                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      November 29, 2005
                                   TENTH CIRCUIT
                                                                          Clerk of Court

 BRENDA BOYNTON,

               Plaintiff - Appellant,                   No. 04-8126
          v.                                           (D. Wyoming)
 WESTERN WYOMING                                  (D.C. No. 04-CV-16-J)
 COMMUNITY COLLEGE,

               Defendant - Appellee.


                             ORDER AND JUDGMENT         *




Before TACHA, Chief Circuit Judge,      ANDERSON and KELLY , Circuit Judges.




      Brenda Boynton appeals the grant of summary judgment to defendant,

Western Wyoming Community College (“WWCC”), in her Title VII, 42 U.S.C.

§§ 2000e through 2000e-17, action alleging that her termination from employment

at WWCC was in retaliation for her complaint of sexual harassment. We affirm.




      *
       This order and judgment is not binding precedent, except under the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.
         Boynton was hired by WWCC as a full-time custodian at WWCC’s Rock

Springs campus on December 1, 1997.     1
                                            WWCC concedes there was no dispute

that she performed satisfactorily in that position. Appellee’s Br. at 3. Her

supervisor was WWCC employee Gary Bussart. On August 10, 1998, Boynton

was promoted to the position of Maintenance/Custodian at WWCC’s Green River

facility, a position involving more substantial duties and a higher rate of pay.

         Following this promotion, Bussart continued to supervise Boynton.

Boynton initially received satisfactory evaluations in her new job, with notations

that she was learning a new position and that improvement with time was

expected in certain areas, such as her productivity and her communication with

others. When Boynton became pregnant, she was permitted to take maternity

leave.

         In September 2000, shortly before her return to work following her

maternity leave, Boynton met with WWCC President Tex Boggs, alleging that

Bussart had sexually harassed her more than two years earlier, when she had still

been working at the Rock Springs campus. Boynton alleged that, on two

occasions while she was working at the Rock Springs campus, Bussart had

inappropriately entered restrooms where Boynton was. Boynton further alleged



       An accurate recitation of the facts in this case, in particular the dates when
         1

specific incidents occurred, has been made more difficult than usual because
neither party accurately and completely described the sequence of events.

                                            -2-
that, after her transfer to the Green River Center, Bussart had made negative

comments to her about her pregnancy and about women working, that he had

asked her repeatedly when her baby was due, and that he had telephoned her at

home while she was on maternity leave. She also alleged that he “disturbingly

seemed to ‘hover’ over me and follow me around while I performed my duties.”

Boynton Aff. at ¶ 8, Appellant’s App. at 22.

      Boggs requested that the Dean of Administration, Marty Kelsey, join

himself and Boynton to discuss Boynton’s allegations. Kelsey was instructed to

investigate the claims. He accordingly had a meeting with Boynton to gather

information about her complaint and he interviewed others who might have

relevant information. When interviewed by Kelsey, Bussart denied that the

bathroom incidents or other incidents had occurred, and stated that he telephoned

Boynton at home while she was on maternity leave to tell her that the locks had

been changed on the Green River Center doors and that she would need to get

new keys to get in upon her return. Boynton had told Kelsey that various other

employees were aware of the incidents, but those employees told Kelsey that they

were, in fact, completely unaware of such incidents. Kelsey also interviewed

Mary Ann Huebner, the director of the Green River Center, inquiring whether she

was “aware of any inappropriate behavior on [Bussart’s] part at the Green River

Center” without describing Boynton’s complaint to her. Kelsey Dep., Appellant’s


                                        -3-
App. at 82. Kelsey testified that he “did not go into all of these allegations” with

Huebner, but rather just asked her “some general questions.”    Id. at 84. Huebner

indicated she was unaware of any inappropriate behavior by Bussart.

       After completing his investigation, Kelsey wrote to Boynton on October 9,

2000, informing her that he had found no evidence substantiating her allegations.

He stated that he “would be happy to visit with you again about these matters if

you can bring some concrete evidence into the conversation.” Memorandum,

Appellant’s App. at 98. Boynton never provided any further information to

Kelsey or anyone else at WWCC.

