Thomas v. Avis Rent A Car

FILED
United States Court of Appeals
Tenth Circuit

January 24, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________

DAVID BRADY THOMAS,

Plaintiff-Appellant,
No. 09-4201
v. (D.Ct. No. 2:07-CV-00705-CW)
(D. Utah)
AVIS RENT A CAR,

Defendant-Appellee.
______________________________

ORDER AND JUDGMENT *

Before KELLY, BRORBY, and GORSUCH, Circuit Judges.

Appellant David Brady Thomas appeals the district court’s grant of

summary judgment in favor of Appellee, Avis Rent A Car (Avis), on his

employment discrimination and retaliation claims related to his hearing

impairment and arising under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e-2000h-6; the Americans with Disabilities Act of

1990 (“ADA” or “the Act”), 42 U.S.C. §§ 12101-12213; and 47 U.S.C. § 225.

We exercise jurisdiction under 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This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
 I. Factual Background

The district court based its summary judgment determination in favor of

Avis on various affidavits, depositions, and other attachments submitted in

conjunction with Avis’s motion for summary judgment and Mr. Thomas’s

response thereto. Like the district court, we construe the facts contained therein

in the light most favorable to Mr. Thomas as the party opposing summary

judgment. Our disposition of Mr. Thomas’s appeal is based on the following

material, undisputed facts and other factual allegations by Mr. Thomas, as

indicated hereafter, which, even if construed in the light most favorable to him,

are immaterial to our summary judgment determination.

To begin, Avis operates a car rental facility at the Salt Lake City

International Airport. Within its facility are two divisions, including

“Operations,” which encompasses all aspects of the car rental process, and

“Maintenance,” which handles vehicle maintenance and repair. At all times

relevant to this appeal, Frank Jones, in the position designated as Avis “City

Manager,” oversaw both Avis’s Operations and Maintenance divisions at the

airport. Other positions within the Operations division included: (1) “Airport

Manager,” a position held by both Mike Davis and Dennis Erickson; (2) three

“Shift Managers” who took turns overseeing eight-hour employee shifts; (3)

“Rental Sales Agents” who interacted directly with customers at the rental

-2-
counter; (4) “Customer Service Representatives” who worked out of a booth to

assist frequent travelers or preferred customers; (5) “Service Agents” who cleaned

cars and checked their oil levels; and (6) “Shuttlers” who moved cars between

various Avis lots or locations. Similarly, Avis’s Maintenance division had its

own employee structure, including manager positions, mechanics, technicians,

and drivers.

Mr. Thomas is “profoundly deaf,” relies on lip reading, text paging, closed

caption screens, and relay services for telephone calls, and is considered by both

parties as hearing impaired for the purpose of this appeal. In October 1991, he

applied for employment with Avis and interviewed with City Manager Jones.

Thereafter, Avis hired Mr. Thomas as a Shuttler, where he moved cars between

various Avis airport facility lots and locations. A few months later, Avis

promoted him to Service Agent, with the responsibility of cleaning cars and

checking oil levels.

Shortly thereafter, Mr. Thomas received another promotion to Lead Service

Agent, but a few years later, following a series of disciplinary issues, Avis

demoted him back to the position of Service Agent. In 2002, Avis again

promoted him to Lead Service Agent, where he remained until his termination in

2004. As both a Service Agent and Lead Service Agent, Mr. Thomas reported to

-3-
Airport Managers Davis and Erickson, who, in turn, reported to City Manager

Jones.

Prior to June 2004, Mr. Thomas received discipline for misconduct on at

least twenty separate occasions, including insubordination, harassing co-

employees, safety violations, abuse of company property, quality control issues,

and attendance problems. In addition, as Mr. Thomas conceded, Airport Manager

Davis viewed him as lacking interpersonal skills, and in several instances, as part

of the disciplinary process, Mr. Davis pointed out to Mr. Thomas his difficulty

interacting with people and questioned his ability to be a manager.

In June 2004, Avis posted an opening for a Shift Manager, which required

significant face-to-face customer service and responsibilities such as addressing

customer inquiries and complaints and directly supervising and interacting with

other employees, including Rental Sales Agents and Service Agents. To be

considered for Shift Manager, Avis recommended applicants have either a college

degree or extensive rental car experience with a customer service background,

and, in almost all instances, successful applicants for the Shift Manager position

had previously been employed as Rental Sales Agents or Customer Service

Representatives. According to Mr. Erickson, in his twenty-seven years of

-4-
employment with Avis, he recalled only one instance where Avis directly

promoted someone from Service Agent to Shift Manager.

