Mann v. XPO Logistics Freight
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Opinion
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ANTHONY CRAIG MANN; DANA MOYE; KATINA MCGEE,
Plaintiffs - Appellants.
v. No. 19-3085 (D.C. No. 2:16-CV-02196-CM) XPO LOGISTICS FREIGHT, INC., f/k/a (D. Kan.) Con-Way Transportation Services, Inc.; f/k/a Con-Way Freight, Inc.,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. _________________________________
Appellants Anthony Mann, Dana Moye, and Katina McGee contend that their
former employer, Appellee XPO Logistics Freight, Inc., fired them for discriminatory
and retaliatory reasons. The federal Kansas district court concluded that the
Appellants had failed to raise a genuine issue of material fact that XPO’s proffered
legitimate, nondiscriminatory reasons for their terminations were pretext for
discrimination or retaliation. So the court granted XPO’s motion for summary
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. judgment and closed the case. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
I. Factual Background
XPO1 is a company providing logistics and transportation services throughout
the United States—including Kansas City, Kansas, the location of this dispute. Mann,
Moye, and McGee all worked for XPO at its Kansas City facility as driver sales
representatives (DSRs). DSRs perform various duties, including transporting
customer goods in XPO vehicles, inspecting XPO vehicles, and loading and
unloading freight on XPO’s loading dock. DSRs must maintain a commercial driver’s
license (CDL). For Kansas City-based DSRs, three runs are available: (1) local
pickup and delivery in the Kansas City area; (2) “line haul,” the transport of freight
from Kansas City to another XPO facility and returning the same day (which could
mean the next calendar day, if the driver departed in the evening); and (3) “extended
service line,” the transport of freight over a longer distance in teams of two—with
one DSR driving to the destination and the other driving back. The trucks used for
extended-service-line runs have a sleeper cab with a bed for the non-driving DSR’s
use. Management sets the DSRs’ schedules, with no set shift start or end times,
because of the unpredictable and changing nature of clients’ needs. So DSRs are
1 XPO was known as Con-Way Transportation Services, Inc., or Con-Way Freight, Inc., during part of the Appellants’ employment. We simply refer to XPO throughout. 2 expected to have “[p]rompt, daily attendance at assigned work location.” Appellants’
App. vol. 10 at 2240.
DSRs report to freight-operations supervisors, who in turn report to freight-
operations managers. The supervisors and managers report to the service-center
manager who, for the time relevant to this litigation, was Mike Lewis at the Kansas
City facility. The personnel supervisor handles administrative personnel matters—
such as payroll, attendance, time-off requests, the job-selection-preference process,2
and the annual driver-records review—and also reports to the service-center manager.
Anita Sloan held this position in Kansas City for the relevant time period.
Human-resources generalists handle human-resources matters at the first level
and report to the area’s human-resources director, who oversees multiple facilities.
For the relevant time period, Maureen Mahr was the Kansas City facility’s generalist,
and Kevin Huner (the area director) supervised her. Mahr, like other generalists,
could discipline but could not terminate employees; instead, Mahr would make a
termination recommendation to Huner, who would make the final decision.
As the generalist, Mahr received employees’ complaints under XPO’s “Equal
Employment Opportunity” and “No Harassment or Discrimination in Employment”
policies (prohibiting unlawful discrimination, harassment, and retaliation).
2 This is a process in which DSRs provide the personnel supervisor their preferences for work categories and, for each category, preferred runs and start times. The personnel supervisor then compares the preferences with seniority: DSRs with more seniority get priority in job preferences. But this preference list only helps supervisors make assignments and does not guarantee what task a DSR may be assigned on a given day. 3 Employees could also call XPO’s alert line to make a complaint. Under Huner’s
oversight, Mahr would investigate the complaints and decide how to proceed.
A. Mann’s Termination
Mann, an African American man, began working as a DSR at XPO’s Kansas
City facility in August 2009. In 2015, he was working on the dock moving trailers
and connecting containers to trailers per his job preference.
On May 9, 2015, a coworker complained that Mann had been using his race to
harass other drivers and to safeguard his job. Then, on May 14, 2015, Mann mis-
hooked a trailer, which damaged XPO property and halted production. He later
received a letter of instruction as discipline for this incident (citing his poor work
performance in violation of XPO Policy 541).3 And on May 18, 2015, the director of
operations saw Mann twice using his cellphone while in the yard on work time, a
violation of XPO Policy 524,4 and reported it to the assistant service-center manager,
Bryan Bonifas. Later that day, Bonifas called Mann into a meeting with him and
3 Policy 541 is the “Employee Conduct” policy, which “provide[s] consistent and reasonable standards of employee conduct” in the form of a non-exclusive list “of unacceptable performance and behavior which may be subject to discipline up to and including termination.” App. vol. 14 at 3451. “Poor Work Performance” is listed and provides the following examples: “failure to work efficiently or to avoid repeated errors; carelessness and/or negligence in performing work; or failure to follow established work procedures.” Id. at 3451. 4 In pertinent part, XPO Policy 524 provides: “[U]nless otherwise approved by an authorized management representative, all personal telecommunication devices should not be in use while on duty or in work areas.” App. vol. 14 at 3237. 4 Mahr to discuss the inappropriate phone use and, in the middle of the meeting, Mann
answered his cellphone and held a conversation.
On May 28, 2015, Mahr and Bonifas met with Mann to issue letters of
instruction for the mis-hook incident and cellphone-policy violations, and to get his
statement responding to the May 9 employee complaint against him. But Mann
answered his cellphone again during this meeting and refused to provide a statement,
saying he had to leave work immediately. Mann told Mahr and Bonifas that he had
obtained permission to leave work early, but they determined that Mann had obtained
permission only from a supervisor and not from a freight-operations manager or
Bonifas as needed.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ANTHONY CRAIG MANN; DANA MOYE; KATINA MCGEE,
Plaintiffs - Appellants.
v. No. 19-3085 (D.C. No. 2:16-CV-02196-CM) XPO LOGISTICS FREIGHT, INC., f/k/a (D. Kan.) Con-Way Transportation Services, Inc.; f/k/a Con-Way Freight, Inc.,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. _________________________________
Appellants Anthony Mann, Dana Moye, and Katina McGee contend that their
former employer, Appellee XPO Logistics Freight, Inc., fired them for discriminatory
and retaliatory reasons. The federal Kansas district court concluded that the
Appellants had failed to raise a genuine issue of material fact that XPO’s proffered
legitimate, nondiscriminatory reasons for their terminations were pretext for
discrimination or retaliation. So the court granted XPO’s motion for summary
* 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. judgment and closed the case. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND
I. Factual Background
XPO1 is a company providing logistics and transportation services throughout
the United States—including Kansas City, Kansas, the location of this dispute. Mann,
Moye, and McGee all worked for XPO at its Kansas City facility as driver sales
representatives (DSRs). DSRs perform various duties, including transporting
customer goods in XPO vehicles, inspecting XPO vehicles, and loading and
unloading freight on XPO’s loading dock. DSRs must maintain a commercial driver’s
license (CDL). For Kansas City-based DSRs, three runs are available: (1) local
pickup and delivery in the Kansas City area; (2) “line haul,” the transport of freight
from Kansas City to another XPO facility and returning the same day (which could
mean the next calendar day, if the driver departed in the evening); and (3) “extended
service line,” the transport of freight over a longer distance in teams of two—with
one DSR driving to the destination and the other driving back. The trucks used for
extended-service-line runs have a sleeper cab with a bed for the non-driving DSR’s
use. Management sets the DSRs’ schedules, with no set shift start or end times,
because of the unpredictable and changing nature of clients’ needs. So DSRs are
1 XPO was known as Con-Way Transportation Services, Inc., or Con-Way Freight, Inc., during part of the Appellants’ employment. We simply refer to XPO throughout. 2 expected to have “[p]rompt, daily attendance at assigned work location.” Appellants’
App. vol. 10 at 2240.
DSRs report to freight-operations supervisors, who in turn report to freight-
operations managers. The supervisors and managers report to the service-center
manager who, for the time relevant to this litigation, was Mike Lewis at the Kansas
City facility. The personnel supervisor handles administrative personnel matters—
such as payroll, attendance, time-off requests, the job-selection-preference process,2
and the annual driver-records review—and also reports to the service-center manager.
Anita Sloan held this position in Kansas City for the relevant time period.
Human-resources generalists handle human-resources matters at the first level
and report to the area’s human-resources director, who oversees multiple facilities.
For the relevant time period, Maureen Mahr was the Kansas City facility’s generalist,
and Kevin Huner (the area director) supervised her. Mahr, like other generalists,
could discipline but could not terminate employees; instead, Mahr would make a
termination recommendation to Huner, who would make the final decision.
As the generalist, Mahr received employees’ complaints under XPO’s “Equal
Employment Opportunity” and “No Harassment or Discrimination in Employment”
policies (prohibiting unlawful discrimination, harassment, and retaliation).
2 This is a process in which DSRs provide the personnel supervisor their preferences for work categories and, for each category, preferred runs and start times. The personnel supervisor then compares the preferences with seniority: DSRs with more seniority get priority in job preferences. But this preference list only helps supervisors make assignments and does not guarantee what task a DSR may be assigned on a given day. 3 Employees could also call XPO’s alert line to make a complaint. Under Huner’s
oversight, Mahr would investigate the complaints and decide how to proceed.
A. Mann’s Termination
Mann, an African American man, began working as a DSR at XPO’s Kansas
City facility in August 2009. In 2015, he was working on the dock moving trailers
and connecting containers to trailers per his job preference.
