Richardson v. Gallagher ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 29, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
MARCUS RICHARDSON,
Plaintiff-Appellant,
v. No. 12-1410
(D.C. No. 1:10-CV-02097-MSK-CBS)
DENNIS GALLAGHER, in his official (D. Colo.)
capacity as Auditor, and in his
individual capacity; JOHN
CARLSON, in his official capacity as
Deputy Director of Audit Services,
and in his individual capacity; DAWN
SULLEY, in her official capacity as
Deputy Auditor, and in her individual
capacity; DENVER AUDITOR’S
OFFICE; CITY AND COUNTY OF
DENVER,
Defendants-Appellees.
______________________________
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.
Appellant Marcus Richardson appeals the district court’s grant of summary
*
This order and judgment is not binding precedent except under the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.
judgment in favor of Appellees, including the City and County of Denver (also
referred to herein as City); the Denver Auditor’s Office (Auditor’s Office);
Dennis Gallagher in his individual capacity and official capacity as Auditor; John
Carlson in his individual capacity and official capacity as Deputy Director of
Audit Services; and Dawn Sulley in her individual capacity and official capacity
as Deputy Auditor. His complaint against Appellees charges racial discrimination
and retaliation in violation of the Fourteenth Amendment and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 1983 and 1988, as amended, 42
U.S.C. §§ 2000e to 2000h-6. The crux of Mr. Richardson’s civil rights lawsuit
centers on his claims of disparate treatment because of his race as an African
American and retaliation following his allegations of race discrimination. We
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Factual Background
In its order on summary judgment, the district court relied on the following
material undisputed facts and, if disputed, on facts in favor of Mr. Richardson; we
add only a few additional undisputed facts helpful to our disposition of this
appeal. Mr. Richardson is an African American male who, from 1983 to
November 15, 2010, was an employee of the Auditor’s Office, eventually holding
the title of Internal Audit Supervisor in which he was responsible for performing
contract “compliance audits” for the City and managing a team of subordinates
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jointly working with him on such audits. 1 On January 1, 2008, as a result of a
voter-approved initiative concerning the Auditor’s Office, auditors also began to
do “performance audits,” assessing whether governmental agencies efficiently and
effectively met their objectives. 2 Although Mr. Richardson previously received
“exceptional” job performance ratings, his May 2008 performance review,
conducted for the first time under the performance audit system, resulted in an
overall rating of “successful,” which is a rating one step below “exceptional.”
His evaluation, conducted by his then-direct supervisor, Dick Wibbens, indicated
he should attempt to improve in areas relating to accepting responsibility for his
own work, providing increased coaching and mentoring of his team, and
completing audits in a timely manner. Notwithstanding these identified problems,
in 2008 and 2009 Mr. Richardson’s audit team completed more audits and
succeeded in identifying more money owed to the City than any other team.
As part of the new voter-approved initiative, certain supervisory changes
also occurred in the Auditor’s Office; as a result, Kip Memmott received a
promotion to Director of Audit Services, and thereafter, in December 2008, hired
1
A compliance audit is essentially a review of the business application of
a contract to ensure the terms and conditions of that contract are satisfied.
2
Performance audits include compliance audits but also are more complex
and focus on effective use of tax dollars and other revenues as well as evaluate
the effectiveness of city governance and related processes. This type of audit
requires a different, higher skill set than the more traditional compliance audits
previously performed.
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John Carlson as Deputy Director of Audit Services. In Mr. Carlson’s opinion, the
Auditor’s Office needed to improve its performance in various respects, including
issues relating to quality control, writing skills, and timely issuance of audit
reports. 3
In May 2009, Mr. Carlson, now Mr. Richardson’s supervisor, evaluated him
for the first time, giving him another “successful” rating and inviting him to
improve his performance in various aspects, including improving his supervisory
and written communication skills as well as completing audits in a more timely
manner. Mr. Richardson responded with a memorandum he gave to Mr. Carlson,
Mr. Memmott, and others in which he disagreed with Mr. Carlson’s conclusions
and offered explanations for the identified performance problems. His response
centered on problems with another team member whose work he had to rewrite
and his assertion that other auditors also performed poorly. He also stated:
As a Black male supervising and working with a diverse group of
colleagues, it can be somewhat difficult because employees come
from different backgrounds and cultures and in many cases do not
always understand or want to understand persons different from
themselves. In this rating period, I believe my supervisor has placed
a higher standard on me because of this lack of understanding.
He also suggested “some level of understanding is needed by all persons affected
here through developing an understanding of the cultures of someone different
3
Similarly, Mr. Memmott, in his new position, also identified improving
writing skills and timely issuance of audit reports as some of the goals under the
new regime and believed past performance evaluations were highly inflated and
not reflective of the work produced.
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than themselves,” recommended initiating “some action that will assist us all to
increasing the level of understanding, tolerance, and patience with others,” and
requested an independent evaluation of Mr. Carlson’s rating of him. 4
In his May 2010 evaluation, Mr. Richardson again received a rating of
“successful,” along with criticisms and suggestions for improvement, including
suggestions to improve his written work product and criticism over his missing
deadlines and the type of evidence he used to support his audit conclusions.
