Wolff v. United Airlines ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 12, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
ERIC WOLFF,
Plaintiff - Appellant,
v. No. 20-1119
(D.C. No. 1:18-CV-00591-RM-SKC)
UNITED AIRLINES, INC., (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH,
Circuit Judges.
_________________________________
This case grew out of Mr. Eric Wolff’s employment with United
Airlines. In July 2016 he entered his workplace, the Denver airport, with
an item regarded as a weapon. United warned him that another instance of
unacceptable performance would result in termination. But within the next
*
Because oral argument would not materially help us to decide the
appeal, we have decided the appeal based on the record and the parties’
briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
.
year, he arrived late or left early 39 times in a span of only about 100 days.
So United decided on June 14, 2017, to fire Mr. Wolff. But before United
could tell him that he was fired, he complained of gender discrimination.
United proceeded with the firing and Mr. Wolff sued, claiming
violations of federal and state law based on gender discrimination,
retaliation, breach of contract, promissory estoppel, fraud, and negligent
misrepresentation. The district court dismissed some of the claims and
granted summary judgment to United on all of the remaining claims. We
affirm these rulings.
I. Dismissal: State-law Claims for Breach of an Implied Contract,
Promissory Estoppel (against retaliation for a complaint of
gender discrimination), and Fraud
The district court dismissed the claims for breach of an implied
contract, promissory estoppel (against retaliation for complaining of
gender discrimination), and fraud. These clams had grown out of United’s
alleged promises
• to allow an appeal from the termination and
• to refrain from retaliating for a complaint about discrimination.
A. Standard of Review
In considering the dismissal, we conduct de novo review. Strain v.
Regaldo, 977 F.3d 984, 989 (10th Cir. 2020). When conducting this review,
we consider whether Mr. Wolff has alleged enough facts to state a facially
plausible claim. Id.2
B. Breach of an Implied Contract and Promissory Estoppel
(based on the promise not to retaliate)
The standards and underlying allegations are similar on the claims of
promissory estoppel and breach of an implied contract.
To determine the standards for these claims, we apply Colorado law.
See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956
F.3d 1228, 1237 n.2 (10th Cir. 2020). For promissory estoppel, Mr. Wolff
needed to plead a factual basis to infer “(1) a promise; (2) that [United]
reasonably should have expected would induce action or forbearance by
[Mr. Wolff] or a third party; (3) on which [Mr. Wolff] or [the] third party
reasonably and detrimentally relied; and (4) that must be enforced in order
to prevent injustice.” Pinnacol Assurance v. Hoff, 375 P.3d 1214, 1221
(Colo. 2016). For an implied contract, he needed to plead an alleged
promise with enough specificity for the court to enforce the promise. Geras
v. Int’l Bus. Machs. Corp., 638 F.3d 1311, 1315 (10th Cir. 2011).
In claiming promissory estoppel and breach of an implied contract,
Mr. Wolff alleged that
• United had promised not to discipline employees for
complaining to management or to the ethics/compliance office
and
• two United supervisors had answered questions about the
appeal process, implying that United would permit an appeal
from the firing.
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The district court dismissed these claims, concluding that the alleged
promises were too vague to suggest promissory estoppel or breach of an
implied contract. We agree with the district court’s characterization of the
alleged promises.
C. Fraud
Mr. Wolff also sued for fraud. For a fraud claim, the pleader must
allege facts showing a factual misrepresentation and damages from reliance
on the misrepresentation. Rocky Mountain Expl., Inc. v. Davis Graham &
Stubbs LLP, 420 P.3d 223, 234 (Colo. 2018). The district court dismissed
this claim, reasoning that the complaint contained no allegation of a
factual misrepresentation. On appeal, Mr. Wolff disagrees, arguing that he
adequately alleged that United had exaggerated his faults and used pretext
to justify the firing.
For the sake of argument, we can assume that these allegations
involved factual misrepresentations. But they do not suggest that Mr.
