                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2785
                        ___________________________

                                    Xuan Huynh

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                   United States Department of Transportation

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                             Submitted: May 13, 2015
                               Filed: July 24, 2015
                                 ____________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
                             ____________

MURPHY, Circuit Judge.

      Xuan Huynh brought this employment discrimination action against the
Department of Transportation ("DOT") under Title VII, 42 U.S.C. § 2000e-2, and the
Minnesota Human Rights Act, Minn. Stat. Ann. § 363A.08. Huynh, a Vietnamese
American, alleges that the DOT's Federal Aviation Administration ("FAA")
discriminated against him based on race when it terminated his employment as a
trainee air traffic controller. The district court1concluded that Huynh had failed to
show that the FAA's stated reason for firing him was a pretext for racial
discrimination. It granted summary judgment to the DOT, and Huynh appeals. We
affirm.

                                          I.

       Huynh began working at the FAA in 2009. After graduating from the FAA
Training Academy in Oklahoma, he accepted a position as a trainee air traffic
controller at the Minneapolis Air Route Traffic Control Center (the "Center"). The
Center is one of 21 "en route" control facilities which guide aircraft flying over the
United States. The Center's airspace is divided into six areas based on geography and
altitude. These six areas are each subdivided into six sectors, and each sector has
both a radar controller and a data controller position. Trainees like Huynh are
required to certify at both of these positions in each of the six sectors within their
assigned area—a total of twelve positions to be certified for each trainee.

       Huynh's training at the Center was governed by the FAA's Air Traffic
Technical Training Order (the "training order"). Under the training order, trainees are
allotted a set number of "on the job" training hours at the radar and data controller
positions within the sectors of their assigned area. Trainees may receive a limited
number of additional hours if their trainers believe they can certify within the
additional time, but additional hours are not guaranteed. After completion of the
allotted training hours for any given position, a trainee is required to complete a
"certification skill check." A trainee is subsequently either certified or suspended
from the training program. A trainee can also be suspended for performing poorly on
performance skill checks administered monthly to ensure that the trainee is


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                         -2-
progressing appropriately. If a trainee is suspended after a skill check, a board
composed of two supervisors and a union representative reviews the trainee's
performance and issues a recommendation to the air traffic manager, the Center's
highest authority, on whether additional training is warranted. If the air traffic
manager chooses not to provide additional training, a trainee may attempt to transfer
to a different center or face termination.

       Upon his arrival at the Center, Huynh was assigned to train in Area Six. He
completed classroom and lab instruction, after which he was assigned to a training
team to instruct and evaluate him as he completed on the job training. A training
team is made up of two on the job training instructors and a training supervisor who
administers skill checks and final certification checks at each of the twelve air traffic
controller positions within a trainee's assigned area. After each training session, the
training team provides the trainee with a detailed written performance evaluation that
records the trainee's progress on seven major job tasks and 25 separate subtasks.
These written forms notify the trainee of performance areas needing improvement and
help training review boards and the air traffic manager assess a trainee's ability to
perform the duties of an air traffic controller.

       Huynh was initially assigned to complete on the job training with training
supervisor Lyle Madsen and training instructors Nancy Toren and Barbara O'Shea.
He was allotted 180 hours under their instruction to certify as a data controller at
Sector 27. Huynh reported problems with both his instructors. According to him,
Toren told him he would not make it through training if he crossed her and accused
him unfairly of being argumentative during their training sessions. Huynh also
asserts that he did not get along with O'Shea. Huynh claims that he was treated more
harshly than the other members of his training class and points out that he was the
only Asian American member of the group. After complaining to his training
supervisor and requesting a new training team through his union representative, he



                                          -3-
was promptly assigned a different team. The new training team consisted of training
supervisor Greg Santer and training instructors Todd Martenson and Brian Vance.

       Vance and Martenson reported that Huynh was performing poorly for the
Sector 27 data controller position. Huynh was granted 42 additional on the job
training hours above that position's 180 target hours so he could improve. After he
completed his additional training hours, Martenson recommend that training
supervisor Santer certify Huynh at Sector 27 since he and Vance had taken over as
his training team near the end of his allotted hours there. Martenson wanted to give
Huynh a chance to start anew at another sector. Supervisor Santer agreed and
certified Huynh as a Sector 27 data controller.

