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

                             FOR THE TENTH CIRCUIT                          January 25, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
CYNTHIA MONTOYA,

      Plaintiff - Appellant,

v.                                                            No. 14-1491
                                                    (D.C. No. 1:13-CV-02408-RPM)
HUNTER DOUGLAS WINDOW                                          (D. Colo.)
FASHIONS, INC.,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

       Cynthia Montoya appeals the district court’s decision granting summary

judgment in favor of her former employer, Hunter Douglas Window Fashions, Inc.,

on her claims of gender discrimination in violation of Title VII of the Civil Rights

Act of 1964 and retaliation under the Family Medical Leave Act (FMLA). Because

we conclude Montoya fails to show pretext for either her discrimination claim or her

retaliation claim, we affirm the district court’s ruling.



       *
        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 This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
                                   BACKGROUND

      Montoya worked for Hunter Douglas from 1997 to 2012. In 2008, Jeff Geist

promoted Montoya to fabrication supervisor, a position requiring her to supervise 55

employees. In 2009, Montoya used FMLA leave for about three weeks. During

Montoya’s absence, several employees advised Geist that Montoya recently had been

devoting work time to personal internet use, making her unavailable to assist

employees with work matters. Geist investigated and discovered that Montoya

consumed 24.5 hours during a six-week period browsing the internet for personal

purposes. As a result, Geist issued Montoya a “Final Warning and Performance

Improvement Plan.” Aplt. App. 411. The plan generally directed that Montoya be

available to her team and engaged in her work and specifically outlined certain

performance expectations Montoya needed to meet including limiting internet

activity to work-related tasks. The plan warned Montoya that her “[f]ailure to sustain

performance expectations” outlined in the plan would subject her to “further

corrective action up to and including termination.” Supp. App. 82.

      In 2010, Geist noted in a follow-up report that Montoya had improved her

overall performance and significantly decreased her personal internet use. Later that

year, Geist gave Montoya a positive performance review. In July 2011, Geist

documented that he addressed an issue with Montoya regarding her negative

approach to her daily work. Geist noted, in part, that Montoya was “[g]oing through

the motions, and not showing much engagement in her job,” and expressing

displeasure about covering overtime shifts. Supp. App. 117. Geist noted that he

                                          2
advised Montoya her negative approach was reminiscent of her past behavior and that

she needed to be more positive. Geist attached the documentation of his July 2011

conversation with Montoya to an October 2011 performance review, but otherwise

gave her a positive review.

      In August 2012, Montoya experienced personal difficulties. On Friday, August

3, she took leave from work to care for her terminally ill mother. That weekend, she

received treatment from a psychologist for “stress and relationship complications”

after her fiancé broke off their engagement. Supp. App. 49. On Monday, August 6,

she communicated with Geist by text message and phone call, informing him that she

would return to work on Wednesday, August 8. On Wednesday, she left a voicemail

message for the company’s human resources representative Trish Devlin, saying her

“doctor was taking [her] off work for the remainder of the week.” App. 79. In the

message, Montoya also said she would be out the following week as part of a

previously scheduled vacation and that she wanted to convert those vacation days

into FMLA leave.

      Hunter Douglas’ insurance company, CIGNA, sent the required FMLA

paperwork to Montoya’s home, but Montoya asserts she never received the forms.

However, Montoya didn’t contact Devlin or anyone else to follow up on her request

for FMLA leave, and CIGNA ultimately denied FMLA leave due to Montoya’s

failure to submit the required certification from her health care provider. In any

event, Hunter Douglas paid Montoya for the days she was absent and didn’t classify

her absence as FMLA leave.

                                           3
      While Montoya was out on leave, her coworkers and subordinates advised

Geist that her job performance had slipped again. Specifically, they reported that

Montoya often left early, was absent from the workplace for hours, was rarely on the

production floor, was constantly on her cell phone, and used the internet to plan her

wedding and visit other non-work-related websites.

      Geist investigated Montoya’s internet use and discovered that in the preceding

two months, she had recorded more than 11,825 internet hits on non-work-related

websites. This included nearly 1,800 hits on three specific retail and social media

websites—macys.com, facebook.com, and menswearhouse.com. Geist also

discovered that Montoya failed to complete or deliver performance reviews—some of

which were overdue by six to eight months—for eight of her subordinates. Geist and

Devlin confronted Montoya with their concerns about her job performance when she

returned to work on August 20. Montoya acknowledged that she hadn’t provided

performance reviews to several of her subordinates but claimed “that things had been

very busy.” Supp. App. 129. She also admitted her increased personal internet use,

attributing it to excitement about her wedding.

      Two days later, Hunter Douglas terminated Montoya’s employment. Devlin’s

notes reflect that Montoya received “a Final Written Warning for violating Internet

usage and a Performance Improvement Plan, 11-20-09,” and that “[t]he decision was

made to end her employment due to violation of [the] Final Written Warning, and

[her inability] to sustain requirements of [the] PIP.” Supp. App. 129.



                                           4
      Montoya sued Hunter Douglas for gender discrimination under Title VII and

for FMLA retaliation.1 The district court granted summary judgment in favor of

Hunter Douglas, and Montoya appeals.

                                      DISCUSSION

      We review a district court’s decision granting summary judgment de novo.

Fulghum v. Embarq Corp., 785 F.3d 395, 403 (10th Cir. 2015). Summary judgment is

appropriate 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). We view the facts and evidence submitted by the parties in the light most

favorable to the nonmoving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).

I.    Montoya fails to show pretext in her gender discrimination claim.

      The district court granted summary judgment on Montoya’s gender

discrimination claim after concluding Montoya failed to demonstrate Hunter

Douglas’ proffered explanation for her termination—poor job performance related to

an overall lack of engagement in her work and excessive personal internet use that

interfered with her supervisory duties—was pretext for gender discrimination. On

appeal, Montoya essentially argues she presented overwhelming evidence of pretext.

Specifically, she points to evidence (1) that Hunter Douglas didn’t similarly

discipline male employees who used the internet for personal use or male supervisors

who delayed completion of performance reviews; (2) that Hunter Douglas failed to

take into account the timing of her personal internet use or the fact that her internet

      1
        Montoya also asserted various state law claims, but she voluntarily dismissed
those claims before filing this appeal.
                                          5
use was often work-related; and (3) that her 2009 Performance Improvement Plan

ended years before her termination and couldn’t have been a basis for her

termination. Finally, she alleges pretext because she often worked long hours beyond

her scheduled shift and received positive performance reviews, which Hunter

Douglas acknowledges.

      We analyze Montoya’s gender discrimination claim under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this

framework, it is Montoya’s initial burden to establish a prima facie case of

discrimination. Once she does so, the burden shifts to Hunter Douglas to articulate a

legitimate, nondiscriminatory reason for the adverse employment action. See Lobato

v. N.M. Envtl. Dep’t, 733 F.3d 1283, 1288 (10th Cir. 2013). If Hunter Douglas makes

the required showing, the burden returns to Montoya to show a genuine dispute about

whether the proffered explanation was pretext for discrimination. See id. at 1289.

Montoya may establish pretext by showing “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-discriminatory reasons.” Bennett v. Windstream Commc’ns, Inc., 792

F.3d 1261, 1267 (10th Cir. 2015) (quoting Jones v. Okla. City Pub. Sch., 617 F.3d

1273, 1280 (10th Cir. 2010)).

      Notably, the primary bases Hunter Douglas cited as impacting Montoya’s job

performance and supporting termination—her excessive internet use and overdue

                                            6
performance reviews—aren’t really disputed. Instead, regarding her internet use,

Montoya suggests Hunter Douglas tolerated personal use from other employees,

including men, thus demonstrating pretext. For its part, Hunter Douglas

acknowledges that it tolerated occasional personal internet use despite its written

policy strictly prohibiting it. But Hunter Douglas points out that it extended such

tolerance only as long as an employee’s limited use didn’t interfere with work

performance.

