                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUN 10 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 DELILAH STAHL,

               Plaintiff-Appellant                      No. 03-3068
          v.                                            (D. Kansas)
 BOARD OF COUNTY                                (D.C. No. 01-CV-2539-CM)
 COMMISSIONERS OF THE
 UNIFIED GOVERNMENT OF
 WYNANDOTTE COUNTY/KANSAS
 CITY, KANSAS,

               Defendant-Appellee.




                           ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.


      Sergeant Delilah Stahl appeals the district court’s grant of summary

judgment against her and in favor of the Board of County Commissioners of the

Unified Government of Wyandotte County (the County) on her claims for gender

discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42



      *
        This order and judgment is not binding precedent, except under the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.
U.S.C. § 2000e. Sergeant Stahl’s complaints arise out of the County’s

administration of a physical fitness test to applicants for positions in its newly-

created Special Enforcement Unit (SEU).

      For substantially the same reasons as the district court, we conclude that

Sergeant Stahl failed to present sufficient evidence from which a factfinder could

conclude that the County discriminated against her because of her gender or in

retaliation for conduct protected by Title VII. Accordingly, we affirm the grant

of summary judgment to the County.



                           I. FACTUAL BACKGROUND

      Sergeant Stahl has worked for the County as a police officer since 1981 and

has served as a sergeant since 1992. From October 1998 until January 14, 2001,

she was a supervisor in the County Police Department’s Vice and Narcotics Unit.

      In June 2000, newly-appointed Chief of Police Ronald Miller decided to

combine the Vice and Narcotics Unit and the Department’s tactical SWAT team

(referred to as its “S.C.O.R.E Unit”) into the SEU. According to the district court

“[i]t [was] uncontroverted that the decision to combine the two units was not

made to remove [Sergeant Stahl] from her position or otherwise discriminate

against her. Rather, the decision was a legitimate restructuring.” Aplt’s App. at

119 (Dist. Ct. Order, filed Jan. 24, 2003).


                                          -2-
       Since the mid 1980s, the County had required its S.C.O.R.E. Unit officers,

including sergeants, to pass both an initial fitness test as a qualification for the

job and subsequent tests to remain in the unit. The County also required

S.C.O.R.E. officers to participate in on-duty physical fitness training. In contrast,

officers in the Vice and Narcotics Unit, where Sergeant Stahl worked, were not

required to complete a fitness test, nor were those officers required to participate

in fitness training.

       Because all officers in the SEU would be expected to undergo tactical

training and perform tactical duties, Chief Miller and the command staff decided

that successful completion of a physical fitness test also should be a qualification

for selection. Chief Miller decided to use the same fitness test that had been used

for S.C.O.R.E. applicants. According to Chief Miller, “many women have taken

that same test and passed it.” Aplt’s App. at 111.

       The test consisted of the following components: (1) skinfold assessment;

(2) trunk flexion; (3) trunk extension; (4) bent-knee sit-ups; (5) a twelve-minute

run; (6) push-ups; (7) pull-ups; (8) squat thrusts; (9) bench press; (10) standing

broad jump; and (11) standing vertical leap. The County required a composite

score of seventy to pass the test, which was determined by adding together the

percentage scores on each event and dividing the number by eleven. An applicant

did not have to complete every event successfully to pass the test.



                                           -3-
      In July 2000, Sergeant Stahl learned that the Vice and Narcotics Unit and

the S.C.O.R.E. Unit would be combined into the SEU. Around the third week of

September 2000, officers in the Vice and Narcotics Unit began discussing the

possibility of requiring a physical fitness test. At the end of September 2000,

Sergeant Stahl obtained a copy of the physical fitness test that had been required

for the S.C.O.R.E. Unit. In mid-October, Police Department supervisors notified

her that the test would be required for the SEU.

      During the last week of September or the first week of October, Sergeant

Stahl began working out at home to prepare for the physical fitness test. She

requested that she be allowed to attend workout sessions with S.C.O.R.E. officers.

Although her request was initially denied, her supervisors reconsidered that

decision and granted the request.

