

between protected activity and adverse employment

action. (Appendix, pages lla through 27a.) See Clark

County School District v. Breeden, 532 U.S. 268 (2001).

On appeal to the Tenth Circuit Court of Appeals, a panel

affirmed. (Appendix pages la through 12a.)

The petitioner seeks a Writ of Certiorari to review

the applicability of the "Celotex Trilogy" (infra) to Title

VII claims under the burden shifting framework of

McDonnell-Douglas v. Green, 411 U.S. 792 (1973), and

Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248 (1981). This court's review of the 1972 McDonnell-

Douglas evidentiary paradigm is necessary in light of

heavier burdens placed on nonmovants in summary

judgment proceedings by the 1986 "Celotex Trilogy"

(infra) and Congressional action to allow trial by jury in

4

discrimination cases in the 1991 Amendments to the Civil

Rights Act of 1964, (42 USC §198la). These

developments in the law of civil rights have given rise to

conflicts among the circuits regarding the kind and

amount of evidence necessary to be shown to survive a

motion for summary judgment. Compare Chapman v. Al

- Transport, 229 F.3d 1012, 1026 (11th Cir. 2000), ("The long

and short of it is that summary judgment rule applies in

job discrimination cases just as in other cases. No thumb

is to be placed on either side of the sale."); with Wallace v.

DTG Operations, Inc., 442 F.3d 1112,___ (8th Cir. 2006),

("[A]lthough Rule 56 contains only one standard, we must

exercise particular caution when examining the factual

question of intent to ensure that we dutifully extend all

justifiable inferences in favor of the nonmoving party.")!

‘Other Circuits have used different language when describing the

care that must be given to summary judgment motions in Title VII

actions. Santiago-Ramos v, Centennial P.R. Wireless Corp., 217 F.3d

46, 54 (1st Cir. 2000), ("Courts should exercise particular caution

before granting summary judgment for employers on such issues as

pretext, motive, and intent."); Chertkova v. Conn. Gen. Life Ins. Co.,

92 F.3d 81, 87 (2nd Cir. 1996), ({T]rial courts must be especially

cautious in handing out summary judgment in discriminary cases....");

"Evans v. Technologies Applications & Serv, Co,, 80 F.3d 954, 958-59

(4th Cir. 1996) ("Courts must take special care."); Perry v. McGinnis,

209 F.3d 597, 600 (6th Cir. 2000), ("Summary judgment is generally

not well suited for cases in which motive and intent are at issue and in

which one party is in control of the proof."); McCoy v. WGH

Continental Broadcasting Co., 957 F.2d 368, 370-371 (7th Cir. 1992)

(Summary Judgment standard of review"...is applied with added rigor

in employment discrimination cases:; Sischo-Nownejad v. Merced

ity College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) ("We

require very little evidence to survive summary judgment....");

Randle _v, City of Aurora, 69 F.3d 441, 443 (10th Cir. 1995)

(Judgments about intent are best left for trial and are within the

province of the jury."); Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1086 (11th Cir. 2004), ("Summary judgment rule applies in job

discrimination cases as in other cases. No thumb is to be placed on

et ey Be vee ete. | 4

Factual Background

Brenda Boynton was a full-time custodian at

Western Wyoming Community College in Sweetwater

County, Wyoming, from December 1, 1997, until her

termination in February, 2003, a period of nearly six (6)

years. During the initial few years of her employment,

Miss Boynton, while working at the College's Rock

Springs Campus, received several job performance

evaluations from her supervisor which demonstrate that

she was a good performer:

"This supervisor has received quite a few

compliments on this employee"

"Brenda spends her time very productively"

"She is able to communicate with her fellow

employees about work and how she may improve

it"

"This employee is a very dependable young lady

and works overtime when offered"

(Aplt. App. pp. 99-106.)

However, while working at the Rock Springs

Campus, her male supervisor engaged in some rather

bizarre and offensive conduct. In her affidavit,

responding to the defendant's Motion for Summary

Judgment, she explained:

either side of the scale.")

6

"However, during my employment, Gary Bussart

behaved in a way which was offensive to me.

Specifically, on one occasion Mr. Bussart entered

the ladies room at the College while I was using it

and, while I was still in the stall, asked me why I

was using the men's room. I told him that I was

not using the men's room, that this was the ladies

room and asked him to leave. He refused to do so.

I finished using the toilet and left the ladies room.

At that time, I talked about the incident with a co-

employee, Tana Sheppard, and was advised by her

that such had happened previously.

"On another occasion, Mr. Bussart came into the

men's room while I was clearly cleaning it and

proceeded to use the urinal in my presence. I

verbally objected to such and left the men's room

and contacted Rich Mathews, Gary Bussart's

supervisor, and complained. Rich Mathews simply

said, "That's Gary!" and left it at that."

(Aplt. App. pp. 20-21.)

In 1998, Miss Boynton was transferred to the

Green River Campus of the College, (in the nearby Town

of Green River, Wyoming), and came under the joint

supervision of her original supervisor and the Green

River Facility Manager, Mrs. Huebner. However, Miss

Boynton's job performance reviews continued to be quite

"satisfactory":

"Brenda is a reliable employee who conscientiously

fulfills her job description."

"Brenda fulfills her job description to the fullest."

"Fulfills the job description."

After the transfer to the Green River Center,

however, Miss Boynton became pregnant. For some

reason, her male supervisor took offense and acted with

hostility toward petitioner. Miss Boynton, in her

affidavit, described his behavior, her subsequent

complaint to the College President and the College's

response:

"After being transferred to the Green River

Center, I became pregnant and notified Mr.

Bussart of such. Mr. Bussart took offense to my

pregnancy and said, "How dare you do this to

me?," in a manner I felt was inappropriate. —

Thereafter, he continually told me that he didn't

think single, pregnant women should work for him,

and requested, on several occasions, that I provide

to him a specific date for the birth of my child, and

insisted that I take maternity leave prior to my

child's birth. During this period of time, Mr.

Bussart disturbingly seemed to "hover" over me

and follow me around while I performed my

duties. All of these activities served to make my

work at WWCC unpleasant and hostile toward me

as a woman.

"On September, 25, 2000, and prior to my return

from maternity leave, I arranged to have a

meeting with the President of the College, Dr. Tex

Boggs. At this meeting, I expressed to Dr. Boggs

my displeasure with Mr. Bussart's behavior

toward me, regarding so-called "restroom

incidents," and his related hostile attitude toward

me as a woman, my pregnancy, and other matters.

8

I did this to try to rectify the situation before I

returned to work. At these meetings, I was

advised that the College would conduct an

investigation and report back to me.

"On the 9th day of October, 2000, I received the

attached letter from Mr. Marty Kelsey, the

Assistant to the Fvresident of the College,

indicating that they had spoken with various

persons, including Mr. Bussart and Mary Ann

Huebner, and explained to them my complaints

about Mr. Bussart. (Exhibit F.) The letter

indicates that Mr. Bussart denied the accusations

and that Mrs. Huebner was informed of my

complaints about him, but could not confirm them.

The letter indicated that nothing further would be

done by the College because the allegations were

denied and no evidence existed to confirm them.

“However, I have since learned from the testimony

of Dean Marty Kelsey and Dr. Tex Boggs that

both had knowledge of other incidents in which

Mr. Bussart had invaded the "bathroom privacy" of

other women employees, specifically Tana

Sheppard, Donna Poulos and Jean Gibbons. Also,

Mr. Bussart, in his deposition, admitted to the

prior incidents, but denied the incidents I

reported."

On October 10, 2000, the day immediately

following the October 9, 2000, no-cause letter, a

continuous and sequential succession of retaliatory

conduct was commenced by her supervisor that lasted

roughly two years and culminated in Brenda Boynton's

termination in February, 2003. The day after Miss

9

Boynton was advised by the College that her allegations

about Bussart's conduct would go nowhere, Miss Boynton

was given a "marginal" job performance review by her

supervisor--her first low evaluation in more than three

years of employment. Gary Bussart, Brenda Boynton's

direct supervisor, and Mary Ann Huebner, the facility

manager, rated Brenda Boynton as "marginal" in the area

of "Job Related Communication Skills" with the following

"Comment":

Brenda attends the staff meetings as requested.

When Brenda encounters problems or has

questions regarding her work, she should first

ask the onsite supervisor/direct supervisor."

(Emphasis supplied.)

On the general comments section of the evaluation

of October 10, 2000, given the day after the College

acquitted Mr. Bussart of the Boynton allegations, Gary

Bussart and Mary Ann Huebner said:

Brenda has been dependable in coming to work on

time. Brenda needs to realize she is part of

the GRC team and it would be beneficial to

her to work together with the other staff

people. (Emphasis supplied.)