      And therein lies the rub for Montoya. The record demonstrates that Montoya’s

personal internet use far exceeded limited personal use2 and that Hunter Douglas

attributed her work performance issues (including that she was several months behind

in delivering performance reviews and not always responsive to her subordinates’

needs) to that excessive use. Nor does Montoya dispute that several of her coworkers

complained about Montoya’s performance issues in August 2012, including her

frequent practices of leaving early and taking long lunches, her favoritism toward

certain employees, and her non-responsiveness to their issues.

      Moreover, while Montoya accuses some male employees of personal internet

use and identifies others who delivered delayed performance reviews, she fails to

identify a single male employee treated differently under similar circumstances.

      2
        The district court found that Montoya “visited 20,761 websites including”
nearly 1,800 visits to three specific retail websites between June 1 and July 31, 2012.
App. 413. The record actually demonstrates 20,761 hits on websites rather than visits
to 20,761 different websites. And at least some of those more than 20,000 hits were
on work-related websites. But Geist’s notes list a sample of seven unauthorized
websites that account for 11,825 hits, including the nearly 1,800 hits on macys.com,
facebook.com, and menswearhouse.com—websites that Montoya concedes aren’t
work related.
                                             7
Specifically, she hasn’t identified any male employee who had similar excessive

personal internet use that negatively affected his job performance, such as failing to

complete performance reviews or becoming disengaged from subordinates.

      Thus, Montoya has failed to point to any evidence to show that Hunter

Douglas’ reason for her termination was so implausible, incoherent, or contradictory

that Hunter Douglas “did not act for the asserted non-discriminatory reason[].”

Bennett, 792 F.3d at 1267. Accordingly, she has failed to meet her burden to show a

genuine dispute as to pretext and we affirm summary judgment in favor of Hunter

Douglas on her gender discrimination claim.

II.   Montoya fails to show pretext in her FMLA retaliation claim.

      Next, Montoya argues the district court erred in finding she failed to state a

prima facie case with respect to her claim that Hunter Douglas terminated her

employment in retaliation for her request for FMLA leave.

      We analyze retaliation claims under the McDonnell Douglas framework,

which in this context requires that Montoya bear the initial burden of establishing a

prima facie case of retaliation by showing that (1) she engaged in a protected activity,

(2) Hunter Douglas took an action that a reasonable employee would have found

materially adverse, and (3) there is a causal connection between the protected activity

and the adverse action. If Montoya establishes a prima face case, then Hunter

Douglas must offer a legitimate, nonretaliatory reason for her termination. Montoya

then bears the burden of showing the reason is pretextual. See Metzler v. Fed. Home

Loan Bank of Topeka, 464 F.3d 1164, 1170-71 (10th Cir. 2006).

                                           8
      As with her gender discrimination claim, Montoya fails to direct our attention

to evidence, other than temporal proximity,3 creating a genuine issue of material fact

as to pretext. See Brown v. ScriptPro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012)

(noting that an employee must present circumstantial evidence of retaliatory motive

in addition to evidence of temporal proximity to raise a fact issue as to pretext).

Instead, Montoya offers only her personal opinion that Hunter Douglas “did not like

[employees] taking FMLA leave[],” and subtly discouraged it. Aplt. App. 279. But

she offers no admissible evidence of Hunter Douglas routinely denying employee

requests for FMLA leave or retaliating against any other employee for requesting it.

      Thus, assuming Montoya established a prima facie case of retaliation, we

conclude Hunter Douglas has offered a legitimate, nonretaliatory reason for her

termination and Montoya hasn’t met her burden to show a genuine dispute as to

whether that reason was pretextual.

      We affirm the district court’s grant of summary judgment in favor of Hunter

Douglas.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




      3
        Montoya requested FMLA leave on August 8, 2012. Hunter Douglas
terminated her employment two weeks later on August 22, 2012.
                                       9
