FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JAGDISH C. LAUL,
Plaintiff - Appellant,
v. No. 16-2245
(D.C. No. 1:15-CV-00749-JAP-KBM)
LOS ALAMOS NATIONAL (D. N.M.)
LABORATORIES,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
_________________________________
In this employment case premised on age and national-origin discrimination,
Jagdish C. Laul appeals from a district court order that entered summary judgment in
favor of his employer, Los Alamos National Laboratories (LANL). Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
BACKGROUND
Laul is a naturalized U.S. citizen from India. He began working for LANL as a
safety engineer in 1999, when he was 60 years old. As early as his 2007 performance
evaluation, supervisors began noting that his “final work products typically need[ed]
significant rework for grammar, and in some cases standard format and acceptable
content.” Aplt. App., Vol. II at 92. Nevertheless, in early 2010, Laul was promoted to a
level four safety-basis analyst.
Laul’s performance problems continued, however. In his September 2011 review,
his supervisor, Lisa Pansoy-Hjelvik, noted that Laul “has difficulty . . . grasping in-depth
technical details that are necessary for the safety analyst[ ] 4[’s] ability to develop
technically defensible [safety basis] documents before they are issued for internal
review.” Id. at 113. According to Pansoy-Hjelvik, Laul had trouble “distinguishing
major from trivial issues,” he “refus[ed] to accept . . . guidance from co-workers and
managers,” and he “manipulat[ed] technical discussions for personal gain.” Id.
In addition to performance problems, LANL cited Laul for unprofessional
workplace behavior. Specifically, in 2011, Laul was given a “Notice of Corrective
Action-Written Counseling” for “unprofessional and disrespectful behavior toward” his
group leader and his team leader. Id. at 196. And in early 2012, he was given a written
reprimand for a “continued . . . pattern of unprofessional, disrespectful and disruptive
behavior.” Id. at 199.
Laul contested the corrective-action notice and reprimand by submitting four
internal grievances to LANL, complaining that his perceived performance and behavioral
2
problems were the product of “Discrimination or Harassment.” Id. at 127, 140, 155, 158.
The last such grievance was submitted in March 2012. LANL investigated Laul’s
grievances and concluded they were unfounded. Nevertheless, LANL transferred Laul to
a different work group, under the supervision of Ron Selvage.
In May 2012, Laul was assigned to work on unreviewed safety questions (USQs),
a process that involves reviewing a nuclear facility’s license to determine if a contractor
can make changes to the facility. Laul once again had performance issues, prompting
Selvage to note in Laul’s 2012 performance review: “[Laul] has not shown the amount
of understanding of safety basis issues that should be expected from an Analyst 4. Tasks
need to be explained several times, and most of his work products need significant
revision.” Id. at 124.
Afterward, Selvage informed the safety-basis division leader, James Miller, that
Laul “was having ongoing performance issues,” and that “at best,” Laul’s performance
was comparable to that of a level one or two analyst. Id. at 204. Miller, along with a
senior human-resources officer, David Rudolph, determined that Laul should be placed
on a performance action track (PAT) to monitor his progress. In conjunction with the
PAT, Laul was also placed on a performance improvement plan (PIP), which required
him “to address his performance deficiencies and to timely complete a set number of
USQ documents.” Id. at 205. Both the PAT and the PIP formally began on March 7,
2013.
Starting in May 2013, Selvage and Laul had bi-weekly PAT assessment meetings.
Initially, Selvage rated Laul’s performance satisfactorily. But by August, Selvage
3
learned he had been reviewing Laul’s work product after it had been revised by qualified
evaluators (QEs) and systems engineers (SEs). Selvage also learned that the USQ lead
contractor, Lance Platter, had been assigning Laul less difficult USQs to avoid Laul’s
“constant questioning” about the USQ process. Id. at 206. Consequently, Selvage
consulted with Miller and Rudolph, who approved the extension of Laul’s PAT to more
accurately assess his progress.
By mid-October, Selvage concluded that Laul’s unedited work product on
complex USQs was deficient and that Laul was not performing at the safety-analyst 4
level. He therefore recommended to a safety-basis division leader, James Tingey, that
Laul’s employment be terminated. Tingey accepted Selvage’s recommendation and
issued a notice of intent to terminate.
