Davis v. Unified School District 500
750 F.3d 1168
10th Cir.
2014
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Charles DAVIS, Plaintiff-Appellant, v. UNIFIED SCHOOL DISTRICT 500; Stephen Vaughn, Defendants-Appellees.

No. 13-3224

United States Court of Appeals, Tenth Circuit

May 5, 2014

Nonetheless, the majority concludes that they are not narrowly tailored for two reasons: timing and recusal. The timing argument is that the rules are underinclusive because “they only address speech that occurs beginning the day after a non judge candidate has filed his intention to run for judicial office.” The recusal argument is that the rules are more restrictive than recusal, i.e., requiring judges who have campaigned for others to recuse themselves when those others show up as litigants. I dissent because I do not find these reasons persuasive.

The majority‘s timing argument is clever but impractical. Its breadth alone suggests this. The argument would cut down any restriction (a) that is subject to strict scrutiny and (b) that starts to apply to people only after some triggering event. If the restriction‘s enactment counts as a triggering event, and I don‘t see why it wouldn‘t, then strict scrutiny would always be fatal. That cannot be the law.

Moreover, the argument doesn‘t actually answer the question, which is whether there are less restrictive ways to preserve judicial impartiality and its appearance. Having no rules is, of course, less restrictive. But it isn‘t an alternative means of furthering the interest at stake here. Any actual alternative will suffer from the timing problem the majority identifies. So the timing argument tells us nothing about which alternative is the least restrictive; it only identifies a problem that all conceivable alternatives share.

The majority‘s recusal argument, like the timing argument, is too impractical in my view. In Arizona, only very small counties elect judges. And some small counties may well have only one superior court judge. If that one judge campaigns for someone who is then elected sheriff or district attorney, an outside judge would be necessary in every criminal case and in all civil cases involving the county where the district attorney is its lawyer. Constant recusal is no solution.

That‘s what the Eighth Circuit held in , after it considered this obvious problem. . The majority, on the other hand, recognizes the problem, but then sidesteps it, claiming that the state failed to raise it and that dealing with it would require us to speculate. I disagree. There‘s no need to speculate about something so self-evident. And it‘s hard to fault the state for failing to dwell on the obvious.

In sum, I don‘t buy the timing or recusal arguments. And without them, there‘s nothing that prevents us from declaring that these three rules are the least restrictive means at Arizona‘s disposal for furthering their compelling interest in maintaining judicial impartiality and its appearance. Simply affixing the label of strict scrutiny and then declaring that unspecified less restrictive means are required gives no guidance as to what rules pass constitutional muster. And it encourages an elective free-for-all that undermines respect for the third branch of government. Because my colleagues disagree, I respectfully dissent.

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, KS, for Plaintiff-Appellant.

Deryl W. Wynn, Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendants-Appellees.

Before BRISCOE, Chief Judge, PORFILIO and O‘BRIEN, Circuit Judges.

O‘BRIEN, Circuit Judge.

Charles Davis has been employed as a custodian with Unified School District No. 500 (“USD 500“) since 1991. In 2007, the school board considered a recommendation to terminate his employment when he was found lying naked on his stomach, sunbathing on the roof of the elementary school where he worked. Instead, the Board decided upon a suspension without pay for thirty days and demoted him from his position as head custodian. From 2008 to 2012, Davis applied for head custodian positions at seven different schools within USD 500, but was not hired for any of them. In 2008, 2010, and 2011, he filed claims with the Equal Employment Opportunity Commission (“EEOC“), originally alleging racial discrimination and later both discrimination and retaliation for filing EEOC claims. In January 2012, Davis filed suit against USD 500 and Stephen Vaughn, the Director of Human Resources for the district, claiming: (1) retaliation by Vaughn in violation of 42 U.S.C. § 1981; (2) retaliation by USD 500 in violation of Title VII and § 1981; (3) delayed payment of overtime compensation by USD 500 in violation of the Fair Labor Standards Act (“FLSA“).

