United States Court of Appeals

For the Eighth Circuit

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No. 14-2785

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Xuan Huynh

lllllllllllllllllllll Plaintiff - Appellant

v.

United States Department of Transportation

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: May 13, 2015

 Filed: July 24, 2015

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Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

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MURPHY, Circuit Judge. 

Xuan Huynh brought this employment discrimination action against the

Department of Transportation ("DOT") under Title VII, 42 U.S.C. § 2000e-2, and the

Minnesota Human Rights Act, Minn. Stat. Ann. § 363A.08. Huynh, a Vietnamese

American, alleges that the DOT's Federal Aviation Administration ("FAA")

discriminated against him based on race when it terminated his employment as a
trainee air traffic controller. The district court concluded that Huynh had failed to 1

show that the FAA's stated reason for firing him was a pretext for racial

discrimination. It granted summary judgment to the DOT, and Huynh appeals. We

affirm.

I.

Huynh began working at the FAA in 2009. After graduating from the FAA

Training Academy in Oklahoma, he accepted a position as a trainee air traffic

controller at the Minneapolis Air Route Traffic Control Center (the "Center"). The

Center is one of 21 "en route" control facilities which guide aircraft flying over the

United States. The Center's airspace is divided into six areas based on geography and

altitude. These six areas are each subdivided into six sectors, and each sector has

both a radar controller and a data controller position. Trainees like Huynh are

required to certify at both of these positions in each of the six sectors within their

assigned area—a total of twelve positions to be certified for each trainee.

Huynh's training at the Center was governed by the FAA's Air Traffic

TechnicalTraining Order (the "training order"). Under the training order, trainees are

allotted a set number of "on the job" training hours at the radar and data controller

positions within the sectors of their assigned area. Trainees may receive a limited

number of additional hours if their trainers believe they can certify within the

additional time, but additional hours are not guaranteed. After completion of the

allotted training hours for any given position, a trainee is required to complete a

"certification skill check." A trainee is subsequently either certified or suspended

from the training program. A trainee can also be suspended for performing poorly on

performance skill checks administered monthly to ensure that the trainee is

The Honorable David S. Doty, United States District Judge for the District of 1

Minnesota.

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progressing appropriately. If a trainee is suspended after a skill check, a board

composed of two supervisors and a union representative reviews the trainee's

performance and issues a recommendation to the air traffic manager, the Center's

highest authority, on whether additional training is warranted. If the air traffic

manager chooses not to provide additional training, a trainee may attempt to transfer

to a different center or face termination.

Upon his arrival at the Center, Huynh was assigned to train in Area Six. He

completed classroom and lab instruction, after which he was assigned to a training

team to instruct and evaluate him as he completed on the job training. A training

team is made up of two on the job training instructors and a training supervisor who

administersskill checks and final certification checks at each of the twelve air traffic

controller positions within a trainee's assigned area. After each training session, the

training teamprovidesthe trainee with a detailed written performance evaluation that

records the trainee's progress on seven major job tasks and 25 separate subtasks. 

These written forms notify the trainee of performance areas needing improvement and

help training review boards and the air traffic manager assess a trainee's ability to

perform the duties of an air traffic controller. 

Huynh was initially assigned to complete on the job training with training

supervisor Lyle Madsen and training instructors Nancy Toren and Barbara O'Shea. 

He was allotted 180 hours under their instruction to certify as a data controller at

Sector 27. Huynh reported problems with both his instructors. According to him,

Toren told him he would not make it through training if he crossed her and accused

him unfairly of being argumentative during their training sessions. Huynh also

asserts that he did not get along with O'Shea. Huynh claims that he was treated more

harshly than the other members of his training class and points out that he was the

only Asian American member of the group. After complaining to his training

supervisor and requesting a new training team through his union representative, he

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was promptly assigned a different team. The new training team consisted of training

supervisor Greg Santer and training instructors Todd Martenson and Brian Vance. 

