Swackhammer v. Sprint/United Management Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 9, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DENA SWACKH AM M ER,

Plaintiff-Appellant,
v.
No. 05-3222
SPR IN T/U N ITED M A N A G EM ENT
CO.,

Defendant-Appellee.

Appeal from the United States District Court
for the District of K ansas
(D.C. No. 03-CV-2548-CM )

Frank B.W . M cCollum, M cCollum & Parks LC, Kansas City, M issouri for
Plaintiff-A ppellant.

Elaine Drodge Koch, Jeremiah J. M organ, and Heather S. Esau Zerger, Bryan
Cave LLP, Kansas City, M issouri for Defendant-Appellee.

Before LUCERO , Circuit Judge, M CW ILL IAM S and EBEL, Senior Circuit
Judges.

EBEL, Senior Circuit Judge.

This appeal arises from a Title VII suit brought by Dena Swackhammer

against her former employer, Sprint/United M anagement Co. (“Sprint”), in which

she alleged that the decision to terminate her employment was motivated by
gender discrimination. The district court granted summary judgment in favor of

Sprint, holding that Sw ackhammer failed to satisfy her burden under the third step

of the M cDonnell Douglas 1 evidentiary framew ork to raise an inference that

Sprint’s explanation for her termination was a pretext to mask intentional

discrimination. W e agree. Sprint consistently offered a single explanation for

Sw ackhammer’s termination — that she violated the company’s ethical policies

— and Swackhammer failed to provide either direct evidence that this explanation

was false, or evidence of differential treatment sufficient to permit an inference

that the true explanation for her termination was intentional discrimination.

W hile Swackhammer provided evidence that she was treated differently than

another Sprint employee, the record does not support any reasonable inference of

a discriminatory motive arising from this treatment. W e therefore agree that

Sw ackhammer failed to establish pretext and AFFIRM the district court’s grant of

summary judgment for Sprint.

BACKGROUND

I. Factual Background 2

Sw ackhammer was employed by Sprint as a Vice President from December

1997 until her termination in October 2002. Her supervisor from M ay 2001 until

1
M cD onnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
2
W e draw the basic facts from the district court’s exceedingly thorough
discussion in its M emorandum and Order. See Swackhammer v. Sprint/United
M gmt. Co., 2005 W L 1319058 (D. Kan. M ay 13, 2005).

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her termination was Antonio Castanon, at that time Sprint’s Senior Vice President

of Customer Solutions. As her supervisor, Castanon was responsible for the

decision to terminate Swackhammer. Castanon also supervised four other Vice

Presidents, including M ark Alan W inters. Sw ackhammer, in turn, supervised

several employees, including Paul Garcia, Senior Director of Database M arketing

and Customer Relationship M anagement.

A. Events Leading to Sw ackham mer’s Termination

Sw ackhammer’s termination was not related to her job performance; the

parties agree that she was highly successful during her time at Sprint, receiving

positive performance reviews and qualifying for an executive talent pool.

However, during the summer of 2002, Sprint received anonymous complaints of

unethical behavior within Sprint’s Customer Service Group, alleging in particular

that G arcia had inappropriately taken advantage of relationships with vendors. A s

a result of these complaints, Sprint Corporate Security initiated an investigation

and interview ed both Swackhammer and Garcia. During Swackhammer’s

interview , Corporate Security asked her about various business trips and email

correspondences with Garcia and confirmed that she w as aware of Sprint’s

policies regarding travel and gifts paid for by vendors. Although Sw ackhammer

later signed a statement prepared by Corporate Security summarizing the contents

of her interview , she claims that the statement was incomplete and tended to

emphasize information that negatively reflected on her and that, had she known at

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the time that she, along with Garcia, was the subject of the investigation, she

would have been more careful in ensuring that the statement accurately reflected

her recollection of the interview . Garcia w as asked similar questions in his

interview, and also signed a statement summarizing his responses.