In addition to receiving the marginal evaluation

from Huebner/Bussart, after returning from maternity

leave and meeting with Dr. Boggs, Mr. Bussart began to

criticize her work at every turn, though there were no

formal "write-ups" for a few months. In February, 2001,

however, Mr. Bussart, over Miss Boynton's verbal

objection, again invaded her privacy by bursting into her

10

locked break room while she was manually pumping her

breasts for milk for her baby, watched while she covered

up, and then insisted that he had a right to be in the break

room, even when locked. Complaint to Mrs. Huebner

resulted in reprimand and direction that breast pumping

be done in the ladies room. (Aplt. App. pp. 23-24.) This

incident was soon followed by a "special" Job Performance

Evaluation, covering October 10, 2000, through March 12,

2001, in which Miss Boynton was _ judged

"UNSATISFACTORY" in the areas of "Quality of Work,"

"Productivity and/or Efficient Time Use," and "Job

Related Communication Skills," while her "Job

Knowledge" was deemed merely "MARGINAL".

Following the "unsatisfactory" evaluation of March,

2001, Miss Boynton was put on the first of three

consecutive "Remediation Plans," by her supervisors. In

general, these "Plans," prepared jointly by Bussart and

Huebner and reviewed by Mr. Kelsey, (who had cleared

Bussart despite knowing his record), required Miss

Boynton to keep a detailed daily written log of her job

activities in ten-minute increments. In addition, she was

to e-mail a daily report to Huebner/Bussart in which she

was to report three "unusual events" that occurred during

her shift.

In June, 2001, yet a third consecutive critical Job

Performance Evaluation was prepared by Bussart and

Huebner in which Miss Boynton was again rated to be an

exceedingly poor employee and which recommended to

Dr. Boggs her immediate termination as an employee.

Dr. Boggs, being concerned that the Remediation Plan

might constitute "retaliation," declined to immediately

terminate Miss Boynton; but, instead, authorized a second

and then a third Remediation Plan to be administered

11

solely by Mary Ann Huebner.

Finally, in the Spring of 2002, Ms. Huebner sent a

memo to her staff imploring them to evaluate Brenda

Boynton on her performance; suggesting that if her

performance was "unsatisfactory" that specific examples

be recalled, "including number of times the incident has

occurred," and "seeking any documentation you may have,

such as e-mails or anything else."

A Notice of Proposed Termination for cause

followed wherein the College alleged that Miss Boynton

should be terminated based upon several, but minor and

arguably pretextual problems caused by faulty

equipment, failure to train and conflicting directives. For

instance, Miss Boynton was criticized for not properly

operating a "sander" used to sand a steep hill on snowy

days; the sander, however, proved to be inoperable when

the sand was "frozen" into chunks and could not be spread

which typical occurred on snowy days. Miss Boynton

allegedly could not efficiently use the "snow plow"

because a co-worker failed to instruct her on using a

"cheater bar" to attach the blade. She was criticized for

her supervision of unruly grade school ballet students

despite the presence of the ballet teacher; and for not

turning off a fire alarm before she determined there was

no fire. She was criticized for not cleaning "mouse

droppings" from Ms. Huebner's uncleared desk; while Mr.

Bussart had specifically directed her not to clean desks

that have not been cleared. Finally, she was blamed for

not timely cleaning-up a few dead "miller moths" that

infest Wyoming every Spring and early Summer.

Based upon these late reported and trivial

complaints, and after nearly eighteen months of

12

"remediation plans", the College began termination

proceedings against Ms. Boynton. The College's Board of

Trustees convened a hearing to consider the proposed

termination, but none of the Board members attended the

hearing. At the hearing, evidence was admitted showing

that the President of the College knew that the

petitioner's supervisor had a history of harassing women

in the ladies room; that the supervisor issued a marginal

job performance evaluation the day after the College

found no cause for petitioner's complaint; that three

consecutive remediation plans were then imposed; that

_ the College President had concern that the supervisor's

termination recommendation was motivated by

"retaliation"; that petitioner's performance was next to

exemplary prior to her complaint; and that adverse

employment action was taken one day after the College

issued its no-cause decision on her complaint.

The Board, after purportedly reviewing the

transcript of the hearing, nevertheless voted to terminate

petitioner's employment.

Disposition Below

Exhausting required administrative remedies,

petitioner filed suit in the United States District Court

for the District of Wyoming allecing unlawful retaliation

pursuant to Section 704 of Title \ ‘I of the Civil Rights

Act of 1964, 78 STAT. 257, as amem ed, and codified at 42

USC §2000e-3(a). After discovery, the respondent

College submitted a motion for summary judgment

pursuant to Rule 56(c) F.R.Civ.P. in which the College

offered evidence that the bui’s = supervisor, who

ultimately recommended termination, purportedly did not

know about petitioner's protected activity. Therefore,

13 ‘ties

3 Fe aS

the College argued, summary judgment should be

granted since there was no evidence of causal connection

between the protected activity and the adverse

employment action of termination, and the defendant had

cause for discharge.

Petitioner responded to the respondent's motion

by submitting her detailed affidavit specifically showing

the hostile environment created by her supervisor, her

complaint about such to the College President, and the

adverse action, which began one day after the College

closed down its investigation, which continued for the

better part of two years in the form of repeated and

onerous "remediation plans", culminating with

termination based upon pretextual reasons.

Citing Celotex Corp. v. Catrett, 477 U.S. 317

(1986), the United States District Court granted the

respondent's Summary Judgment Motion on the eve of

trial. The Court assumed that the plaintiff had shown

protected opposition and adverse employment action, but

held that she had not shown a causal connection between

them. Relying upon Peterson v. Utah Dept. of

Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002), and

Luckie v. Ameritech Corp., 389 F.2d 708, (7th Cir. 2004),

the Court found that because there was evidence that the

building supervisor did not know of the plaintiff's

protected activity when she recommended termination,

she did not have the retaliatory motive to link the

protected activity to the adverse action; therefore, the

court ruled the College itself did not know of the

protected activity. This, of course, ignored other copious

and undisputed evidence that the College President, the

Dean of Administration, the petitioner's supervisor and,

eventually, the seven-member Board of Trustees, knew

14

that she had engaged in protected activity immediately

before her supervisor commenced giving her poor

evaluations, imposed repeated and continuous sequence of

onerous remediation plans, and recommended

termination; and that by turning the administration of a

continued and already tainted and retaliatory remediation

plan over to someone without knowledge, merely made

that person the cats paw of the person with animus. See

e.g. Stimpson v. Tuscaloosa, 186 F'.3d 1328, 1332 (11th Cir.

1999); Haas v. Advosys., Inc., 168 F.3d 732 (5th Cir. 1999).

On appeal, a panel of the Tenth Circuit Court of

Appeals affirmed the lower court in an unpublished

opinion which, for the most part, simply adopted the

District Court's decision, (and the appellee's statement of

facts), without elaboration. (Appendix, p. 9a.) The Tenth

Circuit described its "Standard of Review" in summary

judgment cases by reference to its' decision in Garrison v.

Gambro, 428 F.3d 933, 935 (10th Cir. 2005), which sets

forth the now familiar standards of review articulated by

this Court in the "Celotex Trilogy" of cases decided in

1986 (infra) which established judicial receptivity to

summary judgment. In Garrison, supra, the Tenth

Circuit said:

We review the district court's grant of sammary

judgment de novo, applying the same legal

standard used by the district court. Summary

judgment is appropriate “if the pleadings,

deposition, answers to interrogatories, and

admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled

to a judgment as a matter of law." Fed. R. Civ.P.

56(c). When applying this standard, we view the

evidence and draw reasonable inferences

therefrom in the light most favorable to the

nonmoving party.

Although the movant must show the absence of a

genuine issue of material fact, he or she need not

negate the nonmovant's claim. Once the movant

carries this burden, the nonmovant cannot rest

upon his or her pleadings, but must bring forward

specific facts showing a genuine issue for trial as to

those dispositive matters for which he or she

carries the burden of proof.

The mere existence of a scintilla of evidence in

support of the nonmovant's position is insufficient

to create a dispute of fact that is ‘genuine’; an

issue of material fact is genuine only if the

nonmovant presents facts such that a

reasonable jury could find in favor of the

nonmovant. (citing Simms v. Okla. ex.rel. Dept.

of Mental Health and Substance Abuse Services,

65 F.3d 1321, 1326 (10th Cir. 1999).

(Emphasis Supplied.)

REASONS FOR GRANTING THE PETITION

I. THERE IS A SPLIT IN THE CIRCUITS

REGARDING THE SCRUTINY THAT

EVIDENCE OF CAUSALITY SHOULD BE

GIVEN IN CIVIL RIGHTS CASES IN WHICH

SUMMARY JUDGMENT IS SOUGHT.

This Court should grant a Writ of Certiorari to

consider the nature, kind and quantity of evidence that

16

must be shown by a Title VII plaintiff to survive a Motion

for Summary Judgment within the evidentiary

framework first described in McDonnell-Douglas_v.

Green, 411 U.S. 793 (1973) and Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981), under the

standard of review in summary judgment proceedings

described by this court in the "Celotex Trilogy"

announced in 1986. See Matsushita Electric Industrial

Co. v. Zenith Radio Corp., 477 U.S. 574 (1986); Anderson

v. Liberty Lobby, Inc., 477 U.S. 574 (1986); and Celotex v.