Vance and Martenson reported that Huynh was performing poorly for the

Sector 27 data controller position. Huynh was granted 42 additional on the job

training hours above that position's 180 target hours so he could improve. After he

completed his additional training hours, Martenson recommend that training

supervisor Santer certify Huynh at Sector 27 since he and Vance had taken over as

his training team near the end of his allotted hours there. Martenson wanted to give

Huynh a chance to start anew at another sector. Supervisor Santer agreed and

certified Huynh as a Sector 27 data controller.

Huynh was then assigned to complete training and certify as a data controller

at Sector 38, the second of his twelve required certifications. He was again allotted

a target maximum of 180 on the job training hours. Vance and Martenson reported

that Huynh performed poorly throughout his training. They noted that he could not

apply his theoretical knowledge to live situations or adapt to changing air traffic

patterns. Huynh's training team provided him with numerous opportunities to

improve his skills in training simulations beyond his 180 target hours. Nevertheless,

Huynh's performance did not improve. Martenson reported that Huynh did not have

command of basic air traffic control terminology and geography and that he was

defensive when trainers brought mistakes to his attention. Training supervisor Santer

conducted skill checks to assess Huynh's progress and concluded that his skills were

well below what would be expected given his amount of training. 

Because of Huynh's poor performance on two different skill checks, Santer

recommended his training be suspended. At that point Huynh had completed 85 of

his target 180 hours as a data controller at Sector 38. Suspension of a trainee prior

to completion of the target training hours is within a supervisor's discretion, and the

Center's air traffic manager, Kelly Nelson, agreed with Santer that Huynh's training

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should be suspended and evaluated by a review board. Huynh was the only member

of his class suspended for poor performance on a skill check before completion of his

180 target hours, but he was also the only trainee who had been granted an

opportunity to start anew at a different sector after requesting a new training team. 

While certifying at Sector 27, Huynh had received 42 additional on the job training

hours beyond his target 180 hours.

Immediately following his suspension, Huynh attempted to transfer from the

Center to a lower level air traffic control facility. There are two different processes

for transfer between facilities. The first is an Employee Request for Reassignment

("ERR"). A trainee may request an ERR transfer to any facility at any time for any

reason. That process is initiated by the trainee sending an application to a receiving

facility. If that facility wants to hire the trainee, it will contact his original facility to

secure a release. Management at the trainee's original facility is not typically

involved in the ERR process and may not receive notice about a potential transfer

until the receiving location calls to request a trainee's release. Trainees may also

transfer through an Article 61 process which is initiated after the air traffic manager

decides to remove a trainee from a program. The air traffic manager may recommend

a trainee for an Article 61 transfer at the manager's discretion. Huynh applied for

dozens of positions through ERR, but no other facilities offered to hire him. During

the same period he also contested his suspension before the review board. 

A three member review board examined Huynh's written training records and

interviewed Vance, Martenson, Santer, and Huynh. They concluded that although

Huynh had been given comprehensive training, he had failed to progress. Two

members of the panel voted to discontinue Huynh's training, while one thought he

should be given another chance. Air traffic manager Nelson reviewed the board's

recommendation and decided to continue Huynh's training under a new plan. Huynh

received additional classroom instruction, allowing him another opportunity to learn

the basic terminology and geography that he had previously failed to master. Since

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Huynh's training had been suspended for over a month at that point, he was given

several weeks to study and refresh his learning. Santer thereafter conducted a skill

check, determined that Huynh had returned to his prior level of performance, and

restarted his on the job training as a data controller at Sector 38 under instructors

Vance and Martenson. 

Shortly after Huynh returned to on the job training, he reported problems with

his supervisors and classmates. According to Huynh, training supervisor Santer

began belittling and criticizing him. Santer's written training reports indicate that he

had informally reprimanded Huynh for sitting idle with his eyes closed during at least

one training session and for playing with his cell phone when he should have been

studying the basic air traffic controller terminology, aircraft characteristics, and

geography that his trainers had repeatedly told him he needed to learn. Huynh claims

that he was on break at the time of these incidents and that the white members of his

training class had not been similarly reprimanded. 

