                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     April 4, 2017
                        UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                              FOR THE TENTH CIRCUIT
                          _________________________________

ANTHONY CLINCY,

      Plaintiff - Appellant,

v.                                                        No. 16-4029
                                                 (D.C. No. 2:14-CV-00398-JNP)
TRANSUNION LLC; BILL SAWYER,                                (D. Utah)
in his individual capacity; PATRICK
NORTON, in his individual capacity;
MARK TEUSS, in his individual
capacity,

      Defendants - Appellees.

                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                  _________________________________

      Anthony Clincy appeals from the district court’s order for summary judgment

in favor of Transunion LLC, Bill Sawyer, Patrick Norton and Mark Teuss1 on his



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       Mark Tussie, a Transunion human resources employee, was incorrectly named
as Mark Teuss.
claim for race discrimination in violation of 42 U.S.C. § 1981.2 Exercising

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

                                  BACKGROUND

      Mr. Clincy, an African American, began working for Transunion as a sales

representative in 1993. By all accounts, he was a good employee—he was promoted

in 1997 and 2000, and received numerous merit pay increases over the years. He was

terminated in 2010, however, for what Transunion determined was a violation of its

Code of Business Conduct.3

      Mr. Clincy was terminated as a result of what Transunion perceived as an

attempt to improperly redirect revenue from two accounts for his own financial

benefit. Some background regarding Transunion’s business practices is helpful here.

Transunion assigns codes to its customers. For example, accounts generating less

than $45,000 in annual revenue are assigned to the Client Services unit and given a

CS code, and accounts generating between $45,000 and $250,000 in annual revenue

are assigned to a Field unit, and given a Field code. The code determines, among

other things, which sales representative will receive a commission. Codes can only be

transferred or changed mid-year or at the start of the year. An account with a Field

code could benefit Mr. Clincy, whereas an account with a CS code could not.

      2
         Mr. Clincy does not appeal the district court’s summary judgment order in
favor of defendants on his claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, and tortious interference with contractual
relations.
      3
       The Code requires employees like Mr. Clincy, among other things, to
“[u]phold the highest standards of ethical conduct.” Aplt. App., Vol. 1 at 288.
                                           2
       The first incident which drew management’s attention to Mr. Clincy involved

the Amp Alarm4 account. When Amp first became a customer in early 2009, the

account was predicted to generate less than $45,000 in annual revenue. It was

therefore assigned to the Client Services unit and given a CS code. But by mid-2009,

Amp’s revenue prospects improved, and Mr. Clincy arranged for Amp to also have a

Field code. Because pricing was more favorable under the Field code, Amp asked Mr.

Clincy to cancel the CS account and issue a credit. Mr. Clincy gave the request to the

Credit Services department. On December 15, 2009, Client Services Manager Paul

Arena, told Mr. Clincy that he would “waive the last month’s fee and cancel the [CS]

code . . . if the transfer option is still open.” Aplt. App., Vol. 2 at 322 (emphasis

added). Mr. Arena, however, did not commit to any particular course of action if the

transfer option was foreclosed, but he did instruct Mr. Clincy not to do anything else

until an agreement was in place:

              From what I can see, the account was owned by CS and we were
       not notified of any field activity nor was there any request to transfer the
       code midyear or end of year. Based on ownership change guidelines, the
       field and CS must have a conversation and agree on a change in
       ownership before an account would move. No [further] action should be
       taken by [you] until agreement is reached.
Id. at 322-23.

       Minutes after sending the email to Mr. Clincy, Mr. Arena emailed Michael

Miele, Vice President of Client Services (eventually copying William Pancoast,


       4
       The district court’s decision refers to Amp Alarm as EnGuarde. EnGuarde,
however, is a software platform used by alarm companies such as Amp. Therefore,
the company is properly referred to as Amp Alarm.
                                             3
Manager of Relationship Sales in the CS unit), expressing concern about Mr. Clincy’s

action:

             Mike—here is an example where a field rep spoke to a CS client
      and simply created a new code to have the rev[enue] run to them instead
      of CS. I would recommend we have a conversation with Mike Jones &
      team to ensure this practice is not common nor repeated. We have no
      method to track or stop this practice, only communication with our
      peers.
      Id. at 322 (emphasis added).

