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FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
May 6, 2025
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
LORETTA MAULDIN,
Plaintiff - Appellant,
v. No. 24-7010
DANIEL DRISCOLL, Secretary,
Department of the Army,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:19-CV-00437-JAR)
_________________________________
Amber L. Hurst of Hammons, Hurst & Associates, Oklahoma City, Oklahoma,
for Plaintiff - Appellant.
Randy Lewin, Assistant United States Attorney (Christopher J. Wilson,
United States Attorney, with him on the brief), Muskogee, Oklahoma, for
Defendant - Appellee.
_________________________________
Before HARTZ, PHILLIPS, and FEDERICO, Circuit Judges.
_________________________________
FEDERICO, Circuit Judge.
On February 25, 2025, Hon. Daniel P. Driscoll became the Secretary
of the Army. Consequently, his name has been substituted as Defendant,
per Federal Rule of Appellate Procedure 43(c)(2).
Appellate Case: 24-7010 Document: 50-1 Date Filed: 05/06/2025 Page: 2
_________________________________
This is an employment discrimination case, in which Loretta Mauldin
sued the Secretary of the United States Department of the Army, asserting
claims of retaliation and discrimination on the basis of age under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., and
discrimination on the basis of sex under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. The district court granted the Army
summary judgment, and Mauldin appeals. Exercising jurisdiction under
28
U.S.C. § 1291, we affirm.
I. BACKGROUND1
In 1991, the Army hired Mauldin, a female born in 1958, to serve at
the McAlester Army Ammunition Plant (MCAAP) in McAlester, Oklahoma.
In 2003, Mauldin became a WS-6502-06 Explosives Operator Supervisor,
which is referred to as a Grade 6 EO Supervisor. Tommy Buckner, a male
born in 1971, was Mauldin’s second level supervisor, having become the
Chief of Ammunitions Operations at MCAAP in April 2014.
A. Prior EEO Activity
In early 2015, two employees under Mauldin’s supervision were
accused of sexual harassment, and one was ultimately fired. MCAAP’s
1 Unless otherwise noted, the following facts are not in dispute.
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Commanding Officer signed a letter of reprimand and directed Buckner to
issue it to Mauldin, but Buckner chose not to issue it after discussing the
matter with Mauldin. Mauldin filed an Equal Employment Opportunity
(EEO) grievance regarding the sexual harassment accusations, asserting
that both of her employees should have been fired and that she disagreed
with the result.
In March 2016, Mauldin’s first level supervisor issued her a “poor”
performance rating. Mauldin’s first level supervisor was also supervised by
Buckner, and Buckner approved the “poor” rating given to Mauldin.
Mauldin challenged the rating and contacted MCAAP’s EEO Office,
contending that she had always previously received a “highly successful”
rating and that her supervisors failed to inform her of any performance
deficiencies. Her challenge was successful, and her rating was changed to
“highly successful.”
Later that year, Mauldin submitted a statement in support of an EEO
complaint alleging age discrimination filed by her co-worker, Billy Cloud, a
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male born in 1951.2 In her statement, Mauldin claimed Buckner said, “Y’all
know we’re not spring chickens. So[,] when you’re making your selection for
permanent [Grade] 5[]s[,] don’t look at the older hands, look at the younger
ones because they’re our future.” Aplt. App. III at 168. She further claimed
that Buckner called Cloud “old,” telling him it was “time for [him] to go
home” because they “need new blood.”3 Id. at 86. Although Buckner denied
making these statements, he admitted that he encouraged employees to
promote younger individuals for permanent positions.
2 In his EEO complaint, Cloud alleged that he was paid less than his
younger counterparts. He further alleged that when he announced his
retirement, the Army posted his position as a Grade 8 position – two grades
higher than it had been, with substantially more pay. When Cloud sought
to stay on the job and take advantage of the higher grade and pay, he alleged
that the Army rescinded the Grade 8 position.
3 Apart from age-related comments, Mauldin also claimed that
Buckner made sex-related comments. She claimed that he said women do
not “make good supervisors” because they are “emotional,” “not stern
enough,” and “need to just be home having babies and taking care of their
house.” Aplt. App. II at 47; Aplt. App. III at 94.