Catrett, 477 U.S. 317 (1986).

Where there is no direct evidence of retaliation

under 42 USC §2000e-3, a retaliation claim is analyzed

under the McDonnell-Douglas burden _ shifting

framework. Jeffries v. State of Kansas, 147 F.3d 1220,

1231 (10th Cir. 1998). The employee must first present a

prima facie case by showing, 1) she engaged in protected

opposition to discrimination; 2) that the employer took an

adverse employment action against her; and, 3) that there

is a "causal connection" between the protected activity

and the adverse action. Stover v. Martinez, 382 F.3d

1064, 1073 (10th Cir. 2004). After a prima facie case has

been shown, the burden shifts to the defendant to

produce or “articulate” evidence of legitimate non-

-discriminatory justification for the action. The burden

shifts back to the employee to provide evidence showing

that the employer's proffered reason is a pretext for

discrimination. An employee may demonstrate pretext

by showing the employer's proffered reason was so

inconsistent, implausible, incoherent, or contradictory

that it is unworthy of belief. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. at 255 n.10 (1981).

The burden-shifting framework of McDonneil-

awe yt ier >

are

Douglas-Burdine, announced nearly twenty years before

jury trials were allowed in the 1991 Amendments to the

Civil Rights Act of 1964, (42 USC §1981a(c)) was designed

to ease the evidentiary burden on "employment

discrimination plaintiffs who rarely...have access to direct

evidence of intentional discrimination." Grigsby _v.

Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987).

The "Celotex Trilogy" cases, on the other hand, eased the

burdens of movants in summary judgment proceedings

and increased the burdens of nonmovants to produce

evidence sufficient to convince a reasonable jury. See

Celotex, supra, 477 U.S., p. 323, (a movant need not

negate a nonmovant's case to achieve summary

judgment); and Anderson, supra, 470 U.S. at pp. 250-251,

(a nonmovant must produce evidence sufficient for a jury

to return a verdict for nonmovant).

The burden-shifting framework of McDonnell-

Douglas-Burdine, which is also applied to retaliation cases

under Section 704 of the Act, (42 USC §2000e-3), (see

Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir.

1998)), making it easier for a plaintiff to prove

discrimination without direct evidence through the use of

circumstantial inference, appears to be in conflict with the

rules of the "Celotex Trilogy", which requires that a

nonmovant bring forth all its evidence to show that a

reasonable jury would find in her favor. Anderson, supra,

470 U.S. at 250-251.

This conflict in judicial policy and purpose, that is,

providing a means for discrimination plaintiffs to prove

by inference a prima facie case, while making it more

difficult for nonmovants to overcome motion for summary

judgment, seems to have resulted in some courts to self-

consciously announce that it would use "added vigor," or

18

"special caution" or be “especially chary" in ruling on

summary judgment motions. On the other hand, other

courts have boldly said that, in discrimination cases, no

"special caution" or other deference would be given

circumstantial evidence of "intent" provided by

discrimination claimants.

The split in the circuits regarding the purported

"transsubstantive norm" of Rule 56 and suitability of

summary judgment in employment discrimination cases is

exemplified by comparing cases in the Seventh and

Eighth Circuits with those in the Eleventh Circuit.

Brunett, Redish and Reiter, Summary Judgment, Federal

Law and Practice, Second Edition, §9.01. Most recently,

the Eighth Circuit, in Wallace v. DTG Operations, Inc.,

No. 04-3345, 442 F.3d 1112 (8th Cir. 2006), (supra) has said

that, "[S]ummary judgment should be used sparingly in

the context of employment discrimination and/or

retaliation case where direct evidence is often difficult or

impossible to obtain", and that it would",...exercise

particular caution when examining the factual question

of intent to ensure that we dutifully extend all justifiable

inferences in favor of the non-moving party. Wallace,

supra. The Seventh Circuit has utilized a standard of

"added vigor" in reviewing motions for summary

judgment in discrimination cases. Alexander v.,

Wisconsin Dept, of Health, 263 F.3d 673, 681 (7th Cir.

2001). In contrast, the Eleventh Circuit, though once

announcing that, "| A]s a general rule summary judgment

is not a proper vehicle for resolving claims of employment

on an employer's motivation and intent", Delgado v.

L -Georgi , 815 F.2d 641, 644 (11th Cir. 1987);

accord Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir. 1994),

now finds that such a rule has not been "recently

followed" and that today no special caution should be

19

applied in discrimination cases. "The long and the short of

it is that the summary judgment rule applies in job

discrimination cases just as in other cases. No thumb is to

be placed on either side of the scale." Chapman v. Al

Transport, 229 F.3d 1012, 1026 (11th Cir. 2000).

The Supreme Court should grant certiorari in this

matter to resolve whether, given the remedial purposes

of the Civil Rights Act of 1964 and the evidentiary

framework of McDonnell-Douglas v. Burdine, defendants

in Title VII Civil Rights cases should bear heightened

burdens of production and persuasion in summary

judgment proceedings where the evidence of

discrimination is necessarily indirect and inferential. It is

clear that the Circuit Courts have long believed that, in

discrimination cases, where intent and motive are at

issue, summary judgment is disfavored; yet, at least one

Circuit Court has said that defendants bear no increased

burdens, and plaintiffs are given no deference, in job

discrimination summary judgment proceedings.

II. SUMMARY JUDGMENT SHOULD BE

GRANTED ONLY UPON THE TOTALITY OF

THE CIRCUMSTANCES RATHER THAN

UPON DISCRETE FACTS.

In retaliation cases, Federal Law makes it

unlawful

..for an employer to discriminate against any of his

employees...because he has opposed any practice

made an_ unlawful practice by [Title VII] or

because [the employee has made a charge,

testified, assisted or participated in any manner in

an investigation, proceeding or hearing under

20

[Title VII].

42 U.S.C. §2000e-3(a)

This statute prohibits retaliation against an

employee who has engaged in activity protected by Title

VII. Unless there is direct evidence of retaliation, the

burden shifting analysis set forth in McDonnell-Douglas

v. Green, 411 U.S. 798, 802-804 (1973) is followed:

Following this framework, an employee must first

present a prima facie case of retaliation, which

then shifts the burden to the employer to produce

a legitimate non-discriminatory justification for

taking the disputed employment action, the

burden shifts back to the employee to provide

evidence showing that the employer's proffered

reason is a pretext for discrimination. Id. An

employee may demonstrate pretext by showing

the employer's proffered reason was so

inconsistent, implausible, incoherent, or

contradictory that it is unworthy of belief.

Bausman _v., Interstate Brands Corp., 252 F.3d

1111, 1112 (10th Cir. 2001).

Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004)

A prima facie case of Section 704 retaliation is

initially made by showing, 1) protected opposition to

discrimination, 2) an adverse employment action; and, 3)a

causal connection existing between the protected activity

and the adverse employment action. Miller v. Auto Club

of New Mexico, Inc., 420 F.3d 1098, 1119-1120 (10th Cir.

2005). See also Clark County School District v. Breeden,

532 U.S. 268, 272 (2005), (saying that one must show

in

¥

Anau are

21

existence of a "causal connection" between protected

activity and adverse employment action). If such is

shown, the burden shifts to the defendant to "articulate" a

non-discriminatory reason for its action. If such a

showing is made, the plaintiff must show that the reason

articulated is pretextual. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981).

Federal courts considering summary judgment

motions in civil rights retaliation cases, under the

"Celotex Trilogy", have engaged in much discussion of

which specific facts need to be shown by the non-moving

party to demonstrate motive and intent leading to a

"causal connection" between "protected activity" under

Title VII and “adverse employment action." This has

occurred in the context of courts endeavoring to

determine whether a "reasonable jury" could find a "causal

connection" between "protected activity" and "adverse

action", given that this court has said that the trial court's

role in ruling on a pre-trial Rule 56 Motion for Summary

Judgment is the same as it is in ruling on a Motion for

Judgment as a Matter of Law during trial under Rule

50(a)(1) F.R.Civ.P. Anderson v. Liberty Lobby, 477 U.S.

242, 251-252 (1986). See also Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133 (2000). Thus, in

Civil Rights cases, the courts have, over time, identified

certain discrete "facts" which give rise to a formulaic

inference of retaliatory motive and intent justifying the

denial of summary judgment. Conversely, if certain

discrete identified "facts" may militate against a claim of

retaliation, those discrete facts are identified by the

courts as leading to an inevitable finding that "no

reasonable jury" could find that discrimination took place,

mandating that summary judgment be entered. This

leads to what one commentator calls the “"Balkanization"

ia ii ec ae ecm

22

of the evidence, and a discounting of the totality of the

circumstances and "all of the facts", in favor of

segregating certain patterns of proof that, perforce,

necessitate the granting or denial of summary judgment.

Spriggs, supra, §29.01.(2).

