July 19, 2019

Tenth Circuit: District Court’s Summary Judgment in Favor of Forest Service on Sex Discrimination and Retaliation Claims Affirmed

The Tenth Circuit published its opinion in Conroy v. Vilsack on Monday, February 11, 2013.

Laura Conroy filed a Title VII lawsuit against her employer, the United States Forest Service, after it filled an open position with a male employee instead of her. The district court excluded the testimony of Ms. Conroy’s two experts and granted summary judgment to the Forest Service on Conroy’s claims of sex discrimination and retaliation. Conroy appealed.

As a threshold matter, the Tenth Circuit addressed Ms. Conroy’s contention that the district court erred in excluding the testimony of her experts, Dr. Dodd and Mr. Katz. Federal Rule of Evidence 702 assigns to district courts a gatekeeping  function with respect to the admissibility of expert opinions. The Tenth Circuit found that the district court did not abuse its discretion in excluding the testimony of Dr. Dodd and Mr. Katz.

Turning to Ms. Conroy’s two claims of sex discrimination and one claim of retaliation, the Tenth Circuit stated that a  plaintiff may prove a violation of Title VII either by direct evidence of discrimination or retaliation, or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that rubric, the plaintiff must first establish a prima facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, non-discriminatory or non-retaliatory rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant’s proffered rationale is pretextual. This framework applies to both discrimination and retaliation claims.

The Tenth Circuit first addressed Ms. Conroy’s contention that the district court improperly granted Defendant’s motion for summary judgment on her first discrimination claim. Conroy’s arguments focused exclusively on pretext, the third piece of the McDonnell Douglas framework. Generally, a plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief. The Tenth Circuit saw nothing in the agency’s decisionmaking process that would allow a reasonable jury to conclude that the process was used to discriminate against her on the basis of sex. In short, none of the evidence that Ms. Conroy advanced was sufficient to raise a genuine doubt about the Forest Service’s motivation in selecting Mr. Hager.

Ms. Conroy next asserted that the Forest Service’s decision to relax the qualification standards for the position and readvertise it—after she had already applied for it and been found qualified—constituted a separate act of sex discrimination. The the burden-shifting framework of McDonnell Douglas applied. Since the Forest Service articulated a legitimate, nondiscriminatory reason for its decision to lower the qualification standards and readvertise the Program Manager position, Ms. Conroy’s second claim on discrimination also failed. The Court concluded that no reasonable jury could find the Forest Service’s explanation for readvertising the position was unworthy of belief and pretextual.

Ms. Conroy finally asserted a retaliation claim arising out of the hiring process. Because plaintiff failed to establish the requisite temporal proximity between evidence of protected conduct closely followed by adverse action, the Court found her evidence of causation unpersuasive. She failed, therefore, to make out a prima facie case of retaliation.


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