F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 8 2000 TENTH CIRCUIT PATRICK FISHER Clerk
MOHAMMAD M. SHINWARI,
Plaintiff - Appellant, v. No. 98-3324 (D.C. No. 97-CV-2617) RAYTHEON AIRCRAFT (District of Kansas) COMPANY,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, PORFILIO and LUCERO, Circuit Judges.
This employment case involves the termination of an aircraft engineer,
allegedly in retaliation for activity protected by Title VII of the Civil Rights Act,
42 U.S.C. § 2000e-3(a), and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623(d). Appellant Mohammad Munir Shinwari appeals
the district court’s grant of summary judgment in favor of his former employer,
defendant Raytheon Aircraft Company. This case requires us to examine the
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. activities protected by the participation and opposition clauses of the anti-
retaliation provisions of those statutes. Additionally, it requires us to consider, as
in so many employment discrimination cases, the sufficiency of plaintiff’s
evidence of pretext in the employer’s non-discriminatory reason for taking
adverse action. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm.
I
Plaintiff Shinwari is a “caucasian” male of Pakistani national origin. He
was approximately fifty years old at the time of the relevant events. He was hired
as a Senior Engineer by defendant Raytheon in early 1994, at a somewhat lower
salary than the mid-point for engineers of his job grade. After first coming to
Raytheon, Shinwari worked with Richard Gaines, who was involved in the
decision to hire him, for between six months and one year. Shinwari received
three annual performance review ratings—1994 (from Gaines), 1995, and
1996—of overall “fully competent.” (II Appellant’s App. Tabs 3, 5, 7; III
Appellant’s App., Gaines Dep. at 14-15.)
In late 1995, Shinwari was transferred to a new aircraft program, the
“Hawker Horizon” program, based on his qualifications and a recommendation
from Gaines. (III Appellant’s App., Arnold Dep. at 1-3, 21-23.) The Hawker
Horizon group was directed by Sam Bruner, and Shinwari reported to Bruner’s
-2- subordinate, Eddy Arnold, from November 1995 through mid-1996. In June 1996,
Gaines was transferred into the Hawker Horizon program and some time
thereafter again became Shinwari’s supervisor.
Raytheon presented evidence of several alleged objective errors in
Shinwari’s work. Gaines described one incident wherein Shinwari selected a non-
standard part for an admittedly minor detail in a proposed engineering drawing,
and then refused to change the proposal after Gaines instructed him to use a more
common part. Another incident involved alleged calculation errors by Shinwari,
during early 1996, regarding an ice protection system. Derek Rounds, an engineer
who had come from England along with the Hawker aircraft program, found
errors, including inaccurate assumptions, in Shinwari’s calculations; Gaines’s
evaluation confirmed the inaccuracies. According to Gaines, Shinwari denied
making errors. Shinwari in his deposition continued to maintain there were no
errors in the calculations and claimed that another employee, Ted Seely, agreed
that there were no problems. The record contains no affidavit or deposition
testimony by Seely.
Arnold, Shinwari’s supervisor in the Hawker program, gave him an overall
“fully competent” rating in his September 1996 annual performance review,
noting, however, that Shinwari had difficulty accepting criticism and needed to
-3- exercise greater care in reducing errors. Arnold stated that he added the comment
regarding error reduction at the behest of Bruner.
Shinwari was dissatisfied with this review and complained, in late
September 1996, to Nita Long, Raytheon’s Director of Personnel Relations in
Employment, alleging the review was inaccurate and discriminatory, but not
alleging specific instances of discrimination. Long was in charge of Equal
Employment Opportunity (“EEO”) programs for Raytheon.
Around this time, Gaines and Shinwari began having increased difficulty
with one another, with Gaines complaining to Arnold of Shinwari’s “arrogant
incompetence,” (III Appellant’s App., Arnold Dep. at 54-55,) and Shinwari
protesting the appointment of Gaines as lead supervisor of their engineering team
without his (Shinwari’s) prior notification.
The situation apparently worsened in October of 1996, after Gaines become
Shinwari’s immediate supervisor. Raytheon employees describe at least two
incidents of errors or inappropriate conduct by Shinwari during this period. In
one, Shinwari sent a memorandum to senior managers describing how one aircraft
system should be configured, without sending it to his immediate supervisors,
Gaines and Art Kavie. According to Kavie, this led the managers to conclude,
erroneously, that the memorandum contained the views of his entire group, rather
-4- than Shinwari’s proposals, which were directly contrary to Gaines’s instructions
to him.
