F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 16, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
G LA D Y S A N TO N IO ,
Plaintiff-Appellant,
v. No. 05-1374
THE SYGM A NETW ORK, IN C.,
a Delaware corporation; SYSCO
CORPORATION, a D elaw are
corporation,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 03-CV-156-RPM -BNB)
Submitted on the briefs: *
Darold W . Killmer and M ari New man, Killmer, Lane & New man, LLP, Denver,
Colorado, for Plaintiff-Appellant.
Brian T. M oore, Silver & DeBoskey, a Professional Corporation, Denver,
Colorado, for D efendants-A ppellees.
Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.
*
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.
BROR BY, Circuit Judge.
Gladys Antonio appeals the summary judgment in her employment
retaliation and discrimination case. W e conclude that the district court properly
ruled that (1) Antonio’s prima facie case of retaliation failed for lack of causation
and (2) her discrimination case failed because she was unable to characterize as
pretext her employer’s reason for termination. Accordingly, we affirm.
B ACKGROUND
Antonio is a black woman from Zimbabwe. In 2000, she interviewed for an
accountant position with Sysco Corporation’s subsidiary, the Sygma Network,
Inc. (collectively, Sygma). The Sygma interview team, which included
accounting supervisor Dena Johnson, unanimously agreed to hire her. Antonio
worked for Sygma from July until D ecember 2000, when her w ork visa expired.
In M arch 2001, after Antonio obtained permanent resident status, Sygma re-hired
her, with the approval of Johnson, the rest of the original interview team, and
another Sygma employee (collectively, the personnel committee).
Several weeks later, around M arch 29, Johnson told Antonio that she had
offensive body odor and “believed it had to do with [Antonio’s] culture.” A plt.
App. at 254. Antonio complained to a human resources representative, stating
that she “felt very harassed” and “alienated.” Id. In response, the representative
-2-
notified Johnson’s supervisor and “coached [Johnson] on being more aware of
sensitivities to that area of race, national origin, or any other areas of
discrimination.” Id. at 163. Afterward, Johnson was “cold” and avoided speaking
with Antonio for several weeks. Id. at 265, 268.
Roughly three months later, in July 2001, Johnson gave Antonio a positive
annual performance appraisal, rating her overall performance as “equal to or
somewhat better than the standard for the position.” Id. at 167. Antonio wrote in
her self-appraisal that “[Johnson] has been an excellent source of training and
assistance. There is no limit to the amount of help and clarification that she is
willing to provide, and as a result I have learned a great deal from her.” Id. at
168.
In December 2001, Antonio traveled to Zimbabwe for vacation. Although
she was scheduled to return to work on December 31, the beginning of the
accounting department’s busy “quarter close” week, id. at 72, she was delayed by
a “problem” w ith her and her husband’s “immigration papers,” id. at 268.
Antonio phoned Johnson regarding the problem on D ecember 29 and 31 and
promised to keep her updated. But due to malfunctioning “international telephone
lines,” she was unable to get through. Id. at 269. On January 4, 2002, Johnson
met with the other members of the personnel committee and concluded that
Antonio’s failure to keep in contact after December 31 should be construed as job
abandonment. Accordingly, Sygma mailed Antonio a letter that day, stating:
-3-
“D ue to the fact that we have not heard from you in the last 4 days we are
considering your position abandoned and your lack of communication a
resignation from your position.” Id. at 422. On January 11, Antonio returned to
the United States and learned that she had been terminated. Roughly a month
later, Sygma filled her position with a white, U.S.-born applicant.
After exhausting administrative remedies, Antonio sued Sygma, advancing
claims for (1) race and national origin discrimination in violation of 42 U.S.C.
§ 1981; (2) race and national origin discrimination and retaliation in violation of
Title VII; (3) promissory estoppel; and (4) breach of the covenant of good faith
and fair dealing. The district court granted Sygma summary judgment, ruling that
there was no causal connection between Johnson’s “culture” remark and
Antonio’s separation from Sygma, and that Antonio’s failure to return to work as
scheduled was a legitimate, non-discriminatory, non-pretextual reason for
declaring her job abandoned. Regarding the state law claims, the district court
simply ruled that Antonio was an at-will employee, Sygma made no legally
enforceable representations, and there was “no breach of any provision.” A plt.