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In late 2017, Mauldin alleged that she and Buckner discussed Cloud’s
EEO complaint, as well as her statement supporting it.4 She alleged that
Buckner became upset during the discussion, saying he “never forgets” and
is “like an elephant” in that way. Aplt. App. III at 165. Mauldin also
4 The parties dispute whether and how Buckner and Mauldin
discussed her statement in support of Cloud. On this point, the district court
concluded that Mauldin created a “sham” fact issue by providing conflicting
declarations. See Aplt. App. II at 77 (“[Buckner] did not say anything to my
face.”); Aplt. App. III at 164–65 (“I was talking to Tommy Buckner and we
started discussing the statement I gave to the EEO office in Billy Cloud’s
case . . . . A couple weeks later, Mr. Buckner again asked me why I had
given that statement to the EEO office.”). The district court thus
disregarded portions of Mauldin’s later declaration where she claimed that
Buckner directly confronted her about her statement in support of Cloud.
We review this issue for an abuse of discretion and do not find error.
See L. Co. v. Mohawk Const. & Supply Co., 577 F.3d 1164, 1169–70 (10th
Cir. 2009). In determining whether an affidavit creates a sham fact issue,
we consider whether: “(1) the affiant was cross-examined during [her]
earlier testimony; (2) the affiant had access to the pertinent evidence at the
time of [her] earlier testimony or whether the affidavit was based on newly
discovered evidence; and (3) the earlier testimony reflects confusion which
the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards,
Inc.,
275 F.3d 965, 973 (10th Cir. 2001) (citation omitted). Even if Mauldin
was not cross-examined during her earlier testimony, the latter two factors
do not weigh in her favor. First, she undoubtedly had access to pertinent
information when she gave the earlier testimony because it was based on
her own experiences and memory. Second, the earlier testimony did not
reflect confusion on whether Buckner approached her directly, instead
making it quite clear that Buckner “did not say anything to [her] face.” Aplt.
App. II at 77. Mauldin fails to show how the district court abused its
discretion on this issue. Finding no error, we also disregard portions of her
later declaration where she describes Buckner’s alleged confrontation of
her.
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asserted that he told her he “holds a grudge.” Id. Buckner denied making
these statements.
Mauldin claimed that she was “never treated the same” by Buckner
after these incidents, and that he rarely speaks to her now. Aplt. App. II at
58. Mauldin also claimed that Buckner said, “nothing good could come” from
EEO activity, and that he referred to EEO complainants as
“troublemakers.” Id. at 60, 77.
B. Failed Promotion Attempt
In April 2018, Mauldin applied to be a Grade 9 EO Supervisor, which
would have been a promotion in terms of duties, authority, and pay.5 After
screening applicants for this position, MCAAP’s Civilian Personnel
Advisory Center issued a “Certificate of Eligibles” to Buckner, which named
Mauldin along with five other applicants. According to Buckner, all six
applicants were in Grade 6 positions, with similar backgrounds. Five
applicants accepted an interview from Buckner, including Mauldin.
As the “Selecting Official” for the position, Buckner was permitted to
select any applicant from the Certificate of Eligibles. Although he was not
required to do so (nor required to follow the recommendations of any such
5 The Army posted this position on usajobs.gov in early April 2018.
See Aplt. App. II at 86–94 (job announcement).
6
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panel), Buckner convened a three-person interview panel to score the
applicants:
William Tollett: Tollett is a male born in 1976. Tollett was formerly
the Chief of Ammunitions Operations at MCAAP. At the time of the
interviews, he was the Acting Fire Chief in the Risk Management
Division. Buckner selected Tollett to be the chairperson of the panel.
Jackie Paden: Paden is a female born in 1972. She was a Supervisory
Industrial Specialist in the Process Control Division of Ammunitions
Operations.
Holly Price: Price is a female born in 1982. She was a Production
Planning Officer of Ammunitions Operations.6
Apart from convening the panel, Buckner drafted the following
interview questions:
1. This position requires experience in establishing and
maintaining effective working relationships with individuals
at all levels of management, co-workers and customers.
Please describe your experience in maintaining working
relationships and supporting a team environment. Include
the type and level of personnel in your response.
…
2. This position requires the ability to communicate orally and
in writing. This may take the form of person-to-person
contacts or written correspondence. Proper grammar,
composition, accuracy, tact and diplomacy are factors in this
element.
