FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 9, 2020 _________________________________ Christopher M. Wolpert Clerk of Court WILLIAM DEERE,
Plaintiff - Appellant,
v. No. 19-1069 (D.C. No. 1:17-CV-01173-RM-KLM) XPO LOGISTICS FREIGHT, INC.; XPO (D. Colo.) LOGISTICS, INC.,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and EID, Circuit Judges. _________________________________
William Deere appeals the grant of summary judgment in favor of XPO
Logistics Freight, Inc. and XPO Logistics, Inc. (collectively, XPO) on his claims of
sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964
(Title VII), 42 U.S.C. §§ 2000e to 2000e-17, and age discrimination and retaliation
under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.
§§ 621-634. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has 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 therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I. BACKGROUND
On September 9, 2015, XPO announced plans to acquire Conway Freight, Inc.
(Conway). In preparation for the acquisition, XPO, which “expected redundancies in
the sales function,” “engaged an outside consultant to evaluate the profitability of
individual Account Executives for a planned reduction-in-force” (RIF). Aplt. App.
Vol. I at 137. Conway had fifteen account executives in the Denver region, and they
“had the same duties and were answerable to the same chain of command within the
same personnel structure.” Aplt. App. Vol. III at 661. XPO did not provide its
consultant, McKinsey & Company (McKinsey), with demographic information, such
as age or gender, for the account executives. McKinsey recommended using
year-over-year profit as the metric to determine which account executives in the
Denver region to terminate. Greg Ritter, XPO’s Chief Customer Officer, agreed with
the recommendation.
Upon closing of its acquisition of Conway on October 30, 2015, XPO “cut
10% of the [total] sales force, representing 36 people.” Aplt. App. Vol. I at 106. In
the Denver region, XPO terminated three account executives—Mr. Deere, who had
the lowest year-over-year profit growth; Debbie James, who had the second lowest;
and William Diaz, who had the third lowest. At the time, Mr. Deere was 45 years
old, Ms. James was 42, and Mr. Diaz was 33. Prior to the RIF, twelve of the fifteen
account executives were male, and eleven were over 40. After the RIF, ten of the
twelve account executives were male; nine were over 40, including one over 70 and
two over 60; and the average age increased from 46.2 to 47.75.
2 Shortly after the RIF, Joe Engle, one of the remaining account executives in
the Denver region, left the company. XPO posted that position on November 25.
XPO’s recruiting coordinators, who are tasked with screening applications, typically
stop moving applicants forward once there are fifteen applications pending for the
hiring manager’s review. In this case, they forwarded sixteen applications, which
were received between November 30 and December 15. All applications received
after December 15 were rejected without being reviewed by Steve Bernier, XPO’s
Director of Sales and the hiring manager for this position. Mr. Deere applied on
December 17, by which point Mr. Bernier had already interviewed multiple
candidates and had twice interviewed 51-year-old Melody McGinnis.
While Mr. Bernier was considering applicants for Mr. Engle’s former position,
but before Mr. Deere applied, Mr. Deere’s counsel sent an email on December 7 to
Jennifer Warner, XPO’s Vice President and General Counsel: (1) requesting an
opportunity “to conduct an interview with the person or persons who selected
[Mr. Deere] for termination instead of the significantly younger newcomer in the
same unit”; and (2) alleging that “age discrimination was involved in [Mr. Deere’s]
firing” and that “[t]his appears to be a rather straightforward breach of the federal
Age Discrimination in Employment Act.” Aplee. Supp. App. Vol. II at 425.1
1 Mr. Deere’s counsel attempted to include Mr. Bernier and Kevin Huner, XPO’s Director of Human Resources, but XPO asserted they did not receive the email. Mr. Bernier testified he was unaware of the email, and the email address for Mr. Huner misspelled his name as “Hunter.” Aplt. App. Vol. I at 134. On appeal, Mr. Deere continues to spell the name “Hunter.” E.g., Aplt. Opening Br. at 34, 42. 3 On December 9, Mr. Bernier decided he would offer the job to Ms. McGinnis.
After he sought and obtained approval from Human Resources, and after she met
with two more account executives, Mr. Bernier offered her the job on December 21,
and she accepted. The position entailed two territories, including a portion of
Mr. Deere’s former territory, which had been split and distributed among other
account executives after his termination. Mr. Bernier had previously asked
management to consider re-hiring Mr. Deere but did not “think of” him for this job,
id. at 389.
