F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 15, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
N O RV ELL B UFFO RD ,
Plaintiff-Appellant,
v. No. 06-3170 (D.C. No. 04-CV-1334-JTM ) TH E BOEIN G CO M PA N Y , (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, KELLY and O’BRIEN, Circuit Judges.
Plaintiff-appellant Norvell Bufford appeals the district court’s grant of
summary judgment to his former employer, defendant-appellee The Boeing
Company, on his claim that Boeing demoted him from a management position to a
non-management position because of his race in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Exercising jurisdiction
* After examining the briefs and appellate record, this panel has determined unanimously to grant 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 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. under 28 U.S.C. § 1291, we affirm the entry of summary judgment in favor of
Boeing.
A. Background.
M r. Bufford is an African-American male. M r. Bufford worked for Boeing
at its commercial facility in W ichita, Kansas from 1980 until June 2005 when he
was terminated in connection with Boeing’s sale of the assets of its W ichita
facility. M r. Bufford is not challenging his termination in this action. Instead, he
alleges that Boeing discriminated against him because of his race in M arch 2004
when his direct supervisor, Harold Peterson, who is also an African-American,
demoted him from his management position in the transportation department at
the W ichita facility to a non-management position at the same facility. 1
As set forth in the district court’s memorandum and order granting Boeing
summary judgment, Peterson’s proffered reason for demoting M r. Bufford was his
belief “that [M r. Bufford] had not followed his instructions to properly instruct
his crew on [Boeing’s] radio use policy, and that [M r. Bufford] was not honest
about it when Peterson questioned him.” See Bufford v. Boeing Commercial
Airplane Group–Wichita Div., 425 F. Supp. 2d 1241, 1247 (D . Kan. 2006).
M r. Bufford claims, however, that Peterson’s actual motivation for demoting him
1 In his amended complaint, plaintiff also asserted additional race and age discrimination claims. Plaintiff abandoned his additional claims in the pretrial order that was entered in the district court proceedings.
-2- was his race. Specifically, he claims that “Peterson . . . had received pressure
from [his superiors] to demote Bufford because Peterson was perceived to have
been too lenient with Bufford as they are both African American.” Aplt. Opening
Br. at 3.
The district court rejected M r. Bufford’s claim that his demotion was
racially motivated, as the court concluded that “there is no direct or
circumstantial evidence of racial discrimination.” Bufford, 425 F. Supp. 2d
at 1248. Although some of our reasoning is slightly different than the district
court’s, we agree with the district court that M r. Bufford failed to put forth
sufficient evidence to support his racial discrimination claim, and we therefore
affirm the entry of summary judgment in favor of Boeing. W e also commend the
district court for its thoroughness in setting forth the factual background
pertaining to M r. Bufford’s discrimination claim, and we will not repeat that
detailed background here. Id. at 1243-48. Instead, we will assume a working
familiarity with the detailed facts set forth by the district court pertaining to the
following categories of evidence: (1) M r. Bufford’s work history at Boeing, id.
at 1243-44; (2) M r. Bufford’s previous discipline, id. at 1244; (3) M r. Bufford’s
conduct related to the January 31, 2004 “restroom incident” and the discipline
that Peterson imposed on M r. Bufford in connection with that incident, id.
at 1244-45; (4) M r. Bufford’s conduct related to the February 2004 “radio
incident” and Peterson’s investigation concerning radio use in the transportation
-3- department, id. at 1246-47; (5) M r. Bufford’s demotion from management as a
result of the radio use issue, id. at 1247-48; and (6) M r. Bufford’s administrative
charge and this lawsuit, id. at 1248.
B. Summary Judgm ent Standards.
“W e review a district court’s grant of summary judgment de novo, applying
the same legal standards used below.” Burke v. Utah Transit Auth. & Local 382,
462 F.3d 1253, 1257 (10th Cir. 2006). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). “In applying this standard, we view the evidence and
draw reasonable inferences therefrom in the light most favorable to the
nonmoving party.” Burke, 462 F.3d at 1258 (quotation omitted).
