F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 8, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DORIS A. RIGGS,
Plaintiff - Appellant,
No. 06-3250
v.
AIR TRAN AIRW AYS, IN C.,
Defendant - Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. No. 04-CV-1306-M LB)
Lawrence W . W illiamson, Jr., Shores, W illiamson and Ohaebosim, L.L.C.,
W ichita, Kansas, for Plaintiff - Appellant.
Carolyn L. M atthews (and Jay F. Fowler, on the brief), Foulston, Siefkin, L.L.P.,
W ichita, Kansas, for Defendant - Appellee.
Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant Doris Riggs appeals the district court’s entry of
summary judgment against her on her claim that Defendant-Appellee AirTran
Airways, Inc., (“AirTran”) terminated her in violation of the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621. The district court concluded
that M s. Riggs had failed to bring forth sufficient evidence to create a jury
question as to whether AirTran’s asserted nondiscriminatory reason for
terminating her was actually a pretext for age discrimination. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
Background
AirTran employed M s. Riggs as an at-will customer service agent in
W ichita, Kansas from April 19, 2002 to June 19, 2003. M s. Riggs’s duties
included working at the front ticket counter, the gate counter, and on the ramp
loading and unloading luggage. Aplt. App. at 40. At the time of the incident
leading to her termination, M s. Riggs was 67 years old. Aplee. Supp. App. at 17.
M s. Riggs was supervised by Gina D olieslager, the manager of A irTran’s
W ichita station. M s. Dolieslager was over forty years old at the time M s. Riggs
was terminated. Aplt. App. at 72. On two occasions prior to the termination, M s.
Dolieslager allegedly commented on M s. Riggs’s age. The first took place when
M s. Dolieslager discussed her mother’s heart surgery, and M s. Riggs revealed that
she was the same age as M s. Dolieslager’s mother. Id. at 38. M s. Dolieslager
responded that M s. Riggs did not look as old as she was. Id. M s. Riggs did not
take offense at the comment and did not feel the need to report the incident. Id.
Subsequent to that exchange, M s. Dolieslager assisted M s. Riggs with luggage
-2-
and commented that M s. Riggs was too old to be lifting heavy bags. Id.
Although this comment embarrassed M s. Riggs, she did not report the incident.
Id. at 39. Additionally, M s. Dolieslager complained about AirTran’s seniority
policy, under which M s. Riggs was given seniority over other employees who had
begun work on the same date because of her age. Id. at 233-34.
The events leading to M s. Riggs’s termination occurred on June 5, 2003.
That morning, M s. Riggs and four other AirTran employees–Tammy Spero-M ally,
Judith Beddow, Paul Lawrence, and Jeff Baird–checked in a large group of
children belonging to a M ennonite choir. Aplt. Br. at 3-4. After having checked
in most of the group with some difficulty, M s. Riggs was approached by a woman
asking her to check in a girl who was running late. M s. Riggs informed the
woman that she was unable to check in passengers unless they were present. Id.
at 4. The woman became upset, and her behavior frightened M s. Riggs. Id.
Although M s. Dolieslager was not present at the gate that morning, she
learned about the choir’s check-in later in the day when M r. Baird told her he had
been “embarrassed to be in an AirTran uniform” because he heard passengers
discussing how rudely they had been treated by AirTran employees. Aplt. App. at
75, 229. M s. Dolieslager then “talked to Doris, I talked to Tammy, I talked to
Judi and asked them what the heck’s going on.” Id. at 75. According to M s.
Dolieslager, M s. Beddow and M s. Spero-M ally both stated that M s. Riggs was
“the one being rude,” and M s. Riggs admitted “well, I might have been a little
-3-
short with them . . . but those damn kids wanted all their seats switched around
and I wasn’t about to do that.” Id. M s. Riggs, however, only remembers telling
her supervisor that “we had a rough time with this bunch, getting them on and
getting them out.” Id. at 228.
Four days later, Jessica Senn, the choir group’s travel agent, sent an email
to Bill Howard, AirTran National Sales Director, complaining about the way
AirTran employees treated the group during check-in at the W ichita airport. Id. at
123-24. She wrote:
The choir and myself are very upset with AirTran and the way we
were treated upon check-in.
***
W hile beginning the check-in process at about 6:00 or 6:15
AM , two ladies appeared at the counter from the back room. One of
the ticketing agents, Gina, was extremely rude and failed to be of
good service to us. The other agent was rude, but not as bad as Gina
- I do not have the other w oman’s name. She had long dark hair.
