The full case caption appears at the
end of this opinion. BALDOCK, Circuit Judge. Plaintiff Moses Pastran filed an action in federal district court against Defendant K-Mart Corporation. Plaintiff’s complaintalleged, among other things, that Defendant terminated him in retaliation for his complaints of discrimination. The districtcourt concluded that Plaintiff failed to raise any factual issue regarding whether Defendant’s proffered reason forterminating Plaintiff was pretextual, and granted summary judgment for Defendant. Plaintiff appeals. We exercisejurisdiction pursuant to 28 U.S.C. � 1291. We reverse and remand. I. Plaintiff worked at Defendant’s Deming, New Mexico store from 1977 to 1997. In 1990, a falling display shelf injuredPlaintiff’s back while he was working as receiving manager. Plaintiff filed a workman’s compensation claim. For roughly thenext three years, Plaintiff took time off to recover, working part time in the mornings. Ultimately, Plaintiff remained 9%permanently disabled and unable to lift more than 20 pounds. Defendant subsequently demoted Plaintiff to the entry-levelposition of register operator. Plaintiff repeatedly sought promotion to a management job, but to no avail. In 1992 or 1993, Defendant named Denzil D. Van Swearingen the new manager of the Deming store. Plaintiff had severalconflicts with Van Swearingen, whom Plaintiff felt disliked him because he was Hispanic, male, and unable to lift heavyobjects. On several occasions, Plaintiff asked Van Swearingen for a promotion to a management job, and each time VanSwearingen refused. Plaintiff felt that white females were more often promoted and were subject to less rigorous disciplinethan him. On November 14, 1996, human resources director Maggie Busse and assistant manager Jeannette Cowles offeredPlaintiff a promotion to Do It Yourself (DIY) manager. Plaintiff was on vacation, so Busse called him at home and askedhim to come to the store to discuss the promotion. Plaintiff asked for an opportunity to discuss the schedule changes withhis wife, Lisa Pastran. The next day, Plaintiff’s wife called Busse to accept. On November 18, when Plaintiff reported towork as DIY manager, Van Swearingen told Plaintiff that he had given the promotion to someone else because Plaintiffhad not accepted the offer in time. Van Swearingen gave the position to Debbie Taylor, a white female. That afternoon, Plaintiff and his wife called Busse to complain that they thought Plaintiff’s loss of the DIY promotion wasdiscriminatory. The Pastrans also complained to district manager Louise Shankles in Las Cruces, New Mexico. Later thatweek, Shankles came to the Deming store and met with Van Swearingen, Busse, Cowles, and Plaintiff and his wife forabout three or four hours. Plaintiff testified in his deposition that he watched Shankles “verbally reprimand[] Mr. VanSwearingen, telling him that what they had done was very wrong.”
[FOOTNOTE 1] Shankles told Cowles the same thing, adding thatfilling the position “could have waited until [Plaintiff's] return off [his] vacation . . . .” Plaintiff also stated that Shankles apologized to him and “told Mr. Van Swearingen that the next promotion would be[Plaintiff's],” saying, “‘Isn’t that right, Mr. Van Swearingen[?]‘” Lisa Pastran testified that Shankles called the management”very unprofessional,” adding, “[T]hey should never have called [Plaintiff] in off his vacation [because] it wasn’t the office ofthe president that they were trying to fill.” The store management’s deposition testimony confirms that Shankles was critical of their handling of the DIY promotion.Van Swearingen testified about his meeting with Shankles: “[T]owards the end I probably had the feeling that this is anincident she didn’t want to be involved in, and she wished it hadn’t happened.” Van Swearingen testified that Shankles said,”Well, looking back, we could have waited, and we agreed that we probably could have, but we made a mistake by notwaiting.” Van Swearingen confirmed Plaintiff’s testimony that Shankles apologized to Plaintiff and promised him that hewould receive the next available promotion. Cowles and Busse testified that they understood from the meeting withShankles that Plaintiff was to receive the next available promotion. On January 2, 1997, about six weeks later, Plaintiffaccepted a promotion to Health and Beauty Aids manager. On January 23, 1997, Plaintiff had a confrontation with management about whether he must open a cash register. Theservice desk manager, Sandra Palmer, called Plaintiff over the public address system to open a register. Plaintiff told herthat he had a headache and needed to take some aspirin first. Next, Cowles asked Plaintiff to open a register, and Plaintiffagain asked for time to take an aspirin for his headache. Finally, Van Swearingen asked Plaintiff to come to his