                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                              July 17, 2006
                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court


 DO UG LAS SCOTT,

           Plaintiff-Appellant,
 v.                                                            No. 04-8043
 DIRK KEM PTHORNE, * Secretary of                      (D.C. No. 03-CV-153-D)
 the United States, Department of the                         (D . W yo.)
 Interior,

           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 court’s 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. Norton’s
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         This order and judgment is not binding precedent, except under the doctrines of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 bio-

technician. Eventually, Yellowstone converted Scott’s 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 Scott’s 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



      1
        Term appointments are not permanent positions, but rather appointments for a
fixed period not to exceed four years.

                                          -2-
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 Scott’s 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

Scott’s 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 ontana’s wildlife resource laws. Those officials stated that Scott’s 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



       2
         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.

                                            -3-
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 Scott’s 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

                                         -4-
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

government’s motion for summary judgment.

      This appeal followed.

                                    D ISCUSSION

I.    Standard of Review

      W e review de novo the district court’s ruling on the Government’s 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 party’s case, and on which that party will bear the burden of proof at trial.”

                                         -5-
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.    Scott’s Retaliation Claim

       Like the district court, we must evaluate the merits of the defendant’s

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

                                             -6-
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

employer’s 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

Scott’s 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 “but-

for” 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. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).

                                          -7-
mere pretext for discrimination. Because we agree that Scott failed to

dem onstrate that the government’s 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

employer’s legitimate, non-discriminatory reason for the materially adverse action

is mere pretext by pointing to “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 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 defendant’s 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



                                         -8-
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

employer’s 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 Scott’s 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 counsel’s 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 counsel’s 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 counsel’s statement contains no

concession or judicial admission as Scott contends, but rather is consistent with

the government’s position that the work and funding had been transferred to

                                         -9-
another agency, thereby justifying Scott’s dismissal from Yellowstone.

      Scott also argues that there is no evidence that any other “term” or “non-

pay, 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 government’s 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, non-

discriminatory reason for terminating Scott’s employment: that he violated

M ontana’s hunting license laws and that such violations were both embarrassing

to the National Park Service and inconsistent with Scott’s 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

                                         -10-
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 supervisor’s 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 supervisor’s

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 official’s testimony, it does nothing to establish

pretext. There is no dispute in the record that initially Yellowstone terminated

Scott’s 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

                                         -11-
employment relationship, and that ultimately the government settled on the

former at Scott’s 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 government’s 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




                                          -12-