Laul appealed the notice to an associate director, William Bivens. Bivens
reviewed the appeal and approved the termination, effective December 6, 2013.
After unsuccessfully applying for other jobs at LANL, Laul filed charges of
discrimination and retaliation with the New Mexico Human Rights Bureau. After
receiving a right-to-sue letter, Laul filed suit in federal district court, alleging violations
of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and the New Mexico Human
Rights Act (NMHRA), N.M. Stat. Ann. § 28-1-7.
On LANL’s motion for summary judgment, the district court addressed Laul’s
ADEA, Title VII, and NMHRA claims together in the context of each adverse action he
challenged—termination, failure to hire, and retaliation. Doing so, the district court
4
concluded that Laul had failed to raise a genuine issue of material fact for trial, and it
granted LANL’s motion.
On appeal, because Laul asserts the same evidence and arguments regardless of
the statutory basis for recovery, we will structure our analysis in the same fashion as the
district court. Thus, we first address Laul’s claim for discriminatory discharge, then his
claim for discriminatory failure to hire, and finally, his retaliation claim.
DISCUSSION
I. Summary Judgment Standard of Review
We review summary judgment orders de novo. Ribeau v. Katt, 681 F.3d 1190,
1194 (10th Cir. 2012). A “court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the
evidence and draw reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Ribeau, 681 F.3d at 1194 (internal quotation marks omitted).
II. Discriminatory Discharge
A. Prima Facie Case
An individual may not be discharged on the basis of national origin, 42 U.S.C.
§ 2000e-2(a)(1), or age (40 years of age or older), 29 U.S.C. §§ 623(a)(1), 631(a).1 When
1
Our analysis of Laul’s federal claims is equally applicable to his NMHRA
claims. See N.M. Stat. Ann. § 28-1-7(A) (prohibiting an employer from discharging
or refusing to hire a qualified person because of, among other things, age or national
origin); id. § 28-1-7(I)(2) (prohibiting retaliation); Juneau v. Intel Corp., 127 P.3d
(continued)
5
a plaintiff asserts a discriminatory discharge claim based on circumstantial evidence, as
Laul does here, he must establish a prima facie case by showing “[ ]he is a member of a
protected class, [ ]he suffered an adverse employment action, and the challenged action
occurred under circumstances giving rise to an inference of discrimination.” Bennett v.
Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015); see also Salguero v.
City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004). On appeal, the parties focus on
“[t]he critical prima facie inquiry”; i.e., inference of discrimination, Plotke v. White,
405 F.3d 1092, 1100 (10th Cir. 2005) (internal quotation marks omitted). Under this
inquiry, “a plaintiff is only required to raise an inference of discrimination, not dispel the
non-discriminatory reasons subsequently proffered by the defendant.” EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000). An inference of
discriminatory motive can be shown by “a variety of circumstances,” ranging from
“actions or remarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus” to “the timing or sequence of events leading to [the] plaintiff’s
termination.” Plotke, 405 F.3d at 1101 (internal quotation marks omitted).
To that end, Laul complains he was the only individual in his group who was
placed on a PAT and evaluated negatively “even though the USQ process is a
collaborative effort.” Aplt. Opening Br. at 40-41. But even so, the evidence shows that
Laul’s own work “frequently had to be rewritten” by Platter. Aplt. App., Vol. II at 204.
548, 551-52 (N.M. 2005) (applying federal burden-shifting methodology for
NMHRA discrimination and retaliation claims).
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Laul next argues that discrimination can be inferred from his receipt of a positive
performance evaluation in 2012. This argument rests on the premise that “it is facially
illogical to randomly fire an otherwise qualified employee and thereby incur the
considerable expense and loss of productivity associated with hiring and training a
replacement.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (internal
quotation marks omitted). But while Laul’s 2012 performance evaluation indicated that
in some areas he had fully met expectations, the constant theme throughout the evaluation
was that his work required “rewrites,” “significant modifications,” and “significant
revision.” Aplt. App., Vol. II at 121, 124. Earlier evaluations likewise noted
performance issues, including that his “final work products typically need[ed] significant
rework,” id. at 92, and he had “difficulty in grasping in-depth technical details,” id. at
109.