      During the previous two years, Sergeant Stahl had not engaged in a regular

exercise program She considered herself 25 to 30 pounds overweight and had

smoked roughly a pack of cigarettes each day for the past 30 years. She

continued to smoke while she was training for the test.

      Sergeant Stahl believed that she needed more time to prepare for the test,

particularly the bench press and the vertical and broad jumps. She informed her

supervisors, telling them that the test was not “female-friendly,” Aplt’s App. at

52. The supervisors encouraged her to continue working out but refused to grant



                                         -4-
her more time to prepare. Sergeant Stahl acknowledged in deposition testimony

that she was not treated any differently after she complained about the test.

      On October 30, 2000, Sergeant Stahl submitted her application for a

sergeant’s position in the SEU. Along with all the other candidates, Sergeant

Stahl took the physical fitness on November 7, 2000. She failed the bench press,

vertical jump, broad jump, and trunk extension components, and, as a result,

received a failing composite score. The County selected three male candidates,

all of whom had passed the physical fitness test.

      According to Sergeant Stahl, the County discriminated against her in the

manner in which it administered the test. In particular, she testified that Captain

Mike Armstrong allowed Officer Mike Whitfield (who had applied for a canine

officer position) to lie on the floor between each of his last five push-ups. In

contrast, Sergeant Stahl maintained, Captain Armstrong required her to perform

extra push-ups, stating that she had performed several incorrectly. However,

Sergeant Stahl pointed to no other occasion when a male applicant had been given

favorable treatment.

      In November 2001, Sergeant Stahl filed this action pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, asserting claims for (1) gender

discrimination, and (2) retaliation. She also asserted a state law claim for breach

of an implied employment contract. As to her gender discrimination claim,



                                         -5-
Sergeant Stahl initially sought to recover under disparate impact and disparate

treatment theories. See Aplt’s App at 2, ¶ 13 (Complaint, filed Nov. 13, 2001). 1

However, in the pretrial order, the parties stated that Sergeant Stahl had

abandoned her disparate impact claim and her state law claim. See id. at 20

(Pretrial Order, filed Sept. 5, 2002) (stating that “[p]laintiff has abandoned her

Title VII disparate impact claim (Count I) and her Kansas common law claim for

breach of implied contract of employment (Count III)).”

      After Sergeant Stahl filed this action, the County suspended the physical

fitness test for SEU applicants and hired a consultant to recommend the most

appropriate selection method. The County has hired several more officers for

positions with the SEU, on the condition that they may retain their positions only

if they pass any new fitness test that is adopted.

      Following discovery, the district court granted the County’s motion for

summary judgment. As to the gender discrimination claim, the court concluded

that Sergeant Stahl had failed to present evidence from which a factfinder could

reasonably conclude that the County’s reliance on the physical fitness test as a




      1
         Sergeant Stahl alleged in her Complaint that “[t]he actions of [the
County] were intentional discrimination against plaintiff or were, in the
alternative, the result of an allegedly neutral employment practice employed in a
manner which served to work a disparate impact upon plaintiff as a female
member of [the County’s] workforce.” Aplt’s App. at 2, ¶ 13.

                                          -6-
means of selecting candidates for the SEU was a pretext for discrimination. The

court reached a similar conclusion as to Sergeant Stahl’s retaliation claim.



                                  II. DISCUSSION

      On appeal, Sergeant Stahl challenges the district court’s grant of summary

judgment on her gender discrimination claim on three grounds. She argues that

the district court erred in (1) applying the subsequent remedial measure rule, F ED .

R. E VID . 407, to conclude that the County’s suspension of the fitness test was not

admissible to prove discriminatory intent; (2) finding no evidence of

discrimination in the manner in which the test was administered; and (3) rejecting

her contentions about the preferential treatment received by Officer Whitfield. As

to her retaliation claim, Sergeant Stahl argues that the district court erred in

concluding that she offered no evidence that her failure to obtain a position in the

SEU resulted from retaliation for conduct protected by Title VII.

      We review a summary judgment grant de novo, applying the same standard

as the district court pursuant to F ED . R. C IV . P. 56, McCowan v. All Star Maint.,

Inc., 273 F.3d 917, 921 (10th Cir. 2001), and “examin[ing] the factual record and

reasonable inferences therefrom in the light most favorable to the party opposing

the motion.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.