Thereafter, Mr. Richardson and his team did not complete several audits in a
timely manner, including two audits started in December 2009 and planned for
completion on May 20, 2010, which were not completed in May, and extended
deadlines of June 17, July 15, and August 19, 2010, were also missed.
In August 2010, Mr. Carlson stated his continuing dissatisfaction with
certain aspects of Mr. Richardson’s performance and placed him on a
“performance improvement plan” for the purpose of relieving him of supervisory
responsibilities, giving him specific goals and objectives to achieve, and requiring
him to meet weekly with Mr. Carlson and another supervisor to discuss his
progress and performance. The letter embodying the performance improvement
4
Mr. Memmott put a memo in Mr. Richardson’s file responding to his
memorandum by discussing his performance defects and problems. While the
parties dispute whether the memo was placed in his file in May or September
2010, it is irrelevant given the district court did not rely on it for the purpose of
granting summary judgment, and other evidence in the record more than
sufficiently outlines Mr. Richardson’s performance deficiencies.
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plan stated Mr. Richardson failed to meet several fixed deadlines on audits and
directed him to achieve improvement in “completing quality performance audits
early or on time based on work plans developed by the audit team,” 5 “deliver[ing]
projects in a timely manner,” giving “timely notification to colleagues,” ensuring
“co-workers have awareness of when tasks will be completed,” improving
“written and oral communication regarding audit work,” and delivering “timely,
clear, accurate, and well-written audit reports based on the five elements of a
finding and representing the best and final effort of the individual and audit
team.”
At weekly meetings in August and September 2010, Mr. Richardson’s
evaluators pointed out his grammatical errors, structural flaws, and other errors in
his audits and projects, including his omission of the five elements required for an
audit. In addition, Mr. Carlson and another supervisor filed a complaint with Mr.
Memmott, noting Mr. Richardson behaved in an “intimidating and threatening”
manner, “pointing his finger in [one of their] face[s],” and pacing the room in
frustration while complaining of unfair treatment; another person also witnessed
this behavior and it is reflected in the minutes of the meeting. This behavior is
the reason stated for Mr. Richardson receiving a written reprimand. Mr.
5
Mr. Carlson stated in his declaration that deadlines within an audit
project were set by the audit team itself, including Mr. Richardson and his
subordinates. In turn, Mr. Richardson generally claimed Mr. Carlson set
“inconsistent” or “unreasonable” deadlines that all supervisors missed.
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Richardson, who apparently disagreed with their characterization of his behavior
and the propriety of the reprimand, eventually filed a grievance regarding the
reprimand.
In addition, shortly after receiving the written reprimand, Mr. Richardson
commenced the instant discrimination and retaliation action while maintaining his
employment with the Auditor’s Office. 6 Meanwhile, the parties continued to have
weekly meetings with Mr. Richardson in which Mr. Carlson and others continued
to assign or remove tasks from him. In instances too numerous to detail here,
they also provided constructive criticism of his work performance involving his
failure to address questions posed to him, failure to produce an adequate or
satisfactory audit which included the requisite five elements, and his grammatical
errors and lack of timeliness. Mr. Richardson refused to sign the reports from
most of those meetings.
6
In early September 2010, Mr. Memmott wrote to the Human Resources
Office, requesting it “perform a ‘trend analysis’” of employee ratings, both pre-
and post-2008, to rebut Mr. Richardson’s contention the office had
“inconsistently addressed the performance of [employees] ... in a discriminatory
manner” and stating “the trend analysis should clearly demonstrate that the
documented performance of several supervisors ... declined and that these
performance issues were clearly documented.” While the district court noted Mr.
Richardson’s belief Mr. Memmott’s use of the word “should” directed the Human
Resources Office to create an analysis meeting his expectations, it stated its belief
he used the word in the sense of expectation, believing a fair analysis would
likely demonstrate the post-2008 evaluations were proper and nondiscriminatory.
In any event, we agree with the district court that this communication does not
meaningfully bear on Mr. Richardson’s claims nor on the disposition of this
appeal.
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On October 27, 2010, the Auditor’s Office issued a pre-termination letter,
notifying Mr. Richardson it was considering terminating his employment as a
result of his failure to demonstrate adequate improvement under his performance
improvement plan and stating he had been placed on the plan for the purpose of
providing “quality performance audits early or on time based on the work plan
developed by the audit team,” “thoughtful and efficient use of time in the office
to deliver projects in a timely manner,” “timely notification to colleagues when
working in a team environment,” as well as “[i]mprovement in written and oral
communication regarding audit work.” It also provided an exhaustive list
summarizing each performance improvement meeting and the defects in Mr.
Richardson’s performance and failure to make improvements, including problems
with grammar, failure to apply the requisite elements for audits, and failure to
prepare a changed red-lined version of an audit report. Having determined he
failed to meet established standards of performance involving both “qualitative
and quantitative” standards and that attempts at improving his performance had
been “to no avail,” the letter advised a hearing had been scheduled for November
8, 2010, to permit him to make a statement of his position and present evidence
contradicting Auditor’s Office records. Mr. Richardson submitted a written
response, contending, in part, that other than missing deadlines, no significant or
specific examples were provided demonstrating that his supervisory and audit
skills were inadequate at the time he was placed on the plan, suggesting other
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supervisors missed deadlines, and pointing out he produced more audits in 2009
than other supervisors.
