UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ISIDRO MENDIOLA, Plaintiff - Appellant,

v. EXIDE TECHNOLOGIES; RANDALL BATES, Defendants - Appellees. No. 18-3248 (D.C. No. 6:17-CV-01097-JWB) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before EID , KELLY , and CARSON , Circuit Judges.

________________ _________________ Isidro Mendiola sued his form er employer, Exi de Technologies, a nd supervisor, Randall Bates, asserting various claims arising from terminatio n of his employment. The district court granted summary j udgment in favor of Defendants. Mr. Mendiola appeals, challenging the district court’s entry of judgment on his claim that Defendants retaliated against him for taking leave unde r the Family Medical Leave Act , 29 U.S.C. §§ 2601-54 (“FMLA”). Exercising jurisdicti on under 28 U.S.C. § 1291, we a ffirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 6, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND The following facts are not disput ed unless otherwise stated: Exide operates a battery manufac turing plant in Salina, Kansas . Mr. Mendiola worked at the plant for 37 years before Exide terminated his em ployment in June 2016. Throughout his employment, Mr. Mendiola worked as a n operator in the plant’s Formation Department, wh ere he served in various positi ons on the plant’s manufacturing lines. Mr. Bates w as a lead and later the superv isor of the Formation Department from 2014 through Mr . Mendiola’s termination. Exide ’s production standards increased during Mr. Mendiola’s employment. In December 2015, Mr. Mendiola wa s unexpectedly hospitalized fo r an infection that required foot s urgery. He requested FMLA leave for his hospital stay and recovery, and Exide granted his request. Mr. Mendiola retu rned to work on March 13, 2016. Both before and after his leave, Mr. Bates received complaints from Mr. Mendiola’s co-workers that Mr. Mendiola was falling behind on the manufacturing line and hampering production. Mr. Bates monitor ed Mr. Mendiola’s performance after first receiving these complaints, and conclud ed Mr. Mendiola was having difficulty keeping up with the pace of the manufacturing lines and maintaining the quality of the pr oduct. Mr. Bates coached Mr. Mendiola multiple times before his FMLA leave ab out the need to improve. He also moved Mr. Mendiola to different positi ons on the manufacturing lines, trying to find one he could perform adequately.3 In Mr. Mendiola’s August 2015 annual review, four months befor e his FMLA leave, Shawn Hogan, th e Formation Department Manager and Mr. Me ndiola’s former supervisor, advised Mr. Mendiola that he was only partially mee ting performance expectations in the quality and quantity of his work. In the w ritten comments to this evaluation, he informed Mr. Mendi ola that he needed to improve the quality of his work and learn new positions and h ow to take advice from co-wor kers. Before the 2015 evaluation, Mr. Mendiola’s annual reviews had generally in dicated that his performance met expectations, wh ile also identifying areas for improvement. 1
After Mr. Mendiola returned from leave in mid-March 2016, Mr. B ates and Mr. Hogan both observed that he was having trouble keeping up w ith the pace of production and meeting producti on and quality standards. Mr. B ates coached Mr. Mendiola on the need to im prove, arranged for additional tr aining for him, and again tried him at different pos itions on the plant’s three man ufacturing lines. Mr. Hogan also met with Mr. Mendi ola and suggested that he appl y for a less-demanding position in Exide ’s adjacent Distribution Center . Mr. Mendiola refused because he was happy in t he Formation Department. Mr. Hogan testified that he told Mr. Mendiola at this mee ting that he should move to the Distribution Center

1 In his 2013 and 2014 annual revi ews, for example, areas for i mprovement included Mr. Mendiola getting fast er in change-overs, working o n keeping the manufacturing line full and maintaining the quality of the prod uct, and doing a better job of listening to and followi ng instructions. Mr. Mendiola w as also rated as only partially meeting performance e xpectations in the quantity of h is work in 2013.4 because he could no longer keep up in the Formation Department, but Mr. Mendiola denies this aspect of their conversation. On April 18, 2016, Mr. Bates met with Mr. Mendiola again to dis cuss his performance issues. In a follow- up email to Mr. Hogan and Exid e’s HR department, Mr. Bates reported that he notif ied Mr. Mendiola at the meeting that he had not met production or quality standards at any of his recent positions in the Formation Department and that disciplinary action would be taken if he di d not meet these standards at his next position . Five weeks later, on May 24, M r. Bates and Mr. Hogan met with Mr. Mendiola and delivered a written notice informing him that he had not met production and qu ality standards at his most rec ent position, that he had not succeeded in performing a ny role in the Formation Depar tment, and that his poor performance had created dow ntime and costs for the company . The notice further informed Mr. Mendiola th at this job performance could n o longer be tolerated and that “immediate improvement [ was] required to avoid termina tion.” Aplt. App. Vol. I at 119. Shortly thereafte r, it is undisputed that Mr. M endiola was responsible for production problems and down time on the manufacturing line to which he had been assigned. On June 7, Exide terminated Mr. Mendiola’s empl oyment, effective June 15, 2016, citing his inabi lity to meet performance standar ds. 2

2 We also note that at some point after his termination, Mr. Me ndiola applied for Social Security disability b enefits, asserting he was physi cally unable to work as of June 7, 2016, his last day of work with Exide. The Social S ecurity Administration found Mr. Mendiola was disabled a s of this date and awarded him benefits.5 Mr. Mendiola filed this action ag ainst Exide and Mr. Bates, all eging claims under the FMLA and Age Discrimi nation in Employment Act. He br ought this appeal after the district court granted Defendants’ motion for summary judgment on all claims.
DISCUSSION In his appellate brief, Mr. Mendi ola challenges only the distri ct court’s grant of summary judgment against his FM LA retaliation claim. As a resu lt, we limit our review to this issue. See, e.g. , Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (appellant generally forfeits a ppellate review of issues omitte d from opening brief).
A. Standard of Review “[W]e review summary judgment decisions de novo, applying the s ame legal standard as the district court.” Talley v. Time, Inc. , 923 F.3d 878, 893 (10th Cir. 2019) (internal quota tion marks and alterations omit ted). Under this standard, summary judgment is gra nted when “the movant shows th at there is no genuine dispute as to any materi al fact and the movant is entit led to judgment as a matter of law.” Fed . R. Civ. P. 56(a). “ A dispute is genuine when the evidence is such that a reasonable jury coul d return a verdict for the nonm oving party, and a fact is material when it might affect the outcome of the suit under the governing substantive law. Bird v. W. Valley City , 832 F.3d 1188, 1199 (1 0th Cir. 2016) (internal quotation marks and al terations omitted). “[W]e view the evidence and draw reasonable inferences there from in the light most favorabl e to the nonmoving party.” Talley , 923 F.3d at 893 (internal quotation marks omitted).6 B. FMLA Retaliation Claim “Retaliation claims under the FML A are subject to the burden-sh ifting analysis of McDonnell Douglas .” Metzler v. Fed. Home Loan Bank of Topeka , 464 F.3d 1164, 1170 (10th Cir. 2006) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-804 (1973)). “Under this analysis, the plaintiff bears the initial burden of establishing a prima facie case of retaliation, by pr oving that (1) [he] engaged in a protected activity; (2) the defendant took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the p rotected activity and the adverse action.” Dewitt v. Sw. Bell Tel. Co. , 845 F.3d 1299, 13 18 (10th Cir. 2017) (internal quotation marks a nd alterations omitted). If the pla intiff successfully asserts a prima facie retaliation case, the n the burden shifts to the def endant to “offer a legitimate, non-retaliatory reason for the e mployment action. The plaintif f then bears the ultimate burden of demonstrating that the defendant’s proffered reason i s pretextual.” Metzler , 464 F.3d at 1170 (citation omitted). Mr. Mendiola claimed Defendants violated the FMLA by terminati ng his employment in retaliation for him taking FMLA leave. The distr ict court granted summary judgement against this claim, concluding Mr. Mendiola h ad established a prima facie case of retaliation, but h ad not met his burden of demons trating that Defendants’ asserted non-retaliatory reason for discharging him—poor job pe rformance—was pretextual.7 For purposes of appeal, we assume Mr. Mendiola established a p rima facie case of retaliation. 3 We also conclude Defendants me t their burden of showing a leg itimate, non-retaliatory reason for dischar ging Mr. Mendiola, namely his failure to meet job performance standards. As a re sult, to avoid summary judgment Mr. Mendiola must raise a genuine issue of fact as to p retext by presenting evidence th at would allow a reasonable jury to conclude tha t Defendants did not in fact dis charge him because of poor job performance. He may make this showing by revealing “s uch weaknesses, implausibilities, inconsistenci es, incoherencies, or contradict ions in the employer’s proffered legitimate reasons for its action that a reasonable f actfinder could rationally find them unworthy of credence and hence infer that the employe r did not act for the asserted non-[retaliatory] reasons.” Dewitt , 845 F.3d at 1307 (internal quotation marks omitted). Mr. Mendiola has not met this burden. He claims the evidence shows that his job performance was consistent and satisfactory throughout his long career at the plant, including before and after his F MLA leave. But the record show s that Defendants became dissatisfied with his job performance no later than Augu st 2015, when Mr. Mendiola received a subpar a nnual evaluation months before his unexpected surgery and FMLA leave. This evidence d oes not necessarily negate the possibility that

3 Defendants argued below and ag ain on appeal that Mr. Mendiola did not establish a prima facie retaliat ion case because he failed to d emonstrate a causal connection between his FMLA leav e and his discharge. We do not address this question because we affirm the d istrict court’s summary judgmen t decision on other grounds.8 Defendants’ subsequent reliance on his poor job performance was a pretext for FMLA retaliation, see Garrett v. Hewlett-Packard Co. , 305 F.3d 1210, 1218-19 (10th Cir. 2002), but it does not create a genuine issue as to pretext when, as i n this case, there is simply no evidence suggesting that Defenda nts’ “criticism of [Mr. Mendiol a] was inflated and exaggerated as a means of re taliating against [him],” Metzler , 464 F.3d at 1175 (internal quotation marks and alterations omitted). See also Dewitt , 845 F.3d at 1307 (“Mere conjecture that the employer’s e xplanation is a pretext for int entional discrimination is an insufficient basis for den ial of summary judgment.” (inte rnal quotation marks and alterations omitted)). In addition, even viewed in th e light most favorable to Mr. Me ndiola, the evidence if anything tends to show that Defendants were looking for ways to maintain Mr. Mendiola’s employment with t he company rather than end it. Mr. Mendiola does not dispute, for example, that Mr. Bat es coached him on his perform ance problems before and after his leave, that Mr. B ates and/or Mr. Hogan met with h im multiple times after he returned from leave to discuss hi s performance problems, that M r. Bates offered him additional training and moved hi m to different positions within the Formation Department, and that Mr. Hogan sug gested that Mr. Mendiola appl y for a less-demanding position in the company’s Distr ibution Center. A reasonable ju ry could not infer pretext from this evidence. Nor are we persuaded that a reasonable jury could find Defendants’ explanation for discharging Mr. M endiola was pretextual because the company opted to respond to its long-time employee’ s performance issues in this manner instead of issuing formal written warnings to him p ursuant to the non-binding prog ressive discipline policy9 in its employee handbook. See Fassbender v. Correct Care Sols., LLC , 890 F.3d 875, 889 (10th Cir. 2018) (“[T]he mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that . . . the substantive reason s given by the employer for its employment deci sion were pretextual.” (interna l quotation marks omitted)). To the extent Mr. Mendiola seeks to demonstrate pretext by dis puting Defendants’ assessment of his job performan ce, we note that the issue is no t whether Defendants were correct in their assessment, but rather whether they honestly b elieved he could no longer meet performance standards in the Formation Department and acte d in good faith on this belief. See Hiatt v. Colo. Seminary , 858 F.3d 1307, 1316 (1 0th Cir. 2017). Mr. Mendiola has not come forward with evide nce from which a reasonable jury could find that Defendants lacked such a belief. 4 Accordingly, considering th e totality of the evidence, we conclude there is no genuine dispute as to the authenticity of Defendants’ legitimate, non-retaliatory reas on for terminating Mr. Mendiola ’s employment. Defendants were entitle d to summary judgment.
AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge

4 The record does not support Mr. M endiola’s suggestions that M r. Bates and Mr. Hogan were inconsistent in te stifying about his job perform ance.