The district court entered summary judgment in favor of USD 500 and Vaughn. This appeal followed.1 In a nutshell the key issue is whether a common purpose to retaliate against Davis must be inferred from the sheer volume of his promotion denials; we think not when seven independent and informed decision makers are involved. We affirm.2

I. Discussion

Our review is de novo. . “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‘” (quoting Fed.R.Civ.P. 56(a)). The parties are familiar with the background facts. Our analysis will discuss them as necessary.

“A plaintiff may prove violation of Title VII or 42 U.S.C. § 1981—the standards are the same—either by direct evidence of discrimination, or by adhering to the burden-shifting framework of [.]” (citations omitted). Davis has offered no direct evidence of discrimination so his claims proceed under the framework, which requires him to first establish a prima facie case of retaliation, see . To do so he must prove: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action. See The Supreme Court has recently clarified the causation standard for Title VII retaliation claims, explaining: “[A] plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” .

Because Davis failed to establish a prima facie case, he lost the summary judgment debate. He disagrees with the district judge.

A. Retaliation Claim against Vaughn

Each school building within USD 500 has a head custodian. When there is a vacancy for a head custodian position, the Buildings and Grounds Department, led by Joseph Herbin, prepares a request for the Human Resources (“HR“) Department to fill the position. The HR Department then internally posts the head custodian job vacancy for a two-week period. During this time, any current custodian may apply to fill the open position. The HR Department receives all of the internal job applications, reviews them, and forwards the names of qualified applicants to the hiring managers. For head custodian positions, the hiring managers are Herbin and the school principal at the building with the vacancy. The principal, sometimes with Herbin‘s assistance, conducts interviews. In practice the principal selects one of the applicants to fill the vacant position; Herbin‘s role in the actual selection is minimal to non-existent. The HR Department and Vaughn do not make promotion decisions.

In response to summary judgment, Davis alleged Vaughn failed to submit his application for posted head custodian openings at two schools (Wellborn and Silver City). As evidence he claims not to have received an email notice (the whole process is electronic) indicating his name had been “referred for consideration” for those positions. He also claims Vaughn failed to investigate the qualifications of the successful applicants.

Davis’ EEOC complaints constituted protected opposition to alleged discrimination. On that, the parties agree. They disagree as to whether Vaughn took any adverse employment actions against Davis.

According to Davis, Vaughn‘s failure to include his name for consideration by the hiring authority at those two schools was an adverse employment action. In his deposition, Vaughn testified it was his belief he submitted Davis‘s name to the building administrators in charge of hiring for all of the head custodian positions for which Davis applied, making the legal premise (even if correct) a moot point. With regard to the Wellborn School position, Vaughn introduced evidence in his summary judgment motion of a computer printout showing Davis’ name to have been submitted for that position.

As for the Silver City School position, Vaughn testified to having searched the HR records in an attempt to confirm which applicants were included on the qualified candidates list, but was unable to locate any records with that information. Davis did, however, receive a notice indicating he had been “Screened IN” for the position. Aplt. App. at 168. Vaughn explained in his affidavit:

[T]he fact that [the notice] has the notation “screened in” ... does not mean that Plaintiff was not included in the list of qualified applicants provided by the [HR] Department to the school and the Buildings and Grounds Department. Initially, “screened in” was the status that the [HR] Department used for applicants that it was referring to the individual schools as qualified for the vacant positions. At some later date, the [HR] Department began to add the more descriptive phrase of “referred for consideration.”

Aplee. Supp. App. at 192.

Based on undisputed evidence the district judge concluded Davis’ name was submitted for the Wellborn position. With respect to the Silver City position, the judge concluded:

Vaughn explained in an affidavit that, although he could not find any records

showing which applications were submitted to Silver City Elementary School, the “referred for consideration” designation was something the [HR] Department added more recently. Therefore, Davis‘s application may have been passed along for that head custodian position. Given the lack of evidence that Vaughn excluded Davis‘s application for the vacant head custodian position at Silver City Elementary School—let alone that a retaliatory animus motivated such exclusion—no reasonable jury could find by a preponderance of the evidence that Vaughn took adverse employment action against Davis.