Upon completing its investigation, Corporate Security met with Castanon

and Jim Kissinger, then Vice President of Human Resources, to review the

results. Castanon claimed responsibility for the decision to terminate both

Sw ackhammer’s and Garcia’s employment during this meeting, based on the

evidence presented there. This evidence included Swackhammer’s and Garcia’s

signed interview statements, excerpts from Sprint’s policy manual concerning

vendor relationships, photographs of Swackhammer and Garcia aboard a

Concorde jet during a business trip, and copies of several emails sent by

Swackhammer and/or Garcia. The emails contained references to expensive gifts

from vendors, 3 indications that Garcia intended to bring a friend on a business trip

3
The text of this email exchange between G arcia and Swackhammer reads:

Garcia: I just received a bottle of Grand M arnier 150. If
my door is closed today, be scared!!!
Swackhammer: W ho would do that to us?????
Garcia: Enkata [a third-party vendor], project kickoff!!!
Swackhammer: W hat did you score for me???
Garcia: M ichael [Garcia’s contact person at Enkata] wants
to get us to SF and possibly a game at Pebble (he’s never
been and wants to go desperately.) Don’t worry, the pimp
is working.

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for which Sprint would pay the expenses, 4 and an exchange that Castanon

interpreted to mean that Garcia intended to share confidential bid information

with a third-party vendor. 5

Although Sw ackhammer argues that the emails were misinterpreted by

Castanon and Kissinger and that she did not violate any Sprint policy, Castanon

testified that he w as convinced that Swackhammer had both violated Sprint’s

ethical policies and failed to enforce those policies with regard to Garcia.

4
One such email was sent from Garcia to a friend who did not work at
Sprint, and reads:

Garcia: Yeah, another tough week. Golf Friday and then
off to Australia for a w eek of work. FY I, I did get invited
to play golf in Aspen with Bill Clinton. Its [sic] a
weekend of business cocktail parties, golf, and a speech by
Bill. I may be able to bring a ‘date.’ Everything would be
covered except air. Interested? W e’d have to fly out
Thursday July 18th and return that Sunday. America W est
and United fly to Aspen.

Another was sent from Garcia to Swackhammer, forwarding an email from a
female Sprint employee; apparently referencing the same business trip as the
previous email, it reads:

Garcia: Think she’d be my date in Aspen?
5
The text of this email, sent from Garcia to Sw ackhammer in response to a
request to confirm the rates of one vendor whose rates Garcia had negotiated:

G arcia: Dena, I’m actually going to discuss this with
Jonathan [Garcia’s contact person at the vendor] first on
how to position it so he doesn’t get screwed on other w ork
if that’s OK. But I DO W ANT to show that we are good
negotiators and do pay LESS!!!

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Castanon also testified that, even if the events described in the emails never

actually transpired, the “appearance of impropriety” they created was sufficient in

his view to justify termination. Kissinger concurred with Castanon’s assessment;

the record includes notes of “Talking Points” that Kissinger prepared after the

meeting, listing concerns that allegedly led to the decision to terminate

Sw ackhammer including: (1) not properly reporting or receiving advance approval

for vendor-paid entertainment; (2) participating in or allowing an unreasonable

level of vendor-paid or Sprint-paid entertainment; (3) soliciting or encouraging

vendor entertainment; and (4) creating potential or apparent conflicts of interest

and inappropriate relationships with third parties. Kissinger’s notes conclude

that, from the evidence presented, there appeared to be “clear violations” of the

spirit and intent of Sprint’s written policy manual.

On October 14th, 2002, Castanon and Kissinger met with Sw ackhammer

and informed her that her employment was being terminated based on the results

of Corporate Security’s investigation. Castanon and Kissinger terminated Garcia

on the same day. 6

B. Castanon’s Relationship w ith W inters

W hile the investigation of Swackhammer and Garcia was ongoing, Sprint

Corporate Security began investigating another anonymous complaint, this time

6
Garcia filed a separate lawsuit against Sprint, alleging that his termination
was motivated by race and national origin discrimination.

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involving Castanon and a male Vice-President under his direct supervision, Alan

W inters. W inters and Castanon were close personal friends, having been

fraternity brothers during college and working together before becoming

employed at Sprint. Corporate Security’s investigation of Castanon and W inters

focused on allegations similar to those brought against Sw ackhammer and Garcia:

that they accepted inappropriate vendor-paid travel and gifts, and that Castanon

failed to supervise adequately W inters’ compliance w ith Sprint’s vendor policies.

Because Castanon and Winters were able to provide sufficient authorization for

their travels, Corporate Security apparently was unable to substantiate the

allegations against them. W inters, however, admitted during an interview with

Corporate Security that he had failed to review expense reports after certain

business trips and, as a result, had improperly expensed several items to Sprint

including a hotel movie, gift shop charges, airport parking, a meal expense, and a

rental car fee from a personal trip.