       During this time, Bussart followed up on the concerns relating to

communication and productivity. Bussart received complaints from other

employees at the Green River Center concerning communication problems and

Boynton’s failure to complete tasks. On October 10, 2000, Boynton received her

scheduled annual evaluation. While her overall evaluation was satisfactory, in

one of five subcategories (“communication”) she was rated as “marginal.”      Id. at

107.

       In March 2001, Boynton received an evaluation ranking her performance

as unsatisfactory. Bussart established a remediation plan to address these

concerns. While remediation was ongoing, Boynton filed a complaint on June 25,

2001, with the Wyoming Department of Employment (“WDE”) and with the Equal


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Employment Opportunity Commission (“EEOC”), alleging that she had been

denied a more favorable work assignment and that she had been harassed and

suffered discrimination because of her gender and her pregnancy, and that she had

suffered retaliation because she had reported sexual harassment. This complaint

was eventually dismissed, because the WDE concluded there was no reasonable

cause to believe that WWCC had discriminated against her. The EEOC adopted

the WDE’s findings as its own and issued a 90-day right to sue letter. Boynton

did not appeal this ruling, nor did she act upon the right to sue letter.

      Meanwhile, Boynton continued to receive unsatisfactory evaluations.

Accordingly, following an unsatisfactory evaluation in July 2001, Bussart

recommended to Boggs that Boynton be terminated. In accordance with WWCC

policy, Boggs invited Boynton to meet with him to discuss the recommendation

and to respond to Bussart’s evaluation and recommendation. Boggs decided not

to terminate Boynton. He also determined that Huebner should be Boynton’s

supervisor, rather than Bussart. Huebner wrote a remediation plan, dated

September 13, 2001, to assist Boynton in performing her job satisfactorily.

       On February 28, 2002, Boynton received an evaluation again ranking her

performance as unsatisfactory. Huebner designed another remediation plan, and

Boynton’s performance was evaluated again on May 28, 2002. Huebner again

evaluated her performance as unsatisfactory. Huebner met with Boynton, told her


                                          -5-
that her performance was not improving, and said that she had no real choice but

to terminate Boynton. Boynton never mentioned discrimination or retaliation

during this meeting.

      Following Huebner’s recommendation that Boynton be terminated, Boggs

provided Boynton with a pre-termination notice listing the reasons for the

proposed termination and offered to meet with her to discuss them. During their

meeting, Boynton did not raise any claim of discrimination, nor did she suggest

that she thought her termination was in retaliation for her complaints about

Bussart. Boggs determined that good cause existed for Boynton’s termination,

and he so recommended. Boynton continued to work, while Boggs’

recommendation of termination was addressed by the WWCC Board of Trustees,

until she was suspended with pay effective October 29, 2002.   2



      The Board hired an independent hearing officer, a retired state district court

judge, who conducted a hearing, created a record, and provided advisory findings

of fact and conclusions of law to the Board. Boynton was represented by counsel



      2
       Boggs sent Boynton her termination letter on August 1, 2002, which
Boynton appealed on August 12, 2002. On October 24, 2002, Boynton was
suspended without pay by Huebner for twenty-four work hours for
insubordination, refusal to follow legal instructions, and gross neglect of duty, in
connection with an incident in which Boynton refused to clean up mouse
droppings from Huebner’s desk, despite Huebner’s specific directive to do so. On
October 29, she was suspended with pay, and relieved of her duties, because she
was overheard making what was believed to be a threat against Huebner.

                                          -6-
before the hearing officer. The Board then reviewed all the materials created by

the officer and issued its final decision on February 13, 2003, in which it upheld

Boynton’s termination.

      Boynton filed a second complaint with the EEOC, alleging an incident

involving Bussart and claiming that her termination was in retaliation for her

complaint about sexual harassment. The EEOC again rejected her claim and

issued a right to sue letter. This action was filed on the ninetieth day after the

issuance of the 90-day right to sue letter.