Sometime prior to the posting of the Shift Manager position, Mr. Thomas

informed Airport Manager Erickson of his interest in becoming a Shift Manager,

which led Mr. Erickson to suggest he first apply to be a Customer Service

Representative to acquire customer service experience and thereafter apply for a

Rental Sales Agent position – a career path similar to the one Mr. Erickson took.

Mr. Erickson also identified available Customer Service Representative positions

for which he recommended Mr. Thomas apply. Likewise, City Manager Jones

and Airport Manager Davis told Mr. Thomas he should apply for the next

available Customer Service Representative position. However, Mr. Thomas never

applied for such a position or the position of Rental Sales Agent. When Mr.

Erickson asked him why he did not apply for one of the openings brought to his

attention, Mr. Thomas responded he had no desire to be a Customer Service

Representative and, instead, wanted to move directly to Shift Manager.

Mr. Erickson also suggested that if Mr. Thomas wanted to move into

management, he should explore opportunities in Maintenance, including applying

for an open “PM Technician” slot as a first step toward becoming a “Maintenance

Manager.” Mr. Erickson further discussed the topic with City Manager Jones,

-5-
who also believed Mr. Thomas should pursue career opportunities on the

Maintenance side, where he thought Mr. Thomas could do well, and stated he was

concerned about Mr. Thomas’s communication skills, given his inability to

pronounce words well and customers’ capacity to get upset. Airport Manager

Davis also encouraged Mr. Thomas to pursue a position in Maintenance, including

the PM Technician position. While Mr. Thomas did apply for the PM Technician

position, he turned the position down when it was offered to him, telling Mr.

Erickson he did not want to rotate tires and hurt his back. 1

Once Avis posted the Shift Manager position in June 2004, Mr. Thomas

applied. City Manager Jones and Airport Manager Davis interviewed him for the

position. 2 During his interview for employment, Mr. Jones again suggested Mr.

1
Mr. Thomas also unsuccessfully proposed to Mr. Jones and Mr. Davis
that Avis create a new position of lot manager which would permit him to gain
managerial experience, focusing his attention on employees rather than customers.
On appeal, he acknowledges Avis had no obligation to create a new position for
him as part of the reasonable accommodation interactive process, and thus, we
need not concern ourselves with this issue on appeal.
2
While Mr. Thomas also claims “too many people” told him he could not
be Shift Manager because of his inability to hear on the telephone, he
nevertheless applied for the position and fails to identify who made these
statements prior to his applying for the position. “[M]ere conclusory allegations
are insufficient to establish an issue of fact under Fed. R. Civ. P. 56.” Barber v.
Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10 th Cir. 2009). Even where an
affidavit or deposition is based on personal knowledge and sworn, it may be
insufficient to create a triable issue of fact if, as here, it is non-specific or
otherwise non-responsive, vague, conclusory, or self-serving. See Salguero v.
(continued...)

-6-
Thomas pursue management opportunities in the Maintenance division or pursue a

position as a Customer Service Representative. Ultimately, Avis hired another

individual for the position. Mr. Thomas does not dispute the successful applicant

possessed a college degree, previously worked as a Rental Sales Agent, and had

significant management experience; nor does he contend he was more qualified

for the Shift Manager position.

On July 26, 2004, Mr. Thomas contacted the Avis Regional Manager, Jeff

Eisenbarth, stating he believed his advancement was blocked because of his

disability and he had been told he could not be a Rental Sales Agent because of

his deafness. Mr. Thomas asserted he could assist and communicate with

customers if another manager was present who could answer all customer

inquiries via the telephone. However, according to Mr. Thomas, Mr. Eisenbarth

also questioned Mr. Thomas about his ability to communicate over the telephone

and agreed pursuing a management position in Maintenance might be a better fit

for him.

In August 2004, when Geoff Danheiser, Avis’s Human Resources Manager,

visited the airport facility, Mr. Thomas also asked him why he had not been

2
(...continued)
City of Clovis, 366 F.3d 1168, 1177 n.4 (10 th Cir. 2004) (relying on Murray v.
City of Sapulpa, 45 F.3d 1417, 1422 (10 th Cir. 1995)).

