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

                             FOR THE TENTH CIRCUIT                             May 6, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 JAGDISH C. LAUL,

       Plaintiff - Appellant,

 v.                                                          No. 18-2084
                                                 (D.C. No. 1:16-CV-01017-JAP-KBM)
 LOS ALAMOS NATIONAL                                           (D. N.M.)
 LABORATORIES,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                 _________________________________

      Jagdish C. Laul appeals from the district court’s grant of summary judgment in

favor of Los Alamos National Laboratories (“LANL”)1 on his claims alleging

discriminatory failure to rehire him based on his age and/or national origin, and

retaliatory failure to rehire him based on his previous complaints of discrimination.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        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 This order and judgment is not binding precedent,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.
      1
          LANL’s name has been changed to Los Alamos National Security, LLC.
                                I. BACKGROUND

      Mr. Laul is a naturalized U.S. citizen from India. In 1999, when Mr. Laul was

60 years old, LANL hired him as a Safety Basis Analyst. Initially, Mr. Laul’s job

performance was satisfactory and he was even promoted. Beginning in 2007,

however, his performance steadily declined. In October 2013, his supervisor

recommended to James Tingey, a Safety Basis Division Leader, to terminate Mr.

Laul’s employment. Mr. Tingey accepted the recommendation and issued a notice of

intent to terminate. Following an unsuccessful internal LANL appeal, Mr. Laul’s

employment was terminated, effective December 6, 2013. See Laul v. Los Alamos

Nat’l Labs., 714 F. App’x 832, 834-35 (10th Cir. 2017) (detailing Mr. Laul’s internal

appeal and job performance problems, including his unprofessional, disrespectful,

and disruptive workplace behavior), cert. denied, 138 S. Ct. 2602 (2018).

      In early January 2014, Richard Marquez, the Executive Director of LANL, told

Mr. Laul he could apply for jobs despite having been discharged. Sometime later,

Mr. Laul went to LANL’s Occupational Medical building and asked to speak with

Janet McMillan, a nurse and the wife of LANL’s Director, Charles McMillan. Mr.

Laul showed Ms. McMillan a picture of himself and the McMillans at a recent

holiday event and then asked to speak with her privately. Mr. Laul followed Ms.

McMillan into her office and shut the door behind him. He then tried to hand Ms.

McMillan an envelope containing documents related to his termination that he

wanted delivered to her husband. When Ms. McMillan refused the envelope, Mr.



                                          2
Laul became increasingly angry. Ms. McMillan later reported the incident to her

supervisor.

      On September 11, 2014, Mr. Laul filed a charge of discrimination related to

his termination with the New Mexico Department of Labor, Human Rights Division.

He filed an amended charge on October 30.

      Between October 20, 2014, and May 4, 2015, Mr. Laul applied for 30 jobs at

LANL. Eleven of the job postings were cancelled and are not at issue. As to the

remaining 19 jobs, Mr. Laul was not hired for any of them. All of the people hired

were younger than Mr. Laul, who was then in his mid-70s, and none were of East

Indian origin.

      For two job openings as a Safety Basis Analyst, Mr. Tingey, the manager who

approved Mr. Laul’s termination in October 2013, was the hiring manager. He

determined that Mr. Laul did not meet the minimum job requirements for a Safety

Basis Analyst because he had recently failed at the same job.

      Barbara Pacheco, a Human Resources employee, reviewed and screened the

applications for an Operations Manager job. She was aware of Mr. Laul’s previous

performance issues and his discrimination complaints. Ms. Pacheco said that she did

not select Mr. Laul for an interview because he did not have the necessary

management experience.

      Both Mr. Tingey and Ms. Pacheco said they did not consider Mr. Laul’s age,

race, national origin, or previous complaint of discrimination in making their

decisions.

                                          3
      The hiring managers for the remaining 16 jobs did not know that Mr. Laul had

been terminated or that he had filed discrimination charges against LANL. Nor did

they consider Mr. Laul’s age, race, or national origin in making their decisions.

Instead, they decided not to interview Mr. Laul because he either lacked the

minimum qualifications or was not the best qualified applicant.

      In June 2015, Mr. Laul returned to the Occupational Medical building and

again asked to see Ms. McMillan. This time, Ms. McMillan met with Mr. Laul in the

lobby. Mr. Laul again tried to give her the documents for delivery to her husband.

When Ms. McMillan refused, Mr. Laul became so aggressive that he drew the

attention of a physician assistant, who told him to leave. Ms. McMillan reported the

incident to Mr. Marquez, who in turn informed Michael Lansing, the Acting

Associate Director for Operations and Business. On July 1, Mr. Lansing and LANL

Personnel Security issued a “Be On The Lookout” (“BOLO”) for Mr. Laul. LANL

uses a BOLO to alert personnel that the BOLO subject is not permitted on the

property and should be reported to security if he attempts to enter or is seen on the

premises.

