Hysten v. Burlington Northern Santa Fe Railway Co. ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
March 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LARRY D. HYSTEN,
Plaintiff-Appellant,
v.
No. 09-3333
(D.C. No. 2:08-CV-02179-EFM)
BURLINGTON NORTHERN SANTA
(D. Kan.)
FE RAILWAY COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.
Plaintiff-Appellant Larry D. Hysten appeals from the district court’s order
granting summary judgment in favor of Defendant-Appellee Burlington Northern
Santa Fe Railway Company (“BNSF”). Mr. Hysten argues that he has presented
circumstantial evidence from which a reasonable jury could conclude that BNSF
wrongfully discharged him in retaliation for exercising his rights under the
Federal Employer Liability Act (“FELA”), 45 U.S.C. §§ 51–60, and because of
his race. We affirm the district court’s order for the reasons set forth below.
*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
BACKGROUND 1
Mr. Hysten, an African-American, was first employed by BNSF’s
predecessor in 1977. Mr. Hysten worked for BNSF as a freight car mechanic and
carman for almost thirty years, and was a member of the Brotherhood Railway
Carmen Division of the Transportation Communications International Union for
the duration of his employment.
In 1999, Mr. Hysten sustained a back injury while working at BNSF’s
facility in Topeka, Kansas, which caused him to miss three days of work. At
first, Mr. Hysten told his supervisor, Monte Johnson, that he did not know the
cause of his injury. Mr. Johnson, however, insisted that the company needed to
know the origin of the injury, and Mr. Hysten eventually filled out an “Employee
Personal Injury/Occupational Illness Report,” which identified his injury as
“work-related.” Aplt. App. at 144–45 (Decl. of Larry D. Hysten, dated May 19,
2009). Shortly thereafter, BNSF conducted a disciplinary investigation into
whether Mr. Hysten had violated certain BNSF safety rules regarding personal
injuries. An investigative hearing was held, and Mr. Hysten was dismissed from
his employment on July 12, 1999.
After his dismissal, Mr. Hysten filed a grievance pursuant to the collective
1
As Mr. Hysten is challenging the district court’s grant of summary
judgment, the facts in this section are presented “in the light most favorable to
[him].” United States v. Magnesium Corp. of Am., 616 F.3d 1129, 1136 (10th Cir.
2010).
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bargaining agreement between BNSF and his union and, following an arbitration
hearing, was reinstated to his position in April 2001. Mr. Hysten then sued BNSF
in Kansas state court on May 25, 2001, alleging that he had been wrongfully
discharged under Kansas common law for exercising his FELA rights. The action
was removed to federal district court, where the court dismissed the lawsuit for
failure to state a claim, concluding that Kansas would not recognize the tort of
retaliatory discharge based upon an employee’s exercise of his FELA rights. See
Hysten v. Burlington N. Santa Fe Ry. Co., 196 F. Supp. 2d 1162, 1169–70 (D.
Kan. 2002), rev’d, 98 F. App’x 764 (10th Cir. 2004). Mr. Hysten appealed the
district court’s dismissal of his claim.
On appeal, we certified two questions of law to the Kansas Supreme Court:
(1) whether Kansas law recognizes an action in tort based on an employer’s
discharge of an employee in retaliation for the employee’s exercise of rights
under FELA; and, if so, (2) whether the remedies available to an aggrieved
employee under the Railway Labor Act (“RLA”) are adequate alternative
remedies such that this tort action is precluded. See Hysten v. Burlington N.
Santa Fe Ry. Co., 85 P.3d 1183 (Kan.), modified and superseded by, 108 P.3d 437(Kan. 2004). The Kansas Supreme Court answered our first question in the
affirmative and also concluded that the RLA failed to provide adequate alternative
remedies. Id. Consequently, we reversed the district court’s dismissal and
remanded Mr. Hysten’s case for further proceedings. See Hysten, 98 F. App’x
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764. On remand, the case proceeded to trial, and the jury entered a verdict in
favor of Mr. Hysten. BNSF appealed, and we upheld the jury’s verdict. See
Hysten v. Burlington N. Santa Fe Ry. Co., 530 F.3d 1260 (10th Cir. 2008).
In April 2002, Mr. Hysten and the other Topeka freight car mechanics were
transferred to BNSF’s Havelock facility in Lincoln, Nebraska. On March 22,
2006, Mr. Hysten argued with another carman, Dennis Latham, about some
misplaced tools. Mr. Hysten admits that he yelled and cussed at Mr. Latham, and
that he called him lazy. According to fellow co-worker Dennis Bliss, when Mr.
Latham left the area, Mr. Hysten said that he “ou[gh]t to follow [Mr. Latham]
outside and crack him.” Aplee. App. at 239 (Def.’s Ex. 26, Puhl Report, filed
Apr. 29, 2009). The incident was reported to BNSF General Foreman James Puhl,
who met with Mr. Hysten and union representative Bill Connour later that
morning. At the meeting, Mr. Hysten agreed that he may have acted improperly
toward Mr. Latham, admitted that he might have an anger problem, and indicated
that he would attempt to control his temper.
That same day, Mr. Hysten called another co-worker, Gary Roberts, a “cock
sucker.” Aplt. App. at 157 (Dep. of Larry D. Hysten, dated Dec. 18, 2008). Mr.
Roberts immediately reported the statement to Mr. Puhl. Not long thereafter, Mr.
Puhl received a report from Mr. Bliss concerning Mr. Hysten’s inappropriate
behavior outside of the workplace. Mr. Bliss reported that Mr. Hysten told him
that he had beaten his girlfriend, sending her to the emergency room, and stated
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that “what [he] need[ed] to do [was] cap the [bitch].” Aplee. App. at 238. Mr.
Bliss also reported that Mr. Hysten had told him that he had a record in Topeka
“for shooting a gun at someone,” and Mr. Bliss expressed concern that Mr.
Hysten “may be a hazard” and “needed to see a professional.” Id. Mr. Bliss
indicated that he thought that this information was confidential because Mr.
Hysten may have confided in him in his capacity as a member of Operation Stop,
a peer counseling program designed to address alcohol and substance abuse
among BNSF employees.
On the basis of the information supplied by Mr. Roberts and Mr. Bliss, Mr.
