## Facts

- Anita Luster worked for the United States Forest Service (an agency within the U.S. Department of Agriculture).
- Luster filed an Equal Employment Opportunity (EEO) complaint alleging sex discrimination at work.
- Luster later sued the Secretary of Agriculture under Title VII, asserting (among other theories) that she was not selected for a Forestry Technician position because of sex and that she experienced discriminatory and retaliatory work conditions after her EEO activity.
- For the Forestry Technician opening, a Forest Service official limited consideration to applicants from higher-grade referral lists (GS-8 and GS-9), excluding the GS-7 referral list on which Luster appeared.
- The Forest Service also asserted that the ultimate selectee (Wingate) was viewed as the most qualified candidate among those considered.
- Separately, a Forest Service attorney (Rosenbluth) faxed documents containing Luster’s name and details of her EEO claim to a Forest Service official (Crespin).
- The receiving fax machine was accessible to multiple Forest Service employees, but all but one document included a cover sheet stating the materials were privileged and confidential.
- There was no evidence that anyone other than Crespin actually received or read the faxed documents.
- Crespin later shared only one document: notice of the EEO hearing date, provided solely to two employees who were expected to testify at the hearing.
- Luster added a Privacy Act claim, arguing that sending EEO materials to a shared fax machine amounted to an unlawful disclosure of records.

## Issues

1. Whether Luster produced sufficient evidence that the Forest Service’s stated reasons for her non-selection were a pretext for sex discrimination under Title VII.
2. Whether Luster produced sufficient evidence that the alleged work conditions constituted actionable discrimination or retaliation under Title VII (including an adverse action and a causal link to sex or EEO activity).
3. Whether faxing EEO documents to a machine accessible to other employees, without proof that unauthorized persons actually received or read them, constituted a prohibited “disclosure” under the Privacy Act, 5 U.S.C. § 552a(b), and whether Luster showed causation and actual damages.

## Decision

- The Tenth Circuit affirmed the district court’s grant of summary judgment to the Secretary of Agriculture on all claims.
- On the Title VII non-selection claim, the court held that the Forest Service articulated legitimate, non-discriminatory reasons for the decision (screening to higher-grade referral lists and selecting a candidate viewed as more qualified) and that Luster failed to raise a triable issue of pretext.
- On the Title VII disparate-treatment/retaliation theories, the court held Luster’s evidence did not establish actionable adverse treatment or a sufficient link to sex or protected EEO activity.
- On the Privacy Act claim, the court held Luster failed to show an unlawful disclosure to an unauthorized recipient and also failed to meet the Act’s requirements for causation and actual damages.

## Legal Principles

- Under the McDonnell Douglas framework, once an employer states a legitimate, non-discriminatory reason for an employment decision, the plaintiff must present evidence from which a reasonable factfinder could conclude the reason is unworthy of belief and that discrimination was the real reason.
- A Title VII discrimination claim requires evidence supporting an adverse employment action taken because of a protected trait; a Title VII retaliation claim requires a materially adverse action and evidence supporting a causal connection to protected activity.
- A Privacy Act damages claim generally requires proof that an agency improperly disclosed a record from a system of records to a person not entitled to receive it, that the disclosure was intentional or willful, and that the disclosure caused actual damages.
- The mere possibility that others could have accessed information (such as placement on a shared fax machine) is not enough without evidence that an unauthorized person actually obtained the information.

## Conclusion

The Tenth Circuit affirmed summary judgment because Luster did not present evidence permitting a reasonable jury to find that the Forest Service’s hiring explanations were a pretext for sex discrimination, did not establish actionable adverse treatment tied to sex or EEO activity, and did not show an unauthorized Privacy Act disclosure (or resulting causation and actual damages) based on the faxed EEO materials.


Luster v. Vilsack, 667 F.3d 1089 (2011)