Another October 1996 incident involved a proposed specification to be sent
to suppliers regarding a pressurization control system. According to Gaines,
Shinwari’s work on this project was patently deficient, yet Shinwari refused to
revise it at his request. Shinwari denies that his work product was in any way
incorrect.
Following the September 1996 performance review and these incidents,
Long and Shinwari met on October 23, 1996. Shinwari stated in his deposition
that “I told Nita Long that the performance review that I have gotten are biased,
and I see quite a bit of discrimination.” (III Appellant’s App., Shinwari Dep. at
468.) He does not indicate whether he alleged the basis—age, national origin, or
otherwise—of this perceived discrimination. Long denies that Shinwari made any
allegation of age or national origin discrimination at their meeting.
At the request of both Shinwari and his supervisors, Long set up meetings
between them to attempt to resolve the conflict. Shinwari states that on
November 15, 1996, at one such meeting with Long, Arnold, and Bruner, he
complained, verbally, of “bias and discrimination,” in protesting his performance
-5- evaluation. (III Appellant’s App., Shinwari Dep. at 611.) 1 At the second of the
two meetings later that same day, Shinwari’s supervisors issued him a “special”
performance review rating him unsatisfactory in almost all categories. Shinwari
refused to sign the review and responded that the review was unjustified and
based on discrimination as well as in retaliation for his opposition to the
September review and alleged earlier complaints of discrimination. After the
meeting, conflict between Shinwari and Gaines continued.
At a November 27, 1996, meeting, Shinwari responded in writing to his
special performance review, disagreeing with all the particulars. He also attached
a note to Long’s copy of this memorandum, stating that “I believe that the Special
Review was done in retaliation for my having met with you and raised
complaints,” and specifying that he had begun to believe the review was
motivated by age and national origin discrimination, although he “[did] not have
any proof.” (II Appellant’s App. at 15.) According to Long, she did not show
this attachment to anyone, nor investigate further Shinwari’s allegations, because
it was clear to her he was simply “looking for a way around the fact that his
performance was unsatisfactory.” (III Appellant’s App., Long Dep. at 344.)
1 Shinwari, in his deposition, did not specify the type of discrimination to which he referred.
-6- Problems in Shinwari’s work continued, including, according to Gaines,
handwritten and poor-quality work, and failure to take direction. In December
1996, Shinwari received a comparatively small merit pay increase; on January 13,
1997, he e-mailed Long with further complaints, stating that “I strongly believe
that I am, on a regular basis, discriminated against, because of my age and other
background.” (II Appellant’s App. at 23.)
In mid-January, after Shinwari’s supervisors informed Long that problems
with Shinwari continued and they wanted him transferred, no other supervisors
were willing to accept him. On or around January 17, Art Kavie, director of the
Hawker design group, decided to terminate Shinwari, with the approval of Bruner.
Raytheon offered him the choice of resignation or involuntary termination.
Shinwari chose the latter, complained to the EEOC, and eventually sued, alleging
age and national origin discrimination and retaliation. Prior to summary
judgment, he dropped the discrimination claims, leaving only his retaliation
claims for resolution by the court.
The district court granted summary judgment in favor of Raytheon on both
of Shinwari’s retaliation claims. As for the ADEA retaliation claims, it found no
prima facie case of retaliation because Shinwari lacked a reasonable belief age
discrimination had occurred, and that even if he made a prima facie case, he
failed to rebut Raytheon’s neutral reasons for termination. On the Title VII
-7- retaliation claims, the court found an absence of pretext evidence and granted
summary judgment to Raytheon on that ground.
II
Considering this appeal from an award of summary judgment, we employ
our customary standard of review:
We review a grant of a motion for summary judgment de novo, applying the same legal standard used by the district court. See Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). We view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. See Byers, 150 F.3d at 1274.
McGarry v. Board of County Comm’rs, 175 F.3d 1193, 1198 (10th Cir. 1999).
Both Title VII and the ADEA, in similar language, make it unlawful to
retaliate against an employee for engaging in certain protected activities. See 42
U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 623(d) (ADEA).
