Price v. Driscoll

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
LAMAUR PRICE, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-394-GLJ
)
DANIEL P. DRISCOLL, 	)
Secretary of the Department of the Army, )
)
Defendant. 	)
OPINION AND ORDER
This case arises out of Plaintiff Lamaur Price’s employment at the McAlester Army
Ammunition Plant (“Plant”) in McAlester, Oklahoma. 	Plaintiff sues the United States,
through Daniel P. Driscoll, Secretary of the U.S. Department of the Army, alleging
unlawful reprisal for engaging in a protected activity, as well as race discrimination in
violation of Title VII. 	Defendant now seeks dismissal of Plaintiff’s Complaint. 	For the
reasons set forth below, the Court finds that Defendant’s Motion for Summary Judgment
and Brief in Support [Docket No. 43] is DENIED.
I. Procedural History
Plaintiff filed the Complaint in this case on October 18, 2024, alleging causes of
action based on discrimination and retaliation. On February 7, 2025, the parties consented
to the exercise of Magistrate Judge jurisdiction in this case, pursuant to 28 U.S.C.
§ 636(c)(1) and Fed. R. Civ. P. 73. 	See Docket No. 18. 	Defendant moved to dismiss
Plaintiff’s Complaint, which this Court denied on July 11, 2025. See Docket Nos. 13, 15-
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16, 23. 	Following the close of discovery, Defendant moved for summary judgment, and
the matter is now fully briefed. See Docket Nos. 43-44, 47.
II. Legal Standards
Summary judgment is appropriate if the record 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 genuine issue of material fact exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show
the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986), with the evidence taken in the light most favorable to the non-moving party,
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that
a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
In 	employment 	discrimination 	cases, 	“[m]any 	of 	the 	highly 	fact-sensitive
determinations involved in these cases are best left for trial and are within the province of
the jury.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1221 (10th Cir. 2015). “The rule in this
Circuit . . . is that an employment discrimination suit will always go to the jury so long as
the evidence is sufficient to allow the jury to disbelieve the employer’s proffered reason
for the employment action.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1177 (10th Cir.
1998) (Tacha, J., concurring in part) (citing Randle v. City of Aurora, 69 F.3d 441, 451-
452 & n. 15 (10th Cir. 1995) (“[I]f this inferential evidence is sufficient to allow a plaintiff
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to prevail at trial, it is surely sufficient to permit a plaintiff to avoid summary judgment so
that the plaintiff can get to trial.”).
III. Analysis
A. 	Title VII Retaliation
Plaintiff’s first cause of action alleges unlawful reprisal for a protected activity. As
noted previously by this Court, see Docket No. 23, p. 2 n.2, Plaintiff failed to specify the
statutory basis for this first cause of action. At that time, the Court assessed the claim as
one raised pursuant to Title VII, and the parties have continued on this course.
Where, as here, a Title VII plaintiff relies on indirect proof of discrimination, we
apply the three-part burden-shifting framework announced in McDonnell Douglas Corp v.
Green, 411 U.S. 792, 802-805 (1973). Under this framework:
“[A] plaintiff must first “raise a genuine issue of material fact on each element
of the prima facie case, as modified to relate to differing factual situations.”
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted).
The 	burden 	then 	“shifts 	to 	the 	employer 	to 	offer 	a 	legitimate
nondiscriminatory reason for its employment decision.” Id. If the employer
does so, “the burden then reverts to the plaintiff to show that there is a genuine
dispute of material fact as to whether the employer’s proffered reason for the
challenged action is pretextual—i.e., unworthy of belief.” 	Id. (internal
quotation marks omitted).
Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). Defendant’s burden at the second
stage to offer a legitimate nondiscriminatory reason is a burden of production, not
persuasion. 	See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981) (“The
burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination
by producing evidence that the plaintiff was rejected, or someone else was preferred, for a
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legitimate, nondiscriminatory reason. 	The defendant need not persuade the court that it
was actually motivated by the proffered reasons.”). The burden then returns to Plaintiff on
the issue of pretext.
Defendant does not challenge that Plaintiff has established a prima facie case of
retaliation for his protected activity of filing an EEOC complaint in 2020. 	In support of
the second stage of McDonnell Douglas, Defendant contends that selecting official Amber
Dominguez following her established practice of convening a hiring panel on which she
did not serve, then followed the recommendation of the hiring panel. 	Additionally, she
crafted and got approval for a “crediting plan” that included resume review criteria, list of
questions for interviews, and a scoring matrix. 	These assertions of a legitimate,
nondiscriminatory reason are sufficient for this stage of the burden-shifting test. 	See
Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1058 (10th Cir. 2020) (“In
the Title VII context, we have explained that ‘the defendant does not at this stage of the
proceedings need to litigate the merits of the reasoning, nor does it need to prove that the
reason relied upon was bona fide, nor does it need to prove that the reasoning was applied
in a nondiscriminatory fashion.’”) (quoting E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1316
& n.4 (10th Cir. 1992) (“[T]his stage of the analysis only requires the defendant to
articulate a reason for the discipline that is not, on its face, prohibited” and that is
“reasonably specific and clear.”).
