F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
MAY 12 2005
FOR THE TENTH CIRCUIT
v. (D.C. No. 03-D-623 (PAC))
RED ROOF INNS, INC.,
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Plaintiff-appellant Eva Lyons, proceeding pro se, appeals the district
court's grant of summary judgment in favor of her former employer,
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
defendant-appellee Red Roof Inns, Inc. (RRI), on her claims that RRI
discriminated and retaliated against her in violation of Title VII of the Civil
Rights Act of 1964. See 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a). Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.
Lyons is a white female. Lyons was employed by RRI from March 1997 to
December 2001 at RRI's hotel #239 in Colorado Springs, Colorado. Lyons
started in the housekeeping department, but she subsequently became a guest
service representative with front desk responsibilities. RRI terminated Lyons'
employment in December 2001 because she had allegedly failed to perform the
duties of her job. These failures included: (1) failing to perform "room racks" on
December 11, 2001 after she had received specific instructions on October 16,
October 21, and December 10, 2001, that room racks were a required part of her
job; 1 (2) falsifying a record pertaining to the room racks that she failed to
perform; and (3) taking home the key for the hotel safe. See R., Doc. 16., Ex. D
at 3-4, Â¶Â¶ 13-16; Ex. H.
"Room racks" are hotel room inspections that RRI guest service
representatives are required to perform in order to "verify which rooms are
occupied, and which are available for rent." R., Doc. 16, Ex. D at 3, Â¶ 13.
[End Page 2]
In her complaint, Lyons claimed that RRI terminated her "with intent to
discriminate because of [her] race/color (caucasian/white)" and "because of [her]
sex (female)." Id. , Doc. 3 at 3, 4. Lyons claimed that her termination amounted
to discriminatory disparate treatment because she was treated differently than a
similarly situated female African-American employee and a similarly situated
male employee. Id. In addition, Lyons claimed that RRI "retaliated against [her]
for helping a former co-worker, Harley Lyons, [who is now her husband], with his
own case of discrimination against Red Roof Inns." 2
Id. at 5.
The magistrate judge concluded that Lyons had failed to put forth sufficient
evidence to establish a prima facie case of either gender or reverse racial
discrimination. The magistrate judge also concluded that Lyons had failed to put
forth sufficient evidence to establish a prima facie case of retaliation. The
magistrate judge therefore recommended to the district judge that RRI's motion
for summary judgment be granted. The district judge adopted the magistrate
judge's recommendation and entered judgment in favor of RRI.
In an unpublished order and judgment filed this date in appeal No. 04-1275,
this panel affirmed the district court's grant of summary judgment in favor of RRI
on Mr. Lyons' reverse discrimination claims under Title VII.
[End Page 3]
A. Summary Judgment Standards.
"We review the grant of summary judgment de novo applying the same
standard as the district court embodied in Rule 56(c)." Adler v. Wal-Mart Stores,
Inc. , 144 F.3d 664
, 670 (10th Cir. 1998). Under Rule 56(c), summary judgment is
proper if "there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "In
applying this standard, we view the factual record and draw all reasonable
inferences therefrom most favorably to the nonmovant." Adler , 144 F.3d at 670.
We also construe Lyons' pro se pleadings liberally. See Diaz v. Paul J. Kennedy
Law Firm , 289 F.3d 671
, 674 (10th Cir. 2002). Nonetheless, Lyons must set forth
sufficient facts to support her claims, id. , and "[c]onclusory allegations that are
unsubstantiated do not create an issue of fact and are insufficient to oppose
summary judgment," Harvey Barnett, Inc. v. Shidler , 338 F.3d 1125
, 1136 (10th
Cir. 2003) (quotation omitted); see also Fed. R. Civ. P. 56(e) ("When a motion
for summary judgment is made and supported as provided in this rule, . . . the
adverse party's response . . . must set forth specific facts showing that there is a
genuine issue for trial.").