A few weeks later, Mr. Bernier “determin[ed] that business had suffered from
the [RIF] and that [XPO] needed to add another Account Executive to the Region.”
Aplt. App. Vol. I at 83; see also id. at 99 (“[XPO] realized . . . that they had made a
mistake and that they had cut too deep and needed to . . . bring additional salespeople
on board.”). XPO re-created Mr. Deere’s former position, with a territory largely
mirroring his former territory. After conducting interviews, Mr. Bernier offered the
job to 46-year-old David Gerdes, who accepted on January 19. Mr. Deere did not
apply for this job, and Mr. Bernier was not aware he was interested in the position.2
In 2017, Mr. Deere brought an action against XPO based on his termination as
part of the RIF and XPO’s subsequent failure to rehire him, raising claims of sex and
2 Mr. Deere claims XPO never posted this position and bypassed its standard hiring procedures. But Mr. Bernier testified the position was, in fact, posted, see Aplt. App. Vol. I at 58, whereas Mr. Deere and Ms. McGinnis testified only that they did not recall seeing the position posted, see Aplee. Supp. App. Vol. II at 358, 405. 4 age discrimination and retaliation under Title VII and the ADEA. The district court
granted XPO’s motion for summary judgment. Mr. Deere timely appealed.
II. DISCUSSION
Mr. Deere contends the district court erred in denying his motion to strike
XPO’s evidentiary submission and in granting summary judgment in favor of XPO.
A. Mr. Deere’s Motion to Strike
First, Mr. Deere argues XPO violated Fed. R. Civ. P. 26(a) by not disclosing
the identity of: (1) Cindy Anderson, XPO’s Human Resources Manager; (2) Terry
Riordan, XPO’s Director of Talent Management and Recruiting; and (3) McKinsey,
which he claims was “an undisclosed outside consultant who was a co-determiner
that plaintiff should be fired,” Aplt. Opening Br. at 18 (emphasis omitted). He
contends any evidence from Ms. Anderson, Mr. Riordan, and McKinsey should have
been stricken under Fed. R. Civ. P. 37(c)(1). We disagree.
1. Standard of Review
“We review a district court’s evidentiary rulings at the summary judgment
stage for abuse of discretion.” Argo v. Blue Cross & Blue Shield of Kan., Inc.,
452 F.3d 1193, 1199 (10th Cir. 2006). A court abuses its discretion when it “clearly
err[s] or venture[s] beyond the limits of permissible choice.” Hancock v. AT&T Co.,
701 F.3d 1248, 1262 (10th Cir. 2012) (internal quotation marks omitted).
5 2. Analysis
Mr. Deere bases his argument regarding Ms. Anderson, Mr. Riordan, and
McKinsey entirely on XPO’s failure to disclose their identities.3 Specifically, he
contends that XPO failed to disclose their identities under Fed. R. Civ. P. 26(a) and
that any averments based on information from Ms. Anderson, Mr. Riordan, and
McKinsey should have been excluded under Fed. R. Civ. P. 37(c)(1).
Subject to certain exceptions, Fed. R. Civ. P. 26(a) requires a party to provide
other parties with an “Initial Disclosure” containing, inter alia, the identity “of each
individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). As
a sanction for violating this rule, “the party is not allowed to use that information or
witness to supply evidence on a motion, . . . unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1) (emphasis added). Courts have
discretion in assessing harmlessness and should consider whether: (1) the opposing
party is prejudiced; (2) the prejudice can be cured; (3) the proceedings would be
disrupted; and (4) the party acted in bad faith. See Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999).
3 Mr. Deere also raised hearsay arguments and objected to other submissions, which the district court rejected. He has not challenged those rulings on appeal. See Burke v. Regalado, 935 F.3d 960, 995 (10th Cir. 2019) (“The failure to raise an issue in an opening brief waives that issue.” (internal quotation marks omitted)). 6 a. Ms. Anderson and Mr. Riordan
XPO included with its summary-judgment motion several supporting
documents, including: (1) an affidavit from Ms. Anderson providing demographic
information related to the RIF and the account executives hired thereafter; and (2) an
affidavit from Mr. Riordan describing the application procedures and timelines for
the hiring of Ms. McGinnis and Mr. Gerdes. Mr. Deere objected on the ground that
Ms. Anderson and Mr. Riordan had not been disclosed under Fed. R. Civ. P. 26(a).
