                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 12, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MELANIE M. VINEZ,

      Plaintiff - Appellant,

v.                                                           No. 15-1314
                                                (D.C. No. 1:14-CV-00223-PAB-KMT)
SKY CHEFS, INC.,                                              (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
                   _________________________________

      Melanie M. Vinez appeals the district court’s grant of summary judgment to

her former employer, Sky Chefs, Inc., on her discrimination claim brought under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s judgment.

                                            I

      Sky Chefs operates out of Denver International Airport and provides catering

services to various airlines. Ms. Vinez was hired by Sky Chefs in June 2010 as a

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Transportation Manager. On June 20, 2011, she went on medical leave under the Family

and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-54, for treatment of breast cancer.

She was notified at that time that her position would need to be filled but she would be

reinstated to a similar position when she returned. Ms. Vinez exhausted her FMLA leave

in September 2011, and Sky Chefs extended her on medical leave as an accommodation

under the ADA until she was ready to return to work in June 2012. On June 18, 2012,

Ms. Vinez contacted Sky Chefs’ human resources manager, Cheryl Williams, and told

her that she had been medically cleared to return to work by her doctor. The next day,

June 19, Ms. Vinez met with Ms. Williams, who briefly introduced her to the newly hired

general manager, Robert Mower. Mr. Mower was responsible for making managerial

hiring and firing decisions, and Ms. Williams told him that Ms. Vinez “had just been

cleared from medical leave and was coming back to work.” Aplt. App. at 162.

       On July 2, however, Mr. Mower was notified of a corporate restructuring, called

Project Laser, which would eliminate a single, mid-level management position of

Director of Operations. Under the restructuring implementation guidelines, the Director

of Operations, Derek Moon, could be laid off or moved to another position. See id.

at 371, 375. At the time, there was an available lower-level Food Manager position that

was lateral to Ms. Vinez’s job as Transportation Manager, but rather than offer that job to

Ms. Vinez, Sky Chefs attempted to create a different job for her as P.M. Manager on

Duty. Ms. Vinez stated in her affidavit that Ms. Williams offered her that job on July 3,

but her airport security badge had not been re-authorized. The position was never

actually created, though, because the restructuring rendered it financially unfeasible. And

                                             2
some two to three weeks after learning of the restructuring, Mr. Mower offered the Food

Manager position to Mr. Moon, who accepted the job. Mr. Mower testified that he never

considered offering the Food Manager position to Ms. Vinez, id. at 185, and that when he

discussed the position with Mr. Moon, he did not know she was returning, id. at 189-90.

Mr. Mower ultimately decided to lay off Ms. Vinez on September 14, 2012. He

maintained that the sole reason she was laid off was because “we did not have an open

position to bring her back to.” Id. at 182.

       Ms. Vinez subsequently filed this action, claiming retaliation under the FMLA,

discrimination under the ADA, and outrageous conduct under state law. The district

court granted summary judgment to Sky Chefs on the federal claims and declined to

exercise supplemental jurisdiction over the state-law claim, but Ms. Vinez challenges

only the disposition of her ADA claim on appeal. See Conroy v. Vilsack, 707 F.3d

1163, 1170-71 (10th Cir. 2013) (deeming claim abandoned where plaintiff failed to

advance any relevant arguments on appeal). Applying the burden-shifting framework

of McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the district court

concluded Ms. Vinez failed to either establish a prima facie case of discrimination or

show that Sky Chefs’ proffered reason for the layoff was pretext for discrimination.

       On appeal, Ms. Vinez relies entirely on evidence of pretext to satisfy her

prima facie case. Among other things, she contends that because there is a fact issue

regarding whether Sky Chefs’ proffered reason for terminating her—there were no

available jobs—was true, she has established a prima facie case of discrimination.



                                              3
She also contends the same evidence shows that Sky Chefs’ proffered reason was

pretext for discrimination.

                                            II

       We review the district court’s grant of summary judgment de novo, applying

the same standard as the district court. Osborne v. Baxter Healthcare Corp.,

798 F.3d 1260, 1266 (10th Cir. 2015). Summary judgment is appropriate “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.” Id. (quoting Fed. R. Civ. P. 56(a)). In

conducting our review, “we consider the evidence in the light most favorable to the

non-moving party,” but “unsupported conclusory allegations do not create a genuine

issue of fact.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011)

(brackets and internal quotation marks omitted).

       Because Ms. Vinez relies on circumstantial evidence, our review is guided by the

burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 & n.3 (10th Cir. 1997). Under

this framework, Ms. Vinez must establish a prima facie case of discrimination. Smothers

v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). If she makes this initial

showing, the burden shifts to the defendant to offer a legitimate, non-discriminatory

reason for the adverse employment action, upon which the burden shifts back to

Ms. Vinez to show a genuine issue of material fact whether the employer’s proffered

reason is pretext for discrimination. Id.