      Even though there was no resolution regarding the availability of the transfer of

the Amp account to a Field Code, on January 5, 2010, Mr. Clincy instructed his

administrative assistant, Joanne O’Leary, to “cancel [the] AMP client services code

and credit the monthly min[imum] for the month[] of December.” Aplee. Supp. App.

at 30. He further directed her to “add” his Field code and “delete” the CS code in the

database. Id. at 33. At or near the same time, Mr. Clincy directed code changes to

Elite Home Security’s account that redirected revenues from Client Services to

himself.

      Mr. Clincy’s actions raised red flags with management and the matter was

investigated by a group of managers that included Messrs. Pancoast and Miele,

Western Region Vice President Bill Sawyer, and Senior Vice President Mike Jones.

Following the investigation, on January 14, 2010, Mr. Clincy met in person with

Messrs. Sawyer and Norton, and Mark Tussie, a human resources employee,

participated by telephone. According to the agenda, the purpose of the meeting was

to “present the facts to [Mr. Clincy] and hear his response.” Id. at 49.


                                            4
       Mr. Tussie’s notes of the meeting reflected that “Mr. Clincy was apologetic

[and said that he] ‘knew what he did was wrong.’” Id. at 46. Mr. Clincy further

explained that “‘if he [had] known the amount [of revenue diverted] was so high[,] he

would not [have] changed the code [because] that would be pirating.’” Id. Mr.

Clincy further admitted that he was aware of the proper procedures to change codes,

but did not follow them with respect to the Amp Alarm and Elite Home Security

accounts. See id. at 51. At the end of the meeting, Mr. Clincy was suspended with

pay until further notice.

       On January 19, 2010, Messrs. Sawyer and Tussie called Mr. Clincy and

informed him that his employment was terminated. That same day, Transunion wrote

to Mr. Clincy that his conduct violated the “TransUnion Business Principles and Code

of Business Conduct as outlined in the Associate Handbook under Core Business

Principle Number One, Ethics and Values.” Id. at 53.

       Mr. Clincy subsequently brought this action claiming that his employment was

terminated because of his race in violation of 42 U.S.C. § 1981. Mr. Clincy contends

he did nothing wrong and that Transunion trumped up the ethics violation as grounds

for termination when the real reason was because he is an African American. The

district court determined that Mr. Clincy failed to meet his burden to establish a prima

facie case of race discrimination, and granted summary judgment for defendants. In

particular, the court found that Mr. Clincy failed to demonstrate that he was

terminated under circumstances giving rise to an inference of discrimination. This

appeal followed.

                                           5
                                      ANALYSIS

      “We review the grant of summary judgment de novo, applying the same

standards as the district court pursuant to Federal Rule of Civil Procedure 56[].”

Barlow v. C.R. England, Inc., 703 F.3d 497, 504 (10th Cir. 2012) (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).

      Because there was no direct proof of discrimination, Mr. Clincy was required

to “rely on the three-part, burden-shifting framework set out . . . in McDonnell

Douglas [Corp. v. Green, 411 U.S. 792 (1973)]. Under this framework, the plaintiff

must first put forth a prima facie case of discrimination.” Barlow, 703 F.3d at 505.

      To establish a prima facie case “[m]ost generally, a plaintiff must demonstrate:

(1) he was a member of a protected class; (2) he was qualified and satisfactorily

performing his job; and (3) he was terminated under circumstances giving rise to an

inference of discrimination.” Id. (internal quotation marks omitted). The plaintiff has

the burden of establishing a prima facie case “by a preponderance of the evidence.”

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (internal quotation marks

omitted).

      Before the district court, defendants argued at length that Mr. Clincy failed to

demonstrate the third element of a prima facie case—that the circumstances

surrounding his termination gave rise to an inference of discrimination. The court

noted that Mr. Clincy’s response regarding the prima facie case was contained in two

                                            6
sentences—as an African-American he is the member of a protected class and he

suffered an adverse employment action, i.e. termination The district court noted Mr.

