                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                               OCT 7 2002
                                       TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 KEVIN LEE BIGLOW,

           Plaintiff - Appellant,

 and
                                                            No. 02-3001
 HENRY F. BUTLER,                                   (D.C. No. 00-CV-2370-KHV)
                                                            (D. Kansas)
           Plaintiff,

 v.

 THE BOEING COMPANY,

           Defendant - Appellee.


                                    ORDER AND JUDGMENT*


Before SEYMOUR, EBEL and BRISCOE, Circuit Judges.


       Plaintiff Kevin Lee Biglow appeals from the district court’s grant of summary

judgment in favor of defendant The Boeing Company (Boeing) on his race-based

discriminatory pay claim brought under 42 U.S.C. § 1981. We exercise jurisdiction



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
pursuant to 28 U.S.C. § 1291 and affirm.

                                            I.

       Boeing, a manufacturer of airplanes, missiles, and space and communications

systems, maintains engineering, fabrication, and assembly facilities in Wichita, Kansas.

Boeing’s Wichita facilities encompass four divisions: (1) Boeing Commercial Airplane

Group (Commercial); (2) Wichita Military Modification Center (Military); (3) Boeing

Airplane Services; and (4) Shared Services Group (Shared Services). The Shared

Services division provides computer and information support services to the other three

Wichita divisions.

       Biglow, an African-American male, is a high school graduate who has been

employed by Boeing at its Wichita facilities since 1989. Throughout his career at Boeing,

Biglow has worked in the Shared Services division and has held various positions

detailed below.



Boeing’s payroll classification system

       In early 1993, Boeing implemented the “New Salaried Payroll” (NSP), a payroll

classification system. The NSP utilized “specialty descriptions,” which were the

equivalent of “job families.” Each specialty description consisted of two components: (1)

a specialty summary; and (2) various level descriptions/specialty levels. The specialty

summary provided an overview of all level descriptions that fell within the summary.


                                            2
The level descriptions/specialty levels set forth in detail the work performed, the expected

results, suggested methods for achieving those results, and the preferred qualifications for

each level or grade. Each level description/specialty level was also associated with a pay

grade, and each pay grade was linked to a specific salary range, including a minimum

annual salary. An employee could not be classified at a particular grade level without

being afforded the minimum annual salary associated with that grade level. At issue in

this case is a specialty referred to by Boeing as “system configuration specialist.” From

1994 to 1998, the specialty of system configuration specialist encompassed three specialty

levels (1, 2 and 3) and three corresponding pay grades (46, 48 and 51).



Salary planning under the NSP

       Under the NSP, Boeing’s corporate management determined the total amount of

funds to be allocated for annual salary-planning activities including selective salary

adjustments, lump sum awards, and promotions/reclassifications. These funds were

referred to as the “selective salary adjustment fund,” otherwise known as the “SELA

fund” or “merit fund.” Each division at Wichita had its own SELA fund. In turn, each

division’s SELA fund was allocated by the division manager to the individual line

managers in proportion to the total payrolls of the employees they managed. Thus, each

line manager effectively had his or her own SELA fund from which he or she allocated

annual salary adjustments, lump sum awards, and promotions to his or her employees.


                                             3
      Gerry Johnson was the vice-president and general manager of the Shared Services

division. Although Johnson had authority to do so, he chose not to hold back any SELA

money in a contingency fund or carry any SELA money over from year to year. Instead,

it was Johnson’s practice to release all of Shared Services’ SELA money to the division’s

line managers and allow them to spend it as they determined. The only contingency fund

that existed within Shared Services consisted of SELA money that was not spent by line

management. A line manager within Shared Services could request money from the

contingency fund to distribute more in salary adjustments than was available within the

line manager's SELA fund. These special requests for money from the contingency fund

were made to a designated team of three to five second-level managers.

      After the line managers completed their annual salary adjustment plans (and, when

necessary, received approval from second-level management), the plans were forwarded

to Boeing’s human resources department. The plans were entered into the company’s

performance review and salary adjustment database and various reports were generated.

