Peterson v. DeJoye et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SCOTT PETERSON,
Plaintiff,
v.
DAVID STEINER,1 Postmaster General of the
United States Postal Service,
Defendant.
MEMORANDUM DECISION & ORDER
GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Civil No. 4:23-cv-00119-AMA-PK
District Judge Ann Marie McIff Allen
Magistrate Judge Paul Kohler
This matter comes before the Court on the Motion for Summary Judgment filed by
Defendant David Steiner, Postmaster General of the United States Postal Service (Defendant will
be referred to herein as “USPS”).2 The Court did not hear oral argument. Based on the parties’
briefing and the applicable law, the Court will grant USPS’s Motion.
UNDISPUTED FACTS
Plaintiff Scott Peterson worked as a full-time letter carrier for Defendant USPS from
1997 to his removal on November 6, 2020.3 Over the course of his employment, Mr. Peterson
worked in several post offices, including the Salt Lake City and Salt Lake Airport post offices.4
On August 5, 2017, Mr. Peterson voluntarily transferred to the post office in Manti, Utah.5 The
1 David Steiner replaced Louis DeJoy as Postmaster General of the United States, effective July
15, 2025. Thus, Mr. Steiner is automatically substituted as the defendant in this case pursuant to
Federal Rule of Civil Procedure 25(d).
2 ECF No. 25.
3 ECF No. 2 ¶ 12; ECF No. 26, Ex. B.
4 ECF No. 26, Ex. C at 12–15.
5 Id. Ex. A at 00092 ¶ 4; Ex. C at 13:21–25.
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Manti Post Office is a relatively small branch with one postmaster, three clerks, one full-time
letter carrier, and two part-time assistant carriers.6 Mr. Peterson was the only full-time letter
carrier with a regular full-time route at the Manti Post Office.7 The two assistant carriers worked
part-time and were assigned to trade off on an auxiliary route, to help with Mr. Peterson’s route,
and to cover Mr. Peterson’s route when he was out or on vacation.8
As a full-time carrier, Mr. Peterson was guaranteed eight hours of work each workday.9
If delivery of his route took less than eight hours, he would be assigned part of the assistant
carrier’s route to ensure that he received his guaranteed eight hours.10 On days when delivery of
Mr. Peterson’s route would take longer than eight hours, he would receive overtime pay for extra
time worked.11 To avoid the need for and cost of overtime, if a day’s delivery was anticipated to
take longer than the regular eight-hour shift, Wade Anderson, the Manti Postmaster at the time
relevant to this action, would have an assistant carrier help with Mr. Peterson’s route.12 Thus,
each morning, the Manti Postmaster would consult Mr. Peterson and the assistant carrier on duty
about their estimated delivery times and anticipated overtime needs based on the mail
measurements for that day.13 Both Mr. Peterson and the assistant carrier on duty were then
required to call in to the office by 1:00 p.m. each day to discuss any expected variances from the
morning delivery estimates so the Manti Postmaster could determine whether the assistant carrier
would be needed to assist with Mr. Peterson’s route.14 Additionally, as it is the Postmaster’s
6 Id. Ex. C at 15:16–24.
7 Id.
8 Id.
9 Id. Ex. D at 00186 ¶ 78.
10 Id.
11 Id.
12 Id.
13 Id. Ex. C at 28:10–21; Ex. D at 00186 ¶ 78.
14 Id. Ex. C at 29:20–25, 30:5–25, 31:1–11; Ex. D at 00186 ¶ 78.
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responsibility to approve overtime, a request for overtime could be made during this call if such
time was needed.15 Mr. Peterson did not always call in for the 1:00 p.m. check-in.16 As such, Mr.
Peterson went into unauthorized overtime several times.17
In addition to approving overtime, the Postmaster is responsible for investigating and
locating misdelivered mail.18 On April 1, 2019, the Manti Postmaster called Mr. Peterson, who
was home on his day off, to inquire about a misdelivered package the Manti Postmaster
mistakenly thought Mr. Peterson had incorrectly scanned.19 The package was later located, and
the Manti Postmaster apologized to Mr. Peterson for the mistake.20
The Postmaster is also responsible for conducting driving observations on all employees
who drive a USPS vehicle.21 The Manti Postmaster would conduct driver observations of both
Mr. Peterson and the assistant carrier on duty on the same day.22 Mr. Peterson estimated that he
was observed once or twice per month, and the previous full-time carrier in Manti told Mr.
