Webb v. Level 3 Communications, LLC

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

GEORGE WEBB,

Plaintiff-Appellant,
v. No. 05-1051
LEVEL 3 COMMUNICATIONS, (D.C. No. 03 MK 1995 (MJW))
LLC, (D. Colorado)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BRISCOE, HARTZ, and O’BRIEN , Circuit Judges.

Plaintiff George Webb appeals the district court’s order granting summary

judgment for defendant, Level 3 Communications, LLC (Level 3), on his claims

of age discrimination and retaliation in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621 et seq. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 I.

In 1997, at the age of fifty-five, Webb began working for a predecessor of

Level 3 as a Senior Network Developer. Though he experienced some

performance problems in 1998, overall Webb’s performance met or exceeded

expectations.

In 1999, Webb’s supervisor inquired as to his willingness to relocate to

Colorado. From the conversation, Webb inferred that moving to Colorado would

help him advance within the company. Webb asked about a relocation package

and believed that relocation expenses would be offered. During that

conversation, however, his supervisor did not promise reimbursement and warned:

“Don’t do anything you can’t get out of.” App. at 176. Despite the warning,

Webb and his wife put a deposit down on a home in Colorado. Early in 2000,

Level 3 informed Webb that there was no money in the budget for relocation

costs. Webb opted to proceed with the move, and in August 2000, he and his wife

moved to Colorado.

In June 2001, Level 3 informed Webb that his position was being

eliminated in a reduction in force (RIF) and that he would be terminated effective

September 9, 2001. Webb began to think that Level 3 was treating him less

favorably because of his age. Webb was saved from termination by Tim Leddy,

Vice President of Customer Operations, who hired Webb as a Program Manager

2
in the Customer Operations Department. Webb considered this to be a lateral

move. After the move, Level 3 did not provide Webb with plans for his future

development, something, he contends, the company routinely provided to younger

employees. Webb grew concerned that he “was being set up for the next RIF

when it came.” App. at 188.

On December 31, 2001, Webb’s job title changed to Program Manager II.

Between June 2001 and January 2003, Level 3 had several additional RIFs, but

Webb survived them.

On November 14, 2002, Webb met with Blake Isom, a Level 3 Human

Resources Department representative, for assistance in “finding opportunities that

could better utilize [his] experience and expertise . . . ” within the company. App.

at 166. During their meeting, Isom asked Webb, “Have you ever been

discriminated against?” Id. at 167. Webb responded, “[A] case could probably be

made for it.” Id. at 167, 188. Webb did not file a complaint under Level 3’s anti-

discrimination policy, and he did not request an investigation into his allegation

of discrimination. Isom did not investigate Webb’s statement.

In January 2003, Level 3 instituted another RIF for economic reasons.

Leddy needed to reduce the number of employees within his division and selected

Webb for termination based on customers, work, sales, and input received from

his supervisor regarding his performance and ability to contribute to the

3
organization. During the RIF, Level 3 eliminated forty-nine employees: twenty-

five were under the age of forty; and twenty-four were forty years old and over.

On January 16, 2003, Level 3 informed Webb that his position was being

eliminated and that he was being terminated. Level 3 gave Webb the option of a

severance package, which was offered to all impacted employees, or a modified

retirement package. Level 3 gave Webb forty-five days to consider the two

options. Webb applied for retirement benefits on April 8, 2003, but Level 3

denied his request because he did not apply for benefits within the forty-five day

period.

After his termination, Webb applied for other positions with Level 3, for

which he contends he was fully qualified. Webb never received an interview. On

April 8, 2003, Webb filed a charge of discrimination with the EEOC. A few

months later, Webb filed this action alleging discrimination and retaliation in

violation of the ADEA. Level 3 filed a motion for summary judgment on both

claims, which the district court granted. The district court found that the RIF was

a legitimate nondiscriminatory reason for Webb’s termination, and that Webb had

failed to show that this reason was pretextual. As to Webb’s retaliation claim, the

district court held that Webb offered no evidence of a causal connection between

the protected activity, Webb’s conversation with Isom, and the adverse action,

i.e., his termination.

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 II.

Webb argues that the district court erred in finding that Webb failed to

present sufficient evidence of pretext to preclude summary judgment on his

discrimination claim. He also contends the district court erred in finding that

Webb did not produce sufficient evidence of a causal connection between the

protected activity and his termination to set forth a prima facie case of retaliation.

Standard of review

This court reviews de novo a district court’s grant or denial of summary

judgment, applying the same standard as the district court. Alexander v.

Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (citation omitted). Summary

judgment is 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). “We view the evidence, and

draw reasonable inferences therefrom, in the light most favorable to the

nonmoving party.” Combs v. PriceWaterhouse Coopers LLP, 382 F.3d 1196,

1199 (10th Cir. 2004) (citation omitted).

Discrimination claim

In this case, Webb presented no direct evidence of age discrimination and

instead, relied on circumstantial evidence. When a plaintiff relies on

5
circumstantial evidence to demonstrate employment discrimination, we apply the

burden-shifting framework set forth in McDonnell Douglas and its progeny.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-07 (1973); Garrett v.

Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002) (McDonnell Douglas

applies to ADEA and Title VII claims).

Under the McDonnell Douglas framework, a plaintiff establishes a prima

facie case of age discrimination by showing that he or she was: 1) within a

protected age group; 2) doing satisfactory work or qualified for the position; 3)

discharged; and 4) replaced by a person outside the protected age group. Branson

v. Price River Coal Co., 853 F.2d 768, 770 (10th Cir. 1988); EEOC v. Sperry

Corp., 852 F.2d 503, 507 (10th Cir. 1988). In RIF cases, a plaintiff is not always

replaced with another employee. Thus, courts have modified the fourth element

so that a plaintiff may produce “evidence, circumstantial or direct, from which a

fact finder might reasonably conclude that the employer intended to discriminate

in reaching the decision at issue.” Branson, 853 F.2d at 771 (internal quotation

marks and citation omitted). The fourth element may also be established through

circumstantial evidence that a “plaintiff was treated less favorably than younger

employees during the [RIF].” Id.

Once a plaintiff establishes a prima facie case, the burden of production

shifts to the defendant to show a legitimate, nondiscriminatory reason for the

6
decision. Sperry, 852 F.2d at 507. If the defendant offers such evidence, “the

presumption of discrimination established by the prima facie showing ‘simply

drops out of the picture.’” Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir.

1994) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993)). A

plaintiff must then offer evidence that age was a determining factor in the

challenged decision, by either showing that the defendant’s proffered reasons

were a pretext for age discrimination or by producing direct evidence of age

discrimination. Ingels, 42 F.3d at 621. A plaintiff “need not disprove

defendant’s reasons or demonstrate that age was the only factor motivating the

decision, but [he or she] must show that age actually played a role in the

employer’s decisionmaking process and had a determinative influence on the

decision.” Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995) (internal

quotation marks, citation and bracket omitted). Evidence of pretext may include:

“prior treatment of plaintiff; the employer’s policy and practice regarding

minority employment (including statistical data); disturbing procedural

irregularities (e.g., falsifying or manipulating criteria); and the use of subjective

criteria.” Garrett, 305 F.3d at 1217 (internal quotation marks and citations

omitted).

Level 3 does not dispute that Webb set forth a prima facie case of

discrimination. Likewise, Webb does not contest the district court’s finding that

7
Level 3 set forth a legitimate nondiscriminatory reason for terminating Webb.

The parties, however, dispute whether Webb set forth sufficient evidence that

Level 3’s reason is a pretext for discrimination.

In RIF cases, a plaintiff can show pretext in three principal ways. Beaird v.

Seagate Tech., Inc., 145 F.3d 1159, 1168 (10th Cir. 1998). While most plaintiffs’

arguments fit within these three categories, we have not foreclosed other methods

of demonstrating pretext. Id. at 1168 n. 6. First, a plaintiff can show that his or

her termination does not accord with the criteria allegedly used to select those for

the RIF. Id. at 1168. While this “evidence can in some cases suffice to

substantiate pretext . . . minor inconsistencies in the application of RIF criteria

may be too insubstantial to allow a reasonable jury to infer that the RIF was

pretextual.” Id. (citations omitted). Second, a plaintiff can produce evidence that

his or her evaluation under the defendant’s RIF criteria was deliberately falsified

or manipulated to effect his or her termination. Id. (citation omitted). Evidence

that a supervisor responsible for assessing performance displayed ageist animus is

one way of demonstrating manipulation or falsification of an evaluation. Id.

Third, a plaintiff can adduce evidence that the RIF was generally pretextual, i.e.,

that its goal was to eliminate older employees and replace them with new hires.

Id. Statistical evidence may be relevant for this purpose. Id.