“Title VII retaliation claims generally proceed under the McDonnell
Douglas burden-shifting analysis.” McGarry, 175 F.3d at 1201 (citing Sauers v.
Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993)); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The same standard applies to
ADEA retaliation claims. See Anderson v. Phillips Petroleum Co., 861 F.2d 631,
634 (10th Cir. 1988); see also Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)
-8- (clarifying the showing of intent required to prove discrimination). The familiar
McDonnell Douglas framework consists of plaintiff’s prima facie case,
defendant’s neutral reason for its action, and plaintiff’s rebuttal of the neutral
reason by means of pretext evidence. See, e.g., Butler v. City of Prairie Village,
172 F.3d 736, 747-48 (10th Cir. 1999). We therefore examine in turn each aspect
of this analysis of circumstantial evidence of retaliatory motive.
A. Prima Facie Case
The district court found Shinwari had failed to establish a prima facie case
of retaliation under the ADEA, although it found Raytheon had failed to carry its
summary judgment burden as to Shinwari’s prima facie case of Title VII national
origin retaliation. To establish a prima facie case of retaliation under either
statute, a plaintiff “must show: (1) that he engaged in protected opposition to
discrimination; (2) adverse action by [defendant] subject to the protected activity;
and (3) a causal connection between [plaintiff’s] protected opposition and the
adverse action.” McGarry, 175 F.3d at 1201 (citing Griffith v. Colorado, 17 F.3d
1323, 1331 (10th Cir. 1994); Archuleta v. Colorado Dep’t of Insts., 936 F.2d 483,
486 (10th Cir. 1991)).
1. Protected opposition
a. Participation
-9- Title VII establishes two categories of protected activity: participation and
opposition. See 42 U.S.C. § 2000e-3(a) (prohibiting retaliation because an
employee “has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter”). Because the retaliation provision of the ADEA, 29 U.S.C. § 623(d),
is identical in all material respects to the retaliation provision of Title VII, 42
U.S.C. § 2000e-3(a), we readily discern congressional intent to approach the two
provisions in an identical manner. See 8 Lex K. Larson, Employment
Discrimination, § 129.01, at 129-1 to 129-2 & n.2 (2d ed. 1999).
The participation clauses prohibit an employer from retaliating “against an
employee or applicant for employment because she ‘made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” Brower v. Runyon, 178 F.3d 1002, 1005 (8th Cir. 1999)
(quoting 42 U.S.C. § 2000e-3(a)) (emphasis omitted). “Conduct is only protected,
however, if it qualifies as participation ‘in any manner’ in a Title VII
‘investigation, proceeding, or hearing.’” Id. (quoting 42 U.S.C. § 2000e-3(a)).
“The participation clause is designed to ensure that Title VII protections are not
undermined by retaliation against employees who use the Title VII process to
protect their rights.” Id. at 1006 (citing Hashimoto v. Dalton, 118 F.3d 671, 680
-10- (9th Cir. 1997)). Because of this purpose, “[a] plaintiff may maintain an action
for retaliation based on participation in a protected proceeding regardless of
whether the conduct forming the basis of her underlying complaint is adjudged to
violate Title VII.” Jeffries v. Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998)
(citing Archuleta, 936 F.2d at 487; Wyatt v. City of Boston, 35 F.3d 13, 15 (1st
Cir. 1994)). As noted above, the same analysis applies with respect to claims
under the anti-retaliation clauses of the ADEA, 29 U.S.C. § 623(d).
Shinwari argues that his internal complaints within the company are
protected under the participation prong of the retaliation provision. This
argument is without merit. Complaints to management, even informally, can
under some circumstances be sufficient to invoke the participation clause. See
Jeffries, 147 F.3d at 1231 & n.9. The facts of this case, however, fall far short of
those in Jeffries. There, the plaintiff delivered a letter to the superintendent of
her employer hospital describing acts of sexual harassment, a letter the hospital
treated as a formal complaint and assigned EEO representatives to address. See
id. at 1226. Here, Shinwari’s allegations of discrimination were simply
conclusory statements offered against his own performance review, without
sufficient detail for the company or the EEOC to know what to investigate. The
Eighth Circuit has held that
[n]ot all discussions with individuals who are part of the Title VII grievance process or all informal complaints will amount to
-11- participation in a Title VII proceeding, however. At a minimum there would have to be factual allegations of discrimination against a member of a protected group and the beginning of a proceeding or investigation under Title VII.
