Co-Workers’ Testimony in Favor of Employer Results in Dismissal

Takeaway: Under U.S. Supreme Court case law, for an employer to obtain summary judgment against an employee’s Title VII of the Civil Rights Act of 1964 lawsuit, it must present uncontested evidence and disinterested witness testimony. However, as this case shows, most courts have allowed employers to submit testimony at summary judgment from other employees, even though they are not disinterested, if their testimony is not contradicted by other evidence.

In 1991, the U.S. Department of the Army hired the plaintiff, a woman born in 1958, to serve at the McAlester Army Ammunition Plant (MCAAP) in McAlester, Okla. In 2003, she became an explosives operator (EO) supervisor, also called a grade 6 EO supervisor. Her second-level supervisor, a man born in 1971, was the chief of ammunitions operations at the MCAAP.

In early 2015, two of the plaintiff’s subordinates were accused of sexual harassment, and one was ultimately fired. The MCAAP’s commanding officer directed the chief to reprimand the plaintiff, but he chose not to after discussing the matter with her. The plaintiff filed an equal employment opportunity (EEO) grievance regarding the sexual harassment accusations, disagreeing with the result and asserting that both subordinates should have been fired.

In March 2016, the plaintiff’s first-level supervisor, who was also supervised by the chief, gave her a poor performance rating, which the chief approved. The plaintiff challenged the rating and contacted the MCAAP’s EEO office, claiming that her previous ratings were always high and that her supervisors never told her of any performance deficiencies. Her challenge was successful.

Later that year, the plaintiff submitted statements in support of an EEO complaint by her co-worker, a male born in 1951, alleging age discrimination. 

Toolkit: Employing Older Workers

She claimed that the chief said when making selection for permanent grade 5s, subordinates should not look at the older hands, but look at the younger ones because they are the future. The plaintiff also claimed that the chief called the co-worker “old” and told him it was time for him to go home because they needed new blood. The chief denied making these statements but admitted that he encouraged employees to promote younger individuals for permanent positions. The plaintiff later claimed that the chief said he “never forgets” and would hold a grudge against her for her statements against him. She also said the chief told her that “nothing good could come” from EEO activity and said that he referred to EEO complainants as “troublemakers.” The chief denied making all of those remarks.  

In April 2018, the plaintiff applied for a promotion to grade 9 EO supervisor. The MCAAP civilian staff advisory center issued a certificate of eligible candidates, which named the plaintiff and five other applicants, to the chief. All six applicants were in grade 6 positions, with similar backgrounds. Five applicants agreed to be interviewed by the chief, including the plaintiff.

As the selecting official for the position, the chief was permitted to select any applicant from the certificate of eligibles. Although he was not required to do so, the chief convened a three-person interview panel to rate the applicants. Two of the three panelists were over 40 years old, and two of the three panelists were women.  

The chief prepared interview questions, which asked for information about the applicants’ experience fostering working relationships and teamwork as well as the applicants’ use of technology in their work. These questions were approved by the director of ammunitions operations. The chief also drafted scoring criteria for answers to the questions in which the applicants could earn five, 10, or 15 points per question depending on their performance and the quality of their responses.

After conducting the interviews, each panelist independently scored the plaintiff the lowest of the five applicants and a male applicant, born in 1981, as the highest. The panelists recommended to the chief that the young man be selected for the position. The chief followed the panel’s recommendation.

The plaintiff lodged an EEO complaint claiming that the Army discriminated against her because of her age and sex and retaliated against her because of her previous EEO complaints.  

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The plaintiff later removed her complaint to federal court, and the Army sought summary judgment, which the district court granted. The plaintiff appealed to the 10th U.S. Circuit Court of Appeals. On appeal, the plaintiff argued that the district court should not have considered the testimony by the chief and the interview panelists. 

The 10th Circuit said that the U.S. Supreme Court previously decided that, when ruling on such a motion, the court should disregard contested evidence favorable to the employer. A court should consider only evidence that is uncontradicted and unimpeached that comes from disinterested witnesses. Other employees who are paid by the employer are not disinterested.

The 10th Circuit noted that most other circuit courts had allowed employee testimony to be considered at summary judgment because, without such testimony, an employer could never present evidence to support its decision. Thus, the 10th Circuit held that employee testimony may be considered at summary judgment so long as it is uncontradicted and unimpeached.

As a result, the court could consider the evidence of the panel’s decision to select the young male applicant rather than the plaintiff, and it upheld the dismissal of her claims at summary judgment.

Mauldin v. Driscoll, 10th Cir., No. 24-7010 (May 6, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.