Appeal from the United States District Court for the District of Utah. (D.C. No. 2:10-CV-00792-DAK).
Valerie M. Wilde (David H.T. Wayment with her on the briefs), Salt Lake County District Attorney's Office, Salt Lake City, Utah, for Defendant-Appellant.
Russell T. Monahan of Cook & Monahan, LLC, Salt Lake City, Utah, for Plaintiff-Appellee.
Before LUCERO, O'BRIEN, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
The trouble began when Michael Barrett, a Salt Lake County employee, helped a colleague pursue a sexual harassment complaint against her boss. The complaint was entirely warranted but some in management apparently didn't like the publicity. According to Mr. Barrett, his superiors thought him a noisy troublemaker and began a campaign to have him discharged or demoted. After he was demoted Mr. Barrett brought this lawsuit, alleging that the county violated Title VII by retaliating against him for helping a coworker vindicate her civil rights. See 42 U.S.C. § 2000e-3(a).
The jury found for Mr. Barrett. At trial the county argued that it disciplined Mr. Barrett because he was a poor worker. But the evidence showed that Mr. Barrett's fourteen years working for the county were marked only by promotions and positive reviews -- that is, until he helped draw attention to his colleague's plight. Now on appeal, the county asks us to undo the jury's verdict but we can find no fault in the district court's careful treatment of the merits and see only a minor aspect of its attorney fees award requiring further attention.
Most ambitiously the county argues that it is entitled to judgment as a matter of law. It is, the county says, because at trial Mr. Barrett didn't prove various things required to make out a " prima facie case of retaliation" under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The county reminds us that a plaintiff seeking to establish a " prima facie" case of retaliation under McDonnell Douglas must present evidence of three things -- that he engaged in protected activity, that he suffered an adverse employment
action, and that a close causal link exists between the two. If but only if the plaintiff can do all this, the ball bounces to the employer's court. It becomes the employer's obligation to present proof that it took the adverse action against the plaintiff for a legitimate, non-retaliatory reason. If the employer succeeds at that, the ball returns to the plaintiff who must show the employer's stated reasons are pretextual. See, e.g., Somoza v. Univ. of Denver, 513 F.3d 1206, 1211-12 (10th Cir. 2008). According to the county, Mr. Barrett's claim in this case falters at the outset, at the prima facie stage of the analysis.
But while clearly demonstrating its familiarity with pre-trial motions practice in Title VII cases, the county here betrays a lack of familiarity with post-trial practice. Maybe it's because so few cases make it to trial these days. Whatever the reason, this court has explained for years that McDonnell Douglas and its burden-shifting framework play no role in assessing post-trial JMOL motions. By this point in the proceedings the McDonnell Douglas proxy " drops out" and we ask instead the dispositive underlying Title VII question: has the plaintiff presented enough evidence to warrant a jury finding that the adverse employment action taken against him was taken in retaliation for his protected civil rights activity? Falli ...