[End Page 4]
B. Gender Discrimination Claim.
"When a plaintiff relies on circumstantial evidence to prove employment
discrimination, we apply the three-step burden-shifting framework set forth in
McDonnell Douglas and its progeny." Plotke v. White , __ F.3d __, 2005 WL
984363, at *5 (10th Cir. April 28, 2005) (citing McDonnell Douglas Corp. v.
Green , 411 U.S. 792
, 800-07 (1973)).
McDonnell Douglas first requires the aggrieved employee to
establish a prima facie case of prohibited employment action. The
burden of establishing a prima facie case by a preponderance of the
evidence is not onerous. Furthermore, this burden is one of
production, not persuasion; it can involve no credibility assessment.
If the employee makes a prima facie showing, the burden shifts to the
defendant employer to state a legitimate, nondiscriminatory reason
for its adverse employment action. If the employer meets this
burden, then summary judgment is warranted unless the employee
can show there is a genuine issue of material fact as to whether the
proffered reasons are pretextual.
Id. (quotations and citations omitted).
One way for Lyons to establish a prima facie case of discriminatory
discharge is by showing that: (1) she is a member of a protected class; (2) she was
qualified to perform her job; (3) despite her qualifications, she was discharged;
and (4) the job was not eliminated after her discharge. See Perry v. Woodward ,
199 F.3d 1126
, 1135 (10th Cir. 1999); Plotke , 2005 WL 984363, at *6. We agree
with the magistrate judge that Lyons put forth sufficient evidence to support the
first three elements of her prima facie case of gender discrimination. See R., Doc.
[End Page 5]
29 at 5. We also conclude that Lyons has satisfied the fourth element of her
prima facie case, as there is no evidence in the record indicating that her position
at RRI was eliminated following her termination. 3
We also note that the
magistrate judge utilized the wrong test when she set forth the fourth element of
the prima facie case. 4
This error does not affect the validity of the district court's entry of
summary judgment "if there is an alternative ground for affirming the result
reached." Ashby v. McKenna , 331 F.3d 1148
, 1151 (10th Cir. 2003). "We are
In her opening brief, Lyons alleges that another RRI employee "took over
[her] position permanently after [she] was terminated," Aplt. Opening Br. at 7,
and RRI has not disputed this allegation, see Aplee. Br. at 4, n.1, 6, 9-10. In
accordance with Perry , Lyons has therefore satisfied the fourth element of her
prima facie case. See Perry , 199 F.3d at 1140 (holding that an employee made
out the fourth element of her prima facie case of racial discrimination where "it
[was] undisputed that after her termination, a replacement was hired to fill [her]
The magistrate judge stated that Lyons was required to show that "she was
treated less favorably than others not in the protected class" to satisfy the fourth
element of her prima facie case. R., Doc. 29 at 5 (citing Bullington v. United Air
Lines, Inc. , 186 F.3d 1301
, 1315-16 (10th Cir. 1999)). This is an incorrect statement of the law, however, because this court subsequently held in Perry that
a Title VII plaintiff may satisfy the fourth element of the prima facie case by
demonstrating that "the job from which she was terminated was not eliminated."
Perry , 199 F.3d at 1140. Although Perry did not expressly overrule Bullington ,
we have recognized that Perry is "[t]he most definitive Tenth Circuit case on the
formulation of the fourth prong of a plaintiff's prima facie case pursuant to
McDonnell Douglas ," and that "comparison to a person outside of the protected
class in the fourth prong of the prima facie case is unnecessary to create an
inference of discriminatory discharge." Kendrick v. Penske Transp. Servs., Inc. ,
220 F.3d 1220
, 1228, 1229 (10th Cir. 2000).
