UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TIMOTHY C. JORDAN, 

 Plaintiff - Appellant, 

v. 

DILLON COMPANIES, 

d/b/a King Soopers, Inc., 

 Defendant - Appellee. 

No. 14-1505 

(D.C. No. 1:13-CV-02757-REB-MJW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Plaintiff Timothy C. Jordan appeals from the district court’s grant of summary 

judgment in favor of Dillon Companies, doing business as King Soopers, Inc., (King 

Soopers) on his claim that he was terminated on the basis of his gender in violation of 

 *

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

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

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

ordered 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 9, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.1

 We have 

jurisdiction under 28 U.S.C. § 1291, and affirm. 

I. 

We only briefly recite the undisputed evidence, which is thoroughly described 

in the district court’s order. Mr. Jordan was employed as a butcher block clerk at a 

King Soopers grocery store, where he sometimes worked the seafood counter. He 

was supervised by Molly Gannon and Debbie Villareal, and the store manager was 

Scott Brinson. Mr. Brinson had authority to terminate employees; Ms. Gannon and 

Ms. Villareal did not. Mr. Jordan presented evidence which he argues shows 

Ms. Gannon was biased against men. He alleges Ms. Gannon, who is deceased, said 

she did not like working with men; gave preferential treatment in scheduling hours to 

a woman employee, Dana Rock; complained to Mr. Brinson in January 2012, that 

Mr. Jordan made inappropriate sexual remarks and used vulgar language; and 

encouraged a female employee, Dana Rock, to submit complaints to Mr. Brinson 

about Mr. Jordan.2

 

 1

 Mr. Jordan also asserted a Title VII retaliation claim, but does not appeal the 

district court’s grant of summary judgment in favor of King Soopers on that claim. 

2

 In January 2012, Ms. Gannon and Ms. Villareal complained to Mr. Brinson 

that Mr. Jordan failed to follow their directions and talked down to them. That same 

month, Ms. Gannon submitted a written statement that Mr. Jordan used vulgar 

language and made inappropriate sexual comments to her and other employees. 

Ms. Rock also submitted a complaint accusing Mr. Jordan of frequently making 

inappropriate sexual remarks, being verbally abusive, and threatening her. 

Mr. Jordan was counseled by Mr. Brinson in January 2012, and “put on notice . . . 

that any further issues with harassment [might] result in [his] immediate 

termination.” Aplt. App., Vol. II, at 100. 

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On March 16, 2012, Ms. Rock was working the first shift at the seafood 

counter when she noticed a knife wrapped in butcher block paper sticking point up in 

the trash can. The knife had a 12-inch blade. Mr. Jordan had worked the closing 

shift at the seafood counter the night before. Ms. Rock notified Ms. Gannon, who 

immediately summoned Mr. Brinson. Ms. Rock moved the trash can into the back 

room and took photos of the knife in the trash can, which she turned over to 

Mr. Brinson. Mr. Brinson testified that Ms. Gannon never suggested to him that 

Mr. Jordan was responsible or that he be terminated. 

Mr. Brinson reviewed video from one of three surveillance cameras in the 

store, testifying it was the only camera overlooking the seafood case and the trash 

can. He concluded from his review that Mr. Jordan had scooped up the knife along 

with butcher paper while he was cleaning up and tossed the paper and knife in the 

trash. At Mr. Brinson’s request, the store’s loss prevention department also reviewed 

the video and also concluded Mr. Jordan had put the knife in the trash when he threw 

out butcher paper. Mr. Brinson interviewed Mr. Jordan, who denied putting the knife 

in the trash, but said he might have thrown it away with the butcher paper. 

Mr. Jordan recalled picking up and washing the knife, and putting more than one 

layer of butcher paper in the trash, but said he had not intentionally thrown out a 

knife. 

Mr. Brinson informed King Soopers’ labor relations department and his 

supervisor about his observations and conclusions, and both recommended 

Mr. Jordan be terminated. Mr. Brinson testified that throwing a knife in the trash was 

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a safety violation whether it was thrown out intentionally or accidentally. 

Mr. Brinson terminated Plaintiff on March 23, 2012. He testified that he did not 

consult with Ms. Gannon or Ms. Rock about his investigation or his termination 

decision. 

