                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                       PUBLISH                       March 16, 2011
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT



 JOHN MATHEWS,
              Plaintiff - Appellant,
       v.                                                 No. 09-1233
 DENVER NEWSPAPER AGENCY LLP,
              Defendant - Appellee.



            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
                    (D.C. NO. 1:07-CV-02097-WDM-KLM)



Barry D. Roseman, McNamara, Roseman, Martínez & Kazmierski, LLP, Denver, CO, for
Plaintiff-Appellant.
Mary Hurley Stuart (Jason R. Prussman with her on the brief), Husch Blackwell Sanders
LLP, Denver, CO, for Defendant-Appellee.


Before MURPHY, McKAY, and O’BRIEN, Circuit Judges.

MURPHY, Circuit Judge.



I.    Introduction

      This case concerns the efforts of John Mathews, formerly a unionized employee of

Denver Newspaper Agency, LLP (the “Agency”), to litigate certain statutory employment
discrimination claims despite having previously arbitrated similar contractual claims to a

final, adverse determination. Believing the Supreme Court’s recent decision in 14 Penn

Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009), to control the issue, the district court gave the

arbitral decision preclusive force and granted summary judgment against Mathews on all

counts. The district court also concluded Mathews was unable to demonstrate that he

was qualified for his former position, a showing necessary to the establishment of a

prima facie case of discriminatory demotion. Summary judgment was therefore granted

on Mathews’s discriminatory demotion claims on this alternate ground, as well.

       The circumstances under which civil rights claims may be litigated despite a prior

arbitral ruling have been long established under Alexander v. Gardner-Denver Co., 415

U.S. 36 (1974), and 14 Penn Plaza does nothing to disturb the rule set forth therein.

Because the facts in this case fit squarely within the holding of Gardner-Denver, no

preclusive or waiver effect should have been given to the prior arbitral decision.

Nevertheless, the district court properly determined that Mathews was unable to establish

his prima facie case of discriminatory demotion as a matter of law. Exercising

jurisdiction under 28 U.S.C. § 1291, we REVERSE in part, and AFFIRM in part, and

REMAND for proceedings not inconsistent with this opinion.

II.    Background

       Mathews, originally from southern India, worked for the Agency and its

predecessors almost continuously from 1983 through 2005. He was a member of the

Denver Mailers Union No. 8 (the “Union”) throughout this period, and the terms of his

employment were controlled by a collective-bargaining agreement (the “CBA”). At the

                                             2
time of the events giving rise to his current claims, Mathews held the position of Unit

Supervisor.1

       In June 2005, a female employee under Mathews’s supervision advised her union

steward of inappropriate comments allegedly made by Mathews on the 11th and 12th of

that month. Beginning on June 17, 2005, the Agency placed Mathews on paid

administrative leave pending its investigation of the incident. The Union filed a formal

grievance against Mathews on behalf of the complaining employee on June 20, 2005, and

Mathews was informed that he would be demoted from his unit supervisor position on

July 1, 2005. Later that day, Mathews left the work floor and obtained a doctor’s

certification that he could not return to work for medical reasons.

       Mathews subsequently filed an initial grievance against the Agency, alleging his

demotion was motivated by national origin discrimination, in violation of Article II,

Section 11 of the CBA, as well as state and federal laws. Article II, Section 11 provides:

       The Employer and the Union acknowledge continuation of their policies of
       no discrimination against employees and applicants on the basis of age, sex,
       race, religious beliefs, color, national origin or disability in accordance with
       and as required by applicable state and federal laws.

Mathews’s initial grievance also alleged that he was demoted in retaliation for previous

complaints. It appears Mathews had previously accused the Agency of deciding

managerial and supervisory roles based on considerations of race, color, and national

origin. Mathews conveyed these accusations to Agency’s management in an email sent


1
  Although this position required Mathews to oversee the work of other employees, he
remained part of the bargaining unit, subject to the terms of the CBA.

                                              3
May 31, 2005, and in a letter dated June 15, 2005, but not delivered until some later date.

The initial grievance was later amended to remove any reference to state and federal

laws, leaving only a claim of discrimination in violation of Article II, Section 11 of the

CBA and the cryptic phrase “Also Retaliation complaints including but not limited to.”