On November 15, 2010, the Auditor’s Office terminated his employment,
citing his failure to meet performance standards and his carelessness in the
performance of his duties. The termination letter again provided an exhaustive
account of his performance problems documented at each of the weekly meetings
and his failure to improve in the areas outlined in each weekly plan, including the
fact that one of the large audits and reports he prepared was “one of the poorest
‘best and final’ drafts” Mr. Memmott had ever seen, the same report lacked any
structure or evidence to support the findings listed therein, and he spent many
hours on his audit work and related tasks without a deliverable product equal to
the amount of time spent. It concluded, based on the tasks assigned and failure to
perform those tasks, that Mr. Richardson was not successfully performing work at
even two levels below his current supervisory level and was unable to properly
perform the work necessary to be an effective Internal Audit Supervisor. This is
supported by those evaluating Mr. Richardson’s work under the performance
improvement plan concluding he did not have the skill set to perform the more
complex performance audits at the level of Internal Audit Supervisor or at lower
supervisory levels. In a letter issued two days later, the Human Resources
Director also responded to Mr. Richardson’s formal grievance regarding the
earlier written reprimand, stating, in part, that “[w]hile the written reprimand was
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one contributing factor, the ultimate decision [to terminate] was made primarily
as a result of you not showing an acceptable level of improvement in your
performance” under the plan. Mr. Richardson unsuccessfully appealed his
grievance.
II. Procedural Background
Thereafter, Mr. Richardson amended his complaint, which the district court
correctly characterized as presenting three claims, including allegations the
individual Appellees: (1) violated 42 U.S.C. § 1983, including his constitutional
guarantee of equal protection, by engaging in racial discrimination against him;
(2) violated 42 U.S.C. § 1981 based on the same racial discrimination and
retaliation; and (3) committed negligent hiring under § 1983 giving rise to
municipal liability for the individual defendants’ constitutional violations.
Thereafter, Appellees filed their answer and a motion for summary judgment
which the district court granted. In its opinion and order granting the motion, the
district court thoroughly addressed the issues raised by the parties and
determined, after considering the parties’ shifting burdens, that Mr. Richardson
failed to show either discrimination based on race or retaliation following his
complaints of race discrimination.
To begin, the district court found that even if Mr. Richardson carried his
burden of showing his adverse employment actions gave rise to an inference of
race discrimination, Appellees met their burden of articulating a legitimate,
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nondiscriminatory reason for his placement on the plan and eventual termination
based on their belief his work performance was insufficiently satisfactory and did
not improve over time while he was on the performance improvement plan. It
then explained the burden shifted to Mr. Richardson to show this proffered reason
constituted pretext for discrimination, and he failed to meet his burden given
Appellees’ criticisms against Mr. Richardson were not entirely subjective in
nature but, rather, as the performance improvement plan letter pointed out,
included objectively-ascertainable tasks, including his failure to meet several
fixed deadlines on certain audits after providing directions for him to complete or
deliver his audits on time and ensure co-worker awareness of tasks for
completion. It also pointed out the pre-termination letter similarly discussed
several objectively-ascertainable defects in his performance, including his failure
to submit a red-lined version of a modified report, his grammatical errors, and the
fact members of his team complained to management about his rewriting of
reports without their input. 7 It concluded that even though some of the criticisms
entailed subjective criteria, other documented criticisms also showed objective
assessment of errors and omissions.
As to Mr. Richardson’s evidence allegedly showing Appellees’ proffered
reasons were pretext for discrimination because similarly-situated white co-
7
As previously noted, the same or similar problems with Mr. Richardson’s
performance were outlined in the termination letter.
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workers received more favorable treatment, the district court found, as supported
by the record, that those individuals were not similarly-situated. It made this
determination because two of them left employment shortly after Mr. Carlson’s
appointment as a supervisor or were not treated materially differently than him
given the similarly-situated white female he identified was also placed on a
performance improvement plan and eventually chose to voluntarily demote.
Without the ability to demonstrate that similarly-situated white employees were
treated more favorably, the district court concluded Mr. Richardson’s long service
in the Auditor’s Office did not protect him from the arrival of a new supervisor
with a more critical eye or changes in policies and expectations that arrived with
new direction and management.
With respect to his retaliation claims, the district court also employed the
requisite shifting of burdens for retaliation claims and determined Mr. Richardson
carried his burden of showing his termination was temporally connected to his
complaint of discrimination to management and his filing of his discrimination
action. However, because the adverse actions supporting his retaliation claims
were essentially the same as those underlying his unsuccessful race discrimination
claim, the district court found he failed to produce sufficient evidence to
demonstrate the falsity of Appellees’ articulated, legitimate, non-retaliatory
reasons for his placement on the performance improvement plan or termination or
that they were pretext for either discrimination or retaliation. Because Mr.