Nevertheless, Laul contends an inference of discrimination is demonstrated by
LANL giving him an award for saving money and publishing one of his articles. We fail
to see how such evidence by itself suggests his termination was the product of
discrimination. And Laul does not explain how the timing or sequence of these
circumstances shows his termination was motivated by discriminatory animus.
Laul further claims an inference of discrimination is shown by the improper
extension of his PAT. But the evidence indicates it was not improperly extended.
LANL’s PAT guidelines authorize an extension “with approval from the division- or
higher-level manager” in “consultation with HR-ER.” Id. at 211. Selvage sought an
extension upon realizing that he had been reviewing Laul’s edited work product and he
7
needed to “obtain a more accurate reading of . . . Laul’s PAT performance.” Id. at 206.
Selvage complied with the guidelines by obtaining Miller’s approval and by consulting
with Rudolph before extending the PAT.
Finally, Laul contends the district court erroneously “required [him] to show in his
prima facie case that he [was] similarly situated” to Lawrence Garcia, another USQ
preparer who was not on a PAT. Aplt. Opening Br. at 39. This court has held that a
plaintiff alleging discriminatory discharge is not required to provide a “comparison to a
person outside of the protected class” to establish a prima facie case. Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1228-29 (10th Cir. 2000). The district court did not,
however, require any such comparison. Rather, it was Laul who suggested a comparison
to raise an inference of discrimination. See Aplt. App., Vol. III at 334 (arguing in
opposition to summary judgment that “[n]o other similarly situated employee . . .
received such strict scrutiny”); Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011)
(“One method by which a plaintiff can demonstrate an inference of discrimination is to
show that the employer treated similarly situated employees more favorably.”). The
district court merely observed that Laul failed to support his similarly-situated argument.
Laul repeats that failure on appeal, stating only that “younger, non-Indian USQ preparers
did not receive strict scrutiny from . . . Selvage.” Aplt. Opening Br. at 38. We do not
consider issues raised in a perfunctory manner, Hill v. Kemp, 478 F.3d 1236, 1255 n.21
8
(10th Cir. 2007), and we “will not craft a party’s arguments for him,” Perry v.
Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).2
We conclude that summary judgment was properly entered against Laul based on
his failure to establish a prima facie case of discriminatory discharge. But like the district
court, we will also consider whether summary judgment is alternatively warranted on the
ground that Laul has identified no genuine issue of material fact as to pretext.
B. Pretext
If a prima facie case of discrimination has been established, the employer must
articulate a legitimate, nondiscriminatory reason for the challenged employment decision.
See Sandoval v. City of Boulder, 388 F.3d 1312, 1321 (10th Cir. 2004). If the employer
overcomes that hurdle, the burden shifts to the employee to show that the employer’s
justification is a pretext for discrimination. Id. Pretext can be shown by demonstrating
that the stated justification is “so incoherent, weak, inconsistent, or contradictory that a
rational factfinder could conclude [it] is unworthy of belief.” Hinds v. Sprint/United
Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008) (brackets and internal quotation marks
omitted).
2
To the extent Laul has claimed that Garcia and Platter are comparators,
neither is similarly situated. “Similarly situated employees are those who deal with
the same supervisor and are subject to the same standards governing performance
evaluation and discipline.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.
2006) (internal quotation marks omitted). Garcia occupied a lower-level position
than Laul, Aplt. App., Vol. II at 262, and Platter was the “USQ Lead,” assigning
work to Laul and critiquing his performance, id. at 203.
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LANL justified its firing of Laul on the basis of unsatisfactory work performance.
Laul claims pretext is shown by various perceived improprieties in the PAT process. But
to the extent he advances as pretext the various minutiae of LANL’s handling of his
PAT,3 we stress that “[o]ur role is to prevent intentional discriminatory practices, not to
act as a super personnel department.” Dewitt v. S.W. Bell Tel. Co., 845 F.3d 1299, 1308
(10th Cir. 2017) (ellipsis and internal quotation marks omitted). In other words, we do
not “second guess[ ] employers’ honestly held (even if erroneous) business judgments.”
Id. (internal quotation marks omitted). Instead, the determinative question we must reach
is whether “a reasonable factfinder could rationally find [LANL’s justification for firing
Laul] unworthy of credence and hence infer that [it] did not act for the asserted non-
discriminatory reason[ ].” Bennett, 792 F.3d at 1267 (internal quotation marks omitted).