Mr. Jordan filed suit alleging unlawful discrimination under Title VII. He did 

not contend Mr. Brinson had any gender bias against him, but rather, alleged that 

Ms. Gannon’s hostility toward men was the cause of Mr. Brinson’s termination 

decision. The district court considered his discrimination claim under the 

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802–04 (1973). Under that framework, “the plaintiff bears the initial burden of 

establishing a prima facie case of sex discrimination, whereupon the burden shifts to 

the employer to articulate a legitimate, nondiscriminatory reason for the discharge, 

and then back to the plaintiff to show that the stated reason is pretextual.” Argo v. 

Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006). 

The district court assumed, purely for the sake of argument, that Mr. Jordan 

had met his burden to establish a prima facie reverse discrimination claim.3

 The 

court ruled that King Soopers met its burden to show a legitimate, nondiscriminatory 

reason for terminating Mr. Jordan, who failed to present evidence that King Soopers’ 

 3

 Similarly, we express no opinion as to whether Plaintiff’s evidence was 

sufficient to establish a prima facie case of reverse gender discrimination, and simply 

assume for argument’s sake that he met this burden. See Argo, 452 F.3d at 1201 

(holding a plaintiff alleging reverse discrimination must present evidence that 

supports an inference the defendant “is one of those unusual employers who 

discriminates against the majority.” (internal quotation marks omitted)). 

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explanation was merely a pretext for discrimination. See Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (holding plaintiff must show “that 

the employer’s proffered explanation is unworthy of credence” to establish pretext 

(internal quotation marks omitted)). 

Mr. Jordan argued that he could establish pretext under a subordinate bias 

theory, arguing his evidence of Ms. Gannon’s bias against men should be imputed to 

Mr. Brinson. The district court ruled he had failed to present evidence from which a 

reasonable jury could conclude Ms. Gannon caused Mr. Brinson’s termination 

decision. The court cited the evidence that Ms. Gannon never suggested to 

Mr. Brinson that Mr. Jordan was responsible for the knife being in the trash, never 

recommended Mr. Jordan be terminated, and that Mr. Brinson conducted an 

independent investigation and reached his own conclusion that Mr. Jordan threw out 

the knife and should be fired. Accordingly, the district court granted summary 

judgment in favor of King Soopers. 

II. 

Mr. Jordan appeals. He argues the district court misapplied the “subordinate 

bias” doctrine. “We review the district court’s summary judgment order de novo, 

and apply the same legal standards as did the district court.” Ward v. Jewell, 

772 F.3d 1199, 1202 (10th Cir. 2014) (internal quotation marks and bracket omitted). 

“We must view the factual record and make reasonable inferences therefrom in the 

light most favorable to the party opposing summary judgment.” Bohn v. Park City 

Grp., Inc., 94 F.3d 1457, 1460 (10th Cir. 1996). Summary judgment is appropriate 

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when “the movant shows that there is no genuine dispute as to any material fact and 

[it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue is 

‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact 

could resolve the issue either way.” Becker v. Bateman, 709 F.3d 1019, 1022 

(10th Cir. 2013) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 

(10th Cir. 1998)). 

Discriminatory animus may be imputed to a neutral decisionmaker under a 

“subordinate bias” theory if (1) a supervisor performed an act motivated by animus 

that was intended to cause an adverse employment action, and (2) the act was a 

proximate cause of the adverse employment action. See Staub v. Proctor Hosp., 

562 U.S. 411, ––––, 131 S. Ct. 1186, 1194 (2011). “[T]he theory does not apply 

when decision-makers conduct their own investigations without relying on biased 

subordinates.” Ward, 772 F.3d at 1205. 

Mr. Jordan did not present any evidence that Ms. Gannon was the proximate 

cause of Mr. Brinson’s termination decision; that Mr. Brinson followed any 

recommendation by Ms. Gannon, or that he relied on facts she provided. The 

evidence is undisputed that Mr. Brinson reviewed the video evidence himself and did 

not receive or follow any recommendation from Ms. Gannon with respect to 

Mr. Jordan’s involvement, Mr. Brinson’s independent investigation, or his decision 

to terminate Mr. Jordan. The evidence shows that Ms. Gannon’s only involvement in 

the knife incident was to summon Mr. Brinson when Ms. Rock showed her the knife 

and to submit a statement which did not implicate Mr. Jordan. 