Peterson that the Manti Postmaster had conducted driver observations quite a bit.23 USPS has
mandatory rules its employees must follow when driving its postal vehicles.24 Drivers of postal
vehicles must, for example, “[o]bserve all traffic regulations prescribed by law.”25
In November 2018, a Manti resident visited the post office to report and lodge a
complaint about Mr. Peterson, who, while driving his postal vehicle, failed to yield to her right-
15 Id. Ex. D at 00190 ¶ 96.
16 Id. Ex. C at 30:17–18.
17 Id. Ex. C at 43:16–24; Ex. D at 00182 ¶ 45.
18 Id. Ex. D at 182 ¶ 43.
19 Id. Ex. A at 00099 ¶ 52.
20 Id.
21 Id. Ex. D at 00180 ¶¶ 32–34; Ex. E § 831.331.
22 Id. Ex. D at 00180 ¶ 33.
23 Id. Ex. A at 00093 ¶ 12; Ex. C at 20:20–23.
24 Id. Ex. F.
25 Id. Ex. F § 812.2.
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of-way at an intersection, nearly causing a collision.26 The Manti Postmaster issued Mr. Peterson
a Notice of 14-Day Suspension for failure to follow several identified safety rules,27 but the
Postmaster ended up withdrawing the proposed suspension.28
In November 2019, Mr. Peterson left the post office through an unauthorized exit near the
dock and sprained his ankle.29 The Manti Postmaster issued Mr. Peterson discipline for failure to
follow safety rules.30 The discipline was, however, later rescinded and purged from Mr.
Peterson’s employment file as part of a grievance settlement.31 Mr. Peterson returned to work
and was paid all backpay.32
On November 4, 2020, Mr. Peterson parked in the middle of a traffic lane when he was
away from his vehicle delivering mail.33 The Manti Postmaster issued Mr. Peterson a Notice of
14-Day Suspension for failure to follow safety rules.34 Mr. Peterson admitted to the violation of
safety and traffic rules.35 Nonetheless, he filed a grievance, which was denied.36 The discipline
was thus retained and was to remain in his file for eight months.37
On November 6, 2020, Mr. Peterson failed to stop at a stop sign near a school.38 The
Manti Postmaster issued Mr. Peterson a Notice of Removal for failing to follow safety rules.39
26 Id. Ex. A at 00157–59.
27 Id.
28 Id. Ex. D at 00179 ¶ 23.
29 Id. Ex. G.
30 Id.
31 Id. Ex. H.
32 Id.
33 Id. Ex. I.
34 Id. The concurring official on the notice is Tony Cline.
35 Id. Ex. C at 78:9–25.
36 Id. Ex. J.
37 Id.
38 Id. Ex. B.
39 Id. The concurring official on the notice is Tony Cline.
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Mr. Peterson admitted to the violation40 but filed a grievance that went to arbitration.41 The
arbitrator found in favor of USPS and sustained Mr. Peterson’s removal.42
Mr. Peterson’s date of birth is October 21, 1963, and thus he was between the ages of 53
and 57 during the times relevant to this action.43 The Manti Postmaster never spoke to Mr.
Peterson about his age.44
Mr. Peterson first contacted USPS’s Equal Employment Opportunity (“EEO”) office on
December 19, 2018, to complain about the Manti Postmaster.45 At some point, he filed a formal
EEO complaint, and an in-depth investigation was conducted.46 USPS moved for summary
judgment, which the Equal Employment Opportunity Commission (“EEOC”) administrative law
judge granted.47 Mr. Peterson appealed the decision to the EEOC Office of Federal Operations,
and the decision was affirmed.48
On December 19, 2023, Mr. Peterson initiated this action, alleging age discrimination and
retaliation in violation of the Age Discrimination in Employment Act (“ADEA”).49 USPS moved
for summary judgment on all claims on August 1, 2025.50 Mr. Peterson filed his response on
