*1 GREEN, Plaintiff-Appellant, Peggy MEXICO, Department of NEW
State Sosaya, Supervi
Labor Susan Unit, Examiner II/III
sor/VI capacity, Defendants-Ap
individual
pellees.
No. 04-2160. Appeals,
United States Court of
Tenth Circuit.
Aug.
1190 Law, Inc., Montoya Montoya,
Dennis W. Rancho, NM, appearing Rio for Plaintiff- Appellant. (Marcia
Gregory Biehler E. Lubar on brief), Biehler, Association, An Beall & NM, Albuquerque, appearing for Defen- dants-Appellees. TACHA, Judge,
Before Chief Circuit EBEL, McCONNELL, Circuit Judges.
TACHA, Judge. Chief Circuit Plaintiff-Appellant Peggy Green sued employer, Defendant-Appellee her former Department State of Mexico Labor New (“DOL”), supervisor, and her former Su- discriminatory dis- Sosaya, alleging san charge on in violation of the basis sex (1) Rights Act of Title VII of the Civil amended, § 2000e et written for the following as U.S.C. (2) (1) Rights Mexico Human seq.; the New allowing Griego duct: Mr. to return to (“NMHRA”), § N.M. Ann. 28-1- Act Stat. her office after Ms. Neel instructed her (3) § seq.; 1983. The et U.S.C. to;2 desk, keeping work *3 summary judgment for Defendants moved contravention of policy keep DOL’s files claims, responded,1 and on all Ms. Green (3) employees; accessible to all bringing replied. the Defendants After the District questions and concerns with assignments grant Court refused to Ms. Green leave to coworkers, Sosaya, rather than to Ms. surreply, granted file a written the De- becoming argumentative and and defensive fendants’ motion on the basis that Ms. when instructed that proper this was not genuine had failed to establish a Green procedure; improperly filling out fact on issue of material whether forms. The instructed Ms. for proffered reasons improvement Green immediate “[a]n timely pretextual. ap- Ms. Green your expected you behavior is or will be peals ruling, this as well as the District subject during your to dismissal probation- regarding surreply. Court’s decision ary period.” jurisdiction take under 28 U.S.C. We Nevertheless, Ms. Green continued to § 1291 and AFFIRM. problems Contrary
have at work. to the I. BACKGROUND explicit reprimand, instruction in her Ms. discussing Green did not refrain from proba- The DOL hired Ms. Green as a assignments cerns she had with her 22, tionary employee on October 2001. employees than Sosaya. Specif- other Ms. probationary Her status was to last one 2002, 2002, year. August ically, Until Ms. Green’s im- in October Ms. Green dis- supervisor Maggie mediate was Neel. Un- cussed a concern she specific had with a supervision, der Ms. Neel’s Ms. was Green assignment Martinez, with Jackie another formally disciplined, although never she addition, supervisor at the DOL. In also verbally was reprimanded allowing her 2002, October complete Ms. Green failed to boyfriend employee, and fellow DOL Dan- a assigned by Sosaya. task to her Ms. Griego, iel visit her her office. Ms. Sosaya why assign- Ms. asked When Griego Neel advised Ms. Green that Mr. finished, ment had not been was not to return to her office because his simply claimed not to anything remember presence disruptive. was day, Sosaya about it. That Ms. recom- dismissal, mended Ms. 2002, citing Green August Sosaya Susan be these two came incidents. Ms. Green was termi- supervisor. August Ms. Green’s On 2002, 11, Ms. Ms. a issued Green nated on October 2002. not, however, Inc., Servs., respond Transp. 1. Ms. Green did to the 220 F.3d claim, regarding (10th Cir.2000); Co., Inc., motion the NMHRA so the EEOC v. Flasher District Court deemed that Ms. Green ac- (10th Cir.1992) 986 F.2d 1322 n. 12 quiesced in its dismissal. See D.N.M.L.R.- (''[A] legitimate a mistaken belief can be rea- 7.1(b). appeal Civ. Ms. Green does not son for an decision and is not ruling. find, however, necessarily pretextual."). We dispute that this is not material in this case disputes Griego Green that Mr. re- allowing because not fired for warning. turned to her office after the We office; rather, Griego Mr. to return to her challenge pretext requires a note that a ongoing was fired for her failure to follow they appear court to look at the as to the facts subsequent repri- instructions to her written terminate, person making the decision to mand. aggrieved employee. Kendrick v. Penske burden, employer Id. If meets this
