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

                             FOR THE TENTH CIRCUIT                           November 6, 2019
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 ISIDRO MENDIOLA,

       Plaintiff - Appellant,

 v.                                                            No. 18-3248
                                                     (D.C. No. 6:17-CV-01097-JWB)
 EXIDE TECHNOLOGIES; RANDALL                                    (D. Kan.)
 BATES,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before EID, KELLY, and CARSON, Circuit Judges.
                    _________________________________

       Isidro Mendiola sued his former employer, Exide Technologies, and supervisor,

Randall Bates, asserting various claims arising from termination of his employment. The

district court granted summary judgment in favor of Defendants. Mr. Mendiola appeals,

challenging the district court’s entry of judgment on his claim that Defendants retaliated

against him for taking leave under the Family Medical Leave Act, 29 U.S.C. §§ 2601-54

(“FMLA”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  BACKGROUND

      The following facts are not disputed unless otherwise stated:

      Exide operates a battery manufacturing plant in Salina, Kansas. Mr. Mendiola

worked at the plant for 37 years before Exide terminated his employment in

June 2016. Throughout his employment, Mr. Mendiola worked as an operator in the

plant’s Formation Department, where he served in various positions on the plant’s

manufacturing lines. Mr. Bates was a lead and later the supervisor of the Formation

Department from 2014 through Mr. Mendiola’s termination. Exide’s production

standards increased during Mr. Mendiola’s employment.

      In December 2015, Mr. Mendiola was unexpectedly hospitalized for an

infection that required foot surgery. He requested FMLA leave for his hospital stay

and recovery, and Exide granted his request. Mr. Mendiola returned to work on

March 13, 2016.

      Both before and after his leave, Mr. Bates received complaints from

Mr. Mendiola’s co-workers that Mr. Mendiola was falling behind on the

manufacturing line and hampering production. Mr. Bates monitored Mr. Mendiola’s

performance after first receiving these complaints, and concluded Mr. Mendiola was

having difficulty keeping up with the pace of the manufacturing lines and

maintaining the quality of the product. Mr. Bates coached Mr. Mendiola multiple

times before his FMLA leave about the need to improve. He also moved

Mr. Mendiola to different positions on the manufacturing lines, trying to find one he

could perform adequately.

                                          2
      In Mr. Mendiola’s August 2015 annual review, four months before his FMLA

leave, Shawn Hogan, the Formation Department Manager and Mr. Mendiola’s former

supervisor, advised Mr. Mendiola that he was only partially meeting performance

expectations in the quality and quantity of his work. In the written comments to this

evaluation, he informed Mr. Mendiola that he needed to improve the quality of his

work and learn new positions and how to take advice from co-workers. Before the

2015 evaluation, Mr. Mendiola’s annual reviews had generally indicated that his

performance met expectations, while also identifying areas for improvement.1

      After Mr. Mendiola returned from leave in mid-March 2016, Mr. Bates and

Mr. Hogan both observed that he was having trouble keeping up with the pace of

production and meeting production and quality standards. Mr. Bates coached

Mr. Mendiola on the need to improve, arranged for additional training for him, and

again tried him at different positions on the plant’s three manufacturing lines.

Mr. Hogan also met with Mr. Mendiola and suggested that he apply for a

less-demanding position in Exide’s adjacent Distribution Center. Mr. Mendiola

refused because he was happy in the Formation Department. Mr. Hogan testified that

he told Mr. Mendiola at this meeting that he should move to the Distribution Center




      1
          In his 2013 and 2014 annual reviews, for example, areas for improvement
included Mr. Mendiola getting faster in change-overs, working on keeping the
manufacturing line full and maintaining the quality of the product, and doing a better
job of listening to and following instructions. Mr. Mendiola was also rated as only
partially meeting performance expectations in the quantity of his work in 2013.
                                           3
because he could no longer keep up in the Formation Department, but Mr. Mendiola

denies this aspect of their conversation.

