FILED

United States Court of Appeals

Tenth Circuit

March 3, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

ERNEST MCDONALD,

Plaintiff-Appellant,

v. No. 14-1288

THE BOEING COMPANY,

Defendant-Appellee.

(D.C. No. 1:13-CV-01703-RBJ)

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.

 

Plaintiff Ernest McDonald sued his former employer, The Boeing Company,

alleging he was unlawfully terminated because of his race in violation of Colorado

and federal law. The district court granted summary judgment to Defendant, and

Plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Plaintiff McDonald, an African-American military veteran, worked for

*

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. Furthermore, 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not binding precedent except under the doctrines of law of the case, res judicata, and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.

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Defendant Boeing from 2007 to 2012. Specifically, Plaintiff worked on several

classified programs Defendant ran jointly with the United States Air Force. 

Beginning in 2008, funding for these programs decreased continuously, requiring

layoffs of civilian employees. This funding was controlled entirely by the federal

government, pursuant to Defendant’s contract with the U.S. Air Force.

When he started in June 2007, Plaintiff worked as a Level 3 Mission

Operations Specialist (hereinafter “L3 Operator”) at Buckley Air Force Base in

Aurora, Colorado. The next year, after receiving a pay increase, he and several other

operators were notified they would be laid off soon. With Defendant’s assistance,

however, Plaintiff was able to obtain the position of Level 4 Systems Engineer

Support Analyst in a different joint program in Colorado Springs. This position paid

more than his old position, and Plaintiff began working there in August 2008. Soon

after he started, though, Plaintiff was again notified he would be laid off soon

because of more budget cuts. In January 2009, Defendant placed Plaintiff on

“overhead,” meaning Defendant returned Plaintiff to Aurora while he sought other

internal opportunities. Defendant also increased Plaintiff’s salary. After placing

Plaintiff in several temporary positions, in June 2009 Defendant re-hired Plaintiff

back to his old L3 Operator job, while allowing him to retain his higher salary.

In mid-2012, because of continued budgetary decreases, Defendant conducted

another “Reduction in Force” (RIF) in order to lay off four of its eight remaining L3

Operators. To determine which four L3 Operators to lay off and which four to

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retain, Defendant utilized a ranking system crafted pursuant to the company’s written

guidelines. This system based sixty percent of each L3 Operator’s ranking on

general and technical competencies and forty percent on different aspects of the

previous year’s performance review. Utilizing a pre-existing list, Boeing managers

Timothy Ferreira and James Barduniotis determined ten competencies that would be

considered for the 2012 RIF: adaptability, collaboration, communication, continuous

learning, crew resource management, data configuration management, decision

making, initiating action, operations and maintenance support, and troubleshooting.

Next, Ferreira—who supervised all eight L3 Operators—analyzed and

calculated ratings for the eight employees. Ferreira gave each employee a numerical

score for each competency: (1) Entry Level, (2) Basic, (3) Working Level, (4)

Advanced, and (5) Expert. Ferreira then entered these scores into a computer

program. This program, utilizing both the competency assessments and performance

review scores from the previous year, formulated a ranking. Afterward, Ferreira,

Barduniotis, and Kathleen Benavides, a Human Resources representative, reviewed

the ranking and decided against any further changes.

Plaintiff ranked sixth out of the eight L3 Operators. An employee named

James Pepe ranked first. Around June 21, 2012, Plaintiff received notice that he was

again facing termination in 60 days. After Defendant (and particularly, Barduniotis)

unsuccessfully assisted Plaintiff with a countrywide search for another Boeing

position, Plaintiff was laid off on August 24. The two L3 Operators ranked below

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Plaintiff, both Caucasian, were also terminated. 

Two days prior to his termination, Plaintiff complained to Defendant—for the

first time—that he was being discriminated against because of his race. Defendant

investigated this complaint and concluded it had no merit. After his termination,

Plaintiff received permission from the Equal Employment Opportunity Commission

to sue. He then brought suit in the District of Colorado, alleging violations of Title

VII of the Civil Rights Act and the Colorado Anti-Discrimination Act (CADA). 

Eventually, the district court granted summary judgment in favor of Defendant.

Meanwhile, by April 2014 Defendant no longer employed any L3 Operators

for the program in question, according to program manager Roger Healy.1

 Morever,

between May 2007 and April 2014 the program had been forced to downsize from

195 civilian employees to just 78 civilian employees.

