Thomas v. Farmers Insurance Exchange
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Opinion
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSHUA O. THOMAS,
Plaintiff - Appellant, No. 20-3076 v. (D.C. No. 2:18-CV-02564-DDC) (D. Kansas) FARMERS INSURANCE EXCHANGE,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________
Farmers Insurance Exchange (“Farmers”) employed Joshua Thomas as a service
advocate in its Olathe, Kansas, office. Mr. Thomas is gay and male. He claims Farmers
discriminated against him by not selecting him for an Account Underwriter Specialist
(“AU”) position, retaliated against him by issuing a final warning when he filed a
discrimination complaint, and then retaliated against him again by terminating his
employment when he filed this lawsuit. The district court granted Farmers’ motion for
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. summary judgment and Mr. Thomas appeals. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
Farmers is a Nevada corporation registered to do business in Missouri, with a
service center in Olathe, Kansas. On March 9, 2015, Farmers hired Mr. Thomas to work
as a service advocate at the Olathe service center. Farmers originally hired Mr. Thomas
as a Service Advocate II, and promoted him to Senior Service Advocate in April 2016. In
both positions, Mr. Thomas was responsible for handling calls about policies and
accounts. Mr. Thomas had three direct supervisors over the course of his employment
with Farmers: he reported to Jeanann Sebers from March 2015 to March 2018, Jarrod
Shelton from March 2018 to September 2018, and Curt Sims from September 2018 until
his termination in October 2018.
According to his affidavit, Mr. Thomas “did not conform to stereotypes of how
males behave and act[ed] in a way that was noticeable to [his] coworkers” during his
employment with Farmers. App., Vol. III at 538. This included wearing clothing which,
“though professional, was very stylish and fashionable”; being “very attentive to [his]
appearance and hygiene and ke[eping his] desk very tidy”; and “socializ[ing] primarily
with [his] female co-workers while most male co-workers socialized with other male co-
workers.” Id. at 538–39.
2 Performance History
Mr. Thomas’s supervisors periodically monitored and reviewed his performance
as a Senior Service Advocate. The record reflects interactions between Mr. Shelton and
Mr. Thomas beginning in March 2018 regarding Mr. Thomas’s demeanor during service
calls. During these “coaching sessions,” Mr. Shelton instructed Mr. Thomas to stop
exhibiting obvious frustration, interrupting others, and using a condescending tone during
calls with agents.1 Numerous instances of these coaching sessions appear in
Mr. Shelton’s weekly reports. See App., Vol. II at 297 (“I’ve been working very closely
with [Mr. Thomas] on . . . how he tends to let his aggression show when frustrated” –
email dated March 21, 2018); id. at 299 (“I’m still working closely with [Mr. Thomas] on
his verbal skills toward agents. This is one of my highest priorities at the moment” –
email dated March 31, 2018); id. at 301 (“Had a very in-depth conversation yesterday
with [Mr. Thomas] with how he gets frustrated on the phone” – email dated April 4,
2018). In a May 10, 2018, email, Mr. Shelton reported he had “coached [Mr. Thomas] as
much as I can, so now I’m in an observation period to see if he responds to the coaching
or keeps with his ways and this will determine my next steps of corrective action.” Id. at
319.
Mr. Thomas also received some positive feedback over this period. For example,
on March 31, 2018, Mr. Shelton wrote to Mr. Thomas: “I appreciate how open you are to
1 Mr. Thomas’s prior supervisor, Ms. Sebers, also coached Mr. Thomas about his tone and demeanor in a phone call in January 2018.
3 feedback and I know you’re going to do well in this area.” App, Vol. III at 659. And on
May 1, 2018, Ms. Canton described a coaching experience with Mr. Thomas as
particularly positive.
Application for AU Position
On April 2, 2018, Mr. Thomas applied to fill one of two AU vacancies in Phoenix,
Arizona. Farmers accepted only internal applications and ten Farmers’ employees
applied. Mr. Thomas was the only candidate from Olathe. Eight of the other candidates
already worked in Phoenix and the final candidate worked in Round Rock, Texas.
John Radliff, a Personal Lines Field Underwriting Manager with Farmers, was the
person making the hiring decisions for the AU positions. Mr. Radliff worked in Olathe.
While the positions were open, Mr. Shelton, Mr. Thomas’s supervisor at the time,
mentioned to Mr. Radliff that Mr. Thomas could easily move to Phoenix because
Mr. Thomas was single, had no children, and owned a condominium he could sell.
Mr. Shelton later described this conversation to Mr. Thomas as an attempt to bolster
Mr. Thomas’s candidacy.
Along with another manager, Mr. Radliff interviewed all ten candidates. An
interview guide contained a set of competencies to be explored during the interviews:
“Teamwork; Decisiveness; Persuasiveness; Customer Service Skills/Customer
Orientation; Manage Change.” Id. at 646. In his deposition, Mr. Radliff testified he “was
looking for three characteristics[:] . . . decisiveness, customer service, and . . . leadership
or teamwork.” App., Vol. I at 222. Mr. Radliff checked a box indicating Mr. Thomas had
demonstrated teamwork and leadership during his interview. Ultimately, Mr. Radliff did
4 not select Mr. Thomas for either position; he instead promoted Brittany Harris and James
Parchment Chavez. Both Ms. Harris and Mr. Chavez were already located in Phoenix.
Ms. Harris is female, and Mr. Chavez is gay. Mr. Radliff was unaware of Mr. Chavez’s
sexual orientation at the time of the promotion. And there is no evidence that Mr. Radliff
knew Mr. Thomas’s sexual orientation when Mr. Radliff filled the AU positions.
After learning he had not been selected for an AU position, Mr. Thomas asked
Mr. Radliff for feedback. Mr. Radliff suggested that he and Mr. Thomas meet in person,
rather than communicate by email. The two met on April 23, 2018, and Mr. Thomas
surreptitiously recorded the meeting.2 Mr. Radliff told Mr. Thomas that although
Mr. Thomas’s interview went well, Mr. Thomas had not displayed the necessary
leadership skills. Mr. Radliff stated that if he was hiring for another position or location
at some point, “I might not need a leader, I might have a bunch of alphas over there.”
App., Vol. III at 647; see also App., Vol. II at 351 (rendering the punctuation as: “in the
future, I might not need a leader—I might have a bunch of alphas over there”).
Mr. Radliff also advised that in the future, Mr. Thomas might wish to have more and
earlier interactions with the hiring manager.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSHUA O. THOMAS,
Plaintiff - Appellant, No. 20-3076 v. (D.C. No. 2:18-CV-02564-DDC) (D. Kansas) FARMERS INSURANCE EXCHANGE,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________
Farmers Insurance Exchange (“Farmers”) employed Joshua Thomas as a service
advocate in its Olathe, Kansas, office. Mr. Thomas is gay and male. He claims Farmers
discriminated against him by not selecting him for an Account Underwriter Specialist
(“AU”) position, retaliated against him by issuing a final warning when he filed a
discrimination complaint, and then retaliated against him again by terminating his
employment when he filed this lawsuit. The district court granted Farmers’ motion for
* 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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. summary judgment and Mr. Thomas appeals. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
Farmers is a Nevada corporation registered to do business in Missouri, with a
service center in Olathe, Kansas. On March 9, 2015, Farmers hired Mr. Thomas to work
as a service advocate at the Olathe service center. Farmers originally hired Mr. Thomas
as a Service Advocate II, and promoted him to Senior Service Advocate in April 2016. In
both positions, Mr. Thomas was responsible for handling calls about policies and
accounts. Mr. Thomas had three direct supervisors over the course of his employment
with Farmers: he reported to Jeanann Sebers from March 2015 to March 2018, Jarrod
Shelton from March 2018 to September 2018, and Curt Sims from September 2018 until
his termination in October 2018.