       Article XIII of the CBA contains a dispute resolution procedure, providing that

“[i]n the event of a disagreement as to the interpretation, application or construction of

this contract, including all disputes involving discharge or discipline, which cannot be

amicably adjusted by the Employer and the employees concerned,” such disagreement

shall be submitted to final and binding arbitration. Despite this seemingly compulsory

language, the parties agree that aggrieved employees can instead opt to litigate their

disputes in a judicial forum. Mathews himself had previously litigated a claim against

the Denver Post (a predecessor of the Agency). See Mathews v. Denver Post, 263 F.3d

1164 (10th Cir. 2001). This time, however, Mathews chose to submit his amended

grievance to arbitration as provided by the CBA.

       The arbitration proceeding was held over four days in February and March 2006.

Although the question of discrimination was stated in terms of the CBA’s anti-

discrimination provisions (“[D]id GRIEVANT’S demotion violate the contractual

provisions prohibiting discrimination?”), Mathews and the Agency presented their

arguments by reference to controlling Supreme Court and Tenth Circuit law under Title

VII and related statutes. The arbitrator agreed this approach was proper, because Article

II, Section 11 of the CBA did “nothing more than recognize actions or omissions that

would otherwise constitute statutory violations [are] also violations of [the CBA], so that

                                              4
a contractual remedy is available to any aggrieved party, as well.” Applying the burden-

shifting technique adopted by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), the arbitrator determined (1) Mathews had established a prima facie

case of discriminatory demotion; (2) the Agency had established a reasonably clear and

specific non-discriminatory reason for its actions; and (3) Mathews was demoted not

because of his national origin, but rather because a number of complaints had been

submitted against him, such that the Agency “began to entertain a good faith concern

whether [Mathews’s] personality . . . was such as to allow him to be an effective

supervisor.”2 The arbitrator consequently denied Mathews’s grievance in its entirety.

      Shortly following the arbitrator’s adverse ruling, Mathews filed an application for

disability benefits with the Social Security Administration (the “SSA”), alleging

complete and total disability beginning on June 11, 2005 (the date of the alleged

comments precipitating his demotion). After initially rejecting Mathews’s claim, the

SSA determined he was afflicted with a bulging disc of the cervical spine and an

affective disorder, rendering him disabled as of June 11, 2005. Mathews was therefore

awarded monthly disability benefits, as well as a lump-sum payment for the period

between his disability and the SSA’s recognition thereof in September 2007.

      Mathews then initiated the instant litigation in Colorado state court, asserting

statutory claims under Title VII and 42 U.S.C. § 1981. The Agency removed the action

to the District of Colorado. Following discovery, both parties moved for summary

2
 The parties presented no evidence on Mathews’s retaliation claim at arbitration, and the
arbitral decision makes no mention of it.

                                            5
judgment. The district court concluded the parties “recognized that the CBA’s arbitration

agreement covered [Mathews’s] statutory claims.” Under such circumstances, it

reasoned, Mathews’s submission to binding arbitration constituted a waiver of his right to

seek a judicial remedy. The arbitral decision was consequently given preclusive effect,

barring Mathews from litigating his statutory discrimination and retaliation claims. The

district court also determined that, in light of the evidence presented, no reasonable fact-

finder could find Mathews was medically qualified for the position from which he was

demoted. To the extent Mathews claimed that his disability arose only after his

demotion, his prior sworn assertions to the SSA of total disability arising on June 11,

2005, served to judicially estop him from taking that position. He was therefore unable

to establish a prima facie case of discrimination under the McDonnell Douglas

framework. The district court thus granted summary judgment on each of Mathews’s

claims based on waiver and preclusion grounds, and additionally on Mathews’s

discriminatory demotion claim for failure to establish a prima facie case. Mathews now

appeals the district court’s order granting summary judgment for the Agency.

III.   Discussion

       This court reviews the grant of summary judgment de novo. Lewis v. Circuit City

Stores, Inc., 500 F.3d 1140, 1146 (10th Cir. 2007). Summary judgment is appropriate if

the admissible evidence 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). In

determining whether summary judgment is appropriate, the court must “view the



                                              6
evidence and draw all reasonable inferences therefrom in the light most favorable to the

party opposing summary judgment.” Lewis, 500 F.3d at 1146. (quotation omitted).