6 Mauldin claimed that Price investigated the 2015 sexual harassment
accusations. But Price stated that she was not aware of Mauldin’s prior
EEO activity.
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Please relate a situation that shows your experience with
oral and written forms of communication you have utilized to
present information for decision making purposes. Include
the level of personnel involved and whether you prepared or
performed the communication independently, assisted with
the communication or supported the communication.
…
3. This job requires that the Supervisor use technology and
basic computer[-]generated spreadsheets & programs daily.
Briefly describe your experience in using these tools.
…
4. What has been your greatest work[-]related accomplishment
and how could you see applying similar efforts to obtain
similar great results for the Ammunition Operations team?
Aplt. App. II at 115–18. These questions were approved by Buckner’s
supervisor, John Ross, the Director of Ammunitions Operations. Buckner
also drafted scoring criteria: applicants could earn five, ten, or fifteen points
per question depending on their performance and response quality.
After conducting the interviews, each panelist independently scored
Mauldin the lowest and a different applicant, Scott Harkey, the highest.
Harkey is a male born in 1981. Paden and Price separately forwarded their
scores to Tollett, who combined their scores with his before recommending
to Buckner that Harkey be selected for the promotion. As part of this
litigation, the interview panelists explained their reasoning on applicant
scoring:
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William Tollett: Harkey “did the best job answering the questions.”
Id. at 102. He “spoke at length, gave specifics in his answers and
addressed most everything. He was head and shoulders above the rest
of the candidates with his responses.” Id. Mauldin “came across like
she didn’t care if she acquired the position or not. I recall one question
about automation and, as part of her answer, she said ‘I rarely get on
the computer to check emails.’ That’s just one example.” Id. Mauldin
“ranked last and that was consistent across the board” and “literally
came across as if she didn’t care if she got the job or not.” Id.
Jackie Paden: Harkey “answered the questions with the most
knowledge and experience.” Id. at 108. Although Mauldin “has a lot of
years in production,” her “level of knowledge [is] not at the level of
knowledge” Harkey has. Id. Compared to the other applicants,
Mauldin lacks “[e]xperience with outside customers, giving briefs” to
higher-ranked individuals, and “[c]omputer work.” Id.
Holly Price: Harkey scored “higher across all questions.” Id. at 113.
He “answered the questions better” than the other applicants. Id.
Simply put, Mauldin “did not answer the questions as thoroughly.” Id.
Buckner asserted that his usual practice was to follow the panel’s
recommendation, which he did by selecting Harkey for the position.
C. Procedural History
After being notified of her non-selection, Mauldin timely lodged an
EEO complaint on July 10, 2018. She alleged that the Army discriminated
against her because of her age and sex, and also retaliated against her
because of her EEO activity.
On August 3, 2018, Mauldin filed a formal discrimination complaint
after being notified of her right to do so, alleging the following:
I was qualified for the position, but the Agency selected a
significantly younger male with less qualifications. I believe I
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was not selected because of my gender (female), age (over the
age of forty), and/or in reprisal because I was a witness and gave
a statement in support of Billy Cloud as part of his claim of age
discrimination against the Agency.
Id. at 128. She requested a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge, as opposed to a
final decision by the Army.
Before any decision was issued as to her formal complaint, Mauldin
filed suit in December 2019 against the Army in the United States District
Court for the Eastern District of Oklahoma. She filed a second amended
complaint in May 2020, asserting claims of retaliation and discrimination
on the basis of age under the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. § 621 et seq., and discrimination on the basis of sex under
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.
In January 2020, Mauldin notified the Army that she was
withdrawing her formal EEO complaint and hearing request. An EEOC
Administrative Judge subsequently issued an order of withdrawal on
January 13, 2020, returning the matter to MCAAP’s EEO Office, which
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issued a final agency decision on February 24, 2020, dismissing the formal
complaint pursuant to 29 C.F.R. § 1614.107(a)(3).7
After discovery in the federal lawsuit, the Army moved for summary
judgment on all claims, which Mauldin opposed. The district court granted
the Army’s motion, entering judgment against Mauldin in January 2024.
Mauldin timely appeals.
II. STANDARD OF REVIEW
We review summary judgment decisions de novo, applying the same
standard as the district court. Koel v. Citizens Med. Ctr., Inc., 128 F.4th
1329, 1333 (10th Cir. 2025). Summary judgment is appropriate only “if the
movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A fact is “material” if, under the governing law, it could influence the
outcome of the lawsuit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986). A dispute over a material fact is “genuine” if a rational jury could
find in favor of the nonmovant on the evidence presented.
