Ibrahim v. Alliance for Sustainable Nrg.

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 20, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
DR. ERFAN IBRAHIM,
Plaintiff - Appellant,
v. No. 20-1131
ALLIANCE FOR SUSTAINABLE
ENERGY, LLC,
Defendant - Appellee.
___________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:18-CV-02612-RM-NRN)
_________________________________
David J. Meretta, Miller & Law, Littleton, Colorado, on behalf of Plaintiff-
Appellant.
Christopher L. Ottele, Husch Blackwell (Ashley W. Jordaan & Dana
Dobbins, with him on the briefs), Denver, Colorado, on behalf of
Defendant-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit
Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
Dr. Erfan Ibrahim is a Muslim man of Pakistani descent who served
as an executive at Alliance for Sustainable Energy until he was fired.
Alliance attributed the firing to Dr. Ibrahim’s inappropriate comments to
two women; Dr. Ibrahim disagrees, attributing the firing to discrimination
based on his race, religion, and gender.
Alliance urged summary judgment, arguing that Dr. Ibrahim had
lacked evidence of discrimination. In response, Dr. Ibrahim pointed to
Alliance’s decision not to fire another executive (C.B.) accused of sexual
harassment. The district court rejected the comparison, pointing to
differences between the conduct of Dr. Ibrahim and C.B. In our view,
however, these differences involved matters for the factfinder. So we
reverse the award of summary judgment on the claim of race
discrimination.
But Dr. Ibrahim and C.B. were both male, and Dr. Ibrahim never
identified C.B.’s religion. So we affirm the award of summary judgment on
the claims of discrimination based on religion and gender. 1
I. Dr. Ibrahim is fired by Alliance.
While working for Alliance, Dr. Ibrahim texted Ms. Heather Newell,
who was an administrative assistant. In the text, Dr. Ibrahim offered to
1
Dr. Ibrahim also raised a claim of discrimination based on national
origin. But in his opening brief, Dr. Ibrahim didn’t make an argument
about discrimination involving national origin. Because Dr. Ibrahim did
not present an appellate argument about national origin, he has waived this
claim and we need not address it. See Commonwealth Prop. Advocates,
LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1199–1200
(10th Cir. 2011) (deeming a claim waived based on insufficient
development in the appellant’s opening brief).
2
help Ms. Newell pay for a rental car. A few weeks later, Dr. Ibrahim
invited Ms. Newell to a movie, stating that he didn’t have a significant
other. Ms. Newell declined, stating that she thought that it would be
inappropriate for them to see a movie together or for him to pay for her
rental car.
After Ms. Newell declined, she expressed concern to her supervisor,
who discussed the incident with Dr. Ibrahim’s supervisor (Mr. Juan
Torres). Mr. Torres told Dr. Ibrahim to be careful because of the
sensitivities from his authority over Ms. Newell. According to Dr. Ibrahim,
the conversation was casual and Mr. Torres simply recommended that Dr.
Ibrahim move on from the incident.
Within two weeks, Dr. Ibrahim attended a reception with members of
a visiting delegation from the United Kingdom. At the reception, Dr.
Ibrahim told a female delegate, Ms. Pauline Wood, that he had gotten a
positive vibe from her. Later in the conversation, Dr. Ibrahim asked Ms.
Wood how she had dealt with men in the manufacturing sector who did not
take her seriously “as an attractive, young female.” Weeks later, an official
at the U.K. consulate expressed concern to Mr. Torres about Dr. Ibrahim’s
comments.
After learning of the incident, Mr. Torres asked Dr. Ibrahim about
his conversation with Ms. Wood. Dr. Ibrahim confirmed that he had made
the comments and said that he saw nothing wrong with them. Alliance
3
immediately put Dr. Ibrahim on paid administrative leave and then fired
him, stating that his comments to Ms. Newell and Ms. Wood showed a lack
of professionalism and judgment. Dr. Ibrahim sued under Title VII of the
Civil Rights Act of 1964 .
II. We conduct de novo review on the availability of summary
judgment.
We conduct de novo review and uphold summary judgment only in
the absence of a genuine dispute of material fact. Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). When deciding
whether a genuine factual dispute exists, we view the evidence in the light
most favorable to the party opposing summary judgment (Dr. Ibrahim). Id.III. A genuine factual dispute exists on whether Alliance
discriminated against Dr. Ibrahim based on his race.