Gina seemed to “ramrod” around and I even witnessed her snipping
at the supervisor and telling him how things should be done. Gina
then proceeded to yell at some of the passengers, pounded her hands
on the counter and yelled “next” during the check in process before
the other passengers could even step away from the counter and even
went as far [as] to tell some of the children passengers that they can’t
get on this flight from W ichita to Atlanta. Obviously in the name of
the group, Children’s Choir, you can tell that the majority of the
passengers were minors and they couldn’t fly alone without an adult.
M any of these kids had never flown before. Parents of the
Children’s Choir trusted the group leaders/chaperones with their kids
on this trip.
***
-4-
I being the travel agent am inclined to say that I will not sell Airtran
ever again for groups. This group spent a lot of money for this trip
and if this is how they’ll be treated on AirTran, I DO NOT want any
of my other groups to experience this. M y clients deserve better.
***
W e expect action to be taken immediately and something to be done
about this situation.
Id.
W hen M s. Dolieslager learned of the complaint on June 13, 2003, she
contacted M s. Senn to find out more about the employee identified as “Gina”
because the only employee named Gina (M s. Dolieslager herself) had not been
working at the ticket counter that morning. M s. Senn’s description of “Gina”
only fit M s. Riggs. Id. at 76. M s. Dolieslager then discussed the incident a
second time w ith M s. Beddow and M s. Spero-M ally. She did not, however,
discuss M s. Senn’s complaint with M s. Riggs, who was on vacation at the time.
M s. Dolieslager then spoke with Amy M orris, the manager of employee
relations and diversity, and recommended that M s. Riggs be terminated.
According to M s. M orris, a supervisor recommending termination should ensure
that the complaining customer was being truthful and investigate the incident to
accumulate all the facts before bringing the matter to her attention. Id. at 93-94.
This investigation typically included obtaining the accused employee’s side of the
story. Id. at 93. M s. M orris testified that she approved M s. Riggs’s termination
for two reasons: (1) M s. Riggs was rude to customers and (2) M s. Riggs
-5-
impersonated her supervisor by saying that she was Gina. Id. at 90.
M s. Riggs was informed of her termination when she returned to work from
her vacation on June 19, 2003. A peer review panel subsequently upheld the
termination decision. M s. Riggs then filed suit against AirTran, alleging a
violation of the ADEA, intentional infliction of emotional distress, and tortious
interference with contractual relations. The district court dismissed the claim of
intentional infliction of emotional distress, and M s. Riggs withdrew her claim of
tortious interference with contractual relations. The district court subsequently
granted AirTran’s motion for summary judgment, determining that M s. Riggs
failed to meet her burden of producing evidence sufficient to show that AirTran’s
proffered reason for the termination was pretextual.
Discussion
W e review the district court’s grant of summary judgment de novo,
applying the same standard used by the district court. Timmerman v. U.S. Bank,
N.A., 483 F.3d 1106, 1112 (10th Cir. 2007). Summary judgment is appropriate
only if “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c). In
making this determination, we view the evidence in the light most favorable to
M s. Riggs, the non-moving party, and draw all reasonable inferences in her favor.
Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1164 (10th Cir. 2007) (en banc).
-6-
Under the ADEA, an employer cannot “discharge any individual . . .
because of such individual’s age.” See 29 U.S.C. § 623(a)(1). Thus, a plaintiff
suing under the ADEA must prove that the challenged employment action was
motivated, at least in part, by age. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000). The plaintiff may carry this burden either by
presenting direct evidence of the employer’s discriminatory intent or by
presenting circumstantial evidence creating an inference of a discriminatory
motive using the tripartite M cDonnell Douglas burden-shifting analysis. See
Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002).
Under M cDonnell Douglas, the plaintiff first bears the burden of proving a
prima facie case of discrimination. M cDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). If the plaintiff successfully proves a prima facie case, the
employer must articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. Once the employer identifies a legitimate reason for its
action, the burden shifts back to the employee to prove that the proffered
legitimate reason was a pretext for discrimination. See Reeves, 530 U.S. at 148.
Of course, at the summary judgment stage, the parties bear burdens of production
rather than burdens of persuasion. See Timmerman, 483 F.3d at 1113.