According to his affidavit, Mr. Thomas “did not conform to stereotypes of how
males behave and act[ed] in a way that was noticeable to [his] coworkers” during his
employment with Farmers. App., Vol. III at 538. This included wearing clothing which,
“though professional, was very stylish and fashionable”; being “very attentive to [his]
appearance and hygiene and ke[eping his] desk very tidy”; and “socializ[ing] primarily
with [his] female co-workers while most male co-workers socialized with other male co-
workers.” Id. at 538–39.
2 Performance History
Mr. Thomas’s supervisors periodically monitored and reviewed his performance
as a Senior Service Advocate. The record reflects interactions between Mr. Shelton and
Mr. Thomas beginning in March 2018 regarding Mr. Thomas’s demeanor during service
calls. During these “coaching sessions,” Mr. Shelton instructed Mr. Thomas to stop
exhibiting obvious frustration, interrupting others, and using a condescending tone during
calls with agents.1 Numerous instances of these coaching sessions appear in
Mr. Shelton’s weekly reports. See App., Vol. II at 297 (“I’ve been working very closely
with [Mr. Thomas] on . . . how he tends to let his aggression show when frustrated” –
email dated March 21, 2018); id. at 299 (“I’m still working closely with [Mr. Thomas] on
his verbal skills toward agents. This is one of my highest priorities at the moment” –
email dated March 31, 2018); id. at 301 (“Had a very in-depth conversation yesterday
with [Mr. Thomas] with how he gets frustrated on the phone” – email dated April 4,
2018). In a May 10, 2018, email, Mr. Shelton reported he had “coached [Mr. Thomas] as
much as I can, so now I’m in an observation period to see if he responds to the coaching
or keeps with his ways and this will determine my next steps of corrective action.” Id. at
319.
Mr. Thomas also received some positive feedback over this period. For example,
on March 31, 2018, Mr. Shelton wrote to Mr. Thomas: “I appreciate how open you are to
1 Mr. Thomas’s prior supervisor, Ms. Sebers, also coached Mr. Thomas about his tone and demeanor in a phone call in January 2018.
3 feedback and I know you’re going to do well in this area.” App, Vol. III at 659. And on
May 1, 2018, Ms. Canton described a coaching experience with Mr. Thomas as
particularly positive.
Application for AU Position
On April 2, 2018, Mr. Thomas applied to fill one of two AU vacancies in Phoenix,
Arizona. Farmers accepted only internal applications and ten Farmers’ employees
applied. Mr. Thomas was the only candidate from Olathe. Eight of the other candidates
already worked in Phoenix and the final candidate worked in Round Rock, Texas.
John Radliff, a Personal Lines Field Underwriting Manager with Farmers, was the
person making the hiring decisions for the AU positions. Mr. Radliff worked in Olathe.
While the positions were open, Mr. Shelton, Mr. Thomas’s supervisor at the time,
mentioned to Mr. Radliff that Mr. Thomas could easily move to Phoenix because
Mr. Thomas was single, had no children, and owned a condominium he could sell.
Mr. Shelton later described this conversation to Mr. Thomas as an attempt to bolster
Mr. Thomas’s candidacy.
Along with another manager, Mr. Radliff interviewed all ten candidates. An
interview guide contained a set of competencies to be explored during the interviews:
“Teamwork; Decisiveness; Persuasiveness; Customer Service Skills/Customer
Orientation; Manage Change.” Id. at 646. In his deposition, Mr. Radliff testified he “was
looking for three characteristics[:] . . . decisiveness, customer service, and . . . leadership
or teamwork.” App., Vol. I at 222. Mr. Radliff checked a box indicating Mr. Thomas had
demonstrated teamwork and leadership during his interview. Ultimately, Mr. Radliff did
4 not select Mr. Thomas for either position; he instead promoted Brittany Harris and James
Parchment Chavez. Both Ms. Harris and Mr. Chavez were already located in Phoenix.
Ms. Harris is female, and Mr. Chavez is gay. Mr. Radliff was unaware of Mr. Chavez’s
sexual orientation at the time of the promotion. And there is no evidence that Mr. Radliff
knew Mr. Thomas’s sexual orientation when Mr. Radliff filled the AU positions.
After learning he had not been selected for an AU position, Mr. Thomas asked
Mr. Radliff for feedback. Mr. Radliff suggested that he and Mr. Thomas meet in person,
rather than communicate by email. The two met on April 23, 2018, and Mr. Thomas
surreptitiously recorded the meeting.2 Mr. Radliff told Mr. Thomas that although
Mr. Thomas’s interview went well, Mr. Thomas had not displayed the necessary
leadership skills. Mr. Radliff stated that if he was hiring for another position or location
at some point, “I might not need a leader, I might have a bunch of alphas over there.”
App., Vol. III at 647; see also App., Vol. II at 351 (rendering the punctuation as: “in the
future, I might not need a leader—I might have a bunch of alphas over there”).
Mr. Radliff also advised that in the future, Mr. Thomas might wish to have more and
earlier interactions with the hiring manager. It is undisputed, however, that neither
Ms. Harris nor Mr. Chavez had such contacts with Mr. Radliff.
2 There are three recordings in the record, including this one. We cite to their location in the district court docket.
5 Internal Complaint
On April 25, 2018, Mr. Thomas contacted Amy Canton, a Human Resources
Consultant with Farmers based in Olathe. In his email, Mr. Thomas expressed concern
that Mr. Shelton had told Mr. Radliff about Mr. Thomas’s marital status, age, and lack of
children, when suggesting Mr. Thomas would be able to relocate to Phoenix for the AU
position. Mr. Thomas also stated, “I believe my orientation adds another underlying
factor to this.” Id. at 309. And he questioned the appropriateness of Mr. Radliff’s
suggestion that Mr. Thomas develop “a ‘Personal Relationship’ . . . with the hiring
manager.” Id. Mr. Thomas did not mention the “alphas” comment in this email.
Mr. Thomas and Ms. Canton met in person the next day to discuss his complaint.
During that meeting, Ms. Canton offered to contact Farmers’ Talent Acquisition
Department to obtain additional feedback. A Farmers employee contacted Mr. Radliff on
May 8, 2018, to discuss Mr. Thomas’s desire for further explanation.
On May 10, 2018, Ms. Canton emailed Mr. Thomas additional feedback.