      Boynton initially included within this action claims for discrimination and

hostile work environment against Boggs and Bussart, as well as WWCC. When

WWCC moved for summary judgment on all claims, Boynton essentially

conceded that summary judgment in favor of Boggs and Bussart was proper, as

well as summary judgment for WWCC on the discrimination claims, leaving only

her claim that WWCC terminated her in retaliation for her September 2000

allegation of sexual harassment.

      The district court granted summary judgment to WWCC on Boynton’s

remaining claim, concluding:

      there is no evidence whatsoever to permit any reasonable inference
      that there was any causal connection between Boynton’s complaints
      to President Boggs in September of 200[0] and her termination,
      which ultimately became effective in 2003. All of the evidence
      suggests that Boynton’s termination was for unsatisfactory
      performance of her job duties. She had been on three separate

                                          -7-
       remediation plans and failed to meet her supervisor’s expectations
       for improved performance. She had numerous opportunities to
       improve; she did not do so. It is clear that WWCC offered
       legitimate, nondiscriminatory justifications for its decision to
       terminate Boynton’s employment at WWCC.

Order at 24-25, Appellant’s App. at 149-50. The court further concluded that

Boynton “has not carried her burden of proof that the defendant WWCC is

entitled to summary judgment as a matter of law on her claim of retaliation in

violation of Title VII.”   Id. at 152.

       Boynton appeals, arguing the district court erred in granting summary

judgment to WWCC because genuine issues of material fact exist regarding (1)

the causal connection between her protected activity and her termination; and (2)

whether WWCC’s proffered reasons for her termination were pretextual.

       We apply the following familiar and well-established standard of review:

       We review the district court’s grant of summary judgment de novo,
       applying the same legal standard used by the district court. Summary
       judgment is appropriate “if the pleadings, depositions, answers to
       interrogatories, and admissions on file, together with the affidavits, if
       any, show that there is no genuine issue as to any material fact and
       that the moving party is entitled to a judgment as a matter of law.”
       When applying this standard, we view the evidence and draw
       reasonable inferences therefrom in the light most favorable to the
       nonmoving party.

       Although the movant must show the absence of a genuine issue of
       material fact, he or she need not negate the nonmovant’s claim.
       Once the movant carries this burden, the nonmovant cannot rest upon
       his or her pleadings, but must bring forward specific facts showing a
       genuine issue for trial as to those dispositive matters for which he or
       she carries the burden of proof. The mere existence of a scintilla of

                                          -8-
      evidence in support of the nonmovant’s position is insufficient to
      create a dispute of fact that is “genuine”; an issue of material fact is
      genuine only if the nonmovant presents facts such that a reasonable
      jury could find in favor of the nonmovant.

Garrison v. Gambro , No. 04-1409, 2005 WL 2982279, at *1 (10th Cir. Nov. 8,

2005) (quoting Fed. R. Civ. P. 56(c)) (further quotation omitted).

      To establish a prima facie case of retaliation under Title VII, “a plaintiff

must demonstrate that (1) she was engaged in protected opposition to

discrimination; (2) she suffered an adverse employment action; and (3) a causal

connection existed between the protected activity and the adverse employment

action.” Miller v. Auto. Club of New Mexico      , 420 F.3d 1098, 1119 (10th Cir.

2005). Once the prima facie case is established, “the burden shifts to the

employer to offer a facially legitimate rationale for the adverse action. The

burden then shifts back to the plaintiff to show the employer’s explanation is

pretext.” Id. at 1120.

      The district court concluded that Boynton failed to establish a   prima facie

case because there was an insufficient causal connection between her complaint

of discrimination and/or harassment and her termination several years later. The

court also determined that Boynton failed to demonstrate that WWCC’s reasons

for terminating her were pretextual. We agree, for substantially the reasons set

forth in the district court’s order granting summary judgment.

      We accordingly AFFIRM the district court’s order granting summary

judgment to WWCC on Boynton’s Title VII claim.

                                           -9-
       ENTERED FOR THE COURT

       Stephen H. Anderson
       Circuit Judge




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