Two important themes in the quest for substantial

evidentiary "proof' in summary judgment proceedings

involving motive and intent in retaliation cases are

"timing" and "knowledge", both of which were involved in

this case. See Spriggs, Kent, Representing Plaintiffe in

Title VII Cases, §7.04(7), pp. 7-91 through 7-97. One

factual formulae seeks to draw an inference of

discriminatory animus; while the other purports to show

inference of no discriminatory animus.

In retaliation cases, it is said, "timing is

everything” and the sequence of events is often pivotal.

Spriggs, supra, pp. 7-91. In the Tenth Circuit a protected

employment activity followed by adverse employment

action “very close" to the protected activity has been

deemed sufficient evidence to show motive and intent and

causal connection. O'Neal v. Ferguson, 237 F.3d 1248,

1253 (10th Cir. 2001). In a summary judgment case, the

Tenth Circuit found that five months between protected

activity and adverse action was also _ sufficiently

proximate to show causal connection. Wells v. Colorado

Dept. of Transportation, 325 F.3d 1205 (10th Cir. 2003).

But, in Candelaria v. EG&G Energy, 33 F.3d 1259, 1262

(10th Cir. 1994), the same court held that three years was

not close enough to raise such an inference. Yet, in

another circuit, in k v. Callas Con or, 913

F.Supp. 929, 942 (D.Md. 1995), a district court ruled that

five months between knowledge of protected activity and

a purported "layoff" was deemed sufficient to support an

inference of causal connection. In Clark County School

District v. Breeden, supra, 532 U.S. p. 278, this court

acknowledged temporal proximity as probative of motive

if it is "very close", citing O'Neal, supra.

In reviewing the cases in which temporal

proximity has been advanced as evidence of sufficient

motive and intent to show causal connection, it is

important to recognize that it is causation in the form of

intangible motive and intent that must be shown, not

merely extant temporal proximity. Temporal proximity,

the courts have held, provides evidentiary basis from

which motive and intent can be inferred. Yet, many cases

have recognized that the time span between protected

activity and adverse action, whether "proximal" or

"distal", is not determinative, especially when there has

been continuous sequence of events, sometimes referred

to as "a continuous barrage of adverse action", Robinson

v. Southeastern Pa Transportation Authority, Red Arrow

Div., 982 F.2d 892, 895 (8rd Cir. 1993). Nevertheless,

temporal proximity has been latched on to by the courts

as a "fact" which would justify an inference of causal

connection.

The other recurrent theme of cases which dispose

of civil right retaliation claims is "knowledge". Many

courts have said that showing evidence of "knowledge" of

the protected activity is essential to avoid summary

judgment in retaliation claims. However, again under the

rubric of the "Celotex Trilogy", the courts have engaged

in fact-finding determinations in order to grant or deny

summary judgment. Some cases ignore evidence of

institutional retaliatory intent to grant summary

judgment based upon discrete evidence of "lack of

knowledge" providing requisite “deniability" to avoid

24

liability. See e.g. Peterson v. Utah Dept. of Corrections,

supra; and Luckie v. Ameritech Corp., supra. Other

decisions impute "knowledge" to the institution based

upon delegated authority from one with animus to one

without animus, based upon a "cat's paw" theory of

liability, (see Stimpson v. City of Tuscaloosa, 186 F.3d

1828, 1332 (11th Cir. 1999); Gilbrook v. City of

Westminster, 177 F.3d 839, 853-855 (9th Cir. 1999). Still

another line of cases has found that liability could attach

in the form of "taint" where an employee would not have

been subject to ultimate adverse employment action

absent earlier adverse employment action motivated by

unlawful animus. See Haas v. Advosys., Inc., 168 F.3d

733 (5th Cir. 1999); Dey v. Colt Construction, 28 F.3d

1446, 1459 (7th Cir. 1994); Roebuck v. Drexel University,

852 F.2d 715, 727 (8rd Cir. 1988); Simpson v, Diversitech

General, Inc., 945 F.2d 156 (6th Cir. 1991); Griffin v.

Washington Convention Center, 142 F.3d 1308, 13812 (D.C.

Cir. 1988).

In petitioner's case, there was evidence of causal

connection, in the form of both "temporal proximity' and

"knowledge". Such was evidenced by the two-day Board

hearing where testimony showing protected activity,

adverse action one day after the no-cause letter, a

protracted but continuous sequence of retaliatory action

in the form of onerous "remediation plans", and evidence

of pretext in the grounds for termination which were

concocted to complete the "task" of terminating the

petitioner. Yet, the lower courts granted and upheld

summary judgment on evidence that a single player in the

scenario, the Faculty Supervisor, did not know Brenda

Boynton had personally spoken to the President of the

College about her supervisor's hostile conduct.

Ut Pesrats Mera ty ate Oy tee

Fe ae ae, ee ge se a eh

: an

25

Il. IN PRACTICE, THE "CELOTEX TRILOGY",

AS APPLIED TO CIVIL RIGHTS CASES,

INFRINGES COMPLAINANTS OF THEIR

RIGHT TO A JURY TRIAL.

This case presents the important and recurring

problem of Summary Judgment procedure degrading the

Seventh Amendment right to a jury trial, from its historic

dimensions, in Title VII Civil Rights cases where

determinations regarding intention and motive are

particularly unsuitable for summary adjudication.

Wright, Miller, and Kane, Federal Practice and

Procedure, §2732.2 at 152-153 (1999). It reflects the

conflicting decisions that have been reached by courts

who have considered summary judgment motions in civil

rights retaliation cases under the rubric of the "Celotex

Trilogy" since the Civil Rights Act of 1964, as amended in

1991, permitted jury trials. (42 USC §198la(c)) This

court's decision to grant certiorari to resolve conflicting

and confusing case law among the circuits concerning

prima facie evidence in summary judgment proceedings,

where motive and intent are at issue, will be important to

thousands of people who seek redress for job

discrimination in view of the substantial number of civil

rights cases being decided without trial on summary

judgment.”

*See Kevin M. Clermont and Stewart J. Schwab, How Employment

Discrimination Plaintiffs Fare in Federal Court, Vol. I, Journal of

Empinical Legal Studies, 429-458 (2004); Martin H. Redish, Summary

Judgment and the Vanishing Trial, 57 STAN. L. REV., 1329-1361

(2005).

26

Since the Supreme Court's "Celotex Trilogy" of

cases, which eased the standards for granting summary

judgment, summary judgment has increasingly been the

procedure of choice for resolution of employment

discrimination cases under Title VII of the Civil Rights

Act of 1964. Particularly after the 1991 amendments to

the Civil Rights Act of 1964 permitted jury trial in Title

VII cases, summary judgment appears to be the

predominant, or even preferred, method of disposition in

civil rights cases. "[A]ny reader of the Federal Reporter

must notice that courts routinely grant summary

judgment against civil rights claims." Brunett, Redish

and Reiter, Summary Judgment Federal Law and

Practice, Second Edition, §9.13 (2000), p. 297. "[P]atterns

have evolved in which it is clear that some courts of

appeal are much more hostile to summary judgment for

employers than others. Among the most hostile are the

Second and Third Circuits. Among the most accepting

are the Fourth, Fifth, and Tenth." Spriggs, Kent,

Representing Plaintiffs in Title VII action, §29.01[1], p.

29-6. Though many courts have said that most civil rights

cases are "unsuitable" for summary judgment, in cases

where motive and intent are in question, such admonition

is more honored in its breach than in the observance

thereof.

Purely as an empirical matter, it is clear that

summary judgment is often sought and frequently

granted in civil rights cases. A Federal Judicial

Center Study revealed that the percentage of

employment discrimination cases using summary

judgment is higher than that used in cases

categorized as contract, tort, or miscellaneous.

The Administrative Office of the United States

Court reported that in 1995, 90 percent of

ae O7 BERETS S

employment discrimination cases were decided

without a trial. Some commentators laud this

trend and others criticize it. Judge Posner

describes this trend as part of a problem of

increased caseload. In his terms, "[T]he expanding

federal caseload has contributed to a drift in many

areas of federal litigation toward substituting

summary judgment for trial.

Brunett, Redish and Reiter, Summary Judgment Federal

Law and Practice, Second Edition, §9.13 (2000) p. 299,

quoting Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394,

1397 (7th Cir. 1997).

A number of commentators, treatises, and federal

judges have recognized the distinct trend among the

federal courts to dispose of civil rights cases on summary

judgment despite the unique nature of such cases where

motive and intent are central issues. Judge Weinstein,

warning against this trend, wrote in Gallagher v,

Delaney, 139 F.3d 338, 342-343 (2nd Cir. 1998):

A federal judge is not in the best position to define

the current sexual tenor of American cultures in

their many manifestations. Such an effort, even

were it successful, would produce questionable

legal definitions for the workplace where

recognition of employees' dignity might require

standards higher than those of the street. ..

The factual issues in this case cannot be effectively

settled by a decision of an Article III judge on

summary judgment. Whatever the early life of a

federal judge, she or he usually lives in a narrow

segment of the enormously broad American socio-

28

economic spectrum, generally lacking the current

real-life experience in interpreting subtle sexual

dynamics of the workplace based on nuances,

perceptions, and implicit communications...