Mr. Thomas responded by taking issue with much of the information. Specifically,
Mr. Thomas challenged Mr. Radliff’s comments that Mr. Thomas lacked a prior
relationship with Mr. Radliff; claimed Mr. Radliff had concluded Mr. Thomas “was not
‘Alpha enough’ (Alpha meaning male characteristics, dominating)”; and alleged
Mr. Radliff had improperly “prescreened” Mr. Thomas “by coming up to [his] direct
supervisor, asking and inquiring about [his] Marital status, Age, and the number of
dependents [he] had, also the financial situation [he was] in.” Id. at 314.
6 On May 11, 2018, Ms. Canton suggested she and Mr. Thomas meet with
Mr. Shelton to discuss Mr. Thomas’s concerns. Six days later, on May 17, 2018,
Mr. Thomas indicated he wished to meet.
May 17, 2018, Call
Also on May 17, during a service call with an agent, Mr. Thomas refused to apply
a policy change based on a supporting document Mr. Thomas deemed unacceptable. The
agent seeking the change requested a callback from a supervisor; Mr. Thomas therefore
emailed Mr. Shelton. Mr. Shelton decided to accept the document. Mr. Thomas
responded to Mr. Shelton’s decision in an email, explaining, “I deal with this agent all the
time. They call in yell and scream until someone gives them what they want. They are
clearly lying, committing fraud, and misrepresenting this household in order to get the
discount.” Id. at 321. Noting he “disagree[d] 100 percent” with applying the discount,
Mr. Thomas listed five reasons he thought the document should not be accepted. Id.
In response, Mr. Shelton asked Mr. Thomas to come by his desk. In his interaction
log, Mr. Shelton stated his intent was “to talk about how I came to my conclusion” to
accept the document. Id. at 291. The log and Mr. Shelton’s deposition testimony reflect
that when Mr. Shelton attempted to explain his decision, Mr. Thomas stated “Look, this
should have taken five minutes to pull the [recording of the] call. If you’re not going to
do it, I will.” Id. at 291–92. When Mr. Shelton indicated he did not need to pull the call,
Mr. Thomas “said ‘whatever’ and stood up and walked back to his desk during
[Mr. Shelton’s] coaching.” Id. at 292; see also App., Vol. I at 210 (Mr. Shelton stating
7 Mr. Thomas “stood up in the middle of the conversation and said, Look, if you’re not
going to pull the call, I will. And got up and walked off”).
Final Warning
Later that same day, May 17, 2018, Farmers, through Mr. Shelton, issued
Mr. Thomas a final warning. At Farmers, a final written warning prevents an employee
from using tuition reimbursement or moving to another position in the company, and it
may impact the employee’s performance rating which in turn may negatively impact
bonuses or merit increases in the employee’s salary. It is the step before termination in
Farmers’ discipline process; it is unusual to issue a final written warning without first
trying other forms of discipline. Mr. Thomas had not been formally disciplined prior to
May 17, 2018.
Mr. Shelton asked Mr. Sims to attend the meeting at which Farmers issued
Mr. Thomas the final warning. The final warning provides:
You are receiving a Final Notice for a violation of Farmers policy.
In addition to the coaching provided to you by your previous supervisor, you have been coached on multiple occasions over the past two months about emotional resilience, accepting and applying feedback to grow, as well as creating a low effort experience for our agents. Despite this ongoing coaching, you have not made improvements in these areas and you are not meeting expectations. I’ve offered you opportunities to grow, by speaking in team huddles and outlining documents to streamline our processes, to which you declined.
Your continued lack of professionalism shows through your interactions with others; including the agents as well as with your direct supervisor. This behavior also creates a negative work environment with your peers. When you are approached with constructive feedback, you give pushback, you become argumentative, and are unwilling to accept the coaching. This lack of response to feedback resulted in an additional
8 coaching on 05/17/18, in order to highlight how to create a low effort experience. Your behavior during this coaching session was unprofessional and you displayed behaviors of insubordination. This further demonstrates your lack of openness and unwillingness to take constructive feedback to help you grow. To further detail what happened, see my recap of the coaching session below:
When trying to help you better understand my thought process on thinking outside the box to make the agents[’] experience easier on a specific transaction, you made comments to me that display an extreme lack of professionalism. You also got up and walked out of our coaching session before it was over.
I expect you to immediately correct your behavior in compliance with Farmers policies, Vision, Mission and Values. Any further instances of this behavior, or other behavior in violation of Farmers policies will result in action up to and including termination of your employment.
App., Vol. II at 323. Mr. Thomas refused to sign the final warning.
After receiving the final warning, Mr. Thomas sent an email to Ms. Canton,
indicating that Mr. Thomas was no longer interested in meeting with Mr. Shelton to
discuss the AU selection process. Mr. Thomas was unwilling “to be harassed or picked
apart, interrogated.” Id. at 325.
EEOC Complaint
On May 21, 2018, Mr. Thomas filed an EEOC charge, alleging Farmers denied
him the AU position on the basis of sex and that it issued the final warning as retaliation
for his internal complaint about the AU position hiring process. In September,
Mr. Thomas began reporting to Mr. Sims instead of Mr. Shelton. After becoming
Mr. Thomas’s supervisor, Mr. Sims contacted Mr. Shelton about Mr. Thomas multiple
times, including noting that a coaching session would again be necessary due to
Mr. Thomas’s unprofessional telephone demeanor.
9 Ms. Canton, Farmers’ human resources consultant, was asked at her deposition
whether she “resolved” the internal complaint before Mr. Thomas filed an EEOC charge.
She responded:
I felt as though [Mr. Thomas’s] concerns were resolved after we had gone through the providing information to him from Talent Acquisition offering to meet with him and [Mr. Shelton] to discuss further. Ultimately, he did end up on a final warning, but he had the open door with . . . his director, so based off of [the director] sharing with me how that conversation went, I felt as those concerns were resolved.
App., Vol. II at 500–01.
Filing of Complaint
Mr. Thomas filed the instant lawsuit on October 19, 2018. That same day, he
mailed a waiver of service and the complaint to Farmers’ Olathe office. When Farmers
received notice of a lawsuit, the employees at the Olathe office who distribute the mail
provide it to someone in human resources. There were three human resources employees
who might receive a lawsuit in Olathe, one of whom was Ms. Canton. For example,
Mr. Thomas mailed his Right to Sue Letter to the Olathe office on August 1, 2018, and
Ms. Canton received it on August 2, 2018.
October 22, 2018, Call
On October 22, 2018, Mr. Thomas received a call from an agent seeking to make a
policy discount retroactive. An audio recording of this call is included in the record.
Mr. Thomas refused to backdate the discount based on the proffered documentation. The
agent asked who she could talk to “to get that approved,” and Mr. Thomas responded,
“what do you mean?” App., Vol. III at 629; App., Vol. II at 368. The agent clarified she
10 wanted to know who could help her backdate the discount, to which Mr. Thomas replied
the agent had not provided the proper documentation. The agent asked again who she
could speak with to find out if backdating was possible, to which Mr. Thomas said,
“you’re talking to me.” App., Vol. II at 368–69. When the agent asked to speak to
Mr. Thomas’s supervisor, Mr. Thomas stated he believed his supervisor was in a
meeting, but he offered to have his supervisor, Mr. Sims, call her. The agent next asked
to be transferred to Mr. Sims’s voicemail. Mr. Thomas stated that Mr. Sims’s voicemail
was not set up, although it is undisputed that Mr. Sims’s voicemail was in operation. The
agent told Mr. Thomas she would call back with the documents but speak with someone
else, stated that it was ridiculous he would not apply the discount, and asked his name.