II. DISCUSSION judgment un- “summary then is warranted Disparate Treatment A. Title VII is there less the can show entry Court’s review the District fact to wheth- genuine issue of material as novo. summary judgment de Plotke pretextual.” er reasons are (10th Cir.2005). White, 1092, 1093 judgment appropriate “if the Summary is parties agree The depositions, answers to inter- pleadings, prima has met her burden to establish file, together rogatories, admissions It facie case of discrimination.3 is there affidavits, any, if show that there with the proffer fore incumbent on the DOL to fact no issue as material *4 legitimate, nondiscriminatory reason for a moving party is entitled to and that asserts firing Ms. Green. The DOL that of law.” Fed. judgment as a matter Ms. fired of Green was for violations 56(c). evidence, and view R.Civ.P. Conduct,4 insubordination, Code of therefrom, in reasonable inferences draw failing perform job and to her satisfac to the nonmoving most favorable light torily. specifically, the DOL asserts More Plotke, at 1093-94. party. 405 F.3d that a after Ms. Green received written an prohibits employer Title VII August in regarding deviations against any individ “discriminat[ing] from the chain of command and violations his respect compensation, to ual with conduct, of of the code she thereafter conditions, terms, privileges employ or of Sosaya’s specific to follow Ms. in failed ment, ... because of such individual’s job not to structions discuss her duties 2000e-2(a)(l). § 42 Because sex.” U.S.C. employees with other and failed to com relies on circumstantial evi task, plete particular claiming a discrimination, to establish unlawful dence did what wanted not know Ms. her apply three-step the now-familiar we bur to met do. The DOL has therefore den-shifting set in framework forth nondiscriminatory a provide burden to rea and its Douglas progeny. McDonnell result, son for a Green. As Green, Douglas Corp. v. 411 McDonnell to burden shifts back Ms. Green to estab 1817, 792, 800-07, L.Ed.2d U.S. 93 S.Ct. 36 lish fact as a issue of material (1973); Plotke, F.3d at 668 405 1099. The whether the DOL’s reasons are aggrieved employee must first establish a pretextual. prohibited facie of prima employment case Plotke, at by action. 405 F.3d 1099. If the A can plaintiff pretext show re prima weaknesses, a vealing implausibilities, makes such facie show “such inconsistencies, incoherencies, to the ing, employer the burden shifts or contra legitimate, nondiscriminatory legiti a rea employer’s proffered state dictions for the son adverse action. mate reasons for its that a action reason- argued provides, 3. Because the Defendants never Code of The DOL's Conduct part, employees expected "[A]ll relevant are posi Ms. Green was terminated because her highest personal eliminated, maintain the standards prima tion was a case facie here times[,] cooperate conduct at all ... must (1) requires showing belongs instructions, supervisors, with their follow class; (2) protected qualified to a she was perform professional and work in and com- (3) qualifications, job; despite her her manner[,] petent ... [and] maintain atti- Plotke, discharged. she was See 405 F.3d courtesy tude of to other state service 1099-1100. employees.” Ms. the Code Green received day Conduct the she was hired. rationally Falsity them 1. able factfinder could find of Proffered Nondiscriminatory Hilti, unworthy Morgan v. Reason credence.” (10th Cir.1997)
Inc., 108 F.3d that the DOL’s asser- omitted). Although “a (quotations tion that she was fired for failing to satis- may pursue any particular not be forced to factorily perform job her is false. In sup- demonstrating means of that a defendant’s contention, port of this Ms. Green claims pretextual,” stated reasons are Kendrick v. performance evaluations indicate Servs., Inc., Penske Transp. 220 F.3d good employee she was a and therefore (10th Cir.2000) (alterations omitted), could not job-related have been fired for pretext typically shown one of three issues. This previously Court has found ways: were, when there among things, “glaring other contradic- (1) with evidence that the defendant’s tions” plaintiffs between the evaluations employ- stated reason for the adverse and the employer’s proffered reason for false; ment action was with evidence taking the adverse action. See Cole contrary that the defendant acted Schs., Ruidoso Mun. company policy prescribing written (10th Cir.1994). addition, we have not- *5 by action to un- be taken the defendant ed that supervisors memoranda circumstances; der the or with evi- praising plaintiff the on an issue later contrary dence that the defendant acted claimed to be the reason for the adverse to an unwritten policy contrary or to may action be See company practice making when the ad- Stores, Inc., Safeway Greene v. affecting verse decision the Cir.1996). A plaintiff. plaintiff who wishes to show case, however, In this neither situation company contrary that the acted to present. is The DOL evaluates its em- policy company practice unwritten or to ployees using five-point scale with a by providing often does so that evidence score of being “unsatisfactory” one and differently he was treated from other being “exceptional.” five The average similarly-situated