UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JAGDISH C. LAUL, Plaintiff - Appellant,

v. LOS ALAMOS NATIONAL LABORATORIES, Defendant - Appellee. No. 18-2084 (D.C. No. 1:16-CV -01017-JAP-KBM) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MATHESON , and CARSON , Circuit Judges.

________________ _________________ Jagdish C. Laul appeals from the d istrict court’s grant of summ ary judgment in favor of Los Alamos Nati onal Laboratories (“LANL”) 1 on his claims alleging discriminatory failure to rehire him based on his age and/or na tional origin, and retaliatory failure to rehire him based on his previous complai nts of discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel ha s 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 ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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.

1 LANL’s name has been changed to Los Alamos National Security, LLC. FILED United States Court of Appeals Tenth Circuit 

### May 6, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Laul is a naturalized U.S. c itizen from India. In 1999, wh en Mr. Laul was 60 years old, LANL hired him as a Safety Basis Analyst. Initia lly, Mr. Laul’s job performance was satisfactory and he was even promoted. Beginni ng in 2007, however, his performance steadil y declined. In October 2013, h is supervisor recommended to James Tingey, a S afety Basis Division Leader, to terminate Mr. Laul’s employment. Mr. Tingey accepted the recommendation and issued a notice of intent to terminate. Following an unsuccessful internal LANL a ppeal, Mr. Laul’s employment was terminated, e ffective December 6, 2013. See Laul v. Los Alamos Nat’l Labs., 714 F. App’x 832, 834-35 (10th Ci r. 2017) (detailing Mr. Laul’s internal appeal and job performance probl ems, including his unprofession al, disrespectful, and disruptive workplace behavior), cert. denied , 138 S. Ct. 2602 (2018). In early January 2014, Richard M arquez, the Executive Director of LANL, told Mr. Laul he could apply for jobs d espite having been discharged . Sometime later, Mr. Laul went to LANL’s Occupati onal Medical building and asked to speak with Janet McMillan, a nurse and the wi fe of LANL’s Director, Charle s McMillan. Mr. Laul showed Ms. McMillan a pictur e of himself and the McMillans at a recent holiday event and then asked to speak with her privately. Mr. Laul followed Ms. McMillan into her office and shut the door behind him. He then tried to hand Ms. McMillan an envelope containing doc uments related to his termin ation that he wanted delivered to her husband . When Ms. McMillan refused the envelope, Mr.3 Laul became increasi ngly angry. Ms. McMilla n later reported th e incident to her supervisor. On September 11, 2014, Mr. Laul filed a charge of discriminatio n related to his termination with the New Mex ico Department of Labor, Human Rights Division. He filed an amended ch arge on October 30. Between October 20, 2014, and May 4, 2015, Mr. Laul applied for 30 jobs at LANL. Eleven of the job postings w ere cancelled and are not at issue. As to the remaining 19 jobs, Mr. Laul was not hired for any of them. All of the people hired were younger than Mr. Laul, who was then in his mid-70s, and no ne were of East Indian origin. For two job openings as a Safety Basis Analyst, Mr. Tingey, the manager who approved Mr. Laul’s termination in October 2013, was the hiring manager. He determined that Mr. Laul did not meet the minimum job requireme nts for a Safety Basis Analyst because he had re cently failed at the same job. Barbara Pacheco, a Human Resources employee, reviewed and scree ned the applications for an Operations M anager job. She was aware of M r. Laul’s previous performance issues and his disc rimination complaints. Ms. Pach eco said that she did not select Mr. Laul for an inter view because he did not have th e necessary management experience. Both Mr. Tingey and Ms. Pacheco said they did not consider Mr. Laul’s age, race, national origin, or previou s complaint of discrimination in making their decisions.4 The hiring managers for the rem aining 16 jobs did not know that Mr. Laul had been terminated or that he had f iled discrimination charges aga inst LANL. Nor did they consider Mr. Laul’s age, ra ce, or national origin in makin g their decisions. Instead, they decided not to inte rview Mr. Laul because he eith er lacked the minimum qualifications or was not the best qualified applicant. In June 2015, Mr. Laul returned to the Occupational Medical bui lding and again asked to see Ms. McMillan . This time, Ms. McMillan met w ith Mr. Laul in the lobby. Mr. Laul again tried to g ive her the documents for deli very to her husband. When Ms. McMillan refused, Mr. Lau l became so aggressive that h e drew the attention of a physician assist ant, who told him to leave. Ms. McMillan reported the incident to Mr. Marquez, who in t urn informed Michael Lansing, the Acting Associate Director for Operatio ns and Business. On July 1, Mr. Lansing and LANL Personnel Security issued a “Be On The Lookout” (“BOLO”) for Mr . Laul. LANL uses a BOLO to alert personnel th at the BOLO subject is not per mitted on the property and should be reported to security if he attempts to e nter or is seen on the premises. In August 2015, Mr. Laul filed hi s first suit against LANL for discriminatory discharge, failure to hire, a nd retaliation. In September 2016 , while LANL’s motion for summary judgment was pending in the first suit, 2 Mr. Laul filed a second suit in which he asserted that LANL faile d to rehire him based on his a ge and national origin

