Fuller v. Kansas Department of Children, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
CLARA R. FULLER,

Plaintiff - Appellant,

v.

STATE OF KANSAS DEPARTMENT OF
CHILDREN AND FAMILIES;
STEPHANIE HENDERSON; LEWIS
KIMSEY; LISA LOCKE; SANDRA
KIMMONS,

Defendants - Appellees.

No. 19-3221
(D.C. No. 2:16-CV-02415-DDC)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
**

***

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

***
While the late Honorable Monroe G. McKay was assigned to, and
participated in the disposition of, this matter before his death on March 28, 2020, his
vote was not counted. Yovino v. Rizo, 139 S. Ct. 706, 710 (2019) (federal court may
not count the vote of a judge who dies before a decision is issued). “The practice of
this Court permits the remaining two panel judges if in agreement to act as a quorum
in resolving the appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n. * (10th
Cir.1997); see also 28 U.S.C. § 46(d) (noting circuit court may adopt procedures
permitting disposition of an appeal where remaining quorum of panel agrees on the
FILED
United States Court of Appeals
Tenth Circuit

March 30, 2020

Christopher M. Wolpert
Clerk of Court
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2

_________________________________
Pro se plaintiff Clara Fuller appeals from the district court’s judgment in favor
of Defendants on her claims involving employment discrimination.
Plaintiff is a black woman over age 55 who was employed by Defendant
Kansas Department of Children and Families (“DCF”) in its Low Income Energy
Assistance Program (“LIEAP”). The individual Defendants are all DCF employees
involved in the LIEAP program. Plaintiff sued the individual Defendants
1
in their
official and personal capacities for race, sex, and age discrimination, under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634, and brought a
claim under 42 U.S.C. § 1983. Plaintiff alleges that Defendants discriminated against
her during the hiring process by requesting that she provide a written evaluation from
a previous employer before she could be employed, a request she says Defendants did
not impose on other applicants. Plaintiff also alleges discrimination in Defendants’
decision to terminate her employment. She asserts that she and another employee,
who is also a black woman over age 55, were terminated based on their race, sex, and
age and that Defendants’ proffered reason for their termination—subpar
performance—was pretext. On Defendants’ motion, the district court dismissed,

disposition). The remaining panel members have acted as a quorum with respect to
this Order and Judgment.
1
Plaintiff initially named DCF as the sole defendant, but she later amended her
complaint and named only the individual Defendants.
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pursuant to Fed. R. Civ. P. 12(b)(6), all but one of Plaintiff’s claims and later granted
Defendants’ motion for summary judgment on Plaintiff’s remaining Title VII claim.
On appeal, Plaintiff challenges some of the district court’s rulings in its
dismissal and summary-judgment orders. “We review de novo the grant of a motion
to dismiss under [Rule] 12(b)(6).” Baca v. Colo. Dep’t of State, 935 F.3d 887, 928
(10th Cir. 2019). “We must accept all the well-pleaded allegations of the complaint
as true and must construe them in the light most favorable to the plaintiff.” Id.
(quotation marks and brackets omitted). “To survive a motion to dismiss, a plaintiff
must plead facts sufficient to state a claim to relief that is plausible on its face.” Id.
(quotation marks omitted). “We review a district court’s summary judgment ruling
de novo, applying the same standard as the district court.” Evans v. Sandy City, 944
F.3d 847, 852 (10th Cir. 2019). “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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “In
reviewing a motion for summary judgment, we review the facts and all reasonable
inferences those facts support, in the light most favorable to the nonmoving party.”
Id. (quotation marks omitted). We evaluate Plaintiff’s appeal claim-by-claim.
2

2
We liberally construe Plaintiff’s pro se filings but must avoid the advocatory
role of argument-creator. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

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First, Plaintiff argues the district court erred by dismissing her § 1983 claim
against the individual Defendants in their personal capacities.
3
Having reviewed
Plaintiff’s complaint and other filings, the court agreed with Defendants that Plaintiff
had failed to identify any independent federal right underlying her § 1983 claim. See
Jones v. Norton, 809 F.3d 564, 577 (10th Cir. 2015). On appeal, Plaintiff argues that
she premised her § 1983 claim on a deprivation of her Fourteenth Amendment rights.
However, Plaintiff only raises this argument in her reply brief. Even a pro se
appellant like Plaintiff waives an argument by not raising it in her opening brief when
she could have done so. See McClaflin v. Burd, 622 F. App’x 769, 770 (10th Cir.
2015). Accordingly, we do not review Plaintiff’s challenge to the dismissal of her
§ 1983 claim.
4