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Mr. Jordan theorizes that Ms. Gannon and Ms. Rock might have placed the 

knife in the trash to fabricate a reason for Mr. Brinson to fire him due to their bias 

against him. But his argument is based wholly on speculation, without evidentiary 

support. “[M]ere speculation, conjecture, or surmise” is insufficient to defeat 

summary judgment, and “[u]nsubstantiated allegations carry no probative weight.” 

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). 

Mr. Jordan further asserts that the video does not clearly show him throw out 

the knife, and argues that a reasonable jury might conclude Mr. Brinson’s 

interpretation of the video evidence was influenced by Ms. Gannon’s and Ms. Rock’s 

complaints against him. This argument ignores the undisputed evidence that 

Mr. Brinson did not rely solely on his own interpretation of the video, but got a 

second opinion from the loss prevention department which confirmed his 

interpretation. Moreover, even assuming Mr. Brinson’s opinion of Mr. Jordan was 

somewhat influenced by the earlier complaints against him, that would be insufficient 

to invoke the subordinate bias doctrine. “To prevail on a subordinate bias claim, a 

plaintiff must establish more than mere ‘influence’ or ‘input’ in the decisionmaking 

process. Rather, [a plaintiff must show] the biased subordinate’s discriminatory 

reports, recommendation, or other actions caused the adverse employment action.” 

EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 487 (10th Cir. 2006) (emphasis 

added). The burden is on the plaintiff to prove causation, id. at 488, and Mr. Jordan 

has not met that burden. Mr. Jordan also argues the district court ignored the 

possibility that Mr. Brinson might have decided to terminate him, rather than 

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discipline him, because he was influenced by Ms. Gannon’s alleged bias. This again 

is mere speculation, which is insufficient to defeat summary judgment, and posits 

only the theoretical possibility of influence, which is insufficient to show 

subordinate-bias Title VII liability. 

Finally, Mr. Jordan argues there are genuine issues of material fact as to 

whether Mr. Brinson conducted an independent investigation. See Lobato v. New 

Mexico Envtl. Dep’t, 733 F.3d 1283, 1294 (10th Cir. 2013) (“[I]f the employer 

independently verifies the facts and does not rely upon the biased source—then there 

is no subordinate bias liability.” (citing Staub, 131 S. Ct. at 1193). He asserts the 

district court merely concluded there was an independent investigation, without any 

analysis. He mischaracterizes the district court’s order. The district court noted the 

following undisputed evidence in support of its conclusion that Mr. Brinson 

conducted an independent investigation: (1) Ms. Gannon did not suggest Mr. Jordan 

was responsible for the knife being in the trash, recommend that he be fired, or 

participate in Mr. Brinson’s investigation; (2) Mr. Brinson reviewed the video from 

the only surveillance camera that showed the relevant area of the store, and 

concluded on his own that it showed Mr. Jordan scoop up butcher paper with the 

knife and throw it in the trash; (3) Mr. Brinson asked for and got a second opinion 

confirming his interpretation of the video from King Soopers’ loss prevention 

department; (4) Mr. Brinson spoke with Mr. Jordan who asked if the knife was found 

in butcher paper prior to Mr. Brinson divulging that information, and admitted he 

might have accidentally thrown the knife out with butcher paper; and (5) both 

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Mr. Brinson’s supervisor and King Soopers’ labor relations department recommended 

that Mr. Brinson terminate Mr. Jordan for the safety violation. No reasonable juror 

could conclude from the evidence that Mr. Brinson blindly relied on Ms. Gannon in 

his investigation or decision to terminate Mr. Jordan. See id. at 1294 (stating a 

“necessary element to a subordinate bias claim is the decisionmaker’s uncritical 

reliance on facts provided by a biased supervisor.” (internal quotation marks and 

bracket omitted)). 

Thus, the district court correctly ruled that on the undisputed evidence, Title 

VII liability cannot be based on a subordinate bias theory. See id. (holding that 

subordinate bias theory did not apply when the employer had conducted its own 

independent investigation, uninfluenced by the allegedly biased supervisors). 

The judgment of the district court is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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