M s. Riggs presses two contentions on appeal. First, she argues that the
district court is not constitutionally permitted to determine whether other
employees were “similarly situated” in conducting the pretext analysis on
-7-
summary judgment. Second, she contends that the evidence presented was
sufficient to raise a genuine issue of material fact regarding whether she was
terminated because of her age. W e address each argument in turn.
I.
M s. Riggs first urges us to reverse the grant of summary judgment because
“the lower court here has stepped into the role of fact finder and violated [the]
Seventh Amendment.” 1 Aplt. Br. at 15. At bottom, she argues that “allowing
judges in discrimination cases to make factual distinctions as to who is ‘similarly
situated’ and whether alleged violations were close enough to a plaintiff’s
violations for the purposes of summary judgment is not constitutional.” Id. Her
argument begins w ith M cD onnell Douglas itself, which she describes as an effort
by the Supreme Court to make it easier for plaintiffs alleging discrimination to
get their claims before the finder of fact. Id. at 19; see also Iadimarco v. Runyon,
190 F.3d 151, 161 (3d Cir. 1999) (“[T]he basic point of the M cDonnell Douglas
burden-shifting regime [is] to make it easier for employees to bring claims that
would otherw ise be extraordinarily difficult to prove.”); E.E.O.C. v. G-K -G , Inc.,
39 F.3d 740, 747 (7th Cir. 1994) (same). In her view, M cDonnell Douglas was a
case about “the order and allocation of proof in a private, non-class action
challenging employment discrimination.” A plt. Br. at 20 (quoting M cDonnell
1
The Seventh Amendment provides in relevant part that “[i]n Suits at
comm on law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved . . . .” U .S. Const. Amend. VII.
-8-
Douglas, 411 U.S. at 800 (emphasis added)). Therefore, she argues, parties bear
only a burden of production at the summary judgment stage; that is, they must
merely come forward with some evidence which, if believed, would allow them to
carry their burden of proof at trial.
However, M s. Riggs contends that our precedent has not remained faithful
to M cD onnell Douglas: “A s it stands, courts require a plaintiff to persuade a court
that the plaintiff has proven pretext. This requires the court to weigh the facts.”
Id. at 22. “For instance, if a court, as the lower court here, chooses to believe a
defendant’s argument that the defendant can distinguish offenses or that other
individuals are not similarly situated; [sic] the court’s ruling violates the
constitution . . . .” Id. at 27-28. In other words, M s. Riggs contends that only the
fact-finder may judge whether other employees were similarly situated.
As M s. Riggs notes, M cD onnell Douglas reviewed the district court’s entry
of judgment in favor of the defendant after trial. The Supreme Court ordered the
case remanded so that “on the retrial respondent [can] be given a full and fair
opportunity to demonstrate by competent evidence that the presumptively valid
reasons for his rejection were in fact a coverup for a racially discriminatory
decision.” M cDonnell Douglas, 411 U.S. at 805. M s. Riggs is also correct that
several subsequent applications of the M cDonnell Douglas burden-shifting
framew ork by the Supreme Court have followed full trials. See, e.g., Reeves, 530
U.S. 133; St. M ary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Patterson v.
-9-
M cLean Credit Union, 491 U.S. 164 (1989); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981).
However, this does not mean that M cDonnell Douglas is inapplicable at the
summary judgment stage. The summary judgment analysis is “the threshold
inquiry of determining whether there is the need for a trial–whether, in other
words, there are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes of
the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses . . . .”). In the employment discrimination context, there is no
need for a trial if one party has failed to produce sufficient evidence to carry its
burden of persuasion. It is therefore appropriate for a court to reference the
burdens of proof articulated by M cDonnell Douglas in determining whether the
parties have come forw ard with sufficient evidence to make a trial necessary.
See, e.g., Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006) (“Thus, all
that remains before us is to decide whether a genuine issue of material fact exists
as to whether Dillon’s proffered reason for discharging M r. Young was
pretextual.”) (emphasis added).
Our cases have sometimes used general terms like “establish” or “show” in
- 10 -
describing the burden of production (as the district court did here 2 ) rather than
specifically explaining that, at summary judgment, the nonmovant is only
required to bring forth evidence tending to establish or show the material fact at
issue. However, we have commonly used the word “proffer” in describing the
defendant’s obligation to produce evidence of a legitimate nondiscriminatory
reason for the adverse action, see Zamora, 478 F.3d at 1165, and this word
accurately describes the burden on the plaintiff at the summary judgment stage, as
well; she must proffer some probative evidence that would be sufficient to sustain
her burden of persuasion at trial, but she need not offer conclusive proof to the
court in order to withstand summary judgment.
