FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2012
Elisabeth A. Shumaker
Clerk of Court
GEORGETTE KONZAK,
Plaintiff-Appellant,
v. No. 11-1485
(D.C. No. 1:10-CV-00922-RPM)
WELLS FARGO BANK, N.A., (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.
Georgette Konzak sued her former employer, Wells Fargo Bank, N.A. (“Wells
Fargo” or “bank”), for employment discrimination, asserting that her employment
was terminated on the basis of her age and gender, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). The
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
district court granted Wells Fargo’s motion for summary judgment. Ms. Konzak
appeals. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
Ms. Konzak, who was born in in 1962, was employed by Wells Fargo as a
personal banker in the Grand Junction, Colorado, district. On July 1, 2008, the
assistant manager discovered that Ms. Konzak had entered a “placeholder number”
on a new-account application, rather than the applicant’s driver’s license number.
She told the district manager, Pam Schaaf, who directed her to report it to the human
resources department (“HR”). HR turned the matter over to Richard Johnson, Vice
President of Special Investigations, who conducted an investigation. Mr. Johnson
discovered that Ms. Konzak had used the placeholder number instead of a correct
driver’s license number on numerous account applications. During his investigation,
he interviewed Ms. Konzak by telephone, and she also submitted a written statement
of her position. Mr. Johnson and others at the Wells Fargo Corporate Security
Department, the Corporate Employee Relations Department, and the Regional
Compliance Department (“corporate committee”) determined that Ms. Konzak’s use
of the fictitious numbers violated Wells Fargo’s Code of Ethics and Business
Conduct and its Customer Identification Policy (“CIP”). In addition, they determined
that Ms. Konzak had exposed Wells Fargo to liability under the Bank Security Act
and the USA PATRIOT Act. Consequently, the corporate committee determined this
conduct warranted termination. This decision was communicated to the Grand
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Junction branch’s Community Bank President, Steve Irion, who questioned whether
there was any way to retain Ms. Konzak. When told that Ms. Konzak’s actions
violated the CIP and federal law, he realized there was no other choice and he made
the decision to terminate her employment.
Ms. Konzak did not dispute that she regularly used a fictitious number when
opening an account for an established Wells Fargo customer. She testified that a
manager had told her that it was acceptable to use a placeholder number instead of
the actual driver’s license number if the customer was an existing customer of the
bank. After her termination, she discovered that others had also used fictitious
numbers, but were not fired. Ms. Konzak also named an employee who had
undergone progressive discipline for committing notary infractions, while she herself
was fired summarily. Another employee, a younger male, was not disciplined for
improperly taking sales credit. She contended that if, in fact, use of the placeholder
number was improper, the bank’s “back shop” procedures would have alerted her, as
it did when she entered an incorrect social security number, passport number, or alien
identification number. She never received notification from the “back shop” about
her use of fictitious numbers. She also alleged that the bank never corrected the
fictitious numbers.
Ms. Konzak testified that she was discharged shortly after she told district
manager Pam Schaaf that she was interested in being promoted to a management
position. She claimed that Ms. Schaaf preferred younger employees and males to
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older females. Ms. Konzak did not allege that bank president Mr. Irion or the local
branch manager, Frances Baer, discriminated against her. She stated that two days
after she was fired, Mr. Irion suggested that she retain an attorney to challenge her
termination.
Ms. Konzak twice appealed her termination internally. After obtaining a
right-to-sue letter from the Colorado Civil Rights Division (“CCRD”),1 she filed the
underlying lawsuit. Ultimately, the district court granted Wells Fargo’s motion for
summary judgment. Ms. Konzak appeals, arguing that she presented sufficient
evidence to show that Wells Fargo’s stated reason for terminating her employment
was pretextual, that she was erroneously required to show “pretext-plus,”2 and that
disputed issues of material fact concerning who made the decision to discharge her
precluded summary judgment.
1
To the extent Ms. Konzak argues on appeal (without record support) that the
CCRD issued a favorable letter that is binding on this court, Aplt. Opening Br. at 37,
we reject that argument. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance
Abuse Servs., 165 F.3d 1321, 1331 (10th Cir. 1999) (“[W]hen the independent facts
before the district court judge fail to establish a genuine issue of material fact, a
favorable [CCRD] letter of determination does not create one.”).