2 The district court granted summ ary judgment in favor of LANL, and this court affirmed on appeal. See Laul , 714 F. App’x at 834, 841.5 in violation of the Age Discrimin ation in Employment Act (“ADEA ”), 29 U.S.C. § 623(a)(1), (“ADEA”); Title V II of the Civil Rights Act of 196 4, 42 U.S.C. § 2000e-2(a)(1); and the New Mexi co Human Right Act (“NMHRA”), N.M. Stat. Ann. § 28-1-7. He also claimed that LANL failed to rehire him in retaliation for his previous charge of discrimina tion in violation of Title VII and the NMHRA. The district court granted summary judgment in favor of LANL, and t his appeal followed.
II. STANDARD OF REVIEW “We review summary judgment dete rminations de novo, applying th e same standard as the district court. At this stage of the litigatio n, we view facts in the light most favorable to the non-moving party and draw all reasonable inferences in [his] favor.” DeWitt v. Sw. Bell Tel. Co. , 845 F.3d 1299, 1306 (10th Cir. 2017) (citations, ellipses, brackets a nd internal quotation marks omi tted). “Even so, the

non-movant . . . must m arshall sufficient evidence requiring submis sion to the jury to avoid summary judgment.” Id . (brackets and internal quotation marks omitted). “The court shall grant summary ju dgment if the movant shows tha t 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 fact is material if , under the governing law, it could have an effect on the outcome of the lawsuit. A dispu te over a material fact is genuine if a rational jury c ould find in favor of the nonmov ing party on the evidence presented.” DeWitt, 845 F.3d at 1306. (internal quotation marks omitted).
III. ANALYSIS
A. Age and National Origin Discrimination6 The district court addressed Mr . Laul’s claims for age and nati onal origin discrimination together because h e used the same evidence to su pport both claims. We do the same.
1. Legal Background “Where, as here, an employee’s [Title VII] or [ADE A] claim reli es exclusively on circumstantial, rather than d irect, evidence, we apply the b urden shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Timmerman
v. U.S. Bank, N.A. , 483 F.3d 1106, 1113 ( 10th Cir. 2007). The McDonnell-Douglas burden-shifting analysis also a pplies to claims under the NMHRA

. See Juneau v. Intel Corp ., 127 P.3d 548, 551 (N.M. 2005) ( “When considering a violation of the NMHRA,” the New Mexico Sup reme Court “has used the [ McDonnell Douglas ] methodology”). 3
Under McDonnell Douglas , Mr. Laul has the burden to e stablish a prima facie case of failure to hire based on his age and/or national origin . He “must show that (1) he applied for an availabl e position; (2) he was qualified for the position; and (3) he was rejected under circumstan ces which give rise to an infer ence of unlawful discrimination.” Anaeme v. Diagnostek, Inc ., 164 F.3d 1275, 1278 (10th Cir. 1999) (internal quotation ma rks omitted). If Mr. L aul carries his bu rden, LANL must then