      On April 18, 2016, Mr. Bates met with Mr. Mendiola again to discuss his

performance issues. In a follow-up email to Mr. Hogan and Exide’s HR department,

Mr. Bates reported that he notified Mr. Mendiola at the meeting that he had not met

production or quality standards at any of his recent positions in the Formation

Department and that disciplinary action would be taken if he did not meet these

standards at his next position. Five weeks later, on May 24, Mr. Bates and

Mr. Hogan met with Mr. Mendiola and delivered a written notice informing him that

he had not met production and quality standards at his most recent position, that he

had not succeeded in performing any role in the Formation Department, and that his

poor performance had created downtime and costs for the company. The notice

further informed Mr. Mendiola that this job performance could no longer be tolerated

and that “immediate improvement [was] required to avoid termination.” Aplt. App.

Vol. I at 119. Shortly thereafter, it is undisputed that Mr. Mendiola was responsible

for production problems and downtime on the manufacturing line to which he had

been assigned. On June 7, Exide terminated Mr. Mendiola’s employment, effective

June 15, 2016, citing his inability to meet performance standards.2




      2
         We also note that at some point after his termination, Mr. Mendiola applied
for Social Security disability benefits, asserting he was physically unable to work as
of June 7, 2016, his last day of work with Exide. The Social Security Administration
found Mr. Mendiola was disabled as of this date and awarded him benefits.
                                            4
       Mr. Mendiola filed this action against Exide and Mr. Bates, alleging claims

under the FMLA and Age Discrimination in Employment Act. He brought this

appeal after the district court granted Defendants’ motion for summary judgment on

all claims.

                                      DISCUSSION

       In his appellate brief, Mr. Mendiola challenges only the district court’s grant of

summary judgment against his FMLA retaliation claim. As a result, we limit our review

to this issue. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(appellant generally forfeits appellate review of issues omitted from opening brief).

       A. Standard of Review

       “[W]e review summary judgment decisions de novo, applying the same legal

standard as the district court.” Talley v. Time, Inc., 923 F.3d 878, 893

(10th Cir. 2019) (internal quotation marks and alterations omitted). Under this

standard, summary judgment is granted when “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.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is

such that a reasonable jury could return a verdict for the nonmoving party, and a fact

is material when it might affect the outcome of the suit under the governing

substantive law. Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016)

(internal quotation marks and alterations omitted). “[W]e view the evidence and

draw reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Talley, 923 F.3d at 893 (internal quotation marks omitted).

                                             5
       B. FMLA Retaliation Claim

       “Retaliation claims under the FMLA are subject to the burden-shifting analysis of

McDonnell Douglas.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170

(10th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804

(1973)). “Under this analysis, the plaintiff bears the initial burden of establishing a prima

facie case of retaliation, by proving that (1) [he] engaged in a protected activity; (2) the

defendant took an action that a reasonable employee would have found materially

adverse; and (3) there exists a causal connection between the protected activity and the

adverse action.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1318 (10th Cir. 2017)

(internal quotation marks and alterations omitted). If the plaintiff successfully asserts a

prima facie retaliation case, then the burden shifts to the defendant to “offer a legitimate,

non-retaliatory reason for the employment action. The plaintiff then bears the ultimate

burden of demonstrating that the defendant’s proffered reason is pretextual.” Metzler,

464 F.3d at 1170 (citation omitted).

       Mr. Mendiola claimed Defendants violated the FMLA by terminating his

employment in retaliation for him taking FMLA leave. The district court granted

summary judgement against this claim, concluding Mr. Mendiola had established a prima

facie case of retaliation, but had not met his burden of demonstrating that Defendants’

asserted non-retaliatory reason for discharging him—poor job performance—was

pretextual.




