                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          January 13, 2015
                                    TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 DAVID J. DICKMAN,

        Plaintiff – Appellant,
                                                            No. 13-3194
 v.
                                                   (D.C. No. 2:11-CV-02523-JTM)
                                                              (D. Kan.)
 RAY LAHOOD, Secretary of the
 Department of Transportation,

        Defendant – Appellee.


                                 ORDER AND JUDGMENT*


Before BRISCOE, LUCERO, and MCHUGH, Circuit Judges.



       David Dickman brought suit against Secretary of Transportation Ray LaHood

under the Rehabilitation Act of 1973, claiming that the Federal Aviation Administration

(“FAA”) refused to hire him in retaliation for engaging in protected activities. The

district court entered summary judgment against Dickman. Exercising jurisdiction under



        * This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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. 32.1.
28 U.S.C. § 1291, we affirm.

                                              I

       Dickman and the FAA have a long and contentious history. In 2004, Dickman

voluntarily resigned from a position at the FAA’s Olathe, Kansas, facility after being

denied a leave of absence. Dickman filed a formal complaint of discrimination with the

Department of Transportation (“DOT”) in 2005, contending that FAA Human Resource

Specialist Deangela Hightower did not select him for a position because of his disability.

The DOT denied this claim at the administrative level. Dickman sued the FAA in federal

district court. His claims were dismissed.

       In 2007, while that lawsuit was pending, Dickman applied for two other positions

at the FAA facility in Olathe. The first position was only open to current FAA

employees and the second was open to all applicants who lived in the local commuting

area. On February 4, 2008, FAA Employment Services Branch Manager Danny Sadler

sent Dickman a letter informing him that he was not eligible for the first position because

he was not a current FAA employee and not eligible for the second position because he

did not live within the local commuting area. At the time of these applications, Dickman

lived in Willis, Kansas—a town approximately 69 miles from Olathe geographically and

approximately 90 miles by road. Dickman claims that he has driven that distance in an

hour and thirty five minutes.

       After he learned of his ineligibility, Dickman contacted FAA Human Resources

Specialist Terri Craddock-Moore. According to Dickman, Craddock-Moore erroneously
                                             -2-
informed him that his Willis address was 114 miles from the Olathe facility and that the

local commuting area for the FAA Olathe facility is “generally 100 miles.” On February

7, 2008, Dickman sent an email to Sadler requesting reconsideration, stating that he

would reside at his relatives’ house in Bonner Springs, Kansas during the work week.

Bonner Springs is approximately 20 minutes from Olathe by car. Sadler denied

Dickman’s request in a letter dated February 25, 2008. The letter included the official

FAA definition of a “commuting area,” which is “one or more population centers in

which people live and can reasonably be expected to travel back and forth daily to their

usual place of employment.”

       On April 1, 2008, Dickman filed another complaint against the FAA alleging

disability discrimination and retaliation in relation to the agency’s determination that he

was ineligible for the 2007 positions. During an Equal Employment Opportunity

Commission investigation of his complaint, Sadler stated that “[w]e always use the

address on the employment application to determine whether an applicant is within the

commuting area” and that he “instructed Mr. Dickman that if he wanted us to consider

another address in processing his application he should put that address on his application

paperwork.” Dickman contends that Sadler told him “if you’re going to use your sister’s

address on any application in the future, put it on the bid announcement and it would be

accepted.” In July 2008 the FAA released its Report of Investigation, which concluded

that FAA employees had not acted unlawfully.

       That same month, the FAA posted two new vacancy announcements for a
                                             -3-
“Management and Program Analyst” position, one for internal candidates and one for

external candidates. Both announcements sought applications for a single position at the

Olathe facility. Applicants for both announcements were required to reside in the local

commuting area. Dickman submitted an application in response to the external

announcement. Before applying, he contacted Hightower to discuss the commuting area

requirement. Dickman stated that he lived 87 miles from the Olathe facility and relayed

Craddock-Moore’s statement that the commuting area was 100 miles. According to

Dickman, after hearing about his previous conversation with Sadler, Hightower told him

to put his sister’s address on his application. In an affidavit, Hightower later averred that

she told Dickman that as a “rule of thumb,” the commuting area “usually covers a 50

mile radius.” However, during her deposition, Hightower testified that there is no rule of

thumb and that the statement in her affidavit was “false.”