[End Page 6]
free to affirm a district court decision on any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court." United States v. Sandoval , 29 F.3d 537
, 542 n.6 (10th Cir. 1994)
(quotation omitted). For purposes of this appeal, there is only one potential
alternative ground for affirming the result reached by the district court, and that is
that Lyons failed to put forth sufficient evidence to establish that RRI's proffered
reasons for terminating her were pretextual. Based on the record currently before
this court, however, there are genuine issues of material fact which preclude us
from affirming the district court's grant of summary judgment on that alternative
To put forth sufficient evidence of pretext to survive summary judgment, a
plaintiff is not required to show that the employer was motivated by a
discriminatory animus. Randle v. City of Aurora , 69 F.3d 441
, 451 (10th Cir.
1995). Instead, at the summary judgment stage, once the employer comes forward
with a facially nondiscriminatory reason for an adverse employment decision, the
plaintiff's burden is only to demonstrate that a genuine issue of material fact
exists as to whether the proffered reasons were unworthy of belief. Id. ; see also
Plotke , 2005 WL 984363, at *8 ("A plaintiff can show pretext by revealing such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer's proffered legitimate reasons for its action that a reasonable
[End Page 7]
factfinder could rationally find them unworthy of credence.") (quotation omitted).
As a result, if a plaintiff "presents evidence that the defendant's proffered reason
for the employment decision was pretextual "" i.e. unworthy of belief, the plaintiff
can withstand a summary judgment motion and is entitled to go to trial." 5
69 F.3d at 451.
Given these standards, Lyons can survive summary judgment on the issue
of pretext by putting forth evidence showing "that [RRI's] stated reason for the
adverse employment action was false." Kendrick v. Penske Transp. Servs., Inc. ,
220 F.3d 1220
, 1230 (10th Cir. 2000). Having carefully reviewed the summary
judgment record, we conclude that Lyons has made a such a showing, and that the
district court therefore erred in granting summary judgment in favor of RRI on
Lyons' gender discrimination claim.
To support its claim that it had a legitimate, nondiscriminatory reason for
terminating Lyons, RRI submitted an affidavit from Lyons' supervisor, Shane
DeVilbiss, a white male. In his affidavit, DeVilbiss stated the following:
The problem with [Lyons'] refusal to do the room rack
escalated to a point where [on December 11, 2001] I tested to see if,
If a case proceeds to trial, however, "the presumption of discrimination
created by the prima facie showing simply drops out of the picture." Randle , 69
F.3d at 453 (quotation omitted). "At trial, the plaintiff must prove illegal
discrimination either (1) inferentially by showing that the proffered reason is a
pretext for discrimination ; and/or (2) directly by offering direct evidence of
discrimination." Id. (footnote omitted).
[End Page 8]
as I suspected, she was not performing this function of her job. To
do this, I selected a few rooms around the hotel which had been
cleaned. I disturbed the room[s] by pulling down the covers and
moving furniture. If [Lyons] had been doing the room rack as she
was required to do, her room rack report would have noted these
rooms "dirty." When her report showed the rooms as "clean" I knew
that [Lyons] had falsified her report and, as I suspected, failed to
perform all her assigned duties and responsibilities. I also retained a
copy of the front desk security video to verify that, during her shift,
[Lyons] did not leave the front desk for periods of time sufficient to
perform this important function. When I confronted [Lyons] about
this final violation of policy, she admitted the falsification.
. . . I also learned that, contrary to strict RRI security policies,
[Lyons] had been taking the safe key home with her at night. [Lyons]
refused to return the key for some period of time but eventually it
R., Doc. 16, Ex. D at 4, Â¶Â¶ 15-16.
In the affidavit that she submitted in opposition to RRI's motion for
summary judgment, Lyons directly disputed DeVilbiss's allegations that she failed
to perform a proper room rack during her shift on December 11, 2001, and that
she prepared a falsified room rack report. She also alleged that DeVilbiss had
specifically instructed her to take the safe key home with her.
I never ever refused to perform any duties and responsibilities
of my job including room racks. And I deny ever falsifying my room
racks. Shane DeVilbiss alleges I was terminated for not completing a
room rack on December 11, 2001. His allegation is false. The room
rack he fired me for was Darla K. Thompson's room rack. On
December 11, 2001 I arrived to work early and did my room rack
before I clocked in. My room rack was thorough and complete.
