                                                                            FILED
                                                                United States Court of Appeals
                                       PUBLISH                          Tenth Circuit

                    UNITED STATES COURT OF APPEALS                      May 5, 2014

                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court


CHARLES DAVIS,

             Plaintiff - Appellant,

v.                                                        No. 13-3224

UNIFIED SCHOOL DISTRICT 500;
STEPHEN VAUGHN,

             Defendants - Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                   (D.C. No. 2:12-CV-02013-EFM)


Submitted on the briefs:*

Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka,
Kansas, for Plaintiff-Appellant.

Deryl W. Wynn, Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A.,
Kansas City, Kansas, for Defendants-Appellees.


Before BRISCOE, Chief Judge, PORFILIO and O’BRIEN, 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.
O’BRIEN, Circuit Judge.


      Charles Davis has been employed as a custodian with Unified School District

No. 500 (“USD 500”) since 1991. In 2007, the school board considered a

recommendation to terminate his employment when he was found lying naked on his

stomach, sunbathing on the roof of the elementary school where he worked. Instead,

the Board decided upon a suspension without pay for thirty days and demoted him

from his position as head custodian. From 2008 to 2012, Davis applied for head

custodian positions at seven different schools within USD 500, but was not hired for

any of them. In 2008, 2010, and 2011, he filed claims with the Equal Employment

Opportunity Commission (“EEOC”), originally alleging racial discrimination and

later both discrimination and retaliation for filing EEOC claims. In January 2012,

Davis filed suit against USD 500 and Stephen Vaughn, the Director of Human

Resources for the district, claiming: (1) retaliation by Vaughn in violation of

42 U.S.C. § 1981; (2) retaliation by USD 500 in violation of Title VII and § 1981;

(3) delayed payment of overtime compensation by USD 500 in violation of the Fair

Labor Standards Act (“FLSA”).

      The district court entered summary judgment in favor of USD 500 and

Vaughn. This appeal followed.1 In a nutshell the key issue is whether a common


1
       On appeal, Davis does not challenge the district court’s ruling on his FLSA
overtime claim. Accordingly, he has waived any challenge to that ruling.
See Silverton Snowmobile Club v. U.S. Forest Service, 433 F.3d 772, 783 (10th Cir.
                                                                            (continued)
                                        -2-
purpose to retaliate against Davis must be inferred from the sheer volume of his

promotion denials; we think not when seven independent and informed decision

makers are involved. We affirm.2

                                     I. Discussion

      Our review is de novo. Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194

(10th Cir. 2011). “Summary judgment is appropriate ‘if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). The parties are familiar with

the background facts. Our analysis will discuss them as necessary.

      “A plaintiff may prove violation of Title VII or 42 U.S.C. § 1981—the

standards are the same—either by direct evidence of discrimination, or by adhering to

the burden-shifting framework of McDonnell Douglas Corp. v. Green [.]” Crowe,

649 F.3d at 1194 (citations omitted). Davis has offered no direct evidence of

discrimination so his claims proceed under the McDonnell Douglas framework,

which requires him to first establish a prima facie case of retaliation, see Twigg v.

Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011). To do so he must

prove: (1) he engaged in protected activity; (2) he suffered an adverse employment

action; and (3) there is a causal connection between his protected activity and the


2006) (“The failure to raise an issue in an opening brief waives that issue.” (brackets
and internal quotation marks omitted)).
2
      Our jurisdiction derives from 28 U.S.C. § 1291.


                                          -3-
adverse employment action. See id. The Supreme Court has recently clarified the

causation standard for Title VII retaliation claims, explaining: “[A] plaintiff making

a retaliation claim under § 2000e-3(a) must establish that his or her protected activity

was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).

      Because Davis failed to establish a prima facie case, he lost the summary

judgment debate. He disagrees with the district judge.

      A. Retaliation Claim against Vaughn

      Each school building within USD 500 has a head custodian. When there is a

vacancy for a head custodian position, the Buildings and Grounds Department, led by

Joseph Herbin, prepares a request for the Human Resources (“HR”) Department to

fill the position. The HR Department then internally posts the head custodian job

vacancy for a two-week period. During this time, any current custodian may apply to

fill the open position. The HR Department receives all of the internal job

applications, reviews them, and forwards the names of qualified applicants to the

hiring managers. For head custodian positions, the hiring managers are Herbin and

the school principal at the building with the vacancy. The principal, sometimes with

Herbin’s assistance, conducts interviews. In practice the principal selects one of the

applicants to fill the vacant position; Herbin’s role in the actual selection is minimal

to non-existent. The HR Department and Vaughn do not make promotion decisions.




                                          -4-
      In response to summary judgment, Davis alleged Vaughn failed to submit his

application for posted head custodian openings at two schools (Wellborn and Silver

City). As evidence he claims not to have received an email notice (the whole process

is electronic) indicating his name had been “referred for consideration” for those

positions. He also claims Vaughn failed to investigate the qualifications of the

successful applicants.

      Davis’ EEOC complaints constituted protected opposition to alleged

discrimination. On that, the parties agree. They disagree as to whether Vaughn took

any adverse employment actions against Davis.