C. Legal Fram ew ork for Analyzing Discrimination Claims.
The district court correctly summarized the legal framew ork that governs
this case:
“A plaintiff alleging discrimination on the basis of race may prove intentional discrimination through either direct evidence of discrimination . . . or indirect (i.e., circumstantial) evidence of discrimination.” Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). In cases of circumstantial evidence of discriminatory intent under Title VII, the court applies the burden-shifting framew ork set forth in M cDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973). Pursuant to the M cDonnell Douglas framew ork, the employee “must carry the initial burden . . . of
-4- establishing a prima facie case of racial discrimination.” Kendrick, 220 F.3d [at 1226] (quotation marks and citation omitted). . . .
Once the employee establishes a prima facie case, “the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for its employment action.” [M cDonnell Douglas, 411 U.S. at 802] (quotation marks and citation omitted). “The relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair or correct, but whether [the employer] honestly believed those reasons and acted in good faith upon those beliefs.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999). If the employer satisfies its burden of production, the employee must then show that the employer’s justification is pretextual – i.e., unworthy of belief. See Kendrick, 220 F.3d at 1226, 1230. “[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlaw fully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 . . . (2000).
Bufford, 425 F. Supp. 2d at 1248-49 (alterations added to case citations).
Here, Boeing does not dispute that M r. Bufford established a prima face
case of racial discrimination based on his demotion to a non-management
position. Likewise, M r. Bufford does not dispute that Boeing articulated a
legitimate, nondiscriminatory reason for the demotion. Accordingly, we will
focus exclusively on the issue of pretext, and the summary judgment issue in “this
case hinges upon whether [M r. Bufford] has put forth sufficient evidence
establishing a dispute of fact as to whether [Boeing’s] stated reason for [demoting
him] was pretextual.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125
(10th Cir. 2005).
-5- “Under Tenth Circuit precedent, pretext may be shown by such w eaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unw orthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Id. Thus, “[a]
plaintiff can make a showing of pretext with evidence that the defendant’s stated
reason for [taking an employment action] was false.” Id. (quotation omitted). In
analyzing the issue of pretext, however, we must “look at the facts as they appear
to the person making the decision to [take the employment action].” Kendrick,
220 F.3d at 1231. In addition, we have recognized that “a mistaken belief can be
a legitimate reason for an employment decision and is not necessarily pretextual.”
Id. (quotation omitted). As we have explained, “[t]he reason for this rule is plain:
our role is to prevent intentional discriminatory hiring practices, not to act as a
‘super personnel department,’ second guessing employers’ honestly held (even if
erroneous) business judgments.” Young v. Dillon Companies, Inc., 468 F.3d
1243, 1250 (10th Cir. 2006).
D. Analysis.
In his opening brief, M r. Bufford summarizes his arguments as to why the
district court’s grant of summary judgment to Boeing w as improper as follow s:
Bufford presented four key pieces of evidence that should have precluded the entry of summary judgment: (1) Bufford’s conversation with Peterson in which Peterson revealed that despite the official
-6- reason being radio use, the real reason for demotion was that Peterson was feeling pressure to demote Bufford to silence critics that thought he had been to lenient on Bufford because of his race; (2) employees’ demonstrated hostility because they perceived Peterson did not sufficiently punish a fellow African American; (3) the dissemination of information concerning the Restroom Incident in violation of Boeing’s policy to the contrary; and (4) that Peterson’s explanation for the demotion lacked credibility when viewed in context and considering that no other manager has ever been disciplined for insufficient training on radio use.
Aplt. Opening Br. at 8. Having conducted a de novo review of the summary
judgment record that was before the district court, and having viewed that record
in the light most favorable to M r. Bufford, we conclude that the evidence cited by
M r. Bufford is insufficient to create a genuine issue of material fact for trial on
the issue of pretext.
W ith regard to the conversation that M r. Bufford alleges he had with
Peterson on the day he was demoted, M r. Bufford testified about the conversation
at his deposition. According to M r. Bufford, during the conversation, Peterson
informed M r. Bufford about statements that had been made to him by two of his
superiors, Jim Urso and Kerry Crisp. M r. Bufford’s deposition testimony was as
follow s:
Q Let’s talk about the second [Corrective Action M emo] and the demotion.
A Okay.