Wolff relied on these misrepresentations, and his lack of reliance would
require us to affirm the dismissal. See United States v. A.S., 939 F.3d 1063,
1071 (10th Cir. 2019) (stating that we have discretion to affirm on any
ground adequately supported by the record). Given the failure to
adequately allege reliance, we uphold the dismissal of Mr. Wolff’s fraud
claim.
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II. Summary Judgment: Promissory Estoppel (based on the promise
to permit an appeal), Gender Discrimination under Title VII, and
Retaliation under Title VII
With the partial dismissal, three claims remained. Two were based on
Title VII of the Civil Rights Act of 1964 (gender discrimination and
retaliation); the third claim involved promissory estoppel from United’s
alleged promise to permit an appeal from the firing. The district court
awarded summary judgment to United on all of these claims.
A. Order Striking a Declaration
In challenging the award of summary judgment, Mr. Wolff relies in
part on a declaration by a former United employee, Ms. Rhonda Eachus. In
her declaration, Ms. Eachus said that she had been allowed to appeal her
own firing. But the district court struck the declaration, concluding that
Mr. Wolff had failed to include Ms. Eachus in his initial disclosures. See
Fed. R. Civ. P. 26(a)(1)(A)(i).
If Mr. Wolff had an obligation to include Ms. Eachus in the initial
disclosures, her declaration could not be used unless the nondisclosure had
been “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1).
When the district court considers the existence of substantial justification
or harmlessness, we apply the abuse-of-discretion standard. HCG Platinum,
LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1200 (10th Cir.
2017). In applying this standard, we consider “(1) the prejudice or surprise
to the party against whom the testimony is offered; (2) the ability of the
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party to cure the prejudice; (3) the extent to which introducing such
testimony would disrupt the trial; and (4) the moving party’s bad faith or
willfulness.” Id. (internal quotation marks omitted).
Mr. Wolff insists that he disclosed Ms. Eachus before his deadline
for preliminary disclosures, pointing out that
• he had listed her name as one of thirteen individuals (with no
other information) in a discovery response,
• she had worked as a United supervisor at the relevant time,
• United itself had identified Ms. Eachus as someone who had
appealed her termination,
• United had produced her personnel file in discovery,
• Ms. Eachus’s name had appeared on a United printout of
terminated employees, and
• Mr. Wolff had testified in his deposition about Ms. Eachus.
The district court concluded that these facts would not have alerted United
to the likelihood that Ms. Eachus would have discoverable information.
This conclusion fell within the district court’s discretion.
Mr. Wolff’s discovery response identified Ms. Eachus as a possible
comparator, not as someone who knew about discriminatory treatment.
Certainly United knew that Ms. Eachus had been terminated. But how
could United have known that Ms. Eachus had been aware of
discriminatory treatment of Mr. Wolff? He doesn’t tell us.
6
Mr. Wolff did eventually disclose Ms. Eachus’s role as a witness. By
then, however, the discovery period had ended. Given the timing of this
disclosure, the district court acted within its discretion by striking Ms.
Eachus’s declaration.
B. Application of the Summary-Judgment Standard Based on
the Remaining Evidence
The resulting issue is whether Mr. Wolff’s other evidence sufficed to
prevent summary judgment on his remaining claims. We answer “no.”
1. Standard of Review
In considering the summary-judgment rulings, we apply de novo
review, viewing the evidence in the light most favorable to Mr. Wolff. Bird
v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016). United bears the
burden to show the absence of a genuine dispute of material fact and
entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(a). But
United can satisfy this burden by simply pointing out the absence of
evidence on an element of the claim. Felkins v. City of Lakewood, 774 F.3d
647, 653 (10th Cir. 2014). Mr. Wolff can overcome this showing only by
presenting evidence of a specific fact that would create a genuine issue for
trial. Branson v. Price River Coal Co., 853 F.2d 768, 771–72 (10th Cir.
1988).
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2. Promissory Estoppel (as to a promise to allow an appeal)
The district court dismissed part of the claim of promissory estoppel,
but not the part involving a promise to permit an appeal from the firing. On
this part of the claim, however, the court granted summary judgment to
United, reasoning that Mr. Wolff could not show reliance because he had
deviated from the appeal procedure allegedly promised to him.