Shane phoned my home on December 12, 2001 and informed me I
was fired for not completing my room rack and he accused me of
copying Doug Jose's room rack which is not possible because Doug's
[End Page 9]
room rack was not complete. He informed me that three rooms were
dirtied before I arrived to work to see if I would mark them dirty on
the room rack report. I asked Shane which three rooms they were
and he did not tell me. . . .
. . . At no time did I ever refuse to return the safe key to Shane
DeVilbiss and I did not take the safe key home against strict Red
Roof Inn security policies. I took the keys home because I was
ordered to do so by Shane DeVilbiss. I was Shane's relief manager
and we were the only persons with keys to access the hotel safe.
Shane instructed me to take the keys home daily to prevent anyone
else from having access to the safe. Shane phoned my home on
December 13, 2001 the day after I was fired, and asked me to return
the keys and I told him I would when I picked up my final pay check.
On December 14, 2001 Shane phoned my home again and threatened
to have money taken out of my check to have the safe re-keyed if I
did not return the keys promptly. I returned the keys within minutes
of his threat.
Id. , Doc. 26, Ex. 1 at 3, Â¶Â¶ 8, 12.
Based on the allegations in her affidavit, we conclude that Lyons has
sufficiently disputed DeVilbiss's allegations to survive summary judgment on the
issue of pretext. Thus, the district court erred in granting summary judgment in
favor of RRI on Lyons' gender discrimination claim.
C. Reverse Racial Discrimination Claim.
Lyons' claim that she was subjected to disparate treatment because she is
white is subject to a reverse discrimination analysis. As a result, in evaluating
Lyons' prima facie showing under the McDonnell Douglas paradigm, the
magistrate judge was required to apply the standards that this court adopted in
[End Page 10]
Notari v. Denver Water Dep't , 971 F.2d 585
(10th Cir. 1992). Under Notari , for a
reverse discrimination claimant to establish a prima facie case of discrimination,
the claimant must "establish background circumstances that support an inference
that the defendant is one of those unusual employers who discriminates against
the majority." Id. 589. "Alternatively, a reverse discrimination plaintiff may
satisfy the first prong of McDonnell Douglas by presenting "˜indirect evidence
sufficient to support a reasonable probability, that but for the plaintiff's status the
challenged employment decision would have favored the plaintiff.'" Stover v.
Martinez , 382 F.3d 1064
, 1076 (10th Cir. 2004) (quoting Notari , 971 F.2d at
We agree with the magistrate judge that Lyons failed to put forth sufficient
evidence to establish a prima facie case of reverse racial discrimination, as Lyons
"has produced insufficient evidence from which a jury could find that Red Roof
engaged in a pattern of terminating white employees because of an anti-white
bias." R., Doc. 29 at 19. As a result, we agree with the magistrate judge that
Lyons "has failed to point to evidence to demonstrate that Red Roof is one of
those unusual employers who discriminates against the majority." Id.
We also agree with the magistrate judge that Lyons has not produced any
"indirect evidence sufficient to support a reasonable probability, that, but for her
[End Page 11]
status as a white person, she would not have been disciplined or terminated." Id.
at 17. In particular, we agree with the following analysis of the magistrate judge:
It is clear that plaintiff believes she was being singled out for unfair
treatment. However, there is a difference between unfair treatment
and illegal treatment. Plaintiff fails to provide content sufficient
evidence of any pattern that Red Roof treated similarly situated
African American or Hispanic employees more favorably than white
employees, including Lyons. Rather, the evidence allows only the
inference that plaintiff believed that she was being picked on and
that she believed she was unfairly disciplined and then terminated
because she believed that [her supervisor] was biased against white
Id. at 18. Accordingly, we conclude that the district court did not err in granting
summary judgment in favor of RRI on Lyons' reverse racial discrimination claim.