Huynh complained to Patrick Sullivan that Santer had been treating him too

harshly. Sullivan was the Center's operations manager for Areas Five and Six, and

he spoke with Santer about Huynh's concerns. Sullivan then advised Huynh that

Santer had been trying to help him succeed and had counseled him appropriately, and

he declined to assign Huynh a new training supervisor. Huynh points out in contrast

that Sullivan had assigned a new supervisor for a white coworker who had also

complained about Santer's training methods. 

Huynh claims in addition that he told Sullivan some coworkers had used racial

slurs around him, referred to racial stereotypes, and imitated an "Asian accent" in his

presence. He also told Sullivan that he had found a McDonald's job application in his

headset bin at work, which he interpreted to be an insult and a comment on his ability

to performhis job. Sullivan addressed that incident immediately by reporting it to the

Center's staff manager who forwarded it on to the FAA's internal accountability

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board. Sullivan also held a training session on workplace behavior for all the

controllers in Area Six.

Thereafter Sullivan worked with Huynh and a union official to accommodate

a transfer to a different area within the Center. Huynh had told the union official that

he wanted a transfer to Area Three because "no one fails training in Area Three." 

Sullivan and the union official both agreed, however, that Huynh's best chance of

success would be a transfer to Area Five. That area shared a border with Area Six

and would have allowed Huynh to continue using much of the specific route and area

training he had already received. Huynh nevertheless chose to remain in Area Six. 

Huynh's performance initially showed signs of improvement after he was

reinstated and given a new training program, but that improvement did not continue. 

Training instructor Vance noted that Huynh still failed to learn basic aircraft

characteristics and argued with his instructors. Santer conducted multiple

performance skill checks over the course of Huynh's renewed on the job training and

noted that Huynh performed routine tasks well, but lacked the ability to apply his

training in unpredictable or evolving situations. Santer noted more than eight areas

in which Huynh's performance was deficient, and he assigned additional training

simulator sessions to help Huynh make the required improvements. 

Upon completion of Huynh's target 180 training hours at the Sector 38 data

controller position, Santer administered a certification check during which Huynh

performed poorly in the same areas that had been identified in his earlier skill checks. 

Santer recommended suspension of Huynh's training, and the agency convened a

second training review board. That board interviewed Huynh, his union

representative, Martenson, Vance, and Santer and reviewed the written records from

Huynh's second round of training. The review board concluded that Huynh still

lacked basic proficiency in air traffic communications, sector knowledge, and

familiaritywith aircraft characteristics. It unanimously recommended discontinuation

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of Huynh's training, reasoning that additional simulations and on the job instruction

would not overcome his deficiencies. Air traffic manager Nelson reviewed the

board's recommendation and Huynh's training records before deciding to discontinue

his training. 

Huynh was notified in February 2011 that he would be demoted, reassigned,

or separated from the agency. Although he had applied for dozens of transfers to

lower level facilities through the ERR process, no facilities had moved to hire him. 

Given his impending termination, Huynh requested recommendation letters to

facilitate his ERR transfer to a lower level facility. Sullivan offered to write him a

letter for a lower level position, but not for an air traffic controller position. Santer

declined to recommend Huynh although he wrote a letter of recommendation for one

of Huynh's white classmates who transferred through the ERR process. The summary

judgment record indicates that recommendation letters are not required for ERR

transfers and are not ordinarily part of the ERR process.

Given his inability to find a receiving facility willing to hire him through the

ERR process, Huynh requested that Nelson permit himto begin the Article 61 transfer

process. That process may be initiated at an air traffic manager's discretion after

suspension oftraining. After careful review of Huynh's training record, Nelson stated

that because countless lives depend on the ability of air traffic controllers to perform

their duties, he could not in good conscience support transferring Huynh to serve as

an air traffic controller either at the Center or at a lower level facility. Nelson did

however initiate an Article 61 transfer process for five of Huynh's white classmates

after they failed to certify at the Center.