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Richardson failed to demonstrate triable claims against any of the individual
Appellees, it further concluded it did not need to address his contentions the City
and County of Denver shared municipal liability for unlawful actions committed
by those individuals. It then granted Appellees’ summary judgment motion and
this appeal ensued.
III. Discussion
On appeal, Mr. Richardson raises the same contentions comprehensively
addressed and rejected by the district court in its summary judgment decision,
including his claim Appellees discriminated and retaliated against him based on
his race and that their proffered reasons for his termination constituted pretext for
such discrimination and retaliation. He suggests he satisfactorily performed his
job as Internal Audit Supervisor, including the fact his team successfully
completed more performance audits in 2009 than other teams and successfully
completed two performance audits in 2010. He also complains that Mr. Carlson
unfairly changed the criteria for his performance improvement plan six times. He
also alleges that by being demoted and terminated, he was treated differently and
less favorably than a white female Internal Audit Supervisor the district court
determined was treated similarly to him and “all other Internal Audit
Supervisors,” who he generally states also submitted draft reports needing
improvement. In support of his retaliation claim, Mr. Richardson relies on Mr.
Carlson’s admission he used subjective criteria to evaluate his job performance
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when he was placed on the performance improvement plan. Mr. Richardson also
claims in a cursory statement that Ms. Sulley failed to notify him of his appeal
and mediation rights when issuing the reprimand, which he claims constitutes
pretext for discrimination, and further claims she launched a biased investigation
of him after he filed his lawsuit, which failed to produce any material “dirt.” In
support of his contentions, he summarily contends the district court erred in (1)
overlooking or weighing evidence, or improperly considering inadmissible
evidence; and (2) assessing the credibility of witnesses, which he points out is the
province of a jury. Apparently, as part of his contention regarding such evidence,
he claims the Appellees’ affidavits should not be considered because none state
“they are made on ‘personal knowledge’” or are notarized and dated; the
signatures for Mr. Memmott and Ms. Sulley appear over the typed name of Mr.
Gallagher; and Appellees’ attorney behaved inappropriately in “mentioning [Mr.]
Richardson’s resignation” and trying to dissuade a witness favorable to him from
assisting Mr. Richardson.
A. Standard of Review and Discrimination Law
We review de novo the district court’s summary judgment decision and
“consider the evidence in the light most favorable to the non-moving party,
drawing all reasonable inferences from the available underlying facts.” Jaramillo
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1307 (10th Cir. 2005) (en banc) (per
curiam) (internal quotation marks omitted). Summary judgment is appropriate if
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the record shows there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law. See id; Fed. R. Civ. P.
56(a). In considering a summary judgment motion, courts “must not judge
witness credibility or weigh evidence.” Daniels v. United Parcel Serv., Inc., 701
F.3d 620, 627 (10th Cir. 2012).
To prevail on a disparate treatment claim under Title VII of the Civil
Rights Act, an employee must show the employer intentionally discriminated
against him for a reason prohibited by the Act. Jaramillo, 427 F.3d at 1306. An
employee may prove a violation by either direct evidence of discrimination or
through circumstantial evidence where we apply the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Under McDonnell
Douglas, the employee must establish a prima facie case of discrimination by
showing: (1) he is a member of a protected class; (2) who suffered an adverse
employment action; and (3) such adverse action occurred in circumstances giving
rise to an inference of discrimination. See Tabor v. Hilti, Inc., 703 F.3d 1206,
1216 (10th Cir. 2013). We have said the burden at this stage is “not onerous.”
Id. If the employee establishes such a prima facie case, then “a presumption of
discrimination arises,” resulting in the burden shifting to the employer “to
articulate a legitimate, non-discriminatory reason for the adverse employment
action.” Jaramillo, 427 F.3d at 1307. “If the [employer] carries its burden of
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production, the presumption of discrimination drops out of the case,” and “[t]he
burden then shifts back to the [employee], who must prove by a preponderance of
the evidence that the employer’s reasons are a pretext for unlawful
discrimination.” Id.
Where an employer advances a number of reasons for an adverse
employment action, we have adopted a “general rule” that “an employee must
proffer evidence [showing] each of the employer’s justifications is pretextual.”
Lobato v. New Mexico Env’t Dept., 733 F.3d 1283, 1289 (10th Cir. 2013) (internal
quotation marks omitted). An employee, like Mr. Richardson, can demonstrate
pretext by producing evidence of “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Id. (internal quotation marks omitted). We
have said “[e]vidence of pretext may include prior treatment of [the employee];
the employer’s policy and practice regarding minority employment (including
statistical data); disturbing procedural irregularities (e.g., falsifying or
manipulating ... criteria); and the use of subjective criteria.” Jaramillo, 427 F.3d
at 1308. Evidence that similarly-situated employees received different treatment
is also indicative of pretext and pertains to “those who deal with the same
supervisor and are subject to the same standards governing performance
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evaluation and discipline.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1120
(10th Cir. 2007) (internal quotation marks omitted).
Recognizing subjective criteria can indicate pretext, we “view with
skepticism the use of subjective evaluations in making termination decisions.”
