                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT O F APPEALS
                                                                       June 20, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

    D U N G NG U Y EN ,

          Plaintiff – Appellant,                       No. 05-1422
    v.                                          (D.C. No. 04-B-1471 (CBS))
                                                        (D . Colo.)
    GAM BRO BCT, IN C.,

          Defendant – Appellee.




                             OR D ER AND JUDGM ENT *


Before L UC ER O, SE YM OU R, and O’BRIEN, Circuit Judges.


         Dung Nguyen brought suit against Gambro BC T, Inc. (“Gambro”), alleging

claims of discriminatory termination and retaliation in violation of Title VII, 42

U.S.C. § 2000e et seq. After determining that Nguyen failed to establish a prima

facie case of discrimination or retaliation, the district court granted summary

judgment to Gambro on both claims; Nguyen appeals. Exercising jurisdiction

under 28 U.S.C. § 1291, we REVERSE and REM AND with respect to Nguyen’s




*
   This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
discrimination claim and AFFIRM the grant of summary judgment on her

retaliation claim.

                                          I

      Gambro, a Colorado corporation, manufactures a variety of medical devices

for use in blood collection and processing. In M ay 2001, Gambro hired Dung

Nguyen, a woman of Vietnamese descent, to work on its assembly line. Although

Gambro requires its assemblers to have a high school diploma or equivalent and

to read and w rite English fluently, Nguyen possesses neither of these

qualifications. Nonetheless, she was hired in 2001 and performed her job

satisfactorily and without incident until 2003.

      Gambro’s assembly-line workforce includes individuals from different

backgrounds and nationalities, and for many, English is a second language. To

facilitate communication between employees, Gambro implemented the following

English Speaking Guidelines (“G uidelines”):

      Gambro BC T’s business involves the manufacturing of medical
      products, [sic] w e are held to exceptionally high quality standards. It
      is necessary that all production employees communicate these
      standards in the English language to ensure understanding and
      consistency.

      W e want to create and maintain a pleasant work environment for all
      employees, making sure that everyone feels included as a valuable
      member of the team.

      To strengthen quality results and develop a more cohesive team, the
      following guidelines will be put into place to clarify language



                                        -2-
         expectations on the production floor and during work related
         meetings.

               –     All employees must communicate process related issues
                     in English to ensure that we meet high quality standards.
                     And to maintain and build team unity.

         Notwithstanding these G uidelines, Gambro supervisors M ichelle Gonzales,

M ark Genkinger, and Kevin Boltz testified that they “recognize that there may be

occasions when [a co-worker] will be able to explain a procedure to a co-worker

more effectively in their common native language. This is permitted and even

encouraged as it helps to educate and clarify.” All three supervisors and various

other Gambro employees attest that these Guidelines apply only on the production

floor. Nguyen and a co-worker, Teresita W ells, however, attest that Gonzales

held a meeting for their assembly line and announced that employees must speak

only English anywhere “on the premises.”        Nguyen also testified in her

deposition that Gonzales told her simply to “speak English only” and did not

restrict these instructions to Nguyen’s time on the assembly line or production

floor.

         Nguyen claims that throughout her time at Gambro, her work was described

as “excellent” in her annual performance interviews. A July 2001 Performance

Review reveals that Nguyen w as doing “very good” work at the time, but also

notes that she needed to “work more actively to promote positive exchanges” and

to deal w ith “potential conflict situations” with her co-workers.



                                          -3-
      Gambro’s first disciplinary action against Nguyen took place in A ugust

2003. After an employee complained to Beth B ohm, Nguyen’s acting supervisor,

that Nguyen had engaged in inappropriate horseplay with her male co-workers,

Nguyen was sent home with pay for the rest of that day. In her deposition,

Nguyen recalled being reprimanded for the incident, but maintained that she never

engaged in inappropriate conduct.

      In November 2003 Sumiarsih Suharsono, Nguyen’s co-worker, complained

to Gonzales that Nguyen had spoken disrespectfully about her in Vietnamese with

another co-worker. Suharsono is of Indonesian descent and does not understand

Vietnamese. Gonzales discussed the complaint with Nguyen and instructed her to

speak English on the production floor so that other employees would not feel

intimidated or harassed. According to Nguyen, Gonzales “fired” her that day for

speaking Vietnamese, and Genkinger called her at home later in the afternoon and

hired her back. Gambro asserts, however, that it suspended but did not fire

Nguyen for this incident.