Puhl decided to formally investigate Mr. Hysten’s conduct. Mr. Puhl notified Mr.
Hysten on March 23, 2006, that Mr. Hysten was to attend an investigative hearing
on March 29, 2006, to develop the facts and circumstances surrounding his
alleged violation of BNSF Safety Rules S-28.6 and S-28.6.1, which provide,
respectively, that “[e]mployees must not be . . . [q]uarrelsome . . . or . . .
[d]iscourteous,” and “must refrain from using boisterous, profane, sexist, or
vulgar language.” Id. at 228–29 (Mech. Safety Rules & Policies, dated Oct. 30,
2005). Mr. Hysten’s union representative requested that the investigation be
postponed until April 3, 2006, and Mr. Puhl agreed. After consulting with the
outgoing lead general foreman, Mr. Puhl decided to withhold Mr. Hysten from
service pending resolution of the investigation.
On March 27, 2006, Mr. Hysten requested a waiver of the investigation
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pursuant to Rule 35 of the collective bargaining agreement, which allows an
employee to receive a lesser disciplinary sanction in lieu of an investigative
proceeding that could lead to dismissal. The following day, Mr. Puhl sent an e-
mail to Dane Freshour, director of human resources, and Jason Ringstad, director
of employee performance, seeking their advice regarding Mr. Hysten’s waiver
request. Mr. Puhl attached a copy of his investigation report to the e-mail. Mr.
Freshour then sent an e-mail to Steven Klug, assistant vice president of human
resources-operations, stating that he had discussed the case with Mr. Ringstad and
thought that the circumstances called for Mr. Hysten’s dismissal. He attached a
copy of Mr. Puhl’s report. Mr. Freshour’s e-mail also noted that Larry Stroik, a
senior general attorney for BNSF who had monitored BNSF’s appeal of Mr.
Hysten’s earlier FELA-retaliation lawsuit, had been “involved in the situation
when he was in Topeka.” Aplt. App. at 183. Mr. Ringstad responded shortly
thereafter, suggesting dismissal in light of Mr. Hysten’s “prior violence[-]related
incidents on and off property.” Id. at 182. Mr. Ringstad’s e-mail was also sent to
Mark Davison, the new general foreman III at the Havelock facility.
Mr. Freshour then sent an e-mail to Rebecca Stanosheck, manager of
human resources at BNSF’s Topeka facility, on March 28, 2006, asking her to
summarize Mr. Hysten’s disciplinary record in Topeka. Ms. Stanoschek
responded in an e-mail to Mr. Freshour on March 30, 2006, in which she noted
that Mr. Hysten had been the subject of a “formal investigation over an injury that
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resulted in his dismissal,” that he had filed “at least one lawsuit against [BNSF],”
and that he had “a history of conflict with coworkers and management,” although
none of the reported conflicts had occurred after 1999. Id. at 187. Mr. Freshour
forwarded this e-mail to Mr. Puhl, Mr. Klug, and Mr. Ringstad. That same day,
Mr. Puhl sent Mr. Hysten a letter informing him that his request for a waiver of
the investigative hearing had been denied.
On April 3, 2006, BNSF conducted the investigative hearing as planned.
Notwithstanding his earlier admission on March 22 that he might have acted
improperly toward Mr. Latham, Mr. Hysten testified that he had never threatened
anyone on the job. Mr. Bliss, however, reiterated his previous assertion that Mr.
Hysten had threatened to “crack” Mr. Latham, id. at 92 (Investigative Hr’g Tr.,
dated Apr. 3, 2006), and testified that Mr. Hysten became “threatening . . . when
he los[t] his anger” and seemed out of control, id. at 93. Mr. Latham explained
that he had not “really [felt] threatened” by Mr. Hysten’s conduct, but stated that
Mr. Hysten was known to “blow[] up. If he’s got something in his hand, he’ll
throw it. If there’s anything around to kick, he’s going to kick it.” Id. at 90. Mr.
Hysten’s request for a waiver of the investigation and Mr. Puhl’s denial of that
request were also read into the investigative hearing record.
Mr. Davison did not attend the investigative proceedings; however, as the
most senior manager at the Havelock facility, he was tasked with rendering the
disciplinary decision. After reviewing the investigation transcript, Mr. Davison
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sent Mr. Ringstad an e-mail asking for his disciplinary recommendation, in light
of the hearing transcript and Mr. Hysten’s employee record. On April 21, 2006,
Mr. Ringstad sent an e-mail to Mr. Freshour and Mr. Klug informing them that he
and Mr. Davison agreed that termination was the best course of action. “The
dismissal is not necessarily a sure win in arbitration,” the e-mail read, “but we’ll
have a good chance.” Id. at 184 (Davison E-mail, dated Apr. 21, 2006). Mr.
Ringstad’s e-mail reiterated that Mr. Hysten “had conduct issues outside the
workplace,” but noted that “they were not discussed during the investigation.” Id.
That same day, after receiving approval from Warren Cross, BNSF’s chief
mechanical officer, Mr. Davison sent Mr. Hysten a dismissal letter, which stated
that “[i]n assessing discipline, consideration was given to your personal record.”
Id. at 96 (Dismissal Letter, dated Apr. 21, 2006).
Mr. Hysten sued BNSF on April 18, 2008, claiming that he was wrongfully
discharged under Kansas common law in retaliation for exercising his rights
under FELA; that he was wrongfully discharged because of his race, in violation
of 42 U.S.C. § 1981; and that he received disparate treatment because of his race,
also in violation of 42 U.S.C. § 1981. BNSF then filed a motion for summary
judgment, which the district court granted on October 8, 2009. This appeal
followed.
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DISCUSSION
On appeal, Mr. Hysten challenges the district court’s order granting
summary judgment in BNSF’s favor, arguing that (1) he was wrongfully
discharged under Kansas common law in retaliation for exercising his rights
under FELA; and (2) he was wrongfully discharged because of his race, in
violation of 42 U.S.C. § 1981. 2 Having carefully reviewed both claims, we affirm
the district court’s decision in full.
I. Standard of Review
“We review the district court’s grant of summary judgment de novo, using
the same legal standard applied by the district court.” Apartment Inv. & Mgmt.
Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1192 (10th Cir. 2010). Under that
standard, summary judgment is proper if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). 3 When applying this standard, “[w]e examine the factual record
and draw all reasonable inferences in the light most favorable to the non-moving
2
Mr. Hysten has abandoned his claim of disparate treatment under 42
U.S.C. § 1981 on appeal.
3
The federal rules were recently amended, with changes effective
December 1, 2010. Pursuant to these amendments, the summary judgment
standard previously enumerated as subsection (c) of Rule 56 was moved to
subsection (a), and one word was changed from the previous version: genuine
“issue” became genuine “dispute.” Fed. R. Civ. P. 56 advisory committee’s note
(2010 Amendments). However, the “standard for granting summary judgment
remains unchanged.” Id.-9-
party.” City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
II. Wrongful Discharge in Retaliation for Exercising FELA Rights
Kansas’s employment-at-will doctrine generally permits employers to
terminate employees for good cause, no cause, or even wrong cause. Goodman v.
Wesley Med. Ctr., L.L.C., 78 P.3d 817, 821 (Kan. 2003). Kansas courts have
departed from the harshness of the employment-at-will doctrine for select public
policy purposes, and have recognized a “tort for retaliatory discharge based on an
injured worker’s exercise of his or her rights under FELA.” Hysten, 108 P.3d at
443–44. This “FELA exception . . . applies when an employer terminates an
employee who has reported an on-duty injury because of the possibility of FELA
liability, even though a FELA lawsuit has yet to be filed.” Hysten, 530 F.3d at
1268.
“Because evidence of retaliatory intent is frequently circumstantial in
nature, Kansas applies the familiar McDonnell Douglas burden-shifting
framework for analyzing retaliatory discharge claims.” Id. (citations omitted);
see also Sanjuan v. IBP, Inc., 275 F.3d 1290, 1294 (10th Cir. 2002) (citing
Rebarchek v. Farmers Coop. Elevator & Mercantile Ass’n, 35 P.3d 892, 898
(Kan. 2001)).
Under this framework, the plaintiff establishes a prima facie case
[of retaliation] by showing that: (1) he filed a claim under FELA,
or sustained an injury for which he might assert a future FELA
claim; (2) the employer had knowledge of the plaintiff’s FELA
claim or of the fact that he sustained a work-related injury for
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which he might file a FELA claim; (3) the employer terminated
the plaintiff’s employment; and (4) a causal connection exists
between the protected activity or injury and the termination.
Hysten, 530 F.3d at 1268. 4
Once a plaintiff makes this showing, the burden shifts to the employer to
articulate a legitimate, non-retaliatory reason for the termination. See Foster, 293
F.3d at 1193. If the employer articulates such a reason, the presumption of
discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 511 (1993). At that point, the plaintiff faces the full burden of
showing that the employer acted illegitimately, which he may satisfy by
demonstrating by a preponderance of the evidence that the employer’s proffered
reason is pretextual. Id.; see Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125
(10th Cir. 2005).
The district court found Mr. Hysten’s claim to be fatally flawed because:
(1) he failed to establish a prima facie case of retaliation; and (2) he did not offer
evidence demonstrating that BNSF’s proffered reason for termination was
4
Mr. Hysten claims that he must merely demonstrate that BNSF
decision-makers “were aware or should have been aware” of his prior FELA-
related claim in order to meet his burden of proof. Aplt. Opening Br. at 23. It is
true that the “knew or should have known” standard applies under Kansas
common law, and “charges an employer with knowledge of those facts concerning
an employee’s workplace injury reasonably available to the employer at the time.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1121–22 (10th Cir. 2001);
accord Foster v. Allied Signal, Inc., 293 F.3d 1187, 1193 (10th Cir. 2002). Thus,
insofar as Mr. Hysten suggests that he need only offer evidence that BNSF
decision-makers should have known that he previously exercised his rights under
FELA to prove his state law claim, he is correct.
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pretextual. We may uphold a district court’s judgment on any ground for which
there is a record to permit conclusions of law. See, e.g., United States v.
Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994). We conclude that Mr. Hysten
has failed to establish a triable dispute of material fact with respect to whether
BNSF’s proffered legitimate, non-retaliatory reason for his termination was
pretextual. We limit our analysis to the pretext ground of the district court’s
judgment, because it is a sufficient and appropriate basis upon which to rest our
decision.
Mr. Hysten does not dispute that BNSF has offered a legitimate, non-
retaliatory reason for his termination: specifically, his alleged threats of violence
in the workplace. The burden, as a result, rests with Mr. Hysten to offer evidence
showing that this explanation was “mere pretext.” See, e.g., Turner v. Pub. Serv.
Co., 563 F.3d 1136, 1142 (10th Cir. 2009). “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.”
Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004)
(alterations in original) (internal quotation marks omitted) (quoting Bullington v.
United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999), overruled on other
grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). “In
determining whether the proffered reason for a decision was pretextual, ‘we
examine the facts as they appear to the person making the decision.’” Watts v.
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City of Norman, 270 F.3d 1288, 1295 (10th Cir. 2001) (quoting Selenke v. Med.
Imaging of Colorado, 248 F.3d 1249, 1261 (10th Cir. 2001)). “An articulated
motivating reason is not converted into pretext merely because, with the benefit
of hindsight, it turned out to be poor business judgment.” McKnight v. Kimberly
Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998).
Mr. Hysten argues that six pieces of circumstantial evidence demonstrate
that BNSF’s proffered reason for dismissal—that is, Mr. Hysten’s threatening
conduct—was pretextual: (1) the dismissal letter’s statement that “consideration
was given to [Mr. Hysten’s] personal record”; (2) the allegedly false explanation
that BNSF gave for Mr. Hysten’s termination; (3) evidence that BNSF allegedly
acted contrary to its written rules and policies in dismissing Mr. Hysten; (4)
evidence that Mr. Hysten was allegedly treated differently from similarly situated
employees; (5) the allegedly inconsistent and contradictory reasons that BNSF has
given for Mr. Hysten’s dismissal; and (6) “disturbing procedural irregularities”
that allegedly occurred in the course of the investigation and at the investigative
hearing. Aplt. Opening Br. at 25–31. We consider each in turn.