Mr. Thomas provided his name and told her he was “sorry that you think it’s ridiculous.”
App., Vol. III at 669. The agent disconnected the call. Mr. Thomas did not report the call
to Mr. Sims.
Termination
Mr. Sims nonetheless learned about the October 22, 2018, call, and met with
Mr. Thomas and another supervisor, Cintia Mazzetta, on October 24, 2018. Mr. Thomas
surreptitiously recorded this meeting and the recording is in the record. Although
Mr. Thomas had followed Farmers’ guidelines regarding backdating, Mr. Sims indicated
Mr. Thomas should have handled the call better, especially by putting the agent in touch
with a supervisor when requested. At the end of the meeting, Mr. Sims told Mr. Thomas
that the meeting was a coaching opportunity to provide feedback for Mr. Thomas to use
going forward.
11 On October 24 or 25, 2018, Mr. Thomas saw Ms. Canton visit Mr. Sims’s desk, an
interaction he thought unusual. Mr. Thomas points to this interaction as evidence that
Mr. Sims knew about the lawsuit. But there is no direct evidence that either Mr. Sims or
Ms. Canton was aware of the lawsuit prior to Farmers’ termination of Mr. Thomas, and
both Mr. Sims and Ms. Canton claim they first learned of the lawsuit after Farmers
terminated Mr. Thomas’s employment.
On October 25, 2018, Mr. Sims wrote a memorandum seeking support to
terminate Mr. Thomas’s employment. In the “Reason for Termination Recommendation”
section, he wrote:
[Mr. Thomas] was placed on a final warning on May 17, 2018 for policy violation regarding his emotional resilience, accepting/applying feedback and his professionalism and conduct with agents as well as his direct supervisor. While reviewing a call that [Mr. Thomas] received from an agent on October 22, 2018, he showed no resilience during the coaching session as to what could have been improved or changed during the interaction. From his viewpoint, it was a typical call with our customers. When the agent asked for a supervisor, he did not seek guidance and did not provide this information to leadership concerning the interaction nor the request for a supervisor. This type of behavior with the agents was also observed on an additional call on October 19, 2018. Due to his inability to accept feedback and apply emotional resilience and professional [sic] while interacting with our agents, the recommendation for termination is being made.
App., Vol. II at 335. Farmers terminated Mr. Thomas’s employment the same day,
October 25, 2018.
B. Procedural History
Mr. Thomas’s initial complaint alleged (1) discrimination on the basis of sex, due
to Mr. Thomas’s alleged nonconformance to male sex stereotypes, with respect to the AU
12 position and (2) retaliation by Farmers in issuing him the final warning after he had filed
an internal complaint of discrimination. On July 17, 2019, Mr. Thomas amended his
complaint to add a claim alleging (3) that his firing was discrimination based on sex and
retaliation for filing his charge of discrimination with the EEOC and filing this suit.
Farmers moved for summary judgment on all counts.
The district court granted Farmers’ motion. With respect to Mr. Thomas’s claim
that Farmers denied Mr. Thomas the AU position on the basis of sex discrimination, the
district court held the “alpha” comment did not constitute direct evidence of
discrimination because it could bear a nondiscriminatory meaning. It assumed without
deciding that Mr. Thomas had put forth a prima facie case of discrimination, but held
Farmers had offered legitimate, nondiscriminatory reasons for not offering Mr. Thomas
the AU position and, later, for terminating his employment. And the district court held
Mr. Thomas had not adduced evidence of pretext regarding the AU position. It therefore
granted summary judgment to Farmers as to the sex discrimination claim regarding the
AU position.
Regarding the claim that Mr. Shelton’s issuance of a final warning was in
retaliation for Mr. Thomas’s internal complaint, the district court rejected Mr. Thomas’s
argument that Ms. Canton’s testimony constituted direct evidence of retaliation. The
district court then held Mr. Thomas had established a prima facie case of retaliation due
to the timing of his discrimination complaint and the final warning. Mr. Thomas
conceded Farmers had articulated a legitimate, nonretaliatory reason for issuing the final
warning, but claimed it was pretextual. The district court held that, although the temporal
13 proximity of the final warning and the internal complaint supported a prima facie case,
Mr. Thomas had failed to present evidence of pretext aside from that timing, which
standing alone, was insufficient. The district court therefore granted summary judgment
to Farmers on the final notice retaliation claim.
Next, the district court held Mr. Thomas had waived a claim of discrimination
with respect to his termination. Turning to Mr. Thomas’s argument that his termination
was retaliatory, the district court considered his claim under the circumstantial evidence
framework, noting Mr. Thomas had not pointed to any direct evidence. It then assumed
without deciding that Mr. Thomas had put forth a prima facie case of retaliation. The
district court acknowledged that Farmers claimed to have fired Mr. Thomas for the
legitimate, nondiscriminatory reason of his handling of the October 22, 2018, service call
combined with his previous performance issues. And the district court held Mr. Thomas
had not come forward with evidence sufficient to create a genuine issue of material fact
regarding pretext. The district court therefore granted summary judgment to Farmers on
the claims of discrimination and retaliation relating to Mr. Thomas’s termination.
The clerk entered judgment on March 26, 2020, and Mr. Thomas filed a timely
notice of appeal.
II. DISCUSSION
Mr. Thomas argues the district court erred in granting summary judgment on his
(1) discrimination claim relating to Farmers’ decision not to promote him, (2) retaliation
claim relating to Farmers’ issuance of a final warning, and (3) retaliation claim relating to
14 Farmers’ termination of his employment.3 He maintains he put forth direct evidence that
Farmers’ decision not to hire him for the AU position was discriminatory and its issuance
of the final warning was retaliatory. Mr. Thomas further contends he demonstrated by
circumstantial evidence that Farmers’ explanations for each of the adverse employment
decisions are pretextual covers for discrimination and retaliation. We begin our analysis
by setting forth the standard of review and the relevant legal background. We then
consider each of his three claims in turn.
A. Standard of Review
This court “review[s] de novo a district court’s grant of summary judgment.”
Carolina Cas. Ins. Co. v. Burlington Ins. Co., 951 F.3d 1199, 1207 (10th Cir. 2020). Like
the district court, “we must draw all reasonable inferences and resolve all factual disputes
in favor of the non-moving party.” Jordan v. Maxim Healthcare Servs., Inc., 950 F.3d
724, 730 (10th Cir. 2020). “But an inference is unreasonable if it requires a degree of
speculation and conjecture that renders [the factfinder’s] findings a guess or mere
possibility.” Pioneer Centres Holding Co. Emp. Stock Ownership Plan & Tr. v. Alerus
Fin., N.A., 858 F.3d 1324, 1334 (10th Cir. 2017) (alteration in original) (internal
quotation marks omitted) (“Pioneer Centres”). We affirm “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Jordan, 950 F.3d at 730 (quoting Fed. R. Civ. P. 56(a)).
3 Mr. Thomas does not argue the district court erred in holding he failed to support a claim of discrimination regarding his termination.