II.

We review a district court’s summary judgment decision de novo. Felkins v.

City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014). Thus, we will affirm a grant

of 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.” Id. (quoting

Fed.R.Civ.P. 56(a)).

1

 At some point during 2012, Plaintiff was given the opportunity, along with

all other L3 Operators, to complete certification in order to advance to Level 4. 

Plaintiff failed to obtain this certification.

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“Colorado and federal law apply the same standards to discrimination claims.” 

Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1219 n.11 (10th Cir. 2010). As such,

Plaintiff’s Title VII and CADA claims “rise or fall together.” Id. (citation and

internal marks omitted). Absent direct proof of racial discrimination, “a plaintiff in

a race discrimination case must rely on the three-part, burden-shifting framework set

out by the Supreme Court.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th

Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). “Under

this framework, the plaintiff must first put forth a prima facie case of

discrimination.” Id.2

 The burden then shifts “to the employer to prove a legitimate,

non-discriminatory reason for the adverse employment action.” Id. (citation and

internal marks omitted). If the employer does so, then the burden shifts back: “[T]he

plaintiff must either show that his race . . . was a determinative factor in the

defendant’s employment decision, or show that the defendant’s explanation for its

action was merely pretext.” Adamson v. Multi Cmty. Diversified Servs., Inc., 514

F.3d 1136, 1145 (10th Cir. 2008) (citation omitted).

Here, in granting summary judgment, the district court accepted Defendant’s

concession that a prima facie case of discrimination had been made, found Plaintiff

2

 Generally speaking, a plaintiff must demonstrate the following for a prima

facie case: “(1) he was a member of a protected class; (2) he was qualified and

satisfactorily performing his job; and (3) he was terminated under circumstances

giving rise to an inference of discrimination.” Id. (quoting Salguero v. City of

Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004)).

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had essentially conceded a legitimate, non-discriminatory reason for the termination

(i.e., budget cuts plus low ranking), and focused on explaining why Plaintiff had not

shown pretext. On appeal, we are faced with the same posture. That is, the parties

agree that both a prima facie case and legitimate, non-discriminatory reason have

been provided. Thus, our only task is to analyze whether Plaintiff has shown, by a

preponderance of the evidence, that “the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination.” Simmons v. Sykes

Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011).

III.

For pretext, we look to whether Plaintiff can show that Defendant’s

“explanation was so weak, implausible, inconsistent or incoherent that a reasonable

fact finder could conclude that it was not an honestly held belief but rather was

subterfuge for discrimination.” Id. at 947–48. We must examine “the facts as they

appear to the person making the decision to terminate.” Id. (citation omitted). Our

role is not, however, “to act as a super personnel department that second guesses

employers’ business judgments.” Id. (citation and internal marks omitted).

Plaintiff contends, in several ways, that Defendant used the 2012 RIF as a

pretext for terminating him because of his race. First, Plaintiff repeatedly argues

Defendant “manipulated” the ranking system by including Pepe. Comparing Pepe

with the other L3 Operators, Plaintiff asserts, was like comparing apples and oranges

because Pepe was in a different program and supervised by different persons. 

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Plaintiff provides no evidence for this assertion other than his own say-so, however,

and he openly admitted in deposition that he had no personal knowledge of Pepe’s

background or history with the company. See Fed. R. Evid. 602 (“A witness may

testify to a matter only if evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter.”). In addition, Defendant has put

forth evidence indicating Pepe was a certified L3 Operator in the same program, with

the same supervisor, at the time of the 2012 RIF. Indeed, Plaintiff himself admits

elsewhere (contradicting his above assertion) that Pepe was a trainee in Plaintiff’s

program. In any event, even if Pepe was part of a different program or supervised

by a different person, it is unclear how this would show pretext. As the district court

observed, cross-program or cross-supervisor comparisons would seem essential to

large companies. And more practically speaking, Defendant ranked Plaintiff sixth. 

Omitting Pepe would only bump Plaintiff up to fifth, which still presumably would

have resulted in his termination.