A. Language in the Dismissal Letter
Mr. Hysten first argues that language in the dismissal letter—specifically,
the statement that “[i]n assessing discipline, consideration was given to your
personal record”—could lead a reasonable jury to conclude that BNSF’s
purported reason for dismissing Mr. Hysten was pretextual. Id. at 25 (quoting
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Aplt. App. at 96). More particularly, Mr. Hysten argues that the dismissal letter
clearly indicates that BNSF’s decision to terminate his employment was
influenced by his prior FELA-protected activity, as “[t]he only significant
disciplinary action listed in Mr. Hysten’s personal record is his dismissal on July
12, 1999 for ‘violation of rules . . . in connection with [personal injury] March
[sic] 1999.’” Id. (ellipses and fourth alteration in original) (quoting Aplt. App. at
102 (Emp. Tr., dated Apr. 5, 2006)).
Even assuming that Mr. Davison was aware that Mr. Hysten was previously
dismissed in connection with a personal injury, the statement in the dismissal
letter is insufficient to establish that Mr. Hysten’s violent threat was merely a
pretextual ground for his dismissal. Although Mr. Hysten’s personal record
includes the 1999 dismissal that precipitated his FELA claim, it also includes 120
total demerits, which Mr. Hysten received while employed by BNSF. Aplt. App.
at 102. There is no evidence in the record that the dismissal letter’s general
statement regarding Mr. Hysten’s “personal record” somehow refers to the 1999
injury-related dismissal, as opposed to the numerous other infractions for which
Mr. Hysten was disciplined. As such, Mr. Hysten offers nothing more than mere
conjecture that the reference to his “personal record” was meant to refer to the
1999 dismissal that led to his FELA-related claim.
Moreover, as the district court correctly noted, “it simply is an
unreasonable inference that Davison, who had nothing to do with the events that
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occurred in 1999 at a different location, retaliated against [Mr. Hysten] in 2006
due to this 1999 injury and dismissal.” Id. at 268 (Dist. Ct. Mem. & Order, filed
Oct. 8, 2009). This conclusion is consistent with our previous decisions, which
have found that changes in personnel and the passage of time mitigate against an
inference of retaliation. See, e.g., Metzler v. Fed. Home Loan Bank of Topeka,
464 F.3d 1164, 1175–76 (10th Cir. 2006) (“[W]e do not infer pretext from [an
employer’s] different treatment of [an employee] where the alleged different
treatment was inflicted by different supervisors . . . because any difference may
be the result of [a] different supervisor’s reactions.”); Anderson v. Coors Brewing
Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (“Unless the [adverse action] is very
closely connected in time to the protected activity, the plaintiff must rely on
additional evidence beyond temporal proximity . . . .”); Archuleta v. Colo. Dep’t
of Insts., Div. of Youth Servs., 936 F.2d 483, 487–88 (10th Cir. 1991) (“The
problems that arose after plaintiff’s reinstatement in 1980 occurred under
different supervisors and bore no apparent relationship to the charge of sex
discrimination.”). In the present case, Mr. Hysten’s allegations are undermined
by the seven years that elapsed between his FELA-related injury and his ultimate
dismissal, as well as the managerial changes that occurred during this time period.
B. False Explanation for Termination
Next, Mr. Hysten claims that pretext can be inferred from the allegedly
false explanation that BNSF offered for his termination—i.e., that Mr. Hysten
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threatened Mr. Latham with violence when he stated that he ought to “crack him.”
Aplee. App. at 239. Although it is true that “[i]n appropriate circumstances, the
trier of fact can reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose,” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), Mr. Hysten offers no
evidence indicating that BNSF’s explanation for his termination was given
disingenuously.
In determining whether a “false” explanation gives rise to an inference of
discrimination, we have previously noted that “[t]he 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.” Rivera, 365 F.3d at 924–25 (second and third alterations in original)
(emphasis added). Mr. Hysten’s contention that he “truthfully denied that he
made the threatening statement attributed to him,” Aplt. Opening Br. at 27,
therefore misses the point. It matters not whether Mr. Hysten actually made a
threatening statement—what matters is whether BNSF decision-makers believed
in good faith that he did. Mr. Hysten presents no evidence demonstrating that
either Mr. Davison or Mr. Cross (or, for that matter, Mr. Ringstad) did anything
other than read the transcript of the investigative hearing and honestly
conclude—as one reasonably might—that Mr. Hysten threatened another
employee with violence. Even assuming, arguendo, that Mr. Hysten did not make
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these threats, a reasonable person could have read the transcripts and concluded
that he did. Federal courts will not “act as a ‘super personnel department,’
second guessing employers’ honestly held (even if erroneous) business
judgments.” Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006)
(quoting Jones v. Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2003)). As Mr.
Hysten presents no evidence that eliminates—or even limits—the possibility that
BNSF’s explanation was honestly given, his unsubstantiated allegation that this
explanation was false cannot serve as evidence of pretext.
C. Conduct Contrary to Written Policy
A jury may also infer pretext from “evidence that the defendant acted
contrary to a written company policy prescribing the action to be taken by the
defendant under the circumstances.” Kendrick v. Penske Transp. Servs. Inc., 220
F.3d 1220, 1230 (10th Cir. 2000). Mr. Hysten argues that BNSF contravened its
written policies by (1) reading his waiver request into the record at the
investigative hearing in violation of Rule 35 of the collective bargaining
agreement; and (2) terminating Mr. Hysten for behavior that does not fall among
the “dismiss[i]ble rule violations” set forth in BNSF’s Policy for Employee
Performance Accountability. Aplt. Opening Br. at 27.
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There is no question that BNSF violated Rule 35(f) of the collective
bargaining agreement, 5 which provides that an employee’s waiver request “shall
not be referred to nor cited by” either party in subsequent proceedings, when it
read Mr. Hysten’s request into the investigative hearing record. Aplt. App. at
147. However, “[t]he mere fact that an employer failed to follow its own internal
procedures does not necessarily suggest that the employer was motivated by
illegal discriminatory intent or that the substantive reasons given by the employer
5
Rule 35 states, in pertinent part:
(a) An employee in service more than sixty (60) days
will not be disciplined or dismissed until after a fair and
impartial investigation has been held . . . .
....
(f) The investigation provided for herein may be
waived by the employee in writing, in the presence of a
duly authorized representative. If the designated Carrier
Officer agrees to grant the request, the employee will be
advised of the discipline to be assessed prior to being
required to sign the request for waiver of formal
investigation form.
