In an unpublished opinion, the U.S. Circuit Court of Appeals for the 10th Circuit reminds us that whether a case is based on allegations of discrimination or on allegations of retaliation, the individual bringing the lawsuit carries the ultimate burden of proof in the case. Sunderman v. Westar Energy, Inc., 10th Cir., No. 08-3059, Jan. 14, 2009.

To establish retaliation under Title VII, an individual’s evidence must withstand the three-part analysis established by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the plaintiff first bears the burden of establishing a prima facie case: (1) that he engaged in a protected activity; (2) that he suffered a materially adverse employment action; and (3) that a causal connection existed between the protected activity and that action. Once the individual meets that burden, the employer must offer a legitimate, non-retaliatory reason for its employment action. Should the employer satisfy this burden, the plaintiff then bears the ultimate burden of demonstrating that the employer’s reason is “unworthy of credence” so that a fact-finder could infer that the employer did not act for those reasons but instead, for some retaliatory reason.

Derek Sunderman was employed as a manager by Westar Energy, Inc., a public utility company. In March 2002, Sunderman made a complaint to Westar’s HR department regarding certain allegedly offensive sexual comments made by a supervisor, and followed up in October of that year with a written complaint to his own supervisor (Olsen). He then filed a claim with the KHRC and the EEOC, alleging that Westar retaliated against him - by reducing his compensation and suspending him in late October - for making the complaints.

During a 2002-2003 reorganization which was in process prior to Sunderman’s complaints, Westar eliminated a number of positions, including Sunderman’s, and transferred the responsibilities of those positions to the company’s Customer Support Group. Sunderman was referred to the company’s Career Placement Center, and his employment was terminated in August 2003. He then brought a lawsuit against Westar, alleging that his employment there was terminated in retaliation for filing a complaint to the Kansas Human Rights Commission (KHRC) and the EEOC in November 2002. Westar countered that Sunderman’s discharge was based upon the reorganization and was strictly a business decision. The lower court granted summary judgment in favor of Westar. That decision was upheld on appeal to the Tenth Circuit.

The dismissal of Sunderman’s claims was based primarily on the fact that he had provided insufficient evidence showing a causal connection between (1) his complaint to Olsen and/or the filing of his complaint with the KHRC/EEOC, and (2) his termination. The facts showed that Olsen was not a decision-maker in the reorganization or with respect to Sunderman’s ultimate termination. While some cases of retaliation rest upon a “cat’s paw” theory, where a biased individual who lacks decision-making power uses a formal decision-maker as a “dupe” in a deliberate scheme to trigger a discriminatory employment action, Sunderman presented no evidence that Olsen suggested either the reorganization or the subsequent discharge. While the Tenth Circuit determined that the employment actions taken against Sunderman in 2002 (reduction in compensation and a suspension) could be raised by Sunderman as background evidence for the retaliation claim, it also determined that Westar had provided sufficient evidence of its business-related decision regarding Sunderman, and that those two incidents were “insufficient . . . to raise a jury question on the causation and pretext issues that are associated with plaintiff’s [August 2003] termination.”

It is clear that in this case, the company’s documentation of the business reasons for its actions were a primary focus of the court’s analysis and review. Although Sunderman had the ultimate burden of proof in this case, the company’s ability to support its own defense with evidence and testimony was sufficient to refute Sunderman’s claims. Once again, objective and complete documentation of a company’s business decision is integral to a favorable result in a claim related to that decision.