XPO agreed they had not been disclosed but (1) explained it included the affidavits
because XPO’s Regional Director of Human Resources Donna Lenahan, who was
disclosed, was unavailable when the motion was filed; and (2) provided a declaration
from Ms. Lenahan certifying the same factual statements in the disputed affidavits.
The district court found the factors for harmlessness “weigh[ed] heavily
against striking” the affidavits. Aplt. App. Vol. III at 655. First, Mr. Deere did not
move to strike the portion of Ms. Lenahan’s declaration that “contain[ed] the
identical factual content” as provided in the affidavits. Id. As the court properly
found, “[Mr.] Deere cannot be prejudiced or disrupted by what he does not dispute,
and he is apparently satisfied that XPO cured his objection by providing the same
information from another corporate source.” Id. The court also found no bad faith,
noting that “XPO offered to have [Ms.] Lenahan provide the statements previously
filed through [Ms.] Anderson and [Mr.] Riordan before [Mr.] Deere responded to the
[summary-judgment] motion” and that he rejected “this olive branch.” Id. & n.6.
7 Mr. Deere offers no argument on appeal explaining how the court erred in its
analysis. He quotes Fed. R. Civ. P. 37(c)(1) and cites Woodworker’s Supply but does
not actually address the factors weighed by the district court. “This court . . . will not
craft a party’s arguments for him.” Perry v. Woodward, 199 F.3d 1126, 1141 n.13
(10th Cir. 1999). Accordingly, Mr. Deere has not shown that the district court
abused its discretion.
b. McKinsey
Next, Mr. Deere contends XPO failed to timely disclose McKinsey’s identity
as the outside consultant. But he does not identify any specific document that the
court erred in considering. Even if we assume Mr. Deere is contesting the refusal to
strike submissions from Mr. Ritter, who worked with McKinsey on the RIF and
described McKinsey’s role, the court did not abuse its discretion.
Through Mr. Ritter’s declaration submitted with XPO’s reply, XPO:
(1) disclosed for the first time McKinsey was the outside consultant; and (2) clarified
that Mr. Ritter was the decision-maker, whereas XPO’s discovery responses and
Mr. Ritter’s prior affidavit suggested, at least according to Mr. Deere, that the
consultant was a “co-decision-maker,” Aplt. Opening Br. at 20 (emphasis omitted).
Mr. Deere, thus, insists that XPO “hid[] the most important witness in the entire
case,” id. at 22, and that “the trial court pooh-poohed the glaring nondisclosure,”
id. at 21.
Notwithstanding Mr. Deere’s “hyperbolic name-calling,” Aplt. App. Vol. III at
657, the district court found no impropriety. Although Mr. Deere’s argument was
8 “not clearly presented,” the district court interpreted his motion to strike as seeking
the exclusion of sections of Mr. Ritter’s affidavit and declaration “on the bases of
discovery violations, hearsay, and internally inconsistent representations by XPO.”
Id. at 658. On appeal, however, Mr. Deere appears to base his argument, as with
Ms. Anderson and Mr. Riordan, on Fed. R. Civ. P. 37(c)(1). Nevertheless, the
district court’s analysis applies with equal force to Mr. Deere’s current argument.
First, the court properly found McKinsey’s involvement “immaterial . . .
because XPO concedes that it terminated [Mr.] Deere, and it is XPO’s animus (or
lack of it)—not McKinsey’s—that is being tested in this case.” Id. The court also
correctly concluded XPO’s discovery responses and Mr. Ritter’s statements could be
harmonized. Taken together, they show that XPO retained McKinsey to assist in the
RIF, that Mr. Ritter and McKinsey determined who should be terminated in the RIF,
and that Mr. Ritter accepted and implemented McKinsey’s recommendations.
Moreover, the court properly noted that to the extent Mr. Deere “lost the
opportunity to glean discovery from McKinsey, his troubles [were] self-inflicted.”