2
“Under pretext-plus, the plaintiff must do more than show pretext; [she]
must also come forward with additional, direct evidence of a discriminatory
motive.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1312 (10th Cir. 2005)
(citation omitted) (internal quotation marks omitted). This circuit has rejected
the pretext-plus doctrine. Id.
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II. Legal Standards
We review the district court’s summary judgment order de novo, applying the
same legal standards as the district court. Swackhammer v. Sprint/United Mgmt. Co.,
493 F.3d 1160, 1167 (10th Cir. 2007). Summary judgment is appropriate if “the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Pursuant to this
standard, “we must view the evidence and draw reasonable inferences therefrom in
the light most favorable to the nonmoving party.” Swackhammer, 493 F.3d at 1167
(internal quotation marks omitted). “The purpose of a summary judgment motion is
to assess whether a trial is necessary. In other words, there must be evidence on
which the jury could reasonably find for the plaintiff.” Berry v. T-Mobile USA, Inc.,
490 F.3d 1211, 1216 (10th Cir. 2007) (citation omitted) (internal quotation marks
omitted). “Because our review is de novo, we need not separately address
[Ms. Konzak’s] argument that the district court erred by viewing evidence in the light
most favorable to [Wells Fargo] and by treating disputed issues of fact as
undisputed.” Rivera v. City & Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004).
Title VII makes it “an unlawful employment practice for an employer . . . to
discharge any individual . . . because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e2(a)(1). “A plaintiff proves a violation of
Title VII either by direct evidence of discrimination or by following the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 US. 792
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(1973).” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (parallel
citations omitted). The three-step McDonnell Douglas inquiry provides that if the
plaintiff proves a prima facie case of discrimination, the burden “shifts to the
defendant to produce a legitimate, non-discriminatory reason for the adverse
employment action.” Id. If such a reason is produced, “the burden then shifts back
to the plaintiff to show that the plaintiff’s protected status was a determinative factor
in the employment decision or that the employer’s explanation is pretext.” Id.
The ADEA makes it “unlawful for an employer . . . to . . . discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).3 The ADEA
requires “but-for” causation; therefore, a plaintiff claiming age discrimination must
establish by a preponderance of the evidence that his employer would not have taken
the challenged employment action but for the plaintiff’s age. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177-78 (2009). “Gross does not disturb longstanding
Tenth Circuit precedent by placing a heightened evidentiary requirement on ADEA
plaintiffs to prove that age was the sole cause of the adverse employment action.”
Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010). Nor does
Gross “preclude our continued application of McDonnell Douglas to ADEA claims.”
Id.
3
Ms. Konzak was 46 years old when her employment was terminated.
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III. Analysis
The parties do not dispute that the first two McDonnell Douglas steps have
been satisfied: Ms. Konzak established a prima facie case of gender and age
discrimination; Wells Fargo produced a legitimate, non-discriminatory reason for
discharging her. Therefore, we proceed to evaluate whether the proffered reason was
a pretext for discrimination.
A plaintiff can withstand summary judgment if she presents evidence
sufficient to raise a genuine dispute of material fact regarding whether the
defendant’s articulated reason for the adverse employment action is pretextual.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-49 (2000).
“Pretext exists when an employer does not honestly represent its reasons for
terminating an employee.” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111
(10th Cir. 2005). “Pretext can be shown by 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.” Rivera, 365 F.3d at 925 (internal quotation
marks and brackets omitted). “Pretext may also be shown by providing direct
evidence discrediting the proffered rationale, or by showing that the plaintiff was
treated differently from others similarly situated.” Jaramillo v. Adams Cnty.
Sch. Dist. 14, 680 F.3d 1267, 1269 (10th Cir. 2012).
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Ms. Konzak contends that she produced evidence demonstrating that Wells
Fargo’s reason for discharging her was unworthy of belief. She first asserts that there
existed a disputed issue of material fact concerning whether the use of fictitious
numbers violated any bank policy or federal law. She relies on her testimony and the
testimony of other bank employees that they had been instructed to do so. She also
relies on the affidavit of a former Wells Fargo employee stating that Ms. Baer “first
told [her] that this type of practice [using placeholder numbers] was acceptable.”