As part of the third stage of the burden-shifting analysis, Plaintiff contends that these
arguments are a pretext designed to obscure that Dominguez crafted the crediting plan in
such a way as to favor her preferred candidates. 	“A plaintiff demonstrates pretext by
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producing evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and hence infer that
the employer did not act for the asserted non-discriminatory reasons.” 	Jaramillo v.
Colorado Jud. Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (quoting Morgan v. Hilti, Inc.,
108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. General Elec. Astrospace, 101 F.3d
947, 951-952 (3d Cir. 1996)). 	Though thin evidence, Plaintiff has submitted affidavits
based on personal knowledge from Plaintiff as well as other employees or former
employees in support of his allegations of pretext. See, e.g., Docket No. 44, Exs. A, B, G,
& I. See Ledbetter v. Unified Gov’t of Wyandotte Cnty. / Kansas City, Kansas, 2023 WL
6294867, at *6 (D. Kan. Sept. 27, 2023) (“A plaintiff is not required to prove pretext by
any particular method.”) (citing Bird v. W. Valley City, 832 F.3d 1188, 1203 (10th Cir.
2016)). “Under the personal knowledge standard, an affidavit is [only] inadmissible if the
witness could not have actually perceived or observed that which he testifies to.” Argo v.
Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (quotation
omitted). The submitted affidavits appear to contain sufficient personal knowledge to raise
a genuine issue of material fact. 	Upon application of the McDonnell-Douglas burden-
shifting test, the Court therefore finds that genuine issues of material fact remain as to
whether Defendant’s reasons for not interviewing and ultimately promoting Plaintiff were
pretextual and cover for retaliation based on a protected activity. 	Ledbetter, 2023 WL
6294867, at *6 (While “conjecture and bare allegations are not enough,” at summary
judgment, “all doubts concerning pretext are resolved in the plaintiff's favor, but conjecture
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and bare allegations are not enough.”) (citing Jencks v. Modern Woodmen of Am., 479 F.3d
1261, 1267 (10th Cir. 2007)).
B. 	Title VII Race Discrimination
Plaintiff’s 	second 	cause 	of 	action 	alleges 	a 	violation 	of 	Title 	VII 	for 	race
discrimination based on a failure to promote. 	The Court likewise evaluates Plaintiff’s
claim of 	discrimination according to 	the 	burden-shifting framework of 	McDonnell
Douglas. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th
Cir. 2008); see also Morman v. Campbell County Memorial Hosp., 632 Fed. Appx. 927,
933 (10th Cir. 2015) (“Under McDonnell Douglas, the plaintiff must first prove a prima
facie case of discrimination. If she does so, then the burden ‘shifts to the defendant to
produce a legitimate, non-discriminatory reason for the adverse employment action.’ If the
defendant provides such a reason, ‘the burden then shifts back to the plaintiff to show that
the plaintiff’s protected status was a determinative factor in the employment decision or
that the employer’s explanation is pretext.’”) (quoting Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012)). 	A prima facie case of employment discrimination is
established by facts showing that the plaintiff (1) is a member of a protected class,
(2) suffered an adverse employment action, (3) was qualified for the position at issue, and
(4) was treated less favorably than others not in the protected class. 	Khalik, 671 F.3d at
1192; see also McDonnell Douglas, 411 U.S. at 802 (prima facie case may be establish by
showing: “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for
a job for which the employer was seeking applicants; (iii) that, despite his qualifications,
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he was rejected; and (iv) that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of complainant’s qualifications.”).
Again, both parties proceed on this claim to the second and third stages, presuming
the prima facie case has been satisfied. 	Defendant proffers the same assertion as above
that Dominguez, as the selecting official, adopted in this case a practice of using a hiring
panel then following the hiring panel’s recommendation. Likewise, Plaintiff disputes this
assertion, and contends that these arguments are a pretext designed to obscure that
Dominguez crafted the crediting plan in such a way as to favor her preferred candidates.
As stated above, Plaintiff has submitted affidavits based on personal knowledge
from Plaintiff as well as other employees or former employees in support of his allegations
of pretext. 	See, e.g., Docket No. 44, Exs. A, B, G, & I. “Under the personal knowledge
standard, an affidavit is [only] inadmissible if the witness could not have actually perceived
or observed that which he testifies to.” Argo, 452 F.3d at 1200 (quotation omitted). The
submitted affidavits appear to contain sufficient personal knowledge such that application
of the McDonnell-Douglas burden-shifting test raises a genuine issue of material fact as to
whether Defendant’s reasons for not interviewing and ultimately promoting Plaintiff were
pretextual and cover a discriminatory motive. See Ledbetter, 2023 WL 6294867, at *6.
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IV. CONCLUSION
Accordingly, Defendant’s Motion for Summary Judgment and Brief in Support
[Docket No. 43] is hereby DENIED.
IT IS SO ORDERED this 4th day of June, 2026.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
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