Brower, 178 F.3d at 1006 (citing Ghane v. West, 148 F.3d 979, 982 (8th Cir.
1998)). We reject the contention that the fact that no investigation ensued will
always automatically defeat application of the participation clause, because
serious problems would undoubtedly arise if an EEO counselor declined to
investigate claims that, unlike Shinwari’s, included specific factual allegations.
We decline, however, to extend the Title VII and ADEA participation clauses to
include generalized and cursory complaints, unsupported by specific factual
allegations, to an employer when those cursory complaints are neither related to,
nor would reasonably lead to a proceeding provided for by statute.
b. Opposition
“The [Title VII] retaliation provision also contains an ‘opposition clause’
which prohibits retaliation against an employee or applicant for employment
because she ‘opposed any practice made an unlawful employment practice by this
subchapter.’” Brower, 178 F.3d at 1005 n.3 (quoting 42 U.S.C. § 2000e-3(a)).
As previously noted, we apply a similar analysis to ADEA retaliation claims.
Because the record before us could support a conclusion that Shinwari
engaged in opposition to alleged discrimination, but not that he participated in
proceedings under the relevant statutes, he must therefore show that his
-12- opposition was to at least a perceived practice prohibited by either Title VII or the
ADEA. We have held that “opposition activity is protected when it is based on a
mistaken good faith belief that Title VII has been violated.” Love v. RE/MAX of
Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984) (citations omitted).
The district court mischaracterized our standard when it stated that the
belief that antidiscrimination law has been violated must not only be subjectively
in good faith but objectively reasonable, citing Eleventh Circuit authority. See
Little v. United Techs., 103 F.3d 956, 960 (11th Cir. 1997). However, our
Circuit’s standard requires only a subjectively good faith belief. See Jeffries, 147
F.3d at 1231; Love, 738 F.2d at 385; see generally 2 Larson, Employment
Discrimination, § 34.03[2], at 34-36 to 34-41 and nn.54-60 (noting that the First
and Tenth Circuits have adopted a good faith belief test, by contrast to the
Eleventh Circuit’s reasonableness test, and only the Second and Seventh Circuits
require both good faith and reasonableness). Under Love, 738 F.2d at 385, the
only question in determining whether Shinwari’s complaints of discrimination
constituted protected opposition is whether those complaints were made in good
faith.
Raytheon offers considerable evidence of older and Pakistani employees
being reviewed and paid well to rebut Shinwari’s ultimately abandoned
discrimination claims, undermining the objective reasonableness of those claims.
-13- Shinwari points to several instances, however, apart from his own adverse
evaluations and alleged under-compensation, which he maintains led him to
develop a good faith belief in both age and national origin discrimination. These
were:
(1) plaintiff’s belief that his 1996 performance evaluation reflected bias toward older employees; (2) Arnold’s comment about plaintiff’s salary; (3) the fact that “there was one time” when Arnold did not let plaintiff, Seely or Davidson participate in a presentation to “very upper management;” (4) plaintiff’s belief that Seely, Davidson, Ungezene and other unidentified over-40 engineers had been demoted or relieved of leadership responsibilities; (5) the fact that Raytheon selected Gaines, rather than plaintiff, as lead engineer on the environmental control system team; and (6) a conversation where Seely told plaintiff that he was not happy with his performance evaluation.
(I Appellant’s App. Doc. 3 at 22.)
Review of the record reveals that Shinwari’s allegations of discrimination
are generally vague, conclusory, and unsupported by specific factual instances.