Q W ho is it that you believe made the decision?
A Harold Peterson.
-7- Q He’s the one who made that decision, just him?
A Yeah.
Q Okay. Do you believe that decision – do you believe that M r. Peterson was motivated to make that decision because of your race?
A Yes.
Q W hy do you believe that?
A Because of all the pressure and all the things I mentioned happened in the first issuance of the [Corrective A ction M emo for the restroom incident], that in retaliation he made this decision because he’s A frican A merican and Jim Urso and Kerry Crisp, H – head of H R, had had conversations and laughed at [Peterson] about it and even made comments to the effect, Kerry Crisp told Jim Urso that [Peterson] had a chance to fire me and he w as chicken, while I was gone.
Q Okay. How do you know about that conversation?
A Harold Peterson told me.
Q Okay. W hen did M r. Peterson tell you that?
A W hen he issued [the second Corrective Action M emo related to the radio use issue].
....
Q All right. Tell me again exactly what [Peterson] said to the best you can remember it.
A He told me that, in fact, that Kerry Crisp, my mentor, had told Jim Urso that [Peterson] was chicken shit and he had a chance to fire me and didn’t do it.
Q W hat was M r. Peterson’s source of that information?
-8- A Jim Urso.
Q So M r. Peterson was telling you what M r. Urso told him that Kerry Crisp had told him?
Q Okay.
A Because M r. Peterson was saying that they wanted to fire me, is what they wanted to do, and based on what. Again, retaliation from the Clara Baker deal, the bathroom incident. So all those things go back to the discrimination, retaliation for whatever reason. And I’m saying because I’m black and I am the – one of the few in his organization and they sens – sensationalized this little incident into being a fabricated mess.
Q W hich incident, the restroom incident?
A The restroom incident, yes.
Aplt. A pp. at 99-100 (Bufford Depo. at 192-95).
W e agree with the district court that, even if true and fully admissible from
an evidentiary standpoint, M r. Bufford’s conversation with Peterson falls well
short of establishing a basis for a jury to find direct evidence of racial
discrimination. M ost importantly, “[d]irect evidence demonstrates on its face that
the employment decision was reached for discriminatory reasons,” Danville v.
Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002), and there is not a single
reference to M r. Bufford’s race in any of the statements that Peterson, Urso, and
Crisp allegedly made. Instead, the only references to race were made by
M r. Bufford himself, and it is well established that an employee’s “subjective
-9- belief of discrimination is not sufficient to preclude summary judgment.”
Aramburu v. The Boeing Co., 112 F.3d 1398, 1408 n.7 (10th Cir. 1997).
W e also agree with the district court that M r. Bufford’s conversation with
Peterson is insufficient to create a genuine issue of material fact for trial on the
question of pretext. We disagree with the district court’s reasoning on this point,
however.
As set forth in its memorandum and order, the district court concluded that
the alleged conversation with Peterson was insufficient to create a jury question
on the issue of pretext because “this evidence is inconclusive as to whether race
was a motivating factor [in M r. Bufford’s demotion]. Plaintiff’s own testimony
appears to indicate that it was the nature of the bathroom incident and the search
of Clara Baker that motivated the demotion, rather than his race.” Bufford, 425
F. Supp. 2d at 1250. This reasoning is faulty because M r. Bufford is not required
to put forth evidence showing that race was a motivating factor in his demotion to
survive summary judgment on the question of pretext. See Bryant, 432 F.3d at
1125. That said, we do not believe a rational jury could conclude, based on
M r. Bufford’s alleged conversation with Peterson, that Peterson’s proffered
legitimate, nondiscriminatory reason for demoting M r. Bufford to a
non-management position (i.e., the radio use issue) was false. At best, the
conversation with Peterson establishes only that Peterson had been criticized by
his superiors for failing to fire M r. Bufford due to his prior conduct related to the
-10- bathroom incident, and we do not believe this evidence casts any probative doubt
on Peterson’s good faith in the context of the radio use issue.