The dangers of robust use of summary judgment

to clear trial dockets are particularly acute in

current sex discrimination cases....

In this period of rapidly changing and conflicting

views of appropriate gender relationships in the

workplace, decisions by a jury in debatable cases

are sound in policy and consonant with the

Seventh Amendment.

Judge Posner of the Seventh Circuit has also put it

in clear terms:

The expanding federal caseload has contributed to

a drift in many areas of federal litigation toward

substituting summary judgment for trial. The

drift is understandable, given caseload pressures

that in combination with the Speedy Trial Act

sometimes make it difficult to find time for civil

trials in the busier federal districts. But it must be

resisted unless and until Rule 56 is modified (so far

as the Seventh Amendment permits) to bring

federal practice closer to the practice in the legal

systems of Continental Europe, where there is no

hard and fast line between pretrial and trial and

where procedure is more summary and informal

than in the United States. Wallace v. SMC

Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir.

1997).

_ eas

CONCLUSION

For the reasons stated, the Court should grant a

Writ of Certiorari.

Respectfully submitted,

BERNARD Q. PHELAN

Counsel of Record

1712 Pioneer Ave.

Cheyenne, WY 82001

(307) 634-8085

la

(any footnotes trail end of each document)

No. 04-8126

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRENDA BOYNTON,

Plaintiff-Appellant,

V.

WESTERN WYOMING COMMUNITY COLLEGE,

Defendant-Appellee.

November 29, 2005, Filed

NOTICE: RULES OF THE TENTH CIRCUIT

COURT OF APPEALS MAY LIMIT CITATION TO

UNPUBLISHED OPINIONS. PLEASE REFER TO

THE RULES OF THE UNITED STATES COURT

OF APPEALS FOR THIS CIRCUIT.

COUNSEL: For BRENDA BOYNTON, Plaintiff-

Appellant: Bernard Q. Phelan, Cheyenne, WY.

For WESTERN WYOMING COMMUNITY

COLLEGE, Defendant-Appellee: Patrick E. Hacker,

Cheyenne, WY.

JUDGES: Before TACHA, Chief Circuit Judge,

ANDE RSON and KELLY, Circuit Judges.

OPINIONBY: Stephen H. Anderson

2a

OPINION: ORDER AND JUDGMENT *

Brenda Boynton appeals the grant of summary

judgment to defendant, Western Wyoming Community

College ("WWCC"), in her Title VII, 42 U.S.C. §§ 2000e

through 2000e-17, action alleging that her termination

from employment at WWCC was in retaliation for her

complaint of sexual harassment. We affirm.

Boynton was hired by WWCC as a full-time custodian

at WWCC's Rock Springs campus on December 1, 1997.

nl WWCC concedes there was no dispute that she

performed satisfactorily in that position. Appellee's Br.

at 3. Her supervisor was WWCC employee Gary

Bussart. On August 10, 1998, Boynton was promoted to

the position of Maintenance/Custodian at WWCC's

Green River facility, a position involving more

substantial duties and a higher rate of pay.

Following this promotion, Bussart continued to

supervise Boynton. Boynton initially received

satisfactory evaluations in her new job, with notations

that she was learning a new position and that

improvement with time was expected in certain areas,

such as her productivity and her communication with

others. When Boynton became pregnant, she was

permitted to take maternity leave.

In September 2000, shortly before her return to work

following her maternity leave, Boynton met with

WWCC President Tex Boggs, alleging that Bussart had

sexually harassed her more than two years earlier,

when she had still been working at the Rock Springs

campus. Boynton alleged that, on two occasions while

she was working at the Rock Springs campus, Bussart

= et

wv 4°

3a

had inappropriately entered restrooms where Boynton

was. Boynton further alleged that, after her transfer to

the Green River Center, Bussart had made negative

comments to her about her pregnancy and about

women working, that he had asked her repeatedly

when her baby was due, and that he had telephoned her

at home while she was on maternity leave. She also

alleged that he "disturbingly seemed to ‘hover’ over me

and follow me around while I performed my duties."

Boynton Aff. at P8, Appellant's App. at 22.

Boggs requested that the Dean of Administration,

Marty Kelsey, join himself and Boynton to discuss

Boynton's allegations. Kelsey was instructed to

investigate the claims. He accordingly had a meeting

with Boynton to gather information about her

complaint and he interviewed others who might have

relevant information. When interviewed by Kelsey,

Bussart denied that the bathroom incidents or other

incidents had occurred, and stated that he telephoned

Boynton at home while she was on maternity leave to

tell her that the locks had been changed on the Green

River Center doors and that she would need to get new

keys to get in upon her return. Boynton had told Kelsey

that various other employees were aware of the

incidents, but those employees told Kelsey that they

were, in fact, completely unaware of such incidents.

Kelsey also interviewed Mary Ann Huebner, the

director of the Green River Center, inquiring whether

she was "aware of any inappropriate behavior on

[Bussart's] part at the Green River Center" without

describing Boynton's complaint to her. Kelsey Dep.,

Appellant's App. at 82. Kelsey testified that he "did not

go into all of these allegations" with Huebner, but

rather just asked her "some general questions.” Id. at

4a

84 Huebner indicated she was unaware of any

ing ppropriate behavior by Bussart.

After completing his investigation, Kelsey wrote to

Boynton on October 9, 2000, informing her that he had

found no evidence substantiating her allegations. He

stated that he "would be happy to visit with you again

about these matters if you can bring some concrete

evidence into the conversation." Memorandum,

Appellant's App. at 98. Boynton never provided any

further information to Kelsey or anyone else at WWCC.

During this time, Bussart followed up on the concerns

relating to communication and productivity. Bussart

received complaints from other employees at the Gree

River Center concerning communication problems and

Boynton's failure to complete tasks. On October 10,

2000, Boynton received her scheduled annual

evaluation. While her overall evaluation was

satisfactory, in one of five subcategories

("communication") she was rated as "marginal." Id. at

107.

In March 2001, Boynton received an evaluation ranking

her performance as unsatisfactory. Bussart established

a remediation plan to address these concerns. While

remediation was ongoing, Boynton filed a complaint on

June 25, 2001, with the Wyoming Department of

Employment ("WDE") and with the Equal Employment

Opportunity Commission ("EEOC"), alleging that she

had been denied a more favorable work assignment and

that she had been harassed and suffered discrimination

because of her gender and her pregnancy, and that she

had suffered retaliation because she had reported

sexual harassment. This complaint was eventually

5a

dismissed, because the WDE concluded there was no

reasonable cause to believe that WWCC had

discriminated against her. The EEOC adopted the

WDE's findings as its own and issued a 90-day right to

sue letter. Boynton did not appeal this ruling, nor did

she act upon the right to sue letter.

Meanwhile, Boynton continued to _ receive

unsatisfactory evaluations. Accordingly, following an

unsatisfactory evaluation in July 2001, Bussart

recommended to Boggs that Boynton be terminated. In

accordance with WWCC policy, Boggs invited Boynton

to meet with him to discuss the recommendation and to

respond to Bussart's evaluation and recommendation.

Boggs decided not to terminate Boynton. He also

determined that Huebner should be Boynton's

supervisor, rather than Bussart. Huebner wrote a

remediation plan, dated September 13, 2001, to assist

Boynton in performing her job satisfactorily.

On February 28, 2002, Boynton received an evaluation

again ranking her performance as_ unsatisfactory.

Huebner designed another remediation plan, and

Boynton's performance was evaluated again on May 28,

2002. Huebner again evaluated her performance as

unsatisfactory. Huebner met with Boynton, told her

that her performance was not improving, and said that

she had no real choice but to terminate Boynton.

Boynton never mentioned discrimination or retaliation

during this meeting.

Following Huebner's recommendation that Boynton be

terminated, Boggs provided Boynton with a pre-

termination notice listing the reasons for the proposed

termination and offered to meet with her to discuss

6a

them. During their meeting, Boynton did not raise any

claim of discrimination, nor did she suggest that she

thought her termination was in retaliation for her

complaints about Bussart. Boggs determined that good

cause existed for Boynton's termination, and he so

recommended. Boynton continued to work, while

Boggs' recommendation of termination was addressed

by the WWCC Board of Trustees, until she was

suspended with pay effective October 29, 2002.”

The Board hired an independent hearing officer, a

retired state district court judge, who conducted a

hearing, created a record, and provided advisory

findings of fact and conclusions of law to the Board.

Boynton was represented by counsel before the hearing

officer. The Board then reviewed all the materials

created by the officer and issued its final decision on

February 13, 2003, in which it upheld Boynton's

termination.

Boynton filed a second complaint with the EEOC,

alleging an incident involving Bussart and claiming that

her termination was in retaliation for her complaint

about sexual harassment. The EEOC again rejected

her claim and issued a right to sue letter. This action

was filed on the ninetieth day after the issuance of the

90-day right to sue letter.

