Richardson v. Gallagher

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 29, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

MARCUS RICHARDSON,

Plaintiff-Appellant,

v. No. 12-1410
(D.C. No. 1:10-CV-02097-MSK-CBS)
DENNIS GALLAGHER, in his official (D. Colo.)
capacity as Auditor, and in his
individual capacity; JOHN
CARLSON, in his official capacity as
Deputy Director of Audit Services,
and in his individual capacity; DAWN
SULLEY, in her official capacity as
Deputy Auditor, and in her individual
capacity; DENVER AUDITOR’S
OFFICE; CITY AND COUNTY OF
DENVER,

Defendants-Appellees.
______________________________

ORDER AND JUDGMENT *

Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.

Appellant Marcus Richardson appeals the district court’s grant of summary

*
This order and judgment is not binding precedent except under the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.
judgment in favor of Appellees, including the City and County of Denver (also

referred to herein as City); the Denver Auditor’s Office (Auditor’s Office);

Dennis Gallagher in his individual capacity and official capacity as Auditor; John

Carlson in his individual capacity and official capacity as Deputy Director of

Audit Services; and Dawn Sulley in her individual capacity and official capacity

as Deputy Auditor. His complaint against Appellees charges racial discrimination

and retaliation in violation of the Fourteenth Amendment and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 1983 and 1988, as amended, 42

U.S.C. §§ 2000e to 2000h-6. The crux of Mr. Richardson’s civil rights lawsuit

centers on his claims of disparate treatment because of his race as an African

American and retaliation following his allegations of race discrimination. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Factual Background

In its order on summary judgment, the district court relied on the following

material undisputed facts and, if disputed, on facts in favor of Mr. Richardson; we

add only a few additional undisputed facts helpful to our disposition of this

appeal. Mr. Richardson is an African American male who, from 1983 to

November 15, 2010, was an employee of the Auditor’s Office, eventually holding

the title of Internal Audit Supervisor in which he was responsible for performing

contract “compliance audits” for the City and managing a team of subordinates

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jointly working with him on such audits. 1 On January 1, 2008, as a result of a

voter-approved initiative concerning the Auditor’s Office, auditors also began to

do “performance audits,” assessing whether governmental agencies efficiently and

effectively met their objectives. 2 Although Mr. Richardson previously received

“exceptional” job performance ratings, his May 2008 performance review,

conducted for the first time under the performance audit system, resulted in an

overall rating of “successful,” which is a rating one step below “exceptional.”

His evaluation, conducted by his then-direct supervisor, Dick Wibbens, indicated

he should attempt to improve in areas relating to accepting responsibility for his

own work, providing increased coaching and mentoring of his team, and

completing audits in a timely manner. Notwithstanding these identified problems,

in 2008 and 2009 Mr. Richardson’s audit team completed more audits and

succeeded in identifying more money owed to the City than any other team.

As part of the new voter-approved initiative, certain supervisory changes

also occurred in the Auditor’s Office; as a result, Kip Memmott received a

promotion to Director of Audit Services, and thereafter, in December 2008, hired

1
A compliance audit is essentially a review of the business application of
a contract to ensure the terms and conditions of that contract are satisfied.
2
Performance audits include compliance audits but also are more complex
and focus on effective use of tax dollars and other revenues as well as evaluate
the effectiveness of city governance and related processes. This type of audit
requires a different, higher skill set than the more traditional compliance audits
previously performed.

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John Carlson as Deputy Director of Audit Services. In Mr. Carlson’s opinion, the

Auditor’s Office needed to improve its performance in various respects, including

issues relating to quality control, writing skills, and timely issuance of audit

reports. 3

In May 2009, Mr. Carlson, now Mr. Richardson’s supervisor, evaluated him

for the first time, giving him another “successful” rating and inviting him to

improve his performance in various aspects, including improving his supervisory

and written communication skills as well as completing audits in a more timely

manner. Mr. Richardson responded with a memorandum he gave to Mr. Carlson,

Mr. Memmott, and others in which he disagreed with Mr. Carlson’s conclusions

and offered explanations for the identified performance problems. His response

centered on problems with another team member whose work he had to rewrite

and his assertion that other auditors also performed poorly. He also stated:

As a Black male supervising and working with a diverse group of
colleagues, it can be somewhat difficult because employees come
from different backgrounds and cultures and in many cases do not
always understand or want to understand persons different from
themselves. In this rating period, I believe my supervisor has placed
a higher standard on me because of this lack of understanding.

He also suggested “some level of understanding is needed by all persons affected

here through developing an understanding of the cultures of someone different

3
Similarly, Mr. Memmott, in his new position, also identified improving
writing skills and timely issuance of audit reports as some of the goals under the
new regime and believed past performance evaluations were highly inflated and
not reflective of the work produced.

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than themselves,” recommended initiating “some action that will assist us all to

increasing the level of understanding, tolerance, and patience with others,” and

requested an independent evaluation of Mr. Carlson’s rating of him. 4

In his May 2010 evaluation, Mr. Richardson again received a rating of

“successful,” along with criticisms and suggestions for improvement, including

suggestions to improve his written work product and criticism over his missing

deadlines and the type of evidence he used to support his audit conclusions.