employees who violat- score, three, is considered “successful.” ed work of comparable rules serious- mainly Green received fours and fives on ness. productivity-related questions, and her (internal omitted). citations written largely evaluations are favorable. Nevertheless, noted, as the District Court arguments Ms. Green makes in several these favorable evaluations do not contra- support justifi- claim of her that the DOL’s firing dict the reason for proffered cation discharge pretextual. for her She her: that she failed to follow instructions. argues that the reasons for her termi- It regard opposed was to her —as false, nation similarly that situated productivity perform she did not sat- —that men were not fired for equally serious isfactorily. conduct, subjected that “height- she was to scrutiny,” readily ened that the decision to fire her Both Cole and Greene are distin- criteria, subjective guishable was based on and that In from the case at bar. Greene, immediately prior she was fired to the employer’s prof- the defendant completion probationary of her employ- terminating ag- fered reasons for the ment, all of support grieved employee poor which an inference was that he awas merchandiser, that the DOL’s reasons were a his stores’ sales were de- disagree. clining, “pessimistic” for discrimination. he 'the was about here, has the ever wa- competitor, and he in- evidence nor DOL biggest company’s at 556. for firing staff. F.3d The vered its reasons Ms. Green. timidated his however, record, contained a number however, argues, that Ms. Green also the for “fine plaintiff praising memoranda Sosaya her not to never instructed fired, he year was in the results” speak specifically, with Mr. Martinez plaintiffs efforts served stating that that Ms. therefore did not break [Safeway] how to need[s] “as model any going rules or to Mr. by instructions Id. at 564. change going forward.” pursue with work-related concerns. We Martinez contrast, perform- of Ms. In none Green’s disagree. if Ms. did not ex- Even ability speak to her to evaluations ance speak instruct Ms. Green not to plicitly instructions, which her supervisor’s follow assign- Martinez about work with Mr. termination. for her More- was basis ments, undisputed it is over, Greene, employer never men- warned, expressly by written alleged with problems tioned of the August you that “if have a plaintiffs performance fired I question something give or issue id., him, documented see whereas DOL you, you bring your to concerns to need and warned her Ms. Green’s deficiencies me instead of co-worker” and future could lead to subsequent infractions probationary peri- infractions could lead her termination. during her termination dispute od. Ms. Green does not assign- taking tinued her concerns about Cole, reason employer’s proffered such, has ments others. inability was her established a issue material fact begun faculty disputes resolve that had *6 falsity proffered on the of the ex- at quality affect the of education the planation for her. Contemporane- at 1378. school. 43 F.3d plaintiffs perform- of the ous evaluations ance, however, possi- gave highest the 2. Similarly Employees Situated marks on whether “establishes and
ble above, may plaintiff discussed a maintains, staff, cooperation of the pretext “by providing show evidence that learning.” environment conducive to Id. differently simi he was treated from other during the plaintiffs at 1380. And tenure situated, larly nonprotected employees principal, as the students’ test scores rose comparable who violated work rules of ser per- the percentile 43rd to the 73rd Kendrick, 220 iousness.” F.3d at 1232. A noted, centile. at 1381. The Id. Court similarly employee situated one who is ... tends to contradict “[this] evidence “deals with the same supervisor quality statements that the of defendants’ subject to governing the same standards plaintiff] education while [the suffered was performance discipline.” evaluation and Furthermore, principal.” during Id. the histories, company policies appli Id. Work proceedings, course of the defendant comparator, cable to plaintiff changed explanation for the adverse employment and other relevant circum Initially action. the defen- stances deter should be considered when plaintiff dant said it removed the because mining similarly constraints, employees whether are budgetary after but argues situated. Id. Ms. Green filed her with the there complaint EEOC, similarly are two situated males who problems cited with the staff and were she, differently treated than is evi declining quality education. which contradictory 1380-81. There is no dence that the DOL’s such reasons for an terminating her are stitutes evidence of Ms. Green’s unlawful motive. argument premised on “heightened scruti- ny” is therefore without merit.
