                                                                                  FILED
                                                                      United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                       Tenth Circuit

                                FOR THE TENTH CIRCUIT                      November 8, 2019
                            _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 GAYLA A. GASKIN,

          Plaintiff - Appellant,

 v.                                                         No. 19-6053
                                                     (D.C. No. 5:18-CV-00091-R)
 SCIENCE APPLICATIONS                                       (W.D. Okla.)
 INTERNATIONAL, INC.,

          Defendant - Appellee.
                         _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.
                   _________________________________

      Gayla Gaskin appeals from the district court’s grant of summary judgment to

her former employer, Science Applications International, Inc. (SAIC), on her claim

of sex discrimination under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                   I.   Background

      SAIC contracts with the Federal Aviation Administration (FAA) to provide

instructors for air traffic controller candidates at the FAA Academy in Oklahoma

City. SAIC hired Gaskin as an Instructor II in September 2015. All instructor

positions for SAIC at the FAA Academy, including Instructor II positions, require

FAA certification.

      By March 2016, SAIC had warned Gaskin at least three times to remedy

misconduct that included distracting students during their simulations, setting a tone

detrimental to training, and denigrating the curriculum. Then in January 2017 the

FAA asked SAIC to investigate several comments made by students in their

end-of-course evaluations. Those students reported that Gaskin, among other things,

“hit on [their] classmates a lot,” “was very inappropriate as an instructor,” and “made

many . . . students feel uncomfortable.” Aplt. App. at 123. Gaskin responded to the

comments at SAIC’s request and denied engaging in any inappropriate conduct.

      Unbeknownst to Gaskin, the FAA launched an independent investigation into

her conduct. The FAA’s investigation revealed that “[m]ultiple students witnessed

Ms. Gaskin partake in inappropriate behavior.” Id. at 91. According to the FAA, this

behavior included making crude comments, extensively touching students in a way

that made them feel uncomfortable, degrading student performance in class, and

inviting at least one student to fraternize outside of class. On February 3, 2017, the

FAA reported its findings to SAIC and “decertified [Gaskin] as an Academy

Instructor.” Id.

                                           2
      SAIC terminated Gaskin’s employment on February 6, 2017. It told Gaskin

that “the reason for your termination is violation of SAIC’s Code of Conduct.” Id. at

129. SAIC did not inform Gaskin that the FAA had decertified her.

      Gaskin then brought this suit, alleging SAIC terminated her because she is

female. Her case rests on circumstantial evidence of sex discrimination. She argues

that the evidence shows SAIC treated similarly situated male employees differently,

failed to conduct a fair investigation, and provided false and shifting reasons for her

termination.

      The district court found on summary judgment that Gaskin failed to establish a

prima facie case of discrimination because the FAA’s decertification rendered her

unqualified for continued employment with SAIC. The district court further found

that Gaskin failed to show that SAIC’s non-discriminatory rationale for firing her

was pretextual.

                                   II.   Discussion

      We review the district court’s summary judgment decision de novo, viewing

the factual record and making reasonable inferences from it in the light most

favorable to the nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199

(10th Cir. 2016). 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.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is

such that a reasonable jury could return a verdict for the nonmoving party, and a fact

is material when it might affect the outcome of the suit under the governing

                                           3
substantive law.” Bird, 832 F.3d at 1199 (internal quotation marks and alteration

omitted). “A movant that will not bear the burden of persuasion at trial need not

negate the nonmovant’s claim. Such a movant may make its prima facie

demonstration simply by pointing out to the court a lack of evidence for the

nonmovant on an essential element of the nonmovant’s claim.” Felkins v. City of

Lakewood, 774 F.3d 647, 653 (10th Cir. 2014) (internal quotation marks and

alteration omitted).

      Because Gaskin relies on circumstantial evidence to support her sex

discrimination claim, we “apply the three-step burden-shifting framework set forth in

McDonnell Douglas and its progeny.” Plotke v. White, 405 F.3d 1092, 1099

(10th Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–07

(1973)).

      At step one of the McDonnell Douglas burden-shifting framework, a plaintiff

has the burden on summary judgment of demonstrating a prima facie case of

discrimination. See McDonnell Douglas, 411 U.S. at 802. This can be done in a

wrongful termination case by producing evidence “that (1) [the plaintiff] was a

member of a protected class (2) who was terminated (3) despite being qualified for

her position, and (4) the job wasn’t eliminated.” Fassbender v. Correct Care Sols.,

LLC, 890 F.3d 875, 884 (10th Cir. 2018). Regarding qualification for the position,

“[t]he relevant inquiry at the prima facie stage is . . . whether the employee has

introduced some evidence that she possesses the objective qualifications necessary to



                                           4
perform the job . . . .” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,

1193 (10th Cir. 2000).