Thereafter, Mr. Richardson and his team did not complete several audits in a

timely manner, including two audits started in December 2009 and planned for

completion on May 20, 2010, which were not completed in May, and extended

deadlines of June 17, July 15, and August 19, 2010, were also missed.

In August 2010, Mr. Carlson stated his continuing dissatisfaction with

certain aspects of Mr. Richardson’s performance and placed him on a

“performance improvement plan” for the purpose of relieving him of supervisory

responsibilities, giving him specific goals and objectives to achieve, and requiring

him to meet weekly with Mr. Carlson and another supervisor to discuss his

progress and performance. The letter embodying the performance improvement

4
Mr. Memmott put a memo in Mr. Richardson’s file responding to his
memorandum by discussing his performance defects and problems. While the
parties dispute whether the memo was placed in his file in May or September
2010, it is irrelevant given the district court did not rely on it for the purpose of
granting summary judgment, and other evidence in the record more than
sufficiently outlines Mr. Richardson’s performance deficiencies.

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plan stated Mr. Richardson failed to meet several fixed deadlines on audits and

directed him to achieve improvement in “completing quality performance audits

early or on time based on work plans developed by the audit team,” 5 “deliver[ing]

projects in a timely manner,” giving “timely notification to colleagues,” ensuring

“co-workers have awareness of when tasks will be completed,” improving

“written and oral communication regarding audit work,” and delivering “timely,

clear, accurate, and well-written audit reports based on the five elements of a

finding and representing the best and final effort of the individual and audit

team.”

At weekly meetings in August and September 2010, Mr. Richardson’s

evaluators pointed out his grammatical errors, structural flaws, and other errors in

his audits and projects, including his omission of the five elements required for an

audit. In addition, Mr. Carlson and another supervisor filed a complaint with Mr.

Memmott, noting Mr. Richardson behaved in an “intimidating and threatening”

manner, “pointing his finger in [one of their] face[s],” and pacing the room in

frustration while complaining of unfair treatment; another person also witnessed

this behavior and it is reflected in the minutes of the meeting. This behavior is

the reason stated for Mr. Richardson receiving a written reprimand. Mr.

5
Mr. Carlson stated in his declaration that deadlines within an audit
project were set by the audit team itself, including Mr. Richardson and his
subordinates. In turn, Mr. Richardson generally claimed Mr. Carlson set
“inconsistent” or “unreasonable” deadlines that all supervisors missed.

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Richardson, who apparently disagreed with their characterization of his behavior

and the propriety of the reprimand, eventually filed a grievance regarding the

reprimand.

In addition, shortly after receiving the written reprimand, Mr. Richardson

commenced the instant discrimination and retaliation action while maintaining his

employment with the Auditor’s Office. 6 Meanwhile, the parties continued to have

weekly meetings with Mr. Richardson in which Mr. Carlson and others continued

to assign or remove tasks from him. In instances too numerous to detail here,

they also provided constructive criticism of his work performance involving his

failure to address questions posed to him, failure to produce an adequate or

satisfactory audit which included the requisite five elements, and his grammatical

errors and lack of timeliness. Mr. Richardson refused to sign the reports from

most of those meetings.

6
In early September 2010, Mr. Memmott wrote to the Human Resources
Office, requesting it “perform a ‘trend analysis’” of employee ratings, both pre-
and post-2008, to rebut Mr. Richardson’s contention the office had
“inconsistently addressed the performance of [employees] ... in a discriminatory
manner” and stating “the trend analysis should clearly demonstrate that the
documented performance of several supervisors ... declined and that these
performance issues were clearly documented.” While the district court noted Mr.
Richardson’s belief Mr. Memmott’s use of the word “should” directed the Human
Resources Office to create an analysis meeting his expectations, it stated its belief
he used the word in the sense of expectation, believing a fair analysis would
likely demonstrate the post-2008 evaluations were proper and nondiscriminatory.
In any event, we agree with the district court that this communication does not
meaningfully bear on Mr. Richardson’s claims nor on the disposition of this
appeal.

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 On October 27, 2010, the Auditor’s Office issued a pre-termination letter,

notifying Mr. Richardson it was considering terminating his employment as a

result of his failure to demonstrate adequate improvement under his performance

improvement plan and stating he had been placed on the plan for the purpose of

providing “quality performance audits early or on time based on the work plan

developed by the audit team,” “thoughtful and efficient use of time in the office

to deliver projects in a timely manner,” “timely notification to colleagues when

working in a team environment,” as well as “[i]mprovement in written and oral

communication regarding audit work.” It also provided an exhaustive list

summarizing each performance improvement meeting and the defects in Mr.

