Deborah A. Guy v. DENIS MCDONOUGH, Secretary of Veterans Affairs,

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DEBORAH A. GUY,
Plaintiff - Appellant,
v.
DENIS MCDONOUGH, Secretary of
Veterans Affairs,
Defendant - Appellee.
No. 20-6158
(D.C. No. 5:18-CV-00033-SLP)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Deborah Guy appeals the district court’s grant of summary judgment in favor
of her employer, the Veterans Affairs Medical Center (VAMC) in Oklahoma City, in
her suit alleging unlawful race, sex, and age discrimination and retaliation stemming
 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Denis McDonough is substituted for Robert Wilkie as the respondent in
this action.
** After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
August 30, 2021
Christopher M. Wolpert
Clerk of Court
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from her reassignment out of the cardiothoracic surgery unit at the hospital.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Guy, an African-American woman born in 1953, was an advanced practice
registered nurse (APRN) in the cardiothoracic unit at the VAMC. Her position in the
cardiothoracic unit of the hospital afforded her the opportunity to pick up overtime
and on-call shifts, which, in turn, earned her additional compensation. Other nurses
in the cardiothoracic unit included Jeffrey Barlow and Bethany Barlow. 1 Jeffrey is a
white man who was under the age of 40 during the events at issue here. Jeffrey, a
registered nurse first assistant (APRN/RNFA) and Bethany, a physician’s assistant
(PA), possessed credentials enabling them to “first assist” during surgeries, but Guy
did not. First assisting includes tasks such as “positioning and draping a patient for
surgery, retracting tissue, operating suction equipment, counting surgical materials,
closing incisions, and harvesting veins for bypass procedures.” Aplt. App. Vol. 2
at 257.
Dr. John Tompkins was the chief of surgery at the VAMC. His duties
included the management of mid-level support staff, such as Guy, Jeffrey Barlow,
and Bethany Barlow. In January 2015, Dr. Tompkins reassigned Guy out of the
cardiothoracic unit and into the orthopedic unit. He sent a memo to Guy
memorializing the decision stating, in relevant part: “Based on the needs of Surgery
1 Although Jeffrey and Bethany Barlow share the same last name, they are not
related.
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Service, you are being reassigned to the Orthopedic Section. . . . This position will
not entail any on-call duties.” Id. Vol. 1 at 245.
On at least two occasions prior to this reassignment, Guy complained to
Dr. Tompkins about the behavior of a surgeon in the cardiothoracic unit, Dr. Donald
Stowell, including an occasion in December 2014 where Dr. Stowell yelled at her in
front of patients and caused her to cry. This complaint resulted in the issuance of a
“disruptive behavior memo” to Dr. Stowell. But, as she acknowledged in her
deposition, Guy never told Dr. Tompkins she believed this incident was
discriminatory in any way or based on her race, gender, or age.
After exhausting her administrative remedies, Guy sued, alleging the
reassignment from the cardiothoracic unit to the orthopedic unit constituted unlawful
race and sex discrimination under Title VII of the Civil Rights Act, see 42 U.S.C.
§ 2000e-2(a)(1), and age discrimination under the Age Discrimination in
Employment Act (ADEA), see 29 U.S.C. § 623(a)(1). She also alleged the
reassignment was retaliatory in violation of both Title VII and the ADEA. See
42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d).
The VAMC moved for summary judgment, and the district court granted the
motion. The district court concluded as a matter of law that (1) Guy could not make
out a prima facie case of race or gender discrimination under Title VII because she
could not establish her reassignment occurred under circumstances giving rise to an
inference of discrimination; (2) Guy did not come forward with evidence showing the
legitimate, nondiscriminatory reasons the VAMC gave for her reassignment were
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pretextual; and (3) Guy’s retaliation claim failed because she did not engage in
protected activity. This appeal follows.
DISCUSSION
We review the grant of summary judgment de novo. May v. Segovia, 929 F.3d
1223, 1234 (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.” Fed. R. Civ. P. 56(a). “We examine the record and all
reasonable inferences that might be drawn from it in the light most favorable to the
non-moving party.” T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte Cnty.,
546 F.3d 1299, 1306 (10th Cir. 2008) (internal quotation marks omitted).
We analyze Title VII and ADEA discrimination cases in which the
employee attempts to prove discrimination circumstantially using the three-step
McDonnell-Douglas framework. See Rivera v. City & Cnty. of Denver, 365 F.3d
912, 920 (10th Cir. 2004). Under this framework, the plaintiff must first establish a
prima facie case of discrimination. See id. Then, “the burden shifts to the employer
to articulate some legitimate, nondiscriminatory reason for its action.” Id. (internal
quotation marks omitted). If the employer carries this burden, “the plaintiff must
then have an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Id. (internal quotation marks omitted).