           A. Waiver and Preclusion of Statutory Claims

       Mathews’s first argument on appeal is that the decision to submit his amended

grievance to arbitration did not constitute a waiver of his right to litigate statutory

discrimination and retaliation claims, and that the arbitral decision rendered on his

grievance should not preclude the instant litigation. The issue is controlled by Gardner-

Denver.

       In Gardner-Denver, the Supreme Court set forth several tenets regarding the

relationship between contract-dispute arbitration and subsequent civil rights litigation.

First, the Gardner-Denver Court stated that, while an employee may presumably “waive

his cause of action under Title VII . . . mere resort to the arbitral forum to enforce

contractual rights constitutes no such waiver.” 415 U.S. at 52 (emphasis added).

Second, where the arbitration agreement between the parties empowers the arbitrator “to

resolve only questions of contractual rights” under a collective-bargaining agreement,

such arbitrator’s decision could not preclude the employee from later bringing his Title

VII claims in federal court “regardless of whether certain contractual rights are similar to,

or duplicative of, the substantive rights secured by Title VII.” Id. at 53-54; see also 14

Penn Plaza, 129 S. Ct. at 1467 (discussing the holding of Gardner-Denver).

       In Gardner-Denver, these basic rules combined to permit the plaintiff an

opportunity to litigate Title VII claims against his employer despite having previously

lost at arbitration on a grievance alleging unjust discharge in violation of the “just cause”

                                               7
provision of his collective-bargaining agreement. See 415 U.S. at 38-42. Critically, the

arbitration agreement in Gardner-Denver did not provide the arbitrator with authority to

resolve questions of statutory rights. Id. at 53. Under such circumstances, the arbitral

decision had resolved only the contractual violations alleged by plaintiff, and the

“distinctly separate nature of [his] contractual and statutory rights [was] not vitiated

merely because both were violated as a result of the same factual occurrence.” Id. at 49.

The preclusive doctrines of election of remedies, waiver, res judicata, and collateral

estoppel were therefore inapplicable “in light of the collective-bargaining agreement’s

failure to address arbitration of Title VII claims.” 3 14 Penn Plaza, 129 S. Ct. at 1467

(explaining the reasoning behind Gardner-Denver’s holding); see also Gardner-Denver,

415 U.S. at 50 n.10 (“The policy reasons for rejecting the doctrines of election of

remedies and waiver in the context of Title VII are equally applicable to the doctrines of

res judicata and collateral estoppel.”).

       In addition to its core holding, the Gardner-Denver Court expressed doubts about

the competence of arbitrators to evaluate and decide statutory claims, and about the

validity of union-negotiated waivers of employees’ federal forum rights for statutory

claims. 415 U.S. at 51-52, 56-61. In subsequent years, the Supreme Court has



3
 The reasoning articulated in Gardner-Denver also formed the core of the Court’s
decisions in Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981)
(denying preclusive effect to unsuccessfully arbitrated contractual wage claims in
subsequent Fair Labor Standards Act litigation), and McDonald v. City of West Branch,
466 U.S. 284, 289 (1984) (denying preclusive effect to unsuccessfully arbitrated
contractual “just cause” claims in subsequent litigation under 42 U.S.C. § 1983).

                                              8
disavowed Gardner-Denver’s anti-arbitration language as misguided,4 and clarified that

an arbitration agreement can constitute an enforceable waiver of judicial forum for

statutory civil rights claims regardless whether negotiated individually or collectively.

See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (holding

individually negotiated arbitration agreement encompassing statutory claims

enforceable); Wright, 525 U.S. at 80 (holding union-negotiated waiver of employees’

right to judicial forum for statutory claims must be “clear and unmistakable”); 14 Penn

Plaza, 129 S. Ct. 1456 (2009) (holding union-negotiated waiver of employees’ right to

judicial forum for statutory claims enforceable where waiver was “clear and

unmistakable”). Gardner-Denver’s core holding, however, that the decision to arbitrate

an employee’s contractual claim by itself neither waives nor precludes the subsequent

litigation of statutory claims arising out of the same underlying facts, remains intact. See

14 Penn Plaza, 129 S. Ct. at 1467. As the law now stands, both individual employees

and unions may prospectively agree with the employer to arbitrate all employment-

related disputes, including statutory rights normally enforced through litigation, but only

so long as this intention is clearly expressed. See id. at 1465; Gilmer, 500 U.S. at 26.

