Zoutomou v. Kennecott Utah Copper ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 23, 2013
Elisabeth A. Shumaker
Clerk of Court
EDOUARD K. ZOUTOMOU,
Plaintiff - Appellant,
v. No. 13-4064
(D.C. No. 2:10-CV-00719-TC)
KENNECOTT UTAH COPPER, (D. Utah)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.
Edouard K. Zoutomou appeals the district court’s grant of summary judgment
to Kennecott Utah Copper (“Kennecott”) on his claims of unlawful termination from
employment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND
Zoutomou, a native of the West African country of Guinea, began working for
Rio Tinto, Kennecott’s parent company, in 1989.1 In 2002, Kennecott hired
Zoutomou as a senior metallurgical engineer. Kennecott started Zoutomou at a
smelter plant but eventually assigned him to work at the Hydromet, which treats
streams from Kennecott’s smelter. Zoutomou did not have a supervisory role but did
provide engineering advice to operators, maintenance workers, and their supervisors,
on the Hydromet’s operations. His job required substantial collaboration with
co-workers, including his supervisors and maintenance workers, because any issues
or proposed operational changes typically demanded joint action and agreement.
Throughout Zoutomou’s seventeen years with Rio Tinto and Kennecott, his
engineering skills were well-regarded and his performance reviews reflected that.
However, Zoutomou had difficulty communicating and collaborating effectively with
other workers at the Hydromet. Supervisors, operators, and maintenance crew
complained about Zoutomou’s manner of dealing with people, specifically, that he
was rude, arrogant, and did not listen to their input. On several occasions Zoutomou
had to meet with supervisors to discuss his demeanor, but problems continued despite
those meetings.
In August 2005, Zoutomou’s increasing problems forced his supervisor, David
George-Kennedy, to develop a performance improvement plan (“PIP”) with him.
1
At the time Kennecott fired Zoutomou, he was fifty-four years old.
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This document describes Zoutomou’s deficiencies as a “lack of ownership” and
“more energy needed.” Aplt. App. at 450. Under “lack of ownership,” the PIP states
that his interactions with co-workers were “not sufficient” for his role, and lists two
other areas needed for improvement. Id. Under “more energy needed,” the PIP lists
three plans or programs in which Zoutomou needed to show progress. Id. Under the
heading “implications,” the PIP states that if Zoutomou’s “targets are not satisfied
within the agreed timeframe he will be removed from his current position.” Id.
In November 2005, George-Kennedy met with Zoutomou to review his
progress. George-Kennedy noted that although Zoutomou’s performance in certain
areas was satisfactory, his future with the company depended on the plant working
effectively. A bonus review conducted a month later showed that Zoutomou was still
underperforming in other areas previously identified in the PIP, including working
collaboratively.
In May 2006, Zoutomou’s difficulty working with others continued when he
and a co-worker, Paula Olson, had a confrontation after Zoutomou refused to wear
safety gear in an area of the plant that requires it. Olson told her supervisor that
Zoutomou had yelled and pointed his finger at her. Zoutomou claimed that he only
raised his voice to be heard above the noisy environment and that the hand gestures
were simply a cultural tic. Nevertheless, Kennecott terminated Zoutomou’s
employment the following week for failing to meet the company’s performance
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expectations, including the items outlined in the PIP and the company’s demand that
he improve his ability to work effectively with co-workers.
Zoutomou appealed his termination to the company but in his appeal letter, did
not mention anything about his age, race, color, or national origin. His appeal was
denied. Following an unsuccessful appeal to the state Antidiscrimination and Labor
Division, Zoutomou filed suit in federal court. He alleged that Kennecott unlawfully
terminated his employment on account of his race, color, and national origin in
violation of Title VII of the Civil Rights Act of 1964. He also asserted claims of
retaliation under 42 U.S.C. § 1981 and of age discrimination under the Age
Discrimination in Employment Act of 1967 (“ADEA”). Following discovery,
Kennecott moved for summary judgment on all of Zoutomou’s claims.
The district court granted Kennecott’s motion on all of Zoutomou’s claims.
Starting with Title VII, the court concluded that Zoutomou had failed to establish a
prima facie discrimination case. The court found that considerable evidence in the
record showed he was not meeting performance expectations and that Zoutomou had
provided no evidence of racial animus. Furthermore, the court reasoned that even
had Zoutomou established a prima facie case of discrimination, Kennecott proffered a
legitimate, non-discriminatory reason for discharging him that was supported by
evidence in the record.
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As to Zoutomou’s ADEA discrimination claim, the court found he could not
make out a prima facie case by again noting that the evidence demonstrated
unsatisfactory job performance and that Kennecott provided a legitimate reason for
its decision to discharge him. Although Zoutomou argued that George-Kennedy’s
instruction that “more energy [was] needed” was a veiled reference to his age, the
court thought that the context of the comment suggested “more energy” was simply a
request for mental, not physical, sharpness. In any event, the court concluded the
comment was nothing more than an “ambiguous ‘stray remark’” that does not
create an inference of discrimination. Zoutomou v. Kennecott Utah Copper,
No. 2:10-CV-00719, 2013 WL 1213386, at *7 (D. Utah Mar. 25, 2013). Moreover,
the court found that Zoutomou failed to establish any nexus between the allegedly
discriminatory statements and Kennecott’s decision to terminate his employment.
Finally, the court rejected Zoutomou’s retaliation claim as meritless because
he had never complained about discrimination during his employment with
Kennecott, and thus did not engage in any protected activity. See Tabor v. Hilti, Inc.,
703 F.3d 1206, 1219 (10th Cir. 2013) (noting that a plaintiff bringing a retaliation
claim is first required to establish that he opposed a discriminatory practice before
proving his employer took an adverse employment action because of such
opposition). Zoutomou now appeals the court’s grant of summary judgment on his
Title VII and ADEA claims.