Because Dr. Ibrahim relies on circumstantial evidence, we apply the
framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Kendrick, 220 F.3d at 1225. Under this framework, the inquiry involves
three steps:
1. Dr. Ibrahim must present a prima facie case of discrimination.
2. If he makes this showing, the burden shifts to Alliance to
provide a legitimate, nondiscriminatory reason for the firing.
3. If Alliance provides a legitimate, nondiscriminatory reason, the
burden reverts to Dr. Ibrahim to show pretext.
Id. at 1226. In our view, Dr. Ibrahim satisfied his burdens on the first and
third steps for the claim involving race discrimination.
4
A. Dr. Ibrahim has presented a prima facie case of
discrimination based on race.
Dr. Ibrahim can present a prima facie case through evidence that
1. he belongs to a protected class,
2. he suffered an adverse employment action, and
3. the circumstances give rise to an inference of discrimination.
E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).
Alliance does not dispute Dr. Ibrahim’s membership in a protected
class or the existence of an adverse employment action. So we must
determine whether the circumstances give rise to an inference of
discrimination.
An inference of discrimination can arise from an employer’s
favoritism toward a similarly situated employee who is not part of the
protected class. Id. at 800–01. Employees are similarly situated when they
share a supervisor or decision-maker, must follow the same standards, and
engage in comparable conduct. Smothers v. Solvay Chemicals, Inc., 740
F.3d 530, 540 (10th Cir. 2014) (same decision-maker); PVNF, 487 F.3d
at 801 (listing the requirements).
Dr. Ibrahim argues that a factfinder could reasonably infer
discrimination based on Alliance’s treatment of a white male manager,
C.B. In the Fall of 2015, C.B. faced complaints by a female subordinate
about a pattern of sexual harassment and gender discrimination. Alliance
5
investigated and found that C.B. had yelled and cursed at a female
subordinate, exchanged sexual text messages with subordinates, asked a
subordinate to run a personal errand during work hours, and showed
favoritism in hiring. C.B. was put on administrative leave and required to
take management and leadership classes. But Alliance allowed C.B. to
return to work.
Dr. Ibrahim presented evidence that the same three individuals had
participated in the decisions to fire him and to issue only a warning to C.B.
So a factfinder could reasonably determine that the same decision-makers
had been involved.
Dr. Ibrahim also presented evidence that Alliance had accused him
and C.B. of violating the same policies. So a factfinder could reasonably
determine that the same standards had applied to Dr. Ibrahim and C.B.
Alliance concluded that both C.B. and Dr. Ibrahim had communicated
inappropriately with women, and a factfinder could reasonably regard
C.B.’s conduct as comparable to Dr. Ibrahim’s. See Elmore v. Capstan,
Inc., 58 F.3d 525, 530 (10th Cir. 1995) (stating that violations can be
comparably serious even if they involve different conduct or rules).
* * *
A reasonable factfinder could determine that (1) C.B. had been
similarly situated to Dr. Ibrahim and (2) Alliance had treated C.B. more
6
favorably. So Dr. Ibrahim has presented a prima facie case of
discrimination based on race. 2
B. Dr. Ibrahim has raised a genuine factual dispute on the
pretextual nature of Alliance’s explanation for the firing.
Alliance presented a legitimate, nondiscriminatory reason for firing
Dr. Ibrahim: inappropriate comments to two women. But Dr. Ibrahim
rebutted this explanation with evidence of
 greater leniency toward C.B. in similar circumstances and
 inadequacy in the investigation.
See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th
Cir. 2000) (stating that a plaintiff can show pretext through evidence of
better treatment toward a similarly situated, nonprotected employee who
violated rules of comparable seriousness); Smothers v. Solvay Chemicals,
Inc., 740 F.3d 530, 542 (10th Cir. 2014) (“A ‘failure to conduct what
appears to be a fair investigation’ of the violation that purportedly
prompted adverse action may support an inference of pretext.” (quoting
Trujillo v. PacifiCorp, 524 F.3d 1149, 1160 (10th Cir. 2008))).