Corporate Security informed Castanon and K issinger of W inters’ expense

report violations at the same meeting where evidence from the investigation of

Swackhammer and Garcia w as presented. Castanon, however, elected not to

terminate W inters; instead, he met with W inters to review the processes for

properly recording expenses, and later follow ed up by checking W inters’ expense

reports to ensure that they were correctly processed. Castanon testified that,

although he and W inters w ere close personal friends, their personal relationship

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did not affect his treatment of W inters in the work context. He attributed his

decision to provide coaching and counseling to W inters, rather than terminating

him, to the lack of evidence of any clear violation of Sprint’s ethical policies, an

assessment Kissinger agreed with. However, when Castanon was terminated in

August 2003 during a work-force reduction, Kissinger cited Castanon’s failure to

deal with a personal conflict of interest w ith W inters as one reason for his

termination.

II. Procedural H istory

Sw ackhammer brought suit against Sprint in the United States District

Court for the District of Kansas, alleging gender discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the

Kansas Act Against Discrimination (“KAAD”), Kan. Stat. Ann. § 44-1001 et seq. 7

She did not offer direct evidence of discrimination, but instead invoked the

burden-shifting framework from M cDonnell Douglas and attempted to establish

an inference of discrimination from circumstantial evidence. In support of this

attempt, Sw ackhammer argued that Corporate Security’s investigation produced

insufficient evidence to support a good-faith decision by Castanon to terminate

7
The district court noted that Title VII’s standards apply to the KAAD, and
thus that its holding under Title VII would also apply to Swackhammer’s KAAD
claims. See Best v. State Farm M ut. Auto Ins. Co., 953 F.2d 1477, 1480 n.2 (10th
Cir. 1991).

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her and that Castanon’s decision to terminate her w hile not terminating W inters

constituted differential treatment that was evidence of intentional discrimination.

Sprint moved for summary judgment in its favor, which the district court

granted. The court applied the M cDonnell Douglas framew ork, first holding that

Sw ackhammer satisfied her “light burden” to prove a prima facie case of gender

discrimination by showing that she: (1) belongs to a protected class; (2) was

qualified for her position; (3) was discharged despite her qualifications; and (4)

was terminated “under circumstances which give rise to an inference of unlawful

discrimination.” Swackhammer, 2005 W L 1319058 at *18 (quoting Plotke v.

W hite, 405 F.3d 1092, 1100 (10th Cir. 2005)). 8 The court then held that Sprint’s

explanation for Swackhammer’s termination, namely Castanon and Kissinger’s

belief that she violated Sprint policies, failed to adequately supervise Garcia, and

created an “appearance of impropriety” regarding relationships with vendors, was

8
The more standard formulation of the M cDonnell Douglas prima facie test
for wrongful termination states as its fourth prong that “the job was not
eliminated after [plaintiff’s] discharge.” Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005); Rivera v. City and County of Denver, 365 F.3d 912, 920 (10th
Cir. 2004); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th
Cir. 2000). However, in Plotke, we held that “the fourth element of a prima facie
case is a flexible one that can be satisfied differently in varying scenarios . . . .
Indeed, where an employer contends the actual reason for termination in a
discriminatory firing case is not elimination of the employee’s position, but,
rather, unsatisfactory conduct, the status of the employee’s former position after
his or her termination is irrelevant.” 405 F.3d at 1100. “The critical prima facie
inquiry in all cases is whether the plaintiff has demonstrated that the adverse
employment action occurred ‘under circumstances which give rise to an inference
of unlawful discrimination.’” Id. (quoting Kendrick, 220 F.3d at 1227 (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981))).

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sufficient to satisfy the “exceedingly light” burden on the employer to provide a

legitimate, nondiscriminatory explanation under M cDonnell Douglas’s second

step. Swackhammer, 2005 W L 1319058 at *19.