In challenging this ruling, Mr. Wolff argues that his evidence showed
that a United attorney, Mr. Benjamin Coleman, had directed any appeal to
be sent to him. But Mr. Wolff presents no evidence that he sent an appeal
to Mr. Coleman. So the district court properly rejected this claim based on
a lack of reliance. See Pinnacol Assurance v. Hoff, 375 P.3d 1214, 1221
(Colo. 2016) (stating that detrimental reliance is an element of promissory
estoppel).
3. Gender Discrimination Under Title VII
Mr. Wolff also claimed gender discrimination under Title VII. On
this claim, Mr. Wolff relied on circumstantial evidence. As a result, he had
to present a prima facie case as defined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800-07 (1973). Under McDonnell Douglas, he had to
show
• circumstances supporting an inference that United was one of
the unusual employers that discriminates against males or
• facts creating a reasonable inference that a female would not
have been fired in the same circumstances.
8
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th
Cir. 2006).
The district court concluded that Mr. Wolff had not made either
showing. In response, Mr. Wolff argues only that several females had not
been disciplined despite tardiness problems. But the summary-judgment
record shows that only one of the women had a tardiness problem. And
“[i]t is not enough . . . for a plaintiff merely to allege that he was a
qualified man who was treated differently than a similarly situated
woman.” Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136,
1150 (10th Cir. 2008). So we uphold the award of summary judgment on
the Title VII claim of gender discrimination.
4. Retaliation
Mr. Wolff also claims retaliation for complaining about gender
discrimination. On this claim, United obtained summary judgment based on
a failure to present evidence linking the firing to his complaint about
gender discrimination.
To avoid summary judgment, Mr. Wolff needed to present evidence
that could reasonably permit a finding that United had decided to fire him
with knowledge of a protected activity (like complaining about gender
discrimination). Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203
(10th Cir. 2008). Mr. Wolff points to his various informal complaints and
formal complaints on July 26, 2016, and June 16, 2017, to United’s office
9
for ethics and compliance. The district court concluded that Mr. Luke
David had decided to fire Mr. Wolff without knowing of any complaints.
Mr. David did obtain a copy of the complaint on June 16, 2017. But the
court reasoned that Mr. David had already decided to fire Mr. Wolff two
days earlier.
We agree with the district court’s reasoning. On appeal, Mr. Wolff
does not point to any evidence suggesting that Mr. David knew about the
complaint on July 26, 2016, or the informal complaints. Though Mr. David
did know about the complaint on June 16, 2017, United points out that
United had already decided to fire Mr. Wolff two days earlier. That
decision appears in an email that United had circulated two days before
Mr. Wolff complained:
10
This email prevents a material factual dispute on the claim of retaliation
stemming from the June 16 complaint. See Kilcrease v. Domenico Transp.
Co., 828 F.3d 1214, 1226–27 (10th Cir. 2016) (affirming summary
judgment for an employer that had decided not to hire the plaintiff before
he had asserted rights under the Americans with Disabilities Act).
5. United’s Alleged Spoliation
Mr. Wolff argues that United destroyed evidence. In district court, he
unsuccessfully sought sanctions for the destruction of evidence. But he
does not appeal the denial of sanctions. He instead asserts that United
• deleted emails and text messages that would have shown
permission to arrive late and leave early and
• trashed handwritten material with supporting information,
including lists of female employees treated more favorably and
supervisors who had allowed him to arrive late and leave early.
But Mr. Wolff hasn’t requested adoption of any favorable inferences from
the alleged destruction of evidence. Without such an inference, Mr. Wolff
has not shown how the alleged destruction of evidence would affect the
availability of summary judgment.
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III. Conclusion
In our view, Mr. Wolff has not shown any errors in the district
court’s reasoning. We thus affirm the rulings to dismiss some of the claims
and grant summary judgment on the others. 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
This decision moots
• United’s motion for leave to file a surreply and
• Mr. Wolff’s motions for leave to file a supplemental brief and
for an extension of time to file that brief.
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