15 B. Legal Framework
“To survive summary judgment on a Title VII claim of discrimination based on
race, color, religion, sex, or national origin, a plaintiff must present either direct evidence
of discrimination or indirect evidence that satisfies the burden-shifting framework” the
Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th Cir. 2019). A Title VII retaliation claim
also may be proven “either by direct evidence or by reliance on the McDonnell Douglas
framework.” Id.
Direct Evidence
To constitute direct evidence, a piece of evidence must demonstrate on its face the
employment decision was reached for discriminatory or retaliatory reasons. Fassbender
v. Correct Care Sols., LLC, 890 F.3d 875, 883 (10th Cir. 2018) (applying this definition
in the discrimination context); Vaughn v. Epworth Villa, 537 F.3d 1147, 1154 (10th Cir.
2008) (applying this definition in the retaliation context). Evidence is “direct” only if it
“proves the existence of a fact in issue without inference or presumption.” Id. (quotation
marks omitted). A statement that “reflect[s] personal bias” does not constitute direct
evidence of discrimination “unless the plaintiff shows the speaker had decisionmaking
authority and acted on his or her discriminatory beliefs.” Tabor v. Hilti, Inc., 703 F.3d
1206, 1216 (10th Cir. 2013). And even then, to be considered direct evidence, statements
must be “closely linked to the adverse decision” by “the context or timing of the
statements.” Id. “Furthermore, if the content and context of a statement allow it to be
16 plausibly interpreted in two different ways—one discriminatory and the other benign—
the statement does not qualify as direct evidence.” Id.
In Tabor, for example, we held that where a decisionmaker “explicitly stated a
view that women ha[d] inferior knowledge . . . and inferior ability” regarding “central
requirements of the job” during an interview and within the context of a woman’s
“discussion about her fitness for the position,” the remarks constituted direct evidence of
discrimination. Id. at 1217; see also id. (“The content of [the interviewer’s] statements,
the interview context, and the temporal proximity to the adverse employment decision
directly link the discriminatory statements to his decision not to promote Ms. Tabor.”).
But by contrast, in Vaughn v. Epworth Villa we determined a plaintiff had not
shown direct evidence of retaliation where her employer asserted “it terminated her
because she provided unredacted medical records to the EEOC.” 537 F.3d at 1154. We
explained, “one can easily interpret [the employer’s] statements benignly to mean that it
would have terminated [the plaintiff] for intentionally disclosing unredacted medical
records to any third party,” an act which “would have been contrary to the [employer’s]
policies and procedures, and ostensibly, the law.” Id. at 1155. Because there was a benign
explanation, the statement was not direct evidence of retaliation. Id. at 1154–55.
McDonnell Douglas Framework
The McDonnell Douglas “three-step burden-shifting framework” is used “to
evaluate whether circumstantial evidence of discrimination presents a triable issue.”
Fassbender, 890 F.3d at 884; see also Bekkem, 915 F.3d at 1267 (explaining the
McDonnell Douglas framework applies to retaliation claims). First, the plaintiff must
17 establish a prima facie case. For a discrimination claim, this entails showing, by a
preponderance of the evidence “that [he] is a member of a protected class, [who] suffered
an adverse employment action, and the challenged action occurred under circumstances
giving rise to an inference of discrimination.” Bennett v. Windstream Commc’ns, Inc.,
792 F.3d 1261, 1266 (10th Cir. 2015). For a retaliation claim, the plaintiff “must show
(1) that [he] engaged in protected opposition to discrimination, (2) that a reasonable
employee would have found the challenged action materially adverse, and (3) that a
causal connection existed between the protected activity and the materially adverse
action.” Bekkem, 915 F.3d at 1267 (quotation marks omitted).
The burden of production then shifts to the defendant, who must articulate a
legitimate, nondiscriminatory or nonretaliatory reason for its actions. Bennett, 792 F.3d at
1266; Bekkem, 915 F.3d at 1267. If the defendant does so, the burden shifts back to the
plaintiff “to show that the defendant’s explanation was merely pretextual.” Bennett, 792
F.3d at 1266. “A plaintiff can meet this burden to show pretext in either of two ways:
(1) by showing that the proffered reason is factually false or (2) by showing that
discrimination was a primary factor in the employer’s decision.” Tabor, 703 F.3d at
1218. This latter showing is often accomplished by demonstrating the proffered reasons
“were so incoherent, weak, inconsistent, or contradictory that a rational factfinder could
conclude the reasons were unworthy of belief.” Bekkem, 915 F.3d at 1268 (quotation
marks omitted). But “[m]ere conjecture that the employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.” Id.
(quotation marks omitted).
18 C. The AU Position
In providing feedback to Mr. Thomas on his interview for the AU position,
Mr. Radliff said that in the future, “I might not need a leader, I might have a bunch of
alphas over there.” App., Vol. III at 647. The district court held this was not direct
evidence of discrimination on the basis of sex because the comment “d[id] not explicitly
state anything discriminatory about [Mr. Thomas’s] failure to conform to male sex
stereotypes.” Id. at 719. We agree with the district court.
As we require for direct evidence, there is a nexus between the statement and the
adverse employment action: Mr. Radliff was explaining to Mr. Thomas why Mr. Thomas
was not offered the AU position. See Tabor, 703 F.3d at 1216. But nexus alone is not
enough. Tabor explains “if the content and context of a statement allow it to be plausibly
interpreted in two different ways—one discriminatory and the other benign—the
statement does not qualify as direct evidence.” Id. Mr. Thomas’s argument on appeal is,
essentially, that Tabor cannot mean what it says and we are not bound to follow it
because the relevant statement is dicta. Mr. Thomas further asserts that Tabor is at odds
with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Perry v. Woodward, 199
F.3d 1126 (10th Cir. 1999), if interpreted to mean an ambiguous statement is not direct
evidence of discrimination. For the reasons we now discuss, we are not persuaded.
First, this panel is bound to reject Mr. Thomas’s argument. In Vaughn v. Epworth
Villa, this court held a statement was not direct evidence of retaliation because it could be
interpreted benignly. 537 F.3d at 1154–55. So, even if the statement in Tabor were dicta,
19 our holding in Vaughn is not. And Mr. Thomas directs us to no prior-in-time inconsistent
holding of this court, subsequent en banc decision of this court departing from Vaughn, or
intervening decision of the Supreme Court casting doubt on Vaughn’s holding.
Accordingly, we must apply Vaughn here. See Crowson v. Washington County, 983 F.3d
1166, 1188–91 (10th Cir. 2020) (holding a panel of this court is bound by an earlier-in-
time published holding, absent an intervening inconsistent en banc or Supreme Court
decision).
Nor does our precedent conflict with the Supreme Court’s decision in Price
Waterhouse. There, the Court noted several “clear signs” of discrimination where an
inference was necessary: male partners advised a female employee to take “a course at
charm school” and criticized “her use of profanity.” 490 U.S. at 235 (plurality opinion).