Second, Plaintiff argues the district court erred by dismissing her ADEA claim.
The court ruled that Plaintiff could not maintain the claim against the individual
Defendants in their personal capacities because the ADEA imposes liability only on
employers, not on other employees acting in supervisory roles who do not otherwise
qualify as employers. Citing Supreme Court and Tenth Circuit decisions, Plaintiff

3
The district court ruled that sovereign immunity protected the individual
Defendants from being sued under § 1983 in their official capacities. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58 (1989). Even liberally construed, Plaintiff’s
appellate briefing does not challenge this ruling, so we do not review it. See Phillips
v. Humble, 587 F.3d 1267, 1274 (10th Cir. 2009).

4
Plaintiff also waited until her reply brief to raise arguments regarding the
district court’s denial of several of her discovery-related motions. These arguments
are likewise waived.

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appears to argue that the individual Defendants can be held personally liable under
the ADEA because they exercised significant supervisory authority. But the
decisions she cites stand only for the proposition that an employer (such as DCF)
may be held vicariously liable for its agents’ (such as the individual Defendants’)
actions, not that the agents themselves may be held personally liable. See Staub v.
Proctor Hosp., 562 U.S. 411, 421 (2011); Haynes v. Williams, 88 F.3d 898 (10th Cir.
1996); Sauers v. Salt Lake Cty., 1 F.3d 1122, 1125 (10th Cir. 1993). In fact, Haynes
and Sauers make clear, at least for purposes of Title VII, that individual supervisors
cannot be held personally liable and that personal-capacity suits against fellow
employees are inappropriate. See Haynes, 88 F.3d at 898–99; Sauers, 1 F.3d at 1125.
Plaintiff fails to explain why the same rule would not be equally applicable here. Cf.
Stapp v. Curry Cty. Bd. of Cty. Comm’rs, 672 F. App’x 841, 847 (10th Cir. 2016)
(“Title VII defines ‘employer’ in the same way as the ADEA, and hence the
definitions must be read in the same fashion.” (citations and quotation marks
omitted)). Thus, in light of Haynes’ and Sauers’ treatment of this issue in the
analogous Title VII context, we are not persuaded that the district court erred in
concluding that the ADEA permits suit only against employers and not against
supervisory employees.
The district court also ruled that, unless Congress has abrogated it, sovereign
immunity protects the individual Defendants from being sued in their official
capacities and that the ADEA does not abrogate sovereign immunity. Plaintiff seems
to concede that sovereign immunity protects the individual Defendants in the absence
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of congressional abrogation. Although she outlines some of the analytical framework
for determining whether an act of Congress validly abrogates sovereign immunity,
she does not apply this framework to the ADEA or seem to otherwise contend that
the ADEA abrogates state sovereign immunity. And, in any event, as the district
court correctly ruled, the ADEA does not validly abrogate the states’ sovereign
immunity. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91–92 (2000). Thus, to the
extent Plaintiff contests the district court’s sovereign-immunity analysis, her
argument is meritless.
Third, Plaintiff argues the district court erred by dismissing portions of her
Title VII claim and granting Defendants summary judgment on the remainder of the
claim. The court dismissed the portion of the claim asserting discrimination in
Plaintiff’s hiring process because her complaint failed to allege that she suffered an
adverse employment action, an element of a prima facie Title VII claim.
5
The
allegations that Defendants required Plaintiff to provide a written evaluation from a
previous employer before hiring her, the court explained, amount to a mere
inconvenience, not an adverse employment action. On appeal, Plaintiff continues to
complain of the written-evaluation requirement Defendants imposed on her. We
agree with the district court, however, that these allegations do not satisfy the

5
As with her ADEA claim, Plaintiff argues that the individual Defendants can
be held personally liable under Title VII based on their supervisory authority. We
conclude, however, that the district court correctly dismissed this portion of the Title
VII claim on the grounds that the individual Defendants cannot be held personally
liable under Title VII and that the claim against them in their personal capacity was
inappropriate. See Haynes, 88 F.3d at 898–99; Sauers, 1 F.3d at 1125.
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requirement to allege an adverse employment action as they amount to nothing more
than “mere inconvenience.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir.
2017); cf. Godoy v. Habersham Cty., 211 F. App’x 850, 853 (11th Cir. 2006)
(concluding that altering candidates’ test scores did not amount to adverse
employment action because the defendants ultimately hired the plaintiff).
Applying the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), the district court granted Defendants summary judgment
on the portion of Plaintiff’s Title VII claim based on her termination. Because
Defendants did not dispute that Plaintiff could establish a prima facie case of
discrimination, the court turned to the second step of McDonnell Douglas and
determined that there was no genuine dispute that Defendants had established a
legitimate, non-discriminatory reason for the termination, namely subpar
performance. The court explained that uncontroverted evidence showed that,
although the LIEAP program did not impose a quota, DCF tracked employees’
productivity in terms of registering and processing applications
6
; that, among LIEAP
employees without other job responsibilities, Plaintiff had the second lowest