Plotke v. White, 405 F.3d 1092, 1106 (10th Cir. 2005). However, the existence of
subjective criteria alone is not considered evidence of pretext. 8 See Pippin v.
Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195 (10th Cir. 2006). We realize
the use of subjective considerations by employers “must play some role” in
certain management decisions, and therefore, subjective considerations or factors
are reviewed on a case-by-case basis. See Green v. New Mexico, 420 F.3d 1189,
1195 (10th Cir. 2005). In addition, we proceed with caution in considering the
relative merits of individual employees, given this court may not “act as a super
personnel department that second guesses employers’ business judgments.”
Conroy v. Vilsack, 707 F.3d 1163, 1177 (10th Cir. 2013) (internal quotation
marks omitted). In making a pretext determination, a court looks at the facts as
they appeared to the person making the employment decision because it is the
employer’s “‘perception of the employee’s performance that is relevant, not [the
employee’s] subjective evaluation of his own relative performance.’” Kelley v.
8
We distinguish between employment decisions based on objective
criteria, which are generally immune to employer manipulation, and those based
on subjective criteria, “which are particularly easy for an employer to invent in an
effort to sabotage a plaintiff’s prima facie case and mask discrimination.” Ellis v.
United Airlines, Inc., 73 F.3d 999, 1004-05 & nn.6, 8 (10th Cir. 1996).
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Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000) (quoting
Furr v. Seagate Tech, Inc., 82 F.3d 980, 988 (10th Cir. 1996)). While Title VII,
including §§ 1981 and 1983, prohibits race discrimination in employment, it does
not protect employees against management decisions that are unwise, illogical,
seemingly arbitrary, or seemingly unfair. See Adamson v. Multi Cmty. Diversified
Serv., Inc., 514 F.3d 1136, 1153 (10th Cir. 2008.) The “relevant inquiry is not
whether the employer’s proffered reasons were wise, fair, or correct, but whether
it honestly believed those reasons and acted in good faith upon those beliefs.”
Lobato, 733 F.3d at 1289 (internal quotation marks omitted).
B. Discrimination Claim
Having considered the applicable standards of review, burdens of proof and
production, and legal principles, we turn to the district court’s well-reasoned
decision. In ruling in favor of Appellees, the district court proceeded to the
proper McDonnell Douglas analysis. In so doing, it noted Mr. Richardson, as an
African American, was a member of a protected class and assumed, for the
purpose of resolving the summary judgment motion, that his treatment in being
placed on the performance improvement plan and his termination were adverse
actions demonstrating a prima facie case of discrimination. On considering the
shifting burden of proof, it determined Appellees provided legitimate, non-
discriminatory reasons for his placement on that plan and his eventual
termination. We agree. Not only did the employee evaluations point out
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tardiness in completion of Mr. Richardson’s audits, but, as the district court
pointed out, the document outlining his performance improvement plan leveled
similar criticisms regarding his failure to meet several fixed deadlines on audits
and provided directions for him to complete or deliver his audits on time and
ensure co-worker awareness of tasks for completion. While Mr. Richardson, on
appeal, points to the fact he completed numerous other audits and in the past
performed in an exemplary manner, we look at the facts as they appeared to the
person making the employment decision at the time at issue and his or her
perception, not the employee’s subjective evaluation of his own relative
performance. Not only does the record disclose that Mr. Richardson did not
perform timely audits but he does not contest the fact that he did not complete
certain audits or complete them in a timely manner, including the two large audits
originally due in May 2010 which were not completed until after multiple
deadline extensions. As the district court pointed out, the new regime made it a
goal or priority to improve audit performance in various respects, including the
timely issuance of audit reports as well as improvement of quality control and
writing skills.
Even if the deadlines were subjective, timeliness was only one performance
problem of many. As revealed by the weekly meeting minutes outlined in the
pre-termination and termination letters, Mr. Richardson’s performance problems
also stemmed from his failure to submit work with the required red-lined
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corrections, his submission of audits omitting the required audit elements and
containing grammatical errors, and complaints from his team about his
performance in rewriting audit reports without team input. As the district court
indicated, these problems point to clear, objectively-ascertainable defects in his
performance. Indeed, a review of the record in its entirety reveals multiple
problems with Mr. Richardson’s audits, his failure to address or adequately
explain the reasons for these problems, and his supervisors’ and evaluators’ belief
he could not perform the tasks required, not only at the level of Internal Audit
Supervisor, but at lower supervisory levels. 9 For these reasons, we agree
Appellees carried their burden of articulating legitimate, facially
nondiscriminatory reasons for placing Mr. Richardson on a performance
improvement plan and terminating him for failure to improve his performance in
these respects.
Having determined Appellees met their requisite burden, we turn to Mr.
Richardson’s argument regarding pretextual discrimination in which he cursorily
claims he was treated differently and less favorably than “all other Internal Audit
9
We note the record on appeal contains portions of hearing transcripts
from the Career Service Board of Mr. Richardson’s appeal of his grievance.