The plans were reviewed by the compensation department to ensure that the line

managers did not exceed their budgeted SELA funds and that there were no statistical

disparities with respect to female or minority employees.



Plaintiff’s employment history at Boeing

      When he began his employment in April 1989, plaintiff was assigned to Boeing’s


                                            4
data center as an operator 1 data processor at an annual salary of $11,700. In December

1991, he was promoted to the position of analyst 3 supporting the Commercial division

(equivalent to what the NSP system later described as a systems configuration specialist).

In July 1992, Boeing reduced its Wichita work force. To avoid laying off plaintiff,

Boeing demoted him to an operator 3 data processor.

       In June 1994, plaintiff applied for two available systems configuration specialist

positions supporting the Commercial division. Although plaintiff was one of three

finalists, he was not selected for either position. Instead, the positions were filled by

Randy Bellew and Kim Zehr, both Caucasian employees.

       In October 1994, plaintiff applied for and was promoted to a systems configuration

specialist position supporting the Military division. Cecil Gardner, an African-American

male, interviewed plaintiff for the position and became his immediate supervisor.

Plaintiff began work at salary grade 48 (the middle salary grade for systems configuration

specialists) with a salary of $24,100. Although Gardner initially planned for plaintiff to

work at salary grade 48 for six months and then move to salary grade 51 (the highest

salary grade for systems configuration specialists), in February 1995 he recommended

that plaintiff be moved to salary grade 51 based upon his work performance. Gardner

was informed by Warren Korphage, a human resources employee, that the recommended

salary increase (approximately $9,500) would come out of Gardner’s annual SELA fund.

Gardner concluded he could not give plaintiff the raise he initially recommended because


                                              5
it would reduce the amount of 1995 SELA funds available for his other employees.

However, because Gardner believed that plaintiff was performing salary grade 51 work,

he developed a plan to increase plaintiff to that corresponding grade over the course of

several years.

       Between 1995 and 1998, Gardner gave plaintiff annual raises. In the 1995 salary

planning exercise, Gardner gave plaintiff a $2,500 raise, increasing his salary from

$24,100 to $26,600 (a 10.4% increase), effective August 18, 1995. In the 1996 salary

planning exercise, Gardner gave plaintiff a $1,350 raise, increasing his salary from

$26,600 to $27,950 (a 5.1% increase), effective April 12, 1996. After the 1996 salary

planning exercise was complete, Gardner requested and was given an additional $1,000

for plaintiff, effective July 5, 1996. In the 1997 salary planning exercise, Gardner gave

plaintiff a $1,400 raise, increasing his salary from $28,950 to $30,350 (an 8.6% increase),

effective April 11, 1997. In the 1998 salary planning exercise, Gardner planned to give

plaintiff a $1,850 raise, increasing his salary from $30,350 to $32,200 (a 6.1% increase).



Salary increases of system configuration specialists supporting Commercial division

       During the time period that plaintiff worked as a system configuration specialist

supporting the Military division, there were four Caucasian employees working as system

configuration specialists supporting the Commercial division (Randy Bellew, Kim Zehr,

Jeff Martin, and Jeff Lyon). The four employees had a different first-level manager, were


                                             6
in a different salary-planning group, and were in a different physical location than

plaintiff. However, they were all employees of the Shared Services division with the

same general manager (Gerry Johnson).

       As previously noted, Bellew and Zehr were promoted to their positions as system

configuration specialists in June 1994, at salary grades of 48 and salaries of $25,900. In

October 1994, Bellew received a merit increase to $26,750, and Zehr received a merit

increase to $26,400. In 1995, Bellew received a merit increase to $28,000, and Zehr

received a merit increase to $27,650. In April 1996, Bellew received a merit increase to

$31,800, and Zehr received a merit increase to $33,600. In July 1996, Bellew received a

merit increase to $33,600. In February 1997, Bellew was promoted to salary grade 51 and

received a salary increase to $36,200. In April 1997, Zehr received a merit increase to

$35,100. In October 1997, Zehr was promoted to salary grade 51 and received a pay

increase to $36,200. Bellew and Zehr were promoted with SELA funds allocated to their

respective first-line managers.