D. Document Requests Related to Disparate Treatment Claims.
In her opening brief, Lyons claims that the district court erred by "denying
her pertinent evidence to help her further prove pretext and [that] discriminatory
adverse employment actions did occur." Aplt. Opening Br. at 4. Specifically,
Lyons argues that the district court erred by failing "to order Red Roof Inns to
supply her with all Room Rack Reports of all employees in the years 2001 and
2002." Id. Having carefully reviewed the record (in particular, the motion to
compel that Lyons filed in the district court, see R., Doc. 19), we conclude that
the district court did not abuse its discretion in refusing to order RRI to produce
the requested room rack reports in the context of RRI's motion for summary
[End Page 12]
See Soma Med. Int'l v. Standard Chartered Bank , 196 F.3d 1292,
1300 (10th Cir. 1999) ("We review discovery rulings for an abuse of discretion.").
First, Lyons failed to move for a discovery continuance under Rule 56(f)
during the proceedings before the magistrate judge. Consequently, Lyons waived
any issues under Rule 56(f). See Marshall v. Chater , 75 F.3d 1421
, 1426 (10th
Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived."). Second, even if the arguments set forth
in Lyons' motion to compel had been submitted to the magistrate judge as part of
a proper Rule 56(f) motion and affidavit, it would have been an abuse of
discretion for the magistrate judge to grant a discovery continuance under Rule
56(f). See Jensen v. Redevelopment Agency of Sandy City , 998 F.2d 1550
(10th Cir. 1993) ("We review a district court's denial of a Rule 56(f) motion for
an abuse of discretion.").
To be entitled to a discovery continuance under Rule 56(f), a party must
show precisely how additional discovery will lead to a genuine issue of material
fact. See Jensen , 998 F.2d at 1554; Price ex rel. Price v. W. Res., Inc. , 232 F.3d 779
, 783 (10th Cir. 2000). Here, Lyons claims that the room rack reports for
2001 are "relevant and needed . . . to name all other employees who committed
Because they are relevant to the discovery issues raised by Lyons in this
appeal, we have supplemented the record before this court with the following
district court documents: Docs. 19, 20, 21, 28, 30.
[End Page 13]
the same or similar offense as Eva Lyons in the year 2001." R., Doc. 19 at 1-2.
We disagree. As the exhibits attached to Lyons' summary judgment response
brief demonstrate, the room rack reports do not contain enough information to
make that determination. Id. , Doc. 26, Exs. 19, 20, 21. As a result, even if Lyons
had obtained the room rack reports for 2001, the reports would have been
insufficient for purposes of defeating RRI's motion for summary judgment.
Lyons' claim that she needed the room rack reports for 2002 to oppose
RRI's motion for summary judgment is also without merit. As set forth above,
Lyons argues that "[d]ocuments of room rack reports in the year 2002 [are]
needed to prove that after Red Roof Inns employer set up and terminated Eva
Lyons for not completing a room rack report, the employer no longer expected
employees to complete room rack reports." Id. , Doc. 19 at 2 (emphasis added).
However, to the extent that the alleged elimination of the room-rack requirement
was applied across the board to all RRI employees as Lyons alleges, then it has no
relevance to her claim that RRI treated its white female employees less favorably
than other employees.
Finally, we note that the discussion set forth herein concerning the above-
referenced discovery issues is limited to the context of RRI's motion for summary
judgment. Consequently, the district court is free to address any additional
discovery issues that may arise in connection with the remand of Lyons' gender
[End Page 14]
discrimination claim. That said, we express no opinion as to whether any
additional discovery would be appropriate on remand, and we leave the matter of
discovery to the discretion of the district court.
