Sydney v. ConMed Electrical Surgery , 275 F. App'x 748 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
April 18, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
DONALD A SYDNEY,
Plaintiff-Appellant, No. 07-1414
v. (D. of Colo.)
CONMED ELECTRICAL SURGERY, (D.C. No.06-cv-788-REB-MEH)
doing business as ASPEN
LABORATORIES, INC., RODNEY
DAVIS, and RON SHORES,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **
Donald A. Sydney brought a lawsuit against his former employer, ConMed
Electrical Surgery, alleging he was fired because of his race in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Civil
Rights Acts of 1866 and 1991, 42 U.S.C. § 1981. Sydney also brought additional
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
claims against supervisors Rodney Davis and Dave Reed and consultant Ron
Shores. The district court granted summary judgment in favor of the defendants
on all claims. Sydney appeals only the granting of summary judgment to ConMed
on the Title VII and § 1981 claims. 1
We review the district court’s judgment pursuant to 28 U.S.C. § 1291 and
AFFIRM.
I. Background
ConMed first hired Sydney in 1998 as a service technician and later
transferred him to an engineering technician position in 2001. In April 2005,
Sydney received a performance review for February 2004 through February 2005.
Sydney’s former supervisor Alan Lee and his current supervisor Jim Heller
presented the review and discussed it with him. Lee supervised Sydney during
the period of time covered by the review, and Heller became Sydney’s new
supervisor in April 2005. The review described unsatisfactory performance in
several areas, including productivity, job knowledge and skill, dependability,
initiative, and judgment and analytical ability.
1
Although counsel represented Sydney during the district court
proceedings, Sydney filed his appeal pro se. While we construe the filings of a
pro se litigant liberally, this court “will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
Therefore, issues not included in the appellant’s opening brief are waived. Hanh
Ho Tran v. Trustees of the State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004).
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In response to the review, Heller placed Sydney on a performance
improvement plan. Under the plan, Sydney needed to satisfy the following goals:
Productivity—Complete tasks on time
Knowledge—Improve Word and Excel skills
Dependability—Ask questions, seek information, complete tasks
correctly
Initiative—Contact [supervisor] Rodney Davis when tasks are
completed or if waiting
Judgment—Understand directions
R., Vol. I., Doc. 38, Exhibit A. After three months, Heller terminated Sydney’s
employment because Sydney failed to successfully complete the performance
improvement plan. Heller described the reasons Sydney’s performance did not
satisfy the plan’s requirements in a July 2005 memorandum addressed to Sydney.
During this period, Sydney never complained that any of his supervisors made
racially derogatory comments to him.
After his termination, Sydney sued. In the amended complaint at issue
here, he alleges the following claims for relief: (1) a Title VII and § 1981 claim
alleging ConMed fired him because of his race; (2) a Title VII claim against
ConMed alleging retaliation; (3) claims against Davis, Shores, and Reed alleging
intentional or negligent infliction of emotional distress, as well as violations of
§ 1981 and the Equal Protection Clause of the Fourteenth Amendment; and (4)
claims against all of the defendants, alleging racial harassment and retaliation.
The district court granted Sydney’s unopposed motion to dismiss the
second and fourth claims. The court also granted the defendants’ motion for
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summary judgment on the remainder of the claims. Sydney only appeals the
dismissal of the first claim.
II. Standard of Review
We review the district court's entry of summary judgment de novo.
Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310 (10th Cir. 2006).
Summary judgment is only appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). On appeal, we
review the record and make reasonable inferences in the light most favorable to
the nonmoving party. Mickelson, 460 F.3d at 1310. While we view the record in
the light most favorable to the nonmovant, “that party must still identify
sufficient evidence requiring submission to the jury to survive summary
judgment.” Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007).
III. Discussion
Sydney alleges ConMed wrongfully terminated him in violation of
Title VII and § 1981. “[I]n racial discrimination suits, the elements of a
plaintiff’s case are the same, based on the disparate treatment elements outlined
in McDonnell Douglas, whether that case is brought under . . . § 1981 . . . or Title
VII.” Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). The
district court properly evaluated both of Sydney’s claims under the McDonnell
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Douglas burden shifting framework. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04 (1973). 2 Under this framework, the plaintiff must establish a
prima facie case of discrimination. If the plaintiff does so, the burden shifts to
the defendant to show a legitimate, nondiscriminatory reason for the adverse
action. If the defendant succeeds, the burden shifts back to the plaintiff to
demonstrate that the defendant's proffered reason is pretextual. Antonio v. Sygma
Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006).
A. Prima Facie Case
To make out a prima facie case of discrimination under Title VII, the
plaintiff must show (1) membership in a protected class, (2) an adverse
employment action, and (3) disparate treatment among similarly situated
employees. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).