      According to Davis, Vaughn’s failure to include his name for consideration by

the hiring authority at those two schools was an adverse employment action. In his

deposition, Vaughn testified it was his belief he submitted Davis’s name to the

building administrators in charge of hiring for all of the head custodian positions for

which Davis applied, making the legal premise (even if correct) a moot point. With

regard to the Wellborn School position, Vaughn introduced evidence in his summary

judgment motion of a computer printout showing Davis’ name to have been

submitted for that position.

      As for the Silver City School position, Vaughn testified to having searched the

HR records in an attempt to confirm which applicants were included on the qualified

candidates list, but was unable to locate any records with that information. Davis




                                          -5-
did, however, receive a notice indicating he had been “Screened IN” for the position.

Aplt. App. at 168. Vaughn explained in his affidavit:

      [T]he fact that [the notice] has the notation “screened in” . . . does not
      mean that Plaintiff was not included in the list of qualified applicants
      provided by the [HR] Department to the school and the Buildings and
      Grounds Department. Initially, “screened in” was the status that the
      [HR] Department used for applicants that it was referring to the
      individual schools as qualified for the vacant positions. At some later
      date, the [HR] Department began to add the more descriptive phrase of
      “referred for consideration.”

Aplee. Supp. App. at 192.

      Based on undisputed evidence the district judge concluded Davis’ name was

submitted for the Wellborn position. With respect to the Silver City position, the

judge concluded:

      Vaughn explained in an affidavit that, although he could not find any
      records showing which applications were submitted to Silver City
      Elementary School, the “referred for consideration” designation was
      something the [HR] Department added more recently. Therefore,
      Davis’s application may have been passed along for that head custodian
      position. Given the lack of evidence that Vaughn excluded Davis’s
      application for the vacation head custodian position at Silver City
      Elementary School—let alone that a retaliatory animus motivated such
      exclusion—no reasonable jury could find by a preponderance of the
      evidence that Vaughn took adverse employment action against Davis.

Aplt. App. at 233-34.

      We see no error in the judge’s analysis.

      The judge also concluded Vaughn’s alleged failure to investigate the

qualifications of the other custodial applicants did not fall within the definition of an

adverse employment action. He was correct in that assessment because the HR


                                          -6-
department was only responsible to insure all applicants referred for consideration

were minimally qualified. It, and Vaughn, had no role in ranking the applicants.

Even if an unqualified applicant somehow slipped through the cracks we fail to see

how that would be an adverse employment action against Davis. Summary judgment

was appropriate.

      B. Retaliation Claim against USD 500

      The district judge analyzed the circumstantial evidence Davis submitted to

support his retaliatory motive contention with respect to USD 500’s failure to

promote him. The judge ultimately concluded Davis failed to present sufficient

evidence of a causal connection between his protected activities and unsuccessful

attempts to be promoted. That connection is a necessary part of a prima facie case.

      We note the absence of any discussion by the district judge about the number

of unsuccessful promotion attempts by Davis (seven different schools over a period

of four years). Davis, on the other hand, makes much of it and wants to draw an

inference of common purpose. He seems to think the number of times he was passed

over is alone sufficient to establish a prima facie case. He is wrong. The sheer

number of failed attempts might be significant in a different context or if more

completely developed, but in this case it is little more than rank speculation.




                                          -7-
      Davis must make a prima facie case of but-for causation with respect to each

discrete incident of being passed over for a promotion.3 In the alternative, he would

need to show a conspiracy among the disparate actors amounting to a common

retaliatory motive. He has done neither. The principals of each of those schools

independently investigated the applicants and made the hiring decisions. There is no

evidence of concerted activity among them or with the HR department. In fact, there

is no evidence of any principal’s knowledge of Davis’ protected activity and we see

no reason to impute the HR Department’s knowledge to any of them. Cf. Macon v.

United Parcel Serv. Inc., 743 F.3d 708, 718 (10th Cir. 2014) (explaining any

improper motive on part of supervisor, who was not the final decision-maker, could

not be imputed to UPS when its independent grievance panel concluded there was an

adequate reason to terminate plaintiff and there was no evidence the grievance panel

shared supervisor’s alleged retaliatory motive).




3
        We are, of course, aware of our decision in Smothers v. Solvay Chems., Inc.,
740 F.3d 530, 540-41 (10th Cir. 2014), where we treated a committee of shifting and
overlapping members as a single entity for purposes of the common supervisor rule.
But this case does not even come close. Davis implies, without evidence, that
Herbin, the Coordinator of Buildings and Grounds, was the common, connecting
thread. Although Herbin testified he sat in on the interviews for the head custodian
positions, his role was to answer technical questions about the job duties. He
testified to never having been the decision maker or attempting to influence the
interview process; he left it entirely to the principals to choose whom among the
qualified candidates to interview and hire. His testimony was not effectively
impeached, even for summary judgment purposes. There is no common supervisor or
“cat’s paw” issue here.


                                         -8-
      Because Davis failed to establish a causal connection between his protected

activity and each school’s independent decision not to hire him, the district court

properly granted summary judgment in favor of USD 500.

                                    II. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.




                                         -9-