       Huynh was then assigned to complete training and certify as a data controller
at Sector 38, the second of his twelve required certifications. He was again allotted
a target maximum of 180 on the job training hours. Vance and Martenson reported
that Huynh performed poorly throughout his training. They noted that he could not
apply his theoretical knowledge to live situations or adapt to changing air traffic
patterns. Huynh's training team provided him with numerous opportunities to
improve his skills in training simulations beyond his 180 target hours. Nevertheless,
Huynh's performance did not improve. Martenson reported that Huynh did not have
command of basic air traffic control terminology and geography and that he was
defensive when trainers brought mistakes to his attention. Training supervisor Santer
conducted skill checks to assess Huynh's progress and concluded that his skills were
well below what would be expected given his amount of training.

       Because of Huynh's poor performance on two different skill checks, Santer
recommended his training be suspended. At that point Huynh had completed 85 of
his target 180 hours as a data controller at Sector 38. Suspension of a trainee prior
to completion of the target training hours is within a supervisor's discretion, and the
Center's air traffic manager, Kelly Nelson, agreed with Santer that Huynh's training

                                         -4-
should be suspended and evaluated by a review board. Huynh was the only member
of his class suspended for poor performance on a skill check before completion of his
180 target hours, but he was also the only trainee who had been granted an
opportunity to start anew at a different sector after requesting a new training team.
While certifying at Sector 27, Huynh had received 42 additional on the job training
hours beyond his target 180 hours.

       Immediately following his suspension, Huynh attempted to transfer from the
Center to a lower level air traffic control facility. There are two different processes
for transfer between facilities. The first is an Employee Request for Reassignment
("ERR"). A trainee may request an ERR transfer to any facility at any time for any
reason. That process is initiated by the trainee sending an application to a receiving
facility. If that facility wants to hire the trainee, it will contact his original facility to
secure a release. Management at the trainee's original facility is not typically
involved in the ERR process and may not receive notice about a potential transfer
until the receiving location calls to request a trainee's release. Trainees may also
transfer through an Article 61 process which is initiated after the air traffic manager
decides to remove a trainee from a program. The air traffic manager may recommend
a trainee for an Article 61 transfer at the manager's discretion. Huynh applied for
dozens of positions through ERR, but no other facilities offered to hire him. During
the same period he also contested his suspension before the review board.

       A three member review board examined Huynh's written training records and
interviewed Vance, Martenson, Santer, and Huynh. They concluded that although
Huynh had been given comprehensive training, he had failed to progress. Two
members of the panel voted to discontinue Huynh's training, while one thought he
should be given another chance. Air traffic manager Nelson reviewed the board's
recommendation and decided to continue Huynh's training under a new plan. Huynh
received additional classroom instruction, allowing him another opportunity to learn
the basic terminology and geography that he had previously failed to master. Since

                                             -5-
Huynh's training had been suspended for over a month at that point, he was given
several weeks to study and refresh his learning. Santer thereafter conducted a skill
check, determined that Huynh had returned to his prior level of performance, and
restarted his on the job training as a data controller at Sector 38 under instructors
Vance and Martenson.

       Shortly after Huynh returned to on the job training, he reported problems with
his supervisors and classmates. According to Huynh, training supervisor Santer
began belittling and criticizing him. Santer's written training reports indicate that he
had informally reprimanded Huynh for sitting idle with his eyes closed during at least
one training session and for playing with his cell phone when he should have been
studying the basic air traffic controller terminology, aircraft characteristics, and
geography that his trainers had repeatedly told him he needed to learn. Huynh claims
that he was on break at the time of these incidents and that the white members of his
training class had not been similarly reprimanded.

      Huynh complained to Patrick Sullivan that Santer had been treating him too
harshly. Sullivan was the Center's operations manager for Areas Five and Six, and
he spoke with Santer about Huynh's concerns. Sullivan then advised Huynh that
Santer had been trying to help him succeed and had counseled him appropriately, and
he declined to assign Huynh a new training supervisor. Huynh points out in contrast
that Sullivan had assigned a new supervisor for a white coworker who had also
complained about Santer's training methods.

       Huynh claims in addition that he told Sullivan some coworkers had used racial
slurs around him, referred to racial stereotypes, and imitated an "Asian accent" in his
presence. He also told Sullivan that he had found a McDonald's job application in his
headset bin at work, which he interpreted to be an insult and a comment on his ability
to perform his job. Sullivan addressed that incident immediately by reporting it to the
Center's staff manager who forwarded it on to the FAA's internal accountability

                                          -6-
board. Sullivan also held a training session on workplace behavior for all the
controllers in Area Six.

       Thereafter Sullivan worked with Huynh and a union official to accommodate
a transfer to a different area within the Center. Huynh had told the union official that
he wanted a transfer to Area Three because "no one fails training in Area Three."
Sullivan and the union official both agreed, however, that Huynh's best chance of
success would be a transfer to Area Five. That area shared a border with Area Six
and would have allowed Huynh to continue using much of the specific route and area
training he had already received. Huynh nevertheless chose to remain in Area Six.

