                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 23, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ROBERT E. FOX,

                Plaintiff-Appellant,

    v.                                                  No. 08-7034
                                               (D.C. No. 6:07-cv-00242-RAW)
    R. JAMES NICHOLSON,                                  (E.D. Okla.)
    Secretary of Veteran Affairs,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.



         Robert E. Fox sued his employer, R. James Nicholson, Secretary of Veteran

Affairs (“the VA”), for disability discrimination and retaliation. He alleged that

the VA discriminated against him based on his learning disability by failing to

timely review and reclassify his position to a higher grade. He also asserted that

after he contacted an Equal Employment Opportunity (EEO) Counselor and filed


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
an EEO complaint for disability discrimination, the VA retaliated against him in a

number of different ways. The district court granted summary judgment in favor

of the VA on all claims. Mr. Fox now appeals.

      We AFFIRM the district court’s grant of summary judgment on the

retaliation claims. On the disability discrimination claim, we REMAND to the

district court for further proceedings.

                       I. Proceedings in the District Court

      The VA moved for summary judgment on all claims. Mr. Fox filed a

response to summary judgment, which included sixty-seven exhibits. The VA

then filed a reply to summary judgment, objecting to forty-nine of Mr. Fox’s

sixty-seven exhibits. Mr. Fox was given the opportunity to file a sur-reply and he

responded to the VA’s evidentiary objections.

      In the introductory notes to its summary judgment order, the district court

acknowledged the VA had objected to many of Mr. Fox’s exhibits and that

Mr. Fox had an opportunity to respond to those objections, but it did not

explicitly rule on any of the objections. The district court then noted that much

of Mr. Fox’s evidence was superfluous and not relevant. The district court

concluded the discussion by stating that it was not going to “go through all of

[Mr. Fox’s] evidence and list for the parties what it is considering and what it is

not. Instead, the court simply notes that it will list herein the facts that are

pertinent to the motion for summary judgment.” Aplt. App. at 577. The district

                                          -2-
court then gave a very abbreviated version of the background facts in two

paragraphs and did not mention the bulk of the facts outlined by Mr. Fox in his

response to summary judgment. The district court’s discussion of the facts in its

analysis of the disability discrimination claim is likewise abbreviated.

      Because the district court did not fully explain what evidence it was or was

not considering and the basis for that decision, i.e., whether it was inadmissible or

whether it was not relevant, we cannot review the merits of the summary

judgment decision with respect to the disability discrimination claim. We cannot

evaluate, for instance, whether the district court considered the evidence in the

light most favorable to Mr. Fox without knowing what evidence the district court

considered to be admissible nor can we conduct a proper de novo review of the

disability discrimination claim without knowing what evidence is admissible.

      The lack of an evidentiary ruling by the district court is compounded by the

district court’s use of an unduly narrow test for a prima facie case of disability

discrimination. There was some confusion on the part of the parties and the

district court with regard to the correct test. The district court ultimately decided

that Mr. Fox must show “(1) that he is a member of a protected class; (2) that he

suffered an adverse action; and (3) that similarly situated employees [were]

treated differently.” Aplt. App. at 578 (quotation and alteration omitted). That is

not the correct test under the Rehabilitation Act. As we explained in Woodman v.

Runyon, 132 F.3d 1330, 1338 (10th Cir. 1997), a plaintiff bringing a claim for

                                          -3-
disability discrimination under § 501 of the Rehabilitation Act must show: “(1)

[he] is a handicapped person within the meaning of the Act; (2) [he] is otherwise

qualified for the job; and (3) [he] was discriminated against because of [his]

handicap.” A showing that similarly situated employees were treated differently

is not “an indispensable element of the prima facie case” Sorbo v. United Parcel

Serv., 432 F.3d 1169, 1173 (10th Cir. 2005), although it may be relevant to show

the existence or absence of the third element of discrimination. Thus, evidence

that the district court considered irrelevant under its initial incorrect analysis may

become relevant under the proper standard.

      Although the district court initially concluded that Mr. Fox had failed to

meet his burden on the third prong of his prima facie case, the district court also

went on to discuss the VA’s legitimate, non-discriminatory reasons for its actions

as an alternative basis for granting summary judgment. Even if we were to

assume that Mr. Fox had met his prima face case, we conclude that the district

court’s analysis of the VA’s legitimate, non-discriminatory reasons also requires a

fuller analysis of the VA’s evidentiary objections and the facts the district court

was considering. For example, the VA contended that Mr. Fox’s supervisor was

too busy to review his position description in 2002 but this explanation does not

address any delays in 2003 and 2004, which are also covered by Mr. Fox’s

complaint.




                                          -4-
      Without knowing what evidence is properly admitted and what evidence the

district court would consider when applying the proper prima facie test, we

conclude that this case must be remanded for further proceedings. On remand,

the district court should rule on the VA’s evidentiary objections, apply the correct

prima facie test for disability discrimination, and consider the facts in the light

most favorable to Mr. Fox, with an explanation for any facts it chooses not to

consider.