December 30, 2025,51 to which USPS replied on January 13, 2026.52
40 Id. Ex. C at 80:8–11.
41 Id. Ex. K.
42 Id. at 22.
43 Id. Ex. A at 00093 ¶ 9.
44 Id. Ex. C at 22:1–6.
45 Id. Ex. L.
46 See, e.g., id. Exs. A, C–D.
47 Id. Ex. M.
48 Id. Ex. N.
49 ECF No. 1.
50 ECF Nos. 25–26.
51 ECF No. 40.
52 ECF No. 41.
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STANDARD OF REVIEW
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.”53 “A fact is
‘material’ if, under the governing law, it could influence the outcome of the lawsuit.”54 “A
dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmovant on
the evidence presented.”55
“In a response to a motion for summary judgment, a party cannot rest on ignorance of
facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope
that something will turn up at trial.”56 “The mere possibility that a factual dispute may exist,
without more, is not sufficient to overcome convincing presentation by the moving party.”57
Rather, “[t]he litigant must bring to the district court’s attention some affirmative indication that
his version of relevant events is not fanciful.”58 In doing so, the nonmovant must set forth
evidence of specific facts illustrating the existence of a genuine issue for trial.59 The Court is
required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party.60
DISCUSSION
Mr. Peterson’s Complaint alleges two causes of action: discrimination and retaliation in
53 Fed. R. Civ. P. 56(a).
54 Mauldin v. Driscoll, 136 F.4th 984, 993 (10th Cir. 2025) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
55 Id.
56 Conaway v. Smith, ma, 794 (10th Cir. 1988).
57 Id.
58 Id.
59 Anderson, 477 U.S. at 248.
60 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wright v.
Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
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violation of the ADEA.61 Additionally, while not clearly set forth, Mr. Peterson’s allegations
refer to a “hostile work environment” such that it appears Mr. Peterson may also attempt to bring
a claim for hostile work environment in violation of the ADEA.62 Nonetheless, Mr. Peterson, in
his Opposition to USPS’s Motion for Summary Judgment, concedes that the evidence does not
establish an actionable hostile work environment claim.63 Based on this concession, to the extent
a hostile work environment claim is properly before the Court, the Court grants summary
judgment in Defendants’ favor on this claim.
The Court is thus left with Mr. Peterson’s discrimination and retaliation claims and will
limit its analysis to those claims.
A. 	Exhaustion of Administrative Remedies
“[T]o assert a civil action under the ADEA . . ., federal employees ‘must comply with
specific administrative complaint procedures in order to exhaust their administrative
remedies.’”64 “Before a federal civil servant can sue his employer for [discrimination or
retaliation], he must, among other things, ‘initiate contact’ with an [EEO] counselor at his
61 See ECF No. 2 at 13, 16.
62 See, e.g., id. ¶ 19.
63 ECF No. 40 at 26. In doing so, Mr. Peterson states that “[t]here is no dispute that he
subjectively felt that virtually all of the Postmaster’s actions toward[] him created an
intimidating and stressful and hostile work environment. But under the current state of the law,
that’s probably not enough.” Id. While Mr. Peterson uses the word “probably,” the law is clear
that “[i]t is not enough that the plaintiff perceived the conduct to be severe or pervasive. Rather,
the plaintiff must ‘show that a rational jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult.’” Throupe v. Univ. of Denver, 988 F.3d 1243,
1252 (10th Cir. 2021) (quoting Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1176 (10th
Cir. 2020)). Mr. Peterson has failed to provide any argument that or evidence from which a
reasonable jury could find that a hostile work environment existed. As such, Mr. Peterson has
failed to establish the existence of a genuine issue of material fact on this claim.
64 Rinck v. Duffy, No. 2:25-cv-02010-JAR-BGS, 2025 WL 2770504, at *4 (D. Kan. Sept. 26,
2025) (quoting Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020)).
