F I L E D

United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT

July 17, 2006

Elisabeth A. Shumaker
Clerk of Court

DO UG LAS SCOTT,
Plaintiff-Appellant,
v.

No. 04-8043

DIRK KEM PTHORNE, * Secretary of

the United States, Department of the
Interior,

(D.C. No. 03-CV-153-D)

(D . W yo.)

Defendant-Appellee.

OR D ER AND JUDGM ENT **

Before BRISCO E, HA RTZ, Circuit Judges, and HERRERA, District Judge. ***

This is an appeal from the district courts grant of summary judgment in

favor of the defendant-appellee. W e exercise jurisdiction pursuant to 28 U.S.C.
1291 and, finding no error, affirm the district court.

Pursuant to Fed. R. App. P. 43(c)(2), Dirk Kempthorne, Gale A. Nortons

successor, has been automatically substituted as a party to this appeal.
**

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. We generally disfavor the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of Tenth Circuit Rule 36.3.
***

The Honorable Judith C. Herrera, United States District Judge for the District
of New Mexico, sitting by designation.

B ACKGROUND
In 1986, Yellowstone National Park hired Douglas Scott as a seasonal biotechnician. Eventually, Yellowstone converted Scotts employment to a term
appointment 1 as a wildlife biologist, w hich it renewed annually for several years.
On October 27, 1993, Yellowstone again renewed Scotts employment, granting
him a term appointment not to exceed October 26, 1994. Yellowstone employed
Scott in large measure to work on research regarding the appropriateness of
hunting the M ontana-Yellowstone Pronghorn Herd, a particular species of
antelope. During October of 1993, Scott asserted that Yellowstone gave
preferential treatment in hiring to female staff employees, and on November 10,
1993, he filed a formal EEO complaint to that effect.
In December of 1993, Secretary of the Interior Bruce Babbitt created the
National Biological Survey (NBS), a new federal agency to be staffed by
moving all of the research scientists and their funding from the N ational Park
Service and other agencies of the D epartment of Interior to the NBS. Because
Scott was involved in scientific work, Yellowstone placed him on a list of
employees to be transferred to the new agency. However, the NBS accepted only
the permanent, full-time scientists, rejecting all employees on term appointments,
including Scott. Those less than full-time persons were to remain with the

Term appointments are not permanent positions, but rather appointments for a
fixed period not to exceed four years.
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National Park Service, which no longer had funding or a scientific mission for
those personnel because all of its scientific functions had been transferred to the
NBS. As a result of this lack of funding, on January 1, 1994, Yellowstone
converted Scotts and several other employees positions from term appointments
to non-pay, intermittent status positions. 2
After his appointment became non-pay, Scott continued his research at
Y ellow stone on a voluntary basis. In February of 1994, he pled guilty to two
separate counts of violating M ontana state game law s by misrepresenting his state
of residence in order to obtain resident hunting licenses. The following month, an
official with the M ontana Department of Fish, W ildlife, and Parks informed
Scotts superiors at Yellowstone of his violations of the M ontana game laws.
On M arch 16, 1994, Scott met with officials from the National Park Service
who informed him that he was being discharged for cause due to his violations of
M ontanas wildlife resource laws. Those officials stated that Scotts hunting
license violations were incompatible with his research on the pronghorn antelope,
which was partially funded by the State of M ontana. The government also
presented to the district court evidence, in the form of affidavits, that a hunting
license violation by one of its employees was a source of embarrassment and
stigma to the National Park Service, which is charged with wildlife resource

An employee is placed on intermittent status when limited funds are available or

the activity for which he was hired requires him to work only at certain times of the year.
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management.
On M arch 17, 1994, government officials again met with Scott at his
request. Scott requested that they change the official reason for his termination
from for cause to lack of work or lack of funds in order to protect his
professional reputation. Scott also expressed concern that a termination for cause
would result in his loss of unemployment benefits. In return for this change in
the reason for his termination, Scott offered to withdraw his November 1993 EEO
Complaint alleging sex discrimination. This proposal was attractive to
Yellowstone, in part because it wished to have access to the data and other
research collected by Scott, something that was unlikely if he were terminated for
cause. After several additional meetings between Scott and government officials,
Yellowstone officially changed Scotts termination status from for cause to
lack of funding and permitted Scott to continue the use of his office and
governm ent housing through M ay 28, 1994, in order to complete his work. On
April 5, 1994, Scott executed a Statement of W ithdrawal w ith regard to his
EEO Complaint, wherein he stated, I have not been intimidated, coerced, nor any
conditions placed on me to withdraw my complaint.
On July 25, 1994, Scott filed a second EEO complaint in which he asserted
that the National Park Service had retaliated against him for his prior EEO
activity by threatening to terminate his employment unless he withdrew his first
EEO charge. Scott also stated that his agreed upon reason for termination lack
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of funding was untrue because Yellowstone had received additional funding.