      Upon being called back to work, Nguyen was required to sign a

performance contract written by Gonzales, which instructed Nguyen to improve

upon the following “specific performances/behaviors”: “[p]ersonal respect for

other employees,” “English only when in the work area,” “[m]aintaining

professional behavior (no horseplay etc),” and “setting a good example to the

various groups you work with.” The contract informed Nguyen that

                                       -4-
“improvement in all of these areas must be met on a daily basis over the next 90

days or you will be facing termination.” At the time of signing, Nguyen told

Gonzales that her mind “always [had] two language[s],” and that it was “normal”

for her native language to “come out” when she saw other V ietnamese people.

For three months after this incident, Nguyen feared she would lose her job if she

spoke Vietnamese and was “just quiet and . . . work[ed].”

      Although Nguyen apparently met the demands of the performance contract

and avoided termination at the end of the 90-day period, conflict between her and

Suharsono recommenced in February 2004. On February 19, Suharsono again

complained to Gonzales that Nguyen and another employee had spoken about her

in Vietnamese in her presence.

      Suharsono’s complaint triggered a series of meetings between Nguyen and

her supervisors at Gambro. Parties dispute the timing and content of these

meetings. Nguyen testified in her deposition as follows. On February 24, 2004,

Gonzales and Bohm held a meeting in which Gonzales told Nguyen to “speak

English,” and Bohm emphasized, “You speak English or nothing.” W hen Nguyen

returned to work the next day, February 25, she met with Gonzales and

Genkinger, who discussed Suharsono’s complaint of February 19 and reminded

Nguyen of the English-only rule. The three agreed they would all meet with

Suharsono to resolve problems. According to N guyen, her supervisors

immediately sent her home after this meeting.

                                        -5-
       The next day, on February 26, Nguyen returned to work and met again

with Gonzales and Genkinger. Genkinger allegedly told Nguyen that if she did

not speak English only, she would no longer have a job at Gambro. Finally, at a

third and final meeting with Gonzales and Genkinger on February 27, Nguyen

was fired. Nguyen testified that the only reason given for her termination was her

violation of Gambro’s Guidelines.

      Nguyen admits that she received instructions not to discuss the contents of

these meetings with her co-workers and testified that she abided by these

instructions. Although Nguyen would normally discuss her meetings w ith

Gonzales with a co-worker named Tess, she claims she was sent home

immediately after the meetings on February 25–27, and thus never had an

opportunity to speak with Tess or other co-workers on those days. Nguyen also

testified that prior to her termination, she told Gonzales and Genkinger she would

hire a law yer to redress Gonzales’ discrimination and harassment.

      Gambro disputes Nguyen’s characterization of the events leading to her

termination. Although it admits that Gonzales and Genkinger discussed the

Guidelines with Nguyen during their first meeting with her on February 25, 1


1
  Although her testimony on this point is not very clear, Gonzales attests that the
meetings between Nguyen, Genkinger, and herself took place on February 24, 25,
and 27. Nguyen stated in her deposition, however, that these meetings occurred
on February 25, 26, and 27. Because both parties agree that Nguyen met three
times with Gonzales and Genkinger and was terminated on February 27, the slight
discrepancy in dates is not material to our analysis. Nonetheless, for purposes of
                                                                      (continued...)

                                        -6-
Gambro asserts that Nguyen failed to keep the contents of the meetings

confidential. According to Gambro, Nguyen was not immediately sent home after

this meeting, but was instead permitted to take a break and return to the

production floor, where she began talking with co-workers about the confidential

discussion. Gambro employees M arina M artinez and Denise Hinojosa attest that

they overheard Nguyen discussing with co-workers a February 2004 human

resources meeting. Although both M artinez and Hinojosa state via affidavit that

they reported Nguyen’s discussion to their supervisors, neither specifies an exact

date on which Nguyen’s discussion occurred.

      Due to Nguyen’s alleged “breach of confidentiality,” G ambro decided to

fire Nguyen on February 26, and notified her of her termination on February 27.

Although Boltz ultimately made the termination decision, he did so at the

recommendation of G enkinger and G onzales. All three supervisors signed an

Employee Termination Notice dated February 26, 2004, which indicates that

Nguyen was terminated due to “[u]nsat per/behavior.” 2 According to Gambro,

Nguyen did not state her intent to retain an attorney to file a discrimination claim

until after she was terminated on February 27.



1
 (...continued)
clarity and consistency, we adopt Nguyen’s dates for these meetings in our
discussion.
2
  In the employee signature box of the form, Genkinger wrote, “Employee refused
to sign.”