       Jeff Lyon and Jeff Martin were promoted to their positions as system configuration

specialists in 1996. Lyon began at salary grade 46 and a salary of $25,400. Martin began

at salary grade 48 and a salary of $28,200. In the April 1997 salary planning exercise,

Lyon’s salary was increased to $26,700, and Martin’s salary was increased to $29,450.

       On July 28, 1997, Lyon sent an e-mail message to Jeff Turner, the general manager

of the Commercial division, complaining that he was performing salary grade 51 work


                                             7
without being properly compensated. A copy of Lyon’s message was forwarded to

Lyon’s first-line manager, Laura Ringle, who prepared a proposed plan for boosting Lyon

to salary grade 51. Under Ringle’s proposed plan, Lyon would continue performing

grade 51 work but would be classified and paid at salary grade 48 for a period of seven

years, during which time his managers would try to raise him to salary grade 51 by using

SELA fund money and any leftover contingency fund money.

       In October 1997, Lyon personally met with Gerry Johnson and informed him that

he (Lyon) and Martin were performing salary grade 51 work, but were not being properly

compensated. After the meeting, Johnson reviewed Ringle’s proposed plan for boosting

Lyon to salary grade 51 and concluded it was not “logical,” particularly because it

required Lyon to work outside his true grade for a long period of time. After confirming

with the human resources department that Lyon and Martin were performing salary grade

51 work, and determining there were not enough SELA funds within Lyon’s and Martin’s

salary-planning group to correct the problem, Johnson concluded the only option was to

move Lyon and Martin to lower-graded work consistent with their compensation.

Accordingly, in October 1997, Lyon and Martin were moved to different areas where they

could perform salary grade 48 work. At the same time, Lyon received a $1,000 pay raise

to bring his pay to the salary grade 48 minimum. Zehr’s salary was increased by $1,100

so he could be reclassified from salary grade 48 to 51 and continue to perform salary

grade 51 work. Both salary increases were charged to their first-line managers’ 1998


                                             8
SELA funds.

       On October 29, 1997, Martin sent a letter to Turner, with a copy to Johnson,

complaining about the reduction in his job responsibilities. Approximately one to two

weeks after receiving the letter, Johnson personally met with Martin to discuss the

situation. Johnson informed Martin that he was not the only person being underpaid for

the work he was performing. Johnson told Martin to be patient because he (Johnson) was

going to meet with Boeing’s corporate personnel to try to obtain additional funding for

promotions.

       In January 1998, Boeing altered the manner for funding promotions under the NSP

system. Specifically, any promotions occurring after February 12, 1998, were to be

charged to a new “promotion fund” rather than to the SELA funds. The promotion fund,

unlike the SELA funds, was not specifically limited in amount. However, Boeing’s

corporate compensation personnel instructed the Wichita compensation personnel to be

judicious with the promotion fund and instructed that the amount spent on promotions

each year should not exceed 0.8% of total payroll.

       Shortly after the promotion fund was created, Johnson contacted the Wichita

human resources department and instructed them, if possible, to return Lyon and Martin

to their positions performing salary grade 51 work. Accordingly, on February 27, 1998,

Lyon and Martin were promoted to salary grade 51, given pay raises to the salary grade

51 minimum of $37,500, and returned to their previous work responsibilities. Their raises


                                            9
were funded by out-of-sequence SELA fund money charged to their manager’s 1998

SELA fund ($1,250 for Lyon and $1,350 for Martin), combined with money from the new

promotion fund ($8,250 for Lyon and $6,700 for Martin). Neither Lyon nor Martin

received any additional money during the April 1998 salary planning exercise.