1. The investigation will not be waived unless the form
is signed by the employee under investigation, his duly
authorized representative, and the designated Carrier
Officer.
2. This procedure is entirely voluntary on the part of the
employee under charge.
3. If waiver is not granted, the request shall not be
referred to nor cited by either party during subsequent
handling.
Aplt. App. at 147.
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for its employment decision were pretextual.” Randle v. City of Aurora, 69 F.3d
441, 454 (10th Cir. 1995). In substance, Rule 35(f) merely prescribes that
reference shall not be made to an employee’s waiver request in a subsequent
investigative hearing; it says nothing about the procedural protocol for
terminating employees. Mr. Hysten offers no evidence of any connection between
BNSF’s breach of Rule 35(f) at his investigative hearing and BNSF’s decision to
terminate his employment. See Kendrick, 220 F.3d at 1230 (noting that pretext
may be shown “with evidence that the defendant acted contrary to a written
company policy prescribing the action to be taken by the defendant under the
circumstances” (emphasis added)); cf. Mohammed v. Callaway, 698 F.2d 395,
400–01 (10th Cir. 1983) (finding that an employer’s departure from employment
criteria listed in a job announcement so as to disadvantage a minority employee
seeking promotion was evidence of pretext). Nor does Mr. Hysten attempt to
explain how this procedural violation—which did not occur in the presence of the
BNSF decision-makers—is probative of discriminatory intent. BNSF’s failure to
comply with Rule 35(f) therefore has no bearing upon whether its explanation for
Mr. Hysten’s dismissal was pretextual. See Randle, 69 F.3d at 454 (concluding
that the employer’s failure to follow its own internal procedures was not
probative of discriminatory intent where the employer was “not offering its
procedures as a reason for its ultimate decision to promote” another employee
instead of the plaintiff).
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BNSF’s second allegedly impermissible action—terminating Mr. Hysten for
a supposedly non-dismissible offense—did not contravene the company’s written
policy in the first place. Mr. Hysten acknowledges that BNSF’s policy provides
that an employee may be dismissed for “[c]ausing serious altercation[s]” and
“[v]iolence in [the] workplace including possession of weapons,” Aplt. Opening
Br. at 28 (first and third alterations in original) (quoting Aplt. App. at 180 (Policy
for Emp. Performance Accountability App. C)) (internal quotation marks
omitted), but insists that the “violations set forth in Mr. Hysten’s dismissal
letter—his ‘quarrelsome, discourteous, threatening conduct and inappropriate
language’—are not included in the list of eleven dismiss[i]ble rule violations,” id.(citation omitted) (quoting Aplt. App. at 96). Mr. Hysten appears to argue that
his conduct is not covered by the workplace-violence rule because he merely
threatened violence, as opposed to having actually committed a violent act. If so,
he reads the rule much too narrowly.
BNSF’s policy does not specifically identify only acts of violence as
dismissible events. For example, it explicitly broadens the scope of the rule to
incorporate “possession of weapons.” Aplt. App. at 180. The BNSF policy does
not define this phrase. However, even if we assume that possession of weapons
increases to some degree the risk that an act of violence will occur, compare
United States v. Serna, 435 F.3d 1046, 1047 (9th Cir. 2006) (“[W]e know that
possessing an object designed to be lethal does not alone pose a ‘serious potential
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risk’ of physical injury.” (quoting U.S. Sentencing Guidelines Manual
§ 4B1.2(a))), with United States v. Dillard, 214 F.3d 88, 93 (2d Cir. 2000) (“We
think it undeniable that possession of a gun gives rise to some risk that the gun
may be used in an act of violence.”), giving the language of the phrase its
ordinary and customary meaning, the “possession of weapons” does not itself
constitute an act of violence, see The New Oxford English Dictionary 1324 (2d
ed. 2005) (defining “possession” as “the state of having, owning, or controlling
something” (emphasis added)).
Consequently, the most reasonable reading of BNSF’s workplace violence
policy construes that policy as encompassing both violent acts and violence-
related conduct. As such, Mr. Hysten’s actions fell well within the scope of the
anti-violence policy, and BNSF fully complied with that policy when it decided to
terminate Mr. Hysten for threatening Mr. Latham with violence.
D. Treatment of Similarly Situated Employees
A plaintiff may also establish that an employer’s asserted reason for
termination was pretextual by presenting “evidence that [the plaintiff] was treated
differently from other similarly situated employees who violated work rules of
comparable seriousness.” Kendrick, 220 F.3d at 1230. In the present case, Mr.
Hysten argues that he was the only Havelock facility employee who was actually
disciplined for violating Safety Rules S-28.6 and S-28.6.1 from 2004 to the
present, despite the fact that “angry threats made by employees in the Havelock
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facility were not uncommon,” and a physical altercation between other employees
had gone undisciplined. Aplt. Opening Br. at 28. Mr. Hysten also asserts that
another employee had reported an incident involving “yelling and cussing” to his
supervisors, but that BNSF officials had failed to pursue an investigation or take
disciplinary action. Id. at 29 (internal quotation marks omitted).
In this circuit, we consider individuals to be similarly situated “when they
deal with the same supervisor, are subjected to the same standards governing
performance evaluation and discipline, and have engaged in conduct of
‘comparable seriousness.’” EEOC v. PVNF, L.L.C., (10th Cir. 2007) (quoting
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006)); see also Rivera,
365 F.3d at 922 (“Comparison of one disciplinary action with another ordinarily
is relevant only to show the bias of the person who decided upon the disciplinary
action.”); Kendrick, 220 F.3d at 1233 (“Different supervisors will inevitably react
differently to employee insubordination.”). In developing this standard, we have
noted that differences in how different employees are treated “may be explained
by the fact that discipline was administered by different supervisors, or that the
events occurred at different times when the company’s attitudes toward certain
infractions were different, or that the individualized circumstances surrounding
the infractions offered some mitigation for the infractions less severely
punished . . . .” EEOC v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992)
(citations omitted). In some cases, there may be “no rational explanation for the
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differential treatment” between employees “other than the inevitability that
human relationships cannot be structured with mathematical precision, and even
that explanation does not compel the conclusion that the defendant was acting
with a secret, illegal discriminatory motive.” Id.In the present case, the dissimilarities between the allegedly comparable
situations that Mr. Hysten offers and his own dismissal are too great to warrant an
inference of discriminatory animus. First, regarding Mr. Hysten’s generalized
claim that angry threats by Havelock employees were not uncommon, he offers
absolutely no evidence describing the nature of these threats, whether supervisors
were aware of the threats, whether the employees who made these threats had the
same supervisor as Mr. Hysten, or when these threats were made.