While Mr. Richardson relied significantly on these transcripts in his pleadings
before they district court, and to a certain extent on appeal, some of them do not
identify who is testifying. In addition, only certain pages are replicated, skipping
from a few or several lines on one page to a few or several lines many pages later,
making it difficult to place the testimony into context or garner the complete
testimony on a particular subject.
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Supervisors,” who he generally states also submitted draft reports needing
improvement; and the white female Internal Audit Supervisor, who the district
court determined was treated similarly to him. While Mr. Richardson names
several individuals to whom we assume he is referring when he uses the blanket
reference “all other Internal Audit Supervisors,” he does not provide any
specifics, including whether they were also supervised by Mr. Carlson or what
problems were contained in their draft reports in comparison to his draft reports.
One “cannot create a triable issue of fact by making an assertion without
supporting facts.” Kelley, 220 F.3d at 1177. Moreover, the record on appeal only
provides annual performance evaluations for three of those individuals for the
purpose of comparison. As to two of these individuals, we agree with the district
court’s determination they were not similarly-situated, given they left their
employment with the Auditor’s Office only a few months after Mr. Carlson’s
appointment as supervisor, and Mr. Carlson did not have an opportunity, as he did
with Mr. Richardson, to observe a year’s worth of their performance or place
them on a performance improvement plan. As the district court concluded, this is
insufficient to show they were similarly-situated for the purpose of determining
whether his placement on a performance improvement plan and termination were
racially motivated.
In addition, it is clear Mr. Richardson was not treated differently than the
white female to whom he refers, given, as the district court points out, she was
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also placed on a performance improvement plan and eventually chose to
voluntarily demote. While she was placed in a less demanding position
commensurate with her capabilities, 10 the district court also pointed out Mr.
Richardson did not contend, in response to the summary judgment motion, that an
open position existed that matched his capabilities or skills or that he applied for
such a position. For these same reasons, Mr. Richardson has not shown he was
treated differently, and we agree he failed to carry his burden of establishing
pretextual discrimination.
As to Mr. Richardson’s cursory claim the district court overlooked or
improperly weighed evidence, considered inadmissible evidence, and improperly
made credibility determinations, we can only assume without further explanation
that he is referring to Appellees’ affidavits which he now complains are not
properly signed, notarized, or dated. In response, Appellees suggest Mr.
Richardson should have filed a motion to strike such exhibits, and because he
failed to do so, the issue is waived under Noblett v. Gen. Elec. Credit Corp., 400
F.2d 442 (10th Cir. 1968). 11 They also contend the district court did not err or
10
Even though this white female was not supervised by Mr. Carlson, the
district court nevertheless considered Mr. Richardson’s argument before
discrediting it on other grounds.
11
As Appellees contend, generally, a party objecting to an affidavit or
declaration moves to strike the document. See Hancock v. Am. Tel. and Tel. Co.,
701 F.3d 1248, 1262 (10th Cir. 2012), cert. denied, 133 S. Ct. 2009 (2013);
Noblett, 400 F.2d at 445. And where, as here, no objection is made and no gross
(continued...)
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abuse its discretion in considering them, given the affidavits were made under
penalty of perjury, met the requirements of 28 U.S.C. § 1746, and no local or
other court rule prohibits e-signature. In replying to Appellees’ contention he
waived the issue, Mr. Richardson provides a record reference–albeit in one
parenthetical sentence in a record consisting of 674 pages–indicating the affidavit
of Mr. Memmott is noncompliant with Rule 56 because it contains only his typed
name over the typed name of Dennis Gallagher.
We begin by noting that Mr. Richardson’s cursory, parenthetical sentence,
pointing out a perceived disparity in only Mr. Mermott’s affidavit, does not
constitute meaningful notice of an objection requiring a response by the district
court under the circumstances of this case. Moreover, even without consideration
of Mr. Memmott’s declaration, the result would be the same, given the other
affidavits and evidence in the record support the district court’s summary
judgment order. However, even if we consider Mr. Richardson’s argument as one
raised below and unaddressed by the district court, he cannot prevail with respect
to this or the other affidavits.
In the past, Federal Rule of Civil Procedure 56 required papers referred to
in an affidavit to be “sworn,” which we defined as “a statement reduced to writing
and the truth of which is sworn to before someone who is authorized to administer
11
(...continued)
miscarriage of justice is indicated, an argument regarding technicalities in the
form of the affidavit is unpersuasive. See Noblett, 400 F.2d at 445.
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an oath,” thereby indicating a requirement for notarization of a signature. Elder-
Keep v. Aksamit, 460 F.3d 979, 984 (10th Cir. 2006) (internal quotation marks
omitted). The current version of Rule 56 no longer uses the term “sworn” and,
instead, states, “[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the
matter stated.” Fed. R. Civ. P. 56(c)(4). The Advisory Committee note
concerning the change explains “[a] formal affidavit is no longer required,” and
the requirement that a statement reduced to writing be sworn no longer applies.
See Fed. R. Civ. P. 56, Advisory Comm., 2010 amends., subdiv. (c). Instead, it
points out “28 U.S.C. § 1746 allows a written unsworn declaration, ... subscribed
in proper form as true under penalty of perjury to substitute for an affidavit.” Id.
