Clincy v. TransUnion LLC , 684 F. App'x 680 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
April 4, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
ANTHONY CLINCY,
Plaintiff - Appellant,
v. No. 16-4029
(D.C. No. 2:14-CV-00398-JNP)
TRANSUNION LLC; BILL SAWYER, (D. Utah)
in his individual capacity; PATRICK
NORTON, in his individual capacity;
MARK TEUSS, in his individual
capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
_________________________________
Anthony Clincy appeals from the district court’s order for summary judgment
in favor of Transunion LLC, Bill Sawyer, Patrick Norton and Mark Teuss1 on his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Mark Tussie, a Transunion human resources employee, was incorrectly named
as Mark Teuss.
claim for race discrimination in violation of 42 U.S.C. § 1981.2 Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mr. Clincy, an African American, began working for Transunion as a sales
representative in 1993. By all accounts, he was a good employee—he was promoted
in 1997 and 2000, and received numerous merit pay increases over the years. He was
terminated in 2010, however, for what Transunion determined was a violation of its
Code of Business Conduct.3
Mr. Clincy was terminated as a result of what Transunion perceived as an
attempt to improperly redirect revenue from two accounts for his own financial
benefit. Some background regarding Transunion’s business practices is helpful here.
Transunion assigns codes to its customers. For example, accounts generating less
than $45,000 in annual revenue are assigned to the Client Services unit and given a
CS code, and accounts generating between $45,000 and $250,000 in annual revenue
are assigned to a Field unit, and given a Field code. The code determines, among
other things, which sales representative will receive a commission. Codes can only be
transferred or changed mid-year or at the start of the year. An account with a Field
code could benefit Mr. Clincy, whereas an account with a CS code could not.
2
Mr. Clincy does not appeal the district court’s summary judgment order in
favor of defendants on his claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, and tortious interference with contractual
relations.
3
The Code requires employees like Mr. Clincy, among other things, to
“[u]phold the highest standards of ethical conduct.” Aplt. App., Vol. 1 at 288.
2
The first incident which drew management’s attention to Mr. Clincy involved
the Amp Alarm4 account. When Amp first became a customer in early 2009, the
account was predicted to generate less than $45,000 in annual revenue. It was
therefore assigned to the Client Services unit and given a CS code. But by mid-2009,
Amp’s revenue prospects improved, and Mr. Clincy arranged for Amp to also have a
Field code. Because pricing was more favorable under the Field code, Amp asked Mr.
Clincy to cancel the CS account and issue a credit. Mr. Clincy gave the request to the
Credit Services department. On December 15, 2009, Client Services Manager Paul
Arena, told Mr. Clincy that he would “waive the last month’s fee and cancel the [CS]
code . . . if the transfer option is still open.” Aplt. App., Vol. 2 at 322 (emphasis
added). Mr. Arena, however, did not commit to any particular course of action if the
transfer option was foreclosed, but he did instruct Mr. Clincy not to do anything else
until an agreement was in place:
From what I can see, the account was owned by CS and we were
not notified of any field activity nor was there any request to transfer the
code midyear or end of year. Based on ownership change guidelines, the
field and CS must have a conversation and agree on a change in
ownership before an account would move. No [further] action should be
taken by [you] until agreement is reached.
Id. at 322-23.
Minutes after sending the email to Mr. Clincy, Mr. Arena emailed Michael
Miele, Vice President of Client Services (eventually copying William Pancoast,
4
The district court’s decision refers to Amp Alarm as EnGuarde. EnGuarde,
however, is a software platform used by alarm companies such as Amp. Therefore,
the company is properly referred to as Amp Alarm.
3
Manager of Relationship Sales in the CS unit), expressing concern about Mr. Clincy’s
action:
Mike—here is an example where a field rep spoke to a CS client
and simply created a new code to have the rev[enue] run to them instead
of CS. I would recommend we have a conversation with Mike Jones &
team to ensure this practice is not common nor repeated. We have no
method to track or stop this practice, only communication with our
peers.
