597 F. App'x 983
10th Cir.2015Background
- Judy A. Davis, a 24-year Air Force secretary at Tinker AFB, was investigated after multiple non-work-related phone calls from her work extension and alleged threatening comments toward supervisors following a family dispute.
- Prior to these events, Davis had satisfactory performance and awards; she had earlier filed a 2006 EEO complaint against her supervisor, Dougherty.
- An agency review found (1) inappropriate comments about supervisors, (2) improper use of a government phone to call a third party, and (3) ~840 non-work-related calls; she was placed in non-duty pay status and ultimately removed in December 2008.
- Davis appealed to the MSPB (unsuccessful), then sued pro se in district court asserting multiple claims; the district court dismissed all but her Title VII claims.
- In discovery Davis identified six discrete discriminatory acts and one retaliatory act; in her summary-judgment response she argued instead that her termination was retaliation for investigating timecard fraud. The district court refused to consider claims inconsistent with her discovery responses and granted summary judgment for the Air Force.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Davis preserved and proved Title VII discrimination | Davis argued she suffered discrimination after investigating timecard fraud and earlier identified acts | Air Force argued Davis limited her claims in discovery to six discrete acts and offered no evidence tying them to a protected characteristic | District court (and 10th Cir.): Davis waived arguments not asserted in discovery; no cognizable discrimination evidence was preserved |
| Whether Davis established Title VII retaliation | Davis claimed termination was retaliation for her 2006 EEO complaint and for investigating timecard fraud | Air Force argued the 2006 EEO complaint did not allege conduct protected by Title VII and Davis lacks a reasonable good-faith belief that she opposed Title VII violations | Court: Davis failed to show she engaged in protected activity under §2000e-3(a); summary judgment for Air Force affirmed |
| Whether the district court erred by not considering new allegations in her summary-judgment response | Davis contended the court should consider her retaliation theory based on the fraud investigation | Air Force maintained claims were limited by discovery disclosures and later allegations were untimely/inconsistent | Court: refused to consider new theory; affirmed exclusion as proper and not challenged on appeal |
| Whether the denial of motion to alter/amend was reviewable | Davis listed denial in issues on appeal | Air Force noted lack of briefing/record support | Court: Davis waived appellate review by failing to brief or support the issue |
Key Cases Cited
- Conroy v. Vilsack, 707 F.3d 1163 (10th Cir. 2013) (direct evidence vs. McDonnell Douglas framework)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (prima facie burden-shifting framework)
- Antonio v. Sygma Network, Inc., 458 F.3d 1177 (10th Cir. 2006) (burden-shifting in retaliation/discrimination cases)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013) (scope of Title VII retaliation protection)
- Petersen v. Utah Dep’t of Corr., 301 F.3d 1182 (10th Cir. 2002) (retaliation protection limited to opposition to practices unlawful under Title VII)
- Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004) (reasonable good-faith belief standard for protected activity)
- Burnette v. Dresser Indus., Inc., 849 F.2d 1277 (10th Cir. 1988) (appellate review generally limited to issues ruled on below)
- Stump v. Gates, 211 F.3d 527 (10th Cir. 2000) (issues raised first in reply brief ordinarily not considered on appeal)