Richardson’s performance and failure to make improvements, including problems

with grammar, failure to apply the requisite elements for audits, and failure to

prepare a changed red-lined version of an audit report. Having determined he

failed to meet established standards of performance involving both “qualitative

and quantitative” standards and that attempts at improving his performance had

been “to no avail,” the letter advised a hearing had been scheduled for November

8, 2010, to permit him to make a statement of his position and present evidence

contradicting Auditor’s Office records. Mr. Richardson submitted a written

response, contending, in part, that other than missing deadlines, no significant or

specific examples were provided demonstrating that his supervisory and audit

skills were inadequate at the time he was placed on the plan, suggesting other

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supervisors missed deadlines, and pointing out he produced more audits in 2009

than other supervisors.

On November 15, 2010, the Auditor’s Office terminated his employment,

citing his failure to meet performance standards and his carelessness in the

performance of his duties. The termination letter again provided an exhaustive

account of his performance problems documented at each of the weekly meetings

and his failure to improve in the areas outlined in each weekly plan, including the

fact that one of the large audits and reports he prepared was “one of the poorest

‘best and final’ drafts” Mr. Memmott had ever seen, the same report lacked any

structure or evidence to support the findings listed therein, and he spent many

hours on his audit work and related tasks without a deliverable product equal to

the amount of time spent. It concluded, based on the tasks assigned and failure to

perform those tasks, that Mr. Richardson was not successfully performing work at

even two levels below his current supervisory level and was unable to properly

perform the work necessary to be an effective Internal Audit Supervisor. This is

supported by those evaluating Mr. Richardson’s work under the performance

improvement plan concluding he did not have the skill set to perform the more

complex performance audits at the level of Internal Audit Supervisor or at lower

supervisory levels. In a letter issued two days later, the Human Resources

Director also responded to Mr. Richardson’s formal grievance regarding the

earlier written reprimand, stating, in part, that “[w]hile the written reprimand was

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one contributing factor, the ultimate decision [to terminate] was made primarily

as a result of you not showing an acceptable level of improvement in your

performance” under the plan. Mr. Richardson unsuccessfully appealed his

grievance.

II. Procedural Background

Thereafter, Mr. Richardson amended his complaint, which the district court

correctly characterized as presenting three claims, including allegations the

individual Appellees: (1) violated 42 U.S.C. § 1983, including his constitutional

guarantee of equal protection, by engaging in racial discrimination against him;

(2) violated 42 U.S.C. § 1981 based on the same racial discrimination and

retaliation; and (3) committed negligent hiring under § 1983 giving rise to

municipal liability for the individual defendants’ constitutional violations.

Thereafter, Appellees filed their answer and a motion for summary judgment

which the district court granted. In its opinion and order granting the motion, the

district court thoroughly addressed the issues raised by the parties and

determined, after considering the parties’ shifting burdens, that Mr. Richardson

failed to show either discrimination based on race or retaliation following his

complaints of race discrimination.

To begin, the district court found that even if Mr. Richardson carried his

burden of showing his adverse employment actions gave rise to an inference of

race discrimination, Appellees met their burden of articulating a legitimate,

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nondiscriminatory reason for his placement on the plan and eventual termination

based on their belief his work performance was insufficiently satisfactory and did

not improve over time while he was on the performance improvement plan. It

then explained the burden shifted to Mr. Richardson to show this proffered reason

constituted pretext for discrimination, and he failed to meet his burden given

Appellees’ criticisms against Mr. Richardson were not entirely subjective in

nature but, rather, as the performance improvement plan letter pointed out,

included objectively-ascertainable tasks, including his failure to meet several

fixed deadlines on certain audits after providing directions for him to complete or

deliver his audits on time and ensure co-worker awareness of tasks for

completion. It also pointed out the pre-termination letter similarly discussed

several objectively-ascertainable defects in his performance, including his failure

to submit a red-lined version of a modified report, his grammatical errors, and the

fact members of his team complained to management about his rewriting of

reports without their input. 7 It concluded that even though some of the criticisms

entailed subjective criteria, other documented criticisms also showed objective

assessment of errors and omissions.

As to Mr. Richardson’s evidence allegedly showing Appellees’ proffered

reasons were pretext for discrimination because similarly-situated white co-

7
As previously noted, the same or similar problems with Mr. Richardson’s
performance were outlined in the termination letter.

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workers received more favorable treatment, the district court found, as supported

by the record, that those individuals were not similarly-situated. It made this

determination because two of them left employment shortly after Mr. Carlson’s

appointment as a supervisor or were not treated materially differently than him

given the similarly-situated white female he identified was also placed on a

performance improvement plan and eventually chose to voluntarily demote.

Without the ability to demonstrate that similarly-situated white employees were

treated more favorably, the district court concluded Mr. Richardson’s long service

in the Auditor’s Office did not protect him from the arrival of a new supervisor

with a more critical eye or changes in policies and expectations that arrived with

new direction and management.