Webb argues that he presented sufficient evidence from which a jury could

8
have found that his inclusion in the January 2003 RIF was a pretext for age

discrimination.

a. Overall age of workforce

Webb argues that, overall, Level 3’s workforce was “very young,” and from

this, he contends a jury may infer that Level 3 had a bias against older workers

and discriminated against Webb on the basis of age. He bases this statement on

his own observations and on a finding by this court in Abuan v. Level 3

Communications, Inc., that “[t]he workforce at Level 3 was primarily under

forty.” 353 F.3d 1158, 1165 (10th Cir. 2003).

Level 3’s workforce is young. At the time of the January 2003 RIF, the

company’s workforce, including those affected by the RIF, consisted of 1,694

employees under forty years of age and 666 employees forty years old and over.

This fact alone, however, is not evidence of pretext.

While “statistical data showing an employer’s pattern of conduct toward a

protected class can create an inference that an employer discriminated against

individual members of the class,” Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746

(10th Cir. 1991) (citation omitted), we have cautioned against its usage.

“Statistics taken in isolation are generally not probative of age discrimination.”

Jones, 54 F.3d at 632 (citation omitted). To create an inference of discrimination,

statistical evidence “must show a significant disparity and eliminate

9
nondiscriminatory explanations for the disparity.” Fallis, 944 F.2d at 746

(citation omitted). “In other words, a plaintiff’s statistical evidence must focus

on eliminating nondiscriminatory explanations for the disparate treatment by

showing disparate treatment between comparable individuals.” Id. (citation and

emphasis omitted).

In this case, the fact that Level 3’s workforce has a greater number of

employees under the age of forty is not evidence of pretext. By considering the

overall composition of Level 3’s workforce, one effectively groups all employees

regardless of specialty or skill, fails to compare similarly situated individuals, and

fails to eliminate numerous nondiscriminatory reasons for the fact that Level 3’s

workforce is young. Accordingly, the overall age of Level 3’s workforce, without

more, is insufficient to raise a genuine issue of material fact as to pretext.

b. Webb’s beliefs as to his qualifications

As further evidence of pretext, Webb contends he had more experience and

was better qualified than other younger employees who received promotions and

were not terminated in the RIF. Webb also argues that he performed his job well

and received excellent performance evaluations. An employee’s own opinions,

however, about his or her qualifications do not establish a material factual dispute

on the issue of pretext. Simms v. Oklahoma ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1329 (10th Cir. 1999) (citation omitted);

10
see also 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 [or her] own relative performance.”)

(citation omitted).

Webb offers the names of ten individuals whom he contends are younger

and less experienced but received promotions. The record contains virtually no

evidence as to the specific qualifications of each of these individuals, and the

little evidence Webb presented was based on hearsay, vague generalities, and

speculation. Webb also failed to identify, with any detail, when these alleged

promotions occurred and how these prior incidents are connected to his

termination in the January 2003 RIF. See Simms, 165 F.3d at 1330 (recognizing

that prior incidences of alleged discrimination are not probative of pretext unless

they can be connected to the employment action at issue).

c. Other instances of alleged discrimination

Webb argues that his failure to receive promotions and relocation expenses,

as well as his inclusion in the June 2001 RIF, constitute evidence of pretext. This

evidence is also insufficient to establish pretext.

Webb has failed to present any evidence connecting these prior incidences

with Leddy’s decision to include him in the January 2003 RIF. See Simms, 165

F.3d at 1330 (prior incidents are not “probative of pretext unless the prior

11
incidences of alleged discrimination can somehow be tied to the employment

actions disputed in the case at hand”) (citations omitted). While a plaintiff can

connect prior incidences of discrimination by showing that the same supervisors

were involved in the prior discriminatory employment actions, Heno v.

Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000) (citation omitted),

Webb is unable to make such a showing. Between 1999 and 2003, Webb worked

in two different departments and had numerous different supervisors. Though

Leddy made the decision to terminate Webb, Leddy did not make the decision to

deny him relocation benefits, deny him promotions, or include him in the June

2001 RIF. Rather, Leddy saved Webb from termination in June 2001 by giving

him a position in the Customer Operations Department. There is nothing in the

record to connect these alleged prior events to his 2003 termination.