Huynh filed a timely charge of discrimination against the DOT, and in

December 2012 he brought this employment discrimination action in federal district

court under Title VII, 42 U.S.C. § 2000e-2, and the Minnesota Human Rights Act,

Minn. Stat. Ann. § 363A.08. He alleged that the DOT had discriminated against him

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based on race when it terminated his employment as a trainee air traffic controller and

refused his transfer requests. The district court concluded that Huynh had failed to

show that the DOT's stated reason for firing him was a pretext for racial

discrimination, and it granted summary judgment for the government. Huynh

appeals.

II.

We review de novo the district court's grant of summary judgment to the

government. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013).

Summary judgment is appropriate if there is no genuine dispute of material fact and

a party is entitled to judgment as a matter of law. Id. A plaintiff "may establish

unlawful employment discrimination through direct or indirect evidence." Bearden

v. Int'l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008). 

The parties agree that there is no direct evidence of racial discrimination in

Huynh's case, and thus "we apply the framework laid out in McDonnell Douglas

Corp. v. Green" to determine whether he has "established a prima facie case" of

employment discrimination. Id. (citing 411 U.S. 792 (1973)). Huynh must show that

(1) he was a member of a protected group; (2) he was qualified to perform the job; (3)

he suffered an adverse employment action; and (4) circumstances permit an inference

of discrimination. Id. A "prima facie case creates a presumption of unlawful

discrimination, shifting the burden of proof to the employer to present evidence of a

legitimate, nondiscriminatory reason for its adverse employment action." Id. If "the

employer can articulate a nondiscriminatory reason, the burden returns to the

employee to prove that the proffered reason is pretextual." Id. at 831–32. Here, the

parties dispute whether Huynh was subject to more than one adverse employment

action and whether the nondiscriminatory reason the DOT gave for firing and

refusing to transfer Huynh—his poor performance—was a pretext for racial

discrimination. 

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Both parties agree that Hunyh'stermination was an adverse employment action. 

Hunyh argues however that Santer's decision to suspend his training after he had only

completed 85 of his allotted 180 hours for on the job training as a Sector 38 data

controller amounts to an additional adverse employment action. He asserts that the

interruption in his training made it impossible for him to perform as well after his

suspension and complains that none of his white coworkers was suspended prior to

completion of the allotted 180 target hours. Hunyh also claims that his instructors

subjected him to further adverse employment actions by denying him

recommendation letters written for his white classmates and by barring him from

participating in as many training simulation exercises.

Huynh's argument overlooks the fact that not "everything that makes an

employee unhappy is an actionable adverse employment action." LaCroix v. Sears,

Roebuck, & Co., 240 F.3d 688, 691 (8th Cir. 2001). Adverse employment actions

"include termination, demotion, transfers involving changes in pay or working

conditions, and negative evaluations used asthe basis for other employment actions." 

Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969 (8th Cir. 1999) (citing Montandon v.

Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)). An "employer's denial of

an employee's request for more training" after a leave of absence is not itself an

"adverse employment action." Griffith v. City of Des Moines, 387 F.3d 733, 737 (8th

Cir. 2004). Moreover, the undisputed record shows that Huynh was offered almost

a month of additional classroom and other training after his leave of absence. He was

also given numerous opportunities to engage in training simulations and afforded 42

additional hours for on the job training beyond the 180 hours that he had received at

each of Sectors 27 and 38. Finally, while providing "negative references to potential

employers" can qualify as an adverse employment action, Baker v. John Morrell &

Co., 382 F.3d 816, 829 (8th Cir. 2004), the denial of a positive recommendation letter

to Huynh did not rise to the level of a "material employment disadvantage, such as

a change in salary, benefits, or responsibilities." LaCroix, 240 F.3d at 691. We

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conclude that the only adverse employment action taken against Huynh was his

termination from the training program.