Nevertheless, there are claims which arguably could support a good-faith, albeit
mistaken, belief that Raytheon was engaged in age discrimination. Specifically,
he points to responsibility being taken away from a fifty-seven-year-old
employee, Ted Seely, and to one instance when Arnold announced he was going
to give the opportunity to make a presentation to “the younger leads.” (III
Appellant’s App., Shinwari Dep. at 445.) Although Raytheon points to facts
indicating that these instances were not discriminatory, its arguments are not so
-14- patently obvious as to persuade us that no reasonable fact-finder could consider
Shinwari’s alleged belief to have been in good faith. We note, however, that all
Shinwari’s cited instances pertain to alleged age, and not national origin,
discrimination. The district court nevertheless found in favor of Shinwari as to
protected activity under Title VII, based on Raytheon’s failure to address facts
specific to his Title VII retaliation claim. Because Raytheon’s Title VII argument
on appeal is likewise restricted to the issue of pretext, and because we agree with
the district court on the dispositive question of pretext, we do not disturb the
lower court’s conclusion that Raytheon failed to carry its burden as summary
judgment movant on this point.
2. Adverse Action
Raytheon concedes that Shinwari’s termination qualifies as an adverse
action for the purposes of establishing a prima facie case of unlawful retaliation.
3. Causation
To develop a prima facie case of retaliation, a plaintiff must show not only
protected activity and adverse action, but also a causal relationship between the
two. “The requisite causal connection may be shown by producing ‘evidence of
circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action.’” McGarry, 175 F.3d at 1201
(quoting Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir. 1982)).
-15- “Unless the termination is very closely connected in time to the protected
conduct, the plaintiff will need to rely on additional evidence beyond mere
temporal proximity to establish causation.” Conner v. Schnuck Markets, Inc., 121
F.3d 1390, 1395 (10th Cir. 1997). The district court properly found sufficient
temporal proximity to establish an inference of causation, but found that
inference refuted by of lack of evidence of knowledge of Shinwari’s complaint
by the relevant decision-makers. While it is apparent that protected activity
cannot bear a causal relationship to adverse action if those taking the action were
unaware of the existence of the protected action, we disagree with the district
court’s conclusion that the summary judgment materials cannot support an
inference of such awareness.
The district court’s conclusion that Raytheon had refuted causation, in the
context Shinwari’s ADEA claim, by showing a lack of knowledge on the part of
the relevant decision-makers relied in part on deponent Bruner’s retraction of his
deposition testimony in a correction, as noted in the district court’s order at 17
n.19. During his deposition, Bruner stated that “[a]t some point in time we
received a document from Mohammad stating that he had been—he felt he had
been discriminated against.” (III Appellant’s App., Bruner Dep. at 135.) At that
point, Shinwari’s counsel handed Bruner a copy of Shinwari’s January 13, 1997,
e-mail to Long, which alleged “I strongly believe that I am . . . discriminated
-16- against, because of my age and other background.” ( II Appellant’s App. at 22-
23). Bruner stated that “[y]es, this is the one I am talking about,” and explained
that he probably discussed it with Kavie, Gaines, and Arnold. (III Appellant’s
App., Bruner Dep. at 135.) When asked “when that conversation took place,” he
responded “probably . . . the day this came out, because this is the sort of thing
that would probably generate some response among the recipients.” ( Id. at 136.)
When asked how he got a document addressed only to Long, he replied “[m]aybe
Nita gave me a copy, I don’t know, but I got a copy.” ( Id. ) This deposition
testimony, viewed in the light most favorable to Shinwari, supports an inference
that Bruner received the note from Long—and discussed it with Gaines, Kavie,
and Arnold—around January 13, 1997, although Long denies having given it to
anyone until the EEOC investigation.
In his deposition corrections, Bruner changed the answer to the question
regarding when he saw the January 13, 1997, e-mail to Long to read “[w]e had
that conversation during the time we were preparing for the interviews with the
EEOC investigator.” (I Appellee’s Supp. App. at 161.) The district court relied
on this correction to conclude that no one other than Long—i.e. no decision-
makers with respect to Shinwari—saw the January 13, 1997, e-mail until after
Shinwari’s termination.
-17- Shinwari argues, however, that Fed R. Civ. P. 30(e), permitting deposition
corrections, does not render previous testimony inadmissible, citing Podell v.
Citicorp Diners Club, Inc. , 112 F.3d 98, 103 (2d Cir. 1997). This is the
appropriate rule, particularly when a deponent attempts to use correction to
eliminate a substantively harmful statement, rather than to correct problems such
as transcription errors. Under such circumstances, “[t]he original answer to the
deposition questions will remain part of the record and can be read at the trial.”