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agency ‘within 45 days of the date of the matter alleged to be discriminatory.’”65 “This
regulatory exhaustion requirement is not a jurisdictional prerequisite for suit but is a claims-
processing rule that the employer may raise as an affirmative defense.”66 “Because it is a
mandatory rule . . . the [C]ourt must enforce this exhaustion requirement if the employer
properly raises it.”67
“Furthermore, ‘each discrete incident of [discriminatory or retaliatory] treatment
constitutes its own ‘unlawful employment practice’ for which administrative remedies must be
exhausted.’”68 “[D]iscrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.”69
It is undisputed that Mr. Peterson first contacted a USPS EEO counselor on December
19, 2018. As such, USPS argues that incidents that occurred before November 4, 2018—forty-
five days before the contact with the EEO counselor—have not been timely exhausted. Mr.
Peterson concedes that he cannot obtain relief for any discrete actions that occurred prior to
November 4, 2018.70 Accordingly, as USPS sets forth, Mr. Peterson has timely exhausted the
following alleged discrete actions: his November 2020 Notice of Removal; the three disciplinary
actions taken in 2018, 2019, and 2020; the call on his day off about a misdelivered package;
driver observations; and questioning about delivery estimates.
65 Green v. Brennan, 578 U.S. 547, 549–50 (2016) (quoting 29 C.F.R. § 1614.105(a)(1)).
66 Hickey, 969 F.3d at 1118.
67 Id.
68 Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181 (10th Cir. 2018) (alterations in original)
(quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)).
69 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
70 ECF No. 40 at 17. Mr. Peterson asserts that he could rely on actions that occurred prior to
November 4, 2018, as part of a continuing violation with regard to a hostile work environment
claim. Id. But Mr. Peterson concedes that he has failed to establish his hostile work environment
claim. Id. at 26. The Court will thus focus only on discrete actions that occurred after November
4, 2018.
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B. 	ADEA Retaliation
As Mr. Peterson lacks direct evidence of retaliation, the parties do not dispute that Mr.
Peterson’s claims should be analyzed under the burden-shifting framework set forth in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). “Under this framework, [Mr.
Peterson] must first establish a prima facie case of discrimination and retaliation.”71 If such a
prima facie case is established, “the burden shifts to [USPS] ‘to articulate some legitimate,
nondiscriminatory reason’ for its action.’”72 “Should [USPS] meet this burden, [Mr. Peterson]
must ‘be afforded a fair opportunity to show that [USPS’s] stated reason . . . was in fact
pretext.”73
To establish a prima facie claim of retaliation under the ADEA, Mr. Peterson must show
that “(1) [he] engaged in protected opposition to discrimination, (2) a reasonable employee
would have considered the challenged employment action materially adverse, and (3) a causal
connection existed between the protected activity and the materially adverse action.”74 The
parties do not dispute that Mr. Peterson engaged in protected activity on December 19, 2018,
when he made contact with the EEO counselor. Furthermore, the parties do not dispute that the
November 4, 2020 Notice of 14-Day Suspension and the November 6, 2020 Notice of Removal
are materially adverse employment actions.75
71 Mauldin, 136 F.4th at 993.
72 Id. (quoting McDonnell Douglas, 411 U.S. at 802).
73 Id. (quoting McDonnell Douglas, 411 U.S. at 804).
74 Id. at 995.
75 As for the November 2018 and 2019 disciplinary actions that were withdrawn or rescinded
from Mr. Peterson’s employment record, Mr. Peterson concedes that these actions do not
constitute adverse actions. ECF No. 40 at 20. Moreover, the November 2018 disciplinary action
occurred prior to Mr. Peterson’s meeting with the EEO counselor and thus cannot serve as a
basis for his retaliation claim. See Kenfield v. Colo. Dept. of Pub. Health & Env’t, 557 F. App’x
728, 733 (10th Cir. 2014) (unpublished) (“By its very nature, retaliatory conduct must come after
the protected activity.”). As for the alleged scrutiny of work including driver estimates, the
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The dispute thus centers around the third element—whether a causal connection existed
between the protected activity and the materially adverse actions. To establish this connection,
Mr. Peterson must show that USPS “was motivated . . . by a desire to retaliate for his protected
activity.”76 “As a prerequisite to this showing, [Mr. Peterson] must first come forward with
evidence from which a reasonable factfinder could conclude that those who decided [to take the
adverse employment actions] had knowledge of his protected activity.”77 While the parties do
not direct any argument to the issue of knowledge, whether the decisionmakers had knowledge
of Mr. Peterson’s meeting with the EEO counselor and when they gained that knowledge is
somewhat unclear from the record. Mr. Peterson stated in his deposition that he never talked to
Tony Cline, the concurring official on both disciplinary actions at issue, about the EEO
activity,78 and Mr. Peterson did not know when Mr. Cline became aware of the EEO activity.79
He also stated that the Manti Postmaster never said anything about the EEO activity to Mr.