On May 9, 2015, a coworker complained that Mann had been using his race to
harass other drivers and to safeguard his job. Then, on May 14, 2015, Mann mis-
hooked a trailer, which damaged XPO property and halted production. He later
received a letter of instruction as discipline for this incident (citing his poor work
performance in violation of XPO Policy 541).3 And on May 18, 2015, the director of
operations saw Mann twice using his cellphone while in the yard on work time, a
violation of XPO Policy 524,4 and reported it to the assistant service-center manager,
Bryan Bonifas. Later that day, Bonifas called Mann into a meeting with him and
3 Policy 541 is the “Employee Conduct” policy, which “provide[s] consistent and reasonable standards of employee conduct” in the form of a non-exclusive list “of unacceptable performance and behavior which may be subject to discipline up to and including termination.” App. vol. 14 at 3451. “Poor Work Performance” is listed and provides the following examples: “failure to work efficiently or to avoid repeated errors; carelessness and/or negligence in performing work; or failure to follow established work procedures.” Id. at 3451. 4 In pertinent part, XPO Policy 524 provides: “[U]nless otherwise approved by an authorized management representative, all personal telecommunication devices should not be in use while on duty or in work areas.” App. vol. 14 at 3237. 4 Mahr to discuss the inappropriate phone use and, in the middle of the meeting, Mann
answered his cellphone and held a conversation.
On May 28, 2015, Mahr and Bonifas met with Mann to issue letters of
instruction for the mis-hook incident and cellphone-policy violations, and to get his
statement responding to the May 9 employee complaint against him. But Mann
answered his cellphone again during this meeting and refused to provide a statement,
saying he had to leave work immediately. Mann told Mahr and Bonifas that he had
obtained permission to leave work early, but they determined that Mann had obtained
permission only from a supervisor and not from a freight-operations manager or
Bonifas as needed. Mahr told Mann to come into work the next day to write his
statement. Mahr maintains that she decided to suspend Mann after he provided his
statement, because of the complaint against him, his cellphone use, his insubordinate
cellphone use at the meetings, and his dishonesty about being authorized to leave
early. But the out-of-service message cites only the insubordinate cellphone use (a
Policy 541 violation).5 So, on May 29, when Mann handed Mahr his statement, she
told him he was suspended.
But Mann’s statement, which was supposed to respond to the employee
complaint against him, was not what Mahr expected. Instead of responding to the
complaint, Mann claimed that the Kansas City facility was applying policies in a
racially discriminatory manner and that he was being harassed for being African
5 As discussed supra note 3, Policy 541 governs discipline of unacceptable employee conduct, of which insubordination is one. 5 American. XPO quickly responded by bringing in three human-resources generalists
from outside the Kansas City facility to investigate. From June 2–4, these generalists
interviewed 128 employees and concluded that Mann’s allegations were
unsubstantiated. Instead, they found that all the employees interviewed felt that XPO
applied policies in a discriminatory manner but could not determine whether
decisions were made based on race, and they recommended that the Kansas City
facility be consistent in assigning work and disciplining employees to prevent this
perception.
On June 8, Mahr recommended to Huner that they terminate Mann for his
cellphone-policy violation—especially his cellphone use in the meetings to discuss
the violation—and for “his lying about having approval” to leave work early on
May 28. App. vol. 2 at 189. Huner agreed that they should terminate Mann but,
before making a final decision, consulted the vice president of human resources,
Bruce Moss. Huner explained the situation in an e-mail to Moss and provided his
opinion that Mann had “manipulated people to get his way through using race as an
issue and violated policy . . . by claiming race discrimination because he is black.”
App. vol. 3 at 575–76. Moss told Huner to allow Mann to return to work with an
“overall performance” letter of instruction, id. at 574, notifying him that “further
violation of policy would result in termination[,]” App. vol. 2 at 189. Without
elaboration, Moss cautioned that the process used to investigate Mann’s cellphone
use could be viewed as an “attempt[] to entrap him.” App. vol. 3 at 575.
6 So, on June 9, Huner and Lewis (the service-center manager) called Mann and
instructed him to return to work the next day (a Wednesday). But Mann told them
that he could not return until the following Monday, June 15, because he was on
vacation using requested paid time off until June 12. So Huner told Mann to return to
work on June 15, believing Mann had obtained approval for the time off. But soon
after this conversation, Huner learned that Mann had neither requested the time off
nor had time off approved. Huner asserts that, on June 11, he left Mann a voicemail
stating that Mann did not have approval for paid time off and directing him to return
to work by June 12. Mann denies receiving such a call. Mann did not return to work
that day, so, on June 15, Mahr recommended to Huner that they terminate Mann
under Policy 541 for his failure to work his assigned schedule and for lying about
having obtained paid-time-off approval.6 Huner again consulted Moss, who advised
that Mann’s lying about his paid-time-off approval in light of his previous
misconduct merited his termination. So, on June 15, Huner terminated Mann’s
employment.
6 As discussed supra note 3, Policy 541 governs discipline of unacceptable employee conduct. “Unauthorized Absence from Work Station,” such as “failure to work assigned schedules,” and “Dishonesty,” such as “making false/untrue statements to company management,” are deemed unacceptable conduct under the policy. App. vol. 14 at 3452.
7 B. Moye’s Termination
Moye, an African American man over the age of forty,7 began working for
XPO at its Kansas City facility as a DSR in 1997. On January 5, 2016, Moye was
halfway through a line-haul run when a dispatcher instructed him to turn around to
meet the “wife of a DSR who had accidentally left his personal/house keys in the
truck” Moye was driving. App. vol. 2 at 191. This “turnaround” was unusual, so
Moye gave his pay sheet to Lewis for approval. Lewis reviewed Moye’s pay sheet
and mileage book and found multiple discrepancies. While Lewis investigated the
issues, he briefly placed Moye out of service, but this did not affect Moye’s
compensation. The investigation substantiated the discrepancies, so Mahr issued
Moye a letter of instruction on January 14 for his not following the established
process for entering time (poor work performance in violation of Policy 541) and
jeopardizing his integrity in the process. That same day, Moye told Mahr that the
letter made him feel discriminated against because of his age and race, and he
disputed the letter through XPO’s open-door policy.
Then, in March 2016, when Sloan performed the annual motor-vehicle-record
review of the Kansas City DSRs to confirm their self-reports,8 she discovered that the
State of Missouri had suspended Moye’s CDL for a fourteen-day period about a year
7 The record does not provide Moye’s age. 8 Each year, Sloan distributes a self-report form for DSRs to report any convicted traffic violations (other than parking tickets) received in the preceding year. She then obtains the DSRs’ motor-vehicle-record reports to confirm their driving history. 8 before: from January 20, 2015, until February 5, 2015. Moye had worked during this
period, so this meant that he had driven XPO trucks with a suspended CDL. And,
though Moye learned of the suspension on February 5, he had not promptly reported
it to the service-center manager (Lewis) as required9 or included it in his self-report.
On April 5, 2016, Mahr informed Moye that Sloan had discovered his unreported
suspension, and Moye provided a written explanation of why he did not report it,
claiming he did not know about it. But Moye did not dispute the correctness of the
report showing his suspension, and Mahr felt his explanation for not reporting it was
inconsistent and insufficient. So Mahr placed Moye out of service for failing to
disclose his license suspension. And, on April 7, she recommended to Huner that they
terminate Moye for violating XPO Policy 541 by being dishonest10 (in not reporting
the suspension) and driving XPO vehicles on a suspended license. Huner agreed, and
XPO terminated Moye the next day.
9 XPO Policy 811 requires DSRs whose CDLs are suspended to “notify his/her Service Center Manager of the suspension . . . before the end of the business day following the day the employee received notice of the suspension . . . or prior to commencing employment on that day, whichever is earlier.” App. vol. 2 at 339. A DSR who does not do this will be disciplined “up to and including termination of employment.” Id. 10 As discussed supra note 3, Policy 541 governs unacceptable employee conduct. “Dishonesty,” such as “making false/untrue statements to company management,” and “Falsification of Company Records” are listed as unacceptable employee conduct that may subject the employee to termination. App. vol. 14 at 3452. 9 C. McGee’s Termination
McGee, an African American woman, began employment at XPO’s Kansas
City facility in November 2013 and started work as a DSR student trainee on
December 9, 2013. She became a full DSR on March 1, 2014 and drove extended-
service-line routes. If there was not an extended-service-line load available during a
shift, McGee would drive line haul or work on the dock.
XPO filled the extended-service-line teams by seniority: the most senior DSR
picked a partner for “ESL Team 1,” then the next most-senior DSR picked, and so on.
McGee’s lack of seniority placed her on ESL Team 4, known as “ESL Flex” because
drivers on that team may not have runs on certain nights (as determined by shipment
volume) and would perform dock work instead. In early April 2016, a freight-
operations manager learned that a senior DSR on ESL Team 2 did not want to team
with McGee on extended-service-line runs, because his wife was uncomfortable with
him driving with a woman sleeping nearby, so the manager informed Mahr. Mahr
discussed the situation with Huner, and they determined that the ESL Team 2 DSR
would have to partner with a female DSR if she was up for the spot. The manager
enforced this determination and there were no more issues with the ESL Team 2 DSR
refusing to partner with McGee.
On April 13, 2016, soon after Mahr had resolved the issue, McGee learned
about the ESL Team 2 DSR’s unwillingness to team with her for extended-service-
10 line runs.11 The next day, McGee reported the issue to Mahr. Mahr told McGee that
she already knew about the situation and had rectified it. Though Mahr had already
substantiated that the ESL Team 2 DSR had discriminated against McGee, Mahr did
not prepare a report or discipline him. So, on April 19, McGee maintains she left
Mahr a written statement detailing the race and gender discrimination she felt
subjected to.
