                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 5 2003
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 SUE E. ADAMS,

           Plaintiff-Appellant,
 v.                                                           No. 02-3071
 WASHBURN UNIVERSITY OF                              (D.C. No. 98-CV-4199-RDR)
 TOPEKA,                                                     (D. Kansas)

           Defendant-Appellee.


                                  ORDER AND JUDGMENT*


Before TACHA, Chief Judge, BRISCOE, Circuit Judge, and SHADUR, District
Judge.**



       Plaintiff Dr. Sue Adams filed this action against her former employer, defendant

Washburn University, under Title VII, 42 U.S.C. § 2000e et. seq. Plaintiff appeals the

district court's entry of summary judgment in favor of Washburn. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
       **
            The Honorable Milton I. Shadur, Senior District Judge, Northern District of
Illinois, sitting by designation.
                                             I.

       In 1994, plaintiff applied for an educational technology lecturer position in the

Department of Education at Washburn. The position was a non-tenure track, three-year

appointment. During the interview process, she met with the search committee, faculty

members, and administrators, including Dr. Wayne Sheley, who was then vice president

of academic affairs. During the same time period, plaintiff also applied for the position

of director of continuing education at Washburn.

       After she was denied both positions, plaintiff filed a complaint with Washburn

alleging Dr. Sheley made improper sexual advances and comments toward her during the

interview process. She asserted that he contacted her outside of the interview process,

commented about her body and appearance, offered her a higher salary if she would work

on special projects directly with him, and encouraged her to apply for a position where

she could work more closely with him. Plaintiff alleged that, due to her rejection of these

overtures, she was denied the lecturer position notwithstanding the fact that the other

qualified candidates had withdrawn from consideration for the position. Plaintiff and

Washburn negotiated a settlement and plaintiff was awarded the three-year lecturer

position in exchange for her release of any claim against Washburn.

       From 1994 to 1997, plaintiff successfully fulfilled the requirements of her position.

During her tenure, she helped create and teach new graduate courses in educational

technology and produced two manuscripts for publication. Her reviews from students and


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peers were favorable. In 1997, Washburn determined that the lecturer position should

become a permanent tenure track position. Washburn advertised the position and initiated

a formal application and interview process. Dr. David Van Cleaf, chair of the

Department of Education, asked plaintiff and other faculty members for input into the job

description for the position. A doctorate in educational technology, which plaintiff

lacked, was removed as a requirement for the position. Instead, a doctorate in education

with an emphasis in educational technology was listed as a requirement.

       Pursuant to Washburn policy, Dr. Van Cleaf selected a five-member search

committee to review applications and make recommendations for the position. None of

the members who served on the 1994 search committee served on the 1997 search

committee. Plaintiff was not selected as one of the top candidates chosen to be

interviewed for the position because the committee concluded she did not have the

requisite course work or background in educational technology. Another person, whose

background included several courses in educational technology, was selected for the

position.

       Plaintiff filed this action against Washburn alleging she was denied the tenure

track position in retaliation for her 1994 internal sexual harassment complaint.

Specifically, she alleged that Dr. Sheley used his position at Washburn and his friendship

with Dr. Van Cleaf to influence the search committee. The district court granted

Washburn's motion for summary judgment, concluding that plaintiff's case was “too


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heavily dependent upon conjecture to establish a reasonable inference that her failure to

obtain an interview or to be hired for the tenure track position was because she filed a

discrimination complaint in 1994.” Aplt. App. at 407.

                                             II.

       We review the district court's grant of summary judgment de novo, applying the

same legal standard used by the district court. See Simms v. Okla. ex rel. Dep't of Mental

Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). In applying this standard, we view the evidence and draw all

reasonable inferences therefrom in the light most favorable to the nonmoving party.

Simms, 165 F.3d at 1326.

                                             III.