Even if we assume these comments are similar to the “alphas” statement here because an
inference is needed to determine the comments are motivated by sex stereotypes, we are
not persuaded Mr. Thomas can prevail. As the district court explained, the Supreme
Court “never considered whether those statements—alone—constituted direct evidence,”
given that the Supreme Court also said “the evidentiary ‘coup de grace’ was that a
partner told the female manager that to improve her chances for partnership, she should
‘walk more femininely, talk more femininely, dress more femininely, wear make-up,
have her hair styled, and wear jewelry.’” App., Vol. III at 719–20 (quoting Price
Waterhouse, 490 U.S. at 235 (plurality opinion)). Mr. Thomas does not explain why the
district court’s decision is inconsistent with Price Waterhouse despite these significant
differences. Nor does he point to evidence in this case that is the equivalent of the Price
20 Waterhouse “evidentiary ‘coup de grace.’” Id. Accordingly, we do not read Price
Waterhouse as precluding the district court’s holding here.
Mr. Thomas next argues “Perry . . . permitted plaintiff[s] to show direct evidence
with ‘allegedly discriminatory statements.’” Appellant Br. at 21 (emphasis in Appellant
Br.) (quoting Perry, 199 F.3d at 1134). In his view, an “‘allegedly’ discriminatory
statement” is different from “an unambiguously discriminatory statement.” Reply Br. at
7. That is, Mr. Thomas equates “allegedly” as used in Perry, as synonymous with a
statement supporting either a discriminatory or a benign meaning. But the language
Mr. Thomas relies upon from Perry is a quotation from Cone v. Longmont United
Hospital Ass’n, 14 F.3d 526, 531 (10th Cir. 1994). Perry, 199 F.3d at 1134. It is not
surprising that we used the word “allegedly” in Cone because it was unclear whether the
statements there had been made at all. 14 F.3d at 531 (“Since a summary judgment
decision is under review, we will assume that indeed [the relevant actors] made these
comments in the contexts asserted by [the plaintiff].”). Regardless, Cone and Perry were
decided on other grounds—in both cases, we held the comments did not have a sufficient
nexus to constitute direct evidence of discrimination. Id.; Perry, 14 F.3d at 1134–35.
Mr. Thomas concedes on appeal that the “alphas” comment can be interpreted as
non-discriminatory. He is right to do so. While a trier of fact could conclude the word
“alpha” is laden with gender-based connotations, the statement nonetheless can be
plausibly interpreted as benignly referencing leadership qualities. Accordingly, the
district court was correct when it concluded the comment does not constitute direct
evidence of discrimination. See Vaughn, 537 F.3d at 1154–55.
21 McDonnell Douglas Framework
As there is no direct evidence of discrimination, we turn to the McDonnell
Douglas burden-shifting framework. Like the district court, we assume without deciding
that Mr. Thomas’ claim Farmers discriminated against him because he did not conform to
male sex stereotypes establishes a prima facie case of discrimination on the basis of sex.4
And Mr. Thomas concedes that Farmers met its burden of proffering a legitimate,
nondiscriminatory reason for not offering him the AU position—namely, that the two
people selected were more qualified than he. Our analysis therefore focuses on whether
Mr. Thomas has demonstrated pretext.
Mr. Thomas argues he demonstrated pretext because: (1) there are inconsistencies
in Farmers’ proffered explanation, including Mr. Radliff noting Mr. Thomas had not
4 On appeal, Mr. Thomas argues that his sexual orientation is another way in which he was discriminated against with respect to the AU position. The Supreme Court recently ruled that “it is impossible to discriminate against a person for being homosexual . . . without discriminating against that individual based on sex.” Bostock v. Clayton County, 140 S. Ct. 1731, 1741 (2020). But Mr. Thomas cannot succeed on this theory for several reasons. First, this claim was not raised in the complaint. Lawmaster v. Ward, 125 F.3d 1341, 1351 n.4 (10th Cir. 1997) (holding this court focuses on the claims in the complaint). Indeed, the operative complaint makes no mention of Mr. Thomas’s sexual orientation. Second, there is no genuine dispute that Mr. Radliff was unaware of Mr. Thomas’s sexual orientation when he filled the AU positions. See App., Vol. II at 378 (Mr. Thomas controverting the statement that Mr. “Radliff did not know [Mr. Thomas] was gay” only by pointing to evidence that Mr. Radliff learned Mr. Thomas was gay after the complaint was filed—which was after Mr. Radliff selected other candidates for the AU positions). Thus, even if Mr. Thomas could raise this theory now, it would necessarily fail. See Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019) (holding, in the retaliation context, that an inference of retaliation could not be drawn where no evidence showed the decisionmakers were aware of the plaintiff engaging in protected action). Third, as we explain, Mr. Thomas has not shown the proffered nondiscriminatory reasons were pretextual.
22 previously developed a relationship with the hiring manager (Mr. Radliff), Mr. Radliff
claiming leadership was a qualification for the position despite the position not being a
leadership position, and Mr. Radliff checking the box that Mr. Thomas demonstrated
teamwork and leadership; and (2) Mr. Radliff’s desire to provide feedback in person,
which Mr. Thomas suggests could allow a jury to infer Mr. Radliff knew his feedback
was improper. Mr. Thomas also argues the district court improperly analyzed these
reasons individually rather than collectively.
Our review of the district court’s decision indicates it properly concluded the
inconsistencies Mr. Thomas alleged, taken together, are insufficient to demonstrate
pretext. First, Mr. Radliff requesting an in-person meeting does not give rise to a
reasonable inference of discrimination. See Riggs v. Airtran Airways, Inc., 497 F.3d
1108, 1117 (10th Cir. 2007) (noting at summary judgment a court must determine
whether the nonmoving party has adduced sufficient evidence to allow the jury to draw
an inference). We have explained that an inference is unreasonable—that is, it is
speculation—where it “renders [the factfinder’s] findings a guess or mere possibility.”
Pioneer Centres, 858 F.3d at 1334 (alteration in original) (quotation marks omitted).
Here, a jury would have to make two speculative leaps to hold Farmers liable: it would
first need to assume the reason Mr. Radliff wanted to meet in person was to avoid a
written record, and then also assume Mr. Radliff wished to avoid a written record because
he “knew there was something improper about [his] reasons.” Appellant Br. at 30.
Because no evidence suggests either conclusion would be more than a guess, the district
court properly rejected this as baseless speculation, rather than a proper inference.
23 Second, no reasonable jury could find Mr. Radliff did not hire Mr. Thomas for the
AU position because Mr. Thomas did not have sufficient prior interactions with
Mr. Radliff. The audio recording of the April 23, 2018, meeting reveals that when
Mr. Radliff raised the importance of interactions with hiring managers, he was providing
advice “for future reference.” ECF No. 61-10 3:00–3:50. Thus, that advice cannot
undermine the reasons provided for not selecting Mr. Thomas for one of the AU
positions.
Third, there is no genuine dispute that while the AU position was not posted as a
leadership position, Mr. Radliff viewed leadership as a desirable quality in the
candidates. Indeed, the guide for the interviews listed leadership as an area to be explored
with the candidates. Further, checking the box that Mr. Thomas demonstrated leadership
does not indicate he exhibited the desired skillset more than the successful candidates did.
Taken together, Mr. Thomas’s speculative reasons do not constitute evidence from
which a rational trier of fact could reasonably infer pretext. We therefore affirm the grant
of summary judgment on the AU position discrimination claim.