Aplt. App. at 233-34.

We see no error in the judge‘s analysis.

The judge also concluded Vaughn‘s alleged failure to investigate the qualifications of the other custodial applicants did not fall within the definition of an adverse employment action. He was correct in that assessment because the HR department was only responsible to insure all applicants referred for consideration were minimally qualified. It, and Vaughn, had no role in ranking the applicants. Even if an unqualified applicant somehow slipped through the cracks we fail to see how that would be an adverse employment action against Davis. Summary judgment was appropriate.

B. Retaliation Claim against USD 500

The district judge analyzed the circumstantial evidence Davis submitted to support his retaliatory motive contention with respect to USD 500‘s failure to promote him. The judge ultimately concluded Davis failed to present sufficient evidence of a causal connection between his protected activities and unsuccessful attempts to be promoted. That connection is a necessary part of a prima facie case.

We note the absence of any discussion by the district judge about the number of unsuccessful promotion attempts by Davis (seven different schools over a period of four years). Davis, on the other hand, makes much of it and wants to draw an inference of common purpose. He seems to think the number of times he was passed over is alone sufficient to establish a prima facie case. He is wrong. The sheer number of failed attempts might be significant in a different context or if more completely developed, but in this case it is little more than rank speculation.

Davis must make a prima facie case of but-for causation with respect to each discrete incident of being passed over for a promotion.3 In the alternative, he would need to show a conspiracy among the disparate actors amounting to a common retaliatory motive. He has done neither. The principals of each of those schools independently investigated the applicants and made the hiring decisions. There is no evidence of concerted activity among them or with the HR department. In fact, there is no evidence of any principal‘s knowledge of Davis’ protected activity and

we see no reason to impute the HR Department‘s knowledge to any of them. Cf. (explaining any improper motive on part of supervisor, who was not the final decision-maker, could not be imputed to UPS when its independent grievance panel concluded there was an adequate reason to terminate plaintiff and there was no evidence the grievance panel shared supervisor‘s alleged retaliatory motive).

Because Davis failed to establish a causal connection between his protected activity and each school‘s independent decision not to hire him, the district court properly granted summary judgment in favor of USD 500.

II. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

Pamela MILLER; Randy Howard; Donna Patterson; on behalf of themselves and all others similarly situated, Plaintiffs Intervenors-Defendants-Appellees, v. BASIC RESEARCH, LLC; Dynakor Pharmacal, LLC; Dennis Gay; Daniel B. Mowrey, Ph.D.; Mitchell K. Friedlander, Defendants-Appellants. and Does 1 through 50, Defendants. No. 13-4048. United States Court of Appeals, Tenth Circuit. May 6, 2014.

Notes

1
On appeal, Davis does not challenge the district court‘s ruling on his FLSA overtime claim. Accordingly, he has waived any challenge to that ruling. See (“The failure to raise an issue in an opening brief waives that issue.” (brackets and internal quotation marks omitted)).
2
Our jurisdiction derives from 28 U.S.C. § 1291.
3
We are, of course, aware of our decision in , where we treated a committee of shifting and overlapping members as a single entity for purposes of the common supervisor rule. But this case does not even come close. Davis implies, without evidence, that Herbin, the Coordinator of Buildings and Grounds, was the common, connecting thread. Although Herbin testified he sat in on the interviews for the head custodian positions, his role was to answer technical questions about the job duties. He testified to never having been the decision maker or attempting to influence the interview process; he left it entirely to the principals to choose whom among the qualified candidates to interview and hire. His testimony was not effectively impeached, even for summary judgment purposes. There is no common supervisor or “cat‘s paw” issue here.
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