Plaintiff’s discovery of 1998 raises for Lyon and Martin

      During the 1998 salary planning exercises, Gardner contacted his second-level

manager, Armond Friend, and asked for $7,150 from the promotion fund to bring plaintiff

up to the salary grade 51 minimum of $37,500. Gardner also proposed giving plaintiff

additional money taken from Gardner’s SELA fund to boost plaintiff’s salary to $39,350.

Friend expressed concern about immediately taking a large sum from the promotion fund,

and asked Gardner to wait until November 1998 to increase plaintiff’s salary. Gardner

and Friend agreed to give plaintiff $300 from leftover SELA contingency funds.

      When informed by Gardner of Friend’s response, plaintiff expressed

dissatisfaction. Plaintiff became more dissatisfied when he learned, by chance through a

telephone conversation with Lyon, that Lyon and Martin had been upgraded to salary

grade 51. Plaintiff expressed his unhappiness to Gardner, who in turn telephoned human

resources representative Warren Korphage to determine whether the information was

true. Korphage confirmed the information was true, stating (in a conversation overheard

by plaintiff): “Goddamn, Cecil, those guys [Lyon and Martin] were told to keep their


                                           10
f***ing mouths shut. Yes, it’s true.”1 App. at 175. Gardner responded: “I hope you

know that [plaintiff] can file a f***ing discrimination lawsuit against you all’s asses.” Id.

Korphage acknowledged that possibility, stating: “Yes, I know.” Id.

       On March 26, 1998, plaintiff sent an e-mail message to Johnson complaining of

Gardner’s inability to promote him to salary grade 51, particularly in light of the

promotions received by Lyon and Martin. Johnson, who previously had been unaware of

plaintiff’s salary situation, contacted Korphage and asked him to evaluate plaintiff’s

complaint. Johnson also discussed the matter with Friend (Gardner’s supervisor).

       On April 6, 1998, plaintiff met with Gardner, Friend, Korphage, and one of

Korphage’s assistants, and reiterated his complaints. Friend told plaintiff they had two

options: move plaintiff to a lesser job commensurate with his current salary or increase

plaintiff to salary grade 51. Plaintiff asked Korphage about the recent raises given to

Lyon and Martin. Korphage declined to comment, other than to state that those raises had

involved “special circumstances” he was not free to discuss. Plaintiff responded by

stating he felt he was being subjected to racial discrimination.

       On or about April 14, 1998, Johnson approved a recommendation by Korphage

and other human resources personnel to raise plaintiff's salary to the grade 51 minimum



       1
        In his deposition, Korphage denied making that exact statement. He testified that
he “would have said something to the effect of . . . ‘Why are they talking about that. You
know, they are not supposed to be talking about salary to’ – you know, ‘telling salaries to
other people.’” App. at 220.

                                             11
of $37,500, retroactive to February 27, 1998 (the date of Lyon’s and Martin’s raises), plus

an additional $1,850 from Gardner’s SELA fund, bringing plaintiff’s total salary to

$39,350 (from $30,350). Plaintiff was not satisfied with the proposed raise, however, and

met with Johnson, Friend, Gardner, and others in an effort to make the proposed pay

increase retroactive to October 1994, the date he began work as a systems configuration

specialist under Gardner. That request was denied. Since his 1998 promotion, plaintiff

has continued to be paid more than Bellew, Zehr, and Martin.2 For example, by year

2001, plaintiff’s salary had been increased to $47,850. In contrast, Bellew’s salary was

$44,650, Zehr’s salary was $44,750, and Martin’s salary was $43,200.