3 For the first time on appeal, M r. Laul argues that the distric t court “erred in applying federal standards to [hi s] claims under the [NMHRA].” Aplt. Opening Br. at 46. Setting aside the fact t hat we generally do not conside r arguments raised for the first time on appeal, Mr. L aul does not say what standard t he district court should have applied to these claims. I n any event, the court applied the correct standard.7 come forward with a legitimate, non-discriminatory reason for i ts failure to hire him. If LANL makes this showing, the burden shifts back to Mr. Laul to show that LANL’s proffered justifi cation is pretextual. See Timmerman , 483 F.3d at 1113. “Under our precedents, a plaintiff can establish pretext by sho wing the defendant’s proffered non-discrimi natory explanations for its a ctions are so incoherent, weak, inconsistent, or contradictory that a rationa l factfinder could conclude they are unw orthy of belief.” Johnson v. Weld Cty ., 594 F.3d 1202, 1211 (10th Cir. 2010) (brackets and in ternal quotation marks omitted ). “[O]ur role isn’t to ask whether the employer’s decisi on was wise, fair or correct, but whether it honestly believed the legitimate, nondiscri minatory reasons it gave for its conduct and acted in good faith on those beliefs.” Id . (brackets and internal quotation marks omitted).
2. Analysis For purposes of this appeal, we assume that Mr. Laul could est ablish a prima facie case of discrimination. T he parties do not dispute that LANL articulated a legitimate, nondiscriminatory r eason for its decisions not to r ehire Mr. Laul. Thus, the issue is whether Mr. Laul es tablished pretext. We agree wi th the district court that he failed to do so. Mr. Laul argues that LANL’s hiri ng managers did not honestly be lieve his qualifications were lacking or b elieve there were better qualif ied candidates. He contends the managers manufactu red these reasons and argues his age and/or national origin was the real reason he w as not rehired. But it is not e nough for Mr. Laul to assert his belief that he was better qualified than the other a pplicants. “[T]o suggest8 that an employer’s claim that it hired someone else because of superior qualifications is pretext for discrimination ra ther than an honestly (even if mistakenly) held belief, a plaintiff must come forward with an overwhelming disparity in q ualifications.” Id . (internal quotation marks omitted). See also Jaramillo v. Colo. Judicial Dep’t , 427 F.3d 1303, 1309 (10th Ci r. 2005) (per curiam); Bullington v. United Air Lines,
Inc. , 186 F.3d 1301, 1319 (10th Cir. 1999), overruled on other grounds , Nat’l R.R. Passenger Corp. v Morgan , 536 U.S. 101 (2002). Mr. Laul presents a few examples to allege that a hiring manage r improperly considered his resume, educati on, or experience. But “[t]o sup port an inference of pretext, to suggest that somethi ng more nefarious might be at p lay, a plaintiff must produce evidence th at the employer did more than get it wrong .” Id . (emphasis added). “He . . . must come forwar d with evidence that the emp loyer didn’t really believe its proffered reasons foraction and thus may have been pursuing a hidden discriminatory agenda.” Id