-7-
selected for the Shift Manager position, stating he thought it might be because of

his hearing impairment, to which Mr. Danheiser explained Avis hired the other

person because he possessed superior qualifications. Mr. Thomas again stated his

belief he was denied the position because of his disability and again asserted he

could assist and communicate with customers if another manager was present who

answered all customer inquiries via the telephone. According to Mr. Thomas, he

also told Mr. Danheiser he felt like he was being denied any position and wanted

to work as a Rental Sales Agent or Customer Service Agent but it did not happen.

In response, Mr. Danheiser allegedly told him he could not work with customers

or co-employees in either position due to his deafness because he would have to

face customers when talking to them rather than listening to them while on the

computer, he might scare customers away, and his disability would be unfair to

other employees who would have to answer the telephone.

Months later, on November 5, 2004, Shift Manager Anthony Gillette

received word a customer left an item in a recently returned car, and when he

attempted to locate the keys to the car, Mr. Thomas inquired and received

information from Mr. Gillette on the car in question. Mr. Thomas indicated he

may have cleaned that car, left to look for the item, and returned with it – a bag

with a hat inside. However, pursuant to Avis’s longstanding written policy, of

which Mr. Thomas was aware, any item left in a rental car by a customer is

-8-
classified as lost and found. After finding such an item, Service Agents are

required to immediately fill out a company tag listing detailed information,

including information on the vehicle and the customer’s name, and deposit the

item and tag in the lost and found box. According to Avis’s policy, of which Mr.

Thomas was also aware, lost and found items are a significant issue and violation

of the written lost and found policy is a terminable offense. In fact, Airport

Manager Erickson had never recommended a penalty other than termination for

such an offense.

Shift Manager Gillette immediately suspended Mr. Thomas pending an

investigation into his violation of Avis’s lost and found policy. In an e-mail to

Mr. Jones concerning the incident Mr. Gillette accused Mr. Thomas of hiding the

hat and informed Mr. Jones that he was suspending Mr. Thomas pending an

investigation. A few days later, on November 10, 2004, the Utah Anti-

Discrimination and Labor Division of the Utah Department of Employment

mailed Avis materials relating to a Charge of Discrimination filed by Mr.

Thomas, alleging Avis failed to hire him as Shift Manager due to his hearing

impairment. At the time Mr. Gillette suspended Mr. Thomas, neither he nor

anyone at Avis was aware of this charge of discrimination.

-9-
 In a statement dated November 12, 2004, Mr. Thomas admitted not turning

in the bag and hat because he forgot. The same day, City Manager Jones, Airport

Manager Davis, and Avis Security Manager Jack Bencale met with Mr. Thomas to

discuss his suspension pending Avis’s investigation into his violation of the lost

and found policy; Human Resources Manager Danheiser also attended the meeting

by telephone. At or prior to the meeting, Mr. Thomas claims he unsuccessfully

requested a third-party interpreter and permission to tape the meeting; although

his requests were denied, Mr. Thomas recorded the meeting anyway. During the

meeting, Mr. Thomas admitted he knew company policy required he fill out a tag

and turn in the customer’s item immediately but that he failed to turn in the bag

with the hat because he “forgot.”

On November 17, 2004, five days after his meeting with Avis supervisors,

Mr. Thomas amended his Charge of Discrimination to allege retaliation, which

was mailed to Avis’s office in Denver, Colorado, rather than to Avis’s Salt Lake

City Office. Two days later, on November 19, 2004, City Manager Jones sent Mr.

Thomas a letter, articulating Avis’s policy that theft or failure to immediately turn

in lost and found items may result in immediate termination of employment and

informing him of his termination from employment based on his violation of that

policy. At the time of Mr. Thomas’s suspension and termination, Airport

Manager Erickson was out of town.

-10-
 II. Procedural Background

On September 20, 2007, Mr. Thomas filed his federal civil rights

complaint, alleging Avis discriminated and retaliated against him on the basis of

his disability, in violation of the ADA. Following discovery, briefing on Avis’s

motion for summary judgment, and presentation of the parties’ arguments at a

hearing on the motion, the district court granted summary judgment in favor of

Avis on all claims, for the reasons articulated hereafter. This appeal followed, in

which Mr. Thomas reasserts his discrimination and retaliation claims. In his

discrimination claim, Mr. Thomas contends Avis denied him reasonable

accommodation and took discriminatory adverse action against him by

terminating him, attempting to segregate him from customers, and creating a

hostile work environment. In his retaliation claim, he asserts Avis retaliated

against him when its employees “coerce[d]” him into pursuing a management

position in Maintenance and suspended, investigated, and fired him on “trumped

up allegations.”