Procedural history

       Plaintiff filed suit against Boeing on August 14, 2000, asserting, in pertinent part, a

claim of racial discrimination under 42 U.S.C. § 1981 based on Boeing paying him less

than Caucasian co-workers performing the same job functions from late 1994 to April

1998.3 The district court granted Boeing’s motion for summary judgment with respect to


       2
           Lyon quit his job in June 1999.
       3
         Plaintiff asserted two additional § 1981 claims, one based on Boeing’s failure to
promote him to a system configuration specialist 2 position in June 1994, and another
based upon Boeing’s alleged retaliation against him for complaining about racial
discrimination. Plaintiff also asserted claims under 42 U.S.C. § 1983, Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and the Kansas Acts
Against Discrimination, Kan. Stat. Ann. § 44-1001 et seq. All of these claims were
dismissed and are not at issue in this appeal.

                                             12
the § 1981 claim.

                                               II.

       We review de novo the district court’s grant of summary judgment in favor of

defendant Boeing. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                              III.

Direct evidence of discrimination

       Plaintiff contends that, in granting summary judgment in favor of Boeing, the

district court overlooked what he describes as “direct evidence” of discrimination. More

specifically, plaintiff contends that the statements made by Korphage to Gardner during

their phone conversation in mid-March 1998 directly reflected the discriminatory attitude

of Boeing and, at the very least, “constitute[d] evidence from which a jury could draw an

inference that Boeing had ‘concealed motives’ concerning the pay raises given to” Martin

and Lyon. Opening Br. at 22.

       There are two major problems with plaintiff’s arguments. Although Boeing argues

plaintiff failed to raise these specific arguments in the district court, plaintiff did quote

Korphage's statements in his response to Boeing's motion for summary judgment when


                                               13
addressing whether race was a motivating factor in the pay disparity alleged. However, it

is clear that Korphage's statements to Gardner do not constitute direct evidence of

discrimination. By stating that Martin and Lyon were supposed to “keep their mouths

shut,” and by agreeing with Gardner that plaintiff could file a lawsuit against Boeing,

Korphage was not necessarily admitting that plaintiff had been paid less than other

Boeing employees because of his race. See Danville v. Regional Lab Corp., 292 F.3d

1246, 1249 (10th Cir. 2002) (“Direct evidence demonstrates on its face that the

employment decision was reached for discriminatory reasons.”). Further, while it is

questionable whether plaintiff relied on Korphage's statements to establish pretext in his

response to Boeing's motion for summary judgment, Korphage’s statements are not

sufficient to create a genuine issue of material fact with regard to the issue of pretext.

Korphage’s statements pertained only to the raises given in February 1998 to Martin and

Lyon. Having reviewed the record on appeal, we conclude that plaintiff has failed to

establish that Martin and Lyon were treated more favorably than him with respect to pay.4


       4
         We agree with the district court’s analysis on this point:
             Until February 27, 1998, plaintiff earned more than either Lyon or
             Martin. In addition, although plaintiff received his promotion to
             grade 51 at a later date, defendant implemented it retroactively to
             February 27, 1998, the date on which Lyon and Martin had received
             their promotions. Perhaps plaintiff could argue that defendant
             treated him less favorably between October 1997 and February 27,
             1998, when it demoted Martin and Lyon to lower grade job
             responsibilities while plaintiff continued to perform grade 51 level
             work – but plaintiff does not do so.
App. at 435 n.24.

                                              14
Korphage’s statements are irrelevant to whether Boeing’s stated reasons for paying

Bellew and Zehr more than plaintiff were pretextual.



Evidence of pretext

       Plaintiff contends the district court erred in concluding that he failed to present

sufficient evidence to create a genuine issue of material fact regarding whether Boeing’s

stated reason for the pay disparity between himself and Bellew and Zehr (the only two

similarly-situated Caucasian employees) was pretextual. After reviewing the record on

appeal, we reject plaintiff’s contention.