Second, unlike the present case, the unpunished physical altercation that
Mr. Hysten cites was never actually reported to company supervisors. Mr. Puhl
testified that he had only heard rumors about the incident, and indicated that he
believed that it had occurred off of company property. Finally, while another
BNSF employee did testify that he felt threatened by the yelling and cussing
incident to which Mr. Hysten refers, the record contains no evidence that he was
actually threatened, or that he was threatened with violence. Furthermore, this
alleged threat was purportedly reported to a supervisor other than Mr. Puhl. This
supervisor was not even employed at the Havelock facility at the time of the
incident between Mr. Hysten and Mr. Latham. Moreover, this incident occurred
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more than a year-and-a-half after Mr. Hysten threatened Mr. Latham. Thus, Mr.
Hysten has presented absolutely no evidence from which a reasonable jury could
conclude that he was treated differently from similarly situated BNSF employees
who made comparable threats of violence.
E. Inconsistencies and Contradictions in BNSF’s Explanation for
Mr. Hysten’s Termination
We have also recognized that pretext can be inferred from “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action.” Morgan v. Hilti, 108 F.3d
1319, 1323 (10th Cir. 1997); see also Muller v. Eby Realty Grp., LLC, 396 F.3d
1105, 1111 (10th Cir. 2005). Mr. Hysten argues that the explanation that BNSF
gave for his termination in its interrogatory responses contradicts the explanation
proffered in its dismissal letter, and that the testimony of BNSF decision-makers
conflicts with language in the dismissal letter and BNSF’s interrogatory
responses.
Some of Mr. Hysten’s allegations would appear to be superficially correct.
First, BNSF explained in its interrogatory responses that Mr. Hysten was
dismissed “for violating BNSF’s anti-violence policy by threatening the use of
violence,” Aplt. App. at 199 (Def.’s Answer to Pl.’s First Set of Interrogs., dated
Jan. 19, 2009), while the dismissal letter states that he was dismissed for violating
BNSF Safety Rules S-28.6 and S-28.6.1, which proscribe “[q]uarrelsome . . .
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or . . . [d]iscourteous” conduct and “boisterous, profane, sexist, or vulgar
language,” not threats of violence, Aplee. App. at 228–29. Second, BNSF’s
interrogatory responses indicate that Mr. Hysten was dismissed for committing a
second offense, but the record contains no evidence that he had committed an act
of violence prior to his altercation with Mr. Latham. Third, one BNSF decision-
maker, Mr. Davison, testified that Mr. Hysten’s personal record had not
influenced his decision, yet the dismissal letter specifically references Mr.
Hysten’s personal record.
Minor inconsistencies, however, do not constitute evidence of pretext;
rather, only those inconsistencies that allow “a reasonable factfinder [to]
rationally find [the defendant’s proffered reason] unworthy of credence and hence
infer that the employer did not act for the asserted non-discriminatory reasons”
are probative of pretext. Morgan, 108 F.3d at 1323. Here, while BNSF’s
interrogatory responses and the testimony of one of its decision-makers may not
have comported precisely with some of the language in the dismissal letter,
BNSF’s explanation for Mr. Hysten’s dismissal has remained consistent. The
dismissal letter notes that Mr. Hysten was terminated on account of his
“threatening conduct and inappropriate language on March 22, 2006,” Aplt. App.
at 96 (emphasis added), and BNSF’s interrogatory responses similarly explain
that Mr. Hysten was dismissed for “threatening the use of violence,” id. at 199.
This explanation was reinforced by Mr. Davison, who testified that he interpreted
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Safety Rules S-28.6 and S-28.6.1—which he believed that Mr. Hysten had
violated—as proscribing “threatening behavior.” Aplee App. at 16–17 (Dep. of
Mark Davison, dated Feb. 25, 2009).
Mr. Hysten argues that Mr. Davison’s testimony that he did not refer to the
policy on workplace violence in assessing discipline against Mr. Hysten, Aplt.
App. at 166, contradicts BNSF’s statement in its interrogatory responses that Mr.
Hysten was “dismissed for violating BNSF’s anti-violence policy,” id. at 199.
However, regardless of whether Mr. Davison knew that Mr. Hysten had violated
BNSF’s anti-violence rules, his reason for dismissing Mr. Hysten—his
threatening conduct—is the very same reason cited in BNSF’s dismissal letter and
in its interrogatory responses. To the extent that any minor inconsistencies arise,
they are overshadowed by BNSF’s repeated assertions that Mr. Hysten was
terminated for threatening a co-worker with violence. As such, these
inconsistencies would not cause a rational factfinder to discount the legitimacy of
BNSF’s non-retaliatory explanation for Mr. Hysten’s dismissal.
F. Disturbing Procedural Irregularity
Finally, Mr. Hysten offers BNSF’s supposed “deviations from normal
company procedure” as evidence of the company’s allegedly pretextual motives.
Aplt. Opening Br. at 30 (quoting Doebele v. Sprint/United Mgmt. Co., 342 F.3d
1117, 1138 n.11 (10th Cir. 2003)) (internal quotation marks omitted). Mr. Hysten
argues that BNSF’s decision-makers “relied upon confidential information which
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was improperly disclosed by Mr. Bliss”—i.e., Mr. Hysten’s alleged problems with
his girlfriend, id., and also deprived him of a “fair and impartial investigation” by
failing to afford him an opportunity to rebut Mr. Bliss’s allegations at the
investigative hearing, id. at 31 (internal quotation marks omitted).
“We have previously held that disturbing procedural irregularities
surrounding an adverse employment action may demonstrate that an employer’s
proffered nondiscriminatory business reason is pretextual.” Timmerman v. U.S.
Bank, N.A., 483 F.3d 1106, 1122 (10th Cir. 2007). However, “[t]he mere fact that
an employer failed to follow its own internal procedures does not necessarily
suggest that the substantive reasons given by the employer for its employment
decision were pretextual.” Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1222
(10th Cir. 2007) (alteration omitted) (internal quotation marks omitted). First of
all, it is not clear that Mr. Bliss’s disclosure violated BNSF procedure. Mr.