D. Final Written Notice
Mr. Thomas points to a statement from Ms. Canton’s deposition as direct evidence
of retaliation. Ms. Canton testified:
I felt as though [Mr. Thomas’s] concerns were resolved after we had gone through the providing information to him from Talent Acquisition offering to meet with him and [Mr. Shelton] to discuss further. Ultimately, he did end up on a final warning, but he had the open door with . . . his director, so
24 based off of [the director] sharing with me how that conversation went, I felt as those concerns were resolved.
Direct evidence in this context must “prove[] the existence of a fact in issue
without inference or presumption.” Fassbender, 890 F.3d at 883 (quotation marks
omitted). Ms. Canton’s testimony does not meet that standard. Even assuming
Ms. Canton’s testimony meant the final warning resolved Mr. Thomas’s complaint, the
jury would be left to infer whether Mr. Thomas’s complaint happened to be resolved
because Farmers issued him a final warning based on his performance issues or whether
Farmers “resolved” his complaint by issuing the final warning. Ms. Canton’s testimony
says nothing about this question and is therefore not direct evidence of retaliation.
Mr. Thomas argues that our precedent limits the instances in which the need for an
inference prevents a statement from being “direct evidence” to only the precise
circumstances of Riggs: “the inference that because a decision maker holds a certain bias
towards a group, his adverse action towards a member of the group was made because of
that bias.” Appellant Br. at 34. According to Mr. Thomas, statements requiring an
inference constitute “direct” evidence in all other circumstances. Mr. Thomas
misapprehends Riggs, however, and has failed to provide a citation to any decision in
which we have treated evidence as direct when its probative value depends upon an
inference. But even if the forbidden category of inferences were as narrow as
Mr. Thomas suggests, he could not prevail.
25 The inference Mr. Thomas advances is that because he made an internal complaint
about not being offered a job within the company, and the final warning prevented him
from seeking an internal position, we can infer the final warning was retaliatory. This is
similar to inferring that, because a decisionmaker had a bias and a person belonging to a
group against whom he was biased suffered an adverse employment action, the adverse
employment action was because of that bias. In sum, the inference necessary here is
analogous to the type of inference forbidden in Riggs. The district court did not err in
holding that Ms. Canton’s statement is not direct evidence of retaliation.
Again, we must turn to circumstantial evidence and the McDonnell Douglas
framework. Farmers concedes the “proximity in timing” between the internal complaint
and the final warning—three weeks—“is likely sufficient to establish a prima facie case”
of retaliation. Appellee Br. at 42. And Mr. Thomas concedes Farmers met its burden of
articulating a nonretaliatory reason for issuing the final warning by offering evidence that
it issued the final warning due to Mr. Thomas’s insubordination, lack of professionalism,
and failure to improve in response to feedback. Accordingly, the parties again engage on
the issue of pretext.
Mr. Thomas argues evidence of pretext includes: (1) the temporal proximity
between the final warning and the internal complaint; (2) the inconsistency between his
supervisors’ criticisms that he was not accepting or applying feedback and their praise for
him being open to coaching; (3) the absence of any complaints from his coworkers to
support the claim he was creating a negative work environment; (4) Mr. Shelton’s
26 issuance of a final warning without first using lesser discipline; and (5) Mr. Shelton’s
inconsistent behavior regarding Mr. Thomas.5 Mr. Thomas also contends the district
court erred by taking his arguments individually rather than as a whole.
The fact that Mr. Thomas sometimes accepted feedback and demonstrated
occasional improvement does not change that the record is replete with instances of his
failure to do so, including during the May 17, 2018, phone call and meeting. Similarly,
Mr. Shelton’s behavior toward Mr. Thomas was not inexplicable or inconsistent. After
Mr. Shelton provided feedback to Mr. Thomas on numerous occasions, Mr. Shelton
informed his own supervisor that the coaching phase was done: “now I’m in an
observation period to see if [Mr. Thomas] responds to the coaching or keeps with his
ways and this will determine my next steps of corrective action.” App., Vol. II at 319.
Although Mr. Shelton praised Mr. Thomas on the occasions he accepted coaching,
Mr. Shelton acknowledged that only future observation would reveal whether
Mr. Thomas “keeps with his ways,” warranting further “corrective action.” There is
nothing inconsistent in these statements. When the events of May 17, 2018, showed
Mr. Thomas had not responded to coaching, Mr. Shelton took “next steps of corrective
5 Mr. Thomas also argues that the nature of a final warning, which prevented him from applying for other internal positions, constitutes circumstantial evidence that the discipline was retaliatory. But he did not raise this argument before the district court. See App., Vol. II at 421–24 (Mr. Thomas’s response in opposition to summary judgment, not making this argument). We therefore do not consider it. Strauss v. Angie’s List, Inc., 951 F.3d 1263, 1266 n.3 (10th Cir. 2020) (“Generally, this court does not consider arguments raised for the first time on appeal.”).
27 action.” In short, no rational trier of fact could agree with Mr. Thomas that Mr. Shelton’s
statements are so inconsistent as to show pretext.
Next, Mr. Thomas contends that because none of his coworkers complained about
his behavior, Mr. Shelton’s statement that Mr. Thomas was creating a negative working
environment is evidence of pretext. Again, Mr. Thomas merely speculates that the
absence of employee complaints demonstrates Mr. Shelton did not believe Mr. Thomas
was creating a negative work environment. Even in the absence of complaints,
Mr. Shelton could perceive Mr. Thomas’s attitude as a bad influence on other employees.
And Mr. Thomas offers no evidence suggesting Mr. Shelton did not sincerely hold that
belief. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970–71 (10th Cir. 2017)
(holding that to be worthy of credibility the employer’s reason need not be objectively
correct, but rather the employer must subjectively believe the reason).
Nor could a factfinder reasonably infer only from the timing and the severity of
punishment that Mr. Shelton’s reasons were pretextual. See Bird v. West Valley City, 832
F.3d 1188, 1204 (10th Cir. 2016) (“[E]ven though the timing leading up to an employee’s
termination is evidence of pretext, it is not sufficient standing alone to establish pretext.”
(emphases in original) (citation omitted)). The record reflects Mr. Shelton had been
coaching Mr. Thomas about his telephone demeanor since March, with no lasting
success. Mr. Shelton also documented Mr. Thomas’s insubordinate behavior immediately
prior to the final warning. Under these circumstances, the decision to issue a final
warning does not support an inference of pretext. Although Mr. Shelton could have
pursued lighter discipline, he was not required to do so. See Timmerman v. U.S. Bank,
28 N.A., 483 F.3d 1106, 1120 (10th Cir. 2007) (holding, in an age discrimination case, where
“progressive discipline was entirely discretionary” and the employer “did not ignore any
established company policy in its choice of sanction, the failure to implement progressive
discipline [was] not evidence of pretext”); Dyer v. Lane, 564 F. App’x 391, 395 (10th
Cir. 2014) (unpublished) (same, in a Title VII discrimination case). We therefore affirm
the grant of summary judgment on the retaliation claim regarding the final warning.