office,where he told him to either open a register or, if he was too sick, to clock out and go home. When Plaintiff refused, VanSwearingen called the police to escort Plaintiff away. Plaintiff called Van Swearingen the next day and asked whether he had lost his job. Van Swearingen replied that he wasnot sure. Van Swearingen consulted with Shankles and Defendant’s legal department about preparing statements regardingthe lost DIY promotion and the insubordination and about deciding how to handle Plaintiff’s termination. On January 27,the following Monday, Van Swearingen read Plaintiff a written statement telling him that he was fired. At the timeDefendant fired him, Plaintiff was employee of the year at the Deming store. Van Swearingen thought highly of Plaintiff’sability to work with customers. Plaintiff filed a complaint in the district court alleging that Defendant violated Title VII, 42 U.S.C. �� 2000e to 2000e-17,by failing to promote him and terminating him in retaliation for his complaints of discrimination and on the basis of his sexand national origin. Defendant filed a motion for summary judgment arguing that Plaintiff had not established a prima faciecase on any of his claims. The district court granted summary judgment for Defendant on the wrongful termination claims,concluding that Plaintiff had not shown that Defendant’s proffered reason–Plaintiff’s insubordination–was pretextual. Thedistrict court later dismissed Plaintiff’s failure to promote claims as time barred.
[FOOTNOTE 2] On appeal, Plaintiff argues that thedistrict court erred in granting summary judgment for Defendant on the termination claims by not fully considering hisevidence of pretext.
[FOOTNOTE 3] We review the district court’s grant of summary judgment de novo, applying the same legal standardused by the district court. Jones v. Denver Post Corp., 203 F.3d 748, 751 (10th Cir. 2000). II. Title VII prohibits employers from retaliating against employees who claim discrimination: “It shall be an unlawfulemployment practice for an employer to discriminate against any of his employees . . . because he has opposed anypractice made an unlawful employment practice by [Title VII], or because he has made a charge . . . under [Title VII].” 42U.S.C. � 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) heengaged in protected opposition to discrimination, (2) his employer subjected him to an adverse employment actionsubsequent to the protected activity, and (3) a causal connection exists between the protected activity and the adverseemployment action. McGarry v. Board of County Comm’rs of the County of Pitkin, 175 F.3d 1193, 1201 (10th Cir. 1999). We agree with the district court’s conclusion that Plaintiff made a prima facie case of retaliation under Title VII by showingthat he complained to Shankles and that he was terminated shortly thereafter.
[FOOTNOTE 4] See Robbins v. Jefferson County Sch.Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999) (informal complaints to superiors or the use of the employer’s internalgrievance procedures constitutes protected activity under Title VII); Anderson v. Coors Brewing Co., 181 F.3d 1171,1178 (10th Cir. 1999) (termination is an adverse employment action under the ADA);
[FOOTNOTE 5] Bullington, 186 F.3d at 1321(protected conduct closely followed by adverse action supports an inference of causal connection). Defendant claims,however, that it terminated Plaintiff for his insubordination on January 23, 1997, when he told the store’s management thathe could not open a cash register. This reason is non-discriminatory; accordingly, Plaintiff must present evidence thatDefendant’s proffered reason is pretextual. Retaliation claims under Title VII are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411U.S. 792, 802-04 (1973). Jones, 203 F.3d at 752. The plaintiff bears the initial burden of establishing a prima facie caseof discrimination. Jones, 203 F.3d at 752. If the plaintiff does so, then the defendant must offer a legitimate,non-discriminatory reason for its employment action. Id. The plaintiff then bears the ultimate burden of demonstrating thatthe defendant’s proffered reason is pretextual. Id. A plaintiff may demonstrate pretext by showing “such weaknesses,implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actionthat a reasonable factfinder could rationally find them unworthy of credence.” Bullington v. United Air Lines, Inc., 186F.3d 1301, 1317 (10th Cir. 1999). “[T]he pertinent question in determining pretext is not whether the employer was right to think the employee engaged inmisconduct, but whether that belief was genuine or pretextual.” Hardy v. S.F. Phosphates L.C., 185 F.3d 1076, 1080(10th Cir. 1999) (internal quotations omitted). Close temporal proximity between the employee’s complaint and theadverse employment action is a factor in determining whether the employer’s proffered reason is a pretext for retaliation.Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir.), cert. denied, 120 S. Ct. 48 (1999); see also Butler v.City of Prairie Village, Kan., 172 F.3d 736, 752 (10th Cir. 1999) (holding that close temporal proximity is a factor inshowing pretext for retaliation in violation of the ADA). Defendant’s failure to promote Plaintiff to DIY manager, Plaintiff’s complaints to the store management and to districtmanager Shankles, Shankles’s visit, and Plaintiff’s termination all occurred between November 14, 1996 and January 27,1997. This close temporal proximity suggests pretext, but is not sufficient by itself to raise an issue of fact. Cf. Conner v.Schnuck Mkts., Inc., 121 F.3d 1390, 1397 (10th Cir. 1997) (noting that temporal proximity alone does not constitutepretext for retaliatory discharge under the Fair Labor Standards Act); see also Anderson, 181 F.3d at 1180 (holding thatabsent other evidence, temporal proximity alone did not establish pretext for retaliation under the ADA). Plaintiff, however, offers two additional items of evidence that demonstrate pretext. First is the district manager’sreprimand. Shankles traveled to Deming for a three to four hour meeting with Plaintiff, his wife, Van Swearingen, Cowles,and Busse. During the meeting, Shankles apologized to Plaintiff and his wife. Shankles told Van Swearingen and Cowlesthat they had made a mistake and should not have filled the DIY manager position so quickly. Also, Shankles told VanSwearingen, Cowles, and Busse that Plaintiff was to receive the next promotion available. A reasonable jury couldconclude that the reprimand given to Van Swearingen could have motivated Van Swearingen’s decision to terminatePlaintiff. Second, Van Swearingen’s deposition reveals that he and Shankles considered the events surrounding the lost promotionwhile deliberating about whether to terminate Plaintiff. Van Swearingen believed that the lost promotion increased thechances that Plaintiff would sue. In addition, Shankles told Van Swearingen to prepare statements in anticipation oflitigation. A reasonable jury might also consider this circumstantial evidence of retaliatory motive. See Medlock, 164 F.3dat 550-51 (finding direct evidence of retaliatory motive in an employer’s letter stating that it was firing the plaintiff becausehe gave a deposition complaining about unequal pay). In combination with the evidence of temporal proximity, this evidence–although far from conclusive–raises an issue ofmaterial fact as to whether Defendant offered a pretextual reason for terminating Plaintiff. See Medlock, 164 F.3d at 551(affirming the district court’s denial of the defendant’s motion for a judgment as a matter of law based on evidence oftemporal proximity plus direct evidence of retaliatory motive); Butler, 172 F.3d at 752 (holding that temporal proximity,plus evidence that the defendant resurrected the plaintiff’s job duties under another title, burdened the plaintiff withadditional duties before firing him, and fired no one else at that time, raised a fact issue regarding whether the allegedreorganization was a pretext for retaliatory discharge under the ADA).
[FOOTNOTE 6] This is a close case because Plaintiff may haveengaged in misconduct by telling the store managers that he could not open a cash register. Nevertheless, the evidence ofpretext indicates that the issue of retaliation should go to a jury. Accordingly, we find that the district court erred in grantingsummary judgment for Defendant on Plaintiff’s Title VII retaliatory termination claim.
[FOOTNOTE 7] REVERSED and REMANDED for further proceedings. :::FOOTNOTES:::
FN1 When reviewing an order granting summary judgment, we may only consider admissible evidence. Fed. R. Civ. P. 56(e);Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998). Although the evidence need not be ina form that would be admissible at trial, the content or substance of the evidence must be admissible. Wright-Simmons,155 F.3d at 1268. Shankles’s statements to Plaintiff, his wife, Van Swearingen, Cowles, and Busse would be admissible attrial as nonhearsay for two reasons. First, if Plaintiff offers the statements to show that Shankles reprimanded VanSwearingen–as evidence of retaliatory motive –then they are not being offered for the truth of the matter asserted. SeeFed. R. Evid. 801(c); United States v. Norman T., 129 F.3d 1099, 1107 (10th Cir. 1997), cert. denied, 523 U.S. 1031(1998). Second, if Plaintiff does offer the statements against Defendant for their truth (i.e., that the managers were wrongand acted unprofessionally), then they are vicarious admissions by a party-opponent because Shankles was an agent ofDefendant acting within the scope of employment during the time of employment. See Fed. R. Evid. 801(d)(2)(D).