In an employment discrimination case, evidence of disparate treatment is
2
The district court described its application of M cDonnell Douglas as
follow s:
Defendant has conceded for the purposes of this motion that plaintiff
can establish a prima facie case. The burden then shifts to defendant
to establish a legitimate reason for plaintiff’s termination. Defendant
has asserted that it terminated plaintiff for being rude to the choir
group and impersonating her manager, Gina D olieslager. The court
finds that defendant has met its burden in establishing a legitimate
nondiscriminatory reason. The burden now shifts back to plaintiff to
demonstrate that defendant’s reason is pretext for illegal
discrimination.
R. Doc. 64, at 6 (emphasis added). Context matters, and it is clear to us that the
district court understood that the parties merely bear burdens of production at the
summary judgment stage. See, e.g., id. at 9 (“Plaintiff may also establish pretext
by presenting evidence of age-related comments to demonstrate that defendant’s
reason for termination was false.”) (emphasis added).
- 11 -
only relevant if the plaintiff can show that he or she “was treated differently from
other similarly-situated employees w ho violated work rules of comparable
seriousness.” Timmerman, 483 F.3d at 1120. Of course, at the summary
judgment stage, the plaintiff need only produce evidence that similarly situated
employees were treated differently. W e have held that “[s]imilarly situated
employees are those who deal with the same supervisor and are subject to the
same standards governing performance evaluation and discipline.” Aramburu v.
Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).
M s. Riggs contends that she carried her burden of production by offering
evidence regarding disciplinary actions taken against six other employees who
were supervised by M s. Dolieslager. She argues that the district court’s rejection
of this evidence involved the impermissible factual determination that these w ere
not “similarly situated” employees. However, we reject the premise of this
argument–that the district court actually made a factual finding.
It is true that “[w]hether two employees are similarly situated ordinarily
presents a question of fact for the jury.” George v. Leavitt, 407 F.3d 405, 414
(D.C. Cir. 2005); see also Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000) (same). However, at summary judgment, the court must determine whether
“plaintiff has adduced enough evidence to support a finding that the [other
employee] and plaintiff were sufficiently similarly situated to support an
inference of discrimination.” M andell v. County of Suffolk, 316 F.3d 368, 380
- 12 -
(2d Cir. 2003). W ithout such evidence, the jury is not entitled to draw an
inference of discrimination. See E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1319-20
(10th Cir. 1992). Thus, a motion for summary judgment in an employment
discrimination case is no different from a motion for summary judgment in any
other civil action: the court acts as a gatekeeper, granting judgment as a matter of
law unless the plaintiff has adduced relevant and probative evidence sufficient to
support a jury verdict in his or her favor. This does not require a factual finding,
nor does it abridge the Seventh Amendment jury trial right. See Anderson, 477
U.S. at 250.
Accordingly, we reject M s. Riggs’s argument that the district court
improperly weighed evidence in determining that other employees were not
similarly situated. The district court was plainly allowed to make the
determination that M s. Riggs did not produce sufficient evidence of disparate
treatment to create a genuine issue of material fact for trial. W e address whether
this determination w as correct below.
II.
M s. Riggs next argues that the district court erred in concluding that she
failed to come forth with sufficient evidence to create a genuine issue of material
fact. She contends both that she produced sufficient direct evidence of
discrimination to withstand AirTran’s motion for summary judgment and that she
produced sufficient circumstantial evidence to survive under the M cDonnell
- 13 -
Douglas burden-shifting framew ork. W e disagree.
A.
“Direct evidence is evidence, which if believed, proves the existence of a
fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476
F.3d 847, 855 (10th Cir. 2007). Stated differently, “[d]irect evidence
demonstrates on its face that the employment decision was reached for
discriminatory reasons.” Danville, 292 F.3d at 1249. In contrast, “[s]tatements
of personal opinion, even when reflecting personal bias or prejudice, do not
constitute direct evidence of discrimination, but at most, are only circumstantial
evidence of discrimination because the trier of fact must infer discriminatory
intent from such statements.” Hall, 476 F.3d at 855.