       In his brief in opposition to Boeing’s motion for summary judgment, plaintiff

discussed the law of pretext in general, but failed to discuss a single item of evidence that,

in his view, established pretext. Thus, plaintiff arguably waived any assertion that

Boeing’s stated reasons were pretextual. See generally Conto v. Concord Hosp., Inc., 265

F.3d 79, 81 (1st Cir. 2001) (finding waiver where appellant failed to “ferret out and

articulate the record evidence considered material to each legal theory advanced”). In his

appellate brief, plaintiff essentially makes the same mistake, again discussing the law of

pretext in general, but failing to discuss the relevant evidence. At best, plaintiff’s

appellate brief makes cryptic references to the deposition testimony of his supervisor

Cecil Gardner, suggesting that Gardner’s “testimony should have been credited and

plaintiff’s claims should have been allowed to proceed to a jury.” Opening Br. at 27.


                                              15
Having reviewed the portions of Gardner’s deposition testimony submitted by plaintiff in

opposition to Boeing’s motion for summary judgment, we conclude there is nothing

contained therein that would allow the jury reasonably to find that Boeing’s stated reason

for the pay disparity was pretextual. Indeed, Gardner’s testimony arguably supports

Boeing’s position. In particular, Gardner testified in his deposition that he worked within

the NSP system to get raises for plaintiff, utilizing the portions of his SELA fund he

deemed appropriate to boost plaintiff’s salary. Gardner further testified that the “record

w[ould] show that [he] permanently got what [he] asked for” as far as raises for plaintiff.

App. at 308. Finally, Gardner testified he “did not have a lot of interface with” the line

managers or other employees in support services for the Commercial division (i.e.,

Bellew, Zehr, or their line managers), id. at 307, and there is no indication that he had any

personal knowledge of the pay or raises given to Bellew, Zehr, or any other employees

who supported the Commercial division.



Plaintiff’s March 1998 salary increase

       In his final argument, plaintiff contends the district court, in concluding there was

no evidence of pretext, overlooked evidence indicating that Boeing immediately raised

his salary when confronted by him in April 1998 regarding the pay disparity between

himself and Martin and Lyon. Citing Goodwin v. General Motors Corp., 275 F.3d 1005

(10th Cir. 2002), plaintiff asserts this evidence was sufficient to establish pretext.


                                              16
       The initial problem with plaintiff’s argument is that he did not present it to the

district court in responding to Boeing’s motion for summary judgment. Admittedly, the

Goodwin decision was not issued until this year and was unavailable to plaintiff during

the district court proceedings. Nonetheless, plaintiff could have asserted the factual

argument without reliance on Goodwin. Thus, the argument has been waived for

purposes of appeal. See Harrison, 248 F.3d at 1021.

       Even overlooking plaintiff’s waiver, there are several reasons why his argument is

without merit. As noted above, we conclude that plaintiff has failed to present sufficient

evidence to establish that Martin and Lyon were treated more favorably. Thus, any

evidence relating to Martin and Lyon (e.g., plaintiff’s complaint about a disparity between

himself and Martin and Lyon, as well as Boeing’s response thereto) is irrelevant. Further,

even if there was sufficient evidence to establish that Martin and Lyon were treated more

favorably than plaintiff, the fact that Boeing raised plaintiff’s salary in response to his

complaint about a disparity does not demonstrate that Boeing’s stated reason for that

disparity (i.e., that Martin and Lyon personally spoke to Gerry Johnson and involved him

in their efforts to be promoted to salary grade 51) was pretextual. Finally, contrary to

plaintiff’s assertions, Goodwin is inapposite and offers no support. In Goodwin, the

plaintiff alleged that she was paid less than other similarly-situated Caucasian employees.

In response, the defendant employer asserted that the reason for the pay disparity was that

it “simply could not afford to raise [the plaintiff’s] salary to pay her as much as the other”


                                              17
employees. 275 F.3d at 1013. The court concluded that the employer’s stated reason

could “clearly be viewed as pretextual in light of” the employer’s “offer to increase [the

plaintiff’s] salary when she confronted them with the evidence of the pay disparity.” Id.

Here, in contrast, Boeing has never relied on an “inability to pay” rationale. Thus, the

fact that it responded to plaintiff’s internal complaint by raising his salary does not rebut

its stated reason for the disparity.

       The judgment of the district court is AFFIRMED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                              18