Boynton initially included within this action claims for

discrimination and hostile work environment against

Boggs and Bussart, as well as WWCC. When WWCC

moved for summary judgment on all claims, Boynton

essentially conceded that summary judgment in favor

of Boggs and Bussart was proper, as well as summary

judgment for WWCC on the discrimination claims,

7a

leaving only her ¢laimi that WWCC terminated her in

retaliation for her September 2000 allegation of sexual

harassment.

The district court granted summary judgment to

WWCC on Boynton's remaining claim, concluding:

there is no evidence whatsoever to permit any

reasonable inference that there was any causal

connection between Boynton's complaints to President

Boggs in September of 200[0] and her termination,

which ultimately became effective in 2003. All of the

evidence suggests that Boynton's termination was for

unsatisfactory performance of her job duties. She had

been on three separate remediation plans and failed to

meet her supervisor's expectations for improved

performance. She had numerous opportunities to

improve; she did not do so. It is clear that WWCC

offered legitimate, nondiscriminatory justifications for

its decision to terminate Boynton'’s employment at

WWCC.

Order at 24-25, Appellant's App. at 149-50. The court

further concluded that Boynton "has not carried her

burden of proof that the defendant WWCC is entitled

to summary judgment as a matter of law on her claim of

retaliation in violation of Title VII." Id. at 152.

Boynton appeals, arguing the district court erred in

granting summary judgment to WWCC because

genuine issues of material fact exist regarding (1) the

causal connection between her protected activity and

her termination; and (2) whether WWCC's proffered

reasons for her termination were pretextual.

Sa

We apply the following familiar and well-established

standard of review:

We review the district court's grant of summary

judgment de novo, applying the same legal standard

used by the district court. Summary judgment is

appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." When

applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most

favorable to the nonmoving party.

Although the movant must show the absence of a

genuine issue of material fact, he or she need not negate

the nonmovant's claim. Once the movant carries this

burden, the nonmovant cannot rest upon his or her

pleadings, but must bring forward specific facts

showing a genuine issue for trial as to those dispositive

matters for which he or she carries the burden of proof.

The mere existence of a scintilla of evidence in support

of the nonmovant's position is insufficient to create a

dispute of fact that is "genuine"; an issue of material fact

is genuine only if the nonmovant presents facts such

that a reasonable jury could find in favor of the

nonmovant.

Garrison v. Gambro, Inc., 428 F.3d 933, 150 Fed. Appx.

819, 2005 U.S. App. LEXIS 21765, No. 04-1409, 2005

WL 2982279, at *1 (10th Cir. Nov. 8, 2005) (quoting

Fed. R. Civ. P. 56(c)) (further quotation omitted).

ie." “ 9a

To establish a prima facie case of retaliation under

Title VII, "a plaintiff must demonstrate that (1) she was

engaged in protected opposition to discrimination; (2)

she suffered an adverse employment action; and (3) a

causal connection existed between the protected

activity and the adverse employment action." Miller v.

Auto. Club of New Mexico, 420 F.3d 1098, 1119 (10th

Cir. 2005). Once the prima facie case is established, "the

burden shifts to the employer to offer a facially

legitimate rationale for the adverse action. The burden

then shifts back to the plaintiff to show the employer's

explanation is pretext." Jd. at 1120.

The district court concluded that Boynton failed to

establish a prima facie case because there was an

insufficient causal connection between her complaint of

discrimination and/or harassment and her termination

several years later. The court also determined that

Boynton failed to demonstrate that WWCC's reasons

for terminating her were pretextual. We agree, for

substantially the reasons set forth in the district court's

order granting summary judgment.

We accordingly AFFIRM the district court's order

granting summary judgment to WWCC on Boynton's

Title VII claim.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

10a

Footnotes

* 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.

nl An accurate recitation of the facts in this case, in

particular the dates when specific incidents occurred,

has been made more difficult than usual because

neither party accurately and completely described the

sequence of events.

n2 Boggs sent Boynton her termination letter on

August 1, 2002, which Boynton appealed on August 12,

2002. On October 24, 2002, Boynton was suspended

without pay by Huebner for twenty-four work hours

for insubordination, refusal to follow legal instructions,

and gross neglect of duty, in connection with an

incident in which Boynton refused to clean up mouse

droppings from Huebner's desk, despite Huebner's

specific directive to do so. On October 29, she was

suspended with pay, and relieved of her duties, because

she was overheard making what was believed to be a

threat against Huebner.

lla

Filed 12/3/04

No. 04-C V-016-1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

BRENDA BOYNTON,

Plaintiff,

we

WESTERN WYOMING COMMUNITY COLLEGE,

Defendant.

ORDER GRANTING DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT

The defendants' motion for summary judgment and

the plaintiff's response in opposition to the motion,

and the defendants' further reply have come before

the Court for consideration, having been submitted

to the Court on the parties' written submissions. The

Court, having reviewed the motion and response, the

materials submitted in support of the parties’

respective positions, the pleadings of record, the

applicable law, and being fully advised in the

premises, FINDS and ORDERS as follows:

1. Summary judgment shall be granted in favor of

defendants on all claims asserted against then,

consistent with the representations in the parties'

briefs and the representations to the Court at the final

pretrial conference, conceding that the sole surviving

claim in this litigation was plaintiff's claim that the 2003

termination was-in retaliation for her September 2001

complaint to President Boggs. On that basis, summary

12a

judgment will be granted in favor of defendants on all

claims asserted by plaintiff in her complaint, including

her retaliation claim against defendant western

Wyoming Community College, which will be addressed

in more detail in the following portions of this Order.

2. Summary judgment is appropriate if there is no

genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Allen v. Muskogee, Oklahoma, 119 F.3d

837, 839-840 (10th Cir. 1997). A disputed fact is material

if it might affect the outcome of the suit under

governing law. The dispute is genuine if the evidence

is such that a reasonable jury could return a verdict for

the nonmoving party. The factual record and

reasonable inferences therefrom are construed in the

light most favorable to the nonmovant. Id., quoting

Anderson v. Liberty Lobby, Ind., 477 U.S. 242, 248

(1986) and Gullickson v. Southwest Airlines Pilots'

Assoc., 87 F.3d 11761 1183 (10th Cir. 1996). The moving

party need not affirmatively negate the nonmovant's

claim in order to obtain summary judgment, but

instead bears the initial burden of showing -- that is,

point out to the district court -- that there is an absence

of evidence to support the nonmoving party's case. Id.,

quoting Celotex Corp. v. Catrett, 377 U.S. 317, 325.

3. Background: Plaintiff Brenda Boynton ("Boynton")

was hired by western Wyoming Community College

("WWCC ") as a full time Custodian II at the Rock

Springs campus on December 1, 1997. She was

promoted August 10, 1998 to the position of

Maintenance/ Custodian at the Green Rivér campus.

The new position at the Green River Center involved

additional duties, including building security, plowing

13a

and sanding entrance and parking areas, and

interacting with instructors and the public to set up

roams for functions. Plaintiff received an increase in

pay. After her reassignment, Boynton continued to be

supervised by the same supervisor, Gary Bussart, who

has now been dismissed from this action as a defendant.

Plaintiff was initially given a satisfactory evaluation in

her new position, with notations that she was learning

the position and improvement with time was expected

in certain areas, including productivity and

communications with others.

er. ~

Boynton became pregnant and was allowed to take

maternity leave. After the end of her leave, she

requested another week off as vacation to go hunting.

Bussart denied this request.

In September 2001, Boynton net with College

President Tex Boggs to assert sexual harassment

complaints that she wanted to bring up before she

returned to work. Her complaint related incidents

that had occurred throe years earlier in 1998 while

she was working as an employee on the Rock

Springs campus. She complained Bussart had

entered restrooms on two occasions, describing

those two incidents to President Boggs. She also

asserted Bussart had made negative comments

about women working, that he had repeatedly

asked her regarding the baby's due date, and that

while she was on leave he had telephoned her at

home. She also complained that he also watched her

while she was performing cleaning tasks a couple of

times, but did not allege he had made any sexually

suggestive comments or touched her.

14a

President Boggs requested the Dean of

Administration, Marty Kelsey, to join him and

Boynton to discuss Boynton's concerns. Kelsey was

instructed to investigate; he had a subsequent

meeting with Boynton to gather information

regarding the particulars of her complaint; he

interviewed anyone who might possibly have

knowledge of Boynton's allegations. Bussart denied

Boynton's allegations when asked about them by

Kelsey, indicating that he had telephoned her at

home to inform Boynton locks had been changed

and she would need to get nevus keys in order to

gain entrance of the building when she returned.

Bussart denied the remainder of Boynton's

allegations.

Boynton stated she had complained about Bussart to

Rich Matthews, Bussart's supervisor. To Kelsey,

Matthews denied that she had ever talked to hire about

Bussart and denied the conversation Boynton said she

had had with Matthews. Kelsey also talked to another

employee Boynton had _ referenced as_ having

information, John Montz, but Montz had no information

as to what Boynton might have been talking about.

Kelsey also interviewed the director of the Green River

Center, Mary Ann Huebner, regarding whether there

had been any kind of complaint regarding incidents in

bathrooms or otherwise, without revealing the

existence of Boynton's complaint to President Boggs.