The next day, McGee clocked in to work for her night shift but clocked out
about two hours later without notifying management and did not return. McGee
maintains that, before she left, she waited for someone in management to come by so
she could explain that she had unexpectedly started menstruating and ruined her
pants, because she was too embarrassed to go find somebody to tell, but nobody
came. She also says she tried calling management when she got home but nobody
answered.12 Around 7:00 a.m. on April 21, McGee called Sloan and explained why
she had left work early the night before. After Sloan determined McGee had not
spoken to a supervisor, she directed McGee to discuss the matter with Lewis, so
McGee did. Later that day, Mahr learned that McGee had left work without approval,
so she called McGee to discuss the situation, obtained McGee’s statement via e-mail,
11 The record indicates that another male DSR may have been unwilling to team with McGee for extended-service-line runs but it is unclear whether McGee reported this DSR to Mahr. 12 Whether McGee made this telephone call is a question of fact, with XPO maintaining that she admitted to not trying to call anyone. 11 and placed McGee out of service. Mahr felt that McGee had failed to adequately
explain why she did not contact management after leaving work.
On April 22, 2016, Mahr recommended to Huner that they terminate McGee
for her unauthorized absence. Huner agreed with Mahr’s recommendation, and XPO
terminated McGee that day under Policy 541 for her unauthorized absence from the
workstation.
II. Procedural Background
On March 25, 2016, Mann sued XPO in Kansas federal district court. In
November 2016, at Mann’s request, the district court joined Moye and McGee to the
action under Federal Rule of Civil Procedure 20. Mann, Moye, and McGee then filed
a twenty-count amended complaint asserting employment discrimination based on
race (all three), age (Moye), and gender (McGee), under 42 U.S.C. § 1981, Title VII
of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to e-17, and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634. They also
claimed retaliation and harassment.
On June 8, 2018, XPO moved for summary judgment on all claims. On
March 29, 2019, the district court granted XPO’s motion. Mann v. XPO Logistics
Freight, Inc., No. 16-2196-CM, 2019 WL 1430109, at *1 (D. Kan. Mar. 29, 2019).
The court analyzed Mann’s, Moye’s, and McGee’s discrimination and retaliation
claims under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
framework. Id. at *5–11; see also infra Discussion Part II (discussing this
framework). The court granted summary judgment to XPO on these claims because it
12 concluded that Mann, Moye, and McGee had failed to show that XPO’s proffered
nondiscriminatory reasons for firing them were pretext for discrimination or
retaliation. Mann, 2019 WL 1430109, at *5–11. Moreover, regarding the retaliation
claims, the court concluded that the Appellants had also failed to establish prima
facie cases, because they had not shown a causal connection between their protected
activity and their terminations. Id. at *10–11. Finally, the court granted XPO
summary judgment on Mann’s, Moye’s, and McGee’s harassment claims, concluding
that they had failed to establish prima facie cases. Id. at *9–10. So the district court
entered judgment in XPO’s favor and closed the case. Id. at *11. Mann, Moye, and
McGee timely appealed.
DISCUSSION
On appeal, Mann, Moye, and McGee assert that the district court erred in two
of the decisions it made in granting XPO summary judgment: first, in concluding that
they did not meet their burdens to establish that XPO’s reasons for their terminations
were pretext for discrimination; and, second, in concluding that they did not establish
the causal nexus between their protected activities and their terminations needed to
make a prima facie case of retaliation.13 We analyze both alleged errors in turn and
13 The Appellants’ opening brief does not address the district court’s grant of summary judgment against them on their harassment claims. “The failure to raise an issue in an opening brief waives that issue.” United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (citing State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)). We thus affirm the district court without addressing the merits of these claims. 13 affirm the grant of summary judgment on Mann’s and Moye’s discrimination and
retaliation claims, but we reverse on McGee’s.
I. Standard of Review
“We review the district court’s summary-judgment order de novo, applying the
same standard that the district court is to apply.” Doe v. Univ. of Denver, 952 F.3d
1182, 1189 (10th Cir. 2020) (quoting Singh v. Cordle, 936 F.3d 1022, 1037 (10th Cir.
2019)) (internal quotation marks omitted). We must view the facts in the light most
favorable to the Appellants and draw all reasonable inferences in their favor. See id.
(quoting Evans v. Sandy City, 944 F.3d 847, 852 (10th Cir. 2019)). “Because our
review is de novo, we need not separately address arguments that the district court
erred by viewing evidence in the light most favorable to [XPO] and by treating
disputed issues of fact as undisputed.” Simmons v. Sykes Enter., Inc., 647 F.3d 943,
947 (10th Cir. 2011) (citing Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th
Cir. 2004)). Summary judgment is proper only when “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).
II. The McDonnell Douglas Burden-Shifting Framework
Mann, Moye, and McGee all bring claims of racial discrimination and
retaliation under Title VII and § 1981. Additionally, Moye brings claims of age
discrimination and retaliation under the ADEA, and McGee brings claims of gender
14 discrimination and retaliation under Title VII.14 Race, age, and gender are all
protected classes under federal law. See 29 U.S.C. § 623(a) (prohibiting age
discrimination); 42 U.S.C. §§ 1981(a) (prohibiting race discrimination in
contracting), 2000e-2(a) (prohibiting race and gender discrimination). Federal law
also protects individuals who have made complaints of such discrimination. See
29 U.S.C. § 623(d) (prohibiting retaliation for age-based discrimination complaints);
42 U.S.C. § 2000e-3(a) (prohibiting retaliation for race- or gender-based
discrimination complaints); CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008)
(holding that “§ 1981 encompasses retaliation claims”).
Mann, Moye, and McGee have not presented any direct evidence of
discrimination or retaliation. Because they rely on only circumstantial evidence, we
apply the burden-shifting framework the Supreme Court established in McDonnell
Douglas. See, e.g., Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140
S. Ct. 1009, 1019 (2020) (“McDonnell Douglas sought only to supply a tool for
assessing claims, typically at summary judgment, when the plaintiff relies on indirect
proof of discrimination.” (citations omitted)). The McDonnell Douglas framework
applies to all of the Appellants’ discrimination and retaliation claims. See Thomas v.
Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015) (assessing Title VII and
§ 1981 retaliation claims under McDonnell Douglas); Daniels v. United Parcel Serv.,
14 Though Moye and McGee initially attempted to bring their age and gender discrimination and retaliation claims also under § 1981, they have since abandoned these claims. 15 Inc., 701 F.3d 620, 638 (10th Cir. 2012) (assessing Title VII and ADEA retaliation
claims under McDonnell Douglas); Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1216 (10th Cir. 2002) (“In cases brought under Title VII and the ADEA where
circumstantial evidence is the basis for the claim, our analysis at the summary
judgment stage is governed by the burden-shifting framework laid out in McDonnell
Douglas . . . .” (citations omitted)); Kendrick v. Penske Transp. Servs., 220 F.3d
1220, 1226, n.4 (10th Cir. 2000) (providing that racial-discrimination claims under
§ 1981 and Title VII have the same prima facie elements as provided by McDonnell
Douglas (citations omitted)).15
The McDonnell Douglas framework has three parts. See, e.g., Singh, 936 F.3d
at 1037. First, the plaintiff must make out a prima facie case. Id. Second, if the
plaintiff makes out a prima facie case, “the burden shifts to the employer to assert ‘a
legitimate nondiscriminatory reason for its actions.’” Id. (quoting Daniels, 701 F.3d
at 627). “If the employer does so, ‘the burden shifts back to the plaintiff to introduce
evidence that the stated nondiscriminatory reason is merely a pretext.’” Id. (quoting
Daniels, 701 F.3d at 627).
15 The Supreme Court recently ruled that a plaintiff must establish that race was a but-for cause of injury (as opposed to a “motivating factor”) to prevail on a § 1981 claim. Comcast Corp., 140 S. Ct. at 1014. In so ruling, the Court did not displace McDonnell Douglas’s application to § 1981 claims. Id. at 1019 (“Whether or not McDonnell Douglas has some useful role to play in § 1981 cases, it does not mention the motivating factor test, let alone endorse its use only at the pleadings stage.”).
16 III. The Discrimination Claims
XPO “assumes for purposes of appeal” that Mann, Moye, and McGee “make
out a prima facie case of discrimination with respect to their terminations.”16
[Corrected] Appellee’s Br. at 27. And Mann, Moye, and McGee concede that XPO’s
stated reasons for their terminations “satisfied the legitimate, non-discriminatory
reason burden under the McDonnell test.” Corrected Appellants’ Br. at 36–37. So, the
only issue on appeal for the Appellants’ discrimination claims is whether they have
presented enough evidence to create a genuine issue of material fact about whether
XPO’s stated legitimate, nondiscriminatory reasons for suspending and terminating
them were pretext for discrimination.
The Appellants bear the burden of showing that there is a genuine issue of
material fact of pretext. See Fassbender v. Correct Care Sols., LLC, 890 F.3d 875,
884 (10th Cir. 2018) (quoting Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005)).
To determine pretext, we inquire whether XPO’s “stated reasons were held in good
faith at the time of the discharge, even if they later prove to be untrue,” or whether its
“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.” Simmons, 647 F.3d at 947–48 (quoting Young v.