With our inquiry so focused, we turn to Laul’s assertions of pretext.
Laul claims pretext is shown by Selvage’s reliance on subjective criteria to review
his work. Laul cites no supporting evidence, but instead surmises that subjective criteria
must have been used because “Selvage was not qualified to evaluate USQs.” Aplt.
Opening Br. at 45. Selvage testified, however, that while his managerial position did not
require the production of USQ documents, he had expertise in reviewing those
documents. And even if Selvage did rely on subjective criteria, that is insufficient by
itself to show pretext. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195
3
For example, Laul complains that a “second-line supervisor never signed the
PAT,” Aplt. Opening Br. at 42, and he (Laul) was refused “copies of the USQs that were
part of [a] meeting,” id. at 47.
10
(10th Cir. 2006). Indeed, subjective “criteria must play some role in certain management
decisions.” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1145 (10th Cir. 2009)
(internal quotation marks omitted).
Laul next complains he was criticized for “copying and pasting a portion of a USQ
analysis,” even though other safety analysts who used the same method were not
criticized. Aplt. Opening Br. at 46. To advance his premise, however, Laul conflates the
use of that method with the erroneous use of that method. Although other safety analysts
used the copy and paste method, Laul does not identify any evidence that he was the only
analyst criticized for erroneously using that method.
Laul also derives pretext from Tingey’s decision to accept Selvage’s termination
recommendation. Laul complains that Tingey (1) spoke with Selvage only three times to
determine if the PAT had been successfully completed, and (2) did not review Laul’s
“USQ rebuttals even after [his] repeated request[s].” Id. at 47. Similarly, Laul complains
that Bivens affirmed his termination in just one day, even though Laul had submitted
“133 pages of rebuttal documents to review.” Id. at 48.
First, these pretext assertions reveal little about the motivations underlying Laul’s
termination. Laul does not explain why Tingey should have spoken with Selvage more
than three times before accepting Selvage’s recommendation. Nor does Laul indicate
how the promptness of Bivens’ determination casts doubt on the legitimacy of Selvage’s
termination recommendation or Tingey’s acceptance of that recommendation.
Second, the undisputed evidence shows that Tingey and Bivens considered the
recommendation on its merits. Specifically, Tingey testified that he reviewed Laul’s
11
work product during the PAT period as well as Selvage’s bi-weekly PAT assessments,
and he consulted with a human-resources officer before accepting Selvage’s
recommendation. Bivens testified he evaluated the information Laul provided and
consulted with a human-resources officer before affirming the termination. No rational
factfinder could derive pretext from these circumstances.
Insofar as Laul complains that Bivens “never received the specialized training
required to be a USQ Qualified Evaluator,” Aplt. Opening Br. at 48, Laul does not
indicate how that fact in any way shows he was terminated because of his age or national
origin rather than for unsatisfactory performance. “Mere conjecture that the employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for denial of
summary judgment.” DeWitt, 845 F.3d at 1307 (brackets and internal quotation marks
omitted).
Finally, Laul asserts that pretext is shown by many of the same grounds he
advanced to show an inference of discrimination. For the same reasons we rejected
Laul’s attempt to raise a genuine issue of material fact as to a prima facie case, we
likewise determine that those grounds do not create a triable issue as to pretext.
We conclude that the district court properly entered summary judgment on Laul’s
discriminatory discharge claim based on his failure to show pretext.
III. Discriminatory Failure to Hire
To establish a prima facie case of discriminatory failure to hire, “a plaintiff must
show that (1) he applied for an available position; (2) he was qualified for the position;
and (3) he was rejected under circumstances which give rise to an inference of unlawful
12
discrimination.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999)
(internal quotation marks omitted). Laul argues he was “qualified for 6 . . . job postings”
based on his lengthy safety-analyst experience, which involved the preparation and
review of numerous USQs. Aplt. Opening Br. at 50. But he does not identify the
qualifications required for any of the jobs.
“[A]t the prima facie stage, a plaintiff must show that [ ]he satisfied an employer’s
objective qualifications.” Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191
(11th Cir. 2016). Without “evidence about the jobs that became available, we simply
have no way of knowing whether the jobs were commensurate with [Laul’s] previous
duties, compensation, and rank.” Green v. City of St. Louis, 507 F.3d 662, 667 (8th Cir.