      In August 2015, Mr. Laul filed his first suit against LANL for discriminatory

discharge, failure to hire, and retaliation. In September 2016, while LANL’s motion

for summary judgment was pending in the first suit,2 Mr. Laul filed a second suit in

which he asserted that LANL failed to rehire him based on his age and national origin


      2
        The district court granted summary judgment in favor of LANL, and this
court affirmed on appeal. See Laul, 714 F. App’x at 834, 841.
                                           4
in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 623(a)(1), (“ADEA”); Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a)(1); and the New Mexico Human Right Act (“NMHRA”), N.M. Stat.

Ann. § 28-1-7. He also claimed that LANL failed to rehire him in retaliation for his

previous charge of discrimination in violation of Title VII and the NMHRA. The

district court granted summary judgment in favor of LANL, and this appeal followed.

                            II. STANDARD OF REVIEW

       “We review summary judgment determinations de novo, applying the same

standard as the district court. At this stage of the litigation, we view facts in the light

most favorable to the non-moving party and draw all reasonable inferences in

[his] favor.” DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017)

(citations, ellipses, brackets and internal quotation marks omitted). “Even so, the

non-movant . . . must marshall sufficient evidence requiring submission to the jury to

avoid summary judgment.” Id. (brackets and internal quotation marks omitted).

       “The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). “A fact is material if, under the governing law,

it could have an effect on the outcome of the lawsuit. A dispute over a material fact

is genuine if a rational jury could find in favor of the nonmoving party on the

evidence presented.” DeWitt, 845 F.3d at 1306. (internal quotation marks omitted).

                                    III. ANALYSIS

                     A. Age and National Origin Discrimination

                                             5
      The district court addressed Mr. Laul’s claims for age and national origin

discrimination together because he used the same evidence to support both claims.

We do the same.

1. Legal Background

      “Where, as here, an employee’s [Title VII] or [ADEA] claim relies exclusively

on circumstantial, rather than direct, evidence, we apply the burden shifting scheme

of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Timmerman

v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). The McDonnell-Douglas

burden-shifting analysis also applies to claims under the NMHRA. See Juneau v.

Intel Corp., 127 P.3d 548, 551 (N.M. 2005) (“When considering a violation of the

NMHRA,” the New Mexico Supreme Court “has used the [McDonnell Douglas]

methodology”).3

      Under McDonnell Douglas, Mr. Laul has the burden to establish a prima facie

case of failure to hire based on his age and/or national origin. He “must show that

(1) he applied for an available position; (2) he was qualified for the position; and (3)

he was rejected under circumstances which give rise to an inference of unlawful

discrimination.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999)

(internal quotation marks omitted). If Mr. Laul carries his burden, LANL must then



      3
         For the first time on appeal, Mr. Laul argues that the district court “erred in
applying federal standards to [his] claims under the [NMHRA].” Aplt. Opening Br.
at 46. Setting aside the fact that we generally do not consider arguments raised for
the first time on appeal, Mr. Laul does not say what standard the district court should
have applied to these claims. In any event, the court applied the correct standard.
                                            6
come forward with a legitimate, non-discriminatory reason for its failure to hire him.

If LANL makes this showing, the burden shifts back to Mr. Laul to show that

LANL’s proffered justification is pretextual. See Timmerman, 483 F.3d at 1113.

       “Under our precedents, a plaintiff can establish pretext by showing the

defendant’s proffered non-discriminatory explanations for its actions are so

incoherent, weak, inconsistent, or contradictory that a rational factfinder could

conclude they are unworthy of belief.” Johnson v. Weld Cty., 594 F.3d 1202, 1211

(10th Cir. 2010) (brackets and internal quotation marks omitted). “[O]ur role isn’t to

ask whether the employer’s decision was wise, fair or correct, but whether it honestly

believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in

good faith on those beliefs.” Id. (brackets and internal quotation marks omitted).

2. Analysis

       For purposes of this appeal, we assume that Mr. Laul could establish a prima

facie case of discrimination. The parties do not dispute that LANL articulated a

legitimate, nondiscriminatory reason for its decisions not to rehire Mr. Laul. Thus,

the issue is whether Mr. Laul established pretext. We agree with the district court

that he failed to do so.

       Mr. Laul argues that LANL’s hiring managers did not honestly believe his

qualifications were lacking or believe there were better qualified candidates. He

contends the managers manufactured these reasons and argues his age and/or national

origin was the real reason he was not rehired. But it is not enough for Mr. Laul to

assert his belief that he was better qualified than the other applicants. “[T]o suggest

                                           7
that an employer’s claim that it hired someone else because of superior qualifications

is pretext for discrimination rather than an honestly (even if mistakenly) held belief, a

plaintiff must come forward with an overwhelming disparity in qualifications.”

Id. (internal quotation marks omitted). See also Jaramillo v. Colo. Judicial Dep’t,

427 F.3d 1303, 1309 (10th Cir. 2005) (per curiam); Bullington v. United Air Lines,

Inc., 186 F.3d 1301, 1319 (10th Cir. 1999), overruled on other grounds, Nat’l R.R.