2
In its response brief, Alliance argues that a prima facie case also
required Dr. Ibrahim to show that his position had not been eliminated. But
Alliance conceded in oral argument that this requirement does not apply
when the employer had fired an employee for unsatisfactory conduct rather
than elimination of the position. See Plotke v. White, 405 F.3d 1092, 1100
(10th Cir. 2005).
7
1. The factfinder could reasonably regard Dr. Ibrahim and
C.B. as similarly situated.
Determining the similarity of the situations is generally a fact
question. Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir.
2007). But Alliance argues that no reasonable factfinder could view C.B.
and Dr. Ibrahim as similarly situated because
 they had different jobs,
 Dr. Ibrahim committed a second violation after a warning and
C.B. didn’t, and
 Dr. Ibrahim stubbornly denied misbehavior and C.B. didn’t.
In assessing these arguments, we must view the evidence favorably to Dr.
Ibrahim. See Part II, above. Viewing the evidence this way, a factfinder
could reasonably determine that Dr. Ibrahim and C.B. had been similarly
situated.
The jobs were different, but a factfinder could reasonably view the
difference as immaterial. When C.B. was disciplined, he was a group
manager. Group managers report to center directors, and Dr. Ibrahim was
an acting center director. 3 Though the job titles differed, a factfinder could
also consider the two employees’ responsibilities and qualifications. See
Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th
Cir. 2018) (considering job responsibilities and qualifications and
3
He also served as a research advisor for Alliance.
8
discounting the job titles in determining whether employees had been
similarly situated). The responsibilities for group managers and acting
center directors included supervision of others.
Alliance insists that C.B. was a “lower-level manager,” but does not
cite any supporting evidence. Appellee’s Resp. Br. at 28. Despite the
difference in status, both C.B. and Dr. Ibrahim acted as supervisors and
bore responsibility as executive managers.
Given their shared status as executive managers, the factfinder could
reasonably consider any difference in the jobs as immaterial. Alliance
determined that both individuals had violated the same policies, so the
difference in job titles could mean little. See Coleman v. Donahoe, 667
F.3d 835, 848–49 (7th Cir. 2012). And Alliance has not presented evidence
of a general practice of greater leniency to group managers than to acting
center directors. A factfinder could thus reasonably conclude that Dr.
Ibrahim and C.B. had been similarly situated despite the different job
titles.
Alliance also argues that C.B.
 stopped behaving inappropriately after being warned and Dr.
Ibrahim didn’t and
 deserved greater leniency because C.B. took responsibility for
his behavior and Dr. Ibrahim didn’t.
A factfinder could reasonably reject these arguments.
9
For example, a factfinder could reasonably regard Dr. Ibrahim’s
reaction as similar to C.B.’s. After investigating the complaint against
C.B., Alliance presented him with a draft of the findings and allowed him
to comment. C.B. took advantage of the opportunity and expressed
“complete disagreement with [the] findings and consequences.”
Appellant’s App’x vol. 3, at 527. Alliance then revised the report, and C.B.
admitted that he had lost his temper with a subordinate. But Alliance took
a different course with Dr. Ibrahim, declining to give him a draft report or
even a written warning.
Alliance asserts that when C.B. was given his final version of the
warning, he accepted responsibility for his prior misconduct. But Alliance
provides no citations for this assertion. See, e.g., Appellee’s Resp. Br.
At 29 (omitting any citation for the assertion that C.B. “admitted his
mistakes”).
Dr. Ibrahim presents evidence that his conversation with Mr. Torres
was friendly and casual, that he received no written or verbal warning, that
Mr. Torres never suggested a policy violation, and that Mr. Torres simply
asked Dr. Ibrahim not to discuss the issue with Ms. Newell or make similar
offers to other staff members. For example, Dr. Ibrahim states under oath:
Mr. Torres conceded to me during the meeting that there was no
Alliance policy that had been violated. I received no written
warning of any kind from Alliance Management or its HR
Department in connection with my communications with Ms.
Newell. Contrary to Alliance’s recent assertion, Mr. Torres did
10
not describe our meeting as a “verbal warning.” He spoke in a
friendly tone and asked that I not extend such offers to
employees who worked under him, as I was a high-level
executive at the lab. He requested that I simply move on and not
approach Ms. Newell to discuss the matter further.
Appellant’s App’x vol. 2, at 195.