The prior alleged incidences of discrimination are also too remote in time

to be considered when determining whether the reasons given for Webb’s 2003

RIF termination were pretexual. Discriminatory incidents which allegedly

occurred “either several years before the contested action or anytime after are ‘not

sufficiently connected to the employment action in question to demonstrate

pretext.’” Id. (quoting Simms, 165 F.3d at 1331 (holding that discriminatory

event which took place three years before was too remote)). Here, Webb

relocated to Colorado in August 2000. Before he relocated, Level 3 informed

12
Webb that relocation expenses were not available. Viewing the evidence in a

light most favorable to Webb, the denial of relocation expenses occurred in

August 2000 at the latest, nearly two and one-half years before his termination in

January 2003. Likewise, the first RIF occurred in June 2001, over one and one-

half years before his ultimate termination. These events are too remote in time to

establish evidence of pretext. See Heno, 208 F.3d at 856; Simms, 165 F.3d at

1331. As to the alleged promotions of younger employees, the record is devoid of

sufficient details to determine when the promotions of his peers occurred, and

thus, we are unable to conclude that those instances are evidence of pretext.

Webb also contends that his failure to receive retirement benefits and his

unsuccessful attempts to apply for other positions at Level 3 are evidence of

pretext. These actions, however, occurred subsequent to his termination, and

thus, are not sufficiently connected to his termination to demonstrate pretext. See

id.

d. Webb’s meeting with human resources

Webb argues that Level 3’s failure to conduct an investigation into his

statement regarding age discrimination is evidence of pretext. Webb testified,

however, that he did not intend to raise allegations of discrimination during the

meeting with human resources, did not expect Level 3 to conduct an investigation

after the meeting, never filed a formal internal complaint regarding this

13
allegation, and never followed up on his allegation in any way. This meeting,

without more, is simply not evidence of discrimination.

e. January 2003 RIF

Webb contends that his inclusion in the RIF was pretextual because: 1) he

did not fit within the criteria for layoff and was the only Program Manager

selected for termination; 1 2) Level 3 used subjective criteria; 3) Level 3 did not

include younger employees in the layoff; and 4) Level 3 reassigned his duties to a

younger employee.

Webb contends that Kevin O’Hara, President of Level 3, announced in a

conference call that the selection criteria for the RIF were: performance, skills

and qualifications, and tenure with the company. Webb argues that Level 3 did

not follow these criteria because a Human Resources representative, Rob Zwolfer,

told him that his position simply had been eliminated. Webb asserts that the

elimination of his position contradicts the use of these criteria because “he had

more seniority, more experience and superior contributions as compared to his

peers.” Appellant Br. at 13; App. at 222.

1
Factually, Webb’s allegation is not entirely accurate. Webb was one of
seven individuals who held the position of Program Manager II. Of the seven,
four were under the age of forty, and three were over forty years of age. Webb
was the only Program Manager II to be eliminated. Webb, however, has
attempted to include Program Managers as comparables, but the two positions,
Program Manager and Program Manager II, are different.

14
 Webb’s beliefs that he had more seniority, more experience, and superior

contributions when compared to his peers is insufficient to prove pretext. See

Simms, 165 F.3d at 1329 (an employee’s own opinions about his or her

qualifications do not give rise to a material factual dispute on the issue of

pretext); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994)

(“Plaintiff’s evidence of [his or] her satisfactory work performance is not

probative because in a [RIF] case, someone has to be let go, . . . including

satisfactory employees.”) (internal quotation marks and citation omitted).

Moreover, Webb has failed to provide any specific facts for this conclusory

statement. There is virtually no evidence in the record, aside from vague

generalities and speculation, as to the qualifications of Webb’s peers.

As to Webb’s allegation of subjective decisionmaking, generally courts

view subjective evaluation methods with skepticism. Garrett, 305 F.3d at 1218

(citations omitted). However, “the use of subjective criteria does not suffice to

prove intentional discrimination.” Doan v. Seagate Tech., Inc., 82 F.3d 974, 978

(10th Cir. 1996) (citation omitted); see also Bauer v. Bailar, 647 F.2d 1037, 1046

(10th Cir. 1981) (“Subjective considerations are not unlawful per se. . . . An

employer has discretion to choose among equally qualified candidates, provided

that the decision is not based upon unlawful criteria.”) (internal quotation marks

and citation omitted). “[W]e typically infer pretext . . . only when the criteria on

15
which the employers ultimately rely are entirely subjective in nature.” Jones v.

Barnhart, 349 F.3d 1260, 1267-68 (10th Cir. 2003) (citations omitted).

While Level 3’s criteria involved some subjective considerations, Webb has

not shown that Leddy’s decision was based entirely upon subjective criteria.