Id.
7 29 C.F.R. § 1614.107(a)(3) provides that such a formal complaint
shall be dismissed when the basis for it is pending in a United States
District Court, and when the “complainant is a party” and “at least 180 days
have passed since” the formal complaint was filed.
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III. DISCUSSION
Mauldin argues that the district court applied the incorrect legal
standard. In doing so, she alleges that it erred in considering the Army’s
evidence, as well as in granting the Army summary judgment on her
retaliation and discrimination claims. We take these issues in turn.
A. The Army’s Evidence
Mauldin argues that the district court erred in considering and
crediting the Army’s evidence at the summary judgment stage under Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). She specifically
challenges the district court’s consideration of Buckner’s deposition and
declaration and the interview panelists’ declarations. See Op. Br. at 19.
Because Mauldin lacks direct evidence, we analyze her retaliation and
discrimination claims under the familiar burden-shifting framework set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hinds v.
Sprint/United Mgmt. Co.,
523 F.3d 1187, 1201–02 (10th Cir. 2008). Under
this framework, Mauldin must first establish a prima facie case of
discrimination and retaliation. McDonnell Douglas,
411 U.S. at 802; Hinds,
523 F.3d at 1202. If she establishes this, the burden shifts to the Army “to
articulate some legitimate, nondiscriminatory reason” for its action.
McDonnell Douglas,
411 U.S. at 802. Should the Army meet this burden,
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Mauldin must “be afforded a fair opportunity to show that [the Army]’s
stated reason . . . was in fact pretext.” Id. at 804.
Relevant here, the Reeves Court held that when ruling on a motion for
judgment as a matter of law,8 a court should “review the record as a whole,”
but “disregard all evidence favorable” to the movant that a jury would not
be “required to believe.” 530 U.S. at 151. A court should “give credence to
the evidence favoring the nonmovant as well as that ‘evidence supporting
the [movant] that is uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.’”
Id. (citation
omitted). In other words, the Reeves Court discouraged the consideration of
interested witness evidence.
Mauldin argues that the district court erred when it “credited the
uncorroborated testimony of the [interview] panelists and of Buckner”
because “such evidence was uncorroborated, unsupported by
contemporaneous evidence,” and “given only in response to” her complaints
of discrimination. Op. Br. at 19. Put simply, Mauldin argues that because
this evidence came from interested witnesses, the district court erred in
considering it when granting the Army summary judgment.
8 This Reeves holding applies equally at the summary judgment stage.
See EEOC v. Picture People, Inc., 684 F.3d 981, 989 (10th Cir. 2012).
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In considering the Army’s evidence, the district court emphasized that
“employers bear the burden of production at the second McDonnell Douglas
step to articulate a legitimate, nondiscriminatory reason for the challenged
employment action.” Aplt. App. III at 259. It reasoned that “[i]f courts were
precluded from considering [interested witness evidence], many (if not
most) employers would be unable to satisfy the second McDonnell Douglas
step.” Id. The district court predicted (correctly) that the Tenth Circuit
would agree with its reasoning, despite our court never having decided the
issue. Id. at 260.
Although we have yet to squarely resolve this issue, we have certainly
touched on it.9 For example, in EEOC v. Picture People, Inc., 684 F.3d 981
(10th Cir. 2012), we said that “[i]n employment discrimination cases, the
employer’s agents frequently will supply the testimony, yet they cannot be
deemed interested parties any more than the dissent can impute bias to
them.”
Id. at 990. This was said in response to the dissent’s contention that
testimony favorable to the employer “comes mostly from its own employees,
9 See e.g., Magoffe v. JLG Indus., Inc., 375 F. App’x 848, 856 (10th Cir.
2010) (unpublished) (“While our summary judgment standard requires us
to consider the evidence in the light most favorable to the [nonmovant], it
does not require us to disregard undisputed evidence favoring the
[movant].” (citing Zamora v. Elite Logistics, Inc.,
478 F.3d 1160, 1168 (10th
Cir. 2007) (McConnell, J., concurring))).