M s. Riggs argues that there is a causal nexus between the discovery of her
age and the “adverse treatment” she received. Aplt. Br. at 36. She explains:
M s. Dolieslager only began treating [M s. Riggs] differently
after learning of her age. Additionally, M s. Dolieslager also began
interfering with M s. Riggs’ duties after she learned of M s. Riggs’
age. This goes beyond the mere statements of opinion. M s.
Dolieslager actually acted on her bias.
Id. (internal citations omitted). As noted above, this “adverse treatment”
consisted of the following: M s. Dolieslager noted on one occasion that M s. Riggs
was as old as her mother; M s. Dolieslager told M s. Riggs at least once that she
was too old to be moving heavy luggage; and M s. Dolieslager admittedly tried to
- 14 -
assign M s. Riggs to work at the less-demanding gate rather than the ramp. 3 Id.
Although it is difficult to see this treatment as anything less than benevolent, at
the summary judgment stage w e assume that it was unfavorable to M s. Riggs.
Nevertheless, we fail to see a direct link between this treatment and the
termination decision. Notably, M s. Riggs has failed to produce any evidence of
context, so we do not know when these events transpired or whether they have
any temporal proximity to the termination. Likew ise, nothing in M s.
Dolieslager’s statements or actions relates M s. Riggs’s age to any dissatisfaction
with her work. In other words, the finder of fact would need to draw an inference
in order to determine that the outward manifestations of M s. Dolieslager’s alleged
age bias motivated her to terminate M s. Riggs. Our precedent makes clear that
evidence is not “direct” if an inference of discrimination is required. See, e.g.,
Hall, 476 F.3d at 855 (“A statement that can plausibly be interpreted two different
ways–one discriminatory and the other benign–does not directly reflect illegal
animus, and, thus, does not constitute direct evidence.”) (quoting Patten v. W al-
M art Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002)). Therefore, we conclude
that M s. Riggs did not produce sufficient direct evidence of discrimination to
withstand summary judgment.
3
Indeed, M s. Dolieslager testified that M s. Riggs asked not to work the
ramp and “I didn’t want to lose [M s. Riggs] because she was good on gate. So I
worked around it. I kept her off the ramp as much as I could . . . .” Aplt. App. at
264.
- 15 -
B.
W ithout direct evidence of age discrimination, M s. Riggs’s claim must rely
on circumstantial evidence and proceed under the M cDonnell Douglas burden-
shifting framework. AirTran concedes that M s. Riggs can establish a prima facie
case, and M s. Riggs does not dispute that AirTran has articulated a legitimate,
nondiscriminatory reason for terminating her. Thus, M s. Riggs must produce
evidence from which a reasonable jury could conclude that the reason given by
AirTran was a pretext for age discrimination.
Pretext can be shown by “such w eaknesses, 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.” Rivera v. City & County of Denver, 365
F.3d 912, 925 (10th Cir. 2004). W e do not ask whether the employer’s reasons
were wise, fair or correct; the relevant inquiry is w hether the employer honestly
believed its reasons and acted in good faith upon them. Timmerman, 483 F.3d at
1120. “Even a mistaken belief can be a legitimate, non-pretextual reason for an
employment decision.” Piercy v. M aketa, 480 F.3d 1192, 1200 (10th Cir. 2007).
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. Id. “The reason for this
- 16 -
rule is plain: our role is to prevent intentional discriminatory hiring practices, not
to act as a ‘super personnel department,’ second guessing employers’ honestly
held (even if erroneous) business judgments.” Dillon, 468 F.3d at 1250.
Evidence of pretext may take a variety of forms. See Patterson, 491 U.S. at
187; Kendrick, 220 F.3d at 1230. M s. Riggs contends that she has met her burden
of production by making four proffers of pretext. First, she argues that AirTran
failed to follow its policies and customs, indicating that the termination decision
was not made in good faith. Second, she argues that M s. Dolieslager’s use of
subjective criteria in making the termination decision is indicative of pretext.
Third, she contends that M s. Dolieslager treated similarly situated employees
differently. Finally, M s. Riggs claims that inconsistencies and contradictions in
documentation and testimony demonstrate pretext. Our task is to determine
whether a reasonable jury could disbelieve AirTran’s asserted reasons for
terminating M s. Riggs based on this evidence. See M organ v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997).
1.