                                             4
       Under the first step of McDonnell Douglas, Ms. Vinez must establish a

prima facie case by showing that “(1) she is disabled within the meaning of the ADA;

(2) she is qualified, with or without reasonable accommodation, to perform the essential

functions of the job held or desired; and (3) she was discriminated against because of her

disability.” Osborne, 798 F.3d at 1266 (internal quotation marks omitted). “While the

elements of a prima facie case under the McDonnell Douglas framework are neither rigid

nor mechanistic, their purpose is the establishment of an initial inference of unlawful

discrimination warranting a presumption of liability in plaintiff’s favor.” Adamson v.

Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). “In the

absence of facts tending to establish this initial inference, plaintiff is not entitled to the

presumption of discrimination and defendant is not required to defend against the

charge.” Id.

       The parties do not dispute that Ms. Vinez was disabled while undergoing cancer

treatment for purposes of satisfying the first element of her prima facie case. Although

the parties dispute the second element—whether she was qualified for the Food Manager

position—the district court assumed without deciding that she was “a qualified

individual,” Aplt. App. at 355, so we will as well. Thus, we proceed to the third element

of the prima facie case: whether Ms. Vinez was discriminated against because of her

disability. The third element requires that Ms. Vinez show she was laid off “under

circumstances which give rise to an inference that the termination was based on [her]

disability.” Smothers, 740 F.3d at 544 (internal quotation marks omitted). “This burden

is not onerous, but it is also not empty or perfunctory.” Morgan, 108 F.3d at 1324

                                                5
(internal quotation marks omitted). It “requires the plaintiff to present some affirmative

evidence that disability was a determining factor in the employer’s decision.”

Id. at 1323. Once the plaintiff presents such evidence, “if the trier of fact finds it

credible, and the employer remains silent, she would be entitled to judgment as a matter

of law.” Id. at 1324.

       Ms. Vinez attempts to establish the third element of her prima facie case by

citing—not affirmative evidence that her disability was a determining factor in

Mr. Mower’s decision—but evidence that he gave a false explanation for why she was

laid off. Specifically, she contends it was untrue that there were no jobs because the

Food Manager position was available when Mr. Mower knew she planned to return. She

argues that Mr. Mower knew she was returning in June, when Ms. Williams told him, but

rather than offer her the job, he gave it to Mr. Moon and denied knowing that she was

returning. Although Ms. Vinez acknowledges that such evidence of pretext is usually

evaluated at the later stage of the McDonnell Douglas analysis, she points out that we do

“not require plaintiffs to ‘ration’ their evidence between the prima facie case and pretext

stages.” Aplt. Br. at 21 (quoting Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1218

(10th Cir. 2003)).

       That may be correct, but Ms. Vinez must still produce sufficient probative

evidence to establish her prima facie case. See Barlow v. C.R. England, Inc., 703 F.3d

497, 505 (10th Cir. 2012) (“If the plaintiff does not establish a prima facie case, [her]

entire case fails.”). And without some affirmative evidence that her disability was a

determining factor in Sky Chefs’ decision to terminate her, this evidence of pretext alone

                                               6
fails to show that she was laid off under circumstances giving rise to an inference of

discrimination. Indeed, as we explained in Adamson, the type of pretext evidence offered

here by Ms. Vinez is not affirmative evidence that disability discrimination was the

operative motive behind the decision to select her for layoff:

       By conflating evidence tending to cast doubt on an employer’s stated
       reasons for an employment decision with the burden of establishing an
       inference of actionable discriminatory animus in the first instance, Plaintiffs
       seek to gain the benefit of that inference without having to establish it.
       Without a demonstrable nexus between aspersions cast on an employer’s
       stated reasons and invidious intent, evidence of “pretext” merely establishes
       that an employer’s stated reason for its actions may not be its real or only
       reason. It does not establish that the real or “but-for” reason was unlawful
       discrimination.

514 F.3d at 1144.1

       Here, without a prima facie case, the fact issue regarding whether Sky Chefs’

proffered reason was true does not alone indicate that disability was a determining

factor in Sky Chefs’ decision to terminate her. Instead, it only suggests that Mr. Mower’s

stated reason may have been untrue or inaccurate. Perhaps he did not view her as being

qualified for the job, or perhaps as a new general manager (he had only been on the job

twelve days), he forgot she was returning. The record does not tell us, but neither does it

suggest discrimination was a determining factor. And without more, the untruthfulness

or inaccuracy of the reason does not, in and of itself, create an inference of discriminatory


       1
         Our decision in Wells v. Colorado Department of Transportation, 325 F.3d
1205 (10th Cir. 2003), is not to the contrary. In Wells, the plaintiff showed evidence
of pretext but also affirmative evidence of an unlawful retaliatory motive because the
person who fired her was specifically accused of discrimination in her EEOC
complaint and knew of its filing. Id. at 1217. Additionally, the timing of the
plaintiff’s termination was consistent with a retaliatory intent. Id.
                                             7
intent to establish a prima facie case. Thus, Mr. Vinez may not benefit from an inference

of discrimination that she has not established.