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and the jury of course would not be required to accept their testimony.” Id.
at 993 (Holloway, J., dissenting). The dissent in Picture People, Inc. thus
made the same point that Mauldin argues here: interested witness evidence
may not be considered at the summary judgment stage. Id. But that
argument previously fell short by one vote in our court, and it fails here too.
Our holding aligns with the overwhelming weight of authority, as
most circuit courts have unambiguously resolved this issue in favor of the
employer, concluding that “interested witness” evidence may be considered
at the summary judgment stage. The First Circuit, for instance, held that
it “need not exclude all interested testimony, specifically testimony that is
uncontradicted by the nonmovant.” Lopez-Hernandez v. Terumo Puerto Rico
LLC, 64 F.4th 22, 30–31 (1st Cir. 2023) (citation omitted). Addressing the
same argument made here, it noted that the plaintiff “misread the scope of
Reeves,” and that such an interpretation “would make it impossible for
employers at the summary judgment stage to defend against retaliation
claims, especially at the second step of” the McDonnell Douglas framework.
Id. The Eleventh Circuit reached a similar conclusion. See Kidd v. Mando
Am. Corp.,
731 F.3d 1196, 1205 n.14 (11th Cir. 2013) (“Indeed, if we were
to accept [the plaintiff]’s argument that a district court can never credit an
employer’s witnesses for purposes of the second stage of the McDonnell
Douglas analysis, then we’d be categorically barred from considering an
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employer’s legitimate, non-discriminatory reason for hiring one individual
over another.”); see also Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d
259, 271–72 (3d Cir. 2007); Stratienko v. Cordis Corp.,
429 F.3d 592, 597–
98 (6th Cir. 2005); Traylor v. Brown,
295 F.3d 783, 791 (7th Cir. 2002);
Sandstad v. CB Richard Ellis, Inc.,
309 F.3d 893, 898 (5th Cir. 2002).10
Mauldin’s narrow reading of Reeves would make the second
McDonnell Douglas step largely impossible for an employer to satisfy and,
in turn, render the third step meaningless. Consistent with Reeves, we hold
that a district court may consider interested witness evidence from the
movant at the summary judgment stage, so long as a jury would be required
to believe such evidence because it is uncontradicted and unimpeached.
B. ADEA Retaliation Claim
Mauldin argues that the district court erred in granting the Army
summary judgment on her ADEA retaliation claim. Because Mauldin lacks
direct evidence of retaliation, the McDonnell Douglas burden-shifting
framework applies. See Hinds, 523 F.3d at 1201–02. As discussed, under
this framework, Mauldin must first establish a prima facie case of
retaliation. McDonnell Douglas, 411 U.S. at 802. The district court
10 See also Luh v. J.M. Huber Corp., 211 F. App’x 143, 146 (4th Cir.
2006) (unpublished) (rejecting a similar argument).
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concluded that Mauldin failed to satisfy this first step of the McDonnell
Douglas framework.
To demonstrate a prima facie case of retaliation under the ADEA, a
plaintiff must show (1) she engaged in protected opposition to
discrimination, (2) a reasonable employee would have considered the
challenged employment action materially adverse, and (3) a causal
connection existed between the protected activity and the materially
adverse action. Hinds, 523 F.3d at 1202. Mauldin undoubtedly engaged in
a protected activity by submitting a statement in support of Cloud’s EEO
complaint and suffered a materially adverse action by not being selected for
the promotion.11 What is less clear, however, is whether she has
demonstrated a causal connection between the two events.
“As a prerequisite to this showing, [Mauldin] must first come forward
with evidence from which a reasonable factfinder could conclude that”
Buckner had knowledge of Mauldin’s protected activity. Id. at 1203. The
parties may dispute whether and how Buckner confronted her about the
protected activity, but Mauldin has provided sufficient evidence to
demonstrate that Buckner at least knew about such activity. See Aplt. App.
II at 76 (declaring that Buckner was “aware” of her EEO activity). And
11 The Army does not dispute these two elements.
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indeed, “[w]e examine ‘the record and all reasonable inferences that might
be drawn from it in the light most favorable’” to Mauldin, as the party
opposing summary judgment. T-Mobile Cent., LLC v. Unified Gov’t of
Wyandotte Cnty., 546 F.3d 1299, 1306 (10th Cir. 2008) (quoting Antonio v.