With respect to his retaliation claims, the district court also employed the

requisite shifting of burdens for retaliation claims and determined Mr. Richardson

carried his burden of showing his termination was temporally connected to his

complaint of discrimination to management and his filing of his discrimination

action. However, because the adverse actions supporting his retaliation claims

were essentially the same as those underlying his unsuccessful race discrimination

claim, the district court found he failed to produce sufficient evidence to

demonstrate the falsity of Appellees’ articulated, legitimate, non-retaliatory

reasons for his placement on the performance improvement plan or termination or

that they were pretext for either discrimination or retaliation. Because Mr.

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Richardson failed to demonstrate triable claims against any of the individual

Appellees, it further concluded it did not need to address his contentions the City

and County of Denver shared municipal liability for unlawful actions committed

by those individuals. It then granted Appellees’ summary judgment motion and

this appeal ensued.

III. Discussion

On appeal, Mr. Richardson raises the same contentions comprehensively

addressed and rejected by the district court in its summary judgment decision,

including his claim Appellees discriminated and retaliated against him based on

his race and that their proffered reasons for his termination constituted pretext for

such discrimination and retaliation. He suggests he satisfactorily performed his

job as Internal Audit Supervisor, including the fact his team successfully

completed more performance audits in 2009 than other teams and successfully

completed two performance audits in 2010. He also complains that Mr. Carlson

unfairly changed the criteria for his performance improvement plan six times. He

also alleges that by being demoted and terminated, he was treated differently and

less favorably than a white female Internal Audit Supervisor the district court

determined was treated similarly to him and “all other Internal Audit

Supervisors,” who he generally states also submitted draft reports needing

improvement. In support of his retaliation claim, Mr. Richardson relies on Mr.

Carlson’s admission he used subjective criteria to evaluate his job performance

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when he was placed on the performance improvement plan. Mr. Richardson also

claims in a cursory statement that Ms. Sulley failed to notify him of his appeal

and mediation rights when issuing the reprimand, which he claims constitutes

pretext for discrimination, and further claims she launched a biased investigation

of him after he filed his lawsuit, which failed to produce any material “dirt.” In

support of his contentions, he summarily contends the district court erred in (1)

overlooking or weighing evidence, or improperly considering inadmissible

evidence; and (2) assessing the credibility of witnesses, which he points out is the

province of a jury. Apparently, as part of his contention regarding such evidence,

he claims the Appellees’ affidavits should not be considered because none state

“they are made on ‘personal knowledge’” or are notarized and dated; the

signatures for Mr. Memmott and Ms. Sulley appear over the typed name of Mr.

Gallagher; and Appellees’ attorney behaved inappropriately in “mentioning [Mr.]

Richardson’s resignation” and trying to dissuade a witness favorable to him from

assisting Mr. Richardson.

A. Standard of Review and Discrimination Law

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

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

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

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the record shows there is no genuine dispute as to any material fact and the

moving party is entitled to judgment as a matter of law. See id; Fed. R. Civ. P.

56(a). In considering a summary judgment motion, courts “must not judge

witness credibility or weigh evidence.” Daniels v. United Parcel Serv., Inc., 701

F.3d 620, 627 (10th Cir. 2012).

To prevail on a disparate treatment claim under Title VII of the Civil

Rights Act, an employee must show the employer intentionally discriminated

against him for a reason prohibited by the Act. Jaramillo, 427 F.3d at 1306. An

employee may prove a violation by either direct evidence of discrimination or

through circumstantial evidence where we apply the burden-shifting framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik

v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Under McDonnell

Douglas, the employee must establish a prima facie case of discrimination by

showing: (1) he is a member of a protected class; (2) who suffered an adverse

employment action; and (3) such adverse action occurred in circumstances giving

rise to an inference of discrimination. See Tabor v. Hilti, Inc., 703 F.3d 1206,

1216 (10th Cir. 2013). We have said the burden at this stage is “not onerous.”

Id. If the employee establishes such a prima facie case, 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.” Jaramillo, 427 F.3d at 1307. “If the [employer] carries its burden of

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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.

Where an employer advances a number of reasons for an adverse

employment action, we have adopted a “general rule” that “an employee must

proffer evidence [showing] each of the employer’s justifications is pretextual.”

Lobato v. New Mexico Env’t Dept., 733 F.3d 1283, 1289 (10th Cir. 2013) (internal

quotation marks omitted). An employee, like Mr. Richardson, 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. (internal quotation marks omitted). We

have said “[e]vidence of pretext may include prior treatment of [the employee];

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.” Jaramillo, 427 F.3d

at 1308. Evidence that similarly-situated employees received different treatment

is also indicative of pretext and pertains to “those who deal with the same

supervisor and are subject to the same standards governing performance

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evaluation and discipline.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1120

(10th Cir. 2007) (internal quotation marks omitted).

Recognizing subjective criteria can indicate pretext, we “view with

skepticism the use of subjective evaluations in making termination decisions.”

Plotke v. White, 405 F.3d 1092, 1106 (10th Cir. 2005). However, the existence of

subjective criteria alone is not considered evidence of pretext. 8 See Pippin v.

Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195 (10th Cir. 2006). We realize

the use of subjective considerations by employers “must play some role” in

certain management decisions, and therefore, subjective considerations or factors

are reviewed on a case-by-case basis. See Green v. New Mexico, 420 F.3d 1189,

1195 (10th Cir. 2005). In addition, we proceed with caution in considering the

relative merits of individual employees, given this court may not “act as a super

personnel department that second guesses employers’ business judgments.”

Conroy v. Vilsack, 707 F.3d 1163, 1177 (10th Cir. 2013) (internal quotation

marks omitted). In making a pretext determination, a court looks at the facts as

they appeared to the person making the employment decision because it is the

employer’s “‘perception of the employee’s performance that is relevant, not [the

employee’s] subjective evaluation of his own relative performance.’” Kelley v.

8
We distinguish between employment decisions based on objective
criteria, which are generally immune to employer manipulation, and those based
on subjective criteria, “which are particularly easy for an employer to invent in an
effort to sabotage a plaintiff’s prima facie case and mask discrimination.” Ellis v.
United Airlines, Inc., 73 F.3d 999, 1004-05 & nn.6, 8 (10th Cir. 1996).

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Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000) (quoting

Furr v. Seagate Tech, Inc., 82 F.3d 980, 988 (10th Cir. 1996)). While Title VII,

including §§ 1981 and 1983, prohibits race discrimination in employment, it does

not protect employees against management decisions that are unwise, illogical,

seemingly arbitrary, or seemingly unfair. See Adamson v. Multi Cmty. Diversified

Serv., Inc., 514 F.3d 1136, 1153 (10th Cir. 2008.) 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.”

Lobato, 733 F.3d at 1289 (internal quotation marks omitted).

B. Discrimination Claim

Having considered the applicable standards of review, burdens of proof and

production, and legal principles, we turn to the district court’s well-reasoned

decision. In ruling in favor of Appellees, the district court proceeded to the

proper McDonnell Douglas analysis. In so doing, it noted Mr. Richardson, as an

African American, was a member of a protected class and assumed, for the

purpose of resolving the summary judgment motion, that his treatment in being

placed on the performance improvement plan and his termination were adverse

actions demonstrating a prima facie case of discrimination. On considering the

shifting burden of proof, it determined Appellees provided legitimate, non-

discriminatory reasons for his placement on that plan and his eventual

termination. We agree. Not only did the employee evaluations point out

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tardiness in completion of Mr. Richardson’s audits, but, as the district court

pointed out, the document outlining his performance improvement plan leveled

similar criticisms regarding his failure to meet several fixed deadlines on audits

and provided directions for him to complete or deliver his audits on time and

ensure co-worker awareness of tasks for completion. While Mr. Richardson, on

appeal, points to the fact he completed numerous other audits and in the past

performed in an exemplary manner, we look at the facts as they appeared to the

person making the employment decision at the time at issue and his or her

perception, not the employee’s subjective evaluation of his own relative

performance. Not only does the record disclose that Mr. Richardson did not

perform timely audits but he does not contest the fact that he did not complete

certain audits or complete them in a timely manner, including the two large audits

originally due in May 2010 which were not completed until after multiple

deadline extensions. As the district court pointed out, the new regime made it a

goal or priority to improve audit performance in various respects, including the

timely issuance of audit reports as well as improvement of quality control and

writing skills.

Even if the deadlines were subjective, timeliness was only one performance

problem of many. As revealed by the weekly meeting minutes outlined in the

pre-termination and termination letters, Mr. Richardson’s performance problems

also stemmed from his failure to submit work with the required red-lined

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corrections, his submission of audits omitting the required audit elements and

containing grammatical errors, and complaints from his team about his

performance in rewriting audit reports without team input. As the district court

indicated, these problems point to clear, objectively-ascertainable defects in his

performance. Indeed, a review of the record in its entirety reveals multiple

problems with Mr. Richardson’s audits, his failure to address or adequately

explain the reasons for these problems, and his supervisors’ and evaluators’ belief

he could not perform the tasks required, not only at the level of Internal Audit

Supervisor, but at lower supervisory levels. 9 For these reasons, we agree

Appellees carried their burden of articulating legitimate, facially

nondiscriminatory reasons for placing Mr. Richardson on a performance

improvement plan and terminating him for failure to improve his performance in

these respects.

Having determined Appellees met their requisite burden, we turn to Mr.

Richardson’s argument regarding pretextual discrimination in which he cursorily

claims he was treated differently and less favorably than “all other Internal Audit

9
We note the record on appeal contains portions of hearing transcripts
from the Career Service Board of Mr. Richardson’s appeal of his grievance.
While Mr. Richardson relied significantly on these transcripts in his pleadings
before they district court, and to a certain extent on appeal, some of them do not
identify who is testifying. In addition, only certain pages are replicated, skipping
from a few or several lines on one page to a few or several lines many pages later,
making it difficult to place the testimony into context or garner the complete
testimony on a particular subject.