1998) (internal quotation marks omitted). “Credibility determinations, the



                                          -7-
weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions, not those of a judge” considering a summary judgment motion.

Foster v. AlliedSignal, Inc., 293 F.3d 1187, 1195 (10th Cir. 2002) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). In this procedural

posture, therefore, “our role is simply to determine whether the evidence

proffered by [Sergeant Stahl] would be sufficient, if believed by the ultimate

factfinder, to sustain [her] claim.” Foster, 293 F.3d at 1195.

      However, as the nonmoving party, Ms. Stahl must identify “sufficient

evidence that would require submission of the case to a jury.” Jensen v.

Redevelopment Agency of Sandy City, 998 F.2d 1550, 1555 (10th Cir. 1993). It

is not enough that Ms. Stahl’s evidence is “‘merely colorable’” or anything short

of “‘significantly probative.’” Id. (quoting Anderson, 477 U.S. at 249-50).



                          A. Gender Discrimination Claim

      In order to assess Sergeant Stahl’s claim for gender discrimination under

Title VII, we apply the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this approach, Sergeant

Stahl may establish a prima facie case of discrimination by producing evidence

(1) that she belonged to the protected class; (2) that she was qualified for the

position; (3) that she was not selected for the position at issue; and (4) that the



                                          -8-
position either remained open or was filled by a person who was not a member of

the protected class. Id. at 802; Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1534

(10th Cir. 1995). “At the prima facie stage, the court need only conclude that the

plaintiff has shown, through credible evidence, including her own testimony, that

she was minimally qualified for the position she sought, even if the defendant

disputes that evidence.” See Bullington v. United Air Lines, Inc., 186 F.3d 1301,

1316 n.11 (10th Cir. 1999).

      Upon production of this evidence, the burden shifts to the County “to

articulate some legitimate, nondiscriminatory reason” for the challenged decision.

McDonnell Douglas, 411 U.S. at 802. Sergeant Stahl may then demonstrate that

the employer’s stated reason for not selecting the plaintiff was a pretext for

discrimination. McDonnell Douglas, 411 U.S. at 804. To establish pretext

Sergeant Stahl must show either that “a discriminatory reason more likely

motivated the employer or . . . that the employer’s proffered explanation is

unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

256 (1981). She may establish pretext by demonstrating “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.” Morgan v. Hilti, Inc., 108 F.3d

1319, 1323 (10th Cir. 1997) (internal quotation marks and citation omitted).



                                         -9-
      Here, we agree with the district court that Sergeant Stahl has established a

prima facie case by offering “credible evidence, including her own testimony, that

she was minimally qualified for the position [in the SEU unit].” See Bullington,

186 F.3d at 1316. n.11. Thus, the question before us is whether Sergeant Stahl

presented sufficient evidence from which a reasonable factfinder could conclude

that the reason provided by the County for not selecting her for the SEU—her

failure of the fitness test—was a pretext for gender discrimination.



1. Suspension of the Test

      In arguing that the test was pretextual, Sergeant Stahl first points to the

County’s suspension of the test following the filing of this lawsuit. She maintains

that the district court erred in ruling that the suspension of the test was

inadmissible under F ED . R. E VID . 407. According to Sergeant Stahl, because the

suspension of the test constituted evidence of pretext, Rule 407 is inapplicable.

This argument involves the interpretation of the Federal Rules of Evidence, and

we thus examine it de novo. See Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir.

1999). Although the application of Rule 407 here is perhaps not in the traditional

context, we agree with the district court that precedent allows the conclusion that

the County’s suspension of the physical fitness test is inadmissible.



      Rule 407 provides:

                                          -10-
               When, after an injury or harm allegedly caused by an
               event, measures are taken that, if taken previously, would
               have made the injury or harm less likely to occur, evidence
               of the subsequent measures is not admissible to prove
               negligence, culpable conduct, a defect in a product, a
               defect in a product’s design, or a need for a warning or
               instruction. This rule does not require the exclusion of
               evidence of subsequent measures when offered for another
               purpose, such as proving ownership, control, or feasibility
               of precautionary measures, if controverted, or
               impeachment.