Rather, the evidence indicates that Leddy considered both objective and

subjective criteria. Leddy had to reduce the head count within his division and

made the ultimate decision to terminate Webb. He selected Webb based on

customers, work, sales, and input received from his supervisor, Davetta Garcia,

regarding Webb’s performance and ability to contribute to the organization.

Customers, work, and sales are objective factors. Garcia, too, employed some

objective factors in her evaluations, ranking employees based on the number of

accounts the employee worked with, the employee’s performance and job

evaluations, whether the individual was a team player, and the additional benefits

the individual contributed to her group. While Garcia’s ranking included both

objective and subjective considerations, there is no evidence in the record that

Webb scored higher on the objective factors (e.g., number of accounts and

evaluations) than his younger coworkers. It is not our role to re-compare the

qualifications of these employees to determine whether some other employee may

have satisfied more RIF criteria than Webb. “Our role is to prevent unlawful

hiring practices, not to act as a super personnel department that second guesses

16
employers’ business judgments.” Simms, 165 F.3d at 1330 (internal quotation

marks and citation omitted); see also Doan, 82 F.3d at 978 (“[T]he manner in

which a company chooses to conduct a RIF is within the company’s sound

business discretion . . . .”).

Webb also contends that younger employees were not included in the RIF.

Webb’s allegation is factually incorrect. It is undisputed that of the forty-nine

employees included in the RIF, twenty-five were under the age of forty, and

twenty-four were forty years old and over.

Last, Webb disputes the fact that his position was eliminated because, he

contends, his responsibilities were still performed after the layoff. In a RIF case,

a plaintiff may show pretext by presenting evidence that his job was not

eliminated. Abuan, 353 F.3d at 1169. “[T]he test for position elimination

[, however,] is not whether the responsibilities were still performed, but rather

whether the responsibilities still constituted a single, distinct position.” Furr, 82

F.3d at 988. Thus the fact that Webb’s responsibilities existed after the layoff is

not evidence of discrimination. Webb contends that a younger employee, Jayson

Pearce, assumed his duties after his termination. This, however, is factually

incorrect. Pearce assumed Webb’s responsibilities when Webb left his position as

Senior Network Developer in the Network Development Department in 2001 to

became a Program Manager in the Customer Operations Department. Pearce did

17
not assume his responsibilities after the January 2003 RIF. The district court

found that Webb presented evidence that his job duties were divided among other

employees. While we do not believe the record is quite that clear as to the

division of Webb’s responsibilities, there is no evidence that his duties continued

within a single, distinct position after his termination.

f. Webb’s remaining evidence

Webb makes two final arguments regarding pretext: 1) Level 3 initially

hired older employees in order to “milk” their expertise; and 2) instead of

terminating Webb in June 2001, Level 3 placed him in another position which

made him vulnerable to future layoffs. Webb has presented no evidence to

support his conspiracy theory. Both allegations are based purely upon

speculation, and speculation is insufficient to raise a genuine issue of material

fact as to pretext. See Doan, 82 F.3d at 977 (“Speculation . . . will not suffice for

evidence.”)

Based on the foregoing, Webb has failed to present sufficient evidence of

pretext to preclude summary judgment on his age discrimination claim.

Retaliation claim

The anti-retaliation provision of the ADEA forbids an employer from

discriminating against an employee because he or she “has opposed any practice

made unlawful” by the statute, or because he or she “has made a charge, testified,

18
assisted, or participated in any manner in an investigation, proceeding, or

litigation” under the statute. 29 U.S.C. § 623(d).

ADEA retaliation claims are analyzed under the analytical framework set

forth in McDonnell Douglas. Lujan v. Walters, 813 F.2d 1051, 1058 (10th Cir.

1987). Initially, under this framework, the plaintiff must establish a prima facie

case. Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir. 1988)

(citation omitted), overruled on other grounds by Hazen Paper Co. v. Biggins, 507

U.S. 604 (1993). The burden then shifts to the employer to offer a legitimate

non-retaliatory reason for the adverse action. Id. (citation omitted). Once the

employer offers such a reason, the burden shifts back to the plaintiff to raise a

genuine dispute of material fact as to whether the employer’s proffered reason is

pretextual. Id. (citations omitted).

To establish a prima facie case of retaliation, Webb must demonstrate: 1)

he availed himself of a protected right under the ADEA, such as opposing an

employer’s discrimination on the basis of age; 2) he was adversely affected by an

employment decision; and 3) a causal connection between the two actions.

MacKenzie v. City and County of Denver, 414 F.3d 1266, 1278-79 (10th Cir.

2005).