III. Discussion

A. Standard of Review

We review de novo the district court’s summary judgment decision and

“consider the evidence in the light most favorable to the non-moving party,

drawing all reasonable inferences from the available underlying facts.” Jaramillo

-11-
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1307 (10 th Cir. 2005) (en banc) (per

curiam) (quotation marks omitted). Summary judgment is appropriate if the

record shows “there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Hennagir v. Utah Dep’t of Corr., 587

F.3d 1255, 1261 (10 th Cir. 2009); see Fed. R. Civ. P. 56(a). In reviewing

summary judgment motions, the movant for summary judgment bears the initial

burden of demonstrating the absence of a genuine issue of material fact and

entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 670-71 (10 th Cir. 1998).

If this initial burden is carried, the non-movant may not rest solely on his

pleadings but must set out specific facts in support of his claims by reference to

affidavits, deposition transcripts, or other exhibits incorporated therein. See id. at

671. “[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment,”

and, instead, summary judgment requires “no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). While we view the

evidence and draw inferences in the light most favorable to the non-moving party,

that party must identify sufficient evidence which would require submission of

the case to a jury. See Adler, 144 F.3d at 671-72 & n.1. In addition, “[w]e may

-12-
affirm the district court for any reason supported by the record.” Baca v. Sklar,

398 F.3d 1210, 1216 (10th Cir. 2005) (quotation marks omitted).

B. Disability Discrimination Claim

The ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of the disability in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). To prevail on a disparate treatment or

discrimination claim under the ADA, an employee must show the employer

“intentionally discriminated against him for a reason prohibited by the Statute.”

Jaramillo, 427 F.3d at 1306. In so doing, an employee must establish: (1) he is a

disabled person as defined by the Act; (2) he is qualified, with or without

reasonable accommodation, to perform the essential functions of the job held or

desired; and (3) his employer discriminated against him because of his disability.

See MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10 th Cir. 2005).

On appeal, the parties do not dispute the fact Mr. Thomas is disabled due to his

deafness for the purposes of the ADA, leaving for consideration only the issues of

whether Avis failed to provide him reasonable accommodation to perform the

essential functions of the job held or desired and discriminated against him

because of his disability.

-13-
 If, as here, the employee relies on circumstantial evidence in an attempt to

meet the required criteria, “we apply the burden-shifting framework outlined in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Jaramillo, 427 F.3d

at 1306. Under this analysis, if the employee establishes a prima facie case of

discrimination, then “a presumption of discrimination arises,” resulting in the

burden shifting to the employer “to articulate a legitimate, non-discriminatory

reason for the adverse employment action.” Id. at 1307. “If the [employer]

carries its burden of production, the presumption of discrimination drops out of

the case,” and “[t]he burden then shifts back to the [employee], who must prove

by a preponderance of the evidence that the employer’s reasons are a pretext for

unlawful discrimination.” Id.

An employee can demonstrate pretext “by producing evidence of such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence and hence infer that

the employer did not act for the asserted non-discriminatory reasons.” Id. at 1308

(quotation marks omitted). We have said “[e]vidence of pretext may include prior

treatment of [the employee]; the employer’s policy and practice ...; disturbing

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

of subjective criteria.” Id. (quotation marks omitted).

-14-
 As previously indicated, under the ADA, the employer must make an effort

to accommodate an employee’s disability. See Wilkerson v. Shinseki, 606 F.3d

1256, 1265 (10 th Cir. 2010). We have said “[t]here are two components to the

reasonable accommodation analysis,” including whether a reasonable

accommodation would enable the employee to do the particular job and whether

the employee could be transferred to other work which could be done with or

without accommodation. Id. (quotation marks omitted). As part of the

accommodation process, we have said “[t]he federal regulations implementing the

ADA envision an interactive process that requires participation by both parties.”

Id. (quotation marks omitted). “The idea of accommodation is to enable an

employee to perform the essential functions of his job; an employer is not

required to accommodate a disabled worker by modifying or eliminating an

essential function of the job.” Mathews v. Denver Post, 263 F.3d 1164, 1168-69

(10 th Cir. 2001).