Clincy made no attempt to establish the second and third prongs of his prima facie

case: that he was qualified and satisfactorily performing his job, and that he was

terminated under circumstances giving rise to an inference of discrimination. These

failings caused the court to conclude that Mr. Clincy’s failure to argue the issue as

required by Fed. R. Civ. P. 56 and the local rules, was “reason alone . . . [to] grant the

defendants’ motion[] for summary judgment on [the race discrimination] claim.”

Aplt. App., Vol. 1 at 173.

      Nonetheless, the court stated that “[e]ven [if it] ignore[d] the inadequacy of the

briefing and consider[ed] arguments Mr. Clincy could have made based on the facts

presented in the memoranda, he would still have failed to establish a prima facie

case.” Id. at 174. The only facts connected to race were: (1) an alleged lack of racial

diversity among Transunion’s sales force; and (2) Transunion’s failure to terminate

Mr. Clincy’s administrative assistant and supervisor,5 both Caucasians, for their roles

in changing the codes. The district court concluded none of these facts gave rise to an

inference of discrimination. We agree.




      5
        Mr. Clincy appears to be referring to the Western Region Vice President, Bill
Sawyer, as the supervisor involved in approving the code changes, but his arguments
and evidentiary support for this assertion are unclear. We will assume for our
resolution of this appeal that Mr. Clincy intends to reference Bill Sawyer as the
supervisor involved.

                                            7
      First, Mr. Clincy argues that an inference of discrimination exists because he

“was the only black person in a 500-person sales force.” Aplt. Opening Br. at 17. We

agree with the district court that one method by which Mr. Clincy could have

established an inference of discrimination was through statistical data that

demonstrated a marked imbalance between African Americans and Caucasians in

Transunion’s sales force. However, more is needed to support the claims Mr. Clincy

raises here. Specifically, “[w]e have long required that statistical evidence should be

closely related to the issues in the case.” Turner v. Pub. Serv. Co., 563 F.3d 1136,

1147 (10th Cir. 2009) (brackets and internal quotation marks omitted).     Setting aside

the lack of statistical evidence, Mr. Clincy failed to demonstrate that Transunion’s

overall employment practices had anything to do with its decision to terminate his

employment.

      Second, Mr. Clincy argues that an inference of discrimination exists because

changing the codes “required the participation of his coworkers, but he was the only

one terminated.” Aplt. Opening Br. at 20. Again, we agree with the district court that

another method by which Mr. Clincy could have established an inference of

discrimination was by demonstrating that he was treated differently than similarly-

situated, Caucasian coworkers. But as the district court found, Mr. Clincy did not

show that these coworkers were in fact similarly situated:

             Similarly situated employees are those who deal with the same
      supervisor and are subject to the same standards governing performance
      evaluation and discipline. In determining whether two employees are
      similarly situated, a court should also compare the relevant employment
      circumstances, such as work history and company policies, applicable to

                                           8
       the plaintiff and the intended comparable employees. Moreover, even
       employees who are similarly situated must have been disciplined for
       conduct of comparable seriousness in order for their disparate treatment
       to be relevant.
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (citations and internal

quotation marks omitted).

       Neither Ms. O’Leary nor the supervisor who allegedly approved an additional

code had the same supervisor. Further, there is no evidence that either Ms. O’Leary’s

or the supervisor’s employment circumstances were the same as Mr. Clincy’s, or that

their conduct was of comparable seriousness. Indeed, it was Mr. Clincy who told Ms.

O’Leary, his subordinate, to make the code changes and he alone stood to reap a

financial benefit.

       Last, Mr. Clincy lists several reasons why his termination occurred under

circumstances that gave rise to an inference of discrimination. But these reasons

cannot support an inference of discrimination because they depend on an unsupported

premise, either that Mr. Clincy was treated differently than other similarly-situated

employees, or that the decision to terminate his employment had something to do with

his being Transunion’s only African-American sales representative.

       The judgment of the district court is affirmed.




                                           9
       Judge Hartz concurs in the judgment for the reasons stated in the opinion of the

district court.




                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




                                          10