Id. (citations omitted). The possibility of impeachment of Bruner with his
original testimony, therefore, would appear to create at least a dispute of material
fact as to knowledge of the January 13 e-mail on the part of Bruner,
and—viewing the evidence in the light most favorable to Shinwari—Gaines,
Kavie, and Arnold as well.
The January 13, 1997, e-mail, refers clearly to alleged age discrimination,
but also mentions discrimination because of Shinwari’s “other background.” (II
Appellant’s App. at 23.) As to Shinwari’s November 27, 1996, note to Long,
specifically mentioning national origin discrimination, Long denies its circulation
to anyone else prior to Shinwari’s termination. Bruner’s testimony is that he
cannot recall when he first saw that document, that is, “whether [it] was before or
after Mr. Shinwari’s termination.” (III Appellant’s App., Bruner Dep. at 137.)
Additionally, although Shinwari’s deposition testimony is vague on the point, it
-18- creates a factual dispute as to whether he made oral allegations of some type of
discrimination at the November 15, 1996, meeting with Long, Arnold, and
Bruner. Viewing all this evidence in the light most favorable to Shinwari, we
conclude it could support an inference of knowledge and therefore causation as
to claims of both age and national origin discrimination.
Therefore, we conclude that “for purposes of summary judgment, the[]
evidence and the reasonable inferences drawn therefrom, together with the close
temporal relationship” between Shinwari’s complaints of discrimination and his
termination, “demonstrate that [Shinwari] has met his burden of establishing a
prima facie case of retaliation.” McGarry , 175 F.3d at 1201 (citing Candelaria v.
EG & G Energy Measurements, Inc. , 33 F.3d 1259, 1261-62 (10th Cir. 1994)).
B. Defendant’s Neutral Reason
“As with discrimination claims, once the plaintiff has established a prima
facie case of retaliation, the employer has the burden of coming forth with a
legitimate, nondiscriminatory reason for its adverse action.” Butler , 172 F.3d at
752 (citing Sauers , 1 F.3d at 1128). Once Shinwari established his prima facie
case of retaliation, the burden shifted to Raytheon to show a legitimate reason for
his termination. See McGarry , 175 F.3d at 1201. Raytheon has met this burden.
Although Shinwari raises factual disputes over specifics, given the nature of the
employer’s burden at this stage, there is enough uncontroverted evidence of
-19- perceived deficient performance to require pretext evidence.
C. Pretext
Once the defendant presents evidence of a neutral reason, “even though a
plaintiff has established a prima facie case, the defendant is entitled to summary
judgment unless the plaintiff produces either direct evidence of discrimination or
evidence that the defendant’s proffered reason for the action taken was
pretextual.” Conner , 121 F.3d at 1397. Following presentation of evidence of the
defendant’s neutral reason , “‘the presumption of [impermissible motive] simply
drops out of the picture,’” and the analysis shifts to the plaintiff’s ultimate burden
of showing that the defendant took action on an illegal basis—in this case,
retaliation for protected activity. Id. at 1396 (quoting St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 510-11 (1993)). The plaintiff may then resist summary
judgment if she can present evidence that the proffered reason was pretextual,
“i.e. unworthy of belief,” Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.
1995), or “otherwise introduces direct evidence of illegal . . . motive,” id. at 453.
“Effective cross-examination, combined with the plaintiff’s initial evidence, may
be sufficient to effect this task.” Roberts v. Roadway Express, Inc., 149 F.3d
1098, 1103 (10th Cir. 1998) (citations omitted); see also Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). “To avoid
summary judgment, a plaintiff need not demonstrate that [impermissible] reasons
-20- motivated the employer’s decision.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1321-
22 (10th Cir. 1997) (citation omitted). Rather, he or she must simply point to
facts that could lead a reasonable jury to disbelieve the employer’s proffered
reason. See Butler , 172 F.3d at 750-51.