Aplt. App. Vol. II at 320. But Ms. Konzak’s evidence does not show that the
corporate committee or Mr. Irion knew that other employees were also using
fictitious numbers. Therefore, the evidence does not demonstrate a disputed fact
material to the termination decision.
Ms. Konzak next asserts that the “back shop” check of all account applications
would have picked up the use of fictitious numbers if their use had been improper,
and she had never been questioned. Contrary to Ms. Konzak’s assertion, however,
the record does not support her claim that the “back shop” would have caught this
procedure. She relies on (1) an audit report, even though that report does not
mention a procedure for checking applications, see id. at 378-82; (2) the testimony of
Ms. Baer, who stated that she believed the “back shop” was a computer process,
particularly because of the “sheer number” of documents processed, id. at 296;
(3) the testimony of Dawn Dela Pena, a personal banker, who stated that the “back
shop” would give notice of errors in the customer identification fields, but she did not
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know whether the “back shop” would detect an incorrect driver’s license number as
long as the application contained the correct amount of digits, id. at 316; and (4) an
affidavit of Lori Southern who stated that when fictitious numbers were used, either
she or someone in the “back shop” would later update the numbers, id. at 321.
Ms. Southern did not state that the “back shop” would identify any incorrect drivers’
license numbers. This evidence is insufficient to demonstrate a disputed material fact
that the “back shop” would have discovered Ms. Konzak’s use of fictitious numbers.
Similarly, Ms. Konzak’s allegation that the bank did not correct the fictitious
numbers upon discovery, thus demonstrating that this could not have been the true
reason for discharging her, is not supported by the record. Ms. Konzak relies on
Ms. Baer’s testimony that she did not correct the numbers and she did not remember
either instructing others to do it or being instructed to do it. Id. at 297. This
testimony of a single employee, albeit the store manager of the bank location where
Ms. Konzak worked, is insufficient to create the inference that no one at Wells Fargo
ever corrected the fictitious numbers.4 Ms. Konzak also claims that the bank’s failure
to correct the fictitious numbers demonstrates that it did not deem them important
enough to warrant discharging her summarily; rather, the bank should have applied
its progressive discipline policy. Ms. Konzak does not dispute the bank’s position
4
Ms. Konzak contends that although Wells Fargo had an opportunity to produce
evidence that the fictitious numbers were corrected, it failed to do so. But it was not
Wells Fargo’s burden to produce evidence to negate Ms. Konzak’s claim. Thom v.
Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (“[A] movant that will
not bear the burden of persuasion at trial need not negate the nonmovant’s claim.”).
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that its policies permitted immediate termination of employment under appropriate
circumstances. As noted, the record does not support Ms. Konzak’s claim that Wells
Fargo failed to correct the fictitious numbers. Therefore, she cannot base her
progressive-discipline argument on that premise.
Next, Ms. Konzak argues that although Mr. Irion testified that he made the
decision to discharge her, that was not his honestly held opinion. She asserts that two
days after her discharge, he contacted her to “suggest[] that [she] retain an attorney to
challenge the validity of [her] termination and help prove that [she] did nothing
wrong.” Id. at 290. Mr. Irion testified that he did not remember doing so, but we
view the evidence in the light most favorable to Ms. Konzak. Even so, it does not
undercut Mr. Irion’s determination that the corporate HR investigation left him no
choice but to terminate her employment. Ms. Konzak has not adduced any evidence,
nor does she claim, that the corporate investigation was instigated or pursued based
on her age or gender. “To raise an inference of pretext in the face of the employer’s
legitimate, nondiscriminatory explanation, the plaintiff must undermine the
employer’s credibility to the point that a reasonable jury could not find in its favor.”
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir. 2005). Mr. Irion’s
nondiscriminatory reason “remain[ed] unrebutted and [his] credibility has not been so
damaged as to render [his] explanations suspect.” Swackhammer, 493 F.3d at 1169.