16 A prima facie case of discrimination requires that the plaintiff show that “(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his qualifications, he was discharged; and (4) the job was not eliminated after his discharge.” Singh, 936 F.3d at 1037 (quoting Kendrick, 220 F.3d at 1229) (internal quotation marks omitted). 17 Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006)) (internal quotation marks
omitted). Typically, a plaintiff will take one of three routes to establish pretext:
“(1) with evidence that the defendant’s stated reason for the adverse employment
action was false; (2) with evidence that the defendant acted contrary to a written
company policy . . . ; or (3) with evidence that the defendant acted contrary to an
unwritten policy or contrary to company practice.” Kendrick, 220 F.3d at 1230
(citations omitted). Notably, we must “look at the facts as they appear to the person
making the decision to terminate[.]” Id. at 1231 (citations omitted). If the Appellants
fail to establish a genuine issue of material fact on pretext, then summary judgment
in XPO’s favor is warranted. See Fassbender, 890 F.3d at 884. We examine Mann’s,
Moye’s, and McGee’s assertions of pretext in turn to determine whether, based on the
totality of the evidence presented, any have shown a genuine issue of material fact
whether XPO’s stated reasons are pretextual. See id.
A. Mann
As discussed, XPO defends its suspending Mann based on the employee
complaint against him and his unacceptable conduct (the Policy 524 violation, his
insubordinate cellphone use in the meetings, and his lying about having permission to
leave work early on May 28). XPO defends its ultimate decision to terminate him
based on his continued dishonesty (about having asked for paid time off). Mann
counters with four arguments why XPO’s reasons for his suspension and termination
are pretextual: (1) XPO did not suspend similarly situated Caucasian DSRs for their
Policy 524 violations, (2) XPO did not suspend similarly situated Caucasian DSRs to
18 conduct investigations into employee complaints against them, (3) Mahr did not have
a good-faith belief that Mann had lied about having paid time off, and (4) Mann’s
termination contradicts XPO’s attendance policy. We discuss each argument in turn
and conclude that Mann has failed to meet his burden to show a genuine issue of
material fact of pretext.
1. The Suspension
Mann’s first argument rests on his assertion that “[n]umerous current and
former DSRs at XPO have testified that similarly situated Caucasian DSRs were
regularly seen using their cellphones while on duty in the yard, dock, trailer, and in
the common areas, and were rarely punished for violating policy 524.” Corrected
Appellants’ Br. at 41. This argument misses the mark. Mann focuses on Policy 524—
but the out-of-service message clearly names only his insubordination, a Policy 541
violation, as the reason for his suspension. Mann provides no evidence or argument
that this reason is pretextual. In fact, he admits that he answered his cellphone in both
the meetings he had with Mahr to discuss his Policy 524 violation. He does not
contest that this conduct was insubordinate. Even if the Policy 541 violation was but
one reason for Mann’s suspension, Mann bears the burden of creating a genuine issue
of material fact whether “each reason given by the employer is unworthy of
credence.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1312 (10th Cir. 2005)
(per curiam) (emphasis added).
19 Moreover, Mann’s showing on XPO’s disparate treatment of Policy 524
violations17 falls short. His evidence establishes that employees often saw Caucasian
DSRs using cellphones in violation of Policy 524 but did not see the DSRs receive
any punishment. But this does not establish that XPO did not discipline the DSRs,
and Mann admits that Caucasian DSRs received letters of instruction for their
Policy 524 violations just like he did. Though Mann asserts that Caucasian DSRs
were not suspended for violating XPO’s cellphone policy, he provides no evidence of
this. And, contrary to his assertion that “similarly situated Caucasian DSRs were
disciplined less severely for the same cell phone policy violations,” he provides no
evidence of Caucasian DSRs using their cellphones while being counseled for
inappropriately using their cellphones. Corrected Appellants’ Br. at 40.
Mann also contends that XPO did not suspend other DSRs while investigating
discrimination complaints against them. But this argument has no factual support and
again ignores the compounded reasons for his suspension. Though the employee
complaint against Mann was one factor in his suspension, it was not the only one.
Further, Mann again points to no similarly situated DSRs—the one example he used
is the gender-discrimination complaint McGee made against the male DSR for
17 Oddly, Mann argues that he did not violate Policy 524, because he “was off duty during the alleged violation.” Corrected Appellants’ Br. at 41. Mann apparently contends that he attended the May 18 meeting after work and was thus off duty when he answered his cellphone during that meeting. But the time records show that Mann had clocked in about three minutes before this meeting. Regardless, this argument fails to establish pretext. For instance, it ignores the incident for which he received the letter of instruction: his improper cellphone use while working in the yard—a use he admits. Thus, Mann’s argument is unfounded. 20 refusing to ride with her, whereas the complaint against Mann alleged that he used
his race to harass others and to protect his job. These complaints are entirely
different. One alleged discrimination, the other, “throwing the race card.” App. vol.
12 at 2813. So comparing XPO’s discipline of the subjects of these complaints is
unhelpful. Moreover, the DSR whom McGee complained about cooperated with the
resolution of her complaint, whereas Mann was uncooperative—initially refusing to
provide a statement and, when he finally did, making his own complaint instead of
responding as requested.
Finally, Mann raises a new argument in his reply brief: his two letters of
instruction, the timing of his suspension, and Huner’s and Moss’s e-mails are
evidence that XPO suspended and fired Mann because of his “discrimination
complaint, thus establishing that Appellee’s actions were a pretext to race
discrimination.” Appellants’ Reply Br. at 4. Mann has waived this argument by not
making it in his opening brief. See, e.g., Burke v. Regalado, 935 F.3d 960, 1018 n.44
(10th Cir. 2019) (“[A]n appellant generally waives an argument by waiting to make it
in a reply brief.” (citing Belnap v. Iasis Healthcare, 844 F.3d 1272, 1293 n.16 (10th
Cir. 2017); Anderson v. Spirit Aerosys. Holdings, 827 F.3d 1229, 1236 n.2 (10th Cir.
2016), as amended (July 6, 2016))). Even so, this argument also lacks factual
support. Mahr states she had decided to suspend Mann before he made his
discrimination complaint, a statement that Huner’s declaration supports. Mann
provides no contrary evidence. Mann also provides no evidence that Mahr even knew
of his complaint when she suspended him. Mann wrote his discrimination complaint
21 when he was supposed to be responding to the employee complaint against him. So,
when Mann handed the statement to Mahr and she suspended him, she had no reason
to believe the statement was actually a discrimination complaint. And Mann’s own
testimony supports this view. He testified that after he gave the statement to Mahr,
“she just told me I was suspended, and they was going to be looking into those
complaints, or whatever, that those guys—there were three guys that made these
complaints . . . [a]bout me.” App. vol. 11 at 2597:3–20.
Moreover, Mann received only one letter of instruction for his cellphone use,
the other was for his mis-hook incident. And the letter announced discipline for only
his Policy 524 violation—it did not contemplate the compounded reasons that his
suspension did. He notes Huner’s e-mail recommending terminating Mann for his
“complete disregard or respect for instructions given to him by” management, which
also provided his belief that Mann “manipulated people to get his way through using
race as an issue and violated policy . . . by claiming race discrimination because he is
black.” App. vol. 3 at 576. But there is no evidence that Huner played a role in the
decision to suspend Mann. And even if there were such evidence, Huner sent this
e-mail on June 8, eleven days after Mann’s May 29th suspension, so the e-mail has
no bearing on what was Mahr’s or Huner’s state of mind when suspending Mann.
Nor does it indicate that the suspension was based on Mann’s discrimination
complaint. And, though Moss felt that Mahr and Huner had mishandled the situation
and wanted to bring Mann back to work with an overall-performance letter of
22 instruction, this is also not evidence of pretext.18 That Mahr and Huner’s supervisor
believed Mann’s conduct did not warrant a suspension does not bear on whether their
reasons for suspending him are unworthy of belief—and we must view the facts from
their perspective when they decided to suspend Mann. See Kendrick, 220 F.3d
at 1231; see also Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169–70
(10th Cir. 2007) (“Evidence that the employer should not have made the termination
decision—for example, that the employer was mistaken or used poor business
judgment—is not sufficient to show that the employer’s explanation is unworthy of
credibility.” (citations omitted)).
Looking at the totality of the circumstances, as we must, we determine that
Mann has failed to make any showing that his suspension for the employee
complaint, Policy 524 violation, insubordinate cellphone use, and dishonesty was
pretextual. Cf. Fassbender, 890 F.3d at 884. Though Mann underscores XPO’s
inconsistent treatment of policy violations and employee complaints, he fails to point
to any similarly situated, nonminority employee for comparison. Cf. Kendrick, 220
F.3d at 1232. Not every difference in treatment will establish discriminatory intent;
differences that are “explained by a nondiscriminatory motive,” as here, “will not
sustain a claim of pretext.” Id. (citing EEOC v. Flasher, Co., 986 F.2d 1312, 1320
18 Moss’s e-mail also cautioned that “[a]n argument could be made that we were attempting to entrap him through this investigative process.” App. vol. 3 at 575. We do not know why Moss said that in response to Huner’s recommendation to terminate Mann for insubordination. So, while the comment matters, without evidence that Mahr or Huner were trying to entrap Mann, it does not suffice to create a triable issue of fact on pretext. 23 (10th Cir. 1992)). “The law does not require, nor could it ever realistically require,
employers to treat all of their employees all of the time in all matters with absolute,
antiseptic, hindsight equality.” Flasher, 986 F.2d at 1319.
2. Termination
Mann’s first argument that his termination was pretextual is hard to decipher.