On appeal, Mr. Thomas claims Avis failed to provide him reasonable

accommodation as required under the ADA because it failed to: (1) determine if

he could interact with customers if given reasonable accommodation; or (2)

provide a third-party interpreter or allow his participation in an interactive

process at his termination meeting. However, in awarding summary judgment to

Avis on this issue, the district court determined Mr. Thomas presented no

-15-
evidence he needed an accommodation in his existing position as a Service Agent,

which he performed successfully for a number of years without complaint or a

request for accommodation. We agree. Furthermore, to the extent Mr. Thomas is

somehow making an accommodation claim with respect to the position of Shift

Manager, for which he applied, nothing in the record demonstrates he requested

an accommodation for his disability when he applied for that position. Similarly,

to the extent his statements to Mr. Danheiser and Mr. Eisenbarth were requests

for accommodation (in which Mr. Thomas stated he could assist and communicate

with customers if another manager was present and could communicate with

customers on the phone), these conversations occurred after Avis filled the

position of Shift Manager with another, qualified individual, and Mr. Thomas

never applied for any other customer service positions in Operations for which

such an accommodation request would apply. Finally, Avis was under no

obligation to employ two Shift Managers during an eight-hour shift merely to

accommodate Mr. Thomas’s proposal he could perform as a Shift Manager if

another manager was on duty. See id.

Similarly, with regard to his request for accommodation by use of an

interpreter and his alleged inability to participate in an interactive process at his

termination meeting, we agree with the district court that Mr. Thomas failed to

present any evidence to show a causal connection between those circumstances

-16-
and the decision to terminate him for violation of Avis’s lost and found policy.

Instead, as the district court explained, he failed to present any evidence showing

an interpreter or his increased participation at the termination meeting would have

changed the result, either with regard to his response to breaking company policy

or in Avis terminating him for breaking that policy. Thus, none of Mr. Thomas’s

allegations rise to an actionable claim for accommodation under the ADA or

otherwise fit within the criteria required to make an accommodation claim.

Next, even if Mr. Thomas was qualified, with or without reasonable

accommodation, to perform the essential functions of the job he held or desired,

he claims Avis discriminated against him based on his disability. In support, he

suggests Avis impermissibly discriminated against him when it terminated him;

sought to segregate him from customers in Operations; discouraged him from

pursuing a position in Operations which dealt directly with customers, including

telling him he could not be a Customer Service Representative or Rental Sales

Agent; and “created a way to terminate him” after he failed to move to

Maintenance. He claims Avis terminated him even though his managers: (1)

knew he did not conceal or intend to conceal the hat; (2) failed to review video

surveillance recordings which would have shown whether he hid the hat; and (3)

failed to consult with Airport Manager Erickson who was his direct supervisor.

-17-
He also claims Avis discriminated against him by creating a hostile work

environment.

The district court rejected Mr. Thomas’s allegation Avis impermissibly

discriminated against him by terminating him based on his disability, pointing out

the company’s policy and practice in terminating employees for failing to

immediately tag and turn in lost and found items was clear and undisputed; it

never deviated from it; Mr. Thomas admitted he was aware of such a policy; and

that given Avis’s practice of terminating employees violating the policy, it did not

matter whether Avis believed Mr. Thomas intended to hide or steal the hat. It

also held Mr. Thomas failed to establish Avis’s termination of Mr. Thomas for

violation of the lost and found policy was a pretext for unlawful discrimination,

as no evidence showed its underlying reason for his termination was his disability

or that a connection otherwise existed between his termination and disability. In

making this determination, the district court rejected Mr. Thomas’s argument

Avis fired him because he applied for and failed to get the Shift Manager

position, stating, “I don’t think that’s a reasonable inference to say that they

terminated him because they were unhappy that he applied and didn’t get a job.”

We agree with the district court’s assessment. Even if Mr. Thomas met his

burden for the purpose of creating a presumption of discrimination, Avis carried

-18-
its burden of articulating a legitimate, non-discriminatory reason for the adverse

employment action when it stated Mr. Thomas’s termination stemmed from his

violation of its mandatory lost and found policy which required strict adherence

in tagging and turning in lost and found items and its practice of terminating

employees who violated that policy, of which Mr. Thomas admitted he was aware.

Because Mr. Thomas admitted to failing to follow that policy when he forgot to

turn in the customer’s property, it is irrelevant whether: (1) Mr. Gillette falsely

accused him of hiding or stealing the hat or others believed he did not intend to

steal it; (2) Avis managers failed to view the surveillance video; or (3) Avis failed

to consult with Mr. Thomas’s other supervisor, Mr. Erickson, who, in any event,

was out of town during the circumstances surrounding Mr. Thomas’s suspension

and termination and had never recommended a penalty other than termination for

violation of the lost and found policy.