                                         -7-
      Nguyen filed the instant action in federal district court, alleging that

Gambro had violated Title VII in terminating her “because of race, color, national

origin, sex and retaliation.” The district court construed her pleadings as stating

separate claims for discriminatory termination and retaliatory termination. 3

Gambro filed a motion for summary judgment on both claims, which the district

court granted after finding that Nguyen had failed to establish a prima facie case

of discrimination or retaliation. The court also found that, even assuming Nguyen

had established a prima facie case of discrimination, the record contained no

genuine issues of material fact with regard to Gambro’s proffered reason for

terminating Nguyen – her alleged breach of confidentiality. Therefore, it

determined she did not make the required showing of pretext.

                                          II

      W e review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. Garrett v. Hew lett-Packard

Co., 305 F.3d 1210, 1216 (10th Cir. 2002). 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




3
 The district court declined to address Nguyen’s argument that Gambro’s English
Speaking Guidelines are per se unlawful. W e do as well. Because Nguyen has
not brought claims of disparate impact or hostile work environment, and because
G am bro’s proffered reason for termination does not implicate the Guidelines, w e
need not determine whether that policy is per se discriminatory.

                                         -8-
material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

      W hen deciding a Title VII claim of discrimination or retaliation at the

summary judgment stage, we follow the three-step framework set forth in

M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-05 (1973). A plaintiff

must first plead a prima facie case of discrimination or retaliation; thereafter, the

burden shifts to the employer to articulate a legitimate, non-discriminatory reason

for the adverse action. Once the employer does so, the plaintiff must offer

evidence sufficient to create a genuine issue of material fact as to whether the

proffered reason is pretextual. Id.

                                          A

      The district court granted summary judgment to Gambro on Nguyen’s claim

of discriminatory termination after finding that Nguyen had not established a

prima facie case. In assessing Nguyen’s prima facie case, the district court

required her to show that “she was (1) within a protected group; (2) doing

satisfactory work and otherwise qualified for the position; (3) discharged; and (4)

replaced by or treated less favorably than a person outside the protected group.”

Dist. Ct. Order at 8. It then held that Nguyen’s prima facie case failed on the

second and fourth showings. W ith respect to the second prong, the court found

that Nguyen was neither fluent in English nor in possession of a high school




                                         -9-
diploma, and was therefore unqualified for her job. 4 It also found that the record

established a history of problematic behavior on the assembly line. W ith respect

to the fourth prong, the court held that Nguyen’s showing failed because she

produced no evidence that Gambro replaced her with a non-Vietnamese worker or

treated similarly-situated non-V ietnamese workers more favorably.

      Neither party disputes the adequacy of Nguyen’s showing on the first and

third prongs. The district court erred, however, in its articulation and application

of prima facie standards under the second and fourth prongs. Our case law is

clear: To establish a prima facie case of discriminatory termination in violation

of Title VII, a plaintiff “need only show that: (1) he belongs to a protected class;

(2) he was qualified for his job; (3) despite his qualifications, he was discharged;

and (4) the job was not eliminated after his discharge.” Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (citing Perry v.

W oodward, 199 F.3d 1126, 1138 (10th Cir. 1999)). W e held in Kendrick that the

lower court committed error “in requiring [plaintiff] to show that [the employer]

treated similarly-situated nonminority employees differently in order to [establish

a prima facie case].” Id.; see also English v. Colo. Dept. of Corrs., 248 F.3d

1002, 1008 (10th Cir. 2001) (“[I]n disciplinary discharge cases . . . a plaintiff



4
  Although the court did not explicitly reference Nguyen’s lack of English fluency
or a high school diploma in its analysis, we assume the district court relied on
Nguyen’s lack of these qualifications based on its discussion of these deficiencies
in the fact section of its order.

                                         -10-
does not have to show differential treatment of persons outside the protected class

to meet the initial prima facie burden under M cDonnell Douglas.”). Similarly,

we held in Perry that “the district court erred as a matter of law when it held that

[plaintiff] failed to make out her prima facie case of racial discrimination . . .

because she was replaced by [an individual in her protected class].” 199 F.3d at

1140. In the instant case, the district court erroneously required Nguyen to show

she was “replaced by or treated less favorably than a person outside the protected

group” to satisfy the fourth prong of her prima facie case. Although the court

cited our decision in Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997), to

support its analysis on that point, Aramburu is inapplicable. W e clarified our

prima facie case standards in K endrick, and explicitly rejected Aramburu’s

formulation of the fourth prong. See 220 F.3d at 1228 (“The language in

[Aramburu and other cases] regarding the formulation of the fourth prong of the

plaintiff's prima facie case may be dismissed as dicta.”).