App. at 684.
Antonio appealed.
D ISCUSSION
Summary judgment is appropriate “if the pleadings, depositions, answ ers to
interrogatories, and admissions on file, together with the affidavits, if any, show
-4-
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). W e review
“a grant of summary judgment de novo with an examination of the record and all
reasonable inferences that might be drawn from it in the light most favorable to
the non-moving party.” Palladium M usic, Inc. v. EatSleepMusic, Inc., 398 F.3d
1193, 1196 (10th Cir. 2005).
Title VII prohibits an employer from terminating any individual because of
“race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), or
because that individual opposed unlawful discrimination, 42 U.S.C. § 2000e-3(a).
Section 1981, on the other hand, “provides equal rights to make and enforce
contracts and to the benefits of laws for the security of persons and property.”
M aldonado v. City of Altus, 433 F.3d 1294, 1307 (10th Cir. 2006). W ithout direct
evidence of discrimination, we apply the burden-shifting scheme of M cDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), in Title VII and § 1981 cases.
See M aldonado, 433 F.3d at 1307; Baca v. Sklar, 398 F.3d 1210, 1218 n.3
(10th Cir. 2005).
Under M cDonnell Douglas, if the plaintiff can establish a prima facie case
of discrimination or retaliation, the burden shifts to the defendant to show a
legitimate non-discriminatory or non-retaliatory reason for the adverse
employment action. Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177,
1179 (10th Cir. 2000). If the defendant meets this burden, the burden shifts back
-5-
to the plaintiff to demonstrate that the defendant’s proffered reason is pretext.
Id. at 1177.
I. Prima Facie Retaliatory Termination
To establish a prima facie case of retaliation, Antonio must show that
(1) she engaged in protected opposition to discrimination; (2) she suffered an
adverse action that a reasonable employee would have found material; and (3)
there is a causal nexus between her opposition and the employer’s adverse action.
See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006);
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.
2006). Antonio challenges the district court’s ruling that her prima facie case
failed with respect to causation. 1
An employee “may establish the causal connection by proffering evidence
of circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.” Annett v. Univ. of Kan., 371 F.3d
1233, 1239-40 (10th Cir. 2004) (quotation omitted). But “[u]nless there is very
close temporal proximity between the protected activity and the retaliatory
conduct, the plaintiff must offer additional evidence to establish causation.”
O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). W e agree
with the district court that Antonio’s termination nine months after her complaint
1
Like the district court, we assume that Antonio’s complaint regarding
Johnson’s “culture” remark constitutes protected opposition to discrimination.
-6-
about Johnson’s remark is too temporally remote to support an inference of
causation. See id. (observing that “a three-month period, standing alone, is
insufficient to establish causation”). Consequently, we examine Antonio’s other
evidence for a connection between her complaint and subsequent termination.
As evidence that Antonio was terminated for complaining about Johnson’s
remark, Antonio cites: (1) deposition testimony that members of the personnel
comm ittee knew that Antonio liked her job and had been trying to leave
Zimbabwe to return to work; (2) Johnson’s deposition testimony that she would
not rehire Antonio; (3) Sygma’s failure to employ progressive discipline instead
of termination; (4) Sygma’s reliance on job abandonment when there was
purportedly no written job abandonment policy; (5) Sygma’s use of different
discipline for “white and American-born” employees, Aplt. Br. at 35; and
(6) Sygma’s purported failure to give Antonio an opportunity to explain why she
had not called as promised from Zimbabwe. Viewing this evidence in the light
most favorable to Antonio does not reveal that Antonio’s complaint had anything
to do with her termination. Indeed, as Antonio acknowledges, three of the four
individuals on the personnel committee “testified that they would rehire M s.
Antonio if she were to apply for a position for which she was qualified.” Id. at 26
(emphasis omitted). Assuming that all three of those individuals were aware of
Antonio’s complaint, the logical inference from their willingness to rehire
Antonio is that her complaint had no bearing on their termination decision. And
-7-
while Johnson testified that she would not rehire Antonio, any connection with
Antonio’s complaint is purely speculative, given that three months after Antonio
complained, Johnson gave Antonio a favorable review and Antonio described
Johnson as having “been an excellent source of training and assistance.” A plt.