      We note that we are able to review the district court’s disposition of

Mr. Fox’s retaliation claims. The bulk of the VA’s objections were directed at

evidence relied upon by Mr. Fox to support his disability discrimination claim.

The VA only objected to nine exhibits related to the retaliation claims and those

exhibits were either not material or the facts were admitted in other exhibits

provided by the VA. Moreover, the district court applied the proper analysis to

Mr. Fox’s retaliation claims. Because of these considerations, we are able to

reach the merits of Mr. Fox’s retaliation claims.

                                   II. Background

      Mr. Fox has a learning disability, which affects him in the areas of reading,

writing and mathematics. In 1997, the State of Oklahoma certified Mr. Fox as

having a severe disability. In 1999, the VA hired Mr. Fox as a Personnel

Assistant under an excepted (handicapped) appointment to work at the VA

Medical Center in Muskogee, Oklahoma. At the time of his hire, Mr. Fox’s

                                          -5-
position was classified as a GS-203 series, GS-7 grade. The position description

(“PD”) under which Mr. Fox worked was originally classified in 1994. In 2001,

Mr. Fox’s position title changed to Human Resources Assistant, but his GS

classification and PD remained the same.

      Beginning in November 2001, Mr. Fox sought to have his PD reviewed and

to have his position reclassified because he believed he was doing the job duties

of a Specialist, not an Assistant. In September 2004, Mr. Fox contacted an EEO

counselor regarding his belief that he was being discriminated against because of

his disability. Mr. Fox then filed an EEO complaint in November 2004, alleging

that the VA was discriminating against him because of his disability by failing to

reclassify his position to accurately reflect his job duties. In January 2005,

Mr. Fox filed a second EEO complaint, alleging that the VA was retaliating

against him for his prior EEO activity. The underlying complaint in this action

was filed in 2007.

                             III. Standard of Review

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

v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). A party is entitled to summary

judgment “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact.”

Fed. R. Civ. P. 56(c). “In conducting our analysis, we view all of the facts in the

light most favorable to the non-movant and draw all reasonable inferences from

                                         -6-
the record in the non-movant’s favor.” Fischer v. Forestwood Co., 525 F.3d 972,

978 (10th Cir. 2008). “While we view the record in the light most favorable to

the non-moving party, that party must still identify sufficient evidence requiring

submission to the jury to survive summary judgment.” Piercy, 480 F.3d at 1197.

                                  IV. Discussion

      Mr. Fox alleged that the VA retaliated against him for contacting an EEO

counselor in September 2004 and filing an EEO complaint in November 2004.

Specifically, he alleged the VA retaliated by: (1) failing to hire him for two

Human Resource Specialist positions; (2) including negative remarks and some

lower scores on his performance appraisal; (3) requiring him to perform back-up

secretarial duties; and (4) sending in his 1994 PD to the VA Medical Center in

Houston, Texas for classification when it was not accurate.

      In order to succeed on a claim for retaliation, Mr. Fox must first establish a

prima facie case by showing (1) he engaged in protected activity; (2) he suffered

an adverse employment action; and (3) there is a causal connection between the

protected activity and the adverse employment action. Meiners v. Univ. of Kan.,

359 F.3d 1222, 1229 (10th Cir. 2004). The Supreme Court has explained that the

second prong requires a showing “that a reasonable employee would have found

the challenged action materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a charge of




                                         -7-
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006) (quotations omitted).

      If Mr. Fox establishes his prima facie case, the burden shifts to the VA to

articulate a legitimate, non-discriminatory reason for the adverse employment

action. See Meiners, 359 F.3d at 1229. Mr. Fox must then respond by

demonstrating that the employer’s reason is pretextual. Id.

                                         A.

      Mr. Fox argued that the VA’s failure to hire him for two vacant Human

Resource Specialist Positions was in retaliation for his protected EEO activity. In

its motion for summary judgment, the VA assumed Mr. Fox could meet his prima

facie case 1 with respect to the VA’s decision not to hire him for the two vacant

Human Resource Specialist Positions but it offered a legitimate,

non-discriminatory reason for its decisions–that it hired the best qualified

applicants. Mr. Fox argues that the VA’s reason is pretextual because he was

more qualified than the applicants who were selected. On appeal, he focuses his

argument on Kori Taylor, the person who was selected for the second vacancy.




1
       Mr. Fox argues that the district court erred by concluding that the VA’s
refusal to hire Mr. Fox for these positions did not constitute an adverse action.
We agree with Mr. Fox that a refusal to hire does constitute an adverse action, but
the error here is harmless. The VA assumed in its motion for summary judgment
that Mr. Fox could meet his prima facie case and the district court considered the
VA’s legitimate, non-discriminatory reason as a basis for resolving the claim.