       Huynh's performance initially showed signs of improvement after he was
reinstated and given a new training program, but that improvement did not continue.
Training instructor Vance noted that Huynh still failed to learn basic aircraft
characteristics and argued with his instructors. Santer conducted multiple
performance skill checks over the course of Huynh's renewed on the job training and
noted that Huynh performed routine tasks well, but lacked the ability to apply his
training in unpredictable or evolving situations. Santer noted more than eight areas
in which Huynh's performance was deficient, and he assigned additional training
simulator sessions to help Huynh make the required improvements.

       Upon completion of Huynh's target 180 training hours at the Sector 38 data
controller position, Santer administered a certification check during which Huynh
performed poorly in the same areas that had been identified in his earlier skill checks.
Santer recommended suspension of Huynh's training, and the agency convened a
second training review board. That board interviewed Huynh, his union
representative, Martenson, Vance, and Santer and reviewed the written records from
Huynh's second round of training. The review board concluded that Huynh still
lacked basic proficiency in air traffic communications, sector knowledge, and
familiarity with aircraft characteristics. It unanimously recommended discontinuation

                                          -7-
of Huynh's training, reasoning that additional simulations and on the job instruction
would not overcome his deficiencies. Air traffic manager Nelson reviewed the
board's recommendation and Huynh's training records before deciding to discontinue
his training.

        Huynh was notified in February 2011 that he would be demoted, reassigned,
or separated from the agency. Although he had applied for dozens of transfers to
lower level facilities through the ERR process, no facilities had moved to hire him.
Given his impending termination, Huynh requested recommendation letters to
facilitate his ERR transfer to a lower level facility. Sullivan offered to write him a
letter for a lower level position, but not for an air traffic controller position. Santer
declined to recommend Huynh although he wrote a letter of recommendation for one
of Huynh's white classmates who transferred through the ERR process. The summary
judgment record indicates that recommendation letters are not required for ERR
transfers and are not ordinarily part of the ERR process.

       Given his inability to find a receiving facility willing to hire him through the
ERR process, Huynh requested that Nelson permit him to begin the Article 61 transfer
process. That process may be initiated at an air traffic manager's discretion after
suspension of training. After careful review of Huynh's training record, Nelson stated
that because countless lives depend on the ability of air traffic controllers to perform
their duties, he could not in good conscience support transferring Huynh to serve as
an air traffic controller either at the Center or at a lower level facility. Nelson did
however initiate an Article 61 transfer process for five of Huynh's white classmates
after they failed to certify at the Center.

      Huynh filed a timely charge of discrimination against the DOT, and in
December 2012 he brought this employment discrimination action in federal district
court under Title VII, 42 U.S.C. § 2000e-2, and the Minnesota Human Rights Act,
Minn. Stat. Ann. § 363A.08. He alleged that the DOT had discriminated against him

                                          -8-
based on race when it terminated his employment as a trainee air traffic controller and
refused his transfer requests. The district court concluded that Huynh had failed to
show that the DOT's stated reason for firing him was a pretext for racial
discrimination, and it granted summary judgment for the government. Huynh
appeals.

                                          II.

        We review de novo the district court's grant of summary judgment to the
government. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083 (8th Cir. 2013).
Summary judgment is appropriate if there is no genuine dispute of material fact and
a party is entitled to judgment as a matter of law. Id. A plaintiff "may establish
unlawful employment discrimination through direct or indirect evidence." Bearden
v. Int'l Paper Co., 529 F.3d 828, 831 (8th Cir. 2008).

       The parties agree that there is no direct evidence of racial discrimination in
Huynh's case, and thus "we apply the framework laid out in McDonnell Douglas
Corp. v. Green" to determine whether he has "established a prima facie case" of
employment discrimination. Id. (citing 411 U.S. 792 (1973)). Huynh must show that
(1) he was a member of a protected group; (2) he was qualified to perform the job; (3)
he suffered an adverse employment action; and (4) circumstances permit an inference
of discrimination. Id. A "prima facie case creates a presumption of unlawful
discrimination, shifting the burden of proof to the employer to present evidence of a
legitimate, nondiscriminatory reason for its adverse employment action." Id. If "the
employer can articulate a nondiscriminatory reason, the burden returns to the
employee to prove that the proffered reason is pretextual." Id. at 831–32. Here, the
parties dispute whether Huynh was subject to more than one adverse employment
action and whether the nondiscriminatory reason the DOT gave for firing and
refusing to transfer Huynh—his poor performance—was a pretext for racial
discrimination.