Hysten claims that he confided in Mr. Bliss in his capacity as an Operation Stop
team member, and that the substance of that conversation must therefore remain
confidential. As the district court correctly noted, however, Mr. Hysten himself
testified that Operation Stop’s confidentiality policy pertains only to statements
regarding drug or alcohol abuse. The statements that Mr. Bliss relayed to Mr.
Puhl made no reference to drugs or alcohol, nor is there any evidence in the
record that Mr. Hysten suffered from a drug or alcohol problem. As such, it is
highly unlikely that those statements were confidential, such that their disclosure
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violated BNSF policy and would thereby lend support for Mr. Hysten’s contention
of pretext. See Matthews v. Euronet Worldwide, Inc., 271 F. App’x 770, 775
(10th Cir. 2008) (concluding that an employer’s failure to document an
employee’s performance problem did not support the employee’s pretext claim
where company policy did not expressly require written documentation to support
a disciplinary action); Estate of Daramola v. Coastal Mart, Inc., 170 F. App’x
536, 545 (10th Cir. 2006) (refusing to credit plaintiff’s argument that his
employer’s motivations were pretextual where he failed to establish that his
employer actually deviated from company policy).
Moreover, “the standard for establishing pretext requires evidence of not
just any procedural shortfall, but of a ‘disturbing procedural irregularity,’”
Cooper v. Wal-Mart Stores, Inc., 296 F. App’x 686, 696 (10th Cir. 2008)
(emphasis added) (quoting Timmerman, 483 F.3d at 1122), “often exemplified by
an employer’s ‘falsifying or manipulating of relevant criteria,’” id. (quoting
Plotke v. White, 405 F.3d 1092, 1104 (10th Cir. 2005)). Even assuming,
arguendo, that BNSF did violate company procedure in relying upon the
“confidential” information that Mr. Bliss disclosed to Mr. Puhl, this falls far short
of the “disturbing procedural irregularity” benchmark. For example, the record
contains no evidence that BNSF decision-makers falsified reports of Mr. Hysten’s
misconduct or manipulated company rules, such that Mr. Hysten was improperly
found guilty of misconduct. Cf. Plotke, 405 F.3d at 1104–05 (finding that an
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employer’s fabrication of a memorandum following an employee’s dismissal
raised a genuine dispute of material fact as to the employer’s motivation for the
dismissal); see also Maughan v. Alaska Airlines, Inc., 281 F. App’x 803, 808
(10th Cir. 2008) (concluding that an employer’s pretextual motivation could be
inferred from a poor performance review that was added after the employee was
terminated).
Mr. Hysten’s contention that BNSF deviated from the collective bargaining
agreement when it denied him the opportunity to rebut Mr. Bliss’s allegations is
equally unpersuasive. Even assuming, arguendo, that BNSF did violate the terms
of the collective bargaining agreement, we have previously held that an
employer’s refusal to allow an employee to challenge the allegations against him
does not amount to a disturbing procedural irregularity, even where that refusal is
technically contrary to company procedure. See Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1119 (10th Cir. 2007) (concluding that an employer’s failure to
allow an employee to respond to a customer complaint over which she was
dismissed did not “constitute[] a ‘disturbing procedural irregularity’ sufficient to
prove pretext,” even though the company’s written policy proscribed terminating
an employee without seeking the employee’s response to a complaint).
Moreover, an employee’s mere allegation that his employer deviated from
company policy is insufficient to prove pretext; rather, the employee must present
evidence that the employer believed that a relevant company policy existed, and
-29-
chose to deviate from the policy in spite of that belief. See Cooper, 296 F. App’x
at 696 (finding that the employer’s failure to “seek out the employee’s side of the
story” was contrary to company policy, but did not amount to a “disturbing
procedural irregularity” where the employee failed to present evidence that the
employer believed that its policy required it to obtain the employee’s side of the
story); Berry, 490 F.3d at 1222 (stating that if the “decisionmakers did not believe
a rigid policy existed,” their mistake in failing to follow it does not show pretext).
Mr. Hysten offers no evidence of any BNSF procedure that affords employees the
opportunity to challenge the evidence against them, nor has he presented any
evidence that BNSF believed that such a policy existed. As such, Mr. Hysten is
unable to show pretext based upon BNSF’s purported deviation from its alleged
policy regarding these matters.
In sum, none of the six pieces of circumstantial evidence that Mr. Hysten
presents raises a genuine dispute of material fact as to whether BNSF’s
explanation for Mr. Hysten’s termination—that he threatened a co-worker with
violence—was merely pretext for a retaliatory dismissal. Even viewed in the
aggregate, this evidence provides no basis for us to call into question the
legitimacy of BNSF’s motives. We therefore conclude that Mr. Hysten has failed
to establish that BNSF’s legitimate, non-retaliatory reason for terminating him
was merely pretextual, and affirm the district court’s grant of summary judgment
in BNSF’s favor on this basis. See Sandoval, 29 F.3d at 542 n.6 (10th Cir. 1994).
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III. Wrongful Discharge Because of Race
Mr. Hysten also argues that he was wrongfully dismissed from his position
at BNSF on account of his race (i.e., African-American), in violation of 42 U.S.C.
§ 1981. As we have previously observed, Section 1981—which guarantees “[a]ll
persons within the jurisdiction of the United States . . . the same right in every
State and Territory to make and enforce contracts . . . as is enjoyed by white
citizens”—undisputedly applies to the employment-at-will relationship, and
supports an employee’s wrongful discharge claim. 42 U.S.C. § 1981 (1991); see
Perry v. Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999). In asserting such a
claim, an employee may proceed under either a “mixed-motives” theory, under
which the employee must demonstrate that the employment decision “was the
product of a mixture of legitimate and illegitimate motives,” or a “pretext” theory,
under which the essential inquiry is whether “the employer’s stated reason for its
decision is pretextual.” Price Waterhouse v. Hopkins, 490 U.S. 228, 246 & n.12,
247 (1989), superseded by statute on other grounds, Civil Rights Act of 1991,
Pub. L. No. 102-166, § 107(a), 105 Stat. 1074. 6 Mr. Hysten seeks to recover
under a “mixed-motives” theory.