Huebner had never seen or heard about anything

inappropriate regarding Center.

Kelsey wrote to Boynton regarding the results of his

investigation and indicated the matter could not be

taken any further unless she would provide additional

15a

information. Boynton never contactéd*Kelsey with any

further information and she did not use any of WWCC

's procedures to pursue complaints of discrimination,

retaliation, or any other concern.

Because the stories of Boynton and Bussart were in

conflict, the college determined that no further action

could be taken without further information. After

Boynton's complaint to President Boggs regarding her

concerns about Bussart, WWCC determined that her

supervisor should be changed and Mary Ann Huebner,

the director of the Green River Center, became

Boynton's immediate supervisor. Over a period of time

in her employment with WWCC and under Huebner's

direct supervision, Boynton was subject to several

remediation plans designed to address - perceived

deficiencies in her work. After a period of time and a

fourth unsatisfactory evaluation, on May 28, 2002

Huebner recommended that plaintiff be terminated.'

On this occasion, following Huebner"s recommendation

that Boynton be terminated, President Boggs provided

Boynton with a pre-termination notice listing the

reasons for the proposed termination and offered to

meet with Boynton to allow her to respond. She

accepted that offer. During that meeting, Boynton did

not raise any issues or complaints of discrimination or

retaliation. Based upon the information and

documentation that had been provided to him, upon

appropriate review, Boggs determined good cause

existed for termination and made a recommendation of

termination Boynton appealed President Boggs'

determination pursuant to existing college policy.

While the termination was pending, an_ incident

l6a

occurred where Boynton was instructed by Huebner to

clean mouse droppings off Huebner's desk. Boynton did

not do so and insisted that Huebner remove everything

from her desk before she would clean it, although

Huebner specifically instructed her and gave her

permission to clean the desk. Huebner suspended

Boynton without pay for a period of 24 hours (three 8-

hour shifts) for insubordination.

Another incident occurred thereafter in which Huebner

was informed that Boynton had made a comment to

another employee that "bullets will fly," presumably in

reference to Boynton's ongoing dispute with college

administration. Boynton denied she said this and

instead says that she said “words will fly." Huebner

considered the comment a threat and notified the

police. Boynton was suspended with pay effective

October 29, 2002, pending the outcome of her hearing.

She was suspended with pay and benefits from October

29, 2002 until Findings of Fact and Conclusions of Law

were entered on February 13, 2003 in which the final

decision to terminate Boynton's employment was made

by the Board.

Boynton filed complaints regarding discrimination and

retaliation allegations with the Wyoming Department

of Employment and the EEOC, with the first filed June

25, 2002. All of her allegations related to issues

pertaining evaluations. WWCC disputed Boynton's

claims and responded. After investigating, October 10,

2002, the Wyoming Department of Employment

dismissed the claim, concluding there was no reason to

conclude the college had engaged in discriminatory or

retaliatory acts detrimental to Boynton. The EEOC

adopted the State of Wyoming's findings as its own

17a

and issued a 90-day right to sue letter. Boynton did

not file suit, and explained at her deposition she had

intended the process to be some sort of a warning to the

college. It is undisputed she received the right to sue

letter and did not sue within the required time.

Boynton received a full due process hearing on

whether good cause existed for termination and

whether the decision to terminate her employment

with WWCC was grounded in sex discrimination or

retaliation An independent hearing officer was

appointed to conduct the hearing and make

recommended findings of fact and conclusions of law.

The hearing, where Boynton was represented by

counsel, took two days and was reported Both sides

submitted proposed Findings of Fact and Conclusions

of Law. After the hearing, the Board received the

transcript and exhibits, the recommendations of the

independent hearing officer and the proposed findings

and conclusions of the parties. It also had separate legal

counsel to assist them. The Board eventually entered

Findings of Fact and Conclusions of Law upholding the

termination. Boyntan did not appeal or seek judicial

review of the administrative decision.

After Boyntan was terminated, she filed another

EEOC claim alleging an incident regarding Bussart

and that her termination was in retaliation for her

complaint about alleged sexual harassment. The EEOC

rejected the claim and issued a right to sue letter. This

action was filed on the ninetieth day from issuance of

the right to sue.

As noted earlier, the only remaining claim being

asserted by plaintiff in this litigation is her retaliation

18a

claim, which will now be discussed.

4. Under applicable federal law, there are three

elements for a retaliation claim:

"(1) [the plaintiff] engaged in protected opposition to

discrimination; (2) [the plaintiff] suffered an adverse

employment action; and (8) there is a causal connection

between the protected activity and the adverse

employment action." O'Neal v. Ferguson Constr. Co.,

237 F.3d 1248, 1252 (10th Cir. 2001).

Peterson v. Utah Dept. of Corrections, 301 F. 3d

1182, 1188 (10th Cir. 2002).

5. The Court finds that plaintiff has not established a

viable retaliation claim. The Court will assume, only for

purposes of this Order, that Boynton has satisfied the

first two prongs: that she engaged in protected

opposition to discrimination and that she suffered an

adverse employment action. In September 2001, she did

bring her complaints to President Boggs regarding

Bussart and the alleged sexual harassment. She was

also terminated from her employment at WWCC.

However, she fails entirely to satisfy the third prong

and has not carried the burden of proving a causal

connection between the protected activity and the

adverse employment action.

As noted by the Tenth Circuit, it is crucial that

Boynton's supervisor knew of her engagement in

protected opposition. Id. at 1188.

An employer's action against an employee cannot be

because of that employee's protected opposition unless

19a

the employer knows the employee has engaged in

protected opposition. See .Williams v. Rice, 983 F.2d

177, 181 (10th Cir. 1993) ("plaintiff must show that the

individual who took adverse action against him knew

of the employee's protected activity"); Gallagher v.

Kleinwort Benson Gov't Sec., Inc., 698 F. Supp. 1401,

1405-07 (N.D. Ill. 1988) (complaint of unequal pay did

not suggest gender discrimination). As a result,

retaliation against Petersen would be prohibited by §

2000e-3(a) only if the superior retaliating against her

knew that her opposition to Tansy's treatment of

Mooney was motivated by a belief that he was engaging

in racial or religious discrimination.

We believe that this result is compelled not only by

the natural reading of the statutory language, but also

by the purpose of the provision. The purpose of § 2000e-

3(a) is to let employees feel free to express

condemnation of discrimination that violates Title VII.

That purpose is hardly served by imposing sanctions

upon employers who take action against employees who

never communicate their concern about unlawful

discrimination.

We can now readily dispose of Petersen's Title VII

retaliation claim. To overcome the UDOC motion for

summary judgment, Petersen needed to produce

evidence that both (1) the UDOC took adverse

employment action against her and (2) the motive

for the adverse action was her opposition to Tansy's

racial or religious discrimination against Mooney. She

failed to meet her burden.

To begin with motive, Petersen testified that on March

7, 1997, Tansy called her a liar, announced that her

20a

"days are numbered," and threatened to take her "out of

the information loop" At that time, however, Petersen

had not communicated to anyone her belief that Tansy

had discriminated against Mooney on racial or religious

grounds. Tansy was expressing his anger at Petersen

for complaining of his treatment of Mooney, but her

complaint was not, as far as he knew, protected action

under Title VII. Thus, his retaliation would not violate

§ 2000e-3(a).

To establish a Title VII retaliation claim, Petersen

would need to prove that when Tansy allegedly

followed through on his threats against Petersen, he

not only had this lawful retaliatory motive but was

additionally motivated by his learning later that

Peterson had complained of his discrimination against

Mooney on religious or racial grounds. See Hawkins v.

PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000) (plaintiff

produced no evidence to show that disparate

treatment by supervisor was due to race rather

than supervisor's "admittedly low regard" for plaintiff's

job performance). But Petersen presented the district

court with absolutely no evidence of such an

additional motive. Nor is there evidence that any of

Petersen's other superiors had an_ unlawful

retaliatory motive. On the contrary, Petersen's

testimony indicates that each time she asserted that

Tansy had engaged in racial or religious discrimination,

her superiors received the charge sympathetically.

Petersen's failure to provide evidence of an improper

motive for alleged retaliation would in itself require

judgment against her.

Peterson v. Utah Department of Corrections, 301 F. 3d

at 1188-1189. There is no evidence whatsoever that

.

ash * Zila

Huebner, the decision maker recommending Boynton's

termination, knew of Boynton's September 2001

complaints to President Boggs

6. The Seventh Circuit has expressed an analysis

similar to that employed in the Tenth Circuit:

An employer may not retaliate against an employee

who has complained about discrimination or other

practices that violate Title VII. 42 U.S.C. § 2000e- (a);

Sitar v. Ind. Dept of Transp., 344 F.3d 720, 727 (7th Cir.

2000). Luckie argues that Ameritech retaliated

against her by placing her on a PIP [performance

improvement plan] and later terminating her

employment because she contacted the EEO hotline to

complain about Patterson and hired an attorney who

sent letters to Ameritech alleging racial discrimination.