       On Dickman’s application for the 2008 external announcement he listed his

relatives’ house in Bonner Springs as his address, but noted on the application that this

address was “FOR WORK PURPOSES ONLY.” He did not list his Willis address on the

application. Dickman also sent an email to the FAA requesting a “reasonable

accommodation” for a disability. In the email, Dickman stated that he would reside at the

Bonner Springs address on work days and at his Willis home on off days. Dickman did

not identify a specific disability in the email but clarified during discovery he was

requesting an accommodation for his father-in-law, who lives near him in Willis. Sadler

responded to this request by email, stating that “[a]pplicants who reside outside the
                                             -4-
commuting area are not eligible for consideration.”

       After consulting with Sadler and agency counsel, Hightower denied Dickman’s

application on the ground that he was not within the local commuting area. In reaching

this determination, Hightower confirmed Dickman’s Willis address by examining legal

documents from his then-pending discrimination suit against the FAA. Hightower

explained that she did not use the Bonner Springs address because she “knew that [it] was

not his permanent address.” The individual ultimately selected for the job was already

working for the FAA and applied through the internal announcement.

       Dickman then sued, alleging that the FAA’s refusal to consider him for the

position listed in the 2008 external announcement was retaliation for some prior

complaints. The district court entered summary judgment against him. Dickman timely

appealed.

                                            II

       We review the district court’s summary judgment decision de novo. Timmons v.

White, 314 F.3d 1229, 1232 (10th Cir. 2003). Under Fed. R. Civ. P. 56(a), summary

judgment is appropriate if there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Hornady Mfg. Co. v. Doubletap, Inc., 746 F.3d

995, 1000-01 (10th Cir. 2014). We view all facts and evidence in the light most

favorable to Dickman, the party opposing summary judgment. Morris v. City of Colo.

Springs, 666 F.3d 654, 660 (10th Cir. 2012).

       “[T]he Rehabilitation Act, like the [Americans with Disabilities Act (“ADA”)],
                                            -5-
prohibits retaliation for protected conduct.” Jarvis v. Potter, 500 F.3d 1113, 1125 (10th

Cir. 2007). We apply the same standard to retaliation claims brought under the

Rehabilitation Act as we do to those brought under the ADA. Id. Because Dickman does

not advance any direct evidence of retaliation, we consider his claim under the “burden-

shifting” framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-

04 (1973). See Proctor v. United Parcel Serv., 502 F.3d 1200, 1207-08 (10th Cir. 2007).

In the first stage of this analysis, Dickman must show that: (1) he engaged in protected

activity; (2) he suffered a materially adverse action by the FAA; and (3) a causal

connection exists between the protected activity and the adverse action. See id. at 1208.

If Dickman establishes a prima facie case, the burden shifts and the FAA must proffer a

legitimate, non-retaliatory reason for its decision. See id. The burden then shifts back to

Dickman to show that the proffered reason is pretextual. See id.

       The FAA neither contests Dickman’s contention he engaged in a protected activity

when he filed his disability discrimination lawsuit against the FAA in November 2007,

nor does the FAA dispute that it took adverse action against Dickman in 2008 when

Hightower determined that he was not eligible for the position of Management and

Program Analyst. Moreover, the parties agree that the FAA proffered a non-retaliatory

reason for its decision: its conclusion that Dickman did not reside within the local

commuting area. The parties dispute whether a causal connection existed between

Dickman’s lawsuit and the hiring decision and whether Dickman has presented sufficient

evidence of pretext. These two issues are interrelated. See id. at 1209 (“Although
                                            -6-
[pretext] evidence is typically considered during the third phase of the McDonnell

Douglas inquiry, . . . we have considered evidence of pretext in the prima facie stage of a

retaliation claim.”). Dickman relies on the same five categories of evidence to establish

both causation and pretext: (1) the FAA’s use of subjective criteria; (2) its failure to

follow an unwritten policy; (3) procedural irregularities; (4) inconsistencies in the FAA’s

explanation; and (5) false statements from Hightower.

       Dickman contends that a reasonable juror could conclude that the commuting area

definition was being tailored to specifically exclude him. He notes that FAA employees

provided inconsistent information about the size of the commuting area. Craddock-

Moore represented that the area was generally 100 miles. Hightower presented a 50-mile

limit as a “rule of thumb” before subsequently claiming that no such a rule of thumb

exists and that her prior statement was false. However, none of these statements

undermine, or can reasonably be said to supersede, the official FAA policy, which

defines a commuting area as “one or more population centers in which people live and

can reasonably be expected to travel back and forth daily to their usual place of

employment.”

