F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 17 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
SHELIA SHORTER,
Plaintiff-Counter-
Defendant - Appellant,
v. No. 98-1355
ICG HOLDINGS, INC., a Colorado
corporation,
Defendant-Counter-
Claimant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-B-955)
Nora V. Kelly (Ronald E. Gregson, Gregson & Pixler, Denver, Colorado, on
brief), Denver, Colorado, for Plaintiff-Appellant.
Paul R. Wood (James Rollin Miller and Candace M. Dunley on brief), Miller &
Welch, Denver, Colorado, for Defendant-Appellee.
Before EBEL, MAGILL, * and LUCERO, Circuit Judges.
MAGILL, Circuit Judge.
*
Honorable Frank Magill, Senior Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Shelia Shorter sued her former employer ICG Holdings, Inc. (ICG),
claiming she was unlawfully terminated because of her race in violation of 42
U.S.C. §§ 2000e - 2000e-17 (Title VII). She also sued ICG for breach of
contract. The district court granted ICG’s motion for summary judgment, and
Shorter appealed. We affirm.
I.
The following are the facts viewed in the light most favorable to Shorter,
the nonmoving party. Shorter, a black female, joined ICG in January 1996 as a
corporate recruiter in ICG’s Department of Human Resources (HR). As a
recruiter, Shorter was responsible for keeping track of ICG’s job openings,
processing resumes sent to ICG, and forwarding those resumes to the appropriate
hiring managers. At the time Shorter was hired, ICG was going through a period
of rapid expansion.
Shorter was hired by Patricia Lawrence, then director of HR and Shorter’s
supervisor. In April 1996, Lawrence left ICG, and Judy Dughman replaced
Lawrence as the new director of HR. Shorter worked under Dughman’s
supervision until May 15, 1996, when Dughman fired her.
During the time Shorter worked for Dughman, Dughman made three race-
related comments to and about Shorter. Once, while eating lunch with Shorter,
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Dughman asked Shorter about black men’s sex organs. On another occasion,
Dughman told another ICG employee that Shorter talked like people of her
culture, race, or color. See Appellant’s App. at 412-13. 1 During a confrontation
with Shorter about Shorter’s job performance, Dughman told her, “You are just
on the defensive because you are black.” Id. at 407.
On May 15, 1996, Dughman fired Shorter. Dughman cited Shorter’s
deficient job performance and poor attitude as the reasons for her decision. She
also told another employee that she fired Shorter because Shorter was
incompetent. One or two days after firing Shorter, Dughman, apparently in a fit
of anger at not being able to locate an important document in Shorter’s office,
referred to Shorter as an “incompetent nigger.” Id. at 421.
After filing a timely charge with the EEOC and receiving a right to sue
letter, Shorter filed suit against ICG alleging race and sex discrimination. 2 She
also sued for breach of contract, claiming ICG did not follow its employee policy
manual when it terminated her. The district court granted ICG’s motion for
summary judgment. 3 This appeal followed.
The employee who recounted this statement did not remember which exact term
1
Dughman used.
Shorter abandoned her sex discrimination claim in the district court.
2
ICG also filed a cross-claim for abuse of process. The district court granted
3
Shorter’s motion for summary judgment on the abuse of process claim. ICG does not
(continued...)
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II.
We review the district court’s grant of summary judgment de novo. See
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if the moving party can show that there is no
genuine issue of material fact and that it is entitled to a judgment as a matter of
law. See Fed. R. Civ. P. 56(c). We view the evidence and draw all reasonable
inferences in the light most favorable to the nonmoving party. See McKnight,
149 F.3d at 1128.
In this case, Shorter claims she was discharged because of her race in
violation of Title VII. The inquiry in a Title VII case is whether the defendant
intentionally discriminated against the plaintiff. See EEOC v. WilTel, Inc., 81
F.3d 1508, 1513 (10th Cir. 1996) (citing USPS Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983)). A plaintiff may prove intentional discrimination in one of
two ways: “either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Id. (quotation marks omitted).
Shorter argues that the evidence establishes intentional discrimination under
either test.
3
(...continued)
appeal that decision.
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A. Direct Evidence of Discrimination
Shorter contends that Dughman’s statements constitute direct evidence of
discrimination. We agree with the district court that Dughman’s statements do
not constitute direct evidence of discrimination.