At the first step, “[t]o establish a prima facie disparate treatment claim, a
plaintiff must present evidence that (1) she belongs to a protected class; (2) she
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suffered an adverse employment action; and (3) the adverse action occurred under
circumstances giving rise to an inference of discrimination.” Luster v. Vilsack,
667 F.3d 1089, 1095 (10th Cir. 2011). The burden on the employee to establish a
prima facie case is light, see Bird v. W. Valley City, 832 F.3d 1188, 1200–01
(10th Cir. 2016), as is the burden on the employer to come back with a legitimate
nondiscriminatory reason, see Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1363
(10th Cir. 1997). If the analysis proceeds to the third step, “[a] plaintiff shows
pretext by demonstrating such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted nondiscriminatory
reasons.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir.
2007) (internal quotation marks omitted).
Guy argues the district court erred in concluding she did not establish her
reassignment occurred under circumstances giving rise to an inference of
discrimination and in concluding she presented no evidence that the legitimate
nondiscriminatory reason the hospital offered for her reassignment was pretextual.
More specifically, she argues the district court failed to construe the evidence in the
light most favorable to her and impermissibly conflated its analysis of whether she
established a prima facie case with its analysis of whether she established pretext.
We assume, without deciding, that Guy established a prima facie case for both her
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Title VII and ADEA claims. 2 But because we agree with the district court that no
genuine issue of material fact existed suggesting the reasons for Guy’s reassignment
were pretextual, we conclude the district court correctly granted the VAMC’s motion
for summary judgment on those claims.
1. Pretext
Guy argues she presented sufficient evidence of pretext to withstand summary
judgment because the VAMC advanced inconsistent explanations for the
reassignment after significant legal proceedings had taken place. “We have
previously held that a genuine factual dispute regarding pretext can arise when an
employer changes its explanation for an employment decision after significant legal
proceedings have occurred.” Bird, 832 F.3d at 1201 (internal quotation marks
omitted). As recorded in the January 2015 memo from Dr. Tompkins, at the time of
the reassignment the VAMC stated the reason was “the needs of Surgery Service.”
Aplt. App. Vol. 1 at 245. Before the district court, the VAMC further explained the
cardiothoracic unit underwent a temporary pause in surgeries in June 2014 due to
“higher than normal mortality rate, adverse publicity, and a review of
[cardiothoracic] surgeries,” and that this led to a decrease in the total number of
patients in the cardiothoracic section and, therefore, midlevel providers in that
section. Id. at 38.
2 The VAMC conceded below, and concedes on appeal, that Guy established a
prima facie case of discrimination in connection with her ADEA discrimination
claim, but it contested whether she established a prima facie case in connection with
her Title VII discrimination and retaliation claims.
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Guy admitted these averments in her response to the VAMC’s statement of
material facts before the district court. See id. Vol. 2 at 47. But Guy fails to show,
and we fail to discern, how these explanations are in any way inconsistent with the
January 2015 memo: The reassignment occurred because of a change in the needs of
the Surgery Service—i.e., a decrease in the workload for midlevel providers in her
previous section. Because the VAMC did not change its explanation for the
reassignment, there is no genuine issue of material fact as to pretext, 3 so the district
court correctly granted summary judgment to the VAMC on Guy’s claims for sex,
race, and age discrimination.
2. Retaliation
To establish a prima facie case of retaliation under either Title VII or the
ADEA, Guy needed to show, inter alia, that “she engaged in protected opposition to
discrimination.” Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202
(10th Cir. 2008). To establish protected opposition, “no magic words are required,”
3 The district court also rejected the possibility that the reassignment was
pretextual because the VAMC treated Jeffrey Barlow (a white male under the age of
40) more favorably than Guy in connection with the reassignment or the possibility
that Dr. Tompkins’ reassignment of her was, in reality the product of influence by
Dr. Stowell’s discriminatory animus (the so-called “Cat’s Paw” theory of liability).
Guy does not advance those arguments on appeal and, in fact, expressly disclaims
having ever raised them. See Aplt. App. Vol. 2 at 56 (“[T]he Secretary’s entire
argument regarding Jeff Barlow is completely irrelevant and immaterial to this
case.”); Aplt. Reply Br. at 3 (“Guy never asserted, at any point in the litigation of this
case, the Cat’s Paw theory.”); id. at 17 (“Despite the VA’s insistence that the
similarly situated theory is somehow pertinent to the instant case, it clearly is not.”).
We will honor that disclaimer, and we confine our pretext analysis accordingly. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (declining to
consider arguments not raised before the district court).
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but “the employee must convey to the employer his or her concern that the employer
has engaged in a practice made unlawful by [the relevant employment law].” Id. at
1203; see also Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)
(“Title VII does not prohibit all distasteful practices by employers. [A supervisor]
could be unconscionably rude and unfair to [an employee] without violating
Title VII.”).
As evidence of protected activity on appeal, Guy points to her December 2014
complaint about the outburst from Dr. Stowell that resulted in the issuance of a
“disruptive behavior memo.” But Guy never indicated this behavior was
discriminatory in any way or related to her race, sex, or age, so the district court
correctly concluded the complaint was not protected activity. She therefore did not
make out a prima facie case of retaliation, so the district court correctly granted
summary judgment on those claims to the VAMC.
CONCLUSION
We affirm the judgment of the district court.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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