F ED . R. E VID . 407.

       As the County notes, there are two primary grounds for the exclusion of

evidence under Rule 407: (1) the limited probative value of subsequent remedial

measures; and (2) “[the] social policy of encouraging people to take . . . steps in

furtherance of added safety.” Hull v. Chevron, U.S.A., 812 F.2d 584, 587 (10th

Cir. 1987) (quoting F ED . R. E VID . 407 advisory committee’s note). Applying this

rule, courts have excluded “repairs, changes in construction, installation of new

safety devices . . . , changes in rules and regulations, [and] changes in the practice

of the business.” 23 Charles Alan Wright & Kenneth W. Graham, Jr., F EDERAL

P RACTICE AND P ROCEDURE § 5284, at 105 (2d ed. 1980) (internal quotation marks

and citation omitted).

       Here, as the district court concluded, the County’s suspension of the fitness

test is inadmissible under Rule 407. The test is the subject of this lawsuit, and as

a result, its suspension is a measure that “if taken previously, would have made

the injury or harm less likely to occur.” F ED . R. E VID . 407; cf. Hickman v. Gem

                                          -11-
Ins. Co., 299 F.3d 1208, 1214 (10th Cir. 2002) (concluding that an insurance

company’s “discontinu[ation] [of] its practice of limiting payment of hospital

room and board charges,” which was the subject of an ERISA claim, was “not

admissible to establish liability because it is evidence of a subsequent remedial

measure under Rule 407”). Moreover, Sergeant Stahl seeks to offer the

suspension of the test as evidence that the test itself was a pretext for

discrimination, thus seeking to prove “culpable conduct” in a manner forbidden

by Rule 407.

      Additionally, and even more basic, is the fact that even if the suspension of

the test were admissible, Sergeant Stahl has failed to establish that this evidence

supports the particular claim she asserts here. Sergeant Stahl is now challenging

only the manner in which the test was administered, not the test itself. Thus, the

fact that the County suspended the test in January 2001—which it might have

done for a number of reasons—does not indicate that the specific practice of

which Sergeant Stahl complains (refusing, in October and November 2000, to

grant her more time to prepare for the test) was discriminatory.



2. Administration of the Test

      Sergeant Stahl also argues that the manner in which the County

administered the fitness test constitutes evidence of pretext. Here, she focuses on

the short period of time that she had to prepare for the test, arguing that the

                                          -12-
officers who had served in the existing S.C.O.R.E. unit (all of whom were men)

were allowed to train on the job for a period of years, while she received only two

to three weeks formal notice of the test and thus had insufficient time to train.

      In considering this argument, we again note that Sergeant Stahl does not

now argue that the test itself was in any manner discriminatory against women or

that women as a class needed more time to train for it. 1 Accordingly, we presume

that the test itself provided men and women with equal opportunities to pass it.

Thus, the issue before us now is merely whether the County’s failing to grant

Sergeant Stahl’s request for additional time to train for the test constitutes

evidence of pretext.




      1
         Perhaps Sergeant Stahl could have made such an argument. See Aplt’s
App. at 39 (Plaintiff’s Br. in Opposition to Defendant’s Motion for Summary
Judgment, filed Nov. 18, 2002) (explaining the basis for Sergeant Stahl’s belief
that the test was discriminatory and noting that “the requirements were heavily
weighted in favor of upper-body strength tests” and that the test did not provide
for alternative scoring in the elements of bench press, pull-ups, and push-ups); cf.
Lanning v. S.E. Pa. Transp. Auth., 181 F.3d 478, 485 (3d Cir. 1999) (considering
a gender discrimination challenge to a police department’s requirement that
officers be able to run 1.5 miles in under 12 minutes and noting that the
department conceded that the requirement had a disparate impact upon women);
29 C.F.R. § 1607 et seq (establishing guidelines for examination procedures in
employment); § 1607.3 (stating that “[t]he use of any selection procedure which
has an adverse impact on the hiring, promotion, or other employment or
membership opportunities of members of any race, sex, or ethnic group will be
considered to be discriminatory and inconsistent with these guidelines, unless the
procedure has been validated in accordance with these guidelines”). The County
did not indicate that it had consulted these guidelines; it might be prudent to do
so.