. We also reject Mr. Lau l’s attempt to prove pretext by the sheer number of jobs he applied for but failed to get an interview. To prove pretex t on the theory he was better qualified than the other c andidates, Mr. Laul must proff er evidence of an “overwhelming disparity” betwee n his qualificati ons and those o f the successful candidate, which necessarily invol ves an individualized conside ration of the particular candidates for a par ticular job. He has failed to d o so. B. Retaliation 1. Legal Background9 A claim of Title VII retaliation can be proven with direct evid ence or by reliance on the McDonnell Douglas framework. See Khalik v. United Air Lines , 671 F.3d 1188, 1192 (10th Cir. 2012). Under the latter, a plain tiff must first “raise a genuine issue of material fact on each element of the prima fac ie case.” Morgan v. Hilti, Inc ., 108 F.3d 1319, 1323 (10th Ci r. 1997) (citation omitted). Th e burden then “shifts to the employer to off er a legitimate nondiscriminatory reason for its employment decision.” Id . If the employer meets its burden, “the burden then reverts to the plaintiff to show that there is a genuine disput e of material fact as to whether the employer’s proffered reason for the challenged acti on is pretextual—i.e., unworthy of belief.” Id . (internal quotati on marks omitted). To establish a prima facie case of Title VII re taliation, Mr. L aul “must show (1) that [he] engaged in protect ed opposition to discrimination , (2) that a reasonable employee would have found the ch allenged action materially adve rse, and (3) that a causal connection existed betwee n the protected activity and th e materially adverse action.” Khalik , 671 F.3d at 1193 (internal quota tion marks omitted). To esta blish a causal connection, a plaintiff “m ust present evidence of circum stances that justify an inference of retaliatory motive.” Ward v. Jewell , 772 F.3d 1199, 120 3 (10th Cir. 2014) (internal quotation marks omitted).
2. Analysis The district court found that Mr. Laul established the first tw o elements of a prima facie case but failed to e stablish the third element—a ca usal connection between his last protected activ ity and the decision not to reh ire him. We agree.10 The hiring managers for 16 of the 19 jobs had no knowledge that Mr. Laul had filed charges of discriminati on against LANL. As such, there i s no evidence of any circumstances that would justify an inference of a retaliatory motive. See Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1234-35 (10t h Cir. 2000) (affirming dismissal of retaliation claim on summary judgment where plaint iff presented no evidence that decisionmaker knew of plaintiff’s protected activ ity at time decision was made). Mr. Laul argues that the district court made an improper credib ility determination on summary judgmentbecause it “believed [LANL’s] evidence that the hiring managers other than Mr. Tingey and Ms. Pacheco did not h ave knowledge of [his] complaints of di scrimination.” Aplt. Opening Br. at 55. The court, however, did not make a credib ility determination. It determined that M r. Laul failed to present evidence suffi cient to create a ge nuine issue of materi al fact as to whether his protected activity caused the hi ring decisions. Mr. Laul merel y speculated that the hiring managers reviewed his pe rsonnel file, which contained in formation about his discrimination charges. But to “defeat a motion for summary ju dgment, evidence, including testimony, must be based on more than mere speculatio n, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc ., 366 F.3d 869, 875 (10th Cir. 2004). Mr. Tingey and Ms. Pacheco knew a bout Mr. Laul’s charges of dis crimination but decided not to hire him. But this occurred in April 2015, nearly six months after his last protected activity in October 2014, when he filed the amended charges with the state agency. This gap betw een the protected activity and the adverse action was11 too long to support an inference of causation. “[W]here a gap of three months or longer has occurred, a plaintiff must present other evidence—mo re than mere speculation, conjecture, or surmis e—to establish that [his] pro tected activity was a but-for cause of the adve rse employment action. Bekkem v. Wilkie , 915 F.3d 1258, 1271 (10th Cir. 2019) (internal quotation marks omitted). Finally, in opposing summary judgm ent, Mr. Laul argued that LAN L “further retaliated against [him] to ens ure that he cannot secure a posi tion at LANL by issuing a BOLO against [him].” Aplt. A pp., Vol. 3 at 742. Even if we assume Mr. Laul was engaged in protected activity wh en he confronted Ms. McMillan, we agree with the district court that “the eviden ce clearly shows that the BOLO w as issued b ecause of the inappropriate and threateni ng nature of Plaintiff’s conduct in his encounters with Ms. McMillan”—not because of a di scriminatory or retaliatory mo tive. Id ., Vol. 6 at 870. Mr. Laul failed to presen t any “evidence that members of the security department, who issued the BOLO, knew about Plaintiff’s prior c omplaints of discrimination.” Id . As such, he could not show t hat protected activity caused issuance of the BOLO.
IV. CONCLUSION We affirm the judgment of the district court.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge