UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BILLIE J. MANCELL, Plaintiff - Appellant,

v. JOHN M. MCHUGH, Secretary of the Army, Defendant - Appellee. No. 15-2079 (D.C. No. 2:13-CV-00417-KG-SMV) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and HOLMES , Circuit Judges.

________________ _________________ Billie J. Mancell appeals from the distri ct court’s grant of summary judgment to the Secretary of the Army on her claims of gender disc rimination and retaliation in violation of Title VII of the Civil Rights Ac t of 1964, 42 U.S.C. § 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### January 25, 2016
Elisabeth A. Shumaker Clerk of Court2 Background Beginning in 2005, Ms. Mancell wa s a civilian employee of the Army, working first as a security guard and then as a lead se curity guard at White Sands Missile Range in New Mexico. As a conditi on of her employment, she had to pass an annual Physical Ability Test (PAT) in accordance with Army Regulation (AR) 190-56. In 2009, the PAT was revised to include two elements, a minimum number of push-ups and a timed 1.5 mile run. On February 4, 2010, and April 30, 20 10, Ms. Mancell failed the PAT. She was able to do the push-ups, but she could not complete the run in the required time. In June, her supervisor proposed her re moval from service because she had not passed the PAT. In September, the decisi onmaker, Donald Morrison, opted to allow her to take a third PAT before he deci ded whether to remove her. Before Ms. Mancell could take the third PAT, however, she suffered a hernia. She had surgery in December. Wh ile she was undergoing treat ment and recovery, the command structure was realigned, and Donald Knox became the decisionmaker regarding her removal. During this time , pursuant to AR 190-56, Ms. Mancell’s medical restrictions exempted her from taking the PAT. Ms. Mancell was medically cleared for all duties in April 2011, and her supervisor scheduled the third PAT for July 25. He allowed her to leave work an hour early each day to train for the test. Ms. Mancell passed the push-up requirement, but she injured her knee on the first lap and did not complete the run.3 Mr. Knox believed that AR 190-56 requi red a security guard who had been cleared of a temporary medica l restriction to pass the PA T within ninety days of medical clearance. He info rmed Ms. Mancell that the July 2011 PAT counted as a failure, notwithstanding her injury. She obj ected, offering her own interpretation of AR 190-56 and also asserting that a male co-worker had been given a chance that she was not given. Before making a final deci sion, Mr. Knox consulted with the Army’s subject matter expert (SME ) on AR 190-56. The SME opined that Mr. Knox’s interpretation of the regul ation was correct. On August 10, 2011, Mr. Knox removed Ms. Mancell from federal service for failing the February and Ap ril 2010 and the July 2011 PA Ts. Believing that she had been treated differently than male co-worke rs, and that the remova l was in retaliation for discrimination charges she had file d earlier, Ms. Man cell exhausted her administrative remedies, then she filed this Title VII suit. The district court granted the Ar my’s motion for summary judgment. Applying the familiar three-step burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (19 73), the district court held that Ms. Mancell had established a prima facie case of gender discriminati on and the Army had offered a legitimate, non-discriminatory reason for the removal—Ms. Mancell’s failures to pass three consecutive PATs. But Ms. Mancell failed to proffer sufficient evidence that the Army’s reason was pretext for discrimination. On the retaliation claim, Ms. Mancell relied on the same evidence sh e supplied for her disc rimination claim to support causation (as part of her prima facie case) and pretex t. The district court held4 that her proffer was insuffici ent for the same reasons as discussed in connection with the discrimination claim. Ms. Mancell now appeals. Discussion “We review a grant of summary judgmen t de novo, applying the same legal standard as the district court. Summary judgment is appropriate only 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.’” Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1265 (10th Cir. 2015) (citation omitted) ( quoting Fed. R. Civ. P. 56(a)). Because our review is de novo, we need not address Ms. Mancell’s assertion that the district court used an incorrect standard to evaluate her evidence. See Rivera v. City & Cty. of Denver , 365 F.3d 912, 920 (10th Cir. 2004). I. Discrimination Claim Once Ms. Mancell established a prima fa cie case of gender discrimination, and the Army proffered a legitima te, non-discriminatory reason for removing her, then to avoid summary judgment Ms. Mancell had to proffer sufficie nt evidence for a reasonable jury to conclude that the Army’s proffered reason was pretext for discrimination. See Timmerman v. U.S. Bank, N.A. , 483 F.3d 1106, 1113 (10th Cir. 2007). “An employee may show pretext based on weaknesses, implausibilities, inconsistencies, incoherenc ies, or contradictions in the employer’s claimed legitimate, non-discriminatory reason such th at a rational trier of fact could find the reason unworthy of belief.” Id. (internal quotation marks omitted).5 Ms. Mancell argues that the following evid ence is sufficient for a rational jury to find pretext: (1) the Ar my contravened AR 190-56 by not honoring her medical restrictions from the injury that occurred during th e July 2011 PAT; (2) she was given only a minimal time to recuperate fr om surgery and prepare for the PAT; and (3) she was treated differently from two male co-workers. Ms. Mancell’s first argument concerns the interpretation of AR 190-56. She asserts that her July 25, 2011, injury should have exempted her from the testing requirement until she