6
As she did in the district court, Plaintiff insinuates that Defendants fabricated
productivity reports for the purpose of litigating this matter. Unsupported
speculation of this nature is not enough to withstand summary judgment. See Jordan
v. Dillon Cos., 618 F. App’x 926, 929 (10th Cir. 2015). Plaintiff also attacks the
reports on the ground that Defendants began tracking employees’ productivity before
their initial training period ended. We agree with the district court, however, that this
argument does not raise a dispute as to the material fact at issue, i.e., that Plaintiff
was the second least productive employee of those without other job responsibilities.

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productivity numbers for both registering and processing applications
7
; and that
Plaintiff and the only other employee with worse productivity numbers were
terminated on the same day. Turning to the third McDonnell Douglas step, the court
determined that Plaintiff had failed to adduce evidence that Defendants’ proffered
reasons for terminating her were pretextual. Specifically, the court explained that
Plaintiff’s (1) subjective belief that her performance was not substandard,
(2) argument that the program’s lack of a quota made Defendants’ reliance on her
productivity illegitimate, (3) speculation regarding Defendants’ motives for
terminating her, and (4) characterization of Defendants’ reasons for terminating her
as inconsistent were all insufficient to demonstrate pretext.
On appeal, Plaintiff raises many of the same arguments she raised in the
district court. She asserts that her performance was not subpar because, unlike the
employees she was compared to, she had responsibilities in addition to registering
and processing applications and because Defendants assigned her to processing
lengthier applications than other employees processed. But we agree with the district
court that Plaintiff pointed to no record evidence supporting this assertion at
summary judgment, and she fails to point to any such evidence on appeal as well.
Plaintiff argues that, because Defendants did not impose a quota, they could not

7
Plaintiff argues that the district court misapprehended the productivity
reports because they show that other employees registered and processed fewer
applications than she did. After reviewing them, we agree with the district court that
the reports show that Plaintiff had the second lowest productivity numbers of the
relevant group of employees.
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legitimately rely on her low productivity numbers to terminate her. But, as the
district court explained, our precedent is clear that facially non-discriminatory
business decisions are not pretextual or otherwise illegitimate merely because they
are made without reference to a preexisting formal policy, such as a quota. See
Medlock v. United Parcel Serv., Inc., 608 F.3d 1185, 1192–93 (10th Cir. 2010).
Plaintiff also argues she demonstrated pretext by pointing out that one of the
Defendants, who, Plaintiff avers, must have been aware of the reason Plaintiff had
been summoned to the meeting in which she was notified of her termination, told
Plaintiff that she was not aware of the meeting’s purpose. But even accepting these
assertions, as the district court did, we fail to see how they amount to evidence of
pretext.
8
Thus, we see no merit in Plaintiff’s arguments attacking the district court’s
summary-judgment analysis.
* * *

8
Plaintiff also advances a number of arguments on appeal that she did not
raise in the district court. For instance, she argues that that imposition of
productivity requirements violated Kansas law, that Defendants discriminated against
her by terminating her employment while merely laying off white employees, that
Defendants’ reliance on productivity reports was pretextual because they said the
reports were intended to identify employees needing remedial training when no such
training existed, and that her performance was not subpar because, based on DCF’s
advertisement regarding her position, processing applications amounted to only 45%
of her duties. Because Plaintiff did not raise these arguments in the district court and
does not attempt to satisfy the plain error standard on appeal, we do not review the
arguments. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir.
2011).

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In sum, we conclude that Plaintiff’s challenges to the district court’s orders
dismissing or granting summary judgment on her claims are either waived or
meritless.
9
We therefore AFFIRM the district court’s judgment.
Entered for the Court

Per Curiam

9
Plaintiff also argues the district court erred by denying her motion to strike a
chart summarizing the productivity reports that Defendants used in support of
summary judgment. Although it denied the motion, the court declined to rely on the
chart in its summary-judgment decision; thus, any error in denying the motion would
provide no basis for reversal. See Kitchen v. BASF, ___ F.3d ___, 2020 WL 964371,
at *5 (5th Cir. Feb. 28, 2020).
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