       The continued vitality of Gardner-Denver in cases where the parties had not

agreed to arbitrate statutory claims was most recently affirmed by the Supreme Court in



4
 “[W]e are well past the time when judicial suspicion of the desirability of arbitration
and of the competence of arbitral tribunals inhibited the development of arbitration as an
alternative means of dispute resolution.” Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20, 34 n.5 (1991) (quotation omitted).

                                             9
14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009). There, the plaintiffs’ collective-

bargaining agreement contained the following language:

       There shall be no discrimination against any present or future employee by
       reason of race, creed, color, age, disability, national origin, sex, union
       membership, or any other characteristic protected by law, including, but not
       limited to, claims made pursuant to Title VII of the Civil Rights Act, the
       Americans with Disabilities Act, the Age Discrimination in Employment
       Act . . . . All such claims shall be subject to the grievance and arbitration
       procedures (Article V and VI) as the sole and exclusive remedy for
       violations.

Id. at 1461. Despite this explicit language, the 14 Penn Plaza plaintiffs filed a complaint

against their employer in federal court, alleging violations of their rights under the Age

Discrimination in Employment Act. Citing the terms of the collective-bargaining

agreement, the defendant-employer sought dismissal of the complaint and an order

compelling the plaintiffs to submit their claims to arbitration. Although the district court

and Second Circuit concluded that Gardner-Denver controlled (rendering the collective-

bargaining agreement’s waiver of federal forum ineffective), the Supreme Court reversed

and held the provision enforceable. Id. at 1463.

       Gardner-Denver, the Supreme Court explained, denied preclusive effect to a prior

arbitral decision “because the collective-bargaining agreement did not cover statutory

claims.” Id. at 1467. It therefore followed that the Gardner-Denver arbitrator could not

decide questions of statutory rights regardless whether the plaintiff’s “contractual rights

[were] similar to, or duplicative of, the substantive rights secured by Title VII.” Id.

(quoting Gardner-Denver, 415 U.S. at 53-54). This jurisprudence remained sound, but

does not “control the outcome where . . . the collective-bargaining agreement’s


                                             10
arbitration provision expressly covers both statutory and contractual discrimination

claims.” Id. at 1469 (emphasis added). Because the collective-bargaining agreement in

14 Penn Plaza did expressly cover statutory claims, Gardner-Denver had no bearing and

the terms of the arbitration agreement controlled. Id. at 1466-69.

       This body of precedent determines the outcome of Mathews’s current challenge,

and the district court correctly recognized that the crucial inquiry is whether the CBA’s

arbitration provisions covered Mathews’s statutory claims. It noted that Article II,

Section 11 of the CBA provided contractual guarantees against discrimination precisely

coterminous with those given in federal law, and that Mathews and the Agency both

treated this provision “as doing nothing more than recognizing actions or omission that

would otherwise constitute statutory violations as also violations of their agreement.”

From this, the district court concluded the parties “recognized that the CBA’s arbitration

agreement covered Plaintiff’s statutory claims,” placing the case within 14 Penn Plaza’s

holding rather than Gardner-Denver’s. The court concluded Mathews’s prior submission

to arbitration therefore constituted a waiver of his right to seek a judicial remedy.

       Nothing in the record supports the district court’s logical jump. Although the

parties acknowledged that violations of statutory law would also constitute violations of

the contract, this does not mean that the CBA covered statutory claims or that the parties

believed it to do so. Indeed, the district court’s conclusion ignores the “distinctly

separate nature” of contractual and statutory rights, which is “not vitiated merely because

both were violated as a result of the same factual occurrence.” Gardner-Denver, 415

U.S. at 50. This reasoning does not change even though the contours of the CBA’s anti-

                                             11
discrimination protections were defined by reference to federal law. See id. at 54.

Rather, unionized employees of the Agency subjected to discriminatory treatment hold

two similar claims, one based in statute, and one based in contract. The operative

question remains whether the CBA’s arbitration provisions are broad enough to

encompass Mathews’s statutory claims, such that his submission to arbitration operated

as a waiver of forum or election of remedy.