The burden thus shifted back to Swackhammer under M cD onnell Douglas’s

third and final step to establish that Sprint’s proffered explanation was a pretext

to conceal intentional discrimination. Id. The court held that her evidence did

not raise a genuine issue of material fact as to pretext, concluding that she failed

to show that Sprint’s proffered explanation was unworthy of belief and that the

discrepancy in treatment was explained by an alternative, nondiscriminatory

reason, i.e. Castanon’s close friendship with W inters. Id. at 20-23. Thus, having

found no evidence to create a genuine issue of material fact as to pretext, the

court granted summary judgment for Sprint. Id. at 23. Swackhammer timely

appealed. W e have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

III. Analysis

On appeal, Sw ackhammer contests the district court’s determination that

she failed to raise an issue of material fact as to whether Sprint’s proffered

reasons for her termination were a pretext for intentional discrimination. “W e

review the district court’s grant of summary judgment de novo and must apply the

same legal standard used by the district court.” Bryant v. Farmers Ins. Exch., 432

F.3d 1114, 1124 (10th Cir. 2005) (citation omitted). Fed. R. Civ. P. 56(c)

provides that summary judgment is appropriate “if the pleadings, depositions,

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answ ers 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.” Under this standard,

“we must view the evidence and draw reasonable inferences therefrom in the light

most favorable to the nonmoving party.” Bryant, 432 F.3d at 1124.

A. The Function of Pretext under M cDonnell Douglas

The question of pretext arises only in the third and final step of the

M cDonnell Douglas inquiry, after the plaintiff has successfully established a

prima facie case of discrimination and the employer has successfully articulated a

legitimate, nondiscriminatory reason for the termination. Young v. Dillon Cos.,

Inc., 468 F.3d 1243, 1249 (10th Cir. 2006). At this point, the presumption of

discrimination created by the plaintiff’s prima facie case “simply drops out of the

picture,” St. M ary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), and “[t]he

plaintiff then carries the full burden of persuasion to show that the defendant

discriminated on the illegal basis of . . . gender.” Bryant, 432 F.3d at 1125.

Since a plaintiff utilizing the M cDonnell Douglas framework normally

cannot provide direct evidence of discrimination, a pretext argument provides a

method of satisfying this burden by allowing the factfinder “to infer the ultimate

fact of discrimination from the falsity of the employer’s explanation.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). A plaintiff shows

pretext by demonstrating “such w eaknesses, implausibilities, inconsistencies,

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incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them unw orthy of

credence” and hence infer that the employer did not act for the asserted

nondiscriminatory reasons. Plotke, 405 F.3d at 1102 (quoting M organ v. Hilti,

Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).

One typical method for a plaintiff to prove pretext is by providing direct

“evidence that the defendant's stated reason for the adverse employment action

was false.” Kendrick, 220 F.3d at 1230. Another common method is a

differential treatment argument, in which the plaintiff demonstrates that the

employer “treated [the plaintiff] differently from other similarly-situated

employees who violated work rules of comparable seriousness” in order to show

that the employer failed to follow typical company practice in its treatment of the

plaintiff. Id. Evidence of pretext may also take a variety of other forms. “[A

plaintiff] may not be forced to pursue any particular means of demonstrating that

[a defendant’s] stated reasons are pretextual.” Id. (quoting Patterson v. M cLean

Credit U nion, 491 U.S. 164, 187-88 (1989)).

However the plaintiff may choose to demonstrate pretext, we have

definitively rejected a “pretext plus” standard; in order to survive summary

judgment, a plaintiff generally need not provide affirmative evidence of

discrimination beyond the prima facie case and evidence that the employer’s

proffered explanation is pretextual. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d

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1303, 1312 (10th Cir. 2005); see also Doebele v. Sprint/United M gmt. Co., 342

F.3d 1117, 1135-36 (10th Cir. 2003) (“The plaintiff need not show both that the

defendant’s reasons w ere a pretext and that the real reason was discrimination –

the fact of pretext alone may allow the inference of discrimination.”). W e do not

always require actual evidence of discrimination because, “[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. . . . M oreover, once the employer’s justification has been eliminated,

discrimination may well be the most likely alternative explanation, especially

since the employer is in the best position to put forth the actual reason for its

decision.” Reeves, 530 U.S. at 147. 9

However, it is not always permissible for the factfinder to infer

discrimination from evidence that the employer’s explanation is unworthy of

belief. “[I]f the record conclusively revealed some other, nondiscriminatory

reason for the employer's [adverse employment] decision, or if the plaintiff

created only a weak issue of fact as to whether the employer's reason was untrue

and there was abundant and uncontroverted independent evidence that no

discrimination had occurred,” the fact that the employer’s explanation was

9
Although Reeves spoke in terms of judgment as a matter of law under Fed.
R. Civ. P. 50, “the standard for granting summary judgment ‘mirrors’ the standard
for judgment as a matter of law , such that ‘the inquiry under each is the same.’”
Reeves, 530 U.S. at 150.