FN2 Because New Mexico’s Department of Labor is an “agency with authority to grant or seek relief” from unlawfulemployment practices, Plaintiff had 300 days “after the alleged unlawful employment practice occurred” to file a charge. 42U.S.C. � 2000e-5(e)(1). In addition, “a plaintiff may recover for incidents which occurred outside the statutory time limit ifat least one instance of the alleged discriminatory practice occurred within the limitations period and the earlier acts arepart of a ‘continuing pattern of discrimination.’” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir. 1999)(quoting Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993)). Plaintiff filed a charge with theNew Mexico Department of Labor on October 6, 1997–252 days after his termination, but 322 days after his lostpromotion. Once the district court granted summary judgment on the termination claims, the failure to promote claims weretime barred because they were no longer part of a continuing pattern that included incidents within the limitations period.
FN3 Plaintiff’s brief does not challenge the district court’s dismissal of the failure to promote claims or the discriminationclaims. Accordingly, those matters are not before us. See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624(10th Cir. 1998).
FN4 Plaintiff may still proceed on his retaliation claim despite the fact that the district court dismissed his discrimination claims.”[A] plaintiff does not have to prove the validity of the grievance [he] was allegedly punished for lodging; ‘oppositionactivity is protected when it is based on a mistaken good faith belief that Title VII has been violated.’” Robbins v. JeffersonCounty Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir. 1999) (quoting Love v. RE/MAX of America, Inc., 738 F.2d383, 385 (10th Cir. 1984)).
FN5 Cases interpreting the ADA retaliation provisions are persuasive authority in Title VII retaliation cases because thestatutory provisions are substantially similar. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2dCir. 1999).
FN6 Our sister circuits provide more examples of evidence that shows retaliatory motive. See Strother v. Southern Cal.Permanente Med. Group, 79 F.3d 859, 870 (9th Cir. 1996) (determining that letters praising the plaintiff’s interpersonalskills, combined with temporal proximity, were sufficient reason to question employer’s claim that it fired plaintiff for poorinterpersonal skills); O’Bryan v. KTIV Television, 64 F.3d 1188, 1194 (8th Cir. 1995) (finding that temporal proximity,increased job duties, and the employer’s statements indicating retaliatory motive were sufficient to raise a fact issueregarding pretext); San Filippo v. Bongiovanni, 30 F.3d 424, 434, 444 (3d Cir. 1994) (treating supervisors’ statementscalling the plaintiff a “[w]arrior” and referring to “a long history of animus” as evidence of pretext that augmented theevidence of temporal proximity).
FN7 Plaintiff has not argued, and the district court did not address, whether his termination may have been in retaliation for hiscomplaints of disability discrimination in violation of the ADA, 42 U.S.C. � 12203(a). Generally, an appellate court will notconsider issues that were not raised in the district court. Tele-Communications, Inc. v. Commissioner of Internal Revenue,104 F.3d 1229, 1232 (10th Cir. 1997).
FN8 The Honorable Arthur L. Alarc�n, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting bydesignation.
Pastran v. K-Mart Corp. UNITED STATES COURT OF APPEALS TENTH CIRCUIT MOSES PASTRAN, Plaintiff-Appellant, v. K-MART CORPORATION, Defendant-Appellee. No. 99-2210 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-98-815-LCS/JHG) Michael T. Milligan, El Paso, Texas, for Plaintiff-Appellant. Deborah D. Wells, Kennedy, Moulton & Wells, Albuquerque, New Mexico, for Defendant-Appellee. Before SEYMOUR, Chief Judge, andALARC�N
[FOOTNOTE 8] and BALDOCK, Circuit Judges.