       Applying Supreme Court precedent to the facts of Mathews’s case, it is evident no

waiver of judicial forum has occurred. Again, such a waiver may only occur where the

arbitration agreement expressly grants the arbitrator authority to decide statutory claims.

See 14 Penn Plaza, 129 S. Ct. at 1469; Gilmer, 525 U.S. at 70-80. The arbitration clause

of the CBA, from which the arbitrator derived all authority, states that “[t]he arbitrator

shall have no power to add to, subtract from, change or modify any provision of this

Agreement, but shall be authorized only to resolve the dispute submitted to him or her.”

CBA, Article XIII (emphasis added). The dispute submitted to arbitration by Mathews

asserted a violation of Article II, Section 11 of the CBA and a vague complaint of

retaliation, but no statutory claims under Title VII or 42 U.S.C. § 1981. Because the

arbitration agreement empowered the arbitrator to resolve only the dispute submitted, and

because the dispute submitted made no mention of statutory claims, the arbitral decision

could in no way determine the question of Mathews’s statutory rights. Appropriately, the

Agency’s representative at arbitration agreed that the issue before the arbitrator was

whether “the company discriminate[d] against Mr. Mathews in violation of Section 11,

Article II of the contract,” and the arbitral decision phrased the question decided strictly

                                              12
in terms of Mathews’s contractual rights under the CBA (“[D]id GRIEVANT’S demotion

violate the contractual provisions prohibiting discrimination?”) (emphases added).

       Thus, the relevant facts of Mathews’s case precisely track those of Gardner-

Denver. There, as here, no waiver of the right to litigate statutory claims has occurred,

because “mere resort to the arbitral forum to enforce contractual rights constitutes no

such waiver.” Gardner-Denver, 415 U.S. at 52. That Mathews’s contractual rights and

statutory rights were coterminous is of no moment: As the Supreme Court has recently

reaffirmed, “[b]ecause the collective-bargaining agreement gave the arbitrator ‘authority

to resolve only questions of contractual rights,’ his decision could not prevent the

employee from bringing the Title VII claim in federal court ‘regardless of whether

certain contractual rights are similar to, or duplicative of, the substantive rights secured

by Title VII.’” 14 Penn Plaza, 129 S. Ct at 1467 (emphasis added) (quoting Gardner-

Denver, 415 U.S. at 53-54).

       Nor can it be argued that the arbitration agreement required submission of

statutory claims, such that Mathews’s failure to assert them in arbitration resulted in their

waiver. By its own terms, the arbitration agreement applied only to disagreements “as to

the interpretation, application or construction of this contract [i.e. the CBA], including all

disputes involving discharge or discipline.” CBA, Article XIII (emphasis added).

Mathews’s statutory claims consequently fall outside the scope of the arbitration

agreement, and he has not waived such claims by failing to raise them at arbitration.

       For these same reasons, no preclusive effect should be accorded to the arbitral

decision. Again, nothing in the arbitration agreement permitted or required Mathews to

                                             13
submit statutory claims to the arbitrator, nothing in the amended grievance purports to do

so, and the arbitration agreement nowhere empowered the arbitrator to decide questions

of statutory rights. The facts of Mathews’s case thus mirror those of Gardner-Denver in

all relevant aspects. Because the Gardner-Denver employees “had not agreed to arbitrate

their statutory claims, and the labor arbitrators were not authorized to resolve such

claims, the arbitration in [Gardner-Denver] understandably was held not to preclude

subsequent statutory actions.” Gilmer, 500 U.S. at 35. Seeing no relevant distinction

between that case and the one before us, the same reasoning holds.

       The Agency’s reliance on Lewis v. Circuit City Stores, in which we granted

preclusive effect to a prior arbitral decision, is unavailing. There, the plaintiff had

submitted “specific claims under the Kansas Act Against Discrimination . . . and Title

VII of the Civil Rights Act” against his employer to binding arbitration. 500 F.3d at

1144. The arbitration agreement in Lewis, moreover, required arbitration of “any claims

arising under federal, state or local statutory or common law . . . includ[ing], but not

limited to . . . Title VII of the Civil Rights Act of 1964 . . . state discrimination statutes,

state statutes and/or common law regulating employment termination, the law of contract

or the law of tort.” Id. at 1143 (emphasis added). Following the arbitrator’s adverse

determination, the Lewis plaintiff initiated a federal lawsuit against his employer,

asserting violations of his statutory rights arising from the same set of facts as his arbitral

complaints. Id. at 1145. In affirming the district court’s grant of summary judgment

against plaintiff on claim preclusion grounds, we explicitly distinguished Gardner-