                                              6
       For purposes of appeal, we assume Mr. Mendiola established a prima facie case of

retaliation.3 We also conclude Defendants met their burden of showing a legitimate,

non-retaliatory reason for discharging Mr. Mendiola, namely his failure to meet job

performance standards. As a result, to avoid summary judgment Mr. Mendiola must raise

a genuine issue of fact as to pretext by presenting evidence that would allow a

reasonable jury to conclude that Defendants did not in fact discharge him because of

poor job performance. He may make this showing by revealing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could rationally

find them unworthy of credence and hence infer that the employer did not act for the

asserted non-[retaliatory] reasons.” Dewitt, 845 F.3d at 1307 (internal quotation marks

omitted).

       Mr. Mendiola has not met this burden. He claims the evidence shows that his job

performance was consistent and satisfactory throughout his long career at the plant,

including before and after his FMLA leave. But the record shows that Defendants

became dissatisfied with his job performance no later than August 2015, when

Mr. Mendiola received a subpar annual evaluation months before his unexpected surgery

and FMLA leave. This evidence does not necessarily negate the possibility that



       3
         Defendants argued below and again on appeal that Mr. Mendiola did not
establish a prima facie retaliation case because he failed to demonstrate a causal
connection between his FMLA leave and his discharge. We do not address this
question because we affirm the district court’s summary judgment decision on other
grounds.
                                              7
Defendants’ subsequent reliance on his poor job performance was a pretext for FMLA

retaliation, see Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1218-19 (10th Cir. 2002),

but it does not create a genuine issue as to pretext when, as in this case, there is simply no

evidence suggesting that Defendants’ “criticism of [Mr. Mendiola] was inflated and

exaggerated as a means of retaliating against [him],” Metzler, 464 F.3d at 1175 (internal

quotation marks and alterations omitted). See also Dewitt, 845 F.3d at 1307 (“Mere

conjecture that the employer’s explanation is a pretext for intentional discrimination

is an insufficient basis for denial of summary judgment.” (internal quotation marks

and alterations omitted)).

       In addition, even viewed in the light most favorable to Mr. Mendiola, the evidence

if anything tends to show that Defendants were looking for ways to maintain

Mr. Mendiola’s employment with the company rather than end it. Mr. Mendiola does not

dispute, for example, that Mr. Bates coached him on his performance problems before

and after his leave, that Mr. Bates and/or Mr. Hogan met with him multiple times after he

returned from leave to discuss his performance problems, that Mr. Bates offered him

additional training and moved him to different positions within the Formation

Department, and that Mr. Hogan suggested that Mr. Mendiola apply for a less-demanding

position in the company’s Distribution Center. A reasonable jury could not infer pretext

from this evidence. Nor are we persuaded that a reasonable jury could find Defendants’

explanation for discharging Mr. Mendiola was pretextual because the company opted to

respond to its long-time employee’s performance issues in this manner instead of issuing

formal written warnings to him pursuant to the non-binding progressive discipline policy

                                              8
in its employee handbook. See Fassbender v. Correct Care Sols., LLC, 890 F.3d 875,

889 (10th Cir. 2018) (“[T]he mere fact that an employer failed to follow its own internal

procedures does not necessarily suggest that . . . the substantive reasons given by the

employer for its employment decision were pretextual.” (internal quotation marks

omitted)).

       To the extent Mr. Mendiola seeks to demonstrate pretext by disputing Defendants’

assessment of his job performance, we note that the issue is not whether Defendants were

correct in their assessment, but rather whether they honestly believed he could no longer

meet performance standards in the Formation Department and acted in good faith on this

belief. See Hiatt v. Colo. Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017). Mr. Mendiola

has not come forward with evidence from which a reasonable jury could find that

Defendants lacked such a belief.4 Accordingly, considering the totality of the evidence,

we conclude there is no genuine dispute as to the authenticity of Defendants’

legitimate, non-retaliatory reason for terminating Mr. Mendiola’s employment.

Defendants were entitled to summary judgment.

       AFFIRMED.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




       4
       The record does not support Mr. Mendiola’s suggestions that Mr. Bates and
Mr. Hogan were inconsistent in testifying about his job performance.
                                             9