M oreover, even if we were to conclude that the conversation with Peterson
could be construed as calling into question the veracity of the proffered reason for
M r. Bufford’s demotion, this evidence “create[s] only a weak issue of fact as to
whether [Peterson’s] reason was untrue and there was abundant and
uncontroverted independent evidence that no [racial] discrimination had
occurred.” Reeves, 530 U.S. at 148. As a result, despite the arguable factual
issue, we believe that “no rational factfinder could conclude that the [demotion]
was discriminatory,” id., and Boeing w as therefore “entitled to judgment as a
matter of law” on the question of pretext, id. 2
W e also reject M r. Bufford’s argument that summary judgment in favor of
Boeing was improper because there is evidence showing that: (1) other employees
at the W ichita facility were upset because they believed that Peterson did not
sufficiently punish a fellow African-American; and (2) information concerning
the restroom incident was disseminated throughout Boeing’s W ichita facility. See
Aplt. Opening Br. at 8. First, although M r. Bufford testified at his deposition that
2 In Reeves, the Supreme Court was addressing motions for judgment as a matter of law under Fed. R. Civ. P. 50. Reeves, 530 U.S. at 148. The Court’s reasoning is equally applicable here, however, because the standard for sum mary judgment under Fed. R. Civ. P. 56(c) “mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a).” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
-11- he found “signs” in his work area “talking about [how] Harold Peterson and
Norvell Bufford, because they’re black, don’t have to comply with the Boeing
code of conduct,” A plt. App. at 100 (Bufford Depo. at 196), this evidence is
insufficient to establish pretext with respect to Peterson’s demotion decision. “A
plaintiff must demonstrate a nexus exists between the allegedly discriminatory
statement[s] and the company’s [employment] decision,” Stone v. Autoliv ASP,
Inc., 210 F.3d 1132, 1140 (10th Cir. 2000), and M r. Bufford has failed to
establish such a nexus here. In fact, there is no evidence in the record showing
that Peterson was aware of the signs at the time he demoted M r. Bufford.
Further, “[discriminatory] comments by non-decisionmakers are not material in
showing [Boeing’s] action was based on . . . discrimination.” Cone v. Longm ont
United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994).
Second, M r. Bufford claims that “[r]umors of the Restroom Incident
flooded the workplace despite Boeing’s policy that the matter be confidential.”
Aplt. Opening Br. at 4. According to M r. Bufford, the “rumors . . . detail[ed]
Peterson’s alleged lenience towards Bufford on account of his race,” id. at 19, and
he argues that “[t]his evidence of hostility calls into question Peterson’s stated
reasons for the demotion,” id. This argument is without merit, however, because,
while several Boeing employees testified at their depositions that they heard
rumors in the workplace about the restroom incident, none of the witnesses
-12- testified that the rumors had anything to do with M r. Bufford’s race. See Aplt.
App. at 259 (M oroney Depo. at 64-65); id. at 115 (Bosw ell Depo. at 99); id.
at 155 (U rso Depo. at 96-97). In addition, while M r. Bufford testified at his
deposition that an employee who worked with him in the transportation
department “had made racial comments about [him] and Peterson and that they
were going to get these black boys and they were going to make sure that
something happened, because we were just going to sw eep [the restroom incident]
under the rug,” id. at 98 (Bufford Depo. at 184-85), there is no evidence in the
record showing any sort of nexus between this alleged statement and Peterson’s
demotion decision.
Finally, we decline to address M r. Bufford’s conclusory assertion “that
Peterson’s explanation for the demotion lacked credibility . . . considering that no
other manager has ever been disciplined for insufficient training on radio use.”
Aplt. Opening Br. at 8. M r. Bufford has failed to cite to the parts of the record
that support this allegation, and his entire argument consists of a single sentence
in his opening brief. Id. He has therefore failed to adequately raise this issue for
purposes of this appeal. See Adler v. Wal-M art Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”); Wilburn v. M id-South Health Dev., Inc., 343 F.3d 1274, 1281
(10th Cir. 2003) (“W e . . . will not consider issues that are raised on appeal but
not adequately addressed.”); Fed. R. App. P. 28(a)(9)(A) (“[A ppellant’s]
-13- argument . . . must contain . . . appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies.”).
The judgment of the district court is AFFIRMED.
Entered for the Court
Deanell R. Tacha Chief Circuit Judge
-14-