Allegations of retaliation do not relieve a plaintiff of this burden, which
can be met either by direct evidence of retaliatory motive or by showing that the
employer’s reasons were pretextual. See Conner , 121 F.3d at 1396-97. Temporal
proximity between protected activity and adverse action may combine with
additional circumstantial evidence to create a fact issue as to pretext. See Butler ,
172 F.3d at 752. This is not the case here, because Shinwari points to virtually
no additional evidence, resting principally on his prima facie case. Shinwari’s
argument on this point was rejected in Conner , 121 F.3d at 1397-98. 2 As noted in
the unpublished case of Trujillo-Cummings v. Public Serv. Co. , No. 97-2337,
1999 WL 169336, at **3 (10th Cir. March 29, 1999):
The fact that temporal proximity may support an inference of causation sufficient to establish a plaintiff’s prima facie case does not automatically demonstrate that a defendant’s proffered justifications are pretextual. While a discharge is retaliatory if “the
2 We recognize that our discussion of retaliation in Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996), which did not examine in detail the McDonnell Douglas framework, has led litigants to contend that case stands for the proposition that a prima facie case, in the retaliation context, necessarily also establishes pretext. However, the court in Conner, 121 F.3d at 1398, specifically rejected such a reading of Marx.
-21- immediate cause or motivating factor of a discharge is the employee’s assertion of statutory rights,” Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir. 1992) (citations and footnote omitted), appellant confuses the inference of causation sufficient to establish a prima facie case of [retaliation] with her ultimate burden of proving that the protected action was indeed the cause of the discharge. Once the employer meets the second step of McDonnell Douglas, the inference of causation drops out, and a plaintiff does not carry his or her burden until he or she offers some evidence of pretext in the employer’s legitimate reason. See Conner, 121 F.3d at [1398] (refusing to read Marx as “holding that protected conduct closely followed by adverse action always justifies an inference of retaliatory motive, and thus summary judgment is always inappropriate when temporal proximity is established”).
In his reply brief, Shinwari relies on Butler ’s holding that, in certain cases,
temporal proximity between protected activity and adverse action may be
insufficient to create an inference of retaliatory motive, but with additional
evidence may nevertheless create a fact issue as to pretext. See Butler , 172 F.3d
at 752. He argues that Butler allows him to rest his pretext argument entirely on
the temporal proximity evidence here sufficient to establish the causation prong
of the prima facie case. In Butler , however, “additional circumstantial evidence,”
of pretext was present. Id. In that case, the proffered neutral justification for the
plaintiff’s termination was that his position was eliminated pursuant to a
reorganization. Evidence of pretext included resurrection of the plaintiff’s former
duties in a new position and the fact that his was the only position eliminated
while it was occupied. See id. These facts represented substantial circumstantial
evidence of pretext, making temporal proximity merely an additional factor and
-22- not a complete substitute for pretext evidence. See id. Shinwari does not offer
such evidence suggesting that his adverse evaluations and termination were
pretextual, apart from their temporal proximity to his alleged complaints. If this
were enough, the burden-shifting scheme of McDonnell Douglas would be
effectively eliminated in retaliation cases, and this Circuit has already rejected
such an approach. See Conner , 121 F.3d at 1398.
Shinwari’s reliance, in his reply brief, on McGarry , 175 F.3d at 1200-02, is
likewise misplaced. That case, like Butler , involved additional evidence of
pretext apart from temporal proximity alone—notably the employer’s failure to
keep the plaintiff’s application on file and reconsider it for a new opening
following a specific promise to do so. See id. at 1202.
Shinwari contends that he did present “additional circumstantial evidence”
of pretext, Butler , 172 F.3d at 752: namely, the sudden drop in his job evaluations
and the credibility issue created by Bruner’s subsequent retraction of deposition
testimony. Although Shinwari’s evaluations did drop precipitously between his
September 1996 annual evaluation and his special performance review only a few
months later, Raytheon cites to extensive and unrefuted record evidence
supporting such a re-evaluation. Moreover, the comments on Shinwari’s
September 1996 regular review regarding errors and sensitivity to criticism reveal
that Arnold and Bruner were aware that problems of careless work and difficulty
-23- in dealing with criticism were ongoing—problems that are consistent with those
identified in the special performance review.
More importantly, Shinwari has produced no evidence that Raytheon’s
explanation of the underlying cause of the abrupt drop in performance evaluation
lacks credibility. Indeed, while he maintains that there are factual disputes as to
the errors and instances of insubordination at issue, review of the record reveals
that the only dispute arises from Shinwari’s subjective evaluations of his own
performance. While Shinwari’s deposition is replete with broad contentions such
as one that anyone in the aircraft industry would confirm that he is one of the
finest engineers in that industry, such confirmation is conspicuously absent from
the record—as is any affidavit or deposition testimony by anyone other than
Shinwari himself confirming that his calculations were correct or his behavior
acceptable. Highly generalized and self-serving evaluations of one’s own
performance are not sufficient to create a genuine issue of material fact as to the
sincerity, as opposed to the correctness, of an employer’s negative performance
evaluation. See, e.g. , Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 747 (10th Cir.