App. at 168. Six more months passed w ithout Johnson taking any action adverse
to Antonio. As for Sygma’s resort to termination rather than progressive
discipline, it is undisputed that the personnel committee was following the Sygma
employee handbook, which makes progressive discipline discretionary and warns
that job abandonment is a consequence of failing to report to work without notice.
Although a retaliatory motive could be inferred from a disparate application of
handbook policies to similarly situated employees, see Nguyen v. City of
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); Smith v. Riceland Foods, Inc.,
151 F.3d 813, 820 (8th Cir. 1998), Antonio identifies no such employees. 2
Finally, Antonio testified in deposition that Johnson’s supervisor gave her an
2
One employee, M r. Coffee, was a “no-call no-show” on two occasions, but
for only one day each time and “before Sygma [had] adopted its job abandonment
policy.” Aplee. Br. at 32. Other employees had excessive reported absences,
tardiness, or performance-related issues. Another employee, Sergio, was likew ise
not comparable to Antonio, in that he worked at Sygma’s warehouse, under
different management than Antonio, and had abandoned his job roughly
tw enty-two months after A ntonio. See Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1233-34 (10th Cir. 2000) (questioning the evidentiary value of
contrasting an employer’s current disciplinary practices with practices “more than
a year and a half” earlier).
-8-
opportunity to discuss “why [she] had been fired,” but she declined. Aplt. App. at 77.
Because Antonio has not identified a triable issue of fact as to whether she
was terminated for complaining about Johnson’s remark, we conclude that
summary judgment was appropriately entered on her retaliation claim.
II. Discriminatory Termination— Pretext 3
Antonio also challenges the district court’s ruling that Sygma’s reliance on
job abandonment was not a pretext for discrimination.
To show that an employer’s proffered nondiscriminatory reason for
an employment action is pretextual, a plaintiff must produce
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 unw orthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.
EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 490 (10th Cir. 2006)
(quotations omitted). W e find the evidence in this case insufficient to raise a
triable issue regarding pretext.
M ost of the same individuals— including Johnson— who decided to
terminate Antonio for job abandonment had also hired her twice, fully aware of
her race and national origin. It makes little sense to deduce that these individuals
terminated Antonio roughly ten months later because of her race and/or national
3
Sygma does not contest Antonio’s assertion that she can establish a prima
facie case of discriminatory termination. See Kendrick, 220 F.3d at 1229
(requiring a discrimination plaintiff to show that (1) she belongs to a protected
class, (2) was qualified for her job, (3) despite her qualifications, she was
terminated, and (4) the job was not thereafter eliminated).
-9-
origin. This premise, commonly known as the “same actor inference,” has been
recognized in varying degrees by nearly every circuit. E.g., Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 572-73 (6th Cir. 2003); Roberts v. Separators,
Inc., 172 F.3d 448, 452 (7th Cir. 1999); Williams v. Vitro Servs. Corp., 144 F.3d
1438, 1442-43 (11th Cir. 1998); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560
(2d Cir. 1997); Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir.
1996); Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 512 (1st Cir. 1996); Brown
v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996); Waldron v. SL Indus., Inc.,
56 F.3d 491, 496 n.6 (3d Cir. 1995); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d
173, 174-75 (8th Cir. 1992); Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir.
1991). W e take this opportunity to join our sister circuits and announce that
in cases where “the employee was hired and fired by the same person within a
relatively short time span,” 4 there is “a strong inference that the employer’s stated
reason for acting against the employee is not pretextual.” Proud, 945 F.2d at 798.
W e emphasize, however, that “[t]he plaintiff still has the opportunity to present
countervailing evidence of pretext,” id., and that “same actor” evidence gives rise
to an inference, rather than a presumption, that no discriminatory animus
4
The temporal separation between hiring and firing has varied widely in
cases applying the same actor inference. See, e.g., Grady, 130 F.3d at 561 (eight
days); Jacques, 96 F.3d at 509 (three months); Proud, 945 F.2d at 798 (six
months); Bradley, 104 F.3d at 269 (eleven months); Roberts, 172 F.3d at 452 (one
year); Brown, 82 F.3d at 658 (four years).
-10-
motivated the employer’s actions, see Williams, 144 F.3d at 1443; Waldron, 56
F.3d at 496 n.6.