First, suggests that Mr. Grie- go similarly employee. is a situated Mr. Subjective 4. Use of Criteria Griego similarly is not situated to Ms. precedent.
Green under this circuit’s Not argues Ms. Green next that she is enti only supervisor did he not share the same tled to an inference of discrimination be Green, actually super- as Ms. but he was subjective cause the DOL relied on criteria entirely visor in an different DOL unit. (i.e., “disrespectful” that she was and en Moreover, he, Green, unlike Ms. not a was conduct) gaged “inappropriate” to fire probationary employee. Although her. we have held that the use
Second, Juan subjective in employment criteria deci similarly employee. Garcia was situated may sions be used as evidence of pretext, however, not Mr. Again, Kan., Inc., see Burrus v. United Tel. Co. of addition, supervisor. although Garcia’s Cir.1982), we have position Mr. held the as Ms. Garcia same consistently recognized that such criteria (Examiner III), promoted he was play manage “must some role” certain position years five the events accordingly ment decisions and re have giving place. rise to this lawsuit took At subjective viewed the use of factors on a promoted the time he was to the Examiner case-by-case basis. See Pitre v. Elec. W. III position, already he had been a DOL Co., (10th Cir.1988) F.2d years, for over three and thus he subjective (stating that the use of factors a probationary employee. was not The per “does not se constitute discrimina concluded, agree, District Court and we tion.”). concluded, example, We have Griego neither Mr. nor Mr. Garcia subjective criteria, that the use cou when similarly employees situated and pled making with the fact that those therefore Ms. Green has failed to establish employment decisions were not members of fact to pretext issue as on this protected group of the and had engaged basis. discrimination, past properly could be con *7 sidered evidence of discrimination. Id. We “Heightened Scrutiny” 3. subjective have also noted that criteria that Ms. Green asserts “the sheer num- may provide pretext when complaints” ber of ... minor suggests that used to evaluate candidates that are not subjected higher she was to a level of objectively equally qualified. Colon-San scrutiny than employees, other from which Marsh, (10th 78, chez v. 733 F.2d 81 Cir. jury that could conclude “the Defendants 1984). Recently, “typi we stated that we ‘get’ were out to Ms. Green.” No Circuit cally only infer ... when the crite precedent supports this contention. More- rely ria on which the employers ultimately over, upon the sole case which Ms. Green subjective in entirely are nature.” Jones relies, Inc., Roadway v. Express, Crawford Barnhart, 1267-68 (W.D.La.1980), F.Supp. 485 914 is not on added). Cir.2003) (emphasis point. Crawford, allegedly the adverse case, reviewing After the record in this against action taken the the we find no merit to Ms. Green’s conten- heightened scrutiny. unwarranted Id. at not, begin, tion. To Ms. Green was evaluated 921-22. The did as Ms. woman, here, by another Ms. attempts argue reprimanded Green to do that subject being heightened scrutiny Sosaya. Sosaya to con- Ms. is a member of the
1196 “such produced other evidence that reveals class—women—as Ms. protected same Moreover, nothing in weaknesses, there is the inconsisten implausibilities, Green. that had en- indicating Ms. record cies, incoherencies, in the or contradictions discriminatory conduct the gaged legitimate reasons employer’s proffered objective that it is clear Finally, past. action factfinder for its that reasonable standing alone or factors—either unworthy them of cre rationally could find subjective factors —were junction with (quota F.3d at Morgan, dence.” Ms. termination. Green’s justify used omitted). tions therefore affirm We that Ms. Green reprimand states The judg grant summary District Court’s of discussing work-relat- should refrain against on Title ment Ms. Green her VII anyone other than ed concerns claim.5 dispute not Ms. Green does Sosaya, and sought advice about a that thereafter B. The Surreply Mr. Martinez. work with problem at 20, 2004, filed a May On the DOL such, is not entitled to an infer- reply supporting brief its motion for sum on al- based ence of discrimination mary judgment. Ms. moved for subjective justify criteria leged use of surreply leave to file a written on June her termination. 