1991) (holding that “a plaintiff cannot prevail by merely challenging in general
terms the accuracy of a performance evaluation which the employer relied on in
making an employment decision without any additional evidence (over and above
-24- that of the prima facie case)” (citing Branson v. Price River Coal Co. , 853 F.2d
768, 772 (10th Cir.1988)).
The more difficult question, in our view, is whether Bruner’s amendment
of his deposition testimony regarding his receipt of Shinwari’s January 13, 1997,
e-mail alleging discrimination might suffice to call into question the sincerity of
Raytheon’s professed motive for terminating Shinwari. Viewing the evidence in
the light most favorable to Shinwari, we conclude that cross-examination of
Bruner as to the discrepancy between his initial statement and the later correction
could lead to an inference that he was seeking to conceal his knowledge of
Shinwari’s complaint of discrimination. As discussed above, such an inference
supports the causation element of Shinwari’s prima facie case, but we are not
persuaded that this fact alone suffices to carry the day on the question of pretext.
Viewing the entirety of the evidence in context, we conclude that this single
isolated inconsistency is not sufficient to undermine the sincerity of Raytheon’s
professed motive for taking adverse action, particularly as the inconsistency at
issue is not immediately related to that professed motive, and does nothing to
undermine the allegations of deficient performance by Shinwari’s other
supervisors, whose credibility is not similarly undermined. Such a view is
bolstered by the fact that not Bruner, but rather Kavie, participated in the initial
decision to terminate Shinwari. In short, taking the facts in the light most
-25- favorable to Shinwari, even if Bruner was aware of Shinwari’s January 13, 1997,
e-mail but tried to conceal that awareness, in the context of the totality of the
facts in the record before us, that single fact is not sufficiently material to the
specific reasons proffered for Shinwari’s termination to establish pretext without
some additional evidence thereof.
Shinwari relies on Dey v. Colt Construction & Development Co. , 28 F.3d
1446, 1460-61 (7th Cir. 1994), for the proposition that this inconsistency
constitutes sufficient evidence of pretext to prevent summary judgment. ( See
Appellant’s Br. at 25.) In Dey , however, the court found evidence sufficient to
support an inference of pretext based on specific refutations of particular
instances of alleged misconduct, corroborated by the testimony of co-workers.
See id. Here, Shinwari, unlike Dey, denies none of the incidents cited by
Raytheon as grounds for his termination, but simply maintains, without
corroboration, that he was in the right in each of them. The only “denials of
knowledge of a complaint,” (Appellant’s Br. at 25,) at issue in the pretext
analysis in Dey were denials by a supervisor that other employees had
complained to him about alleged deficiencies in the plaintiff’s performance, and
therefore that case simply does not affect the separate issue of whether a
manager’s denial of receipt of a discrimination complaint—called into question
by inconsistent deposition testimony—automatically suffices in and of itself as
-26- evidence of pretext in a retaliation case. The text of Dey cited by Shinwari, see
28 F.3d at 1459, deals with the distinct issue of the relevance of a disputed denial
of receipt of a complaint to the question of whether an employer was aware of the
protected activity. See id. at 1458-59. Therefore, we conclude that Dey is not
applicable to the particular question before us.
While there certainly may be cases where a manager’s rebutted denial of
knowledge of an employee’s complaint would be sufficient to question the
sincerity of the manager’s professed motives for terminating the employee, see
Roberts , 149 F.3d at 1103, this is not such a case. As we have often stated, the
pretext inquiry is highly fact-specific. See Conner , 121 F.3d at 1398. Based on
review of the summary judgment materials before us, we conclude that the
evidence of Shinwari’s deficient performance is so overwhelming and unrefuted
that the single inconsistency in Bruner’s deposition testimony cannot suffice to
carry Shinwari’s burden of showing pretext at the summary judgment stage.
III
The judgment of the district court is AFFIRMED .
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge
-27-