The heading asserts that XPO has not fired similarly situated Caucasian DSRs for
Policy 541 violations. But he does not proffer any analysis on this assertion or
provide Federal Rule of Appellate Procedure 28(a)(8)(A)’s required record cites to
support it, thus waiving it “by inadequately briefing it.” Burke, 935 F.3d at 1014
(citing United States v. Brinson, 772 F.3d 1314, 1321 (10th Cir. 2014)). So to the
extent Mann intends to assert a disparate-treatment argument here, we decline to
consider it.
Instead of analyzing the disparate-treatment claim raised in the heading, Mann
argues that, because XPO had lost his original paid-time-off, single-day-request
form, Mahr could not have held a good-faith belief that he had lied about having
approved time off when she recommended his termination for this alleged dishonesty.
But this argument ignores that we must “look at the facts as they appear to the person
making the decision to terminate” him. Kendrick, 220 F.3d at 1231 (citations
omitted). The records that Mahr and Huner examined to determine whether Mann had
approval for paid time off showed that he had made no written or verbal request for
paid time off during the week of June 8–12, nor had he requested paid time off for
the first or second week of June for the past two years (contradicting his claim that he
24 always took this time off). And Mann testified that the allegedly lost form would
show only the same paid-time-off requests as the existing form that Mahr and Huner
saw.19 So, even if XPO had lost the form, it does not bear on Mahr’s and Huner’s
good-faith belief that Mann had lied about having approved paid time off and, thus,
had violated Policy 541 by not working when he was supposed to and by lying to
management. As Policy 541 expressly provides that violations “may be subject to
discipline up to and including termination,” Mann has failed to show that XPO’s
terminating him under this policy was pretextual. App. vol. 14 at 3451.
Mann next tries to establish pretext by arguing that XPO acted contrary to
Policy 542 (which governs employee attendance) by terminating him. First, Mann
asserts that he followed the policy by notifying Huner and Lewis on June 9 that he
would not be able to return to work until June 15. This is an apparent nod to the
policy’s “Scheduled Absence” section, which requires an employee to “notify the
manager or supervisory personnel at least 3 hours prior to the commencement of the
absence and the absence must be approved by the manager or supervisor.” App.
19 Mann’s testimony thus contradicts his argument that he submitted his paid- time-off request only on the allegedly lost single-day request form. Further, even if we accepted that he had requested paid time off only on this allegedly lost form, thus making erroneous Mahr’s and Huner’s belief he had not requested paid time off, this still would not establish pretext. Mann provides no evidence that Mahr or Huner saw this form, and the contemporaneous e-mail chain firmly establishes their belief that he had made no such request. And a mistaken belief would still not create a genuine issue of material fact of pretext. See Swackhammer, 493 F.3d at 1169–70 (citations omitted). So even if we accepted Mann’s unsupported assertion that he did request paid time off, we still would not conclude that he has established pretext. Cf. Kendrick, 220 F.3d at 1231–32. 25 vol. 14 at 3260 (bolding omitted). Second, Mann asserts that, under the policy, an
unscheduled, consecutive-day absence would count as only one attendance event.
Finally, based on these two assertions, he argues that, at most, he should have
received only an attendance strike, not termination.
The record supports Mann’s assertions only if we ignore Huner’s testimony
that he called Mann a second time, on June 11, leaving a message directing Mann to
return to work on June 12. Though Mann denies ever receiving this call, Huner and
XPO apparently believed they had directed him to return to work and he had ignored
this directive. And Policy 542 provides that “failure to report to work without
notification or without approval for the absence” results in a different disciplinary
procedure than normal: the first occurrence results in a letter of instruction, while the
second results in a suspension “pending termination review.” Id. at 3261–62 (bolding
omitted). Though this appears to be Mann’s first “no call no show,” XPO maintains
that “refusal to return to work after being directed to do so” is a more egregious
violation than “where an employee does not show up for a scheduled work day.”
[Corrected] Appellee’s Br. at 33 (citation omitted); see also Kendrick, 220 F.3d
at 1233 (“A company must be allowed to exercise its judgment in determining how
severely it will discipline an employee for different types of conduct.”). Moreover,
under Policy 542, an employee’s “absence of 3 days or more without notification or
without approval for the absence is considered ‘job abandonment,’” meaning XPO
views the employee as “hav[ing] voluntarily separated.” App. vol. 14 at 3262. Huner
first directed Mann to return to work on June 10 and, because Huner believed Mann
26 did not have his claimed paid-time-off approval, Huner could have viewed Mann’s
failure to work June 10–12 as job abandonment. We thus do not view Mann’s
termination as contradicting Policy 542. Regardless, Policy 542 does not on its face
contemplate an employee lying and getting time off work because of that lie. So even
if we accepted Mann’s assertions about what discipline he merited under Policy 542
for his taking unapproved time off, the fact remains that he also lied to Huner (or, at
the very least, Huner believed Mann had lied) and, thus, Policy 542’s disciplinary
procedure does not fully cover his misconduct—it covers his absences, but not his
dishonesty. We therefore cannot find that XPO contradicted its attendance policy by
terminating Mann.
Finally, Mann asserts that “similarly situated Caucasian DSRs have taken
multiple unapproved days off from work without being terminated.” Corrected
Appellants’ Br. at 44. But he discusses only one Caucasian DSR, Aldis Tuck, who
said that for the days he “did not receive permission for a day off” he “could just call
in sick and receive one point on [his] record.” App. vol. 12 at 2711. Tuck also said
that in 2018 (three years after Mann’s termination), he “was sick and did not show up
to work for four days” and “did not receive any write up, letter of instruction, or any
reprimand for missing work.” Id. But Tuck’s attendance violations are not
comparable to Mann’s. First, Mahr and Huner played no role in XPO’s decision not
to discipline Tuck—they both had left XPO by 2018—which prevents Tuck from
being similarly situated to Mann. See Kendrick, 220 F.3d at 1232–33 (“An employee
is similarly situated to the plaintiff if the employee deals with the same
27 supervisor . . . . Different supervisors will inevitably react differently to employee
insubordination.” (citation omitted)). And second, viewing the facts from Huner’s
perspective (as the person who decided to terminate Mann), it appears that Mann,
while suspended for other policy violations, lied about having paid time off and
ignored a directive to return to work after Huner caught the lie. Cf. Kendrick, 220
F.3d at 1231. Thus, we also cannot say that Tuck’s violations are comparably serious
to Mann’s. See id. at 1233 (“When comparing the relative treatment of similarly
situated minority and non-minority employees, the comparison need not be based on
identical violations of identical work rules; the violations need only be of
‘comparable seriousness.’” (quoting Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th
Cir. 1995)) (internal quotation marks omitted)). “A company must be allowed to
exercise its judgment in determining how severely it will discipline an employee for
different types of conduct.” Id. at 1233. Based on the evidence, that is all XPO did.
Accordingly, looking to the totality of the circumstances, we determine that
Mann has failed to create a genuine issue of material fact regarding pretext. We thus
affirm the district court’s grant of summary judgment for XPO on Mann’s racial-
discrimination claims.
B. Moye
XPO maintains it suspended and ultimately terminated Moye for his Policy
541 violations: his failure to abide by safety procedures and his perceived dishonesty
in not reporting his CDL suspension as required by Policy 811. Moye provides four
arguments why these reasons are pretextual: (1) suspicious circumstances surround
28 his termination; (2) XPO did not terminate similarly situated younger, Caucasian
DSRs for having suspended licenses; (3) he did not violate Policy 541; and (4) XPO
has changed its reasons for terminating him.
Moye’s suspicious-circumstances argument rests on his assertion that XPO had
known about his CDL suspension since February 20, 2015—long before suspending
him on March 30, 2016, for failing to report it. As support, Moye relies on his motor-
vehicle report stating that XPO20 ordered it on February 10, 2015, and printed it on
March 6, 2015—though Moye does not explain how he gets the February 20, 2015
date from this report. But drawing the inference that XPO knew of Moye’s CDL
suspension a year before suspending him does not make the circumstances
surrounding his suspension and termination “‘so fishy and suspicious’ that a jury
could ‘find that the employer (or its decisionmaker) lacks all credibility.’” Jaramillo,
427 F.3d at 1310 (first quoting Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir.
1995); and then quoting Chapman v. AI Transp., 229 F.3d 1012, 1050 (11th Cir.
2000) (en banc) (Birch, J., concurring and dissenting)). Though it may be odd that
XPO did not discipline Moye then, Sloan promptly addressed the issue after
reviewing Moye’s 2016 self-report. Further, Moye presents no evidence that Mahr,
who suspended Moye and recommended terminating him, knew of the suspension
20 The report states that someone named James Ried ordered it for XPO, but there is no indication in the record or by the parties as to who Ried is.
29 until Sloan brought it to her attention a year later.21 As discussed, we must view “the
facts as they appear to the person making the [adverse-employment] decision.”
Kendrick, 220 F.3d at 1231 (citations omitted). With no evidence that Mahr knew of
the suspension before the spring of 2016 or knew that someone at XPO learned of it
in 2015 and sat on it, Moye cannot show that Mahr’s disciplinary decisions were
suspicious. Moreover, XPO’s apparent year-long knowledge of the CDL suspension
and its decision not to notify Moye that it knew of it (until he failed to self-report it
in 2016) had no effect on Moye’s actions—driving on a suspended license and not
disclosing the suspension—for which XPO suspended and terminated him. So though
the timing of the discipline could raise some suspicion, the record supports XPO’s
reasons for disciplining Moye. We thus cannot say that XPO “lacks all credibility.”
Jaramillo, 427 F.3d at 1310 (citation and internal quotation marks omitted).