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Supervisors,” who he generally states also submitted draft reports needing

improvement; and the white female Internal Audit Supervisor, who the district

court determined was treated similarly to him. While Mr. Richardson names

several individuals to whom we assume he is referring when he uses the blanket

reference “all other Internal Audit Supervisors,” he does not provide any

specifics, including whether they were also supervised by Mr. Carlson or what

problems were contained in their draft reports in comparison to his draft reports.

One “cannot create a triable issue of fact by making an assertion without

supporting facts.” Kelley, 220 F.3d at 1177. Moreover, the record on appeal only

provides annual performance evaluations for three of those individuals for the

purpose of comparison. As to two of these individuals, we agree with the district

court’s determination they were not similarly-situated, given they left their

employment with the Auditor’s Office only a few months after Mr. Carlson’s

appointment as supervisor, and Mr. Carlson did not have an opportunity, as he did

with Mr. Richardson, to observe a year’s worth of their performance or place

them on a performance improvement plan. As the district court concluded, this is

insufficient to show they were similarly-situated for the purpose of determining

whether his placement on a performance improvement plan and termination were

racially motivated.

In addition, it is clear Mr. Richardson was not treated differently than the

white female to whom he refers, given, as the district court points out, she was

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also placed on a performance improvement plan and eventually chose to

voluntarily demote. While she was placed in a less demanding position

commensurate with her capabilities, 10 the district court also pointed out Mr.

Richardson did not contend, in response to the summary judgment motion, that an

open position existed that matched his capabilities or skills or that he applied for

such a position. For these same reasons, Mr. Richardson has not shown he was

treated differently, and we agree he failed to carry his burden of establishing

pretextual discrimination.

As to Mr. Richardson’s cursory claim the district court overlooked or

improperly weighed evidence, considered inadmissible evidence, and improperly

made credibility determinations, we can only assume without further explanation

that he is referring to Appellees’ affidavits which he now complains are not

properly signed, notarized, or dated. In response, Appellees suggest Mr.

Richardson should have filed a motion to strike such exhibits, and because he

failed to do so, the issue is waived under Noblett v. Gen. Elec. Credit Corp., 400

F.2d 442 (10th Cir. 1968). 11 They also contend the district court did not err or

10
Even though this white female was not supervised by Mr. Carlson, the
district court nevertheless considered Mr. Richardson’s argument before
discrediting it on other grounds.
11
As Appellees contend, generally, a party objecting to an affidavit or
declaration moves to strike the document. See Hancock v. Am. Tel. and Tel. Co.,
701 F.3d 1248, 1262 (10th Cir. 2012), cert. denied, 133 S. Ct. 2009 (2013);
Noblett, 400 F.2d at 445. And where, as here, no objection is made and no gross
(continued...)

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abuse its discretion in considering them, given the affidavits were made under

penalty of perjury, met the requirements of 28 U.S.C. § 1746, and no local or

other court rule prohibits e-signature. In replying to Appellees’ contention he

waived the issue, Mr. Richardson provides a record reference–albeit in one

parenthetical sentence in a record consisting of 674 pages–indicating the affidavit

of Mr. Memmott is noncompliant with Rule 56 because it contains only his typed

name over the typed name of Dennis Gallagher.

We begin by noting that Mr. Richardson’s cursory, parenthetical sentence,

pointing out a perceived disparity in only Mr. Mermott’s affidavit, does not

constitute meaningful notice of an objection requiring a response by the district

court under the circumstances of this case. Moreover, even without consideration

of Mr. Memmott’s declaration, the result would be the same, given the other

affidavits and evidence in the record support the district court’s summary

judgment order. However, even if we consider Mr. Richardson’s argument as one

raised below and unaddressed by the district court, he cannot prevail with respect

to this or the other affidavits.

In the past, Federal Rule of Civil Procedure 56 required papers referred to

in an affidavit to be “sworn,” which we defined as “a statement reduced to writing

and the truth of which is sworn to before someone who is authorized to administer

11
(...continued)
miscarriage of justice is indicated, an argument regarding technicalities in the
form of the affidavit is unpersuasive. See Noblett, 400 F.2d at 445.

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an oath,” thereby indicating a requirement for notarization of a signature. Elder-

Keep v. Aksamit, 460 F.3d 979, 984 (10th Cir. 2006) (internal quotation marks

omitted). The current version of Rule 56 no longer uses the term “sworn” and,

instead, states, “[a]n affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the

matter stated.” Fed. R. Civ. P. 56(c)(4). The Advisory Committee note

concerning the change explains “[a] formal affidavit is no longer required,” and

the requirement that a statement reduced to writing be sworn no longer applies.

See Fed. R. Civ. P. 56, Advisory Comm., 2010 amends., subdiv. (c). Instead, it

points out “28 U.S.C. § 1746 allows a written unsworn declaration, ... subscribed

in proper form as true under penalty of perjury to substitute for an affidavit.” Id.

Section 1746 also indicates a date and signature are required.

In this case, it is clear that even though the statements of Appellees are

titled as “affidavits,” they more closely resemble a written declaration under 28

U.S.C. § 1746. See Peters v. Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir.