For the purposes of evaluating the summary judgment motion, the lower court
2
In its summary judgment motion, ConMed argued the district court should
apply the McDonnell Douglas rather than the mixed motive framework when
evaluating Sydney’s claims. Sydney did not challenge this argument before the
district court. Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413
F.3d 1163, 1167 (10th Cir. 2005) (holding that arguments not raised in the district
court are waived on appeal). Sydney also did not raise this argument in his
opening brief. “Despite the liberal construction afforded pro se pleadings, the
court will not construct arguments or theories for the plaintiff in the absence of
any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991). “[A]rguments not set forth fully in the opening brief are
waived.” Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.
1998). Therefore, it is unnecessary to reach the question of whether Sydney
could have instead pursued his claims under the mixed motive framework.
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assumed, without deciding, that Sydney satisfied this initial requirement. We
likewise make the same assumption. See, e.g., Aramburu v. Boeing Co., 112 F.3d
1398, 1403 (10th Cir. 1997) (assuming without deciding that plaintiff alleging
violations of Title VII and § 1981 established a prima facie case).
B. ConMed’s Burden of Production
The district court properly concluded ConMed satisfied its burden of
showing legitimate, nondiscriminatory reasons for its decision to fire Sydney.
ConMed submitted to the court the July 2005 performance review memorandum
written by Heller and addressed to Sydney. The memorandum lists the following
four reasons why Sydney did not satisfy the goals described in his performance
improvement plan:
[1] 2450 Loan Curve Measurement—This is a routine task that
you have performed before. Some of the open circuit voltage
measurements that you presented were transposed. The data did not
make sense. There were also two anomalies in the data that you did
not check. One of them was a measurement error. Your
Dependability and Judgment was not satisfactory because you should
have known that these measurements were very irregular and should
be checked.
[2] System 5000 GFI Trip Investigation—You were asked to
investigate the cause of GFI trip with System 5000 use. This task is
a little more complex than those you performed in month one and
two, but not as complex as many other tasks performed by
Engineering Technicians. You had difficulty understanding the task
and did not follow directions. Rodney Davis advised you that the
conditions you were testing were not realistic but you continued to
test them. Your Productivity, Knowledge, Dependability and
Judgment were not satisfactory because you did not conduct realistic
tests and failed to change the testing when advised to do so.
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[3] Alertness—On July 11 at approximately 1:00PM I observed you
at your desk with your head down and eyes closed. You were
apparently asleep. When a loud noise occurred you startled and
opened your eyes. I had observed this same situation on a previous
day. On at least two other occasions, Rodney Davis has observed
similar situations. Your Productivity and Dependability were not
satisfactory because you are expected to stay awake on the job.
[4] Following Directions—The Research and Development
Department maintains “V&V” units. These are products that are
maintained in factory configuration for test purposes. You were
instructed by Rodney Davis not to make any modifications to these
units. For the GFI test you modified the System 5000 “V&V” unit.
You should have used another unit for that purpose. Your
Dependability was unsatisfactory because you did not follow
instructions.
R., Vol. I., Doc. 38, Exhibit A. Sydney does not challenge the district court’s
conclusion that ConMed satisfied its burden of production. The burden therefore
shifts back to Sydney to demonstrate that the reasons ConMed proffered for his
termination were pretextual.
C. Pretext
Sydney argues he created a genuine issue of material fact on the question of
pretext. In order to establish pretext, a plaintiff must produce 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.” Argo v.
Blue Cross & Blue Shield of Kan., 452 F.3d 1193, 1203 (10th Cir. 2006).
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Because this pretext inquiry is a motive inquiry, the court must examine the facts
as they were perceived by Heller—the person who made the decision to terminate
Sydney. See Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004);
Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996) (“It is the
manager’s perception of the employee’s performance that is relevant, not
plaintiff’s subjective evaluation of his own relative performance.”).
We agree with the district court that Sydney failed to produce sufficient
evidence to create a genuine issue of material fact regarding whether ConMed’s
justifications were pretextual.
1. 2450 Load Curve Measurements
Sydney insists the “measurements [he] made were accurate. There was a
problem with the machine itself, which Ron Shores can attest to.” Aplt. Br. 7.
Sydney waived this argument because he failed to raise it before the district court.
Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167
(10th Cir. 2005) (holding that arguments not raised in the district court are
waived on appeal). Furthermore, Sydney does not cite anything in the record
supporting his claim that Ron Shores agreed that the machine was defective.
Therefore, his argument fails to establish pretext.
2. System 5000 GFI Trip Investigation
Sydney insists it was not improper for him to ignore Rodney Davis’s
instructions because Davis was simply a co-worker, and not a superior, at the time
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of the GFI trip investigation. Sydney, however, did not dispute Heller’s assertion
that he improperly conducted the investigation. Therefore, even if Sydney was
not required to follow Davis’s instructions, he has done nothing to dispute the
report that his “Productivity, Knowledge, Dependability and Judgment were not
satisfactory because [he] did not conduct realistic tests and failed to change the
testing when advised to do so.” R., Vol. I., Doc. 38, Exhibit A.
3. Alertness
Sydney also challenges Heller’s assertion that he was asleep during work
on multiple occasions. He claims he was on his lunch break when Heller
observed him sleeping. On one of the occasions Davis allegedly observed him
sleeping, Sydney insists he was actually reading a test procedure. Sydney also
claims Davis lied about him sleeping on another occasion in order to get rid of
him because he is black.