       The FAA’s official policy is certainly subjective. And we generally “view with

skepticism subjective evaluation methods.” Garrett v. Hewlett-Packard Co., 305 F.3d

1210, 1218 (10th Cir. 2002). But subjective criteria “are not unlawful per se” and the

“appropriate inference to be drawn from the presence of subjective criteria varies with the

facts of the case.” Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981). The FAA
                                             -7-
reasonably argues that a strict distance limit would be impracticable given the large

number of factors that would impact commuting time. Moreover, Dickman fails to

present evidence suggesting that the FAA has ever hired somebody from a community as

distant as Willis to work in its Olathe facility. Although such evidence is not required, it

has been considered a strong indication of pretext in other cases. See Smothers v. Solvay

Chems., Inc., 740 F.3d 530, 547 (10th Cir. 2014) (explaining that in a McDonnell

Douglas analysis, even a legitimate reason for a decision may be deemed pretextual if

similarly situated employees were treated differently). The closest comparator offered by

Dickman lived approximately 68 miles by road from the Olathe facility in a community

that, unlike Willis, abuts a major highway with direct access to Olathe. Factors such as

highway proximity underscore the need for a flexible definition of a commuting area.

       Given this information, no reasonable juror would conclude that the FAA’s use of

a flexible commuter-area policy was merely pretext for retaliation. It is not our position

to judge whether such a policy is “wise, fair[,] or correct,” but rather to judge whether the

employer “honestly believed those reasons and acted in good faith upon those beliefs.”

Rivera v. City & Cnty. of Denver, 365 F.3d 912, 925 (10th Cir. 2004) (quotation

omitted). Dickman has not advanced evidence calling into question Sadler and

Hightower’s honest belief that a subjective definition of the commuting area is properly

used to take into account criteria such as highway access and local commute patterns.

Dickman also does not contend that it would, in fact, be reasonable to commute from

Willis to Olathe.
                                             -8-
       Further, despite Dickman’s focus on the explanations he received after the fact,

Craddock-Moore and Sadler decided that Willis fell outside the local commuting area in

February 2008, before they learned about the protected activities upon which Dickman

relies.1 See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (“[T]o establish a

causal connection, plaintiff must show that the individual who took adverse action

against him knew of the employee’s protected activity.” (quotation omitted)). Given this

timing, we cannot see how the post-hoc statements about the commuting area constituted

“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 unworthy of credence and hence infer that the employer did

not act for the asserted non-discriminatory reasons.” Pinkerton v. Colo. Dep’t of Transp.,

563 F.3d 1052, 1065 (10th Cir. 2009) (quotation omitted).

       Dickman also contends that a reasonable juror could find causation and pretext

based on the FAA’s failure to consider the Bonner Springs address listed on his

application. He points to Sadler’s claim that the FAA “always use[s] the address on the


       1
          At the time of this decision Sadler was aware of Dickman’s 2005 discrimination
complaint, which Dickman does not appear to rely upon to establish his prima facie case
for retaliation. Furthermore, Sadler’s knowledge of Dickman’s 2005 discrimination
complaint, standing alone, would not support the inference that Sadler acted in retaliation
when he approved of Craddock-Moore’s determination. See Meiners v. Univ. of Kan.,
359 F.3d 1222, 1231 (10th Cir. 2004) (explaining that although a “six-week period
between protected activity and adverse action may be sufficient, standing alone, to show
causation” a “three-month period, standing alone, is insufficient”).


                                            -9-
employment application to determine whether an applicant is within the commuting

area.” Dickman also relies on Sadler and Hightower’s instruction that if Dickman wanted

another address considered, he should list it on his application.

       This argument fails because Dickman twice alerted the FAA that the address listed

on his 2008 application was irregular. He annotated his application with the phrase

“FOR WORK PURPOSES ONLY.” Sadler testified that this was the “only time I’ve

ever experienced that in the thousands of jobs that I’ve either filled directly or

supervised” and that the notation made it “painfully obvious that it was not his address.”

Moreover, Dickman indicated that his “home” was in Willis but that he “would reside” at

his relatives’ address in Bonner Springs.

       The alleged “irregularities” asserted by Dickman plainly stem from the unusual

context he himself introduced into the application process. Tellingly, Dickman does not

produce evidence suggesting that any other FAA employee has been able to use an

anticipated future address to satisfy a commuting-area requirement. See Jaramillo v.

Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2012) (“Pretext may also be

shown [if] . . . the plaintiff was treated differently from others similarly situated.”).

Taking “the facts as they appear to the person making the decision,” Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000), we do not think it suspicious

that FAA employees investigated the irregularity on Dickman’s application, leading them

to conclude that the listed address was not his home address (and that his actual home

address was outside the local commuting area).
                                              -10-
                                  III

The judgment of the district court is AFFIRMED.

                                            Entered for the Court



                                            Carlos F. Lucero
                                            Circuit Judge




                                 -11-