Passenger Corp. v Morgan, 536 U.S. 101 (2002).

      Mr. Laul presents a few examples to allege that a hiring manager improperly

considered his resume, education, or experience. But “[t]o support an inference of

pretext, to suggest that something more nefarious might be at play, a plaintiff must

produce evidence that the employer did more than get it wrong.” Id. (emphasis

added). “He . . . must come forward with evidence that the employer didn’t really

believe its proffered reasons for action and thus may have been pursuing a hidden

discriminatory agenda.” Id.

      We also reject Mr. Laul’s attempt to prove pretext by the sheer number of jobs

he applied for but failed to get an interview. To prove pretext on the theory he was

better qualified than the other candidates, Mr. Laul must proffer evidence of an

“overwhelming disparity” between his qualifications and those of the successful

candidate, which necessarily involves an individualized consideration of the

particular candidates for a particular job. He has failed to do so.

                                    B. Retaliation

1. Legal Background

                                            8
       A claim of Title VII retaliation can be proven with direct evidence or by

reliance on the McDonnell Douglas framework. See Khalik v. United Air Lines,

671 F.3d 1188, 1192 (10th Cir. 2012). Under the latter, a plaintiff must first “raise a

genuine issue of material fact on each element of the prima facie case.” Morgan v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted). The burden then

“shifts to the employer to offer a legitimate nondiscriminatory reason for its

employment decision.” Id. If the employer meets its burden, “the burden then

reverts to the plaintiff to show that there is a genuine dispute of material fact as to

whether the employer’s proffered reason for the challenged action is pretextual—i.e.,

unworthy of belief.” Id. (internal quotation marks omitted).

       To establish a prima facie case of Title VII retaliation, Mr. Laul “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.” Khalik, 671 F.3d at 1193 (internal quotation marks omitted). To establish a

causal connection, a plaintiff “must present evidence of circumstances that justify an

inference of retaliatory motive.” Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir.

2014) (internal quotation marks omitted).

2. Analysis

       The district court found that Mr. Laul established the first two elements of a

prima facie case but failed to establish the third element—a causal connection

between his last protected activity and the decision not to rehire him. We agree.

                                            9
      The hiring managers for 16 of the 19 jobs had no knowledge that Mr. Laul had

filed charges of discrimination against LANL. As such, there is no evidence of any

circumstances that would justify an inference of a retaliatory motive. See Kendrick v.

Penske Transp. Servs., Inc., 220 F.3d 1220, 1234-35 (10th Cir. 2000) (affirming

dismissal of retaliation claim on summary judgment where plaintiff presented no

evidence that decisionmaker knew of plaintiff’s protected activity at time decision

was made).

      Mr. Laul argues that the district court made an improper credibility

determination on summary judgment because it “believed [LANL’s] evidence that the

hiring managers other than Mr. Tingey and Ms. Pacheco did not have knowledge of

[his] complaints of discrimination.” Aplt. Opening Br. at 55. The court, however,

did not make a credibility determination. It determined that Mr. Laul failed to

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

protected activity caused the hiring decisions. Mr. Laul merely speculated that the

hiring managers reviewed his personnel file, which contained information about his

discrimination charges. But to “defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere speculation, conjecture, or

surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

      Mr. Tingey and Ms. Pacheco knew about Mr. Laul’s charges of discrimination

but decided not to hire him. But this occurred in April 2015, nearly six months after

his last protected activity in October 2014, when he filed the amended charges with

the state agency. This gap between the protected activity and the adverse action was

                                           10
too long to support an inference of causation. “[W]here a gap of three months or

longer has occurred, a plaintiff must present other evidence—more than mere

speculation, conjecture, or surmise—to establish that [his] protected activity was a

but-for cause of the adverse employment action. Bekkem v. Wilkie, 915 F.3d 1258,

1271 (10th Cir. 2019) (internal quotation marks omitted).

      Finally, in opposing summary judgment, Mr. Laul argued that LANL “further

retaliated against [him] to ensure that he cannot secure a position at LANL by issuing

a BOLO against [him].” Aplt. App., Vol. 3 at 742. Even if we assume Mr. Laul was

engaged in protected activity when he confronted Ms. McMillan, we agree with the

district court that “the evidence clearly shows that the BOLO was issued because of

the inappropriate and threatening nature of Plaintiff’s conduct in his encounters with

Ms. McMillan”—not because of a discriminatory or retaliatory motive. Id., Vol. 6 at

870. Mr. Laul failed to present any “evidence that members of the security

department, who issued the BOLO, knew about Plaintiff’s prior complaints of

discrimination.” Id. As such, he could not show that protected activity caused

issuance of the BOLO.

                                IV. CONCLUSION

      We affirm the judgment of the district court.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge


                                          11