Sygma Network,
458 F.3d 1177, 1181 (10th Cir. 2006)).
With this prerequisite showing, we proceed to the latter steps in the
McDonnell Douglas framework. But because Mauldin’s retaliation claim
ultimately fails, we will assume, without deciding, that Mauldin has
demonstrated a prima facie case of retaliation under the ADEA. See Proctor
v. United Parcel Serv., 502 F.3d 1200, 1212 (10th Cir. 2007) (assuming
plaintiff established a prima facie case and deciding whether employer was
entitled to summary judgment based on plaintiff’s evidence of pretext);
Stover v. Martinez,
382 F.3d 1064, 1073 (10th Cir. 2004) (same).
We thus turn to the second step in the McDonnell Douglas framework,
where the Army carries an “exceedingly light” burden. Williams v. FedEx
Corp. Servs., 849 F.3d 889, 900 (10th Cir. 2017). The Army is only required
“to articulate some legitimate, nondiscriminatory reason” for Mauldin’s
non-selection. McDonnell Douglas,
411 U.S. at 802. But this burden is “one
of production, not persuasion; it can involve no credibility assessment.”
Reeves,
530 U.S. at 142 (internal quotation marks and citation omitted).
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The parties do not dispute that the Army proffered evidence of a
legitimate, nondiscriminatory reason for not selecting Mauldin, as it offered
evidence that a three-person interview panel recommended Harkey for the
vacancy based on the quality of his interview performance. See Turner v.
Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009) (finding a
plaintiff’s low ranking among other interviewees to be a legitimate,
nondiscriminatory reason for non-selection).
Given this, we turn to the final McDonnell Douglas step: pretext. To
satisfy this step, Mauldin must present evidence that shows a genuine issue
of material fact as to whether the Army’s reason was pretextual. Tabor v.
Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013). The “burden is more
demanding” here than at the prima facie step, and it “requires a plaintiff to
assume the normal burden of any plaintiff to prove his or her case at trial.”
Annett v. Univ. of Kan.,
371 F.3d 1233, 1241 (10th Cir. 2004) (internal
quotation marks and citation omitted).
The “evidence in its totality” does not raise “a genuine issue of
material fact” regarding Buckner’s motive in selecting someone else for the
promotion. Proctor, 502 F.3d at 1211. Rather, the record is replete with
evidence that the hiring process was neutral and void of retaliatory motive.
The interview panel process illustrates the reasonable and neutral selection
process for this position. And indeed, “it is not our role to act as a super
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personnel department that second guesses employers’ business judgments.”
Santana v. City & Cnty. of Denver, 488 F.3d 860, 865 (10th Cir. 2007)
(internal quotation marks and citation omitted). Because of this, we
conclude that the district court did not err in granting the Army summary
judgment on Mauldin’s retaliation claim under the ADEA.
C. ADEA and Title VII Discrimination Claims
Mauldin lastly argues that the district court erred in granting the
Army summary judgment on her age and sex discrimination claims.
We again assess these claims under the McDonnell Douglas
framework. See Hinds, 523 F.3d at 1201–02. Mauldin has made a prima
facie showing of discrimination: (1) She is a member of protected classes
(age and sex); (2) she suffered an adverse employment action (non-
selection); (3) she is qualified for the position at issue (she was one of six
applicants selected for an interview); and (4) the challenged action occurred
under circumstances giving rise to an inference of discrimination (a younger
male was selected for the position instead of her). See Bennett v.
Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015)
(discussing prima facie discrimination elements under the ADEA and Title
VII).
As for the second McDonnell Douglas step, we note that the parties
do not dispute that the Army proffered evidence of a legitimate,
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nondiscriminatory reason for not selecting Mauldin. See Turner, 563 F.3d
at 1143 (finding a plaintiff’s low ranking among other interviewees to be a
legitimate, nondiscriminatory reason for non-selection).
We thus move to the final McDonnell Douglas step and consider
whether Mauldin has shown a genuine issue of material fact as to pretext.
Tabor, 703 F.3d at 1218. This evidence can be presented in one of two forms,
either by showing (1) the reason is factually false, or (2) discrimination was
a primary factor in the action.
Id. Examples of such evidence include
weaknesses, implausibility, inconsistencies, incoherencies, or
contradictions in the explanation that a reasonable factfinder could
rationally find unworthy of credence.
Id.