Antonio’s evidence of pretext does not dispel this inference. In addition to
her retaliation evidence, Antonio relies on (1) Johnson’s remark “[e]quating [b]ad
[b]ody [o]dor with [c]ulture,” Aplt. Br. at 43; (2) inconsistent deposition
testimony as to whether Sygma disciplined Johnson for her remark; and
(3) evidence that only a few non-whites and no black managers work at
“SYGM A’s Denver location (where M s. Antonio was employed),” id. at 50.
Regarding Johnson’s “culture” remark, it is undisputed that Antonio
suffered from a medical condition that caused increased perspiration and that
Antonio wore only perfume to conceal any odor. Nevertheless, assuming that the
remark evinces racial animus, it is well-settled that “isolated racial comments are
insufficient to establish pretext unless they can somehow be tied to the
employment actions disputed in the case at hand.” BCI Coca-Cola, 450 F.3d
at 489 (quotations omitted). The remark was made by only one of the four
individuals that decided to terminate A ntonio, and no overt racial animus is
attributed to any of the other decisionmakers. Further, the remark was temporally
remote from the termination. W e conclude that no reasonable trier of fact could
find pretext in Sygma’s reason for terminating Antonio based on Johnson’s
remark.
-11-
As to whether Sygma disciplined Johnson over her remark, Sygma’s human
resources vice-president testified that she believed Johnson was “sent to [diversity
or sensitivity] training,” A plt. App. at 407, whereas Johnson denied being sent to
training, id. at 309. Sygma concedes the discrepancy, but questions its relevance
to pretext. Because Antonio does not explain the pretextual connection between
her termination for job abandonment and Johnson’s attendance or lack of
attendance at training, we do not consider this issue further. See Am. Airlines v.
Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992) (declining to consider issues
lacking reasoned argument).
Antonio’s evidence concerning the low number of Sygma’s minority
employees likewise says nothing about why she was terminated. In disparate
treatment cases, “overall employment statistics have little bearing on the specific
intentions of the employer in making particular [employment] decisions . . . [and]
will rarely suffice to rebut an employer’s legitimate, nondiscriminatory reasons
for a particular adverse employment action.” Bullington v. United Air Lines, Inc.,
186 F.3d 1301, 1319 (10th Cir. 1999), overruled on other grounds by Nat’l R.R.
Passenger Corp. v. M organ, 536 U.S. 101 (2002).
Adding Antonio’s retaliation evidence does little to cast Sygma’s reliance
on job abandonment as a pretext for discrimination. For many of the same
reasons that we rejected that evidence as indicative of prima facie retaliation,
we reject it now for pretext, and conclude that the district court did not err in
-12-
granting summary judgment on Antonio’s discrimination claims. See Branson v.
Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (observing that a
plaintiff’s “mere conjecture that [her] employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary
judgment”).
III. Supplemental State Law Claims
The district court also granted Sygma summary judgment on Antonio’s
state law claims. W e conclude that the district court did not err. The Sygma
employee handbook, which Antonio relies on as the basis for her claims of
promissory estoppel and breach of the good-faith-and-fair-dealing covenant,
unmistakably declares that “[t]he contents of the SYGM A handbook do not
constitute an express or implied contract of employment,” that “the handbook is
non-binding and is not intended to create, nor to be construed as a contract
between SYGM A and one or all of its employees,” and that “SYGM A retains the
right to terminate [Antonio’s] employment at will.” Aplt. App. at 148. Under
Colorado law , “[s]ummary judgment denying claims based on a handbook is
appropriate if the employer has clearly and conspicuously disclaimed intent to
enter a contract limiting the right to discharge employees.” Ferrera v. Nielsen,
799 P.2d 458, 461 (Colo. Ct. App. 1990); see also George v. Ute Water
Conservancy Dist., 950 P.2d 1195, 1198 (Colo. Ct. App. 1997) (recognizing that
-13-
promissory estoppel and contract-based claims fail “if the employer has clearly
and conspicuously disclaimed intent to enter into a contract limiting the right to
discharge employees”). Because Sygma clearly disclaimed any limitation on the
at-w ill relationship, A ntonio’s state law claims fail as a matter of law.
The judgment of the district court is AFFIRMED.
-14-