Peterson,80 and he was unaware of when the Manti Postmaster became aware of the EEO
missing package call, and driver observations, Mr. Peterson provides no argument in response to
USPS’s assertion that these do not rise to the level of materially adverse actions as they are
ordinary workplace tribulations. Thus, it appears that Mr. Peterson concedes that these do not
constitute materially adverse actions—or at least abandons any argument to the contrary. See
Lewis v. XL Catlin, 542 F. Supp. 3d 1159, 1168 n.6 (D.N.M. 2021) (“[U]nder Tenth Circuit law,
failing to respond constitutes waiver.” (citing Hinsdale v. City of Liberal, Kan., 19 F. App’x 749,
768 (10th Cir. 2001) (unpublished))). In any event, to constitute a materially adverse action, the
retaliatory action must cause significant harm. See Muldrow v. City of St. Louis, Mo., 601 U.S.
346, 357 (2024) (discussing how, in a retaliation context, “materially adverse” means “that it
causes ‘significant’ harm”); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
While Mr. Peterson may have found his being supervised and critiqued irritating, the record does
not indicate that these actions had any significant negative impact on his employment
independent of the disciplinary actions he received.
76 Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).
77 Id.
78 ECF No. 26, Ex. C at 64:10–12.
79 Id. at 61:21–24.
80 Id. at 64:6–9.
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activity.81 However, the Manti Postmaster participated in the EEO investigation,82 so he must
have found out about Mr. Peterson’s meeting with the EEO counselor at some point.
Nonetheless, even assuming that the decisionmakers had knowledge of the protected
activity, Mr. Peterson still must establish a causal connection between the protected activity and
the adverse actions. In an attempt to do so, Mr. Peterson relies solely on temporal proximity,
arguing that after he spoke to the EEO counselor, the Manti Postmaster issued Mr. Peterson
disciplinary actions that were more serious than those he had received in the past such that he
was ultimately removed from his position. While it is true that retaliatory motive may be inferred
“from a close temporal proximity between an employee’s protected conduct and an employer’s
adverse employment action[,]”83 the Tenth Circuit has held that “unless the [adverse action] is
very close in time indeed to the protected activity, . . . a plaintiff cannot rely on temporal
proximity alone and must come forward with additional evidence to establish causation.”84 “[A]
one-and-a-half month period may suffice to establish causation on a prima facie basis, but a
three-month period, standing alone, will not suffice.”85 Mr. Peterson first contacted the EEO
counselor on December 19, 2018. He received the Notice of 14-Day Suspension on November 4,
2020 and the Notice of Removal on November 6, 2020—nearly two years after he met with the
EEO counselor. This time span is much too extended to raise an inference of retaliatory motive.
In fact, it is “insufficient to establish a causal connection as a matter of law.”86
Mr. Peterson cannot, then, rely on temporal proximity alone and must come forward with
81 Id. at 62:2–4.
82 See id. Ex. D.
83 Hinds, 523 F.3d at 1204.
84 Id.
85 Id.
86 Id. (citation modified).
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additional evidence of retaliatory motive. He has failed to do so. As such, no reasonable jury
could find that a causal connection existed between the protected activity and the adverse
employment actions. Mr. Peterson has thus failed to establish that any genuine issues of material
fact exist with respect to a causal connection, and he has failed to establish his prima facie case
for retaliation.
