Labor & Employment Law Daily Wrap Up, DISCRIMINATION—10th Cir.: Explosives supervisor failed to show pretext in Army’s selection of younger male for promotion, (May 7, 2025)

By Kathleen Kapusta, J.D.

The employee argued, among other things, that the lower court erred in considering depositions and declarations from interested witnesses in granting summary judgment to the Army.

“Interested witness” evidence may be considered at the summary judgment stage as long as a jury would be required to believe it because it is uncontradicted and unimpeached, the Tenth Circuit ruled, joining the majority of other circuits that have considered the issue and rejecting an Army employee’s claim that the court below erred in considering declarations from individuals who participated in selecting a younger male candidate over her for a promotion. To hold otherwise, said the court, would render the third McDonnell Douglas step meaningless. Affirming summary judgment against the employee’s ADEA and Title VII claims, the court found she failed to show pretext (Mauldin v. Driscoll, No. 24-7010 (10th Cir. May 6, 2025)).

The employee, who was born in 1958, was hired by the Army in 1991 to serve at its ammunition plant in McAlester, Oklahoma. In 2003, she became an explosives operator supervisor. Her second level supervisor, the chief of ammunitions operations (CAO) at the plant, was born in 1971.

In 2015, two employees under her supervision were accused of sexual harassment and one was fired. Although the commanding officer at the plant directed the CAO to reprimand the employee, he declined to do so after he talked to her. The employee then filed an EEO grievance asserting that both accused employees should have been fired and she disagreed with the result.

Highly successful. In early 2016, the employee’s first level supervisor issued her a “poor” performance rating, which the CAO approved. The rating was changed to “highly successful” after the employee challenged it.

Coworker’s EEO complaint. Later that year, she submitted a statement in support of her coworker’s EEO complaint alleging age discrimination in which she claimed the CAO made age-related statements including calling the coworker old and telling him it was time to go home because they “need new blood.” Although he denied making those statements, he admitted that he encouraged employees to promote younger individuals for permanent positions. The employee claimed that after she informed the CAO about her statement, he told her he holds grudges.

Non-selection. In April 2018, the employee applied for promotion and was invited to interview. As the selecting official, the CAO convened an interview panel and drafted interview questions and scoring criteria. After the interviews, each of the three panelists independently scored the employee the lowest and a male candidate who was born in 1981 the highest. The panel recommended the male candidate for promotion and the CAO selected him for the position.

Lower court proceedings. The employee subsequently sued, and the district court granted summary judgment against her ADEA and Title VII claims.

Interested witnesses. On appeal, the employee argued that, under the Supreme Court’s 2000 Reeves v. Sanderson Plumbing Products, Inc., decision, the district court erred in considering and crediting the Army’s evidence at the summary judgment stage and specifically in considering the CAO’s deposition and declaration and the interview panelists’ declarations. Pursuant to Reeves, when ruling on a motion for judgment as a matter of law, 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.” It should also “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.’” In other words, said the court here, “the Reeves Court discouraged the consideration of interested witness evidence.”

In considering the Army’s evidence, the district court 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.” Noting that it had yet to squarely resolve this issue, the Tenth Circuit pointed out that 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.

Rejecting the employee’s narrow reading of Reeves, which “would make the second McDonnell Douglas step largely impossible for an employer to satisfy and, in turn, render the third step meaningless,” the court here held 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.”

ADEA retaliation. Turning to the employee’s ADEA retaliation claim, the court assumed without deciding that she demonstrated a prima facie case as she presented sufficient evidence to show the CAO at least knew about her statement in support of her coworker’s EEO complaint before not recommending her for promotion. Because the Army proffered a legitimate, nondiscriminatory reason for the non-selection—the interview panel recommended another candidate—the court examined the employee’s pretext evidence.

Here, the court found the evidence more than sufficient to show a neutral hiring process that was void of retaliatory motive. “The interview panel process illustrates the reasonable and neutral selection process for this position,” said the court, noting that it was “not our role to act as a super personnel department that second guesses employers’ business judgments.”

ADEA/Title VII discrimination claims. Regarding the employee’s age- and sex-related discrimination claims, the court noted that she made a prima facie showing of discrimination and the parties did not dispute the Army’s proffered nondiscriminatory reason for her non-selection.

Pretext evidence. As evidence of pretext, the employee pointed to CAO’s alleged discriminatory comments about age and sex. But these comments, said the court, were not directed at her or the position for which she had applied and for which she was a candidate. She also noted that the CAO had drafted the interview questions and argued that two of them—asking about experience in establishing and maintaining working relationships and about the use of technology—were subjective.

But not only is some subjectivity to be expected in the hiring process, the court pointed out that the interview panel—which consisted of two women and one man, two of whom were over 40—asked each applicant the same questions using predetermined criteria and scores to determine their ranking. Further, said the court, the employee did not argue that the other two interview questions were subjective and it typically infers pretext “only when the criteria relied on was ‘entirely subjective.’”

At to the employee’s assertion she should been chosen because she had more experience and knowledge than the selectee, the court found this argument was hardly overwhelming given the panelists’ reasoning on applicant scoring, including that the selectee “did the best job answering questions” and the employee “came across like she didn’t care if she acquired the position or not.”

Moreover, said the court, the evidence suggested that the CAO chose the selectee for nondiscriminatory reasons. Here, the court pointed out that the employee was selected for an interview, the interview panel consisted primarily of women and individuals over the age of 40, the scoring matrix consisted mostly of objective criteria, the interview panel unanimously selected and recommended the selectee for several legitimate reasons, and the CAO followed its recommendation. Accordingly, the court affirmed summary judgment on these claims as well.

The case is No. 24-7010.

Judge: Federico, R.

Attorneys: Mark Hammons (Hammons, Hurst & Associates) for Loretta Mauldin. Randy Lewin, Office of the U.S. Attorney, for Daniel Driscoll.

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