                                         -8-
He argues he was more qualified than Ms. Taylor because of his work experience

and educational background. 2

      After considering a series of criteria, Mr. Fox was rated qualified for the

vacancies, as was Ms. Taylor. Ms. Taylor, however, received higher scores on

the rating system. In addition to being rated the highest by Nan Haynes, who

Mr. Fox alleges was biased, Ms. Taylor was also rated the highest by an

independent board of interviewers. “An employer has discretion to choose among

equally qualified candidates, provided the decision is not based upon unlawful

criteria.” Lujan v. Walters, 813 F.2d 1051, 1058 (10th Cir. 1987) (quotation

omitted). Although Mr. Fox objects to the fact that Ms. Taylor was given higher

ratings in the more “subjective factors,” Aplt. Br. at 38, there is no showing here

that the criteria used to rate the candidates was unlawful. “Unless the disparity in

employees’ qualifications are obvious,” which it is not here, we are “reluctant to

substitute our views for those of the individuals charged with the evaluation duty

by virtue of their own years of experience and expertise in the field in question.”

MacKenzie v. City & County of Denver, 414 F.3d 1266, 1278 (10th Cir. 2005)



2
       In his response to the motion for summary judgment, Mr. Fox introduced
deposition testimony by a fellow employee, Cris Ford, in which Mr. Ford opined
that Mr. Fox was more qualified than Ms. Taylor. The district court concluded
that Mr. Fox had provided no evidentiary foundation for this testimony. Mr. Fox
argues on appeal that this ruling was improper. We see no abuse of discretion by
the district court on this evidentiary ruling. See Argo v. Blue Cross & Blue Shield
of Kan., 452 F.3d 1193, 1199 (10th Cir. 2003).

                                        -9-
(quotation omitted). Mr. Fox has not shown that the VA’s decision to hire other

equally qualified applicants instead of him was a pretext for discrimination.

                                         B.

      The VA argued that Mr. Fox could not establish a prima facie case on his

claim that negative comments and lower scores on his performance review

constituted retaliation because he was ultimately rated “Fully Successful” on his

performance review. We agree with the VA that these facts do not establish that

Mr. Fox suffered a materially adverse employment action and therefore Mr. Fox

cannot meet a prima facie case of retaliation. See, e.g., Meredith v. Beech

Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994) (concluding that plaintiff who

was given a performance review that was lower than previous reviews

but remained in the satisfactory range had not presented evidence of an

adverse action). We note, moreover, that other than referring this court to

its response on summary judgment, see Aplt. Br. at 40, Mr. Fox fails to offer

any argument as to how the district court erred in granting summary judgment

on this claim.

                                         C.

      The VA argued that Mr. Fox could not establish a prima facie case of

retaliation on his claim that he was required to act as a “back-up secretary.”

Mr. Fox conceded that his PD included the duty to act as a “back-up for

secretary.” The district court concluded that Mr. Fox had not shown that he

                                         -10-
suffered an adverse employment action because acting as a back-up secretary was

part of his job duties. Moreover, the VA presented a legitimate,

non-discriminatory reason for its decision and Mr. Fox has not shown that the

VA’s reason was pretextual. The secretarial position was vacant and the VA

needed help covering the position. Mr. Fox was one of several employees who

were required to perform back-up secretarial duties part-time while the secretarial

position was open.

      Mr. Fox asserts on appeal that the district court’s order was contrary to the

Supreme Court’s decision in Burlington because a reassignment of duties can

constitute a materially adverse action. In Burlington, the plaintiff’s entire

position was changed, she was the only person who was reassigned, and she was

reassigned to that position full-time. See 548 U.S. at 58. In contrast to the

plaintiff in Burlington, Mr. Fox’s position remained the same; he and some of his

co-workers were simply asked to temporarily perform additional back-up

secretarial duties while the secretarial position remained open. This does not

constitute a materially adverse action and there is no showing that the VA’s

legitimate, non-discriminatory reason was pretextual.

                                          D.

      Mr. Fox argued that the VA retaliated against him by sending in his 1994

PD to the VA Medical Center in Houston, Texas for review and reclassification in

August of 2006 despite the fact that it was inaccurate. The VA argued that this

                                         -11-
was not a materially adverse employment action because Mr. Fox had been

working under the 1994 PD since he was hired in 1999. Sending the 1994 PD in

for review and reclassification did not change his employment status. Moreover,

the VA provided an explanation for why it sent in the PD. The VA and Mr. Fox

had been in negotiations on revisions to the PD but they ultimately could not

agree. When an agreement could not be reached, the VA sent in the 1994 PD so

that it could know at a minimum whether the 1994 PD was correctly graded or

whether it should be classified at a higher grade. Mr. Fox has not demonstrated

he suffered a materially adverse employment action or that the VA’s legitimate,

non-discriminatory reason was pretextual.

                                  V. Conclusion

      The judgment of the district court is AFFIRMED on Mr. Fox’s retaliation

claims. We VACATE the portion of the district court’s order discussing

Mr. Fox’s disability discrimination claim and REMAND to the district court for

further proceedings consistent with this opinion.


                                               Entered for the Court



                                               Per Curiam




                                        -12-