2002). Each of the “affidavits” of which Mr. Richardson complains has an

affirmation by the declarant of being provided “under penalty of perjury,” sets out

facts admissible as evidence, and states they are made on personal knowledge.

This meets the “under penalty of perjury” and other requirements in 28 U.S.C.

§ 1746.

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 As to the absence of a date on the affidavits, we would not ordinarily

condone their absence. However, Mr. Richardson not only failed to raise the

issue before the district court but has not explained why he could not have raised

the issue earlier or how he was prejudiced by the absence of a date. Moreover, as

the Sixth Circuit has explained, the absence of a date does not render a

declaration invalid if extrinsic evidence demonstrates, as it does here, the period

in which the declaration is signed. See Peters, 285 F.3d at 476-77. Similarly, we

decline to address the issue of the use of e-signatures, given Mr. Richardson’s

failure to contest the use of such signatures before the district court or adequately

address the issue on appeal; Appellees’ representation no local rule prohibits e-

signatures on non-attorney declarations; and the fact the other evidence in the

record, including the weekly minutes from the performance improvement plan

meetings, supports the district court’s summary judgment decision. 12

Instead of focusing on the fact electronic signatures were even used, Mr.

12
Without deciding the issue, we recognize certain federal district courts
in other jurisdictions allow, under their local rules, the submission of non-
attorney declarations with electronic signatures, requiring, in some instances,
counsel to retain the original, signed declaration. See Brown v. White’s Ferry
Inc., 280 F.R.D. 238, 244 (D. Md. 2012); Schaub v. Doran, 2012 WL 4866677, at
*1 n.1 (C.D. Ill. Oct. 12, 2012) (unpublished op.); Manriquez v. Huchins, 2012
WL 5880431, at *2 (E.D. Cal. Nov. 21, 2012) (unpublished op.); Deleon v.
Hoffman, 2012 WL 75805, at *6 & n.6 (W.D. N.Y. Jan. 10, 2012) (unpublished
op.); Wildearth Guardians v. U.S. Sec’y of the Int., 2011 WL 1225558, at *5 n.2
(D. Idaho Feb. 11, 2011) (unpublished op.); Sterling Sav. Bank v. JHM Props.,
LLC, 717 F. Supp. 2d 1142, 1146 (D. Or. 2010). But see Fox v. Brown Mem.
Home, Inc., 2010 WL 4983153, at *1 (S.D. Ohio Dec. 2, 2010) (unpublished op.).

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Richardson’s appellate brief focuses on the fact Mr. Memmott’s and Ms. Sulley’s

e-signatures appear over the typed name of Mr. Gallagher. However, it is evident

the affidavits of Mr. Memmott and Ms. Sulley are indeed their declarations and

not those of Mr. Gallagher, who provided his own separate affidavit, despite the

fact his name is typed under their signature lines. This is because both affidavits

are individually titled “Affidavit of Kip Memmott” and “Affidavit of Dawn

Sulley”; identify the affiants as Kip Memmott and Dawn Sulley; begin by

recognizing them as the persons making the declarations “under penalty of

perjury” and the statements that follow; identify them by their respective

positions; end by stating, “I, Kip Memmott [or in her declaration, Dawn Sulley],

hereby certify under penalty of perjury that the foregoing affidavit is true to the

best of my knowledge, information, and belief”; and contain their names on the

signature lines above the typed name of “Dennis Gallagher.” We can only

presume the typed name of “Dennis Gallagher” is an inadvertent mistake which

we deem has no bearing on the substance of the declarations within. Under these

circumstances and for all the reasons provided herein, no “gross miscarriage of

justice” is indicated by their consideration. See Noblett, 400 F.2d at 445. The

district court’s reliance on these and the other affidavits is reasonable, and we

find no evidence in the record that it participated in any inappropriate credibility

determinations, nor has Mr. Richardson provided any examples of inappropriate

credibility determinations for our review.

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 Mr. Richardson’s cursory allegations on appeal that Appellees’ attorney

behaved inappropriately in “mentioning [Mr.] Richardson’s resignation” and

trying to dissuade a witness favorable to him from assisting Mr. Richardson is

insufficient without record citation or additional argument and/or evidence for our

discussion. As previously noted, Mr. Richardson cannot create a triable issue of

fact by simply making a cursory assertion without supporting facts, Kelley, 220

F.3d at 1177, and failure to develop an argument on appeal constitutes waiver of

such argument, see United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir.

2012). Similarly, his one-sentence argument in his appellate brief claiming Ms.

Sulley failed to notify him of his appeal and mediation rights for the purpose of

showing pretext is also not sufficiently developed for our consideration.

Moreover, even if we considered this cursory argument on appeal, our review of

the record suggests it is unworthy of our reversal on appeal. As the Appellees

point out, any mistake in notice of his appeal and grievance rights was corrected

when a new reprimand letter issued containing that information after the first one

omitted it; Mr. Richardson did in fact file an appeal to a hearing officer; and the

reprimand, which was based on his alleged threatening conduct at a weekly

meeting, was only one of numerous reasons cited for his termination. As such, no

pretext for racial discrimination has been established, and even if it has, Mr.

