McDonald v. The Boeing Company , 602 F. App'x 452 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 3, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ERNEST MCDONALD,
Plaintiff-Appellant,
v. No. 14-1288
THE BOEING COMPANY, (D.C. No. 1:13-CV-01703-RBJ)
(D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.
Plaintiff Ernest McDonald sued his former employer, The Boeing Company,
alleging he was unlawfully terminated because of his race in violation of Colorado
and federal law. The district court granted summary judgment to Defendant, and
Plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Plaintiff McDonald, an African-American military veteran, worked for
*
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) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. Furthermore, 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not binding precedent except under the doctrines of law of the case, res judicata, and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.
Defendant Boeing from 2007 to 2012. Specifically, Plaintiff worked on several
classified programs Defendant ran jointly with the United States Air Force.
Beginning in 2008, funding for these programs decreased continuously, requiring
layoffs of civilian employees. This funding was controlled entirely by the federal
government, pursuant to Defendant’s contract with the U.S. Air Force.
When he started in June 2007, Plaintiff worked as a Level 3 Mission
Operations Specialist (hereinafter “L3 Operator”) at Buckley Air Force Base in
Aurora, Colorado. The next year, after receiving a pay increase, he and several other
operators were notified they would be laid off soon. With Defendant’s assistance,
however, Plaintiff was able to obtain the position of Level 4 Systems Engineer
Support Analyst in a different joint program in Colorado Springs. This position paid
more than his old position, and Plaintiff began working there in August 2008. Soon
after he started, though, Plaintiff was again notified he would be laid off soon
because of more budget cuts. In January 2009, Defendant placed Plaintiff on
“overhead,” meaning Defendant returned Plaintiff to Aurora while he sought other
internal opportunities. Defendant also increased Plaintiff’s salary. After placing
Plaintiff in several temporary positions, in June 2009 Defendant re-hired Plaintiff
back to his old L3 Operator job, while allowing him to retain his higher salary.
In mid-2012, because of continued budgetary decreases, Defendant conducted
another “Reduction in Force” (RIF) in order to lay off four of its eight remaining L3
Operators. To determine which four L3 Operators to lay off and which four to
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retain, Defendant utilized a ranking system crafted pursuant to the company’s written
guidelines. This system based sixty percent of each L3 Operator’s ranking on
general and technical competencies and forty percent on different aspects of the
previous year’s performance review. Utilizing a pre-existing list, Boeing managers
Timothy Ferreira and James Barduniotis determined ten competencies that would be
considered for the 2012 RIF: adaptability, collaboration, communication, continuous
learning, crew resource management, data configuration management, decision
making, initiating action, operations and maintenance support, and troubleshooting.
Next, Ferreira—who supervised all eight L3 Operators—analyzed and
calculated ratings for the eight employees. Ferreira gave each employee a numerical
score for each competency: (1) Entry Level, (2) Basic, (3) Working Level, (4)
Advanced, and (5) Expert. Ferreira then entered these scores into a computer
program. This program, utilizing both the competency assessments and performance
review scores from the previous year, formulated a ranking. Afterward, Ferreira,
Barduniotis, and Kathleen Benavides, a Human Resources representative, reviewed
the ranking and decided against any further changes.
Plaintiff ranked sixth out of the eight L3 Operators. An employee named
James Pepe ranked first. Around June 21, 2012, Plaintiff received notice that he was
again facing termination in 60 days. After Defendant (and particularly, Barduniotis)
unsuccessfully assisted Plaintiff with a countrywide search for another Boeing
position, Plaintiff was laid off on August 24. The two L3 Operators ranked below
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Plaintiff, both Caucasian, were also terminated.
Two days prior to his termination, Plaintiff complained to Defendant—for the
first time—that he was being discriminated against because of his race. Defendant
investigated this complaint and concluded it had no merit. After his termination,
Plaintiff received permission from the Equal Employment Opportunity Commission
to sue. He then brought suit in the District of Colorado, alleging violations of Title
VII of the Civil Rights Act and the Colorado Anti-Discrimination Act (CADA).
Eventually, the district court granted summary judgment in favor of Defendant.