recovered, and then sh e should have been given another chance to pass the PAT. She believes that the Ar my’s interpretation of the regulation is wrong: “the policy exempting employees fr om PAT if they are medically restricted should also apply to an employee injured dur ing a PAT. . . . While there is no exact policy stating a PAT is invalid if an employ ee was injured during the test, it certainly would seem to be implied.” Aplt. Br. at 24. But “[t]he relevant inqui ry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon t hose beliefs.” Rivera , 365 F.3d at 924-25 (brackets and internal quotation marks omitted); see also Timmerman , 483 F.3d at 1120 (same). “We will not second-guess an employer’s business judgment or repl ace its opinion of best practices with either an empl oyee’s opinion or our own.” Bennett , 792 F.3d at 1268. “Thus, we consider the facts as they app eared to the person making the decision, and we do not second-guess the empl oyer’s decision even if it seems in hindsight that the action taken constituted poor business judgment.” Riggs v. AirTran Airways, Inc. ,6 497 F.3d 1108, 1119 (10th Cir. 2007). That means it is not our task to decide how AR 190-56 should be interpreted, but simply to determine whether a reasonable jury could find that Mr. Knox’s professed reliance on his interpretation was pretext for discrimination. And even if Mr. Knox actually interpreted AR 190-56 incorrectly, nothing in the record indicates he did not honestly believe hi s understanding of the regulation and did not act on th at understanding in good faith. He went so far as to confirm his understanding by consulting with the SME, who opined that he was correct. Consequently, this argument fails to carry Ms . Mancell’s burden regarding pretext. Ms. Mancell’s second ar gument is that she was gi ven only the minimum time to recuperate from surgery and take the PAT. The timing of the test, however, was consistent with the Army’s interpretation of AR 190-56, and there is no evidence that Ms. Mancell’s supervisor did not honestly believe that he wa s acting in accordance with the regulation. Also, as the district court recognized , Ms. Mancell admitted that she was physically ready to take the test an d asserted that she would have passed if she had not been injured. Ms. Mancell’s third argumen t is that she was treate d differently from two similarly situated male co-w orkers. “A plaintiff seeki ng to show pretext often does so by providing evidence that [s]he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.”
Timmerman , 483 F.3d at 1120 (internal quotation ma rks omitted). “Similarly situated employees are those who deal with the same supervisor a nd are subject to the same7 standards governing performance evaluation and discipline.” Id. (internal quotation marks omitted). Ms. Mancell argues that two male co-wor kers were either not required to take a PAT or were given a longer time to prepar e and take the PAT after being medically cleared. For the reasons discussed by the di strict court, however , we conclude that those two co-workers were not substan tially similar to Ms. Mancell. Ms. Mancell also asserts that “there we re an unusual number of supervisors at Plaintiff’s PAT test which was to intimidat e Plaintiff.” Aplt. Br. at 23. But she testified in her deposition that the spectators did not cause her to fa il the PAT, and as the district court noted, the number of s upervisors does not tend to show that the Army’s explanation for the removal is pretext for discrimination. Finally, Ms. Mancell points to a male co -worker’s affidavit testifying that she was treated differently and wa s ostracized by her supervisor . The district court held that the affidavit in question presented me re conclusory allegations and conjecture that were not supported in the record, and therefore it was insu fficient to show pretext. We agree. It is well established that “[ s]uch conclusory allegations— lacking evidentiary support in the record—do not suffice to create a genuine question as to whether the [employer’s ] work-related reasons for [p laintiff’s] termination were a pretext for discrimination.” Salguero v. City of Clovis , 366 F.3d 1168, 1178 (10th Cir. 2004).8 II. Retaliation Claim “[T]o establish a pr ima facie case of retaliation, an employee must show that: (1) she engaged in protected activity; (2) she su ffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.” Timmerman , 483 F.3d at 1122-23 (internal quot ation marks omitted). As with the discrimination cl aim, the employer then mu st proffer a legitimate, non-discriminatory reason for the adverse action, and the employee must demonstrate that the proffered reason is pretextual. See id. at 1123. The court may consider evidence tending to establish the weakness of a proffered non-discriminatory reason not only in the pretext stage of a retalia tion claim, but also in connection with establishing causation as part of a prima facie case. See Proctor v. United Parcel
Serv ., 502 F.3d 1200, 1209 (10th Cir. 2007). Ms. Mancell filed discrimination charges in 2006 and 2009, and her employment was terminated in 2011. These gaps are too long to support an inference of retaliatory motive. See id. (holding that a four-mont h time period does not support an inference of retaliatory motive). Ther efore, Ms. Mancell must present additional evidence to establish causation. See id. She points to the sa me evidence that she presented in connection with her discrimi nation claim. For the reasons discussed above, this evidence is insuffic ient for a reasonable jury to conclude that the Army’s proffered reason for removing her from fe deral service was caused by her earlier claim of discrimination or that it was pretext for retaliation.9 Conclusion The district court’s judgment is affirmed.

Entered for the Court

Jerome A. Holmes Circuit Judge