Even if Mr. Peterson could establish a prima facie case of retaliation, he concedes that
USPS has articulated a legitimate, non-discriminatory reason for taking the adverse actions—
namely, that Mr. Peterson violated safety and traffic rules. Turning, then, to the final McDonnell
Douglas step, Mr. Peterson “must present evidence that shows a genuine issue of material fact as
to whether [USPS’s] reason was pretextual.”87 “The burden is more demanding here than at the
prima facie step, and it requires a plaintiff to assume the normal burden of any plaintiff to prove
his or her case at trial.”88
Here, “the evidence in its totality does not raise a genuine issue of material fact regarding
[USPS’s] motive”89 in issuing the disciplinary action and removing Mr. Peterson from his
position. Mr. Peterson admits that he violated the safety and traffic rules for which he was
disciplined and removed,90 and there is no indication that the adverse actions were undertaken
with retaliatory motive. Indeed, Mr. Peterson went through grievance processes for each of the
actions at issue: his grievance with respect to the November 4, 2020 Notice of 14-Day
Suspension was denied,91 and his grievance with respect to the November 6, 2020 Notice of
87 Mauldin, 136 F.4th at 996.
88 Id. (citation modified).
89 Id. (citation modified).
90 ECF No. 26, Ex. C at 78:9–25, 80:8–11.
91 Id. Ex. J.
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Removal was also denied.92 There is no indication that these grievance processes were not
neutral and devoid of retaliatory motive. Accordingly, no reasonable jury could find that USPS’s
reason was pretext for retaliation, and summary judgment in USPS’s favor is appropriate on this
claim.
C. 	ADEA Discrimination
Before analyzing the merits of Mr. Peterson’s discrimination claim, the Court will touch
on the relevant causation standard. 29 U.S.C. § 633a(a) provides that all personnel actions
regarding federal employees “who are at least 40 years of age . . . shall be made free from any
discrimination based on age.” In analyzing this language, the Supreme Court emphasized that
“under § 633a(a), age must be the but-for cause of differential treatment” but need not be a “but-
for cause of the ultimate decision.”93 The Supreme Court thus “recognized that liability may
attach in the absence of but-for causation between the adverse employment action and age
discrimination”94 in the context of federal employment. Nonetheless, the Supreme Court also
held that Ҥ 633a(a) plaintiffs who demonstrate only that they were subjected to unequal
consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of
relief related to the end result of an employment decision.”95 Plaintiffs seeking such remedies
“must show that age discrimination was a but-for cause of the employment outcome.”96
Here, the parties do not dispute that Mr. Peterson must prove that age discrimination was
a but-for cause of the employment outcome. Furthermore, the remedies Mr. Peterson requests
relate to the “end result” of USPS’s decisions to issue the 14-Day Suspension and to terminate
92 Id. Ex. K.
93 Babb v. Wilkie, 589 U.S. 399, 408 (2020) (emphasis in original).
94 Cloud v. Wormuth, No. 20-cv-4-EFM, 2023 WL 4745730, at *6 (E.D. Okla. July 24, 2023).
95 Babb, 589 U.S. at 413.
96 Id.
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Mr. Peterson’s employment.97 The Court is thus satisfied that Mr. Peterson must ultimately
prove but-for causation to prevail on his claim for relief.
Turning, then, to the merits of Mr. Peterson’s claim, because Mr. Peterson lacks direct
evidence of discrimination, the Court will analyze this claim under the McDonnell Douglas
burden-shifting framework.98 To establish a prima facie case of discrimination, a plaintiff must
show that (1) he is a member of a protected class, (2) he suffered an adverse employment action,
(3) he is qualified for the position, and (4) “the challenged action occurred under circumstances
giving rise to an inference of discrimination[.]”99 The parties do not dispute that Mr. Peterson
was a member of a protected class because he was over the age of forty at the time relevant to the
allegations and that Mr. Peterson was qualified for the position. The parties also do not dispute
97 Mr. Peterson concedes that he cannot receive compensatory damages for emotional distress
under the ADEA. See Villescas v. Abraham, 311 F.3d 1253, 1261 (10th Cir. 2002) (“Congress
did not expressly and unambiguously waive the government’s sovereign immunity from separate
compensatory damage awards for emotional distress and humiliation.”). But Mr. Peterson also
seeks lost wages and benefits. ECF No. 2 ¶ 80. See Ridgell-Boltz v. Colvin, 565 F. App’x 680,
683 (10th Cir. 2014) (unpublished) (“[T]he ADEA provides for legal and equitable relief,
including reinstatement, back-pay, and other pecuniary benefits associated with the job[.]”).