Direct evidence is “[e]vidence, which if believed, proves [the] existence of
[a] fact in issue without inference or presumption.” Black’s Law Dictionary 460
(6th ed. 1990); see also WilTel, 81 F.3d at 1514 (noting that evidence which
“require[s] the trier of fact to infer that discrimination was a motivating cause of
an employment decision” is at most circumstantial evidence of discrimination, not
direct evidence); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir.
1997). In contrast, statements of personal opinion, even when reflecting a
personal bias or prejudice, do not constitute direct evidence of discrimination.
See WilTel, 81 F.3d at 1514; Heim v. Utah, 8 F.3d 1541, 1546-47 (10th Cir.
1993); see also Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th
Cir. 1990) (distinguishing between direct evidence of discrimination and “direct
evidence of personal bias”). At most, such statements constitute only indirect or
circumstantial evidence of discrimination because the trier of fact would have to
infer that the bias reflected in the statements was the reason behind the adverse
employment decision. See WilTel, 81 F.3d at 1514; Heim, 8 F.3d at 1547;
Ramsey, 907 F.2d at 1008.
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This case is similar to the situation we faced in Heim. In that case, the
plaintiff accused her male supervisor of denying her job training opportunities
because of her gender. Her supervisor, in an angry outburst over the plaintiff’s
performance of her duties, stated, “Fucking women, I hate having fucking women
in the office.” Heim, 8 F.3d at 1546. Plaintiff argued that this comment
constituted direct evidence of discrimination. We disagreed:
Although the remark by [the supervisor] was certainly inappropriate
and boorish, it was on its face a statement of [the supervisor’s]
personal opinion. The evidence does not show that [the supervisor]
acted with discriminatory intent, only that he unprofessionally
offered his private negative view of women during a display of bad
temper at work. At best, it is only arguable that a discriminatory
intent . . . can be inferred from the statement. This type of
inferential statement is not “direct evidence” of discrimination
satisfying plaintiff’s burden.
Id. at 1547.
Likewise, in this case, Dughman’s remarks about Shorter were statements
of personal opinion. As in Heim, the statements are not direct evidence that
Dughman fired Shorter because she was black. Instead, the trier of fact would
have to infer Dughman’s motive from her statements. See Ramsey, 907 F.2d at
1008 (holding that supervisor’s stated views that certain jobs were more suitable
for women than other jobs were statements of personal opinion and did not
constitute direct evidence of discrimination); Furr v. AT & T Techs., Inc., 824
F.2d 1537, 1547, 1549 (10th Cir. 1987) (holding that managers’ statements that
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plaintiffs were too old to learn new technologies and too old to be in supervisory
positions were not direct evidence of discrimination; rather, remarks were
“specific instances of discriminatory statements” from which the reasons for the
adverse employment decision would have to be inferred).
Because Dughman’s remarks were statements of personal opinion and not
statements directly relating to Shorter’s termination, we conclude that Shorter has
failed to present any direct evidence of discrimination. 4
B. Indirect Evidence of Discrimination
In the alternative, Shorter argues that she can establish her claim of
intentional discrimination indirectly by relying on circumstantial evidence of
discrimination. We evaluate Shorter’s claim under the familiar burden shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas framework, the plaintiff initially bears the
burden of establishing a prima facie case of discrimination. See Reynolds v.
School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If the plaintiff
establishes her prima facie case, the burden shifts to her employer to proffer a
4
Shorter also argues that she was entitled to a “mixed motives” analysis.
Generally, a mixed motives analysis only applies once a plaintiff has established direct
evidence of discrimination. See WilTel, 81 F.3d at 1514-15. Moreover, because Shorter
did not raise the mixed motives argument below, she has waived it on appeal. See Tele-
Communications, Inc., v. Commissioner, 104 F.3d 1229, 1232 (10th Cir. 1997) (appellate
court will not consider issue raised for the first time on appeal, particularly when dealing
with an appeal from a grant of summary judgment).
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facially nondiscriminatory reason for the challenged employment action. See id.
If the employer offers a nondiscriminatory reason, the burden shifts back to the
employee to show that there is a genuine issue of material fact as to whether the
employer’s proffered reason is merely pretextual. See Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451
(10th Cir. 1995). A plaintiff can establish pretext by showing “either that a
discriminatory reason more likely motivated the employer . . . or that the
employer’s proffered explanation is unworthy of credence.” Rea v. Martin
Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (quotation marks omitted)
(alteration in original).