       Ms. Vinez attempts to salvage her claim with three more pieces of evidence

but none of this evidence permits an inference of discrimination. First, Ms. Vinez

cites an alleged statement made by Ms. Williams on August 8, 2012. According to

Ms. Vinez’s affidavit, Ms. Williams informed her on that date that the company was

restructuring and all employees on medical leave would be laid off:

       She informed me that [Sky Chefs] was undergoing some sort of
       restructuring. . . . She informed me that all of the directors of operation
       positions were being phased out and that the company would only fill
       open vacancies in each location. She told me that the company was
       going to lay off all of the employees who were out on medical leaves of
       absence or regular leaves of absence unless there was an open position
       for them . . . .

Aplt. App. at 163. Ms. Vinez contends this statement suggests discriminatory intent,

but a plain reading indicates that all employees on leave, both those on medical and

regular leave, would be laid off unless they had a job to return to. This statement

permits no inference of discrimination, nor does it suggest pretext.

       Second, Ms. Vinez cites the testimony of Sky Chefs’ human resources

director, Karen Damerow, who testified that she did not know what criteria were used

to determine who would be laid off, particularly Ms. Vinez:

       Q How was Ms. Vinez identified for termination?

       A It was a process of saying, as I look at my team – and, again, this is
       my perception. I’m not going to pretend I know everything
       [Mr. Mower] was thinking. But he identified who he wanted in [the
       managerial positions]. And Ms. Vinez was not one of the people who
       was identified.

                                             8
      Q And you don’t know what criteria he used to make that
      determination?

      A No, I don’t, not specifically.

Aplt. App. at 201. But this testimony permits no inference of discrimination because

there is no indication that Ms. Vinez’s disability was a determining factor in the

decision to terminate her. Ms. Damerow simply testified that she did not know how

Mr. Mower chose to layoff Ms. Vinez. Ms. Vinez adds that there is also an

inconsistency in Ms. Damerow and Mr. Mower’s testimonies: Ms. Damerow stated

that Mr. Mower retained “the best performing people, . . . the right people for the

role,” id. at 220, but Mr. Mower testified that the only criteria he used to terminate

Ms. Vinez was the fact that they “did not have an open position to bring her back to,”

id. at 95, 182. Yet there is no discriminatory animus reflected in these statements,

and any perceived inconsistency is understandable, given that Ms. Damerow admitted

she did not know how Mr. Mower decided to layoff Ms. Vinez.

      Finally, Ms. Vinez notes that Sky Chefs maintains a formal reduction-in-force

policy and published a more specific set of guidelines to implement the restructuring.

Citing Mr. Mower’s testimony that he terminated her without reviewing any documents,

Ms. Vinez wrongly interprets his testimony to mean that he failed to comply with the

restructuring guidelines and the reduction-in-force policy. But Mr. Mower clearly

reviewed and complied with the restructuring guidelines because he eliminated the

Director of Operations position occupied by Mr. Moon. Although Ms. Vinez says the

guidelines “specifically instructed Mr. Mower to consider [her] for

                                            9
Supervisor/Assistant Manager,” Aplt. Br. at 21, the guidelines actually directed him

to reassign department managers or designate them as “unassigned.” See Aplt. App.

at 375 (“[Department] Managers will be 1) reassigned to [one of the four managerial

positions] or 2) re-assigned to a Supervisor position or 3) un-assigned.”). There is no

evidence that Mr. Mower failed to comply with this directive by declining to consider

her for a supervisory role, particularly since she was not a department manager at the

time. Nor is there any evidence that he terminated her in contravention of the

reduction-in-force policy. Mr. Mower stated that he laid off Ms. Vinez because there

were no jobs for her. This rationale, on its face, permits no inference of

discriminatory animus, and Ms. Vinez has failed to show facts suggesting otherwise.

Consequently, she cannot establish an initial inference of discrimination for purposes

of satisfying her prima facie case and her claim must fail. See Adamson, 514 F.3d

at 1146 (“In the absence of facts tending to establish this initial inference, plaintiff is

not entitled to the presumption of discrimination and defendant is not required to

defend against the charge.”).2

                                            III

       The judgment of the district court is affirmed.

                                                  Entered for the Court
                                                  Mary Beck Briscoe
                                                  Circuit Judge

       2
         Although Ms. Vinez’s arguments required that we evaluate her evidence of
pretext, “[b]ecause we hold [she] failed to establish [her] prima facie ADA case, the
issue of whether [Sky Chefs’] nondiscriminatory reason for terminating [her] was a
pretext is irrelevant.” Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1111 n.2 (10th Cir.
1999).
                                            10