Moye next argues that XPO did not fire younger, Caucasian DSRs “for
committing the same offense as Moye.” Corrected Appellants’ Br. at 47. But Moye
provides no evidence of any younger, Caucasian DSRs who failed to report a CDL
suspension. Instead, Moye proffers only Tuck’s affidavit,22 which says that he had his
CDL suspended in 2001, did not self-report it on his annual-review report, and drove
21 Moye also points to no evidence that Huner, who sanctioned Moye’s termination, knew of Moye’s CDL suspension before receiving Mahr’s recommendation. 22 The affidavit does not specify Tuck’s age beyond that he was over the age of eighteen when he signed it under oath.
30 while it was suspended.23 But Tuck also explains that his CDL was suspended
because his identity was stolen and that he reported the suspension to XPO when he
learned of it (after trying to renew his CDL). So Tuck’s situation is factually
distinguishable from Moye’s. Significantly, Mahr and Huner did not decide whether
to discipline Tuck—they were not employed by XPO until 2010 and 2015,
respectively—precluding Tuck from being similarly situated to Moye. See Kendrick,
220 F.3d at 1232–33. Moreover, Tuck reported his suspension when he learned of it.
Moye admits that on February 5, 2015, he learned of his suspension and that he did
not report it, on his annual-review report or otherwise. So, despite both men’s failing
to report the suspension on their annual-review reports and driving on suspended
licenses, Tuck reported and Moye did not. This difference keeps us from requiring
that XPO treat the two men’s actions as equally unacceptable.24 See id. at 1233 (“A
company must be allowed to exercise its judgment in determining how severely it
will discipline an employee for different types of conduct.”).
23 Moye also notes Tuck’s recitation of another employee’s situation: “To the best of my knowledge, Jesse Wyatt’s license was suspended for a DUI that he received, but was not convicted of. To my knowledge, he did not report his dui [sic] or suspension and was not terminated.” App. vol. 12 at 2711. This description tells us nothing about Wyatt’s age or race, his job position (though we may infer he was also a DSR), whether he drove on a suspended license, whether XPO ever learned of the suspension, or Tuck’s basis of this knowledge (it may be based on hearsay and, thus, inadmissible). Without more information, we cannot decipher whether Wyatt was a similarly situated, nonminority employee. See Kendrick, 220 F.3d at 1232. 24 We also note that the reasons for the CDL suspensions are factually distinguishable: Tuck’s was for something not his fault, but Moye’s was for failing to appear on a warrant for a traffic violation. 31 Moye also attempts to establish XPO’s disparate treatment of him by noting
Mahr’s testimony “that in the past 16 years, Moye was the only driver whose
termination she recommended for driving on a suspended license.” Corrected
Appellants’ Br. at 47 (citing App. vol. 9 at 2197:8–16). But Mahr in fact testified that
she would “have to go back and look at my facts, but that I can recall, he is the only
one [terminated for driving on a suspended license] that I can recall that I was
involved in.” App. vol. 9 at 2197:8–16. Moreover, her testimony provides no insight
about XPO’s normal practice for dealing with drivers who not only drove with a
suspended CDL but also failed to disclose that suspension—actions that violated
Policies 541 and 811 and federal Department of Transportation regulations.25 For all
we know, Moye was the only XPO driver who violated policy this way. Without
more, this evidence is insufficient to establish pretext.
Next, Moye argues that XPO’s stated reason for his suspension and
termination—his violation of Policy 541—was false because he did not violate that
policy. Specifically, Moye asserts that he told the truth in his 2016 annual self-report
because (a) the report was dated in the future, requiring him to disclose incidents that
occurred from March 9, 2016, to March 9, 2017; and (b) even if the report were
correctly dated to cover March 9, 2015, to March 9, 2016, he had no duty to disclose
25 49 C.F.R. §§ 383.33 (mirroring Policy 811’s notification requirement), 383.51 (providing that a person is subject to disqualification from operating a commercial-motor vehicle for driving one on a suspended CDL).
32 his January 20–February 5, 2015 suspension on that report.26 We agree that Moye’s
suspension fell outside the time period of the 2016 annual self-report. So Moye is
correct that his writing “none” on his 2016 annual self-report, which did not cover
the time period in which his license was suspended, did not constitute “falsification
of . . . personnel records” under Policy 541. App. vol. 14 at 3452.
But that does not mean Moye did not violate Policy 541. Moye also did not
disclose the 2015 suspension on his 2015 self-report,27 which covered the
suspension’s time period. Strangely, Sloan apparently did not catch the suspension on
Moye’s driving record when she reviewed his 2015 annual self-report. But Moye
admits that he knew of the suspension when he filled out the 2015 report on March 3,
2015: “Plaintiff Dana Moye admits that his CDL was suspended on January 20, 2015
and that he did drive XPO trucks with his suspended license. But he did not know
that his license was suspended until February 5, 2015.”28 App. vol. 5 at 922 (citations
26 In this argument, Moye ignores that he was also terminated under Policy 541 for his noncompliance with safety procedures by driving XPO trucks on a suspended license. And Moye admits that he drove company vehicles on a suspended license. That he does not address this Policy 541 violation is grounds alone for rejecting this argument. 27 That the annual driver-record review is required by Policy 811 and that Moye reported a different suspension on this self-report undercuts his argument that suspensions need not be disclosed in these reports. 28 This concession belies Moye’s claim that he did not violate Policy 811, because he did not know of the suspension. Policy 811 requires that DSRs report suspended CDLs to their immediate supervisors “before the end of the business day following the day the employee received notice of the suspension, . . . or prior to commencing employment on that day, whichever is earlier.” App. vol. 12 at 2830. Despite knowing about his CDL suspension for over a year before XPO suspended 33 omitted). He was thus dishonest in never disclosing to XPO this suspension, and he
falsified the 2015 self-report by not including it there. Further, when Mahr
confronted Moye with the suspension, he gave what she believed were “inconsistent
and insufficient” reasons for not disclosing it. App. vol. 2 at 238. So we cannot say
that XPO’s proffered legitimate reason for terminating Moye was false. The
undisputed facts show that Moye never disclosed his January 2015 suspension.
Though Mahr and Huner mistakenly believed that Moye falsified his 2016 self-report
by not reporting the suspension, this mistake is insufficient to establish pretext. See
Swackhammer, 493 F.3d at 1169–70 (citations omitted). The evidence, viewed in the
light most favorable to Moye, does not raise a question whether Mahr and Huner
relied, honestly and in good faith, on Moye’s dishonesty and concomitant
falsification of documents by never reporting his January 2015 suspension. See id.
at 1170 (“The relevant inquiry is not whether the employer’s proffered reasons were
wise, fair or correct, but whether it honestly believed those reasons and acted in good
faith upon those beliefs.” (citation and internal quotation marks omitted)).
Finally, Moye argues that, through the course of litigation, XPO has changed
its reasons for terminating him from Policy 541 violations to a Policy 811 violation.
Moye provides no citations for his assertion that “[w]hen the summary judgment
motion occurred, XPO changed its stated reason for termination from ‘violation of
policy 541’ to ‘violation of policy 811.’” Corrected Appellants’ Br. at 50. We see no
and terminated him, Moye never reported his CDL suspension, a clear Policy 811 violation. 34 evidence of this in XPO’s summary-judgment briefing. Though XPO invoked
Policy 811 by stating that “Moye violated Policy 811 by not promptly reporting his
license suspension,” App. vol. 2 at 202, we see no evidence that XPO changed its
reasons for terminating Moye. XPO asserted in this briefing that it terminated Moye
because he “drove XPO vehicles on a suspended driver’s license and then failed to
report the matter to the company,” though it does not mention Policy 541. Id. at 180.
But this explanation, minus the specific citation to Policy 541, is the same one that
Mahr gave in her recommendation that Huner terminate Moye and in the termination
notice. Moye has thus failed to show that XPO changed its explanation for
terminating him. Looking at the totality of the evidence, we conclude there is not
enough to create an issue of material fact for the jury. We affirm the district court’s
grant of summary judgment against Moye on his claims of age and race
discrimination.
C. McGee
XPO asserts that it suspended and terminated McGee for job abandonment
under Policy 541 because she left work after working for two hours without notifying
management. McGee has three arguments why this reason is pretextual: (1) she did
not violate Policy 541, (2) XPO’s treatment of McGee was contrary to its policy and
practice, and (3) XPO’s proffered similarly situated employee is distinguishable.
McGee argues that she did not violate Policy 541, because she did not have a
run scheduled when she left early on April 20, 2016, and it was customary for line-
haul drivers to leave work without authorization if they did not have a run scheduled.
35 But McGee can prevail on this argument only if she first shows that XPO had such a
custom. See Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013)
(citations omitted). She cites only her, Mann’s, and Moye’s affidavits to establish this
custom, but only McGee’s states that line-haul drivers could leave early without
authorization. Mann and Moye both stated that “[l]inehall [sic] drivers who were not
assigned a run had the option to leave.” App. vol. 14 at 3242 (Mann’s affidavit),
3466 (Moye’s affidavit) (stating also that line-haul drivers without a run “have a
choice to work on the dock, go home early or use a PTO day subject to approval by
management”). So McGee’s allegation of a custom for line-haul drivers to leave
work without approval rests on only her self-serving affidavit. This fails to establish
that such a custom existed. See, e.g., Garrett v. Hewlett-Packard Co., 305 F.3d 1210,
1213 (10th Cir. 2002) (“We do not consider ‘conclusory and self-serving affidavits.’”