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unworthy of belief would no longer be sufficient to create an inference of

discrimination. Id. at 148. The same reasoning applies to a plaintiff’s attempts to

show pretext through evidence of differential treatment; if the employer’s

differential treatment of similarly-situated employees is “trivial or accidental or

explained by a nondiscriminatory motive,” such treatment is insufficient to create

an inference of discrimination. Kendrick, 220 F.3d at 1232.

This exception to the general rule against “pretext plus” makes sense

because the falsity of an employer’s proffered explanation, or the existence of

differential treatment, defeats summary judgment only if it could reasonably lead

the trier of fact to infer a discriminatory motive; where the evidence of pretext

supports only nondiscriminatory motives, such an inference is logically precluded

and summary judgment for the employer is appropriate. See M iller v. Eby Realty

Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (“In drawing such inference

[of unlawful discrimination], the factfinder must be able to conclude, based on a

preponderance of the evidence, that discrimination was a determinative factor in

the employer’s actions — simply disbelieving the employer is insufficient.”).

In determining whether a plaintiff’s evidence of pretext is sufficient to

permit an inference of discrimination and thereby avoid summary judgment, the

Supreme Court has noted relevant factors “includ[ing] the strength of the

plaintiff’s prima facie case, the probative value of the proof that the employer’s

explanation is false, and any other evidence that supports the employer’s case and

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that properly may be considered” on a motion for summary judgment. Reeves,

530 U.S. at 148-49. In addition, this court has held that evidence foreclosing a

rational factfinder from inferring a discriminatory motive may originate from

either the plaintiff or the defendant. For example, we have held that when a

plaintiff’s evidence supports a nondiscriminatory motive for the employer’s

action and the plaintiff presents no evidence to undermine that motive, summary

judgment for the employer is appropriate. Neal v. Roche, 349 F.3d 1246, 1252

(10th Cir. 2003) (“[I]t is enough [to grant summary judgment for the employer] if

the plaintiff concedes a hidden motivation which the court concludes is

nondiscriminatory . . . .” (emphasis omitted)); M arx v. Schnuck M arkets, Inc., 76

F.3d 324, 328 (10th Cir. 1996) (“[I]f a civil rights plaintiff concedes that the real

reason for the employer’s action was a motive not prohibited under the civil rights

laws, such a concession mandates granting of summary judgment to the

employer.” (citation omitted)); see also Randle v. City of Aurora, 69 F.3d 441,

451 n.14 (10th Cir. 1995) (“[T]he plaintiff’s concession of a law ful motive would

take the issue of motive from the jury and preclude the inference of a

discriminatory motive . . . .”). W e have also upheld summary judgment for the

employer based on the employer’s own alternative, nondiscriminatory

explanations, so long as they remain unrebutted and the employer’s credibility has

not been so damaged as to render such explanations suspect. See Jaramillo, 427

F.3d at 1309-10 (“[A]s a general rule, an employee must proffer evidence that

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shows each of the employer’s justifications are pretexual.” (quoting Tyler v.

Re/M ax M ountain States, 232 F.3d 808, 814 (10th Cir. 2000)).

Thus, with these considerations in mind, we proceed to consider

Sw ackhammer’s evidence that Sprint’s explanation for her termination was

pretextual.

B. Sw ackham mer’s Evidence that Sprint’s Decision w as Pretextual

Throughout the proceedings below, Sprint consistently offered one

explanation for Sw ackhammer’s termination: that she was terminated for violating

Sprint’s ethical standards. In attempting to dismiss this explanation as unworthy

of belief, Sw ackhammer presented two types of pretext evidence: evidence

intended to directly demonstrate the falsity of Sprint’s explanation, and evidence

of Castanon’s differential treatment of Swackhammer and W inters. W e consider

each in turn.

1. Evidence of the Falsity of Sprint’s Explanation

Sw ackhammer first attempted to demonstrate that violation of ethical

policies w as not the true reason for her termination by arguing that Sprint should

not have permitted Castanon to decide w hether she w as to be terminated because

Castanon was under investigation for similar ethical violations at the time; that

the evidence Corporate Security presented to Castanon and Kissinger was

insufficient to support Swackhammer’s termination; and that Castanon should

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have consulted with Sw ackhammer and considered her previous work record prior

to making the decision to terminate her.