Once Avis carried its burden of production on that issue, the presumption

of discrimination evaporated and the burden shifted back to Mr. Thomas to prove

by a preponderance of the evidence Avis’s reason for termination was a mere

pretext for unlawful discrimination. Mr. Thomas failed to present any evidence to

meet that burden, including any weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in Avis’s proffered legitimate reason. See

Jaramillo, 427 F.3d at 1308. Instead, the evidence presented established Avis,

-19-
based on both policy and practice, immediately and consistently terminated all

other employees violating the same policy. Mr. Thomas’s mere allegation of

discrimination based on his disability or his failure to obtain a different position

in the company is not enough to carry his burden, especially given his admission

he was not more qualified than the person who obtained the position. See id. at

1308-09 (holding “minor differences between [an employee’s] qualifications and

those of a successful applicant are not sufficient to show pretext”).

Turning to Mr. Thomas’s allegation Avis impermissibly discriminated

against him through disparate treatment because its employees sought to segregate

him from customers in Operations, he failed to raise this issue before the district

court, either in his complaint or his argument in opposition to summary judgment.

However, even if we give Mr. Thomas the benefit of addressing his newly-raised

contention, 3 nothing in the record establishes Avis employees impermissibly

attempted to “segregate” him or otherwise discourage him from pursuing

positions in Operations where he would deal directly with its customers. On the

contrary, when Mr. Thomas presented his desire to become a Shift Manager, his

3
“We consider each case individually in determining whether to exercise
our discretion to consider a question raised for the first time on appeal” and have
held “[s]uch determination must begin with recognition that sound policy supports
the proposition that an appellate court will not consider an issue raised for the
first time on appeal.” Gorman v. Carpenters’ & Millwrights’ Health Benefit Trust
Fund, 410 F.3d 1194, 1202 (10 th Cir. 2005).

-20-
direct supervisors – Mr. Davis, Mr. Erickson, and Mr. Jones – suggested he apply

to be a Customer Service Representative to acquire customer service experience.

Mr. Erickson further pointed out that if he obtained such a position, the next step

would be to apply for a Rental Sales Agent position – a career path similar to the

one Mr. Erickson took and recommended for persons seeking the Shift Manager

position within the Operations division.

Even when Mr. Erickson identified available Customer Service

Representative positions for which he recommended Mr. Thomas apply, Mr.

Thomas never applied for such a position or for a position as a Rental Sales

Agent. To the extent Mr. Danheiser told him he could not hold a position

interacting with Avis customers, nothing in the record shows Mr. Danheiser’s

discussion with Mr. Thomas, which occurred after the Shift Manager position was

filled, was the cause of Mr. Thomas not obtaining that position or his eventual

termination.

Similarly, while Avis managers also encouraged Mr. Thomas to pursue a

technician position in Maintenance, where they thought he would be more

successful in pursuing a management position, such encouragement came after

they discussed Mr. Thomas pursuing the positions of Rental Sales Agent or

Customer Service Agent as a means to advance in Operations, in which he

-21-
indicated a disinterest. Thus, during the time in question, Mr. Thomas continued

in his position as a Service Agent based on his own decision not to apply for the

positions of Rental Sales Agent or Customer Service Agent and not because of

any disparate treatment by Avis in impermissibly “segregating” him from such

positions or its customers. More importantly, even if Mr. Thomas’s “segregation”

claim rose to a prima facie case of discrimination, he has not carried his burden to

show Avis’s articulation of a legitimate, non-discriminatory reason for his

termination based on its zero-tolerance lost and found policy was merely a pretext

for his termination or that his termination was otherwise based on his disability.

Finally, Mr. Thomas claims Avis discriminated against him by creating a

hostile work environment where managers disparaged his abilities based on his

deafness, tried to alter his conditions of employment by directing him to work in

Maintenance, and conducted a “hostile and demeaning interrogation” during his

termination meeting. According to Mr. Thomas, Avis created a hostile and

demeaning interrogation at his termination meeting when the Avis managers

talked amongst themselves without him being able to lip read or comprehend their

conversations. While Avis concedes that at one point during the interview,

Security Manager Bencale, who was questioning Mr. Thomas, may have been in

close proximity to him, causing Mr. Thomas to ask him to “please step back

away” from him as it was “not professional,” it nevertheless contends Mr.

-22-
Thomas has not carried his burden in establishing a hostile work environment

existed.