A plaintiff has two distinct ways of establishing a prima

facie case for unlawful retaliation: the direct method

and the indirect method. Stone v. City of Indianapolis

Public Util. Div., 281 F. 3d 640, 644 (7th Cir. 2002). In

order to survive summary judgment under the direct

method, Luckie must present direct evidence that: (1)

she engaged in statutorily protected activity; (2)

she suffered an adverse employment action; and (3)

there is a causal connection between the two. Haywood

v. Lucent Tech. Inc., 323 F. 3d 524, 531 (7'" Cir. 2000).

Alternatively, under the indirect method, Luckie must

establish that: (1) she engaged in statutorily protected

activity; (2) she was performing her job according to

Ameritech's legitimate expectations; (3) despite her

satisfactory performance, she suffered an adverse

employment action; and (4) she was treated less

favorably than similarly situated employees who did

22a

not engage in statutorily protected activity. Williams,

361 F.3d at 1031; Stone, 281 F.3d at 644.

Luckie contends that Patterson placed her on a PIP and

later fired her in retaliation for her complaints to the

EEO office and for hiring an attorney who sent

letters to Ameritech which complained of

harassment by Patterson. Luckie's claim fails under the

direct method because she cannot prove a causal

connection between her complaints and_ her

termination. The key inquiry in determining whether

there is a causal connection under the direct method is

whether Patterson was aware of the allegations

of discrimination at the time of her decisions to place

Luckie on a PIP and terminate her employment;

absent such knowledge, there can be no causal link

between the two. Maarouf v. Walker Mfg. Co., 210 F.3d

750, 755 (7th Cir. 2000). It is not sufficient that

Patterson could or even should have known about

Luckie's complaints; she must have had actual

knowledge of the complaints for her decisions to be

retaliatory Potter, 310 F. 3d 979, 982-83 (7th 2002),

Miller, 203 F.3d at 1008 ("an employer cannot retaliate

when it is unaware of any complaints"). At minimum,

therefore, Luckie must offer evidence that would

support a reasonable inference that Patterson was

aware of Luckie's allegations of discrimination. Dey v.

Colt Const. Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994).

Even in the light most favorable to her, there is simply

no evidence in the record that would support such an

inference. Mamie Clay has testified that she did not

discuss Luckie's allegations with Patterson; in fact,

she states that the two have not met or even spoken.

Patterson asserts that she didn't know about Luckie's

complaints at the time she made the decision to

os

23a

terminate her employment. Furthermore, it is the

stated policy of Ameritech's EEO department to

protect the confidentiality of any employee who

complains about discrimination. There is nothing in the

record that refutes either Clay or Patterson's

statements, nor explains why Clay would deviate from

the confidentiality policy of the EEO department.

Similarly, there is no evidence that Patterson knew

about the letters sent in September from Luckie's

attorney. The sole evidence on which Luckie relies is

that Deborah Ingram of Ameritech's EEO department

asked Patterson for information about the credit card

balance history of her employees. Notably, the credit

card inquiry was regarding all of Patterson's

employees, not just Luckie. A such, Patterson would

have no reason to know that Ingram's request for

information was in response to a claim of discrimination

by Luckie, as opposed to any of her other employees.

Lacking a causal connection, Luckie's claim fails under

the direct method.

Proceeding to the indirect method, the district court

correctly found that Luckie failed to establish a prima

facie case because she was not performing her job

according to Ameritech's legitimate expectations at the

time she was fired The record unambiguously reflects

that Luckie had performance problems before she

was placed on a PIP, and that these performance

deficiencies were noted by ether managers besides

Patterson. Ameritech has further shown that Luckie

failed to correct these problems while on the PIP.

Luckie continued to miss deadlines, the quality of her

work product was unacceptable, and she was often

inaccessible during work hours. Luckie's only response

is that she had received positive performance

24a

evaluations in the past. However, the fact that Luckie

may have met expectations in the past is irrelevant; she

must show that she was meeting expectations at

the time of her termination. Peters v. Renaissance

Hotel Operating Co., 307 F. 3d 535, 545 (7th Cir. 2002).

By failing to establish this element of the prima facie

ease, Luckie's claim cannot withstand summary

judgment under the indirect analysis.

Luckie v. Ameritech Corp., 2004 WL 2633287, *4-*5

(7th Cir. 2004).

7. In this case, there is no evidence whatsoever to

permit any reasonable inference that there was any

causal connection between Boynton's complaints to

President Boggs in September of 2001 and her

termination, which ultimately became effective in 2003.

All of the evidence suggests that Boynton's termination

was for unsatisfactory performance of her job duties.

She had been on three separate remediation plans

and failed to meet her supervisor's expectations for

improved performance. She had numerous

opportunities to improve; she did not do so. It is clear

that WWCC offered legitimate, nondiscriminatory

justifications fer its decision to terminate Boynton's

employment at WWCC.

Where the employer has provided a legitimate, non-

discriminatory justification for an employment action,

the burden shifts back to the employee to provide

evidence shoving that the employer's proffered reason

is a pretext for discrimination. Stover v. Martinet, 382

F.3d 1064, 1071. "An employee may demonstrate

pretext by shoving the employer's proffered reason was

so inconsistent, implausible, incoherent, or

25a sae

contradictory that it is unworthy of belief." Stover v.

Martinet, 382 F. 3d at 1071, citing Bausman v.

Interstate Brands Corp., 252 F.3d 1111, 1120 (10th Cir.

2001). Temporal proximity between protected activity

and the adverse action may, in certain instances,

support an inference of causation However, in this case,

the three year period between Boynton's complaints to

President Boggs regarding Bussart's alleged sexual

harassment and her termination, which had been

recommended by her immediate supervisor, Huebner,

and acted upon by the Board after a full hearing, is

unquestionably insufficient to support any inference of

causation. Thus, Boynton must provide other evidence

of retaliatory motive if her claim is to survive summary

judgment.

Boynton has provided no evidence whatsoever as

to retaliatory motive other than her own speculation

and belief to support her claim of retaliation. Her own

subjective opinions are not sufficient. Stover v.

Martinez, 382 F.3d at 1072. As in Petersen v. Utah

Department of Corrections, 301 F.3d 1182, 1191 (10th

Cir. 2002), this record in this case is "replete with

general claims of retaliation but no specifics." Boynton

offers no evidence that she was in fact complying with

the employer's expectations of improved job

performance pursuant to the numerous remediation

plans. In fact, as her own deposition testimony

demonstrates, Boynton appears to have had substantial

disdain for the authority of her supervisor and

demonstrated a non-compliant, defiant attitude

unquestionably detrimental to her future employment

prospects at WWCC.’ It is no wonder she received poor

evaluations and was eventually terminated.

26a

8. After reviewing the parties' submissions and the

applicable law, the Court finds that the plaintiff has

not carried her burden of proof and that the defendant

WWCC is entitled to summary judgment as a matter

of law on her claim of retaliation in violation of Title

VIL.

Accordingly, it is therefore

ORDERED that the defendants' motion for summary

judgment on all claims, including specifically plaintiff's

claim of retaliation in violation of Title VII, shall be,

and is, GRANTED. To the extent not specifically

addressed herein, all other pending motions are

DENIED AS MOOT.

Judgment shall be entered accordingly.

Dated this 3d day of December 2004.

UNITED STATES DISTRICT JUDGE

Footnotes

fnl1Prior to this period, Bussart had recommended that

plaintiff be terminated. This recommendation was

rejected by President Boggs, who determined that

Boynton had not been given sufficient information

about her expected level of performance. Boggs

determined that Boynton should be given additional

time to do a better job and her employment with the

college continued under a remediation plan designed to

address the specific deficiencies in her work

performance. It was in conjunction with this decision to

reject the termination recommendation that Boggs

27a

determined that, as part of a reorganization of duties in

the Green River Center, Huebner, the site director,

would assume direct supervision of the custodial and

maintenance employees and would thus become

Boynton's immediate supervisor. Bussart was removed

from any supervisory authority over the Green River

Center as of September 2001.

fn2 By way of example only, Boynton was advised to

keep a log of her daily activities by her supervisor as

part of her remediation plan. In her deposition, she

admits that she kept the log on paper napkins, paper

towels, or toilet paper and could not be bothered to

find an alternative means of recording her activities

and she "was not going to provide a notebook for

them." Deposition at 157. This is in stark contrast to

her deposition testimony indicating that she kept a

notebook regarding her complaints, incidents and

disputes with individuals at the college. In the log, for

example, plaintiff notes that she is on a "pee break,"

recorded that between 9:09 and 9:14 she "readjusted

bra strap (rt)" and between 6:12 and 6:16 pm January

16, "good healthy crap."

28a

No. 04-8126

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRENDA BOYNTON,

Plaintiff-Appellant,

V.

WESTERN WYOMING COMMUNITY COLLEGE,

Defendant-Appellee. |

1/6/06 Filed

JUDGES: Before TACHA, Chief Circuit Judge,

ANDERSON and KELLY, Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to

al! of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.