Section 1746 also indicates a date and signature are required.
In this case, it is clear that even though the statements of Appellees are
titled as “affidavits,” they more closely resemble a written declaration under 28
U.S.C. § 1746. See Peters v. Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir.
2002). Each of the “affidavits” of which Mr. Richardson complains has an
affirmation by the declarant of being provided “under penalty of perjury,” sets out
facts admissible as evidence, and states they are made on personal knowledge.
This meets the “under penalty of perjury” and other requirements in 28 U.S.C.
§ 1746.
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As to the absence of a date on the affidavits, we would not ordinarily
condone their absence. However, Mr. Richardson not only failed to raise the
issue before the district court but has not explained why he could not have raised
the issue earlier or how he was prejudiced by the absence of a date. Moreover, as
the Sixth Circuit has explained, the absence of a date does not render a
declaration invalid if extrinsic evidence demonstrates, as it does here, the period
in which the declaration is signed. See Peters, 285 F.3d at 476-77. Similarly, we
decline to address the issue of the use of e-signatures, given Mr. Richardson’s
failure to contest the use of such signatures before the district court or adequately
address the issue on appeal; Appellees’ representation no local rule prohibits e-
signatures on non-attorney declarations; and the fact the other evidence in the
record, including the weekly minutes from the performance improvement plan
meetings, supports the district court’s summary judgment decision. 12
Instead of focusing on the fact electronic signatures were even used, Mr.
12
Without deciding the issue, we recognize certain federal district courts
in other jurisdictions allow, under their local rules, the submission of non-
attorney declarations with electronic signatures, requiring, in some instances,
counsel to retain the original, signed declaration. See Brown v. White’s Ferry
Inc., 280 F.R.D. 238, 244 (D. Md. 2012); Schaub v. Doran, 2012 WL 4866677, at
*1 n.1 (C.D. Ill. Oct. 12, 2012) (unpublished op.); Manriquez v. Huchins, 2012
WL 5880431, at *2 (E.D. Cal. Nov. 21, 2012) (unpublished op.); Deleon v.
Hoffman, 2012 WL 75805, at *6 & n.6 (W.D. N.Y. Jan. 10, 2012) (unpublished
op.); Wildearth Guardians v. U.S. Sec’y of the Int., 2011 WL 1225558, at *5 n.2
(D. Idaho Feb. 11, 2011) (unpublished op.); Sterling Sav. Bank v. JHM Props.,
LLC, 717 F. Supp. 2d 1142, 1146 (D. Or. 2010). But see Fox v. Brown Mem.
Home, Inc., 2010 WL 4983153, at *1 (S.D. Ohio Dec. 2, 2010) (unpublished op.).
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Richardson’s appellate brief focuses on the fact Mr. Memmott’s and Ms. Sulley’s
e-signatures appear over the typed name of Mr. Gallagher. However, it is evident
the affidavits of Mr. Memmott and Ms. Sulley are indeed their declarations and
not those of Mr. Gallagher, who provided his own separate affidavit, despite the
fact his name is typed under their signature lines. This is because both affidavits
are individually titled “Affidavit of Kip Memmott” and “Affidavit of Dawn
Sulley”; identify the affiants as Kip Memmott and Dawn Sulley; begin by
recognizing them as the persons making the declarations “under penalty of
perjury” and the statements that follow; identify them by their respective
positions; end by stating, “I, Kip Memmott [or in her declaration, Dawn Sulley],
hereby certify under penalty of perjury that the foregoing affidavit is true to the
best of my knowledge, information, and belief”; and contain their names on the
signature lines above the typed name of “Dennis Gallagher.” We can only
presume the typed name of “Dennis Gallagher” is an inadvertent mistake which
we deem has no bearing on the substance of the declarations within. Under these
circumstances and for all the reasons provided herein, no “gross miscarriage of
justice” is indicated by their consideration. See Noblett, 400 F.2d at 445. The
district court’s reliance on these and the other affidavits is reasonable, and we
find no evidence in the record that it participated in any inappropriate credibility
determinations, nor has Mr. Richardson provided any examples of inappropriate
credibility determinations for our review.
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Mr. Richardson’s cursory allegations on appeal that Appellees’ attorney
behaved inappropriately in “mentioning [Mr.] Richardson’s resignation” and
trying to dissuade a witness favorable to him from assisting Mr. Richardson is
insufficient without record citation or additional argument and/or evidence for our
discussion. As previously noted, Mr. Richardson cannot create a triable issue of
fact by simply making a cursory assertion without supporting facts, Kelley, 220
F.3d at 1177, and failure to develop an argument on appeal constitutes waiver of
such argument, see United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir.
2012). Similarly, his one-sentence argument in his appellate brief claiming Ms.
Sulley failed to notify him of his appeal and mediation rights for the purpose of
showing pretext is also not sufficiently developed for our consideration.