The only remaining issue between the parties is whether Huynh established a

genuine dispute of material fact about whether the DOT's reasons for firing him and

denying him a transfer were pretext for racial discrimination. See Bearden, 529 F.3d

at 831–32. Huynh argues that racist comments and jokes made by his coworkers, the

harsh treatment he received from his supervisors, the discovery of a McDonald's job

application in his personal effects at work, and Sullivan's refusal to transfer him to

Area 3 all combined to create an inference that the DOT's stated reason for firing him

was a pretext for racial discrimination. We have previously concluded that occasional

insensitive comments like those made by Huynh's coworkers were "stray remarks"

rather than "persuasive evidence of motive when the remarks are made by persons

other than a decisionmaker." Hitt v. Harsco Corp., 356 F.3d 920, 925 (8th Cir. 2004). 

Many of Huynh's complaints about criticismby his supervisors and their denial

of his transfer request are familiar "instances of a subordinate employee being

subjected to the criticism and control of a supervisor." Hannoon v. Fawn Eng'g

Corp., 324 F.3d 1041, 1047–48 (8th Cir. 2003). Although supervisors Toren and

Santer forcefully criticized Huynh for being argumentative and for failing to study,

their comments "did not suggest any reference to race or national origin" nor did they

support "an inference of discriminatory intent." Id. at 1047. Furthermore, the

summary judgment record establishes that air traffic manager Nelson, supervisor

Santer, and instructors Martenson and Vance repeatedly gave Huynh second chances

and additional instruction when they could have fired him. We conclude that Huynh

has not shown that any of the actions or statements made by his supervisors "create

a reasonable inference of discrimination," as they "do not suggest discriminatory

animus without resorting to speculation." Takele v. Mayo Clinic, 576 F.3d 834, 839

(8th Cir. 2009). 

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Finally, Huynh attempts to establish pretext "by showing that he was treated

differently than other employees who were similarly situated in all relevant respects."

Austin v. Long, 779 F.3d 522, 525 (8th Cir. 2015). He asserts that he was denied a

transfer to another facility after he failed to certify, while seven of his white

classmates were allowed to transfer even though they had also failed to certify. At

"the pretext stage, the test for determining whether employees are similarly situated

to a plaintiff is a rigorous one." Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956

(8th Cir. 2012). That is, the "individuals used for comparison must have dealt with

the same supervisor, have been subject to the same standards, and engaged in the

same conduct without any mitigating or distinguishing circumstances." Id. 

Five of the seven putative comparators transferred through the Article 61

process which must be initiated by air traffic manager Nelson. Huynh asserts that

Nelson treated him differently from other similarly situated white trainees by

allowing themto proceed through that process but denying himthe same opportunity. 

The record shows however that air traffic managers like Nelson determine whether

to initiate the Article 61 process based on written training reports authored by a

trainee's immediate supervisors, and all five of the Article 61 transferees identified

by Huynh "are not valid comparators because they had different immediate

supervisors." Bone, 686 F.3d at 956. 

The two remaining putative comparators transferred through the ERR process,

and Huynh admits that his supervisors did not control whether a receiving facility

would accept such a transfer. The fact that "different decision makers are involved"

in accepting each transfer through the ERR process is "strong evidence of

noncomparability." See Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992). Huynh

nevertheless argues that supervisor Santer wrote a recommendation letter for one of

the two white comparators who then successfully secured an ERR transfer, but

refused to write a similar letter for him. The summary judgment record indicates that

recommendation letters are not required for ERR transfers and are not ordinarily part

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of the ERR process. Furthermore, Santer's decision to write a letter for one trainee

does not change the fact that each ERR transfer involves "different decision makers,"

Jones, 973 F.2d at 676, and Huynh has not identified coworkers "who were similarly

situated in all relevant respects." See Austin, 779 F.3d at 525. This argument by

Huynh thus fails, and we conclude that the district court properly granted summary

judgment to the government because Huynh has not shown that the DOT's stated

reason for firing him was a pretext for racial discrimination. 

For these reasons we affirm the judgment of the district court. 

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