Richardson must provide proof of pretext, not only for this one incident, but for

each and every one of the legitimate, nondiscriminatory reasons provided for his

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termination and/or placement on the performance improvement plan, which he has

failed to do.

We also reject Mr. Richardson’s argument pretext exists given his claim

Ms. Sulley conducted an improper investigation into his performance after he

filed his initial complaint against Appellees. The only evidence we gleaned from

the record of such an investigation is contained in Mr. Richardson’s own affidavit

in which he claims Ms. Sulley “began actively soliciting complaints and other

negative information about me from all of my co-workers, which included her

asking about whether or not I engaged in threatening conduct toward them.”

Again, a triable issue of fact is not created by making an assertion without

supporting facts. See Kelley, 220 F.3d at 1177. Moreover, even if this is true,

Mr. Richardson does not provide any evidence or argument on how an

investigation into his threatening conduct, or solicitation of complaints by

employees concerning threatening conduct against them, constitutes pretext for

racial discrimination, especially given his alleged threatening conduct toward

others at one of the meetings. Moreover, even if the investigation, if any, was

pretextual, he fails to provide evidence of pretext for the rest of the legitimate,

nondiscriminatory reasons provided for his termination and/or placement on the

performance improvement plan, including grammatical errors and other

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deficiencies in his audits and supervision of others. 13 We are also not convinced

by Mr. Richardson’s claim that pretext is shown because the tasks he was to

perform changed six times. A review of the weekly meetings shows most of the

tasks assigned were related, directly or indirectly, to on-going audit work.

In sum, under the circumstances presented, Mr. Richardson has not

demonstrated 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.” Jaramillo, 427

F.3d at 1308 (internal quotation marks omitted). Instead, it is clear from the

entirety of the record that his superiors, who evaluated his performance under the

plan, believed he did not have the skill set to perform in his supervisory position

under the new regime standards, as evidenced by the many instances during the

weekly meetings in which his performance was considered substandard to

expectations for his position. The relevant inquiry is not whether the proffered

reasons were wise, fair, or correct, but whether Appellees honestly believed the

13
At oral argument, Mr. Richardson relied on Mr. Carlson’s alleged
admission that he provided Mr. Richardson with the impossible task of comparing
the Sarbanes-Oxley Act of 2002 with local statutes and regulations. Our review
of the transcript purported to be that of Mr. Carlson does not indicate his
admission it was an impossible task. Even if this is true, Mr. Richardson’s failure
to adequately perform this comparison is not listed as one of the reasons for his
placement on the performance improvement plan or for his termination.

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proffered reasons and acted in good faith on their beliefs. See Lobato, 733 F.3d

at 1289. A review of the record establishes they believed he was not capable of

performing his job and acted on that belief. For these reasons and the additional

reasons provided by the district court in its summary judgment decision, we

conclude Mr. Richardson did not carry his burden of showing pretext with regard

to his treatment and termination.

C. Retaliation Claim

“In this circuit, [an employee] bringing a retaliation claim must establish

that retaliation played a part in the employment decision and may choose to

satisfy this burden in two ways.” Twigg v. Hawker Beechcraft Corp., 659 F.3d

987, 998 (10th Cir. 2011) (internal quotation marks omitted). “Under the direct/

‘mixed motives’ approach, the [employee] may directly show that retaliatory

animus played a ‘motivating part’ in the employment decision,” shifting the

burden “to the employer to demonstrate that it would have taken the same action

irrespective of the retaliatory motive.” Id. If the employee cannot directly

establish that retaliation played a motivating part in the employment decision, he

may rely on the three-part framework established in McDonnell Douglas to prove

retaliation indirectly. Id. To establish a prima facie case of retaliation, an

employee must show: (1) he engaged in protected opposition to discrimination;

(2) he suffered an adverse action a reasonable employee would have found

material; and (3) a causal nexus existed between such opposition and the

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employer’s adverse action. Id. If this is established, then the employer must

offer a legitimate, non-retaliatory reason for its decision, and once that burden is

satisfied, the employee must show the employer’s reason is merely a pretext for

retaliation. Id.

Having considered these principles and for the same reasons previously

stated, we agree with the district court that Mr. Richardson failed to carry his

burden of demonstrating Appellees’ articulated legitimate, non-retaliatory reasons

for his placement on the performance improvement plan and termination were

false or pretext for retaliation. Because Mr. Richardson failed to demonstrate

triable claims against any of the individual Appellees, we also agree the district

court did not need to address his contentions the City and County of Denver

shared municipal liability for unlawful actions committed by those individuals.

IV. Conclusion

For the reasons cited herein, as well as the reasons provided in the district

court’s Opinion and Order Granting Motion for Summary Judgment dated

September 24, 2012, we AFFIRM its grant of summary judgment in favor of the

Appellees.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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