Sw ackhammer’s arguments fail to raise a genuine issue of material fact as

to the falsity of Sprint’s proffered explanation. Evidence that the employer

should not have made the termination decision — for example, that the employer

was mistaken or used poor business judgment — is not sufficient to show that the

employer’s explanation is unworthy of credibility. Young, 468 F.3d at 1250;

Simms v. Okla. ex rel. Dep’t of M ental Health, 165 F.3d 1321, 1330 (10th Cir.

1999). “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, 365 F.3d at 924-25 (internal

quotation marks and alterations omitted).

Although Sw ackhammer did not, at the summary judgment stage, have a

burden to establish conclusively whether Castanon’s stated reliance on the results

of the investigation was pretextual, she w as required to “establish that there is a

genuine factual dispute with regard to the truth.” Bryant, 432 F.3d at 1126.

View ing Swackhammer’s evidence in the light most favorable to her position, this

evidence demonstrates that Sprint may have been unwise and that Castanon may

have utilized questionable judgment, but it does not draw into question whether

Sprint or Castanon actually relied, honestly and in good faith, upon the

appearance of improprieties arising from the evidence gathered in Corporate

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Security’s investigations. Sw ackhammer’s arguments that Castanon “should have

known that the misconduct she was accused of engaging in was completely out of

character” and that Castanon “should have reconsidered whether it was

appropriate to terminate [her] employment” are simply beside the point; it is not

what Castanon should have known that matters, but whether he acted in good

faith upon the beliefs he held. In addition, her contention that the evidence

gathered by Corporate Security during its investigation was insufficient to support

a good-faith belief that Sw ackhammer “actually engaged in misconduct” ignores

Castanon’s testimony that it was the appearance of impropriety arising from the

evidence that mattered most to him.

Indeed, Sw ackhammer implicitly conceded in her deposition testimony that

she could not directly prove Castanon’s reasons for terminating her were false;

instead, she fell back on her differential treatment argument: “the only thing I

have is that Tony [Castanon] and Alan [Winters] were best friends, and that Alan

was a man, and he was treated differently than I was, as was Tony” (emphasis

added). W ithout more than this, the district court correctly held that

Sw ackhammer failed to directly raise an issue of fact regarding the falsity of

Sprint’s explanation. 10

10
At oral argument, Sw ackhammer focused on an additional piece of
testimony she claims undercuts Sprint’s explanation: a portion of K issinger’s
deposition testimony which Swackhammer summarizes as stating that “Castanon
favored males over females.” Contrary to her interpretation, however, we are
(continued...)

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 2. Differential Treatment of Sw ackham mer and W inters

W e turn next to Sw ackhammer’s attempt to establish pretext by showing

that Castanon treated her differently than he treated W inters under similar

circumstances. The district court rejected this argument because it found that,

assuming that the two were similarly situated, 11 the disparity in treatment was

caused by Castanon’s close friendship with W inters and therefore did not allow

for an inference of gender discrimination. Sw ackhammer, 2005 W L 1319058 at

*22. W e agree with the district court’s result, if not the entirety of its reasoning:

while Swackhammer’s evidence may have established differential treatment, the

record conclusively revealed two nondiscriminatory explanations for the

discrepancy and left no room for an inference of discrimination, thus requiring

summary judgment for Sprint.

10
(...continued)
unable to read the statement she cites as implying any gender bias on Castanon’s
part. Although Kissinger testified that there was a “perception” that Castanon
treated his other reports differently from W inters, Kissinger stated that he
believed this “perception” arose from Castanon’s friendship with W inters and
“had nothing to do with gender discrimination.” Thus, even read in the light most
favorable to Swackhammer’s position, Kissinger’s testimony does not constitute
evidence of pretext.
11
“Similarly situated employees are those who deal with the same
supervisor and are subject to the same standards governing performance
evaluation and discipline.” A ramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th
Cir. 1997). In addition, to demonstrate pretext through differential treatment, it
must be shown that the employees “violated work rules of comparable
seriousness.” K endrick, 220 F.3d at 1230. For purpose of resolving this appeal,
we assume without deciding — as did the district court — that Sw ackhammer and
W inters were similarly situated.