E. Termination
Mr. Thomas relies solely on circumstantial evidence to support his claim that
Farmers terminated him in retaliation for protected activity. We therefore analyze his
claim only under the McDonnell Douglas framework. Like the district court, we assume
without deciding that Mr. Thomas has made out a prima facie case of retaliation. And
Mr. Thomas concedes Farmers met its burden of articulating a nonretaliatory reason for
his termination—namely, his handling of the October 22, 2018, call and his inability to
accept feedback. So, here too, our analysis narrows to the issue of pretext.
Mr. Thomas argues his handling of the October 22, 2018, call was a pretextual
reason for Farmers terminating his employment because (1) Mr. Thomas’s offer of a
supervisor callback was sufficient, (2) Mr. Thomas followed Farmers’ policy on
backdating, (3) despite Mr. Sims’s citing the final warning in the memorandum
recommending termination, the final warning did not discipline Mr. Thomas for failing to
bring a call to his supervisor’s attention, and (4) Mr. Sims initially decided not to
terminate Mr. Thomas, instead telling Mr. Thomas the feedback should be applied going
forward. Mr. Thomas also contends the termination memorandum’s statement that he was
29 fired because of his inability to accept feedback is inconsistent because the recording of
the October 24, 2018, meeting showed he was receptive to feedback, and he had received
substantial praise for accepting feedback in the past.
The first three arguments about the October 22, 2018, call all fail for the same
reason: the legitimate, nondiscriminatory reason offered for termination was not the merit
of Mr. Thomas’s substantive position on the call, but rather Mr. Thomas’s tone with the
agent and his subsequent unwillingness to accept feedback about the call. In the
memorandum regarding termination, Mr. Sims indicated Mr. Thomas “showed no
resilience during the coaching session as to what could have been improved or changed
during the” October 22, 2018, call. App., Vol. II at 335. The memorandum identifies
Mr. Sims’s other primary concern as Mr. Thomas’s “inability to . . . apply emotional
resilience and professional [sic] while interacting with . . . agents.” Id.
Nowhere has Farmers asserted that it terminated Mr. Thomas for refusing to
backdate a discount. Regarding Mr. Thomas’s failure to alert his supervisor about the
call, the record is clear that Mr. Sims expected Mr. Thomas to do so. Whether or not
Mr. Thomas was required to inform Mr. Sims under Farmers policy is immaterial—he
does not meaningfully contest the sincerity of Mr. Sims’s belief. “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.” DePaula, 859 F.3d at 970–71
(internal quotation marks omitted). Relatedly, while the final warning did not involve a
failure to bring a call to a supervisor’s attention, the final warning disciplined
30 Mr. Thomas for exhibiting inappropriate behavior toward an agent seeking assistance on
a service call and for being unreceptive to feedback. These were the same issues that
Mr. Sims cited in support of Mr. Thomas’s termination. We agree with the district court
that the circumstances are not so dissimilar as to suggest the reasons for termination were
pretextual.
Mr. Thomas next argues he was receptive to feedback in the October 24, 2018,
meeting, relying on his summary judgment response and the recording of the meeting.
But the issue is whether a reasonable jury could find that Mr. Sims did not sincerely view
Mr. Thomas as being unreceptive to feedback. DePaula, 859 F.3d at 970–71. Such a
finding is not supported by the record evidence. In Mr. Thomas’s view, he said “okay”
receptively to several points of feedback during the meeting. But the recording of the
meeting reveals numerous instances of Mr. Thomas disagreeing with Mr. Sims’s and
Ms. Mazzetta’s feedback and characterization of the call. Indeed, near the end of the
meeting, Ms. Mazzetta says: “I feel like there’s a lot of pushback and you’re not trying to
see that right now, so we’re wasting a lot of time. So I think that maybe come back to it
later when you’re ready to talk to [Mr. Sims] about it and say, ‘you know what, I could
have improved in that.’” ECF No. 61-9 33:02–33:14. No rational jury could conclude
after listening to the recording of the discussion that Mr. Sims’s concern about
Mr. Thomas not accepting feedback was pretextual.
Mr. Thomas’s final argument is that Mr. Sims had decided not to terminate him at
the end of the October 24 meeting, and that nothing after that meeting is offered as a
reason for termination. It is true Mr. Sims closed the meeting by saying “This is a
31 coaching opportunity. It’s something for you to listen to, to reflect on, to hear the
feedback that [we] . . . have provided and apply that to those calls going forward, so we
don’t encounter a situation like this.” Id. at 35:37–35:54. Thus, it is possible Mr. Sims
had not yet decided what to do about Mr. Thomas when the meeting concluded. But as
Farmers maintains, “there is [also] no evidence in the record that [Mr.] Sims had decided
at the end of the . . . meeting not to terminate” Mr. Thomas. Appellee Br. at 54. The
district court noted Mr. Sims’s statement “suggests no imminent termination” but because
the termination “was based, in part, on [Mr. Thomas’s] behavior in [that] meeting,
[Mr.] Sims’s comment is insufficient to support a finding of pretext.” App., Vol. III at
741. Even assuming Mr. Sims had not yet decided to fire Mr. Thomas at the end of the
October 24 meeting, nothing about that indecision supports a finding that the reasons
given for termination when the decision was made were pretextual.
Mr. Thomas claims the jury could reasonably infer that Mr. Sims changed his
mind and fired Mr. Thomas because Mr. Sims learned about the lawsuit after the October
24 meeting. He bases this on his testimony that he observed Ms. Canton stop by
Mr. Sims’s desk. To make that inference, though, the jury would have to conclude
Ms. Canton went to Mr. Sims’s desk (1) for the purpose of informing Mr. Sims about
Mr. Thomas filing this lawsuit and (2) after Mr. Thomas’s October 24 meeting (which
ended at 11:48 a.m., see ECF No. 61-9 36:14–36:15). Both conclusions would require the
jury to speculate.
The evidence establishes only that Ms. Canton was one of three people at the
Olathe office who might receive notice of a lawsuit. Nothing demonstrates she in fact
32 received this lawsuit, and she denies that she did. Mr. Thomas suggests it is more likely
that Ms. Canton was the employee who received the lawsuit because of her involvement
in the case, but he offers no evidence in support, only speculation. And even if the jury
could conclude Ms. Canton eventually would receive the lawsuit, it would be pure
speculation to conclude she received it by October 25, 2018.
As for timing, the evidence proffered by Mr. Thomas shows Ms. Canton went to
Mr. Sims’s desk sometime on the 24th or 25th of October, but not which day, or whether
it was before or after his meeting with Mr. Sims. Accordingly, even if the evidence
suggests Mr. Sims changed his mind about terminating Mr. Thomas’s employment, no
rational jury could find his reasons were pretextual.6 We therefore affirm the grant of
summary judgment on Mr. Thomas’s claim of retaliatory termination.
III. CONCLUSION
We AFFIRM.
Entered for the Court
Carolyn B. McHugh Circuit Judge
6 Mr. Thomas also argues that because the final warning was a but-for cause of Farmers’ decision to terminate his employment, if the final warning was retaliatory, his termination was as well. Because we hold that Mr. Thomas has failed to show the issuance of the final warning was retaliatory, section II.D.2, supra, this argument necessarily fails.
Related
Cite This Page — Counsel Stack
Thomas v. Farmers Insurance Exchange, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-farmers-insurance-exchange-ca10-2021.