This court has “rejected a pretext plus standard that requires a
plaintiff to provide affirmative evidence of discrimination beyond the prima
facie case and evidence that the employer’s proffered explanation is
pretextual.” Walkingstick Dixon v. Oklahoma ex rel. Reg’l Univ. Sys. of
Oklahoma Bd. of Regents, 125 F.4th 1321, 1337 (10th Cir. 2025) (internal
quotation marks and citation omitted). Which is to say, Mauldin need not
show both that the Army’s “reasons were a pretext and that the real reason
was discrimination – the fact of pretext alone may allow the inference of
discrimination.”
Id. (citation omitted).
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Mauldin points to Buckner’s alleged discriminatory comments about
age and sex, generally. But “isolated [or] ambiguous comments are too
abstract” to support a finding of discrimination. Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (alteration in original)
(internal quotation marks and citations omitted). Mauldin must
demonstrate how Buckner’s comments are evidence of discrimination, but
this seems dubious given Buckner’s alleged comments were not directed at
her or the employment position that was open and for which she was a
candidate. See Plotke v. White,
405 F.3d 1092, 1107 (10th Cir. 2005)
(plaintiff must show more than “random,” “general,” or “stray remarks”);
see also Ramsey v. Denver,
907 F.2d 1004, 1008 (10th Cir. 1990) (plaintiff
“must show that the employer actually relied on her [sex] in making its
decision”).
Mauldin emphasizes that Buckner drafted the interview questions,
and she argues that the first and third questions are subjective. But “some
subjectivity is to be expected in every hiring decision.” Ford v. Jackson Nat’l
Life Ins. Co., 45 F.4th 1202, 1218 (10th Cir. 2022) (citation omitted). The
panel asked each applicant the same questions, using predetermined
criteria and scores to determine their ranking. Additionally, the panel
consisted of two women and one man, two of whom were over forty years
old. What is more, Mauldin does not argue that the second and fourth
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questions were subjective, but we “typically infer pretext” only when the
criteria relied on was “entirely subjective.” Turner, 563 F.3d at 1145
(citation omitted). And regardless, the first question was merely about
leadership and communication skills, while the third question was
regarding technology proficiency – a fair expectation given the position
required such proficiency.
For pretext, Mauldin must establish that despite the Army’s evidence
of a reasonable interview process, Buckner chose Harkey for discriminatory
reasons. “To show pretext, the disparity in qualifications must be
overwhelming.” Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303, 1309 (10th
Cir. 2005) (internal quotation marks and citations omitted). Mauldin argues
that she had more experience and knowledge than Harkey and thus should
have been chosen, but this conclusory argument is hardly overwhelming
given the panelists’ reasoning on applicant scoring.
Despite Mauldin’s argument, uncontroverted evidence suggests that
Buckner chose Harkey for other, nondiscriminatory reasons. Mauldin was
selected for an interview, and the interview panel consisted primarily of
women and individuals over forty years of age.12 The scoring matrix
12 We again note that Buckner was not required to even form a panel
to interview applicants.
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consisted mostly of objective criteria, and the interview panel unanimously
selected and recommended Harkey for several legitimate reasons. Buckner
then followed the panel’s recommendation in his hiring decision, despite not
being required to do so.
There is nothing about the interview questions, panel composition, or
this hiring process that is sufficient to establish pretext. See Markley v. U.S.
Bank Nat’l Ass’n, 59 F.4th 1072, 1083 (10th Cir. 2023) (“[A]n employment
discrimination plaintiff cannot survive summary judgment where the
evidence he produces permits nothing more than a speculative basis for
believing discrimination was a motivating factor.”). The onus was on
Mauldin to demonstrate that a reasonable jury could find in her favor, and
she failed to do so. Accordingly, we affirm summary judgment on her
discrimination claims under the ADEA and Title VII.
IV. CONCLUSION
Mauldin misinterprets Reeves, and we join the majority of other
circuit courts in concluding that a district court may consider interested
witness evidence from the movant at the summary judgment stage, so long
as a jury would be required to believe such evidence. To hold otherwise
would render the third McDonnell Douglas step meaningless. As for
Mauldin’s retaliation and discrimination claims, we conclude that the
district court did not err in granting summary judgment to the Army
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because she has failed to show pretext, instead asking us to become a “super
personnel department.” Accordingly, we AFFIRM the district court.
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