Id. at 659. Although he was “aware of the ‘outside consultant’ since at least 2017,
many months before the discovery deadline on April 1, 2018,” he never “attempted to
compel a more specific interrogatory response from XPO to supply” the name of the
consultant. Id. In July, after the discovery deadline but before filing his opposition
to summary judgment, Mr. Deere emailed XPO’s counsel and asked whether they had
disclosed the consultant’s name. But even then, he did not ask for the name, and
9 XPO responded that disclosure was not required because it did not intend to “‘use’”
the consultant “within the meaning of Rule 26.” Id. at 618.4
Assuming without deciding that McKinsey should have been disclosed under
Fed. R. Civ. P. 26(a), there was no prejudice, disruption, or bad faith to warrant
exclusion under Fed. R. Civ. P. 37(c)(1). See Woodworker’s Supply, 170 F.3d at 993.
The district court did not abuse its discretion in denying Mr. Deere’s motion to strike.
B. XPO’s Motion for Summary Judgment
Next, Mr. Deere contends the district court erred in granting summary
judgment to XPO on his claims of age discrimination regarding his termination and
sex discrimination and retaliation with XPO’s failure to rehire him.5 We disagree.
This court “review[s] summary judgment decisions de novo,” “view[ing] the
evidence and draw[ing] reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019)
4 Mr. Deere insists he would have “take[n] depositions from key witnesses at McKinsey” if only he had known it was the consultant. Aplt. Opening Br. at 21. But he never even sought to depose Mr. Ritter, who was the actual decision-maker. 5 The court interpreted the complaint as stating three claims: (1) “ADEA unlawful termination”; (2) “Title VII failure-to-hire”; and (3) Title VII retaliation premised on XPO’s failure to re-hire him. Aplt. App. Vol. III at 667. Mr. Deere does not argue age discrimination with respect to XPO’s failure to rehire him—and for good reason, since both Ms. McGinnis and Mr. Gerdes were older than him. This claim, therefore, is waived. See Burke, 935 F.3d at 995. He argues the merits of “his claim of sex discrimination as to his termination.” Aplt. Opening Br. at 25 (emphasis omitted). But he has not challenged the court’s determination that he did not plead such a claim and only pleaded age discrimination in his termination. We, therefore, decline to address his Title VII termination claim. See Burke, 935 F.3d at 995. 10 (internal quotation marks omitted). Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a). “A fact is material
only if it might affect the outcome,” and a dispute “is genuine only if the evidence is
such that a reasonable jury could return a verdict for the nonmov[ant].” Bennett v.
Windstream Commc’ns, Inc., 792 F.3d 1261, 1265-66 (10th Cir. 2015) (citations and
quotations omitted). If the movant shows there is no genuine issue of material fact,
the nonmovant then must “set forth specific facts from which a rational trier of fact
could find for the nonmovant.” Talley, 923 F.3d at 893-94 (internal quotation marks
omitted). A nonmovant cannot rely on “conclusory allegations,” Salehpoor v.
Shahinpoor, 358 F.3d 782, 786 (10th Cir. 2004), or “mere speculation,” Bones v.
Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
2. ADEA Discrimination Claim
Mr. Deere contends the district court erred in granting summary judgment to
XPO on his claim of age discrimination with respect to his termination. He contends
he was terminated because of his age whereas younger employees were retained.
Under the ADEA, an employer may not “discharge any individual . . . because
of such individual’s age.” 29 U.S.C. § 623(a)(1). We apply the burden-shifting
framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
Mr. Deere’s ADEA claim. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165
(10th Cir. 1998).
11 First, an employee alleging age discrimination in a RIF termination must
show: (1) he is at least 40 years old, see 29 U.S.C. § 631(a); (2) he “was doing
satisfactory work”; (3) he “was discharged despite the adequacy of [his] work”; and
(4) “there is some evidence the employer intended to discriminate against [him] in
reaching its RIF decision.” Beaird, 145 F.3d at 1165. The fourth element may be
satisfied by “[e]vidence that an employer fired qualified older employees but retained
younger ones in similar positions.” Id. at 1166 (internal quotation marks omitted).
Once a plaintiff establishes a prima facie case of age discrimination, the
defendant may rebut the presumption of discrimination “by asserting a facially
nondiscriminatory reason for the employee’s termination.” Id. at 1165. The burden
then shifts to the plaintiff to “present evidence that that proffered reason was
pretextual.” Id. (internal quotation marks and citation omitted). A plaintiff may
establish pretext by showing “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.”
Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (per curiam)
(internal quotation marks omitted). In RIF cases, a plaintiff can show pretext by
showing: “(1) his own termination does not accord with the RIF criteria, (2) [the] RIF
criteria were deliberately falsified or manipulated in order to terminate him, or
(3) that the RIF generally was pretextual.” Pippin v. Burlington Res. Oil & Gas Co.,
440 F.3d 1186, 1193 (10th Cir. 2006).
12 Assuming without deciding that Mr. Deere established a prima facie case, he
has not shown pretext. First, he offers no argument that his termination did not
accord with the RIF criteria or that the criteria were falsified or manipulated. He also
has not shown the RIF was “so idiosyncratic or questionable that a factfinder could
reasonably find that [it was a] pretext for illegal discrimination.” Sanders v. Sw. Bell
Tel., L.P., 544 F.3d 1101, 1106 (10th Cir. 2008) (internal quotation marks omitted).
Instead, he claims “there was no true RIF” because XPO added Ms. McGinnis
and Mr. Gerdes and his position and territory were not eliminated, contrary to what
XPO told him. Aplt. Opening Br. at 14. But “the test for position elimination is not
whether the responsibilities were still performed, but . . . whether the responsibilities
still constituted a single, distinct position.” Furr v. Seagate Tech., Inc., 82 F.3d 980,
988 (10th Cir. 1996). As in Furr, Mr. Deere’s position was eliminated even though
his territory and “responsibilities were divided up” among retained employees. Id.
Moreover, Ms. McGinnis replaced Mr. Engle, not Mr. Deere, contrary to his
assertion that “[Ms.] McGinnis got plaintiff’s former job fast, if not real fast.” Aplt.
Opening Br. at 28 (emphasis omitted). And although Mr. Gerdes replaced Mr. Deere,
that occurred only after XPO realized it cut too deeply with the RIF and needed to
recreate Mr. Deere’s position. XPO may have miscalculated with its RIF, but
Mr. Deere has not shown XPO did not honestly expect redundancies and believe the
RIF was necessary. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970-71
(10th Cir. 2017) (noting that “[e]vidence that the employer should not have made the
termination decision—for example, that the employer was mistaken or used poor
13 business judgment—is not sufficient to show” pretext and that “the relevant inquiry
is whether the employer honestly believed those reasons and acted in good faith upon
those beliefs” (internal quotation marks and citations omitted)).
Mr. Deere also does not dispute that year-over-year profit growth was a non-
discriminatory metric for the RIF or that he ranked last in that metric. Instead, he
insists he ranked higher in other metrics than several non-RIFed employees,
including two younger account executives. He, thus, challenges XPO’s use of “only
a certain single sales statistic to support its firing of plaintiff.” Aplt. Opening Br. at
43. But an employer may “conduct its RIF according to its preferred criteria of
performance . . . and we will not disturb that exercise of defendant’s business
judgment.” Beaird, 145 F.3d at 1169. In Beaird, we rejected a claim that different
criteria would have better reflected performance and that the plaintiff “would have
been retained if different RIF criteria had been used.” Id. “The ADEA does not
require [an employer’s] business decisions to be wise—just nondiscriminatory.” Id.
Finally, the other RIFed employees were younger than Mr. Deere, including
one of the youngest account executives. Of the twelve account executives after the
RIF, nine were over 40, including three over 60. And the percentage over 40
increased, from 73% (11 out of 15) to 75% (9 out of 12). The average age of the
account executives also increased, from 46.2 to 47.75. Further, a greater percentage
of account executives under 40 were terminated—25% (1 out of 4) compared to 18%
14 (2 out of 11) of those over 40.6 Ultimately, while the metric was age-neutral, the
account executives over 40 fared better in the RIF than their younger counterparts.
Because Mr. Deere has not shown pretext, the court properly granted summary
judgment in favor of XPO on his ADEA discrimination claim.
3. Title VII Discrimination and Retaliation Claims
Next, Mr. Deere contends the court erred in granting summary judgment to
XPO on his claims of sex discrimination and retaliation under Title VII. See
42 U.S.C. § 2000e-2(a)(1) (stating employers may not “fail or refuse to hire” an
applicant “because of such individual’s . . . sex”). As discussed above, Mr. Deere’s
attorney sent an email to XPO on December 7, 2015, alleging discrimination, and two
days later, Mr. Bernier decided to offer Mr. Engle’s former job to Ms. McGinnis.
Mr. Deere claims XPO both retaliated against him and engaged in sex discrimination
when it “failed to rehire him back into his former job and territory” and, instead,
hired Ms. McGinnis. Aplt. Opening Br. at 27.