E. Retaliation Claim.
Title VII forbids retaliation against an employee because she "has opposed
any practice made an unlawful employment practice by [Title VII], or because
[s]he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
In cases such as this one, "[w]here there is no direct evidence of retaliation, we
analyze a retaliation claim under the McDonnell Douglas burden-shifting
framework." Stover , 382 F.3d at 1070. Under the McDonnell Douglas
framework, an employee must first establish a prima facie case of retaliation. Id.
"To state a prima facie case of retaliation, [Lyons] must demonstrate that: (1) she
engaged in protected opposition to discrimination; (2) [RRI] took an adverse
employment action against her; and (3) there exists a causal connection between
the protected activity and the adverse action." Id. at 1071.
Lyons claims that she has put forth sufficient evidence to establish a prima
facie case of retaliation because: (1) she was listed as a witness on Harley Lyons'
Colorado Civil Rights Division intake form, see R., Doc. 26, Ex. 16 at 2; (2) "Red
Roof Inn and Shane DeVilbiss . . . had access to Harley Lyons['] CCRD intake
[End Page 15]
form" and were "100% aware that [she] gave assistance to Harley Lyons in
support of his charge of discrimination," id. , Doc. 26 at 8; and (3) "the adverse
actions [taken] against her [by RRI] were related to her relationship with Harley
Lyons and her involvement with his case of discrimination against Red Roof Inn,"
As noted by the magistrate judge, "[t]estifying for an employee who has
filed a charge or a lawsuit claiming a violation of Title VII is a protected activity
under Title VII, but an employer cannot engage in unlawful retaliation if it does
not know that the employee has opposed or is opposing a violation of Title VII."
Id. , Doc. 29 at 22 (citing Petersen v. Utah Dep't of Corr. , 301 F.3d 1182
(10th Cir. 2002)). According to the magistrate judge, Lyons "[f]ail[ed] to meet
the employer knowledge first element of a prima facie case of retaliation,"
because "[p]laintiff . . . fail[ed] to provide any evidence that Red Roof knew that
she was a listed witness for her husband in his discrimination case at any time
between the time he filed his charge, or his lawsuit in May of 2001, and the date
plaintiff was fired in December of 2001." Id. at 23.
The magistrate judge is correct that "an employer cannot engage in
unlawful retaliation if it does not know that the employee has opposed or is
opposing a violation of Title VII." Petersen , 301 F.3d at 1188. We also agree
with the magistrate judge that there is no specific factual evidence in the record
[End Page 16]
showing that Lyons' supervisor knew at the time he terminated her that she was
listed as a witness in Harley Lyons' discrimination case or was otherwise
assisting him with his discrimination case. 7
Instead, the record indicates only that
there are disputed factual issues concerning when Lyons' supervisor became
aware of Lyons' romantic involvement with Harvey Lyons. The latter factual
issues, while tangentially relevant, are insufficient to defeat RRI's motion for
In her affidavit, Lyons claimed that "[t]he [Colorado Civil Rights Division]
intake form remained in the files which Red Roof Inn had access to and Red Roof
Inn ultimately knew I was assisting Harvey Lyons." R., Doc. 26, Ex. 1 at 2, Â¶ 7.
Lyons failed to set forth specific facts to support this conclusory allegation,
however. As a result, even if Lyons had been "actively helping [Harvey Lyons]
with his lawsuit" and had "agreed to be a witness for him," id. , Â¶Â¶ 5, 7, she failed
to put forth specific evidence showing that RRI was aware of those facts at the
time of her termination.
[End Page 17]
The judgment of the district court is AFFIRMED IN PART and
REVERSED and REMANDED IN PART for further proceedings. 8
requesting oral argument is DENIED. Entered for the Court
Stephen H. Anderson
In her opening brief, Lyons claims that the district court erred because it
"did not address [her] wrongful termination claim." Aplt. Opening Br. at 3. To
the extent that Lyons is referring to a state-law claim for wrongful termination,
this argument is without merit, as Lyons' complaint does not contain any state-law claims. See R., Doc. 3. Moreover, the district court did address her
claim that she was terminated in violation of Title VII.
[End Page 18]