Mr. Torres provides a similar description of the meeting, stating that
he recommended to Dr. Ibrahim that he avoid a social relationship with
Ms. Newell. Id. at 243–44. And Ms. Newell’s supervisor acknowledged
that Mr. Torres had “played down” the incident and remarked that notation
of “this [incident] was a bit extreme.” Id. at 290. In contrast, C.B. received
a document expressly warning of additional discipline, including
termination, if he again behaved inappropriately. 4
Alliance describes Mr. Torres’s statement to Dr. Ibrahim as a
warning. But Mr. Torres characterized his statement as a recommendation
and admitted that he hadn’t mentioned the possibility of termination. Id.
4
Alliance said to C.B.:
CONSEQUENCES
This is a formal warning that if there is not immediate and
sustained improvement in your behavior as discussed above, or
if there are any other incidents of inappropriate behavior, you
may be subject to further disciplinary action, up to and including
termination. If there are no further incidences, this written
warning will be removed from your personnel file one year from
issuance.
Appellant’s App’x vol. 3, at 529.
11
at 243–44. Given this characterization, the factfinder could reasonably
determine that Mr. Torres’s statement had not constituted a warning.
Even if we were to characterize Mr. Torres’s statement as a warning,
a factfinder could also reasonably determine that Dr. Ibrahim had not
repeated the conduct. Mr. Torres testified that he had told Dr. Ibrahim to
be careful about his “social interactions, especially with direct reports,”
because he needed to set “an example for how to interact with other staff”
to avoid a perception of favoritism. Id. at 243. But Ms. Wood did not work
for Alliance or report to Dr. Ibrahim.
Though Ms. Wood was not on Alliance’s staff, a factfinder could
view Dr. Ibrahim’s remarks to Ms. Wood as similar to the remarks made to
Ms. Newell. But when the evidence is viewed favorably to Dr. Ibrahim, a
factfinder could also focus on the differences. Dr. Ibrahim commented on
Ms. Wood’s appearance, but not on Ms. Newell’s. And Ms. Wood didn’t
work for Dr. Ibrahim, so there was no risk of misperception by a
subordinate or concern about favoritism among employees.
Alliance argues not only that C.B.’s circumstances had differed but
also that he had acknowledged his misbehavior and Dr. Ibrahim had
continued to deny misconduct even after his firing. This argument is
irrelevant because we consider only the facts available to Alliance when it
decided to fire Dr. Ibrahim. Watts v. City of Norman, 270 F.3d 1288, 1295
(10th Cir. 2001). At that time, Alliance knew only that Dr. Ibrahim had
12
defended the appropriateness of his behavior, which is also what C.B. had
done. So C.B.’s eventual acceptance of responsibility does not prevent a
finding that he and Dr. Ibrahim had been similarly situated.
2. Alliance’s limited investigation also suggests pretext.
A factfinder can reasonably infer pretext not only from greater
leniency to similarly situated employees but also from shortcomings in the
employer’s investigation. See p. 7, above. For example, a factfinder can
reasonably infer pretext from an employer’s failure to inquire into the
reasons for an employee’s behavior. Trujillo v. PacifiCorp, 524 F.3d 1149,
1159–60 (10th Cir. 2008).
Alliance’s investigation consisted solely of asking Dr. Ibrahim what
he had said to the member of the U.K. delegation. Dr. Ibrahim admitted
what he had said, and Alliance fired him. But Alliance never asked Dr.
Ibrahim why he had considered his comment to Ms. Wood as appropriate or
different from his texts to Ms. Newell. If Alliance had asked, it might have
learned that Dr. Ibrahim
 hadn’t regarded his statement to Ms. Wood as inappropriate or
flirtatious and
 hadn’t perceived Mr. Torres’s comments as a warning or a
recommendation about how to communicate with females
working for other companies.
Without Dr. Ibrahim’s explanation, Alliance inferred a lack of
professionalism and judgment. If Dr. Ibrahim had an opportunity to
13
explain, Alliance might have attributed the incident with Ms. Wood to Mr.
Torres’s casual approach rather than Dr. Ibrahim’s lack of professionalism
or judgment.