(quoting Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995))). McGee
arrived at work on April 20, 2016, knowing she was working on the dock, and
concedes she left after about two hours without notifying anybody (though she
asserts she tried to). She thus did not obtain permission before leaving, bringing her
conduct within Policy 541’s “Unauthorized Absence from Work Station” provision,
which states that “leaving the work station, dock or service center during the shift
without permission” “may be subject to discipline up to and including termination.”
App. vol. 14 at 3451–52. So McGee has failed to establish that she did not violate
Policy 541.
36 But McGee provides evidence that her termination under Policy 541 for
leaving work early without permission is inconsistent with XPO’s attendance policy
(Policy 542) and its normal practice of dealing with such violations. XPO asserts that
“violations of the rule against unauthorized absence from the work station are
handled on a case-by-case basis depending on the facts in a particular case, and may
result in different levels of discipline . . . entirely within XPO’s business judgment.”
[Corrected] Appellee’s Br. at 39. Even so, XPO cannot hide behind its business
judgment here. See Beaird v. Seagate Tech, Inc., 145 F.3d 1159, 1169 (10th Cir.
1998) (“There may be circumstances in which a claimed business judgment is so
idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext
for illegal discrimination.” (citations omitted)). Here, XPO’s claimed business
judgment is sufficiently questionable for a jury to reasonably find it pretext for
Mahr testified that, for Policy 541 “Unauthorized Absence from Work Station”
violations, she would “have to look at the reasonableness of the situation, but it’s—
it’s, in most cases, recommended for termination.” App. vol. 7 at 1562:8–15. But this
testimony is puzzling in light of Policy 542’s covering the same conduct and
providing an explicit disciplinary process requiring an employee rack up six
“attendance events” (such as a “[l]eaving work early” without permission) in a
“rolling 12 month period” to be subject to termination. App. vol. 14 at 3260–61.
Mahr even testified that she would not normally recommend terminating employees
for their first attendance issue: “So if somebody had an attendance issue, we would
37 want to start with verbally talking to them and then go to a note to file and go
through a ‘Letter Of Instruction’ and then another ‘Letter Of Instruction’ and then—
and then termination.” App. vol. 8 at 1926:9–13. Because attendance issues—
especially like the one at issue here—appear to fall under both policies, Mahr’s
testimony contradicts itself.
Further, McGee provides evidence that an employee’s leaving work early does
not always lead to termination. In fact, just three months after McGee’s termination,
two male employees violated the same Policy 541 provision by leaving their shifts
without permission and received only an incident report or a letter of instruction
advising them to “comply with Policy #541.”29 App. vol. 14 at 3477, 3519. Similarly,
XPO issued an incident report to another male employee for an unnamed policy
infraction because he “failed to check with a supervisor prior to leaving for the day”
and merely advised the employee to “adhere to all company policies and
procedures.”30 Id. at 3480. Moreover, this same employee continued to leave work
early without permission, on top of other attendance issues, and was not fired, as
shown by numerous letters of instruction from 2015 and one from May 2016. This
29 We note that these incidents occurred on July 8, 2016, and Mahr left her job in July 2016, so it is unclear whether Mahr was involved in these disciplinary decisions. If she was not involved, that diminishes the evidentiary value of the comparison between XPO’s disparate treatment of McGee and these male employees. See Kendrick, 220 F.3d at 1233. 30 Though this report does not state which policy the employee violated, the conduct at issue and the report’s wording allows the inference it was a Policy 541 violation. 38 evidence, especially the last employee mentioned who repeatedly left work early
without permission and was not terminated, calls into question Mahr’s assertion that
she normally terminated employees who left their workstation without authorization.
Moreover, the suspiciousness surrounding Mahr’s termination of McGee is
underscored by the fact that, in her termination recommendation to Huner, Mahr
recognized that “McGee has no relevant previous discipline in her file” and that she
had proffered an (inherently female) excuse for leaving early. App. vol. 2 at 377.
The suspiciousness is even more evident when comparing the available
discipline under Policy 541 with that under Policy 542. The general “Employee
Conduct” Policy 541, under which XPO terminated McGee, states that “leaving the
work station, dock, or service center during the shift without permission; or leaving
work before the specified time” is “unacceptable performance or behavior which may
be subject to discipline up to and including termination.” App. vol. 14 at 3451–52
(emphasis added). But the specific “Employee Attendance” Policy 542 provides that
“[l]eaving work early” without “notify[ing] the manager or supervisory personnel at
least 3 hours prior to the commencement of the absence” and obtaining approval is an
“Attendance Event.” Id. at 3260–61. It takes three attendance events in a twelve-
month period to merit any discipline—an incident report—and six for the employee
to be subject to termination. So the fact that XPO terminated McGee under
Policy 541 for conduct that is also fully covered by Policy 542, conduct which is
nowhere near that required for termination under Policy 542, is suspicious and
appears contrary to Policy 542.
39 XPO points specifically to one Caucasian male it terminated because he left
work after only five minutes but notes that it has fired multiple men for leaving work
early. Though this counterbalances McGee’s evidence of XPO not firing men for this
offense, it does not show, as XPO asserts, that XPO’s firing McGee was
nondiscriminatory because it fired Caucasian males under similar circumstances—
there is no evidence as to the circumstances surrounding the male firings. Unlike in
McGee’s case, these men may have had other instances of misconduct or previous
discipline. And, unlike for McGee, no evidence evinces that XPO terminated these
men even after they attributed their absences to an emergency. Even Mahr testified
that McGee’s situation “absolutely was” an emergency “and all she had to do was
call in” and “[h]er time off would have been approved.” App. vol. 9 at 2131:4–15.
Looking at the totality of the circumstances and viewing the evidence in the
light most favorable to McGee, we conclude that McGee has presented sufficient
evidence to show a genuine issue of material fact regarding pretext. The record
would allow a jury to find that XPO ignored its practice of not immediately firing
employees who left work early and that this disparate treatment was driven by
discrimination.31 We therefore reverse the district court’s summary-judgment
dismissal of McGee’s discrimination claims.
31 XPO argues that McGee made no attempt to contact anybody before she left and that “she could have spoken to someone while seated in the forklift without her spoiled pants in view.” [Corrected] Appellee’s Br. at 41 n.18. Regardless whether this option was even feasible or reasonable, McGee maintains she waited for someone to come by before she left and that she did call when she got home. And 40 IV. The Retaliation Claims
As discussed, the McDonnell Douglas framework also applies to Mann’s,
Moye’s, and McGee’s retaliation claims. For these claims, however, XPO does not
concede that the Appellants have made prima facie cases of retaliation. A prima face
case of retaliation requires that the plaintiff show that “(1) he engaged in protected
opposition to discrimination; (2) [the employer] took action against him which a
reasonable person would have found materially adverse; and (3) a causal connection
existed between the protected activity and the materially adverse action.” Singh, 936
F.3d at 1042 (citation omitted). Here, the district court determined that Mann, Moye,
and McGee did not make prima facie cases of retaliation, because they all failed to
establish a causal connection between their discrimination complaints and their
terminations. Mann, 2019 WL 1430109, at *10–11.
“To establish the requisite causal connection, Plaintiff[s] must show that the
decisionmakers took action against [them] out of a desire to retaliate for [their]
formal discrimination complaints.” Singh, 936 F.3d at 1043 (citing Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)). Temporal proximity
between the protected conduct and materially adverse action may provide the
requisite connection, but the two must be “very closely connected in time” if that is
the only evidence relied on. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d
1164, 1171 (10th Cir. 2006) (quoting Anderson v. Coors Brewing, 181 F.3d 1171,
what McGee should have done or should not have done does not change XPO’s common practice for dealing with attendance issues. 41 1179 (10th Cir. 1999)) (internal quotation marks omitted). We have held, for
example, “that a one and one-half month period between protected activity and
adverse action may, by itself, establish causation,” while “a three-month period,
standing alone, is insufficient to establish causation.” Anderson, 181 F.3d at 1179
(citations omitted).
With this legal background as our guide, we address Mann’s, Moye’s, and
McGee’s claims in turn.
Before addressing the merits of Mann’s retaliation claim, we first address
XPO’s contention that he “has abandoned any claim of retaliation” by not discussing
retaliation in the pretrial order. [Corrected] Appellee’s Br. at 43 (citing Wallace v.
Microsoft Corp., No. 07-2379-EFM, 2009 WL 1636103, at *9 (D. Kan. June 11,
2009)). Mann’s factual contentions in the pretrial order provide that, “[o]n May 29,
2015, Mann made allegations of race discrimination,” that “[s]hortly after [that] . . .
Mann was suspended from work,” and that “[o]n June 16, 2015 Mann was
terminated[.]” App. vol. 1 at 177.006. And, under the “Legal Claims of Plaintiffs”
section, the order provides: “Each of the plaintiffs was retaliated against based on
their complaints of racial discrimination, in violation of Title VII and Section
1981 . . . .” Id. at 177.024 (citation omitted). Thus, the pretrial order sufficiently
identified the facts on which Mann’s retaliation claim rests, and he did not waive
such claim. Cf. Wallace, 2009 WL 1636103, at *9 (holding plaintiff waived a claim
42 by failing to provide factual contentions and to identify its essential elements in the
pretrial order). So, we move to the merits of this claim.
XPO concedes for this appeal that Mann engaged in protected activity and
suffered an adverse employment action—his termination. But XPO does not concede
that Mann’s protected activity caused his termination.