Second, Plaintiff attacks the ranking system for being subjective. This

contention is also without merit, as nothing bars an employer from utilizing

subjective criteria in decision-making. See Debord v. Mercy Health Sys. of Kan.,

Inc., 737 F.3d 642, 657 (10th Cir. 2013) (“[T]he existence of subjective criteria alone

is not considered evidence of pretext.” (citation omitted)); Conroy v. Vilsack, 707

F.3d 1163, 1177 (10th Cir. 2013) (“[S]ubjectivity is to be expected in every hiring

decision.”). We will infer pretext only when the evaluation criteria are entirely

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subjective and the process in question is opaque rather than transparent. Conroy, 707

F.3d at 1178 (emphasis added) (citations omitted). Although the 2012 RIF certainly

contained some subjectivity, neither of our two key factors—pure subjectivity or

opaqueness—was present here. Indeed, the mere fact that Defendant openly utilized

a ranking system based on written and established guidelines means the criteria were

not purely subjective and the process was not opaque. Far from it.

Third, Plaintiff asserts co-workers made offensive racial comments—some in

his presence, some not. It is well-settled, however, that “isolated racial comments

are insufficient to establish pretext unless they can somehow be tied to the

employment actions disputed in the case at hand.” Antonio v. Sygma Network, Inc.,

458 F.3d 1177, 1184 (10th Cir. 2006) (citation omitted). And Plaintiff has put forth

no evidence that any person with influence over the decision to terminate him—e.g.,

Ferreira, Barduniotis, or Benavides—made such comments, approved of such

comments, or terminated Plaintiff because such comments were made by others. To

the contrary, the primary comment that Plaintiff points to was made years before

Plaintiff even started at Boeing by a co-worker, Tim Cook, who left Boeing four

years before Plaintiff’s eventual termination.3

 This is clearly insufficient.

Fourth, Plaintiff contends pretext is demonstrated by the fact that he, an

African-American, was selected for termination in every single relevant RIF while

3

 As this timeline makes obvious, the comment was not aimed at Plaintiff.

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he was employed. As unfortunate as this fact may be, we cannot ignore the broader

context here: namely, the drastic and ongoing budget cuts necessitating massive

layoffs. Looking at this evidence as a whole—wherein Plaintiff’s program

downsized from 195 employees to 78 employees in just seven years—there is nothing

suspicious in one individual being selected for multiple terminations. Cf. Rea v.

Martin Marietta Corp., 29 F.3d 1450, 1456 (10th Cir. 1994) (“[I]n a reduction in

force case, ‘someone has to be let go.’” (citation omitted)). Moreover, Plaintiff

ignores the fact that the first two times he was selected for termination Defendant

actually assisted Plaintiff in finding another job within the company—hardly a sign

of racial animus. There is no triable issue of fact here. 

Finally, Plaintiff argues we can infer pretext because Healy—again, one of the

program’s managers—temporarily hid the existence of the L3 Operator job opening

for which Plaintiff was eventually hired in 2009. Like his first argument, Plaintiff

points only to his own say-so, and he appears to lack personal knowledge on the

subject. Furthermore, it is again unclear how this assertion, if true, would

demonstrate pretext, as Plaintiff was eventually hired for the position and he makes

no allegation that Healy influenced his later termination.4

4

 Certainly, Healy had broad authority over how many lay-offs would occur

and in what areas, but Plaintiff has admittedly “not attacked [Defendant’s]

determination to retain four of the eight L3 Operator employees for the 2012 RIF.”

(emphasis added). Rather, Plaintiff attacks the selection of him, personally, as one

of the bottom four L3 Operators. And Healy did not take any role in deciding which

(continued...)

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IV.

In the end, Plaintiff does not come close to establishing pretext. See Rea, 29

F.3d at 1456 (“Given Defendant’s written policy that those employees with the

lowest rankings were to be considered first for layoff, and the fact that Plaintiff

ranked last in the departmental ranking for her labor grade, we conclude that

Plaintiff’s evidence is insufficient to create a genuine fact dispute as to whether

Defendant’s reasons for choosing Plaintiff for layoff were pretextual.”). Not only

does he fail to provide any solid evidence, but several of the undisputed facts—such

as Defendant’s willingness to give him raises and help him find other positions

internally—counsel against his position.

AFFIRMED.

Entered for the Court,

Bobby R. Baldock

United States Circuit Judge

4

(...continued)

four of the eight L3 Operators to terminate.

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