We assume without deciding that Shorter established a prima facie case of
race discrimination in her termination. Thus, we consider whether ICG proffered
a facially nondiscriminatory reason for Shorter’s termination. See Reynolds, 69
F.3d at 1533.
ICG’s proffered reason for terminating Shorter is inadequate job
performance. In support of this reason, ICG offered extensive evidence of
Shorter’s inability and failure to do her job. Patricia Lawrence, the person who
hired Shorter, testified that Shorter lacked fundamental recruiting skills and
contacts in the field, a background which Lawrence believed Shorter possessed
when she hired her. When Lawrence left ICG, she told Dughman that, of all the
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employees in HR, Shorter would require the most time for development.
Dughman testified that she received numerous and repeated complaints from ICG
executives about Shorter’s performance. For example, several ICG executives
complained that Shorter provided them with inaccurate data about the number of
job openings within ICG. In addition, clients complained that Shorter did not
follow through after meetings with them.
Dughman’s supervisor, John Field, also received numerous complaints
about Shorter’s performance which he passed along to Dughman, including that
Shorter was not locating qualified candidates and was not following up on her
recruiting duties. Field also testified that he had received similar complaints
about Shorter’s performance while Lawrence was her supervisor. According to
another ICG employee, Shorter told him that she had no system in place for
processing resumes and forwarding them to the appropriate hiring managers.
This employee stated that resumes in Shorter’s office were misfiled or lost,
advertising invoices had not been paid, and open job positions within ICG were
not listed in her reports to management. Two days before Dughman fired Shorter,
Dughman and Shorter had a meeting regarding complaints from yet another HR
employee about Shorter’s poor job performance.
This evidence satisfies ICG’s burden to provide a legitimate,
nondiscriminatory reason for ICG’s decision to terminate Shorter. Thus, for her
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claim to survive summary judgment, Shorter must show that there is a genuine
issue of material fact as to whether ICG’s proffered reason is a mere pretext for
discrimination. See Randle, 69 F.3d at 451. To support her claim of pretext,
Shorter cites evidence that she claims demonstrates she was performing her job
satisfactorily. Shorter also cites Dughman’s statements as evidence of pretext.
Shorter does not challenge, let alone rebut, the myriad complaints offered
by ICG regarding her deficient job performance. Shorter cites a handful of e-
mails which she claims reflect her satisfactory job performance. However, only
two of these e-mails arguably support her claim, and these refer to just two
different tasks among the many she was required to perform. This e-mail
correspondence hardly begins to rebut the overwhelming evidence of Shorter’s
inadequate job performance. Moreover, these e-mails were sent in March 1996 by
her former supervisor, and ICG has proffered extensive complaints about
Shorter’s deficient performance after this time and while under Dughman’s
supervision. Shorter also cites the testimony of another ICG employee who stated
he was surprised when he heard Shorter was fired. However, he explained that he
was surprised only because he had not personally heard any complaints. He also
testified that he had no basis to evaluate Shorter’s job performance. Finally,
Shorter cites her background in human resources and her own affidavit stating
that she believed her work was satisfactory. However, “[i]t is the manager’s
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perception of the employee’s performance that is relevant, not plaintiff’s
subjective evaluation of [her] own relative performance.” Furr v. Seagate Tech.
Inc., 82 F.3d 980, 988 (10th Cir. 1996). Thus, we conclude that the meager
evidence offered by Shorter is insufficient to meet her burden to show that ICG’s
proffered reason for firing her was pretextual. See Lawmaster v. Ward, 125 F.3d
1341, 1347 (10th Cir. 1997) (“The mere existence of a scintilla of evidence in
support of the non-movant’s position is insufficient to create a dispute of fact that
is genuine . . . .” (quotation marks omitted)).
Shorter also argues that Dughman’s comments demonstrate that ICG’s
proffered reason for firing her was pretextual. Although such comments may
serve as circumstantial evidence of discrimination, see WilTel, 81 F.3d at 1514,
the plaintiff must still show some nexus between the statements and the
defendant’s decision to terminate the employee. See Rea, 29 F.3d at 1457
(“‘Isolated comments, unrelated to the challenged action, are insufficient to show
discriminatory animus in termination decisions.’” (quoting Cone v. Longmont
United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994))).