98 In light of the Supreme Court’s decision in Babb, there is some question as to whether the
McDonnell Douglas framework continues to apply to federal-sector age-discrimination claims.
The Eleventh Circuit has expressly abandoned the framework in assessing such claims. Buckley
v. Sec’y of Army, 97 F.4th 784, 794–95 (11th Cir. 2024). It appears that the Tenth Circuit “has
not yet addressed whether the McDonnell Douglas burden-shifting framework continues to apply
to federal-sector age discrimination claims post-Babb[.]” Laber v. Hegseth, No. 23-3157, 2025
WL 1511795, at *6 n.10 (10th Cir. May 28, 2025); see also Nelson v. DeJoy, No. 23-1227, 2024
WL 3507723, at *4 (10th Cir. July 23, 2024) (“We conclude it is unnecessary for us to resolve
whether Babb’s causation standard applies to [Plaintiff’s] Title VII claims or, relatedly, whether
the McDonnell Douglas framework continues to apply to claims brought under Title VII’s
federal-sector provision. That is because the outcome of this appeal is the same whether we
apply pre-Babb standards or whether we conclude . . . that those standards are incompatible with
Babb.”). But the Tenth Circuit recently applied the framework in a federal-sector age
discrimination case. See Mauldin, 136 F.4th at 996–97. Here, the parties agree that the
McDonnell Douglas framework still applies and that Mr. Peterson must still show but-for
causation. Thus, as there does not appear to be any Tenth Circuit guidance to the contrary, the
Court will employ the McDonnell Douglas framework.
99 Mauldin, 136 F.4th at 996.
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that the November 4, 2020 Notice of 14-Day Suspension and the November 6, 2020 Notice of
Removal are adverse actions.100
The question, then, is whether the adverse actions occurred under circumstances that give
rise to an inference of age discrimination. Mr. Peterson vaguely asserts—without pointing to any
specific evidence—that the totality of the evidence supports an inference of discrimination on the
basis of age. However, Mr. Peterson cannot rely on pure speculation and conclusory statements
to defeat summary judgment. Mr. Peterson admits that the Manti Postmaster never made
comments about his age.101 He further admits that, as the only regular full-time mail carrier,
100 As for the November 2018 and the November 2019 disciplinary actions that were withdrawn
or rescinded from Mr. Peterson’s employment record, Mr. Peterson concedes that these actions
are not adverse. ECF No. 40 at 20. Mr. Peterson asserts that even if these actions were not
adverse, they could be a part of a continuing violation contributing to the creation of a hostile
work environment. Id. But Mr. Peterson concedes that his hostile work environment claim fails.
Id. at 26. As for the alleged scrutiny of work including driver estimates, the missing package call,
and driver observations, Mr. Peterson provides no argument in response to USPS’s assertion that
these do not rise to the level of adverse actions. Thus, it appears that Mr. Peterson concedes that
these do not constitute adverse actions—or at least abandons any argument to the contrary. Lewis
v. XL Catlin, 542 F. Supp. 3d 1159, 1168 n.6 (D.N.M. 2021) (“[U]nder Tenth Circuit law, failing
to respond constitutes waiver.” (citing Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768
(10th Cir. 2001) (unpublished))). Moreover, “[t]he Muldrow ‘some harm’ standard applies to
adverse employment actions” in the context of discrimination claims “under the ADEA.” Staton
v. DeJoy, No. 1:23-cv-03223-SBP, 2025 WL 42821, at *13 (D. Colo. Jan. 7, 2025). Under this
standard, “an employment action is adverse if a plaintiff can demonstrate that [he] experienced
‘some harm respecting an identifiable term or condition of employment’ as a result of that
action.” Scheer v. Sisters of Charity of Leavenworth Health Sys., Inc., 144 F. 4th 1212, 1216
(10th Cir. 2025) (emphasis in original) (quoting Muldrow, 601 U.S. at 355). Thus, “even without
importing the [former] significance requirement into the definition of adverse—‘a mere
inconvenience or an alteration of job responsibilities does not qualify.’” Cordova v. Textron
Aviation, Inc., No. 23-1233-DDC, 2025 WL 1262487, at *7 (D. Kan. Apr. 30, 2025) (quoting
Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202, 1222 (10th Cir. 2022)). Plaintiff has provided
neither argument nor evidence establishing that, independent of the disciplinary actions he
received, his being generally observed and critiqued at work harmed an identifiable term or
condition of his employment. While Mr. Peterson did not like these actions, “[n]ot everything
that makes an employee unhappy is an actionable adverse action.” Braxton v. Nortek Air Sols.,
LLC, 769 F. App’x 600, 604 (10th Cir. 2019) (unpublished) (citation modified).