      In analyzing Nguyen’s showing on the second prong of her prima facie

case, the district court also determined that she failed to show she was qualified

for her position because she does not meet Gambro’s written job requirements for

assembly-line workers. However, Gambro hired Nguyen notwithstanding her lack

of these qualifications, and there is no evidence that Nguyen misrepresented her

skills at the time of hiring. M oreover, Nguyen w orked at Gambro for almost

three years before being terminated and testified that her supervisors rated her

                                          -11-
work as “excellent.” This evidence is sufficient to demonstrate job qualification

for the purposes of a prima facie case under Kenworthy v. Conoco, Inc., 979 F.2d

1462 (10th Cir. 1992), in which we held:

      [A] plaintiff may make out a prima facie case of discrimination in a
      discharge case by credible evidence that she continued to possess the
      objective qualifications she held when she was hired, or by her own
      testimony that her work was satisfactory, even when disputed by her
      employer, or by evidence that she had held her position for a
      significant period of time.

Id. at 1470 (quoting M acDonald v. E. W yo. M ental Health Ctr., 941 F.2d 1115,

1121 (10th Cir. 1991)).

      Nor is Nguyen’s allegedly unsatisfactory personal behavior on the

production line fatal to her prima facie case. “[A]n employer may not defeat a

plaintiff’s prima facie case by asserting that the plaintiff failed to satisfy

subjective qualifications.” EEOC v. Horizon/CM S H ealthcare Corp., 220 F.3d

1184, 1192 (10th Cir. 2000). As we explained in Horizon, consideration of

subjective factors at the prima facie stage would create an impermissibly high

initial hurdle for plaintiffs and risks collapsing the M cDonnell Douglas three-step

framew ork into a single inquiry. See id. at 1193. Nguyen’s personal behavior on

the production line and its effect on her working relationships are clearly

subjective determinations, irrelevant to this stage of our analysis.

      Our requirements for a prima facie showing are flexible and non-

burdensome. See Ortiz v. Norton, 254 F.3d 889, 895 (10th Cir. 2001) (“[I]t



                                          -12-
should now be obvious that the burden imposed on a plaintiff at the prima facie

stage is not onerous.”) (quotations omitted). W e utilize this initial step primarily

to eliminate the two most common explanations for termination – namely, an

employee’s lack of qualification or the elimination of her position. Perry, 199

F.3d at 1140. “The firing of a qualified minority employee raises the inference of

discrimination because it is facially illogical to randomly fire an otherwise

qualified employee and thereby incur the considerable expense and loss of

productivity associated with hiring and training a replacement.” Id.      Nguyen has

made out a prima facie case of discriminatory termination by showing that she

belongs to a protected class, she was qualified for her job, and her position

remained open after her termination. Id.; K endrick, 220 F.3d at 1229.

      Nonetheless, our determination that Nguyen has established a prima facie

case does not complete our analysis. Because Gambro has articulated a

legitimate, non-discriminatory reason for her termination – Nguyen’s failure to

keep the content of her meetings w ith Genkinger and Gonzales confidential –

Nguyen must show a genuine issue of material fact as to whether the proffered

reason is pretexual. Pretext may be established by show ing “such w eaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its actions that a reasonable factfinder

could rationally find them unw orthy of credence and hence infer that the

employer did not act for the asserted non-discriminatory reasons.” M organ v.

                                         -13-
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotations omitted). The

relevant inquiry as to a proffered reason’s falsity “is not whether the employer’s

proffered reasons were wise, fair or correct, but whether it honestly believed

those reasons and acted in good faith upon those beliefs.” Rivera v. City and

County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotation and

alterations omitted).

      Nguyen maintains that after her meetings with Gonzales and Genkinger on

February 25–27, her supervisors immediately sent her home. Thus, according to

Nguyen, she had no opportunity to speak with her co-workers about the

confidential substance of those meetings. Gambro states that after her first

meeting with Gonzales and Genkinger, Nguyen was permitted to return to the

production floor, where she discussed the contents of the meeting with her co-

workers. It submits affidavits from two employees attesting that they overheard

Nguyen’s discussion of a February 2004 human resources meeting and reported it

to Gonzales; however, neither employee identifies the exact date of the

discussion. The factual dispute regarding Nguyen’s return to the production floor

is material. Even if we infer that the employees’ affidavits referenced Nguyen’s

discussion of her February 25, 2004 meeting with Gonzales and Genkinger, a

material dispute remains: if Gonzales and Genkinger sent Nguyen home

immediately after the meeting at issue, Gonzales would have little basis for

crediting reports that Nguyen spoke to co-workers while on the production floor

                                        -14-
later that afternoon. Thus, a jury that chooses to adopt Nguyen’s version of the

facts could doubt whether Gonzales honestly believed a breach of confidentiality

had taken place. See id. at 925.