                                         -13-
        Because Sergeant Stahl has not challenged the test itself, we agree with the

district court’s analysis. The fact that officers in the existing S.C.O.R.E. unit

were allowed to “train” on the job for an extended period while Sergeant Stahl

was only allowed to do so when she made a request a few weeks before the fitness

test resulted from bona fide differences in their job duties. Thus, as the district

court explained, “the fact that [Sergeant Stahl] has not previously been required

to participate in physical fitness training was by virtue of the unit to which she

was assigned, not her gender.” Aplt’s App. at 129. Moreover, all of the officers

in the Vice and Narcotics Unit in which Sergeant Stahl worked, both male and

female, received the same notice of the fitness test and had the same opportunity

to train for it. 2



3. Treatment of Officer Whitfield

        Sergeant Stahl also argues that a male candidate, Officer Mike Whitfield,

was afforded favorable treatment during the fitness test because he was allowed

to rest on the floor between the final few push-ups while she was not. We agree

with the district court that this evidence is “isolated and inconsequential.” id. at



        2
         Sergeant Stahl acknowledged that several male officers in the Vice and
Narcotics Unit also complained that they did not have enough time to train for the
test. See Aple’s Supp. App. at 66 (“[A] couple of those guys didn’t even put in
for taking the test because they didn’t think they could get in shape fast enough,
and they said they weren’t going to test for a job that they already had.”).

                                         -14-
131. Sergeant Stahl stated that she was aware of no other occasion in which an

applicant was given favorable treatment. Moreover, even with the alleged

unfavorable treatment that she received, Sergeant Stahl received a passing score.

on the push-up element. Finally, Sergeant Stahl presented no evidence of

unfavorable treatment on the elements that she failed.

      We therefore agree with the district court that the County is entitled to

summary judgment on Sergeant Stahl’s gender discrimination claim.



                                B. Retaliation Claim

      Finally, Sergeant Stahl argues that the district court erred in granting

summary judgment against her on her retaliation claim. As the district court

noted, in order to establish this claim, Sergeant Stahl must prove that: (1) “[s]he

engaged in protected opposition to discrimination[;]” (2) the County “subjected

[her] to an adverse employment action subsequent to the protected activity[;]” and

(3) “a causal connection exists between the protected activity and the adverse

employment action.” Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir.

2000). Once Sergeant Stahl establishes a prima facie case, the burden of

production again shifts to the County to articulate a legitimate, nondiscriminatory

reason for the adverse action. Id. If the County presents evidence of a legitimate

business reason, Sergeant Stahl must then be allowed to demonstrate that the

County’s proffered reasons are a mere pretext for discrimination. Id.

                                         -15-
      Here, Sergeant Stahl did complain to her supervisors that the fitness test

was not “female-friendly.” Aplt’s App. at 52. 3 However, Sergeant Stahl

conceded that she was not treated differently after she complained about the test

and that none of her fellow officers made any comments indicating an intent to

retaliate. Moreover, it is undisputed that passing the test was a requirement for

the position at issue and that Sergeant Stahl failed the test.

      Accordingly, a reasonable factfinder could not find a causal connection

between Sergeant Stahl’s complaint about the test and the County’s decision not

to select her for a position in the SEU. The district court thus properly granted

summary judgment to the County on Sergeant Stahl’s retaliation claim.



                                III. CONCLUSION

      Accordingly, for substantially the same reasons as set forth by the district




      3
         As noted above, Sergeant Stahl does not now allege that the test itself
was not “female friendly.” Instead, her complaint is with the manner in which the
test was administered. In order to prevail on a retaliation claim, she need not
establish that the test was actually discriminatory. See Meeks v. Computer
Assocs. Int’l., 15 F.3d 1013, 1021 (11th Cir.1994) (“To recover for retaliation,
the plaintiff need not prove the underlying claim of discrimination which led to
her protest, so long as she had a reasonable good faith belief that the
discrimination existed”) (internal quotation marks omitted).

                                         -16-
court, we AFFIRM the district court’s grant of summary judgment to the County.




                             Entered for the Court,



                              Robert H. Henry
                              Circuit Judge




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