      If the plaintiff makes this initial showing, the burden shifts to the defendant at

step two to articulate a legitimate non-discriminatory reason for firing the plaintiff.

See McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts

back to the plaintiff at step three to produce enough evidence for a reasonable jury to

conclude the defendant’s proffered rationale was pretextual. Id. at 804.

      Gaskin concedes that on the day SAIC fired her, she no longer possessed the

FAA certification “necessary to perform the job.” Horizon, 220 F.3d at 1193;

see Aplt. Opening Br. at 12–13 (“Gaskin was decertified on February 3, 2017, and

terminated on February 6, 2017 . . . .”). She therefore failed to establish a prima

facie case of discrimination. The fact that SAIC fired her for a different, albeit

related,1 reason does not alter our conclusion. Cf. MacDonald v. E. Wyo. Mental

Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991) (explaining that courts “refus[e] to

consider a defendant’s proffered reasons for discharge in assessing the existence of a

prima facie case” so that defendants cannot use their reasons for firing a plaintiff to

defeat the plaintiff’s prima facie case), abrogated on other grounds by Randle v. City

of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).

      Citing MacDonald, Gaskin asks us to ignore her lack of certification. In that

case, we delineated a few ways that an employee can prove he or she is qualified:


      1
        The same underlying conduct led to the FAA’s decertification and SAIC’s
termination.
                                            5
       [A] plaintiff may make out a prima facie case of discrimination in a
       discharge case by credible evidence that she continued to possess the
       objective qualifications she held when she was hired, or by her own
       testimony that her work was satisfactory, even when disputed by her
       employer, or by evidence that she had held her position for a significant
       period of time.

Id. at 1121 (emphasis added) (citations omitted). Gaskin relies on our use of the

disjunctive “or” and argues that by providing evidence that SAIC employed her for a

significant period,2 she established her prima facie case.

       But Gaskin’s argument stretches MacDonald’s language too far. While

evidence of tenure alone may suffice to demonstrate qualification for a job in some

cases, it is by no means automatic. Here, Gaskin admits that her former position

requires a certification she no longer has. This stands in stark contrast to

MacDonald, where the plaintiffs “continued to possess the objective professional

qualifications they held when they were hired.” Id. Indeed, we cited with approval a

Fifth Circuit case where the court noted that an employee could only establish a

prima facie case “if the ‘plaintiff had not suffered . . . loss of a necessary professional

license.’” Id. at 1120 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506

n.3 (5th Cir. 1988)).

       Gaskin further contends that her lack of qualification cannot undermine her

prima facie case at step one of the McDonnell Douglas framework because SAIC also

raises the FAA’s decertification as evidence of non-discriminatory intent at step two



       2
       For purposes of this appeal, we assume without deciding that SAIC employed
Gaskin for a significant period of time.
                                            6
of the McDonnell Douglas framework. To support this notion, Gaskin quotes

Horizon:

      When an employee’s failure to meet objective, employer-imposed
      criteria is one of the legitimate, non-discriminatory reasons advanced by
      an employer to dispel the inference of discrimination raised by an
      employee at the prima facie stage, it cannot also be used to defeat the
      employee’s prima facie case. To hold otherwise would be tantamount to
      collapsing the first and second stages of the McDonnell Douglas
      analysis and would deny a plaintiff the opportunity to demonstrate that
      the defendant’s explanation for the adverse employment action is
      pretextual.

Aplt. Opening Br. at 22 (quoting 220 F.3d at 1193).

      But the issue before the court in Horizon was “whether an employer may

defeat a plaintiff’s prima facie case by challenging the plaintiff’s qualification for the

position on the grounds she has failed to meet an objective qualification that is not

essential to the performance of the job.” 220 F.3d at 1192 (emphasis added). We

never wavered from the rule that to establish a prima facie case, a plaintiff must

produce “evidence that she possesses the objective qualifications necessary to

perform the job.” Id. at 1193. Gaskin admits that she does not possess one of the

objective qualifications necessary to perform the job of an Instructor II, and therefore

she cannot establish a prima facie case of sex discrimination.3




      3
         Because we hold that Gaskin did not establish a prima facie case, we need
not address Gaskin’s argument that the district court erred by alternatively holding
that she failed to show SAIC’s non-discriminatory rationale for firing her was
pretextual.
                                            7
                                III. Conclusion

     For the reasons stated above, we affirm the district court’s grant of summary

judgment to SAIC.


                                         Entered for the Court


                                         Allison H. Eid
                                         Circuit Judge




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