2004, at for hearing the motion summary The Court judgment. District Timing of Termination the plaintiffs granted denied motion and Finally, Ms. Green maintains summary judgement the DOL’s motion for termination, timing of which occurred her day. probationary period her days eleven permitted should have to file a writ been gender- an expired, warrants inference surreply. ten suggests She based discrimination. fact that she was fired within mere review the District Court’s expiration probation- of her weeks for decision abuse of Beaird v. discretion. ary period employment, after which Tech., Inc., Seagate F.3d provides process prior New Mexico due (10th Cir.1998). Generally, nonmoving termination, indicates that effectuating party given opportunity should be reasons respond to new material raised for the pretextual thereby establishes first time in If the reply. the movant’s cite, discrimination. Green does rely district court does not on the new found, any authority nor have we however, decision, in reaching material persuaded are proposition. We thus not “it by pre does not abuse its discretion timing that the of her termination estab- cluding a surreply.” Id. 1164-65. “Ma lishes a of fact as to issue *8 terial,” framework, purposes sum, justified its termi the DOL legal includes both new evidence and new by explaining nation of she arguments. v. Doebele Sprint/United supervisor’s failed to follow instruc Co., Mgmt. n. 13 tions, in to the DOL’s contravention Code Cir.2003). Sosaya’s explicit of Conduct and Ms. di case, any In this the DOL did not raise rection. come Ms. Green has not forth legal arguments new Its similarly reply that a situated em brief. evidence ployee differently, purpose nor has main out point was treated she is to the defects allege any similarly 5. Ms. Green does District Because not oth- affirm the Court's dismissal violation, § statutory er or constitutional we of her 1983 claim as well. response why she had she went to another supervisor Ms. Green’s think—I genuine issue of mate- failed establish there is a dispute of fact. It is not although rial fact. And the DOL did at- at all clear from this record that her con- reply namely, tach materials to its new versation with Mr. Martinez was of a na- — portions Sosaya’s deposi- additional of Ms. ture that would contrary be considered tion and an affidavit of Mr. Martinez6 —a the instruction bring her concerns of the record reveals that the Dis- review to Ms. rather than to a coworker. rely trict Court did not on these new mate- I also believe that her height- summary in granting judgment rials scrutiny might ened be considered evi- such, the DOL. the District Court did dence of denying not its discretion in abuse I agree that very Ms. Green’s case is surreply.7 Green’s motion to file a written thin, but I enough believe to avoid summary judgment stage at this in the III. CONCLUSION proceedings. gen- Because Ms. Green failed to raise a
uine issue of material fact as to whether against
she was discriminated because of
sex, we AFFIRM the District en- Court’s
try summary judgment in favor of the
DOL. We also conclude that the District in deny-
Court did not abuse its discretion ing Ms. Green’s motion to file a written COUNTY, UTAH, SAN JUAN surreply and therefore AFFIRM that deci- political subdivision, Utah sion as well. Plaintiff-Appellee,
EBEL, J., dissenting. respectfully I dissent I because believe America; Depart- UNITED STATES of just barely enough there is evidence in this Interior; ment of National Park Ser- genuine disputes case to raise of fact. vice, Defendants-Appellees, Therefore, I think it inappropriate summary judgment enter a for the defen- League, Alaska Wilderness California dant. Coalition, Wilderness Envi- Colorado Coalition, ronmental Colorado Moun-
Of
two reasons asserted for
Club,
Green,
tain
Greater Yellowstone Coali-
counsel for the defendant on
tion,
(that
National Parks Conservation
appeal admitted that the
reason
first
occasion)
Association,
Refuge
did
National
copies
not make
on one
Wildlife
Association,
was trivial.
toAs
the second reason-—-that
New Mexico Wilderness
56(c)
surreply,
6. We note that Ms. Green's
included
Fed.R.Civ.P.
that "the
court ...
district
record,
any
nonmoving party
opportunity
in the
does not offer
evidence to
allow the
supplied by
respond
summary judgment
rebut the materials
the DOL in its
is entered
Beaird,
reply
against
brief.
it.”