In evaluating a hostile work environment claim, we examine all the

circumstances, including: (1) the frequency of the discriminatory misconduct; (2)

the severity of the conduct; (3) whether the conduct is physically threatening and

humiliating or merely an offensive utterance; and (4) whether the conduct

unreasonably interfered with the employee’s work performance. See MacKenzie

414 F.3d at 1280. Thus, to successfully pursue a hostile work environment claim,

an employee must show his work environment was “permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of [his] employment ....” Id. (quotation marks

omitted). In addition, while Mr. Thomas may have somehow subjectively

perceived the Avis managers’ comments and suggestions as creating such a

hostile environment, “the environment must be both subjectively and objectively

hostile or abusive,” id., so that it is “one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to be so.” See

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In considering

whether a reasonable person would find his work environment hostile, we have

said the “real social impact of workplace behavior often depends on a

constellation of surrounding circumstances, expectations, and relationships which

-23-
are not fully captured by a simple recitation of the words used ....” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998) (applying social impact

in sexual harassment claim).

In determining Mr. Thomas failed to present evidence in support of his

hostile work environment claim, the district court noted the Avis managers, in

discussing Mr. Thomas’s future career route in either Operations or Maintenance,

merely tried to explain to him, based on his skill set and ability, that they did not

think he would be successful if he pursued his desired route in applying directly

for Shift Manager, and simply tried to advise him how he would most likely

succeed in advancing to a management position. It held such statements were

insufficient to meet the legal standard for a hostile work environment, including

any showing of frequent discriminatory misconduct which was severe, physically

threatening, or humiliating; which unreasonably interfered with his work

performance; or which otherwise changed the condition of his employment in the

position held. As a result, the district court determined Mr. Thomas failed to

show the environment created by management’s suggestion was so bad “that he

[couldn’t] do the existing job.” Similarly, with regard to an interpreter, the

district court held that even if Mr. Thomas unsuccessfully requested an interpreter

in his termination meeting, it did not rise to a level of persistent, on-going

offensive behavior creating a hostile work environment. We agree.

-24-
 In this instance, none of the career path suggestions Avis managers made,

when considered in context with the circumstances surrounding those suggestions,

created an environment which a reasonable person would find hostile or abusive

or would otherwise believe amounted to discriminatory changes in the terms and

conditions of employment. See Faragher, 524 U.S. at 787-88. As the district

court explained, Mr. Thomas’s managers simply provided advice as to how they

believed he could successfully advance into a management position after he

approached them with his unrealistic expectation of advancing directly to Shift

Manager without the requisite education or customer experience.

Similarly, neither the lack of an interpreter nor the other circumstances

surrounding Mr. Thomas’s termination meeting rise to an actionable hostile

environment claim. Nothing in the record establishes the lack of an interpreter

unreasonably interfered with his work performance or otherwise changed the

condition of his employment, especially given his admission at the meeting to

violating Avis’s zero-tolerance lost and found policy, from which his termination

stemmed. Furthermore, even though Mr. Thomas tape recorded his termination

meeting, he fails to provide evidence establishing a “hostile and demeaning

interrogation” occurred or that the circumstances presented otherwise met the

criteria of a hostile work environment actionable under the ADA. More

specifically, even if Avis managers: (1) talked amongst themselves without him

-25-
being able to lip read or comprehend their conversations at his termination

meeting; (2) terminated him for his admission to violating its zero-tolerance lost

and found policy even though they knew he did not conceal or intend to conceal

the hat; or (3) acted unprofessionally by being in close proximity to Mr. Thomas

during the meeting, these circumstances do not rise to the requisite level or type

of severe and pervasive physically threatening or humiliating conduct sufficient

for a claim. For all of these reasons, we agree with the district court that no

genuine issue exists as to any material fact on Mr. Thomas’s discrimination claim,

and Avis, as the moving party, is entitled to judgment as a matter of law.

C. Legal Standard on Retaliation

On appeal, Mr. Thomas continues to claim Avis retaliated against him by

firing him for complaining about its discriminatory action against him when he

failed to obtain the Shift Manager position. 4 To establish retaliation, an employee

4
On November 6, 2004, one day after his suspension, Mr. Thomas
contacted Airport Manager Erickson, telling him he intended to call the Avis
“Integrity Hotline” to report Mr. Gillette for allegedly stealing gas. Not only do
the vehicles contain anti-siphoning devices, but Mr. Erickson questioned why Mr.
Gillette would steal gas when it was a benefit he received as an Avis manager;
nevertheless, he advised Mr. Thomas to address the issue with Airport Manager
Davis or City Manager Jones. When Mr. Thomas stated he wanted to bypass
management and call the Integrity Hotline instead, Mr. Erickson told him he
could not discourage him from that course of action and left the decision up to
him.