Although some of the remarks were directed at Shorter, there is nothing in
the statements that link them to Dughman’s decision to terminate her. Compare
Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1474, 1479 (10th Cir.
1996) (holding supervisor’s statements supported inference of sex discrimination
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when supervisor told plaintiff she would not succeed in training program, that she
would lack incentive because her husband made too much money, and asked about
her marital relationship, while at the same time telling others that plaintiff would
be fired) with Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1265-66 (7th Cir.
1993) (holding that supervisor’s statement to Korean employee that she should
“learn to speak English,” when there was no evidence that employee spoke
anything other than English, did not create inference of discrimination absent
evidence statement was related to decision to discharge her (quotation marks
omitted)), cited in Cone, 14 F.3d at 531. The fact that Dughman was Shorter’s
supervisor does not automatically establish the requisite nexus. See Hong, 993
F.2d at 1266 (holding that supervisor’s occasional use of racial slurs “directed at
an employees’ [sic] race . . . when unrelated to the decisional process, are
insufficient to demonstrate that the employer relied on illegitimate criteria, even
when such statements were uttered by a decision maker”); see also McKnight, 149
F.3d at 1129 (“In order to rely on [allegedly discriminatory] statements, [plaintiff]
must show that they were made by a decision maker, and that there was a nexus
between the discriminatory statements and the decision to terminate.” (emphasis
added)).
We thus conclude that ICG has presented a legitimate nondiscriminatory
reason for Shorter’s termination and that Shorter has not presented evidence
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sufficient to suggest that this reason was pretextual. The district court properly
granted summary judgment for ICG on Shorter’s race discrimination claim.
III.
Shorter’s final claim is that ICG breached an implied contract with her
because Dughman did not follow the termination procedures described in ICG’s
employee policy manual. Because Shorter was an at-will employee, she must
rebut the presumption of at-will employment to prevail on her claim. See Orback
v. Hewlett-Packard Co., 97 F.3d 429, 432 (10th Cir. 1996).
An employee policy manual can create an implied contractual relationship
with an employee if it evidences an offer by the employer to the employee to be
bound by certain procedures when terminating employment. See id. at 433. In
order for the employer to be bound, the “manual must be communicated to the
employee.” Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1464 (10th Cir. 1994).
If the employer does not provide a copy of the manual to the employee, there is
no binding offer by the employer to the employee. See Orback, 97 F.3d at 433.
In Shorter’s case, it is undisputed that she never received a policy manual from
ICG. Because ICG did not provide a manual to Shorter, the manual was not a
contractual offer to her. See id. (rejecting plaintiff’s implied contract claim when
manual not provided to employees, even though some testified that they had
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access to it and one had seen portions of it). Thus, Shorter cannot recover for
breach of implied contract.
Even though Shorter cannot prevail on her implied contract claim, she may
nevertheless be able to recover under a theory of promissory estoppel. See Vasey,
29 F.3d at 1466. In order for Shorter to recover under a promissory estoppel
theory, she must demonstrate, inter alia, that she reasonably relied on the
termination procedures to her detriment. See id. Shorter, however, presented no
evidence that she read the manual and relied upon it to her detriment. Thus,
Shorter cannot prevail under a theory of promissory estoppel.
IV.
For the foregoing reasons, we AFFIRM the decision of the district court.
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98-1355, Shorter v. ICG Holdings, Inc.
LUCERO, Circuit Judge, concurring in part, dissenting in part
Because the majority’s decision conflicts with clearly controlling
precedent, and because I am concerned that the majority’s approach results in
judicial usurpation of the role of the jury and thereby defeat of Title VII and the
1991 Civil Rights Act, I dissent. Under the clearly established case law of the
Supreme Court and of this circuit, the evidence presented below was sufficient to
create a jury question on Shorter’s claim she was fired because of her race.
Summary judgment is meant only to facilitate efficient disposition of cases in
which the evidence can lead to but one conclusion; it is not intended to allow the
court to substitute its own subjective evaluation of motive, where genuinely
disputed, for that of the jury.
Despite its recitation of the standard for reviewing a motion for summary
judgment, see Fed. R. Civ. P. 56(c), the majority views the evidence in this case
in the light most favorable to defendant ICG Holdings, the moving party. Cf.
Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241
(10th Cir. 1990) (stating that, in applying the summary judgment standard, “we
examine the factual record and reasonable inferences therefrom in the light most
favorable to the party opposing the motion”). In so doing, the majority
improperly assumes the jury’s role of fact finder by weighing conflicting factual
claims, drawing inferences from the evidence, and assessing intent.
On my review of the record, I conclude that Shorter has established a prima
facie case of disparate impact race discrimination in termination under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Tomsic v. State Farm Mutual
Automobile Ins. Co., 85 F.3d 1472, 1476-77 (10th Cir. 1996). I agree with the
majority that ICG has presented a race-neutral justification for Shorter’s
termination. Therefore, the analysis hinges upon whether Shorter has presented
sufficient evidence to create a genuine issue of material fact concerning pretext. 1
In evaluating claims of pretext on summary judgment, we have held that:
It is not the purpose of a motion for summary judgment to force the
judge to conduct a “mini trial” to determine the defendant’s true state
of mind. So long as the plaintiff has presented evidence of pretext
(by demonstrating that the defendant’s proffered non-discriminatory
reason is unworthy of belief) upon which a jury could infer
discriminatory motive, the case should go to trial. Judgments about
intent are best left for trial and are within the province of the jury.
Randle v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995).
The majority’s statement of the facts fails to characterize the summary
judgment materials in the light most favorable to the plaintiff. Most prominently,
the majority describes the deposition testimony of ICG employee Kriss Papendick
as stating “Dughman told another ICG employee that Shorter talked like people of
1
An employer’s subjective assertions of deficient performance do not suffice to
rebut the qualification element of a plaintiff’s prima facie case. See MacDonald v.
Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1118-22 (10th Cir. 1991). Thus,
defendant’s allegations of inadequate performance should be considered in evaluating
neutral justification and pretext.
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her culture, race, or color.” Maj. Op. at 3. The actual text of Papendick’s
deposition testimony makes clear that Dughman explicitly linked her evaluation
of Shorter’s professional opportunities to her race and/or ethnicity:
Q What did she tell you about Ms. Shorter?
A She told me that there were problems. She told me that she
had discussed them with Sheila and everything she had told
me, she had already said to Sheila.
She said she felt if Sheila was going to get anywhere in the
company, she had to improve the way that she talked.
Q What did she mean by the way she talked?
A She made a comment about the fact that she thought that even
though Sheila is an intelligent young woman and that she had a
good background or good education, I believe, she talked like
other people did in her culture, race. I don’t remember which
terms she used, if it was her culture or if it was her race or
people of her color. But I remember her specifically stating it,
because I was rather surprised.
Appellant’s App. at 412-13.
Likewise, the majority’s statement that Shorter “does not challenge, let
alone rebut” ICG’s claims of deficient performance is not appropriate given the
standard for summary judgment. Maj. Op. at 10. The record contains the
following evidence that could support an alternative explanation for Shorter’s
performance problems: Shorter’s assertions that ICG failed to provide her with
necessary support staff, as it did for employees who were not black, and refused
to allow her to attend the same training as other employees; 2 former ICG
2
That statements offered to show pretext are plaintiff’s own assertions does not
(continued...)
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employee Michelle Brough’s statement that ICG’s president was “cold and
indifferent to Ms. Shorter,” Appellant’s App. at 407; and the general difficulty of
satisfying recruiting needs in a company undergoing rapid growth. The majority
omits altogether reference to an ICG employee’s testimony that the complaints
about Shorter’s job performance were “not at all” realistic. Appellant’s App. at
411. 3
Shorter presented additional evidence in the summary judgment materials
implicitly addressing the question of pretext: testimony that Dughman had a
pattern of arbitrarily terminating employees; testimony that when asked
repeatedly, Dughman refused to explain why she believed Shorter incompetent;
and documentary evidence of Dughman’s own lack of reliability, based on her
termination from ICG for resumé fraud, expense account discrepancies, and
management style problems.
(...continued)
2
preclude their consideration in considering a summary judgment motion. See, e.g.,
Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987).
3
Former ICG employee Kriss Papendick testified as follows:
Q Who complained about her job performance?
A Anybody who was trying to get somebody hired that they didn’t have them the
very next day after they requested it.
Q So people were upset with the speed at which people were hired?
A Yes.
Q Did you feel it was a realistic–did you feel expectations were realistic when these
people were complaining?
A Not at all.
Appellant’s App. at 411.