Denver and its progeny, which had allowed litigation to proceed because the parties had

                                               14
arbitrated “contract-based claims, in contrast to statutory claims [and] the employees had

never agreed to have an arbitrator decide their individual statutory rights.” Id. at 1148

n.9. “In contrast, Lewis’s arbitration agreement . . . was not limited to contractual

disputes, [and] Lewis broadly agreed to arbitrate any statutory or tort claims.” Id. Under

those circumstances, the doctrines of preclusion and waiver applied.

       As is evident from our foregoing discussion, Mathews’s case falls squarely within

the reasoning of Gardner-Denver, and is easily distinguished from Lewis. Because the

submission of Mathews’s contractual claims to binding arbitration results in no waiver or

preclusion of his statutory claims, summary judgment on such grounds was inappropriate.

          B. Failure to Establish Qualification for the Position

       Mathews next challenges the district court’s alternate grounds for summary

judgment on his discriminatory demotion claim. In support of his Title VII claim of

discriminatory demotion, Mathews presented only indirect evidence suggesting he

received harsher treatment than his similarly situated, non-Indian peers. Because

Mathews relies upon such indirect evidence to defend against summary judgment, the

court evaluates that claim under the rubric set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. at 802-04; Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226

(10th Cir. 2000). Applying that framework to the present case, Mathews bears the initial

burden of establishing a prima facie case of discriminatory demotion. Kendrick, 220

F.3d at 1226. He may satisfy his burden by presenting evidence that (i) he is a member

of a protected class, (ii) he was qualified for the job as Unit Supervisor, (iii) he was

demoted from that job, and (iv) the position was not eliminated. See Jones v. Denver

                                              15
Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). Once the prima facie case has been

made, the burden shifts to the employer to articulate some legitimate, non-discriminatory

reason for the demotion. Id. at 752. Finally, the burden shifts back to the plaintiff to

demonstrate that the employer’s stated reason is in fact a mere pretext. Id. at 752-53.

       The district court concluded Mathews had not satisfied his initial burden because

he could not demonstrate he was qualified for the job as Unit Supervisor. Specifically, it

determined the significant medical evidence in the record indicates Mathews was

medically unable to perform his job (or any job) since June 11, 2005 (i.e. several weeks

before the Agency demoted him). The district court also determined that, to the extent

Mathews argued he was qualified to perform his job at the time of his demotion on July

1, 2005, he was judicially estopped from taking such position in light of his previous

sworn statements to the SSA that he has been completely disabled as of June 11, 2005.

       Mathews does not dispute that he is currently unqualified to work as a Unit

Supervisor, but claims his disability arose only as a result of the Agency’s allegedly

wrongful decision to demote him, and that it would be inequitable for the Agency to

escape liability for its wrongful act because of its dramatic consequences. He emphasizes

that, regardless what the medical records in evidence may show, it is undisputed he

actually worked as Unit Supervisor until being placed on administrative leave on June 17,

2005. Finally, Mathews contends the doctrine of judicial estoppel should not apply

because his sworn statements to the SSA of total disability as of June 11, 2005, are not

inconsistent with his current claims that he was qualified for unit supervisor position until

suffering debilitating depression as a result of his demotion.

                                             16
       Viewing the record before us in the light most favorable to Mathews, we conclude

he cannot establish his prima facie case of discriminatory demotion because he is

judicially estopped from asserting he was qualified for the job of Unit Supervisor at the

time he was demoted. “The doctrine of judicial estoppel is based upon protecting the

integrity of the judicial system by ‘prohibiting parties from deliberately changing

positions according to the exigencies of the moment.’” Bradford v. Wiggins, 516 F.3d

1189, 1194 (10th Cir. 2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 749-59