In a related argument, Ms. Konzak contends that the termination decision was
in fact made by Ms. Schaaf. This contention is based primarily on her claim that
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Ms. Schaaf had “multiple communications” with the corporate committee, thereby
influencing the committee to discharge Ms. Konzak. E.g., Aplt. Opening Br. at 41.
Ms. Konzak relies on Ms. Schaaf’s testimony. But Ms. Schaaf testified that she was
not involved in the investigation conducted by HR. Aplt. App. Vol. I at 142. She
stated that she had been contacted by HR, not to give input about Ms. Konzak, but to
be told what the investigation had uncovered. Id. The evidence does not support
Ms. Konzak’s claim that Ms. Schaaf was the actual decisionmaker or that she
influenced the corporate committee. Similarly unsupported is Ms. Konzak’s claim
that Ms. Schaaf had such influence over Mr. Irion, under a “cat’s paw” theory of
liability, that she convinced him to discharge her. Cf. Staub v. Proctor Hosp.,
131 S. Ct. 1186, 1194 (2011) (holding “that if a supervisor performs an act motivated
by [discriminatory] animus that is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause of the ultimate employment
action, then the employer is liable under [antidiscrimination statutes].”
(footnote omitted)). Ms. Konzak relies on an affidavit of a former Wells Fargo
employee who offered the following opinion: “I believe Mr. Irion was heavily
influenced by Ms. Shaaf’s [sic] reports to him. She had the ability to sway his views
about the managers and people below her.” Aplt. App. Vol. II at 362. This general,
unsubstantiated opinion that does not refer to Ms. Konzak or her situation is
insufficient to create an issue of fact on a cat’s paw claim.
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Although Ms. Konzak has proffered the names of other Wells Fargo
employees she claims were similarly situated to her but were not discharged for
comparable or even identical actions, the evidence does not show that the alleged
transgressions of those employees were reported to the corporate HR office.
Therefore, the other employees were not similarly situated to Ms. Konzak.
See McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (“To show
disparate treatment, [a plaintiff] must establish [that] she was similarly situated to
[the claimed comparators] in all relevant respects.”). And even taking as true the
evidence that Ms. Schaaf favored younger and male employees over older female
employees, the evidence does not support a claim that Ms. Schaaf was involved in the
decision to discharge Ms. Konzak.
In short, Ms. Konzak’s evidence is insufficient to demonstrate pretext or a
genuine issue of disputed material fact concerning Wells Fargo’s stated reasons for
terminating her employment.
We do not ask whether the employer’s reasons were wise, fair or
correct; the relevant inquiry is whether the employer honestly believed
its reasons and acted in good faith upon them. Even a mistaken belief
can be a legitimate, non-pretextual reason for an employment decision.
Thus, we consider the facts as they appeared to the person making the
decision, and we do not second-guess the employer’s decision even if it
seems in hindsight that the action taken constituted poor business
judgment. The reason for this rule is plain: our role is to prevent
intentional discriminatory [employment] practices, not to act as a “super
personnel department,” second guessing employers’ honestly held (even
if erroneous) business judgments.
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Riggs v. Airtran Airways, Inc., 497 F.3d 1108, 1118-19 (10th Cir. 2007) (citations
omitted) (internal quotation marks omitted).5
IV. Conclusion
For the reasons discussed above, we conclude that Ms. Konzak’s evidence of
pretext is insufficient to withstand summary judgment. See Young v. Dillon Cos.,
468 F.3d 1243, 1250 (10th Cir. 2006) (stating a prima facie case and sufficient
evidence of pretext may permit a finding that the employer unlawfully
discriminated). In conducting our de novo review, we have considered the
cumulative weight of her proffered evidence based on the evidence as a whole.
See Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004) (“When assessing
whether a plaintiff has made an appropriate showing of pretext, we must consider the
evidence as a whole.” (internal quotation marks and brackets omitted)).
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
5
Contrary to Ms. Konzak’s argument, she was not required to show pretext-plus
because that doctrine is relevant only after the employee has discredited the
employer’s reasons for the employment decision. Jaramillo, 427 F.3d at 1312. Since
she did not do so, pretext-plus is irrelevant. Cf. Rivera, 365 F.3d at 926 (rejecting
argument that the district court “found an adequate showing of pretext but required
additional evidence”).
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