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Under the proper summary judgment framework, and viewed together with
the explicit evidence of racial animus, I believe the inferences to be drawn from
this evidence could support a reasonable jury’s decision to credit a claim that
ICG’s proffered reason for terminating Shorter was a pretext for discrimination.
More to the point, I would not discount statements demonstrating racial animus by
the supervisor responsible for Shorter’s termination, when these statements were
both proximate in time to Shorter’s termination, and linked her race to job
performance.
The district court erred in finding Dughman’s statements inadequate
evidence of pretext at the summary judgment stage. Overtly discriminatory
statements, even if they lack a sufficient nexus to employment actions to support
a direct evidence theory, can nevertheless be used to question a defendant’s
proffered neutral justifications. See Medlock v. Ortho Biotech, Inc., 164 F.3d
545, 551 (10th Cir. 1999); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1396
n.5 (10th Cir. 1997). It is clearly not the law that pretext evidence is only that
evidence which rebuts specific elements of the defendant’s explanation. Rather,
as here, explicit evidence of racism by a responsible decision maker can lead a
reasonable juror to doubt the sincerity of an employer’s explanations. See Rea v.
Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (stating that pretext
may be established by showing either “that a discriminatory reason more likely
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motivated the employer or . . . that the employer’s proffered explanation is
unworthy of credence”) (quoting Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981)(alteration in original)).
Evidence of racial motivation can serve to challenge the validity of an
employer’s proffered justification, even absent additional independent evidence of
falsity. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (stating that
“stereotyped remarks can certainly be evidence that [impermissible motive]
played a part” in an employment decision). The purpose of the pretext analysis is
to allow proof of discriminatory intent by permitting a plaintiff to point out a lie
offered to obscure such intent. When independent evidence of racism by the
decision maker exists with a sufficient nexus to the plaintiff and decision at issue,
this can offer viable grounds to refuse to credit the employer’s explanation. See
Burdine, 450 U.S. at 256; see generally 1 Lex K. Larson, Employment
Discrimination at 8-88 (2d ed. 1998) (stating that “at the second and third stages
[of the McDonnell Douglas analysis], direct evidence of discriminatory attitudes
or statements, or of their opposite, is relevant and persuasive”). Given the two
means of establishing pretext set out in Burdine, 450 U.S. at 256, I would not
discount Dughman’s statements as evidence of racial bias by the relevant decision
maker in the context of pretext analysis. The purpose of both direct evidence and
pretext theories is to prove or disprove illegal discrimination. See Trans World
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Airlines, Inc. v. Thurston, 469 U.S. 111, 121 ) (1985) (holding that the
McDonnell Douglas framework does not apply once plaintiff has presented a
direct evidence case, because its purpose is to “assure that the ‘plaintiff [has] his
day in court despite the unavailability of direct evidence”) (quoting Loeb v.
Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979) (alteration in original));
Ramsey, 907 F.2d at 1007-08; see generally 1 Larson, Employment
Discrimination at 8-89 to 8-93 (discussing related purposes of direct and indirect
evidence methods). We must avoid a formalistic separation of the two that would
exclude directly discriminatory statements, insufficient in themselves to prove a
direct evidence theory, from consideration under the McDonnell Douglas
framework. Such a separation would ignore the fact that the two frameworks are
not ends in themselves, but rather means towards a common goal—identifying
prohibited discrimination.
I take a very different view than does the majority of the relationship
between this case and Cone v. Longmont United Hospital Ass’n, 14 F.3d 526
(10th Cir. 1994). In Cone, we rejected “stray” age-related comments by two
hospital executives, not specifically directed against the plaintiff, as pretext
evidence in an ADEA case. Id. at 531. In Cone, the plaintiff was terminated
automatically for failure to return to work, and there was “no evidence that [the
executive who uttered two ageist remarks] participated in Ms. Cone’s automatic
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termination, and age-related comments by non-decision makers are not material in
showing the hospital’s action was based on age discrimination.” Id. There was
also no connection shown between remarks regarding long-term employees made
by another executive, who was involved in Cone’s termination, and the motives
behind that termination. See id. (concluding that the statement “‘long-term
employees have a diminishing return’ . . could apply equally to employees under
age forty.”)