Even if Sydney’s testimony raises factual questions about the allegations of
sleeping during work hours, the district court still properly granted ConMed
summary judgment. When an employer cites multiple nondiscriminatory reasons
for its employment decision, an employee generally “must proffer evidence that
shows each of the employer’s justifications are pretextual.” Tyler v. RE/MAX
Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). However, if one of the
employer’s stated reasons for its action predominates the others, “demonstrating
that reason to be pretextual is enough to avoid summary judgment.” Bryant v.
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Farmers Ins. Exch., 432 F.3d 1114, 1127 (10th Cir. 2005). Sydney fails to
produce sufficient evidence suggesting that the other three legitimate,
nondiscriminatory reasons cited by ConMed were pretextual. Furthermore,
nothing in the record suggests that Sydney was fired primarily because he slept on
the job. Therefore, the district court properly concluded that Sydney’s testimony
did not create a genuine issue of material fact warranting denial of ConMed’s
summary judgment motion.
4. Following Directions
Sydney also disagrees with Heller’s claim that he modified a “V&V” unit
despite Davis’s instructions not to make any changes. He insists he merely
“replaced a part which had to be done when these units malfunctioned.” Aplt. Br.
7. Sydney never raised this argument before the district court, and therefore this
issue is waived on appeal. Rosewood Servs., Inc., 413 F.3d at 1167 (holding that
arguments not raised in the district court are waived on appeal). Furthermore,
Sydney does not cite any evidence in the record supporting this claim.
5. Other Evidence of Pretext
Sydney makes three additional arguments for why he believes ConMed’s
justifications are pretextual.
a. Davis’s alleged racial animus
Sydney argues all four of ConMed’s legitimate, nondiscriminatory reasons
are pretextual because Rodney Davis had input into the decision to fire Sydney,
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and Davis had previously exhibited racial bigotry. Although the July 2005
memorandum refers to complaints made by Davis, Heller also describes his own
first-hand observations about Sydney’s unsatisfactory performance. Sydney fails
to cite anything in the record suggesting that Heller is racially biased or that he
conspired with Davis to wrongfully terminate Sydney’s job.
The district court also properly concluded Sydney provided inadequate
evidence showing that Davis’s input had been influenced by racial bias. Sydney
cites three reasons why he believes Davis is a racist: 1) Davis listens to Rush
Limbaugh on the radio; (2) in December 2004, Davis allegedly once referred to
Sydney in a racially derogatory manner; and (3) in 2004, Davis remained silent
when consultant Shores hollered out the word “nigger.”
Sydney fails to cite any authority for the proposition that listening to a talk
show host is evidence of racial bias, nor does Sydney provide any logical
explanation for why such a correlation would exist. Furthermore, Davis’s isolated
remark and “non-reaction” fails to demonstrate pretext. Rea v. Martin Marietta
Corp., 29 F.3d 1450, 1457 (10th Cir. 1994) (“Isolated comments, unrelated to the
challenged action, are insufficient to show discriminatory animus in termination
decisions.”). Sydney in fact never reported the alleged incidents to ConMed’s
human resource office. Nor did he report these allegations in his EEOC
complaint he filed in 2005. In order to establish pretext, “the plaintiff must
demonstrate a nexus between the allegedly discriminatory statements and the
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defendant’s decision to terminate [him].” Id. “A causal nexus can be shown if
the allegedly discriminatory comments were directed at the plaintiff . . . which
resulted in the adverse action taken against the plaintiff.” Id. Nothing in the
record suggests the comment Davis allegedly made in 2004 or his failure to
respond to Shores’ remark caused Sydney’s termination in 2005. Therefore, this
evidence fails to establish pretext.
b. Sydney’s prior work experience
Sydney also argues he worked at ConMed for seven and a half years, and
management had never complained about his job performance until Davis began
supervising his work. The mere fact that Sydney’s prior performance reviews
were satisfactory does not create an inference that Heller or Davis misrepresented
his more recent conduct. Valdivia v. Univ. of Kan. Med. Ctr., 24 F. Supp. 2d
1169, 1174 (D. Kan. 1999) (citing Viola v. Philips Med. Sys., 42 F.3d 712,
717–718 (2d Cir. 1994)) (“[A] change in management’s evaluation of an
employee’s performance does not by itself raise an inference of pretext.”).
c. Lack of training
Sydney also alleges he received no training for the more complicated tasks
Heller asked him to complete. He failed, however, to produce any evidence
suggesting he received less training than other similarly situated employees. In
the absence of disparate treatment, evidence of inadequate training does not by
itself raise an inference of pretext.
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IV. Conclusion
In sum, Sydney failed to produce sufficient evidence to create a genuine
issue of material fact on the question of pretext. We therefore AFFIRM the
district court’s order granting ConMed summary judgment on Sydney’s Title VII
and § 1981 claims.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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