Despite giving Dr. Ibrahim no opportunity to explain, Alliance
allowed C.B. to submit a written response to a draft of his eventual
warning. A factfinder could reasonably infer discrimination from
Alliance’s failure to ask Dr. Ibrahim why he had considered his behavior
appropriate; C.B. had the opportunity not only to explain his behavior but
also to rebut the entirety of Alliance’s draft of its warning. Given the
difference in Alliance’s investigations as to C.B. and Dr. Ibrahim, the
factfinder could reasonably infer pretext.
* * *
Dr. Ibrahim has created a genuine dispute of material fact on greater
leniency toward C.B. and inadequacy in Alliance’s investigation. So we
reverse the award of summary judgment to Alliance on the claim involving
race discrimination. 5
5
Dr. Ibrahim also urges pretext through evidence of a previous
demotion, his feelings that he was not taken as seriously as white
colleagues, the lack of documentation about his firing, the use of
subjective criteria, and a deviation from Alliance’s policies. We need not
address these arguments.
14
IV. Dr. Ibrahim has not presented a prima facie case of religious
discrimination.
Dr. Ibrahim also claims discrimination based on his Muslim religion.
For this claim, Dr. Ibrahim again relies on circumstantial evidence, so he
must present a prima facie case of discrimination. See p. 4, above. For a
prima facie case, he must present evidence of his membership in a
protected class, an adverse employment action, and the existence of
circumstances giving rise to an inference of discrimination. E.E.O.C. v.
PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007); see p. 5, above.
Alliance does not dispute the first two elements, so we consider only
whether the circumstances of Dr. Ibrahim’s firing could create a reasonable
inference of discrimination based on religion. Dr. Ibrahim doesn’t identify
the religion of any comparators or show past complaints of religious
discrimination. Dr. Ibrahim instead relies on evidence that
 Alliance knew of his Muslim faith and
 he sensed religious stereotypes among other Alliance
executives.
But he presents no evidence of any statements or actions suggesting a
negative perception of Muslim employees. Given the lack of such evidence,
the district court properly awarded summary judgment to Alliance on the
claim of religious discrimination.
15
V. Dr. Ibrahim has not presented a prima facie case of gender
discrimination.
Dr. Ibrahim claims discrimination based not only on religion but also
on gender. Because Dr. Ibrahim is male, a prima facie case requires
stronger proof than when the discrimination targets a female. Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006).
For a prima facie showing, Dr. Ibrahim must show either
 circumstances supporting an inference that Alliance is “one of
those unusual employers who discriminates against” males or
 facts supporting an inference that a female would not have been
terminated.
Id. (quoting Notari v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir.
1992)). Dr. Ibrahim has not made either showing.
In fact, some of Dr. Ibrahim’s evidence suggests that Alliance did
not discriminate against men. For example, he presents evidence that
 Alliance’s leadership is largely male and
 his own job duties were divided between other men after his
firing.
Despite the evidence of division of his duties among other males, Dr.
Ibrahim points to three alleged comments by decisionmakers Mary Ann
Potter and Juan Torres:
1. women seemed to misinterpret Dr. Ibrahim’s comments,
2. “guys always say that they want to be friends when they want
more,” Appellant’s App’x vol. 2, at 183, and
16
3. Dr. Ibrahim’s reference to friendship with Ms. Newell could
have meant “friends with benefits,” Id. at 406.
Dr. Ibrahim speculates that these comments show that a female would
not have been fired. But Dr. Ibrahim does not identify a female employee
who engaged in similar conduct and obtained better treatment.
Ms. Potter and Mr. Torres speculated about why Dr. Ibrahim’s
statements might have created discomfort for Ms. Newell and Ms. Wood.
But Dr. Ibrahim presents no evidence that Alliance would have declined to
fire a female who had made comparable remarks to males. See Throupe v.
Univ. of Denver, 988 F.3d 1243, 1254–55 (10th Cir. 2021) (concluding that
an employer was entitled to summary judgment on a Title VII claim
because no evidence suggested that the employer would have provided
different treatment to a female professor maintaining a close personal
relationship with a male student). With no evidence of better treatment
toward female employees, Dr. Ibrahim hasn’t presented a prima facie case
of gender discrimination.
VI. Conclusion
Because Dr. Ibrahim has not presented evidence of discrimination
based on gender or religion, we uphold the award of summary judgment on
these claims. But Dr. Ibrahim has created a genuine dispute of material
fact on his claim of discrimination based on race. So we reverse the award
of summary judgment on that claim.
17