2007); see, e.g., Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004)
(concluding that the plaintiff could not establish a prima facie case of discriminatory
failure to promote without evidence “suggesting what the [employer’s] qualifications for
its [position] might have been”). Because Laul has not shown a triable issue as to his
prima facie case, summary judgment was appropriate on his failure-to-hire claim.
IV. Retaliation
To establish a prima facie case of retaliation, the plaintiff must show “(1) that he
engaged in protected opposition to discrimination, (2) that a reasonable employee would
have found the challenged action materially adverse, and (3) that a causal connection
exists between the protected activity and the materially adverse action.” Hansen v.
SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016) (internal quotation marks omitted).
If the plaintiff establishes a prima-facie retaliation case, the employer must then “come
13
forward with a legitimate, non-retaliatory rationale for the adverse employment action,”
which then shifts the burden back onto the plaintiff to “show that the [employer’s]
proffered rationale is pretextual.” Id. (internal quotation marks omitted). Laul claims
LANL retaliated against him by terminating him and by not hiring him because he
submitted four internal grievances complaining of discrimination or harassment.
A. Retaliatory Termination
Laul’s retaliatory-termination claim fails on the third element of his prima-facie
case. In other words, he has shown no causal connection between his opposition to
discrimination and his termination. In this regard, we note that Laul submitted four
internal grievances, with the latest dated March 20, 2012. Selvage decided to recommend
Laul’s termination over a year-and-a-half later, in mid-October 2013. Given the lengthy
temporal separation between Laul’s submission of grievances and Selvage’s termination
recommendation, we cannot infer a retaliatory motive, and instead, we require that Laul
present additional evidence tying his termination to the grievances. See Ward v. Jewell,
772 F.3d 1199, 1203 (10th Cir. 2014). This, he has not done.
Instead, Laul attempts to close the temporal gap by citing a November 13, 2013,
email to Selvage and a human-resources officer complaining of discrimination. Granted,
the email is close in time to Tingey’s November 26, 2013, acceptance of Selvage’s
recommendation and Bivens’ December 6, 2013, affirmance of the termination. But Laul
cites no evidence that either Tingey or Bivens was aware he had complained of
discrimination. Indeed, Laul testified that he did not mention discrimination to Tingey,
Aplt. App., Vol. II at 189, and Laul asserts only that Bivens did not “truly consider[ ]” his
14
appeal documents, Aplt. Opening Br. at 59. It is axiomatic that an employer cannot
retaliate against an employee for protected activity the employer is unaware of. See
Kendrick, 220 F.3d at 1234-35.
We conclude that summary judgment was properly entered in LANL’s favor on
Laul’s retaliatory-termination claim.
B. Retaliatory Failure to Hire
The district court concluded that Laul had shown a prima facie case of retaliatory
failure to hire based on the temporal proximity between a January 2014 letter
complaining of “harassment and discriminat[ion],” Aplt. App., Vol. III at 302, and the
dates his applications for new jobs were rejected. We decline to reach this issue, as
neither party satisfactorily addresses it. Instead, we proceed to the district court’s
alternative ruling that Laul failed to show LANL’s reason for not hiring him (lack of
qualifications) was pretextual.
As we noted earlier, Laul cites no evidence he was qualified for the new jobs he
sought. Instead, as evidence of pretext he points out that (1) Selvage decided not to
recommend him for any of the jobs; and (2) Tingey recommended that Laul not be
interviewed for those jobs. But both Selvage and Tingey testified that their decisions
were based solely on Laul’s termination for poor performance. Laul identifies no
evidence that Selvage and Tingey did not honestly believe the legitimate,
nondiscriminatory reason they gave for their decisions or that they did not act in good
faith on their beliefs. See Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655
(10th Cir. 2013) (“In determining whether the proffered reason for a decision was [a]
15
pretext[ ] [for retaliation], . . . we do not ask whether the employer’s proffered reasons
were wise, fair or correct; we ask only whether the employer honestly believed those
reasons and acted in good faith upon those beliefs.” (brackets and internal quotation
marks omitted)). Accordingly, summary judgment was properly entered on Laul’s claim
for retaliatory failure to hire.
CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
16