Webb contends that Level 3 retaliated against him for discussing his belief

with human resources on November 14, 2002, that he had been discriminated

19
against on account of age. Webb argues that we should infer retaliation from the

temporal proximity between the protected activity and the adverse action, which

in this case amounts to approximately two months. He also contends that his

discussion with Leddy following Webb’s termination is evidence that Leddy was

aware of Webb’s prior discussion with Isom. 2

A causal connection “may be demonstrated by evidence of circumstances

that justify an inference of retaliatory motive, such as protected conduct closely

followed by adverse action.” Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d

339, 343 (10th Cir. 1982) (citation omitted). “Unless there is very close temporal

proximity between the protected activity and the retaliatory conduct, the plaintiff

must offer additional evidence to establish causation.” O’Neal v. Ferguson

Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (citation omitted). Temporal

proximity of two months between the protected conduct and an adverse

employment action may be sufficient to establish a prima facie case of retaliation.

See Annett v. Univ. of Kan., 371 F.3d 1233, 1240 (10th Cir. 2004) (concluding

that a period of two to three months between the protected activity and the alleged

2
According to Webb, after his termination, he and Leddy had a discussion
during which Webb expressed certain concerns about his subordinates. Webb
contends that “[o]ut of the blue, [Leddy] asked me if I believed that I had been
discriminated against.” App. at 188. In response, Webb stated that he did not
intend to complain about discrimination at this time. Webb now argues that
Leddy’s question is evidence that Leddy was “well aware” of Webb’s prior
complaint to Isom. Appellant Br. at 25.

20
retaliatory action was sufficient to establish causation); Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming that two months

and one week between protected activity and adverse action was sufficient to

support a prima facie case of retaliation); 3 Ramirez v. Oklahoma Dep’t of Mental

Health, 41 F.3d 584, 596 (10th Cir. 1994) (concluding that a one and one-half

month period between protected activity and adverse action may establish

causation); but see Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir.

2004) (a minimum of two months and one week and a maximum of just under

three months between the protected conduct and the adverse action is “probably

too far apart . . . to establish causation by temporal proximity alone.”). Though

we have not definitively held that two months between the protected activity and

In Coors Brewing Co., however, we did not explicitly find that two months
3

was sufficient:

For example, we have held that a one and one-half month period
between protected activity and adverse action may, by itself,
establish causation. . . . By contrast, we have held that a three-month
period, standing alone, is insufficient to establish causation. . . .
Thus, we find ourselves three weeks short of three months and three
weeks past one and one-half months. We need not decide on which
side the line should be drawn, however, because assuming two
months and one week is sufficient to support a prima facie case of
retaliation, Plaintiff cannot prove that Defendant’s proffered reason
for terminating her was pretextual.

Coors Brewing Co., 181 F.3d at 1179 (internal citations omitted).

21
the adverse action is sufficient in itself to establish causation, on these facts, we

assume, as we did in Coors Brewing Co., that two months is sufficient.

While, as a general rule, temporal proximity may be sufficient to establish a

causal connection between the protected activity and the adverse action, we still

require a plaintiff to show that the individual who took the adverse action against

plaintiff also knew of the employee’s protected activity. See Williams v. Rice,

983 F.2d 177, 181 (10th Cir. 1993) (holding that a plaintiff must show that the

individual who took the adverse action against him or her knew of the employee’s

protected activity). Here, Webb failed to raise a genuine issue of material fact as

to whether Leddy knew of Webb’s protected activity, i.e., his statement to Isom

concerning discrimination. Webb contends that following his termination, Leddy

asked him if he believed he had been subject to discrimination. Webb argues that

this statement by Leddy is evidence that Leddy was aware of Webb’s prior

conversation with Isom in human resources. We disagree. Leddy denies

knowing, and Isom denies telling Leddy, about the meeting prior to Webb’s

termination. Webb did not present any evidence rebutting this testimony.

Assuming Leddy made such an inquiry after Webb’s termination, we do not

believe a reasonable juror could infer, from that statement alone, that Leddy had

knowledge of Webb’s prior meeting with Isom.

Alternatively, even if Webb had set forth a prima facie case of retaliation,

22
Webb’s claim necessarily fails on the issue of pretext. As previously noted with

respect to his discrimination claim, Level 3 set forth a legitimate, non-retaliatory

reason for its decision to terminate him – a RIF – and Webb failed to present

sufficient evidence that Level 3’s proffered reason was a pretext for unlawful

discrimination or retaliation.

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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