Mann made a discrimination complaint on May 29, 2015, was suspended the
same day, and was fired seventeen days later on June 15, 2015. But Mahr had
decided to suspend Mann before he made his complaint, so there is no causal
connection between that adverse action and his protected activity. The seventeen-day
period between his complaint and termination, however, is sufficiently close in time
to allow the inference of a retaliatory motive. See Anderson, 181 F.3d at 1179
XPO asserts Mann must provide more evidence of causation to “survive
summary judgment.” [Corrected] Appellee’s Br. at 44 (citing Jones v. BNSF Ry.,
No. 14-2616-JAR-KGG, 2016 WL 183514, at *7 (D. Kan. Jan. 14, 2016)). But this
assertion contravenes our caselaw: “We have previously held that [a close] temporal
proximity, alone, is sufficient to allow an inference of the existence of a causal
connection . . . .” EEOC v. PVNF, LLC, 487 F.3d 790, 804 (10th Cir. 2007) (citations
omitted). XPO also argues that “the wheels of termination were already in motion”
when it suspended Mann, precluding his retaliation claim. [Corrected] Appellee’s Br.
at 45. But this assertion is belied by Moss’s e-mail directing Mahr and Huner not to
terminate Mann for his inappropriate cellphone usage and to bring him back to work.
43 And Mann’s unapproved absence and dishonesty about having paid time off—the
events that led to his termination—occurred only after his suspension. So Mann has
made a prima facie case of retaliation, rebuttable by XPO’s proffer of a legitimate,
nondiscriminatory reason for his termination. See PVNF, 487 F.3d at 804. We thus
disagree with the district court’s conclusion that Mann failed to make a prima facie
case of retaliation. We do not reverse, however, because under the McDonnell
Douglas framework, Mann must overcome XPO’s proffered nondiscriminatory
reason for his termination to survive summary judgment. See, e.g., Singh, 936 F.3d
at 1037 (citation omitted).
As discussed, Mann concedes XPO’s reason for his termination is legitimate
and nondiscriminatory—his Policy 541 violation. See supra Discussion Part III. But,
with one exception, Mann raises the same pretext arguments that we have already
rejected. See supra Discussion Section III.A. Mann’s only new argument is that
Huner’s June 8 e-mail stating that Mann used his race to manipulate people allows
the inference that the decision to terminate Mann was connected to Mann’s
complaint. Even though we must make all reasonable inferences in Mann’s favor, we
do not agree that this e-mail allows for such an inference. First, contrary to Mann’s
assertion, Huner did not say this after “XPO substantiated the majority of Mann’s
race discrimination complaints through their investigation.” Corrected Appellants’
Br. at 56. The investigation did not substantiate Mann’s complaints; instead, it
showed that every employee felt discriminated against. Second, in response to that
e-mail, Huner’s boss (Moss) decided that Mann should be brought back to work with
44 an “overall performance” letter of instruction and not terminated. App. vol. 3 at 574.
Finally, Huner decided to terminate Mann on June 11, only after Mann refused to
return to work and lied about having requested paid-time-off.32 So Huner’s June 8
e-mail does not show that a jury could find the June 11 decision “unworthy of
credence.” Anderson, 181 F.3d at 1179 (quoting Morgan v. Hilti, Inc., 108 F.3d 1319,
1323 (10th Cir. 1997)) (internal quotation marks omitted). Mann again fails to show
pretext. The district court thus properly granted summary judgment to XPO on this
claim, and we affirm.
XPO concedes for appeal that Moye made a discrimination complaint in
January 2016 and suffered an adverse employment action (termination) but asserts
that he fails to make a prima facie retaliation case because he cannot show a causal
connection.33 The circumstances surrounding Moye’s alleged complaint are murky,
but with XPO’s concession we assume that Moye engaged in protected activity on
January 14, 2016, when he disputed the letter of instruction he received for his
32 Thus, Mann’s assertion that XPO decided to terminate him on the same day he made his complaint is incorrect. 33 Moye argues that, because XPO failed to challenge his ability to establish a prima facie case of race retaliation in the district court, the claim survives summary judgment. But XPO did not differentiate between Moye’s age and race retaliation claims as he asserts it did; it simply argued that he “cannot establish a retaliation claim submissible to the jury.” App. vol. 2 at 215. Further, XPO explicitly addressed both in its reply brief by stating that his asserted protected activity “says nothing related to opposition of race or age discrimination.” App. vol. 15 at 3542. We thus do not view as undisputed Moye’s race-retaliation claim. 45 time-keeping issues. XPO did not terminate Moye until roughly four months later, on
April 8, 2016. So, as Moye recognizes, he cannot rely on temporal proximity alone to
establish a causal connection. See Anderson, 181 F.3d at 1179 (stating that “a three-
month period, standing alone, is insufficient to establish causation” (citation
omitted)). But Moye provides no other evidence that shows XPO fired him “out of a
desire to retaliate for his” complaint. Singh, 936 F.3d at 1043 (citation omitted).
Instead, he merely asserts that he can make a prima facie case and then moves on to
argue why XPO’s stated reasons for his termination were pretextual—which is a
separate issue. This is insufficient.34 So we agree with the district court that Moye has
failed to establish a prima facie case of retaliation.
Moreover, even if we could conclude that Moye has established a prima facie
case of retaliation, his retaliation claims would not survive summary judgment under
the McDonnell Douglas framework. Moye concedes that XPO’s proffered reason for
his termination is nondiscriminatory—his Policy 541 violations. See supra
34 XPO argues that Moye also fails to make a prima facie case because he does not provide evidence that Huner—who made the decision to terminate him (at Mahr’s recommendation)—knew of Moye’s complaint. See Singh, 936 F.3d at 1043 (“Plaintiff must therefore point to evidence that those who acted against him knew of his formal complaints.”). XPO notes that Huner stated in his affidavit that he was unaware of any complaints Moye made. But there is a January 15, 2016 e-mail from Mahr to Huner stating that Moye “would like to utilize the open door policy and have the attached [letter of instruction] reviewed.” App. vol. 2 at 331. The letter of instruction regarded the time-keeping issues—the subject of Moye’s complaint and asserted protected activity—and Huner responded that “[a]fter a complete review and discussion, I believe that the [letter of instruction] is appropriate in this case.” Id. This e-mail thus creates a genuine issue of material fact whether Moye complained of race and age discrimination to Huner in that discussion. 46 Discussion Part III. But, like Mann, except for one new argument, Moye raises the
same arguments for pretext that we have already rejected in analyzing his
discrimination claims. See supra Discussion Section III.B. Moye’s new argument
regards the letter of instruction for his time-keeping issues. He asserts that Lewis and
Mahr refused to rescind the letter of instruction, issued for a Policy 541 violation,
“even after [it was] substantiated that Moye didn’t violate this policy,” so a
reasonable jury could infer that Moye’s discipline was without reason and suspicious.
Corrected Appellants’ Br. at 60–61. But this argument does nothing to show that
XPO’s terminating Moye, for separate conduct, was suspicious. And considering this
argument with the rest of Moye’s assertions does not cross the line to create a
genuine issue of material fact on pretext. So the district court properly granted XPO
summary judgment on Moye’s retaliation claims, and we affirm.
XPO disputes only the third element of McGee’s prima facie retaliation case:
causal connection. McGee reported to Mahr that the male, senior DSR had refused to
ride with her on April 14, 2016, and provided Mahr a written complaint of race and
gender discrimination on April 19. Three days later, on April 22, XPO fired her. This
close temporal proximity between McGee’s complaints and termination alone
suffices to allow the inference of a retaliatory motive. See Anderson, 181 F.3d
at 1179 (citations omitted). But XPO asserts that there is no causal connection
because McGee provides no evidence that Huner, who decided to terminate McGee
(on Mahr’s recommendation), knew of McGee’s complaints. See Singh, 936 F.3d
47 at 1043 (“Plaintiff must therefore point to evidence that those who acted against him
knew of his formal complaints.”). XPO points to Huner’s affidavit stating that he is
“not aware of any complaints made by McGee during her employment regarding
discrimination of any kind.” App. vol. 3 at 505. But Huner decided to terminate
McGee only at Mahr’s recommendation—Mahr could not terminate employees and
had to get Huner’s approval. Mahr indisputably knew of McGee’s complaints when
she recommended that Huner terminate McGee, and Huner ostensibly relied solely on
this recommendation in approving McGee’s termination. These two facts satisfy the
causal connection under the cat’s paw theory. See Montes v. Vail Clinic, Inc., 497
F.3d 1160, 1176 (10th Cir. 2007) (requiring for a causal nexus that a plaintiff show
that “the person allegedly harboring discriminatory animus[] knew and used . . . the
person who effected the adverse action, ‘as a cat’s paw to effect . . . her own biased
designs’” (second ellipsis in original) (quoting Young v. Dillon Cos., 468 F.3d 1243,
1253 (10th Cir. 2006))). Huner merely acted as the cat’s paw approving Mahr’s
recommendation, so McGee has established a prima facie case of retaliation.
Accordingly, we must continue our McDonnell Douglas analysis. McGee
concedes that XPO’s proffered reason for her termination is nondiscriminatory. See
supra Discussion Part III. In response, XPO argues that she fails to establish pretext
on her retaliation claims because she raises the same pretext arguments that she did
for her discrimination claims. But we have already concluded that McGee presented
sufficient evidence to create a genuine issue of material fact regarding pretext. See
supra Discussion Section III.C. She has thus also survived summary judgment on her
48 retaliation claims. So we reverse the district court’s grant of summary judgment on
her retaliation claims.
CONCLUSION
For the foregoing reasons, we affirm the grant of summary judgment on all of
Mann’s and Moye’s claims and McGee’s harassment claims. We reverse the grant of
summary judgment on McGee’s discrimination and retaliation claims and remand for
further proceedings.
Entered for the Court
Gregory A. Phillips Circuit Judge
Related
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