       Plaintiff contends the district court erred in granting summary judgment because

she presented sufficient evidence to establish a prima facie case of retaliation. Under

Title VII, an employer may not discriminate against an employee in retaliation for the

employee’s opposition to unlawful employment practices. See 42 U.S.C. § 2000e-3(a).

Title VII retaliation claims are subject to the burden-shifting analysis of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Pastran v. K-Mart Corp., 210


                                              4
F.3d 1201, 1205 (10th Cir. 2000). Under this framework, the plaintiff bears the initial

burden of establishing a prima facie case. Id. at 1205-06. To establish a prima facie case

of retaliation, plaintiff must show that (1) she engaged in protected opposition to

discrimination, (2) adverse employment action was taken against her subsequent to the

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

the adverse employment action. Id. at 1205. Plaintiff can establish the requisite causal

connection by producing “evidence of circumstances that justify an inference of

retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus

v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982). If plaintiff

successfully establishes a prima facie case, then Washburn must offer a legitimate, non-

discriminatory reason for its employment decision. See Pastran, 210 F.3d at 1206. If

Washburn offers such a reason, then plaintiff must demonstrate that its proffered reason is

pretextual. Id.

       The district court concluded that summary judgment was appropriate because

plaintiff failed to establish the third element of the prima facie case. Specifically, the

court concluded she failed to show a causal connection between her 1994 internal

complaint and Washburn’s hiring selection in 1997. Plaintiff contends that she presented

sufficient evidence to create a genuine issue as to whether Dr. Sheley used his

relationship with Dr. Van Cleaf and his position of authority at Washburn to influence the

selection process in retaliation for her 1994 complaint.


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       In support of her claim, plaintiff presented evidence that Dr. Sheley and Dr. Van

Cleaf had a mentor relationship, that Dr. Sheley was upset when plaintiff made the

allegations against him in 1994, and that Dr. Sheley believed Washburn should have

investigated the allegations more thoroughly. In addition, Dr. Sheley once commented to

Dr. Van Cleaf that he did not think plaintiff would be interested in staying at Washburn

beyond her three-year lecturer position. Plaintiff also claimed that a faculty member

informed her that Dr. Sheley and Dr. Van Cleaf had traveled together and had discussed

the job search. Plaintiff contended that another faculty member told her that he “felt” that

Dr. Van Cleaf and Dr. Sheley had “gotten together” and prevented plaintiff from getting

the job. Aplt. App. at 145. Plaintiff further claimed that Dr. Van Cleaf showed her where

her new office would be if she was selected for the position and encouraged her to create

her schedule for Fall 1997, but that his encouragement abruptly changed after he

allegedly met with Dr. Sheley.

       Plaintiff also attacks the legitimacy of the search committee's selection process.

She points to the fact that Dr. Van Cleaf attended the first committee meeting where

plaintiff was in effect eliminated as a candidate, yet he failed to attend additional

committee meetings. At that meeting, Dr. Van Cleaf took the position that plaintiff was

not qualified for the position. She alleges that once Dr. Van Cleaf did Dr. Sheley’s “dirty

work” by eliminating her as a candidate, Dr. Van Cleaf no longer had a reason to attend

the meetings. In addition, the search committee was prevented from looking beyond the


                                              6
face of her application because Dr. Van Cleaf instructed the committee not to check into

the accuracy of the information submitted by each candidate. Plaintiff also points to the

fact that Dr. Van Cleaf did not inform the committee that she had provided input into the

position description, and that the search committee did not consist of faculty members

who were the most knowledgeable in the field of educational technology. Finally,

plaintiff contends that she was clearly qualified for the position. She points to the 1994

search committee’s conclusion that she was specialized in the field of educational

technology, her favorable student and peer reviews, and the three years of experience she

gained in the field as a lecturer.

       After reviewing the record and viewing the evidence in the light most favorable to

plaintiff, we conclude that she has failed to establish the requisite nexus between her 1994

complaint and Washburn’s decision not to hire her for the tenure track position in 1997.