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 Castanon testified that he treated W inters more leniently than

Sw ackhammer because the former’s misconduct was of a less serious nature than

the latter’s. During her deposition testimony, Swackhammer contested this

explanation and stated her belief that Castanon treated W inters favorably because

of their long friendship:

S WACKHAMMER : Now, why would they do that [terminate
Swackhammer but not W inters]? There was some ulterior motive.
W hat was it? W ell, it looks like Tony [Castanon] was covering for
himself and for Alan [Winters]. I mean, they were also under
investigation.
Tony had been interview ed by Corporate Security just a couple
of days before I was terminated. I don’t even know if they had made
a decision on him yet. It was clear to me that I was being offered up
as a sacrifice so that he and his buddy Alan would not have any
adverse action taken against them. . . .

Q: Did you think Paul Garcia was also being offered up as a sacrifice
to protect Tony Castanon’s job?
S WACKHAMMER : I believe that they looked at my case and Paul’s
case as an opportunity to take action to save themselves. . . .
And the only thing I have is that Tony and Alan w ere best
friends, and that Alan was a man, and he was treated differently than
I was, as was Tony.

Sprint, in its motion for summary judgment, seized upon this testimony and

argued that Sw ackhammer had conceded that any differential treatment resulted

from Castanon’s close relationship with W inters, rather than providing evidence

of underlying gender discrimination. 12 Additional record evidence also supported

12
Sprint did not itself concede that Castanon was in fact motivated by a
desire to save his and W inters’ job, but continued to maintain that Castanon’s
(continued...)

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this explanation; both K issinger and Castanon testified that Castanon and W inters

had long been close personal friends and that Castanon had been known to treat

W inters differently than any of his other direct reports, male or female; for

instance, Castanon hosted and paid for a birthday party for W inters, something he

had not done for any other Sprint employee.

Swackhammer responded by denying that she conceded a nondiscriminatory

explanation for her termination, arguing that her statement “the only thing I have

is that Tony and Alan were best friends, and that Alan was a man, and he was

treated differently than I was, as was Tony” supported her continuing belief that

gender played a role in her termination. She also noted Castanon’s testimony in

which he denied that his friendship with W inters affected his decisionmaking and

claimed to have held W inters to the same standards as any other Sprint employee.

From this evidence and argument, the district court concluded that

“Castanon’s different treatment of W inters clearly stems from their close

friendship. W inters benefitted from Castanon’s favoritism toward him.”

Sw ackhammer, 2005 W L 1319058 at *22. As a finding of fact upon a motion for

summary judgment, this conclusion is erroneous. Viewing the evidence in the

light most favorable to Sw ackhammer, see Bryant, 432 F.3d at 1124, there existed

a genuine issue of fact as to whether the differential treatment was due to the

12
(...continued)
decision was based solely on the results of Corporate Security’s investigation and
that Swackhammer’s claims of preferential treatment for W inters were wrong.

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difference in severity between Swackhammer’s and W inters’ ethical violations, or

instead due to Castanon’s friendship with W inters and his desire to protect his and

W inters’ job. Thus, the district court should not have taken it upon itself to

determine which of these was the true explanation.

However, we conclude that this error was harmless because, whichever

evidence the factfinder might have chosen to credit, neither version permits an

inference of gender discrimination. If one credits Castanon’s testimony, then his

differential treatment of Swackhammer and W inters was nondiscriminatory, based

on his conviction that Sw ackhammer’s misconduct was more serious than

W inters’. If, alternatively, the factfinder credited the evidence of Castanon’s

favoritism tow ards W inters, then the differential treatment, while perhaps unfair,

was similarly nondiscriminatory. Neal, 349 F.3d at 1251 (“[A]n employer’s

actions based on loyalty to a friend . . . are not considered ‘discriminatory,’ even

where they benefit the nonprotected friend . . . at the expense of a more qualified,

protected person.”). 13 In the latter scenario, Castanon’s explanation for the

differential treatment would have been proven unworthy of belief — but only

13
W e do not mean to suggest that a friendship between a supervisor and a
coworker will always foreclose any inference of discrimination. Favoritism may
indeed be a proxy for gender discrimination. For example, if a plaintiff presented
evidence regarding the nature of the supervisor’s friendships that indicates a
strong preference for or exclusion of a particular gender, a court could conclude
that she had sufficiently established pretext to survive summary judgment.
However, the mere fact that a supervisor has one close friend of the same gender,
without more, is not enough to support such a conclusion.