By contrast, the racial remarks at issue in this case were specifically
directed at Shorter. Dughman’s characterization of Shorter as an “incompetent
nigger” days after Shorter’s termination (by Dughman) explicitly linked a
negative characterization of Shorter’s work to an overt racial slur. (Only the jury
can weigh the significance of the pairing of those two words.) Similarly,
Dughman’s statement that if Shorter wanted to succeed in her job she would have
to speak less like a black person specifically linked Shorter’s job performance to
race and/or ethnicity. Based on this evidence, a jury could choose to believe that
Dughman’s evaluation of Shorter’s performance was so contaminated by racial
animus as to render her assertions of inadequate performance unworthy of
credence.
This case is necessarily controlled by Tomsic, 85 F.3d 1472. In Tomsic,
one plaintiff based a claim of sex discrimination in part on statements by her
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supervisor, Miller, that “he did not think she would succeed [and that] her
husband made too much money and that she therefore would lack incentive.” Id.
at 1474. Miller also told other employees, without specifying that it was because
of gender, that Tomsic would be fired. See id. at 1474-75. This supervisor told
the second plaintiff, in a conceded effort to prompt her resignation, that she
would surely encounter marital problems if she continued to perform well at work
because she would ultimately earn more money than her husband. See id. at 1475.
Although the supervisor at issue did not have the actual authority to terminate the
plaintiffs, we nevertheless concluded that his statements supported an inference of
pretext. See id. at 1479.
Just as in Tomsic, the remarks at issue in this case “were directed to the
plaintiff individually, unlike the very general statements in Cone.” Id. at 1479.
As in Tomsic, the remarks are directly linked to a decision maker with power over
the plaintiff. See id. Noting the fact that Miller’s sexist comments were before
the manager responsible for asking for the plaintiffs’ resignation, we stated in
Tomsic that “we believe that this is a sufficient nexus to the decision to ask for
plaintiffs’ resignation; a jury could infer from Miller’s remarks in the total
context presented that unlawful bias was a motivating factor in defendant’s
decision.” Id. The nexus in this case is even stronger. Dughman, unlike Miller,
had—and exercised—full authority to terminate Shorter. Because this case
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presents similar yet even stronger evidence of a nexus, the result reached by the
majority conflicts squarely with our precedent in Tomsic.
The majority’s resort to Hong v. Children’s Mem’l Hosp., 993 F.2d 1257,
1265-66 (7th Cir. 1993), does not persuade me otherwise. In Hong, the Seventh
Circuit relied on the fact that the racial slurs were “unrelated to the decisional
process” to reject them as evidence of discrimination. Hong, 993 F.2d at 1266.
Here, by contrast, factors exist sufficient to create a jury question on the issue of
nexus between the supervisor’s comments and the decisional process. These
include: Dughman’s statement linking Shorter’s manner of speaking to her job
prospects; the close temporal nexus between Shorter’s termination and the racial
slur uttered by Dughman; and Dughman’s use of that slur in conjunction with the
allegation of incompetence. Hong is thus clearly distinguishable.
It is inappropriate, at the summary judgment stage, for the court to weigh
evidence of pretext against evidence of neutral motive. The task of considering
this evidence together and weighing competing interpretations is, under the
burden-shifting framework, a task for the fact finder. In this case, Tomsic
controls the legal question of whether Shorter presented sufficient evidence of
pretext to survive summary judgment. A reasonable jury could conclude that the
particular racist comments at issue here reveal pretext in Dughman’s assertion
that Shorter was terminated for deficient performance, or it could decide to credit
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ICG’s averments of incompetence. I would allow the members of a jury to assess
the evidence and make that determination. I would not substitute our views as
appellate judges.
Accordingly, I dissent from the majority’s holding that Shorter failed to
present sufficient indirect evidence of discrimination for her claim to survive
summary judgment under the McDonnell Douglas framework. 4
4
I concur with the majority’s conclusion that the district court did not err in
granting summary judgment for ICG on the direct evidence claim. Given the similar
levels of connection between discriminatory remarks and employment decisions in the
two cases, Tomsic controls on the direct evidence issue just as decidedly as it does on the
pretext issue. See Tomsic, 85 F.3d at 1478 (“[S]tatements such as those in issue here
which ‘are on their face expression of . . . personal opinion, and not an existing policy
which itself constitutes discrimination’ constitute circumstantial or indirect evidence, not
direct evidence.”) (quoting Ramsey, 907 F.2d at 1008). I also agree with the majority that
the district court did not err in granting summary judgment on Shorter’s implied contract
claim.
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