Meanwhile, by April 2014 Defendant no longer employed any L3 Operators
for the program in question, according to program manager Roger Healy. 1 Morever,
between May 2007 and April 2014 the program had been forced to downsize from
195 civilian employees to just 78 civilian employees.
II.
We review a district court’s summary judgment decision de novo. Felkins v.
City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014). Thus, we will affirm a grant
of 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.” Id. (quoting
Fed.R.Civ.P. 56(a)).
1
At some point during 2012, Plaintiff was given the opportunity, along with
all other L3 Operators, to complete certification in order to advance to Level 4.
Plaintiff failed to obtain this certification.
4
“Colorado and federal law apply the same standards to discrimination claims.”
Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1219 n.11 (10th Cir. 2010). As such,
Plaintiff’s Title VII and CADA claims “rise or fall together.” Id. (citation and
internal marks omitted). Absent direct proof of racial discrimination, “a plaintiff in
a race discrimination case must rely on the three-part, burden-shifting framework set
out by the Supreme Court.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th
Cir. 2012) (citing 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.” Id. 2 The burden then shifts “to the employer to prove a legitimate,
non-discriminatory reason for the adverse employment action.” Id. (citation and
internal marks omitted). If the employer does so, then the burden shifts back: “[T]he
plaintiff must either show that his race . . . was a determinative factor in the
defendant’s employment decision, or show that the defendant’s explanation for its
action was merely pretext.” Adamson v. Multi Cmty. Diversified Servs., Inc., 514
F.3d 1136, 1145 (10th Cir. 2008) (citation omitted).
Here, in granting summary judgment, the district court accepted Defendant’s
concession that a prima facie case of discrimination had been made, found Plaintiff
2
Generally speaking, a plaintiff must demonstrate the following for a prima
facie case: “(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. (quoting Salguero v. City of
Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004)).
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had essentially conceded a legitimate, non-discriminatory reason for the termination
(i.e., budget cuts plus low ranking), and focused on explaining why Plaintiff had not
shown pretext. On appeal, we are faced with the same posture. That is, the parties
agree that both a prima facie case and legitimate, non-discriminatory reason have
been provided. Thus, our only task is to analyze whether Plaintiff has shown, by a
preponderance of the evidence, that “the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.” Simmons v. Sykes
Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011).
III.
For pretext, we look to whether Plaintiff can show that Defendant’s
“explanation was so weak, implausible, inconsistent or incoherent that a reasonable
fact finder could conclude that it was not an honestly held belief but rather was
subterfuge for discrimination.” Id. at 947–48. We must examine “the facts as they
appear to the person making the decision to terminate.” Id. (citation omitted). Our
role is not, however, “to act as a super personnel department that second guesses
employers’ business judgments.” Id. (citation and internal marks omitted).
Plaintiff contends, in several ways, that Defendant used the 2012 RIF as a
pretext for terminating him because of his race. First, Plaintiff repeatedly argues
Defendant “manipulated” the ranking system by including Pepe. Comparing Pepe
with the other L3 Operators, Plaintiff asserts, was like comparing apples and oranges
because Pepe was in a different program and supervised by different persons.
6
Plaintiff provides no evidence for this assertion other than his own say-so, however,
and he openly admitted in deposition that he had no personal knowledge of Pepe’s
background or history with the company. See Fed. R. Evid. 602 (“A witness may
testify to a matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.”). In addition, Defendant has put
forth evidence indicating Pepe was a certified L3 Operator in the same program, with
the same supervisor, at the time of the 2012 RIF. Indeed, Plaintiff himself admits
elsewhere (contradicting his above assertion) that Pepe was a trainee in Plaintiff’s
program. In any event, even if Pepe was part of a different program or supervised
by a different person, it is unclear how this would show pretext. As the district court
observed, cross-program or cross-supervisor comparisons would seem essential to
large companies. And more practically speaking, Defendant ranked Plaintiff sixth.
Omitting Pepe would only bump Plaintiff up to fifth, which still presumably would
have resulted in his termination.