Moreover, even if we considered this cursory argument on appeal, our review of
the record suggests it is unworthy of our reversal on appeal. As the Appellees
point out, any mistake in notice of his appeal and grievance rights was corrected
when a new reprimand letter issued containing that information after the first one
omitted it; Mr. Richardson did in fact file an appeal to a hearing officer; and the
reprimand, which was based on his alleged threatening conduct at a weekly
meeting, was only one of numerous reasons cited for his termination. As such, no
pretext for racial discrimination has been established, and even if it has, Mr.
Richardson must provide proof of pretext, not only for this one incident, but for
each and every one of the legitimate, nondiscriminatory reasons provided for his
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termination and/or placement on the performance improvement plan, which he has
failed to do.
We also reject Mr. Richardson’s argument pretext exists given his claim
Ms. Sulley conducted an improper investigation into his performance after he
filed his initial complaint against Appellees. The only evidence we gleaned from
the record of such an investigation is contained in Mr. Richardson’s own affidavit
in which he claims Ms. Sulley “began actively soliciting complaints and other
negative information about me from all of my co-workers, which included her
asking about whether or not I engaged in threatening conduct toward them.”
Again, a triable issue of fact is not created by making an assertion without
supporting facts. See Kelley, 220 F.3d at 1177. Moreover, even if this is true,
Mr. Richardson does not provide any evidence or argument on how an
investigation into his threatening conduct, or solicitation of complaints by
employees concerning threatening conduct against them, constitutes pretext for
racial discrimination, especially given his alleged threatening conduct toward
others at one of the meetings. Moreover, even if the investigation, if any, was
pretextual, he fails to provide evidence of pretext for the rest of the legitimate,
nondiscriminatory reasons provided for his termination and/or placement on the
performance improvement plan, including grammatical errors and other
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deficiencies in his audits and supervision of others. 13 We are also not convinced
by Mr. Richardson’s claim that pretext is shown because the tasks he was to
perform changed six times. A review of the weekly meetings shows most of the
tasks assigned were related, directly or indirectly, to on-going audit work.
In sum, under the circumstances presented, Mr. Richardson has not
demonstrated pretext “by producing evidence of such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Jaramillo, 427
F.3d at 1308 (internal quotation marks omitted). Instead, it is clear from the
entirety of the record that his superiors, who evaluated his performance under the
plan, believed he did not have the skill set to perform in his supervisory position
under the new regime standards, as evidenced by the many instances during the
weekly meetings in which his performance was considered substandard to
expectations for his position. The relevant inquiry is not whether the proffered
reasons were wise, fair, or correct, but whether Appellees honestly believed the
13
At oral argument, Mr. Richardson relied on Mr. Carlson’s alleged
admission that he provided Mr. Richardson with the impossible task of comparing
the Sarbanes-Oxley Act of 2002 with local statutes and regulations. Our review
of the transcript purported to be that of Mr. Carlson does not indicate his
admission it was an impossible task. Even if this is true, Mr. Richardson’s failure
to adequately perform this comparison is not listed as one of the reasons for his
placement on the performance improvement plan or for his termination.
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proffered reasons and acted in good faith on their beliefs. See Lobato, 733 F.3d
at 1289. A review of the record establishes they believed he was not capable of
performing his job and acted on that belief. For these reasons and the additional
reasons provided by the district court in its summary judgment decision, we
conclude Mr. Richardson did not carry his burden of showing pretext with regard
to his treatment and termination.
C. Retaliation Claim
“In this circuit, [an employee] bringing a retaliation claim must establish
that retaliation played a part in the employment decision and may choose to
satisfy this burden in two ways.” Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 998 (10th Cir. 2011) (internal quotation marks omitted). “Under the direct/
‘mixed motives’ approach, the [employee] may directly show that retaliatory
animus played a ‘motivating part’ in the employment decision,” shifting the
burden “to the employer to demonstrate that it would have taken the same action
irrespective of the retaliatory motive.” Id. If the employee cannot directly
establish that retaliation played a motivating part in the employment decision, he
may rely on the three-part framework established in McDonnell Douglas to prove
retaliation indirectly. Id. To establish a prima facie case of retaliation, an
employee must show: (1) he engaged in protected opposition to discrimination;
(2) he suffered an adverse action a reasonable employee would have found
material; and (3) a causal nexus existed between such opposition and the
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employer’s adverse action. Id. If this is established, then the employer must
offer a legitimate, non-retaliatory reason for its decision, and once that burden is
satisfied, the employee must show the employer’s reason is merely a pretext for
retaliation. Id.
Having considered these principles and for the same reasons previously
stated, we agree with the district court that Mr. Richardson failed to carry his
burden of demonstrating Appellees’ articulated legitimate, non-retaliatory reasons
for his placement on the performance improvement plan and termination were
false or pretext for retaliation. Because Mr. Richardson failed to demonstrate
triable claims against any of the individual Appellees, we also agree the district
court did not need to address his contentions the City and County of Denver
shared municipal liability for unlawful actions committed by those individuals.
IV. Conclusion
For the reasons cited herein, as well as the reasons provided in the district
court’s Opinion and Order Granting Motion for Summary Judgment dated
September 24, 2012, we AFFIRM its grant of summary judgment in favor of the
Appellees.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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