(2001)). In deciding whether to apply judicial estoppel, courts look to such factors as

whether “1) a party’s later position is clearly inconsistent with its earlier position; 2) a

party has persuaded a court to accept that party’s earlier position, so that judicial

acceptance of an inconsistent position in a later proceeding would create the perception

that either the first or second court was misled; and 3) the party seeking to assert the

inconsistent position would derive an unfair advantage if not estopped.” Id. (quotation

omitted). Where a plaintiff’s prior inconsistent position is a claim of total disability made

in an SSA proceeding, he is not necessarily estopped from asserting qualification for his

job in a subsequent lawsuit. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,

804-06 (1999) (discussing instances in which a plaintiff may be disabled for SSA

purposes, yet sufficiently qualified to assert a claim under the Americans with

Disabilities Act). In such circumstances, however, the plaintiff must provide an

explanation of the apparent inconsistency with the necessary elements of plaintiff’s

claim. Id. at 806-07.



                                              17
       Guided by these principles, we review the district court’s decision to apply judicial

estoppel for abuse of discretion. Eastman v. Union Pac. R.R., 493 F.3d 1151, 1156 (10th

Cir. 2007). Here, Mathews persuaded an administrative law judge for the SSA that a

bulging disc of the cervical spine and an affective disorder rendered him completely

disabled from working in any capacity as of June 11, 2005. He now asserts that to “the

best of [his] recollection,” his disabling depression only occurred after the Agency placed

him on administrative leave on June 17, 2005. The two positions are clearly inconsistent

and satisfy the standard test for judicial estoppel. Mathews makes no effort to explain the

apparent inconsistency as required by Cleveland. Instead, Mathews meekly asserts there

is no inconsistency. The conflict, however, is self-evident.

       We are left with a paradigmatic case for judicial estoppel: Mathews’s inconsistent

statement to the SSA has resulted in his receipt of significant benefits in the form of

disability payments, and allowing him to retain these benefits while he now pursues a

claim predicated on a complete rejection of his prior position would give him an unfair

advantage. The district court therefore did not abuse its discretion in judicially estopping

Mathews from asserting that he was qualified to work as Unit Supervisor until being

placed on administrative leave. Because this estoppel prevents Mathews from

establishing his prima facie case of discriminatory demotion, summary judgment of that

claim is affirmed.

          C. Mathews’s Retaliatory Demotion Claim

       Because we affirm summary judgment on Mathews’s statutory claim of

discriminatory demotion based on his failure to establish a prima facie case, only his

                                             18
claim of retaliatory demotion remains. The Agency moved the district court for summary

judgment on this claim, arguing the chronology of events made it impossible for

Mathews to establish a prima facie case of retaliatory demotion. The Agency further

argued that, even if an otherwise sufficient showing of retaliation had been made,

summary judgment was appropriate because Mathews had not presented evidence

sufficient to overcome the weight of the arbitrator’s finding that legitimate management

concerns caused Mathews’s demotion. These arguments were not reached because the

district court granted full summary judgment against Mathews on waiver and preclusion

grounds, but the Agency asserts them on appeal as an alternative basis to affirm the

district court decision. For the reasons discussed above, the doctrines of waiver and

preclusion do not apply to Mathews’s retaliation claim, and we must now squarely

address the Agency’s alternative grounds for summary judgment.

      As with claims of discriminatory demotion, when a plaintiff relies solely upon

indirect evidence to avoid summary judgment on a claim of retaliation, courts employ the

burden-shifting framework of McDonnell Douglas, under which the plaintiff bears the

initial burden of establishing a prima facie case. See Somoza v. Univ. of Denver, 513

F.3d 1206, 1211 (10th Cir. 2008). To establish a prima facie case of retaliatory

demotion, the plaintiff must make a showing that (i) he was engaged in protected activity,

(ii) he suffered an adverse employment action, and (iii) there was a causal connection

between the protected activity and the adverse action. See Timmerman v. U.S. Bank, 483

F.3d 1106, 1122-23 (10th Cir. 2007). Mathews contends that correspondence with his

supervisors, in which he complains Agency management made personnel decisions based

                                            19
on improper consideration of race and ethnicity, precipitated his subsequent demotion

from Unit Supervisor. The facts of Mathews’s correspondence and demotion are not

disputed, establishing the first two elements of his prima facie claim. The Agency,

however, asserts the third prong, a causal connection between the two, cannot logically

be established because the correspondence was not received by the Agency until after

Mathews had been placed on paid administrative leave.