Second, Plaintiff attacks the ranking system for being subjective. This
contention is also without merit, as nothing bars an employer from utilizing
subjective criteria in decision-making. See Debord v. Mercy Health Sys. of Kan.,
Inc., 737 F.3d 642, 657 (10th Cir. 2013) (“[T]he existence of subjective criteria alone
is not considered evidence of pretext.” (citation omitted)); Conroy v. Vilsack, 707
F.3d 1163, 1177 (10th Cir. 2013) (“[S]ubjectivity is to be expected in every hiring
decision.”). We will infer pretext only when the evaluation criteria are entirely
7
subjective and the process in question is opaque rather than transparent. Conroy, 707
F.3d at 1178 (emphasis added) (citations omitted). Although the 2012 RIF certainly
contained some subjectivity, neither of our two key factors—pure subjectivity or
opaqueness—was present here. Indeed, the mere fact that Defendant openly utilized
a ranking system based on written and established guidelines means the criteria were
not purely subjective and the process was not opaque. Far from it.
Third, Plaintiff asserts co-workers made offensive racial comments—some in
his presence, some not. It is well-settled, however, that “isolated racial comments
are insufficient to establish pretext unless they can somehow be tied to the
employment actions disputed in the case at hand.” Antonio v. Sygma Network, Inc.,
458 F.3d 1177, 1184 (10th Cir. 2006) (citation omitted). And Plaintiff has put forth
no evidence that any person with influence over the decision to terminate him—e.g.,
Ferreira, Barduniotis, or Benavides—made such comments, approved of such
comments, or terminated Plaintiff because such comments were made by others. To
the contrary, the primary comment that Plaintiff points to was made years before
Plaintiff even started at Boeing by a co-worker, Tim Cook, who left Boeing four
years before Plaintiff’s eventual termination. 3 This is clearly insufficient.
Fourth, Plaintiff contends pretext is demonstrated by the fact that he, an
African-American, was selected for termination in every single relevant RIF while
3
As this timeline makes obvious, the comment was not aimed at Plaintiff.
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he was employed. As unfortunate as this fact may be, we cannot ignore the broader
context here: namely, the drastic and ongoing budget cuts necessitating massive
layoffs. Looking at this evidence as a whole—wherein Plaintiff’s program
downsized from 195 employees to 78 employees in just seven years—there is nothing
suspicious in one individual being selected for multiple terminations. Cf. Rea v.
Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994) (“[I]n a reduction in
force case, ‘someone has to be let go.’” (citation omitted)). Moreover, Plaintiff
ignores the fact that the first two times he was selected for termination Defendant
actually assisted Plaintiff in finding another job within the company—hardly a sign
of racial animus. There is no triable issue of fact here.
Finally, Plaintiff argues we can infer pretext because Healy—again, one of the
program’s managers—temporarily hid the existence of the L3 Operator job opening
for which Plaintiff was eventually hired in 2009. Like his first argument, Plaintiff
points only to his own say-so, and he appears to lack personal knowledge on the
subject. Furthermore, it is again unclear how this assertion, if true, would
demonstrate pretext, as Plaintiff was eventually hired for the position and he makes
no allegation that Healy influenced his later termination. 4
4
Certainly, Healy had broad authority over how many lay-offs would occur
and in what areas, but Plaintiff has admittedly “not attacked [Defendant’s]
determination to retain four of the eight L3 Operator employees for the 2012 RIF.”
(emphasis added). Rather, Plaintiff attacks the selection of him, personally, as one
of the bottom four L3 Operators. And Healy did not take any role in deciding which
(continued...)
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IV.
In the end, Plaintiff does not come close to establishing pretext. See Rea, 29
F.3d at 1456 (“Given Defendant’s written policy that those employees with the
lowest rankings were to be considered first for layoff, and the fact that Plaintiff
ranked last in the departmental ranking for her labor grade, we conclude that
Plaintiff’s evidence is insufficient to create a genuine fact dispute as to whether
Defendant’s reasons for choosing Plaintiff for layoff were pretextual.”). Not only
does he fail to provide any solid evidence, but several of the undisputed facts—such
as Defendant’s willingness to give him raises and help him find other positions
internally—counsel against his position.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
4
(...continued)
four of the eight L3 Operators to terminate.
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