Id. at 322 (emphasis added).
Even though there was no resolution regarding the availability of the transfer of
the Amp account to a Field Code, on January 5, 2010, Mr. Clincy instructed his
administrative assistant, Joanne O’Leary, to “cancel [the] AMP client services code
and credit the monthly min[imum] for the month[] of December.” Aplee. Supp. App.
at 30. He further directed her to “add” his Field code and “delete” the CS code in the
database. Id. at 33. At or near the same time, Mr. Clincy directed code changes to
Elite Home Security’s account that redirected revenues from Client Services to
himself.
Mr. Clincy’s actions raised red flags with management and the matter was
investigated by a group of managers that included Messrs. Pancoast and Miele,
Western Region Vice President Bill Sawyer, and Senior Vice President Mike Jones.
Following the investigation, on January 14, 2010, Mr. Clincy met in person with
Messrs. Sawyer and Norton, and Mark Tussie, a human resources employee,
participated by telephone. According to the agenda, the purpose of the meeting was
to “present the facts to [Mr. Clincy] and hear his response.” Id. at 49.
4
Mr. Tussie’s notes of the meeting reflected that “Mr. Clincy was apologetic
[and said that he] ‘knew what he did was wrong.’” Id. at 46. Mr. Clincy further
explained that “‘if he [had] known the amount [of revenue diverted] was so high[,] he
would not [have] changed the code [because] that would be pirating.’” Id. Mr.
Clincy further admitted that he was aware of the proper procedures to change codes,
but did not follow them with respect to the Amp Alarm and Elite Home Security
accounts. See id. at 51. At the end of the meeting, Mr. Clincy was suspended with
pay until further notice.
On January 19, 2010, Messrs. Sawyer and Tussie called Mr. Clincy and
informed him that his employment was terminated. That same day, Transunion wrote
to Mr. Clincy that his conduct violated the “TransUnion Business Principles and Code
of Business Conduct as outlined in the Associate Handbook under Core Business
Principle Number One, Ethics and Values.” Id. at 53.
Mr. Clincy subsequently brought this action claiming that his employment was
terminated because of his race in violation of 42 U.S.C. § 1981. Mr. Clincy contends
he did nothing wrong and that Transunion trumped up the ethics violation as grounds
for termination when the real reason was because he is an African American. The
district court determined that Mr. Clincy failed to meet his burden to establish a prima
facie case of race discrimination, and granted summary judgment for defendants. In
particular, the court found that Mr. Clincy failed to demonstrate that he was
terminated under circumstances giving rise to an inference of discrimination. This
appeal followed.
5
ANALYSIS
“We review the grant of summary judgment de novo, applying the same
standards as the district court pursuant to Federal Rule of Civil Procedure 56[].”
Barlow v. C.R. England, Inc., 703 F.3d 497, 504 (10th Cir. 2012) (internal quotation
marks omitted). “The court shall grant summary judgment 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).
Because there was no direct proof of discrimination, Mr. Clincy was required
to “rely on the three-part, burden-shifting framework set out . . . in McDonnell
Douglas [Corp. v. Green, 411 U.S. 792 (1973)]. Under this framework, the plaintiff
must first put forth a prima facie case of discrimination.” Barlow, 703 F.3d at 505.
To establish a prima facie case “[m]ost generally, a plaintiff must demonstrate:
(1) he was a member of a protected class; (2) he was qualified and satisfactorily
performing his job; and (3) he was terminated under circumstances giving rise to an
inference of discrimination.” Id. (internal quotation marks omitted). The plaintiff has
the burden of establishing a prima facie case “by a preponderance of the evidence.”
Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (internal quotation marks
omitted).
Before the district court, defendants argued at length that Mr. Clincy failed to
demonstrate the third element of a prima facie case—that the circumstances
surrounding his termination gave rise to an inference of discrimination. The court
noted that Mr. Clincy’s response regarding the prima facie case was contained in two
6
sentences—as an African-American he is the member of a protected class and he
suffered an adverse employment action, i.e. termination The district court noted Mr.