Two days later, on November 8, 2004, an anonymous caller telephoned the
(continued...)

-26-
must show: (1) he engaged in protected opposition to discrimination; (2) a

reasonable employee would have found the challenged action materially adverse;

and (3) a causal connection existed between the protected activity and the

materially adverse action. See Hennagir, 587 F.3d at 1265. The burden shifting

analysis for retaliation is similar to that for proving a claim for discrimination. If

an employee establishes a prima facie case of retaliation, the employer “has the

burden of coming forth with a legitimate, nondiscriminatory reason for adverse

action.” Id. (quotation marks omitted). If the employer carries that burden, the

burden shifts back to the employee to show “the reason given by the employer is

mere pretext for the real, discriminatory reason for the adverse action.” Id.

(quotation marks omitted).

In applying these principles, the district court granted summary judgment to

Avis on Mr. Thomas’s retaliation claim, explaining it was undisputed the decision

to suspend Mr. Thomas pending an investigation came before anyone at Avis was

4
(...continued)
Integrity Hotline, accusing Mr. Gillette of improperly siphoning gasoline from
Avis cars for personal use and stating the call was made on behalf of a hearing-
impaired thirteen-year Avis employee. Avis responded by promptly investigating
the allegations, including interviewing Mr. Thomas, but ultimately cleared Mr.
Gillette of any wrongdoing. To the extent Mr. Thomas’s retaliation claim relates
to his complaint about Mr. Gillette, he has offered no evidence in support thereof,
especially in light of Avis’s legitimate, non-discriminatory reason for terminating
him, as discussed hereafter.

-27-
aware of Mr. Thomas’s formal Utah discrimination claim. It also determined that

while Mr. Thomas verbally complained to Regional Manager Eisenbarth and

Human Resources Manager Danheiser about not being selected for the position of

Shift Manager because of his disability, no evidence existed from which one

could reasonably infer a connection between his termination and those earlier

complaints, even if they were a protected activity. Instead, the district court

determined Mr. Thomas failed to provide evidence showing the person making the

decision to terminate him knew of any of these complaints or that they were

otherwise related to the decision to terminate him.

We agree. Even if Mr. Thomas’s allegations somehow did rise to a prima

facie case of retaliation, Avis met its burden of providing a legitimate,

nondiscriminatory reason for its adverse action when it explained he violated its

lost and found policy which, without exception, resulted in termination of all

other employees who violated it. As Avis contends, Mr. Thomas admitted he

violated that policy and knew of the consequences for such a violation. Once

Avis carried its burden of providing this legitimate, non-discriminatory reason for

his termination, the burden shifted back to Mr. Thomas to show the reason given

was mere pretext for the real discriminatory reason for the adverse action, which

he failed to do. In making this pretext determination, we examine the facts as

they appeared to the Avis manager making the decision to terminate Mr. Thomas,

-28-
see Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10 th Cir. 2001), and

“may not act as a super personnel department that second guesses employers’

business judgments,” Jaramillo, 427 F.3d at 1308 (quotation marks omitted).

Thus, we may not determine if it was an unwise, unfair, or incorrect decision;

instead, we look to whether the employer honestly believed the reason given and

acted in good faith on that belief. See Rivera v. City & County of Denver, 365

F.3d 912, 924-25 (10 th Cir. 2004). In this instance, Mr. Thomas admitted to

violating Avis’s lost and found policy on which City Manager Jones honestly

relied and acted in good faith in terminating him. Nothing about the

circumstances presented is sufficient to successfully pursue a claim of retaliation.

Applying our de novo review to the district court’s summary judgment

decision, and after considering the evidence in the light most favorable to the

non-moving party and drawing all reasonable inferences from the available

underlying facts, we conclude no genuine issue as to any material fact exists with

respect to Mr. Thomas’s discrimination or retaliation claims. Accordingly, we

agree with the district court that Avis, as the moving party, is entitled to judgment

as a matter of law on all claims included in its motion for summary judgment.

-29-
 IV. Conclusion

For the reasons cited herein, we AFFIRM the district court’s summary

judgment decision in favor of Avis.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

-30-