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II. DISCUSSION
We review de novo the district court’s grant of summary judgment.
Tademy v. Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008). A party is
entitled to summary judgment if it demonstrates through pleadings, depositions,
answers to interrogatories, admissions on file, or affidavits, that there is no genuine
issue as to any material fact. Fed. R. Civ. P. 56(c). A genuine issue of material fact
exists when, viewing the record and making reasonable inferences in a light most
favorable to the non-moving party, a reasonable jury could return a verdict for the
non-moving party. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.
2004).
When a plaintiff seeks to prove a Title VII violation by circumstantial
evidence, as Zoutomou does here, the plaintiff must establish a prima facie case of
discrimination by demonstrating that (1) he belongs to a protected class; (2) he was
performing his job satisfactorily; and (3) the circumstances of his termination give
rise to an inference of discrimination. Salguero v. City of Clovis, 366 F.3d 1168,
1175 (10th Cir. 2004). If established, the burden then shifts to the defendant to
provide a legitimate, non-discriminatory reason for the termination. Orr v. City Of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). If the defendant does so, the
burden shifts back to the plaintiff to provide evidence that the defendant’s proffered
reasons are pretext for discrimination. Id.
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There is no dispute that as a West African native, Zoutomou is a member of
three protected classes under Title VII: race, color, and national origin. With regard
to whether he was performing his job satisfactorily, he argues that the district court
improperly relied on evidence Kennecott manufactured after his firing to provide a
post-hoc rationalization for his discharge. But this argument fails for two reasons.
First, the evidence that Zoutomou contends the district court improperly relied
upon—namely, depositions and letters from company employees detailing the
problems with Zoutomou’s performance prepared after his discharge—are precisely
the types of record material intended to be used to support a motion for summary
judgment. See Fed. R. Civ. P. 56(c). Second, the PIP that Zoutomou dismisses as the
only disciplinary document he received during his employment provides conclusive
evidence that he was not meeting performance expectations several months before his
termination. The PIP demonstrates that his ability to work with others was in need of
improvement—so much so that intervention was required.2 Zoutomou incorrectly
claims the PIP was “resolved” in November 2005 during his PIP review when his
performance was deemed “satisfactory.” Aplt. App. at 454. To the contrary,
George-Kennedy qualified that “satisfactory” statement with a note that Zoutomou’s
“long term career [with the company]” depended on his performance over the next
2
Zoutomou vehemently argues that PIPs are not disciplinary tools and that
Kennecott improperly used the PIP as one here to justify his discharge. But whether
the PIP was disciplinary—in theory or in practice—does not alter the fact that the PIP
signaled that Zoutomou had performance deficiencies the company concluded he
needed to resolve.
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six months. During a bonus review roughly a month later, George-Kennedy gave
Zoutomou low scores for “collaborative behavior” and “developing people”—two
problem areas identified in the PIP. Id. at 465. Zoutomou has therefore failed to
provide evidence that he was adequately performing his job.
Moreover, Zoutomou identifies no evidence giving rise to an inference of
discrimination. He argues that to the extent he failed to “get along” with co-workers,
it was only so because they discriminated against him. Aplt. Br. at 11. In other
words, Zoutomou blames his inability to work collegially with co-workers as
evidence of their racial animus. But as he provides no support for this conclusory
allegation, he cannot create a genuine issue of fact supporting a charge of
discrimination. He additionally argues that in 2002, three similarly-situated white
co-workers in his department were given priority in location transfers despite his own
efforts to be relocated, which he believes serves as evidence of racial animus. But
apart from being based on mere speculation, this argument must fail because even if
true, Zoutomou does not establish any nexus between those alleged actions in 2002
and his termination in 2006. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106,
1117-18 (10th Cir. 2007) (finding no pretext where plaintiff offered no evidence
creating a nexus between alleged prior mistreatment of a protected class and the
alleged negative employment action). Further, Zoutomou has not cited any record
evidence showing that Kennecott’s legitimate, non-discriminatory reason for
termination was in fact pretextual.
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As to the ADEA claim, Zoutomou was required to prove that he (1) was forty
years of age or older; (2) performed satisfactory work; (3) was terminated; and
(4) was replaced by someone younger. Adamson v. Multi Cmty. Diversified Servs.,
Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). For the reasons noted above, Zoutomou
has not provided evidence that he performed satisfactory work. Neither has he
satisfied his burden of showing that Kennecott’s reasons for termination were
pretextual or were otherwise motivated by his age. Zoutomou points to the statement
in his PIP that his supervisor needed “more energy” from him to demonstrate that
Kennecott discharged him because of his age. Aplt. App. at 450. Aside from the fact
that the PIP’s explanation suggests it was simply a reference to Zoutomou’s need to
make progress on his projects—and Zoutomou’s own admission that he was
uncertain about the meaning of “more energy”—there is nothing about the statement
to indicate a connection to his age. As the district court noted, such abstract remarks
do not create an inference of age discrimination. See Stone v. Autoliv ASP, Inc.,
210 F.3d 1132, 1140 (10th Cir. 2000) (stating that age-related comments about
plaintiff can support inference of age discrimination but isolated, ambiguous
comments may be too abstract).
Finally, Zoutomou alleges that the district court improperly ignored his
contention that the evidence on which Kennecott—and subsequently, the court—
relied was altered after his termination to make it seem as though he were
underperforming during his employment. However, Zoutomou produced no evidence
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supporting his allegations of documentary fabrication and we find none in the record.
Zoutomou has simply failed to present any meaningful evidence that Kennecott
wrongfully terminated him on the basis of discrimination.
Accordingly, the judgment of the district court is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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