Clincy made no attempt to establish the second and third prongs of his prima facie
case: that he was qualified and satisfactorily performing his job, and that he was
terminated under circumstances giving rise to an inference of discrimination. These
failings caused the court to conclude that Mr. Clincy’s failure to argue the issue as
required by Fed. R. Civ. P. 56 and the local rules, was “reason alone . . . [to] grant the
defendants’ motion[] for summary judgment on [the race discrimination] claim.”
Aplt. App., Vol. 1 at 173.
Nonetheless, the court stated that “[e]ven [if it] ignore[d] the inadequacy of the
briefing and consider[ed] arguments Mr. Clincy could have made based on the facts
presented in the memoranda, he would still have failed to establish a prima facie
case.” Id. at 174. The only facts connected to race were: (1) an alleged lack of racial
diversity among Transunion’s sales force; and (2) Transunion’s failure to terminate
Mr. Clincy’s administrative assistant and supervisor,5 both Caucasians, for their roles
in changing the codes. The district court concluded none of these facts gave rise to an
inference of discrimination. We agree.
5
Mr. Clincy appears to be referring to the Western Region Vice President, Bill
Sawyer, as the supervisor involved in approving the code changes, but his arguments
and evidentiary support for this assertion are unclear. We will assume for our
resolution of this appeal that Mr. Clincy intends to reference Bill Sawyer as the
supervisor involved.
7
First, Mr. Clincy argues that an inference of discrimination exists because he
“was the only black person in a 500-person sales force.” Aplt. Opening Br. at 17. We
agree with the district court that one method by which Mr. Clincy could have
established an inference of discrimination was through statistical data that
demonstrated a marked imbalance between African Americans and Caucasians in
Transunion’s sales force. However, more is needed to support the claims Mr. Clincy
raises here. Specifically, “[w]e have long required that statistical evidence should be
closely related to the issues in the case.” Turner v. Pub. Serv. Co., 563 F.3d 1136,
1147 (10th Cir. 2009) (brackets and internal quotation marks omitted). Setting aside
the lack of statistical evidence, Mr. Clincy failed to demonstrate that Transunion’s
overall employment practices had anything to do with its decision to terminate his
employment.
Second, Mr. Clincy argues that an inference of discrimination exists because
changing the codes “required the participation of his coworkers, but he was the only
one terminated.” Aplt. Opening Br. at 20. Again, we agree with the district court that
another method by which Mr. Clincy could have established an inference of
discrimination was by demonstrating that he was treated differently than similarly-
situated, Caucasian coworkers. But as the district court found, Mr. Clincy did not
show that these coworkers were in fact similarly situated:
Similarly situated employees are those who deal with the same
supervisor and are subject to the same standards governing performance
evaluation and discipline. In determining whether two employees are
similarly situated, a court should also compare the relevant employment
circumstances, such as work history and company policies, applicable to
8
the plaintiff and the intended comparable employees. Moreover, even
employees who are similarly situated must have been disciplined for
conduct of comparable seriousness in order for their disparate treatment
to be relevant.
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (citations and internal
quotation marks omitted).
Neither Ms. O’Leary nor the supervisor who allegedly approved an additional
code had the same supervisor. Further, there is no evidence that either Ms. O’Leary’s
or the supervisor’s employment circumstances were the same as Mr. Clincy’s, or that
their conduct was of comparable seriousness. Indeed, it was Mr. Clincy who told Ms.
O’Leary, his subordinate, to make the code changes and he alone stood to reap a
financial benefit.
Last, Mr. Clincy lists several reasons why his termination occurred under
circumstances that gave rise to an inference of discrimination. But these reasons
cannot support an inference of discrimination because they depend on an unsupported
premise, either that Mr. Clincy was treated differently than other similarly-situated
employees, or that the decision to terminate his employment had something to do with
his being Transunion’s only African-American sales representative.
The judgment of the district court is affirmed.
9
Judge Hartz concurs in the judgment for the reasons stated in the opinion of the
district court.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
10