       The argument is not persuasive. The record shows Mathews was placed on

administrative leave on June 17, 2005, and that his demotion was announced on July 1,

2005. It also shows Mathews had communicated his suspicions of discriminatory

decision-making to his Agency supervisors by email on May 31, 2005, and by letter

sometime after June 17, 2005, but before July 1. In arguing that no causal connection can

be shown between the correspondence and Mathews’s demotion, the Agency focuses

solely upon the timing of the letter. This ignores the email, which was received well

before the events giving rise to Mathews’s placement on administrative leave. A causal

connection is therefore not impossible to show. Furthermore, even if there had only been

the one letter, it too was received by the Agency prior to its decision to demote Mathews.

Although he had been placed on administrative leave prior to its receipt, there is no

indication the decision to demote him had already been made. Mathews has satisfied his

burden of showing a causal connection between his complaints and his subsequent

demotion, and the requisite prima facie showing has thus been made. See St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (holding that the burden of establishing

prima facie case of discriminatory treatment may be satisfied by “minimal” showing).

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       Under the McDonnell Douglas framework, the burden next shifts to the Agency to

articulate some legitimate, non-discriminatory reason for Mathews’s demotion. 411 U.S.

at 802. The Agency’s proffered explanation—namely, its doubts as to Mathews’s

suitability for the Unit Supervisor position—suffices to satisfy this burden. The final

burden therefore falls to Mathews, who must point to some admissible evidence showing

that the Agency’s proffered explanation is mere pretext. Kendrick, 220 F.3d at 1226.

       Mathews has presented some evidence that other employees were not demoted for

their objectionable conduct. Such evidence can, in some circumstances, provide a

sufficient showing that an employer’s proffered explanation is pretextual to avoid

summary judgment. The Agency, however, urges this court to hold Mathews to a more

stringent standard in light of the arbitrator’s prior adverse ruling. Specifically, the

Agency cites to Second Circuit case law holding that, where a plaintiff’s statutory

discrimination or retaliation claims have previously been rejected in an arbitral

proceeding following an evidentiary hearing and based upon substantial evidence, the

plaintiff, “to survive a motion for summary judgment, must present strong evidence that

the decision was wrong as a matter of fact—e.g. new evidence not before the tribunal—or

that the impartiality of the proceeding was somehow compromised.” Collins v. N.Y. City

Transit Auth., 305 F.3d 113, 119 (2d Cir. 2002). We are asked to adopt this reasoning,

and to hold Mathews’s evidence per se insufficient to overcome the probative weight of

the arbitrator’s adverse ruling.

       This court has not adopted the Second Circuit’s per se “strong evidence” standard,

and there is no need to do so now. In Gardner-Denver, the Supreme Court counseled

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that, when evaluating a plaintiff’s statutory discrimination claims arising out of the same

facts as a previously arbitrated contract dispute, the arbitrator’s prior decision “may be

admitted as evidence and accorded such weight as the court deems appropriate.” 415

U.S. at 60. The Court clarified that it could prescribe no fixed standard as to the

probative weight accorded to such an arbitral decision, “since this must be determined in

the [trial] court’s discretion with regard to the facts and circumstances of each case.” Id.

at 60 n.21; accord Barrentine, 450 U.S. at 743 n.22. Certainly, “‘[w]here an arbitral

determination gives full consideration to an employee’s [Title VII] rights, a court may

properly accord it great weight,’” but the court must also consider the “‘degree of

procedural fairness in the arbitral forum, adequacy of the record with respect to the issue

of discrimination, and the special competence of particular arbitrators.’” Barrentine, 450

U.S. at 743 n.22 (quoting Gardner-Denver, 415 U.S. at 60 n.21). The Collins court, in

fact, acknowledged as much before articulating its “strong evidence” standard. See 305

F.3d at 119 (citing cases). In light of the Supreme Court’s clear directive to accord

weight to prior arbitral decisions on a case-by-case basis, a per se standard is

inappropriate and we will not affirm the grant of summary judgment on that basis.

IV.    Conclusion

       For the foregoing reasons, the district court’s grant of summary judgment against

Mathews on his discriminatory demotion claim is AFFIRMED, and the district court’s

grant of summary judgment on the retaliatory demotion claim is REVERSED. The case

is REMANDED to the district court for further proceedings not inconsistent with this

decision.

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