After a two day hearing in w hich he reviewed exhibits and took witness
testimony, an administrative law judge concluded that Scott had failed to prove
his claims and was bound by his prior withdrawal of his EEO claims. On July 9,
2002, Scott filed his Amended Complaint in the United States District Court for
the District of M ontana in which he claimed that the government had retaliated
against him for his protected EEO activities. The case was transferred to the
District of W yoming, and on M arch 26, 2004, the district court granted the
governments motion for summary judgment.
This appeal followed.
D ISCUSSION
I.

Standard of Review
W e review de novo the district courts ruling on the Governments motion

for summary judgment. See W elding v. Bios Corp., 353 F.3d 1214, 1217 (10th
Cir. 2004). Summary judgment is appropriate when the pleadings, deposition
transcripts, affidavits and evidentiary material show that there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Summary judgment will be granted to defendant if plaintiff fails to
make a showing sufficient to establish the existence of an element essential to
that partys case, and on which that party will bear the burden of proof at trial.
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Celotex Corp., 477 U.S. at 322. Thus, to survive summary judgment the plaintiff
has the burden to put forth sufficient evidence to warrant a verdict as a matter of
law; a scintilla of evidence will not suffice. Lanman v. Johnson County, 393
F.3d 1151, 1154-55 (10th Cir. 2004).
II.

Scotts Retaliation Claim

Like the district court, we must evaluate the merits of the defendants

motion for summary judgment pursuant to the shifting allocation of burdens of

proof set forth in M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
the burden is on the plaintiff to come forward with evidence on every element of
his prima facie case. See id. at 802. To establish a prima facie case of retaliation
under Title VII, a plaintiff must demonstrate that (1) he was engaged in protected
opposition to discrimination; (2) that a reasonable employee would have found
the challenged action materially adverse; and (3) a causal connection existed
betw een the protected activity and the materially adverse action. Burlington N. &
Santa Fe Ry. Co. v. W hite, --- U.S. ----, 126 S.Ct. 2405 (2006); Argo v. Blue
Cross and Blue Shield of Kansas, Inc., --- F.3d ---, 2006 W L 1806605, at *7 (10th
Cir. Jul. 3, 2006). 3 Once the plaintiff establishes his prima facie case, the
3

This Court had previously held that a retaliation plaintiff must allege and prove
that he was subject to an adverse employment action. Miller v. Auto. Club of N.M.,
Inc., 420 F.3d 1098, 1119 (10th Cir. 2005). Under Burlington, that is no longer the
correct standard. Instead, to prevail on a Title VII retaliation claim, a plaintiff need only
show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination. Burlington, 126 S.Ct. at 2415
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burden shifts to the employer to offer a facially legitimate rationale for the
materially adverse action. The burden then shifts back to the plaintiff to show the
employers explanation is pretext. Id. at 1120.
In granting summary judgment in favor of the defendant, the district court
relied on two separate rationales to support its ruling. First, when analyzing
Scotts prima facie case, the district court found that he had failed to establish the
existence of a causal connection between his protected activity and the materially
adverse action. In reaching that conclusion, the district court applied the butfor test adopted by the Fourth, Fifth, Seventh, and Ninth Circuit Courts of
Appeals. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65
(9th Cir. 2002); Dunn v. Nordstrom, Inc., 260 F.3d 778, 784 (7th Cir. 2001);
M ayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995); Ross v.
Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated by
Price W aterhouse v. Hopkins, 490 U .S. 228 (1989). This standard requires a
plaintiff to prove that but for the protected activity she would not have been
subjected to the action of which she claims. Jack v. Texaco Research Ctr., 743
F.2d 1129, 1131 (5th Cir. 1984). In the alternative, the district court also found
that Scott had failed to demonstrate that the legitimate, nondiscriminatory reasons
proffered by the government in support of the materially adverse action were

(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (quoting Washington
v. Ill. Dept of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).
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mere pretext for discrimination. Because we agree that Scott failed to

dem onstrate that the governments reasons for his termination were pretextual, w e
need not reach the question of whether the district court should have applied the
but-for test.
Under Tenth Circuit precedent, a plaintiff may demonstrate that the
employers legitimate, non-discriminatory reason for the materially adverse action
is mere pretext by pointing to such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employers proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unw orthy of
credence and hence infer that the employer did not act for the asserted
non-discriminatory reasons. M organ v. Hilti, Inc., 108 F.3d 1319, 1323 (10th
Cir. 1997) (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d
Cir. 1996)). Typically, a plaintiff may show pretext in one of three ways:
(1) with evidence that defendants stated reason for the [materially
adverse action] was false; (2) with evidence that the defendant acted
contrary to a written company policy prescribing the action taken by
the defendant under the circumstances; or (3) w ith evidence that . . .
he was treated differently from other similarly-situated employees
who violated w ork rules of comparable seriousness.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)
(internal citations omitted). W ith regard to pretext, the question is whether the
employer honestly believed its non-discriminatory reason. W hether the employer
was mistaken or its decision foolish is of no moment; rather, the issue is whether

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its proffered reason is sincere. Stover v. M artinez, 382 F.3d 1064, 1076 (10th
Cir. 2004). Finally, a plaintiff must provide specific facts showing that the
employers reasons for its materially adverse action are pretextual; a generalized
suspicion is not enough. Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th
Cir. 2004).
In this case, the government offers two legitimate, non-discriminatory
reasons for terminating Scotts employment. First, the government has
demonstrated that the research functions performed by Scott, as well as the
funding for those functions, were transferred to the NBS an entirely separate
agency leaving Scott without viable employment at Yellowstone. Thus, the
burden shifts to Scott to set forth evidence to support an inference that this reason
for his termination was mere pretext. Scott cites to defense counsels opening
statement at the administrative hearing that there was still the work to be done;
there was still funds for the work to be done as evidence that this explanation for
his termination was pretextual. How ever, Scott misleadingly quotes only the first
half of defense counsels sentence, the second half of w hich states: but the w ork
was now the responsibility of NBS and not Yellowstone National Park. The funds
were now in the bank for NBS and not Yellowstone National Park. Thus, when
viewed as a whole, it is clear that defense counsels statement contains no
concession or judicial admission as Scott contends, but rather is consistent with
the governments position that the work and funding had been transferred to
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another agency, thereby justifying Scotts dismissal from Yellowstone.

Scott also argues that there is no evidence that any other term or nonpay, intermittent status employees were terminated early due to the transfer of
money and research to NBS, which indicates that he received disparate treatment.
Under M cDonnell Douglas, however, it is not the governments burden to come
forward with evidence that its legitimate, non-discriminatory reason is not
pretextual that is, evidence that it treated all similarly situated employees the
same as Scott. Rather, Scott has the affirmative burden to demonstrate pretext.
One primary method of doing so is to show that he was treated differently from
other similarly-situated employees. See Kendrick, 220 F.3d 1220, 1230 (10th Cir.
2000). Scott has not met his burden to come forward with such evidence, and it is
not sufficient for him merely to point to the absence of evidence in the record.
The government also presented evidence of its second legitimate, nondiscriminatory reason for terminating Scotts employment: that he violated
M ontanas hunting license laws and that such violations were both embarrassing
to the National Park Service and inconsistent with Scotts research on the
M ontana-Yellowstone Pronghorn Herd. Scott argues that this reason is pretextual
because other employees of the National Park Service engaged in similar
infractions yet suffered no materially adverse action. Again, Scott fails to point
to evidence in the record to support his assertions. Scott argues that an
unidentified park officer received a citation for driving under the influence yet
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received no punishment. However, Scott fails to cite evidence that supports this
assertion or that explains how the officer was similarly situated to Scott. Scott
also points to testimony that indicates that his supervisors son received a citation
for violating hunting laws, yet received no materially adverse action. However,
the testimony that Scott cites does not clearly indicate whether his supervisors
son was even employed by Yellowstone at the time of his violation, what the
scope of his employment was, what the nature of his infraction was, or what the
consequences were that he may have suffered as a result. In fact, the testimony
that Scott cites reveals that the witnesses questioned on the topic had very little
information about the event in question. Scott also argues that his infractions
were not serious enough to justify his termination because his supervisor had to
make his case to other officials that Scott should be terminated. The testimony
Scott cites, however, simply does not support his version of events.
Finally, Scott cites to testimony from one government official who stated
that Scott was not ultimately discharged for hunting license violations. W hile this
is an accurate description of the officials testimony, it does nothing to establish
pretext. There is no dispute in the record that initially Yellowstone terminated
Scotts employment because of his violations of M ontana hunting laws, but
ultimately agreed to change the official reason for his termination to lack of w ork
and lack of funding. The unchallenged evidence shows that both lack of funding
and wildlife resource law violations were valid reasons for ending the
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employment relationship, and that ultimately the government settled on the

former at Scotts urging. Scott has not come forward with evidence to
demonstrate that his failure to comply with M ontana state hunting laws was not
the true reason for the materially adverse action.
In light of the foregoing, we conclude that the district court did not err in
granting the governments motion for summary judgment. Having carefully
reviewed the briefs, the record, and the applicable law, we AFFIRM the judgment
of the district court.
Entered for the Court

Judith C. Herrera
District Judge

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