As with his ADEA claim, we evaluate Mr. Deere’s Title VII claims under the
McDonnell-Douglas burden-shifting framework. See Singh v. Cordle, 936 F.3d
1022, 1037 (10th Cir. 2019) (Title VII discrimination); Hansen v. SkyWest Airlines,
844 F.3d 914, 925 (10th Cir. 2016) (retaliation). Specifically, to satisfy a prima facie
case of Title VII discrimination based on a failure to rehire, Mr. Deere must show:
6 “[S]tatistical evidence on its own will rarely suffice to show pretext.” Luster v. Vilsack, 667 F.3d 1089, 1094 (10th Cir. 2011) (internal quotation marks omitted). But here, the statistics only further highlight the absence of age discrimination. 15 (1) he “belongs to a protected class”; (2) he “applied and was qualified for a job for
which the employer was seeking applicants”; (3) he was rejected “despite being
qualified”; and (4) “the position remained open and the employer continued to seek
applicants from persons of [his] qualifications” after his rejection. Fischer v.
Forestwood Co., 525 F.3d 972, 982-83 (10th Cir. 2008) (internal quotation marks
omitted). To establish a prima facie case of Title VII retaliation, Mr. Deere must
show “(1) []he engaged in protected opposition to Title VII discrimination; (2) []he
suffered an adverse employment action; and (3) there is a causal connection between
the protected activity and the adverse employment action.” Fye v. Okla. Corp.
Comm’n, 516 F.3d 1217, 1227 (10th Cir. 2008) (internal quotation marks omitted).
If he satisfies his burden of showing a prima facie case of discrimination or
retaliation, the burden shifts to XPO to show a legitimate, non-discriminatory reason
for the disputed action and then back to Mr. Deere to show that the reason was
pretextual. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166-67
(10th Cir. 2007).
The court determined the Title VII discrimination and retaliation claims are
“best viewed together because the only alleged act of retaliation is XPO’s failure to
re-hire [Mr.] Deere.” Id. at 668 n.24; see also Aplt. App. Vol. III at 667 (“The only
act of retaliation conceivably alleged is XPO’s failure to rehire [Mr.] Deere into the
same or similar jobs.” (internal quotation marks and alterations omitted)). Mr. Deere
has not argued otherwise, so we also will treat these claims together.
16 Assuming without deciding that Mr. Deere established a prima facie case of
Title VII discrimination and retaliation, we agree with the district court that he has
not shown pretext. Ms. McGinnis was qualified for the position and had been
recommended by other XPO employees. Mr. Deere concedes that Mr. Bernier
selected her for the job on December 9, 2015, see Aplt. Opening Br. at 28, 35,7 and
that he did not apply until eight days later on December 17. It also is undisputed that
Mr. Deere’s application was not forwarded to Mr. Bernier and that Mr. Bernier did
not see his application. Additionally, Mr. Deere admitted at his deposition that he
did not believe Mr. Bernier discriminated against him. Mr. Bernier even wrote him a
positive recommendation letter. Mr. Deere reiterates his complaints with the RIF and
suggests it was a pretext to replace him with Ms. McGinnis. But, as discussed above,
his challenges to the RIF are without merit, and “mere conjecture that an employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for
denial of summary judgment.” Santana v. City & Cty. of Denver, 488 F.3d 860,
864-65 (10th Cir. 2007) (internal quotation marks omitted). Finally, belying a claim
of sex discrimination is that less than a month after Ms. McGinnis was hired, the very
next account executive position was offered to a male, Mr. Gerdes.
Mr. Deere has not shown “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [XPO]’s proffered legitimate reasons for” hiring
7 In his reply brief, Mr. Deere questions the accuracy of this date. See Aplt. Reply Br. at 10. But a party generally “waives . . . arguments raised for the first time in a reply brief,” and “[w]e see no reason to depart from that rule here.” Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (internal quotation marks omitted). 17 Ms. McGinnis instead of Mr. Deere “that a reasonable factfinder could rationally find
them unworthy of credence.” Jaramillo, 427 F.3d at 1308. Because Mr. Deere has
not shown pretext, the district court properly granted summary judgment in favor of
XPO on his Title VII discrimination and retaliation claims.
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Carolyn B. McHugh Circuit Judge