M s. Riggs first points to evidence that M s. Dolieslager did not follow
company policy in terminating her. W hile there is no evidence that AirTran has a
written policy against terminating an employee without seeking their response to
a complaint, M s. M orris testified that she would have done so under the
circumstances in this case. Aplt. App. at 94. However, M s. Dolieslager did speak
- 17 -
with M s. Riggs–and several other employees–about difficulties w ith the choir
group’s check-in on the day that it occurred. Id. at 75, 83. Once she received
M s. Senn’s complaint and learned the full extent of the group’s dissatisfaction
with the service it received, she did not further discuss the incident with M s.
Riggs because M s. Riggs w as on vacation and because M s. Riggs w as the only
employee fitting M s. Senn’s description of “Gina.” Aplee. Br. at 6. Although
allow ing M s. Riggs to complete her side of the story would seem to be the most
fair way of addressing the situation, we cannot say that M s. Dolieslager’s failure
to do so in these circumstances constitutes a “disturbing procedural irregularity”
sufficient to prove pretext. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1220 (10th Cir. 2002). There are certainly infractions warranting summary
termination, but deciding whether this was one of them w ould require us to act as
a super-personnel department, not a court. Regardless, this evidence does not
suggest that AirTran’s stated reasons for terminating M s. Riggs were false.
In a similar vein, M s. Riggs contends that it was company policy for the
station manager to tell an employee that he or she was being terminated but that
M s. Dolieslager did not inform her of the termination. This is hardly a disturbing
procedural irregularity, and we fail to see how it implicates the material issues in
the case. Evidence about who informed M s. Riggs of her termination is not
probative of whether the reasons given for the termination were pretextual.
- 18 -
2.
M s. Riggs next contends that the subjectivity M s. Dolieslager had in
deciding what information would be considered in making a termination decision
is sufficient to support an inference of pretext. Aplt. Br. at 44. “Courts view
with skepticism the use of subjective evaluations in making termination
decisions.” Plotke v. W hite, 405 F.3d 1092, 1106 (10th Cir. 2005); see also
Garrett, 305 F.3d at 1217-18 (holding that subjectivity by the decisionmaker is
relevant evidence of pretext). However, the existence of subjective criteria alone
is not considered evidence of pretext; rather, the existence of other circumstantial
evidence may provoke a stronger inference of discrimination in the context of
subjective evaluation standards. See Pippin v. Burlington Res. Oil & Gas Co.,
440 F.3d 1186, 1195 (10th Cir. 2006).
Here, M s. Dolieslager had wide latitude in investigating M s. Senn’s
complaint and determining which facts to provide to M s. M orris in recommending
M s. Riggs’s termination. M s. Riggs contends that this subjectivity, coupled with
the evidence of how M s. Dolieslager treated M s. Riggs after learning her age, is
sufficiently indicative of pretext to survive summary judgment. Aplt. Br. at 44.
However, we have recognized that there is a level of subjectivity inherent in any
evaluation process. See Santana v. City & County of Denver, — F.3d— , 2007 W L
1502264, at *4 (10th Cir. 2007). The important question is not whether the
investigation was highly structured but whether M s. Dolieslager had unfettered
- 19 -
discretion in determining the appropriate punishment. M s. Riggs has not come
forward with evidence that other employees who committed similar offenses w ere
not terminated, and she has not pointed to any evidence showing that M s.
Dolieslager deliberately withheld information from M s. M orris or otherwise
misrepresented her honestly held belief that M s. Riggs was the employee
identified as “Gina” by M s. Senn. Thus, M s. Riggs has not proffered evidence
from which a jury could permissibly infer that M s. Dolieslager used her latitude
in investigating the customer complaint to act on her alleged age bias.
3.
M s. Riggs next contends that AirTran treated her less favorably than other
similarly situated employees. “Similarly situated employees are those who deal
with the same supervisor and are subject to the same standards governing
performance evaluation and discipline.” Timmerman, 483 F.3d at 1120 (quoting
Aramburu, 112 F.3d at 1404). W e have held that evidence that similarly situated
employees received different treatment than the plaintiff is indicative of pretext.
See, e.g., id.; Kendrick, 220 F.3d at 1230.
In opposing summary judgment, M s. Riggs pointed to six AirTran
employees who she claimed received more favorable treatment from M s.