      A factual dispute also exists with regard to the reason given to Nguyen for

her termination. Nguyen has consistently asserted that the only reason given for

her termination was her violation of Gambro’s Guidelines. 5 Gambro, however,

submits that Gonzales told Nguyen she was being fired due to her breach of

confidentiality. W hile this discrepancy standing alone may not preclude summary

judgment, it provides further support for Nguyen’s contention that Gambro’s




5
  Although the district court concluded Nguyen “admit[ted] that M s. Gonzales
told her that she was fired for breaching confidentiality,” this factual
determination does not accurately reflect the record. Recognizing that Nguyen’s
deposition testimony is not a model of clarity due to her lack of English fluency,
Nguyen’s sole, consistent position is that she was told she was fired because she
violated the Guidelines. For example, she testified as follow s:

      Q: W hy do you think you were fired?

      A: Because I speak . . . .Because I speak my language.

      Q: Any other reason?

      A: No. No.

      Q: Okay.

      A: That’s the only reason.

Elsewhere, Nguyen states, “The reason they fired me is . . . only the English
[rule], and anything else, I don’t know.”

                                        -15-
proffered reason is unworthy of credence. Her showing of pretext is also

bolstered by Gambro’s admission that it previously subjected Nguyen to

disciplinary action for violating the G uidelines. 6

      A lthough the w eight of the evidence may favor Gambro at this stage, w e

cannot ignore the material, factual disputes created by Nguyen’s testimony. A

jury that resolves these factual disputes in favor of Nguyen could conclude that

Gambro’s proffered reason was pretext for discrimination. As “[c]redibility

determinations [and] the weighing of evidence . . . are jury functions, not those of

a judge,” we w ill not discount or disbelieve N guyen’s testimony at the summary

judgment stage. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003).

Accordingly, we reverse the grant of summary judgment to Gambro on Nguyen’s

discrimination claim.

                                            B

      The district court also dismissed Nguyen’s claim of retaliatory termination

in violation of Title VII. To establish a prima facie case of retaliation, Nguyen

must show: (1) She engaged in protected opposition to discrimination; (2) Her

employer took adverse action against her subsequent to the protected opposition;

and (3) A causal connection between the protected opposition and the adverse

action exists. M cGarry v. Bd. of County Comm’rs, 175 F.3d 1193, 1201 (10th



6
  Gambro did not raise any other legitimate, non-discriminatory reasons for the
termination.

                                          -16-
Cir. 1999). “[C]ausal connection may be demonstrated by evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.” Burrus v. United Tel. Co., 683 F.2d

339, 343 (10th Cir. 1982).

      Nguyen’s only basis for her retaliation claim is her assertion that she told

her supervisors she would seek a lawyer to redress discrimination. Although such

an act would constitute protected activity, the district court found that Nguyen’s

statement could not support a prima facie case of retaliation because it did not

take place until after Nguyen w as fired. The court reasoned as follow s:

      [N guyen] claimed to have told M r. Genkinger that “if [M s. Gonzales]
      does not leave me alone, so I will hire the law yer about M ichelle
      harassment and discriminated. That’s what I told M ark on the
      second day, before I got fired.” W hen asked to explain what she
      meant by “second day,” M s. Nguyen stated that the “first day” was
      the day of her discharge.

In her brief on appeal, Nguyen asserts that the district court misinterpreted her

testimony. She claims that her deposition testimony refers to the “first day” and

“second day” by counting backwards from the date of her termination. Thus,

according to N guyen, the “second day” – the day on which she allegedly first

asserted her intent to seek a lawyer – refers to “two days before Nguyen was

fired,” or February 25, 2004.

      The record does not support this interpretation of Nguyen’s testimony.

Throughout her deposition, Nguyen clearly recounts the relevant days in forward



                                         -17-
chronological order, referring to February 26 as the “second day,” and the day of

her termination, February 27, as the “last day.” Nowhere does Nguyen attest that

she stated her intent to seek a lawyer to redress discrimination on February 25,

2004. W hen briefing arguments before this court, parties must give a clear and

accurate depiction of relevant facts, supported by citations to the record. See

Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995) (citing United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Because Nguyen’s brief

does not present a clear and accurate chronology on this point, bolstered by

appropriate citations to the record, we affirm the district court’s grant of summary

judgment to Gambro on her retaliation claim.

                                        III

      W e REVERSE the decision of the district court with respect to Nguyen’s

discriminatory termination claim and REM AND for proceedings consistent with

this order and judgment. W e AFFIRM the dismissal of her retaliation claim.




                                               Entered for the Court



                                               Carlos F. Lucero
                                               Circuit Judge




                                        -18-