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because it concealed an equally nondiscriminatory explanation. The record

contains no independent evidence, beyond Sw ackhammer’s mere conjecture, that

would allow a reasonable factfinder to disbelieve both explanations and thereby to

infer that gender discrimination was the actual motivation for her termination.

See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)

(“[P]laintiffs’ mere conjecture that their employer’s explanation is a pretext for

intentional discrimination is an insufficient basis for denial of summary

judgment.”). Thus a reasonable factfinder could not, based on the record in this

case, infer a discriminatory motive from the difference in treatment between

Swackhammer and W inters.

Before concluding, we address a final argument upon which Swackhammer

places considerable emphasis on appeal. She argues that our precedent in Neal

and Randle supports summary judgment based on a nondiscriminatory explanation

for differential treatment only if the plaintiff has expressly conceded that

explanation and advances no other possible explanation before the court. She

contends that she never made such a concession, but at all times asserted her

belief that gender played a role in her termination, and therefore that the district

court’s reliance on the nondiscriminatory explanation arising from her testimony

was erroneous. W e do not, however, read Neal — which relied upon and

interpreted footnote 14 from Randle, 69 F.3d at 451 — as requiring a plaintiff to

concede that a nondiscriminatory motive was the only motivation for the

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employer’s actions in order to justify summary judgment for the employer;

indeed, the Neal plaintiff did not do so, making “several arguments concerning

pretext” including attempts to show that her race played a role in her termination.

Neal, 349 F.3d at 1248-49. Rather, we held in Neal that the plaintiff conceded a

nondiscriminatory motive because she provided arguments in her summary

judgment materials as a part of her “position before the court” that supported such

a nondiscriminatory motive, and because her other evidence was insufficient to

permit an inference of any discriminatory motive. Id. at 1251, 1252-53.

The facts in this case are similar. Sw ackhammer did not merely mention

Castanon and W inters’ relationship in her deposition testimony, but actually

argued to the district court that Castanon and Winters were “long-standing

personal friends” whose families vacationed together and that Castanon was

terminated, in part, because he failed to “deal with a personal conflict of interest

with [his] close personal friend, Alan W inters.” The only evidence she presented

that tended to undermine this motive, aside from her own conjecture, was

Castanon’s original explanation that he had terminated Swackhammer for

violating Sprint’s ethical policies — evidence which, if believed, supports only

another nondiscriminatory explanation.

In any case, contrary to Swackhammer’s assertions, the district court did

not rely solely on Neal’s interpretation of Randle’s footnote 14 for its grant of

summary judgment, and we do not do so here. Neal and Randle’s footnote 14

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present one example of circumstances where the record undermined a plaintiff’s

claim of discrimination by supplying a convincing nondiscriminatory motive for

the employer’s actions w hich the plaintiff failed to overcome; this case simply

presents another.

To paraphrase the Supreme Court, “although the plaintiff has established a

prima facie case and set forth sufficient evidence” of differential treatment, “no

rational factfinder could conclude that the action was discriminatory.” Reeves,

530 U.S. at 148. Thus, Sw ackhammer failed to carry her burden at the pretext

phase of the M cDonnell Douglas analysis to create an inference of discrimination,

and the district court properly granted summary judgment for Sprint. See id. at

143 (“[T]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” (quotation omitted)).

IV. Conclusion

Viewed in the light most favorable to Sw ackhammer’s claim of gender

discrimination, the record in this case demonstrates that she was treated

differently from W inters, another similarly-situated Sprint employee. However,

the record also supports only two explanations for the difference in treatment

between Swackhammer and W inters: either Swackhammer’s misconduct was more

egregious and therefore merited a harsher response, or her supervisor’s close

friendship with W inters led to W inters receiving favorable treatment. Neither of

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these explanations allows a reasonable factfinder to reach an inference of illegal

gender discrimination. Thus, because Swackhammer presented no additional

evidence which might allow such an inference of discrimination, she has failed to

satisfy her burden to demonstrate pretext under the third step of the M cDonnell

Douglas framew ork. W e therefore A FFIRM the district court’s entry of summary

judgment in favor of Sprint.

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