The three-year gap between her complaint and Washburn’s employment decision is too

great to support an inference of retaliatory motive. See Bullington v. United Air Lines,

Inc., 186 F.3d 1301, 1321 (10th Cir. 1999) (opining that two-year gap undercut an

inference of retaliatory motive).

       In the absence of a close temporal relationship between her 1994 complaint and

the 1997 adverse hiring decision, plaintiff must present additional evidence to establish

causation. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).

Her evidence that Dr. Sheley was upset when she filed her complaint in 1994 is not


                                             7
evidence of causation. Nor does Dr. Sheley’s comment to Dr. Van Cleaf that he believed

plaintiff would not want to continue in the position beyond her three-year lecturer

position, on its face, indicate a discriminatory animus toward her. Further, plaintiff's

statements that faculty members, who were not on the selection committee, informed her

that Dr. Sheley and Dr. Van Cleaf met and discussed the job search is inadmissible

hearsay that we cannot consider. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555

(10th Cir. 1995) (holding “Rule 56 precludes the use of inadmissible hearsay testimony in

depositions submitted in support of, or in opposition to, summary judgment”).

       More importantly, plaintiff failed to present any evidence that Dr. Sheley or Dr.

Van Cleaf played a part in the adverse employment decision. The crux of her claim is

that Dr. Sheley used his relationship with Dr. Van Cleaf and his position at Washburn to

influence the search committee. “However, evidence of an opportunity to influence does

not amount to evidence of actual influence and [plaintiff's] mere speculation about [Dr.

Sheley’s and/or Dr. Van Cleaf’s] influence is not enough to demonstrate a genuine issue

of material fact.” Bullington, 186 F.3d at 1321. Indeed, the evidence is to the contrary.

Although Dr. Van Cleaf expressed his opinion regarding plaintiff's qualifications to the

committee, “he didn’t dwell on how bad she was.” Aplt. App. at 173. Nor was he “an

advocate for or against anybody in the committee deliberations.” Id. Rather than being

unduly influenced by Dr. Van Cleaf, the record demonstrates that the committee

independently eliminated plaintiff as a candidate because she lacked the necessary course


                                              8
work and background in educational technology. Dr. Jerry Gray, head of the search

committee, stated that he believed the committee selected the best candidate for the job

and that, based on an analysis of plaintiff's transcripts, Dr. Van Cleaf could have

concluded plaintiff was not qualified for the position. In fact, plaintiff does not challenge

the qualifications of the candidate who was hired for the position, and the fact that

plaintiff may have been qualified for the position does not support an inference of

discrimination. Further, Dr. Van Cleaf winnowed out the applications of clearly

unqualified candidates before he submitted the applications to the search committee for

review. Thus, if, as plaintiff suggests, Dr. Van Cleaf wanted to ensure that she did not get

the position, it appears unlikely that he would submit her application to the committee

where he would have little, if any, influence over their hiring decision.

       Similarly, plaintiff's complaints regarding the procedures used by the search

committee do not support an inference of retaliation because the committee applied the

same standards and procedures when considering each applicant. The evidence of Dr.

Van Cleaf’s “attitude change” and the fact that he attended only the first committee

meeting where plaintiff was eliminated as a candidate, coupled with other evidence,

potentially could support an inference of retaliation. However, plaintiff failed to provide

this court with additional evidence needed to support such an inference and “[t]he mere

existence of a scintilla of evidence in support of the nonmovant’s position is insufficient

to create a dispute of fact that is ‘genuine.’” Lawmaster v. Ward, 125 F.3d 1341, 1347


                                              9
(10th Cir. 1997).

       We conclude that plaintiff has failed to establish a nexus between her 1994

complaint and Washburn’s 1997 employment decision. Because she cannot demonstrate

a prima facie case of retaliation, it is unnecessary to address her pretext argument.

AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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