Dolieslager than she did because they were allowed to respond to the allegations
against them. The district court determined that three of these employees could
not be similarly situated because they had not violated workplace rules of
- 20 -
comparable seriousness. See Timmerman, 483 F.3d at 1121. One, Eric Arndt,
was terminated for using offensive language with his supervisor and failing to
clock in and out. Two others, Amy Tattershall and M ichelle H ill, were
terminated after they drove a company vehicle into a gate and lied to their
supervisor about it. Although all three were customer service agents younger
than M s. Riggs, the district court distinguished their terminations because their
misconduct did not involve customers. Regardless of whether the offenses
comm itted by M r. Arndt, M s. Tattershall and M s. Hill were “egregious and
immediately terminable” as M s. Riggs claims, see Aplt. Br. at 47, no evidence
suggests that the employer considered these offenses to be as egregious as
customer mistreatment. 4
M s. Riggs also alleges that A licia Bulla is a similarly situated employee.
However, the record does not disclose any details about M s. Bulla’s behavior, nor
does it indicate what discipline she ultimately received. M s. Beddow’s hearsay
statement that M s. Bulla “would sometimes get a little rude and short with a
passenger,” see Aplt. App. at 293-94, is not sufficient to show that M s. Bulla and
M s. Riggs were similarly situated.
Finally, M s. Riggs notes that M s. Dolieslager interviewed two of her
4
M s. Riggs contends that “Defendant did not identify rudeness to a
customer as an egregious act that w ould warrant termination.” Aplt. Br. at 47.
However, she bears the burden of producing evidence that these employees were
similarly situated, see W atts v. City of N orman, 270 F.3d 1288, 1293 (10th Cir.
2001), so AirTran’s failure to counter her insufficient evidence is immaterial.
- 21 -
younger coworkers–Tammy Spero-M ally and Judith Beddow –regarding M s.
Senn’s complaint. The district court concluded that these employees were not
similarly situated because M s. Dolieslager questioned them as witnesses, not
suspects. M s. Riggs contends that this ruling involved an impermissible weighing
of the evidence, alleging that the record contains evidence from which a
reasonable jury could conclude that these women were questioned as suspects.
Aplt. Br. at 46-47. She supports this contention by citing her own testimony that
M s. Spero-M ally and M s. Beddow told her that M s. Dolieslager had asked them
whether they identified themselves as “Gina.” Aplt. App. at 232.
However, in that same testimony, M s. Riggs admitted that she was not
present during this conversation. 5 Id. Accordingly, her hearsay testimony is
inadmissible “in support of, or opposition to, summary judgment.” Starr v. Pearle
Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (noting that “[o]ther circuits
have held that a court may not consider hearsay evidence in depositions submitted
to defeat summary judgment and the Supreme Court impliedly adheres to this
rule”); see also Young, 468 F.3d at 1252 (statements revealing racial animus were
not admissible in establishing pretext because they were made to other employees
and subsequently conveyed, second-hand, to the plaintiff). W ith no admissible
evidence that M s. Spero-M ally and M s. Beddow were interviewed as suspects, no
5
Indeed, M s. Beddow testified that she was never accused of
impersonating the station manager. Aplt. App. at 291.
- 22 -
reasonable jury could conclude that they were similarly situated.
4.
Finally, M s. Riggs claims that inconsistencies in testimony and
documentation support the inference that AirTran’s reasons for her termination
were pretextual. Although M s. Riggs does not directly identify which documents
were improperly introduced or what testimony was inconsistent, see Aplt. Br. at
47, her argument apparently centers around three pieces of evidence: (1) a
memorandum about her failure to attend a meeting regarding ramp safety; (2) M s.
M orris’s testimony regarding whether she provided employee training; and (3)
M s. Dolieslager’s testimony regarding whether she was responsible for addressing
performance deficiencies. This evidence has no bearing whatsoever on the
incident with the choir group or M s. Dolieslager’s belief that M s. Riggs was the
employee who identified herself as “Gina.” A ccordingly, this evidence is
insufficient to create a jury question regarding pretext.
C.
M s. Riggs also submits that the district court failed to consider the
evidence as a whole in granting summary judgment. See Aplt. Br. at 39. Our
review of the record satisfies us that the district court properly considered the
evidence presented using the M cDonnell Douglas framework. In any case, we
have considered all of M s. Riggs’s contentions as a whole in our de novo review
of the district court’s grant of summary judgment, and we have concluded that
- 23 -
summary judgment was properly entered in favor of AirTran.
A FFIR ME D.
- 24 -