101 ECF No. 26, Ex. C at 22:1–6.
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there were no similarly situated employees in his workplace that can be used for comparison,102
and to the extent the part-time assistant carriers could be used for comparison, Mr. Peterson
makes no effort to refute USPS’s arguments that there is no evidence showing that the assistant
carriers were treated more favorably than Mr. Peterson under sufficiently similar circumstances.
In short, nothing in the record establishes beyond mere speculative possibility that the adverse
employment actions were in any way related to Mr. Peterson’s age, and thus no reasonable jury
could find that the adverse actions occurred under circumstances that give rise to an inference of
age discrimination. Accordingly, Mr. Peterson has failed to establish his prima facie case.
Even if Mr. Peterson could establish a prima facie case of age discrimination, Mr.
Peterson concedes that USPS has articulated a legitimate, non-discriminatory reason for taking
the adverse actions: Mr. Peterson violated safety and traffic rules. As such, the burden would
shift back to Mr. Peterson to “prove that the legitimate reason was a pretext for
discrimination.”103 “This evidence can be presented in one of two forms, either by showing (1)
the reason is factually false, or (2) discrimination was a primary factor in the action.”104
“Examples of such evidence include weaknesses, implausibility, inconsistencies, incoherencies,
or contradictions in the explanation that a reasonable factfinder could rationally find unworthy of
credence.”105 Mr. Peterson “need not show both that [USPS’s] ‘reasons were a pretext and that
102 ECF No. 40 at 1–2 (“[H]e was the only regular, full-time mail carrier in the Manti, Utah, Post
Office, so he really can’t compare how the Postmaster treated him compared to how he treated
similarly situated employees because there were no identically, similarly situated, employees in
his workplace.”).
103 Markley v. U.S. Bank Nat’l Ass’n, 59 F.4th 1072, 1081 (10th Cir. 2023).
104 Mauldin, 136 F. 4th at 996–97.
105 Id. at 997.
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the real reason was discrimination—the fact of pretext alone may allow the inference of
discrimination.’”106
Mr. Peterson admits that he violated the safety and traffic rules for which he was
disciplined and removed;107 thus, USPS’s reason is not factually false. Mr. Peterson contends
that he has pointed to evidence that supports the drawing of an inference of pretext, but he does
not in fact direct the Court to any evidence. And nothing in the record demonstrates weakness,
implausibility, inconsistency, incoherency, or contradiction in USPS’s explanation. Indeed, the
disciplinary actions at issue went through grievance processes, and the disciplinary actions were
upheld.108 There is no indication that these grievance processes were not neutral and devoid of
discriminatory motive. Therefore, no reasonable jury could find that USPS’s reason was pretext
for discrimination, and Mr. Peterson has failed to establish any genuine issues of material fact on
this issue. The Court will thus grant summary judgment in Defendants’ favor on this claim.
ORDER
Based on the foregoing, the Court GRANTS Defendant’s Motion for Summary Judgment
(ECF No. 25).
DATED this 9th day of February 2026. 	BY THE COURT:
_________________________
Ann Marie McIff Allen
United States District Judge
106 Id. (emphasis in original) (quoting Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of
Okla. Bd. of Regents, 125 F.4th 1321, 1337 (10th Cir. 2025)).
107 ECF No. 26, Ex. C at 78:9–25, 80:8–11.
108 Id. Exs. J–K.
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