6
Although Mr. Hysten brings this claim under § 1981, and Price
Waterhouse was decided under Title VII, we have previously held that “in racial
discrimination suits, the elements of a plaintiff’s case are the same . . . whether
that case is brought under §§ 1981 or 1983 or Title VII.” Drake v. City of Fort
Collins, 927 F.2d 1156, 1162 (10th Cir. 1991).
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In order to establish his mixed-motives case, a plaintiff must show that “an
impermissible motive played a motivating part in an adverse employment
decision.” Id. at 250. To meet his burden, Mr. Hysten again offers six pieces of
circumstantial evidence, five of which he also presented in support of his FELA
wrongful discharge claim. For the reasons discussed above, those five pieces of
evidence fail to demonstrate that BNSF’s decision was impermissibly motivated.
See supra Part II(B)–(E); Price Waterhouse, 490 U.S. at 450. As a sixth and final
piece of evidence, Mr. Hysten also offers the allegedly “racially derogatory
comments” that Mr. Latham and Mr. Bliss purportedly made to him while he was
employed at BNSF. Aplt. Opening Br. at 35. This evidence is equally
unpersuasive.
Mr. Hysten points to two particular comments as evidence of BNSF’s racial
bias: (1) Mr. Latham’s statement that Mr. Hysten “was not supposed to talk to
white people that way,” Aplt. App. at 155; and (2) Mr. Bliss’s remarks expressing
amusement at negative statements or actions that others directed at African-
Americans or other racial minorities, see id. at 159–60. In determining whether
these comments constitute evidence of discriminatory animus, we are guided by
the principle that evidence of discrimination in the decision-making process must
be distinguished from “stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process.” Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th Cir.
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2000) (quoting Fast v. S. Union Co., 149 F.3d 885, 890 (8th Cir. 1998)) (internal
quotation marks omitted); see Cuenca v. Univ. of Kan., 101 F. App’x 782, 788
(10th Cir. 2004) (“In general, statements by a non-decisionmaker . . . cannot be
used to establish that a decision was tainted by discriminatory animus.”). By Mr.
Hysten’s own admission, neither Mr. Latham nor Mr. Bliss are decision-makers;
thus, even if we were to credit this evidence of alleged racial bias, these
comments alone are insufficient to impute a discriminatory animus to BNSF.
Additionally, while we recognize the theory of the “cat’s paw,” 7 under which an
employee can establish employer discrimination where certain biased
subordinates have directly affected the actions of an unbiased decision-maker,
7
The Supreme Court has recently discussed the genesis of the theory.
See Staub v. Proctor Hosp., 562 U.S. __ (2011), 2011 WL 691244, at *3 n.1
(Mar. 1, 2011) (“The term ‘cat’s paw’ derives from a fable conceived by Aesop,
put into verse by La Fontaine in 1679, and injected into United States
employment discrimination law by [U.S. Circuit Judge Richard] Posner in
1990.”). Although Mr. Hysten does not explicitly argue that BNSF decision-
makers were liable pursuant to the “cat’s paw” theory, he does cite McCue v.
State of Kan. Dep’t of Human Res., 165 F.3d 784 (10th Cir. 1999), for the
proposition that an employer cannot be “reward[ed] [for its] deceitfulness by
insulating an organization from liability for retaliatory discharge where the
decision-maker is kept ignorant of its subordinates’ scheme.” Aplt. Opening Br.
at 35 (quoting McCue, 165 F.3d at 788). Though this proposition is correct, it
does not help Mr. Hysten’s case. There is no evidence in the record that Mr.
Bliss or Mr. Latham in fact schemed to effect Mr. Hysten’s dismissal. Nor are we
under the mistaken impression that BNSF could insulate itself from liability by
merely serving as the “cat’s paw” for the biased motivations of its subordinates.
See, e.g., Young, 468 F.3d at 1253 (noting that discriminatory intent can be
imputed to supervisors where the biased subordinate “uses the supervisors as a
cat’s paw to effect his or her own biased designs”). As such, Mr. Hysten’s
reliance upon McCue is misplaced.
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Mr. Hysten offers no evidence that the actions of Mr. Bliss or Mr. Latham were a
proximate cause of his termination. See Staub, 2011 WL 691244, at *6 (“[I]f a
[subordinate] supervisor performs an act motivated by [discriminatory] animus
that is intended by the supervisor to cause an adverse employment action, and if
that act is a proximate cause of the ultimate employment action, then the
employer is liable . . . .”); EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,
450 F.3d 476, 486–88 (10th Cir. 2006) (“[T]he issue is whether the biased
subordinate’s discriminatory reports, recommendation, or other actions caused the
adverse employment action.” (emphasis added)); see also Young, 468 F.3d at
1253 (“In order to succeed under [the cat’s paw] theory . . . a plaintiff must show
that the allegedly biased [subordinate’s] discriminatory reports, recommendation,
or other actions were the proximate cause of the adverse employment action.”
(emphasis added)).
These two men were Mr. Hysten’s co-workers; they had absolutely no
supervisory authority or influence with respect to Mr. Hysten, including authority
or influence relating to employee discipline. Furthermore, there is no indication
in the record that the men intended for their actions to result in Mr. Hysten’s
dismissal. 8 Accordingly, we are confident that the actions of Mr. Bliss and Mr.
8
In this regard, we note that Mr. Latham’s testimony at the
investigative hearing was hardly probative of Mr. Hysten’s guilt; in fact, Mr.
Latham stated that he did not “really feel threatened” by Mr. Hysten’s conduct.
Aplt. App. at 90. Presumably, had Mr. Latham actually sought Mr. Hysten’s
(continued...)
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Latham could not be deemed a proximate cause of Mr. Hysten’s termination. Cf.
Staub, 2011 WL 691244, at *6 (“The employer is at fault because one of its
agents committed an action based on discriminatory animus that was intended to
cause, and did in fact cause, an adverse employment decision.”). In sum, we
conclude that Mr. Hysten has failed to present sufficient evidence that BNSF’s
termination decision was impermissibly motivated by racial bias.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting
summary judgment in favor of BNSF.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
8
(...continued)
dismissal, he would have seized the opportunity to incriminate Mr. Hysten when
he testified.
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