                                         -9-
       Both parties agree that Hunyh's termination was an adverse employment action.
Hunyh argues however that Santer's decision to suspend his training after he had only
completed 85 of his allotted 180 hours for on the job training as a Sector 38 data
controller amounts to an additional adverse employment action. He asserts that the
interruption in his training made it impossible for him to perform as well after his
suspension and complains that none of his white coworkers was suspended prior to
completion of the allotted 180 target hours. Hunyh also claims that his instructors
subjected him to further adverse employment actions by denying him
recommendation letters written for his white classmates and by barring him from
participating in as many training simulation exercises.

       Huynh's argument overlooks the fact that not "everything that makes an
employee unhappy is an actionable adverse employment action." LaCroix v. Sears,
Roebuck, & Co., 240 F.3d 688, 691 (8th Cir. 2001). Adverse employment actions
"include termination, demotion, transfers involving changes in pay or working
conditions, and negative evaluations used as the basis for other employment actions."
Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969 (8th Cir. 1999) (citing Montandon v.
Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)). An "employer's denial of
an employee's request for more training" after a leave of absence is not itself an
"adverse employment action." Griffith v. City of Des Moines, 387 F.3d 733, 737 (8th
Cir. 2004). Moreover, the undisputed record shows that Huynh was offered almost
a month of additional classroom and other training after his leave of absence. He was
also given numerous opportunities to engage in training simulations and afforded 42
additional hours for on the job training beyond the 180 hours that he had received at
each of Sectors 27 and 38. Finally, while providing "negative references to potential
employers" can qualify as an adverse employment action, Baker v. John Morrell &
Co., 382 F.3d 816, 829 (8th Cir. 2004), the denial of a positive recommendation letter
to Huynh did not rise to the level of a "material employment disadvantage, such as
a change in salary, benefits, or responsibilities." LaCroix, 240 F.3d at 691. We



                                        -10-
conclude that the only adverse employment action taken against Huynh was his
termination from the training program.

       The only remaining issue between the parties is whether Huynh established a
genuine dispute of material fact about whether the DOT's reasons for firing him and
denying him a transfer were pretext for racial discrimination. See Bearden, 529 F.3d
at 831–32. Huynh argues that racist comments and jokes made by his coworkers, the
harsh treatment he received from his supervisors, the discovery of a McDonald's job
application in his personal effects at work, and Sullivan's refusal to transfer him to
Area 3 all combined to create an inference that the DOT's stated reason for firing him
was a pretext for racial discrimination. We have previously concluded that occasional
insensitive comments like those made by Huynh's coworkers were "stray remarks"
rather than "persuasive evidence of motive when the remarks are made by persons
other than a decisionmaker." Hitt v. Harsco Corp., 356 F.3d 920, 925 (8th Cir. 2004).

       Many of Huynh's complaints about criticism by his supervisors and their denial
of his transfer request are familiar "instances of a subordinate employee being
subjected to the criticism and control of a supervisor." Hannoon v. Fawn Eng'g
Corp., 324 F.3d 1041, 1047–48 (8th Cir. 2003). Although supervisors Toren and
Santer forcefully criticized Huynh for being argumentative and for failing to study,
their comments "did not suggest any reference to race or national origin" nor did they
support "an inference of discriminatory intent." Id. at 1047. Furthermore, the
summary judgment record establishes that air traffic manager Nelson, supervisor
Santer, and instructors Martenson and Vance repeatedly gave Huynh second chances
and additional instruction when they could have fired him. We conclude that Huynh
has not shown that any of the actions or statements made by his supervisors "create
a reasonable inference of discrimination," as they "do not suggest discriminatory
animus without resorting to speculation." Takele v. Mayo Clinic, 576 F.3d 834, 839
(8th Cir. 2009).



                                        -11-
       Finally, Huynh attempts to establish pretext "by showing that he was treated
differently than other employees who were similarly situated in all relevant respects."
Austin v. Long, 779 F.3d 522, 525 (8th Cir. 2015). He asserts that he was denied a
transfer to another facility after he failed to certify, while seven of his white
classmates were allowed to transfer even though they had also failed to certify. At
"the pretext stage, the test for determining whether employees are similarly situated
to a plaintiff is a rigorous one." Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956
(8th Cir. 2012). That is, the "individuals used for comparison must have dealt with
the same supervisor, have been subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances." Id.

       Five of the seven putative comparators transferred through the Article 61
process which must be initiated by air traffic manager Nelson. Huynh asserts that
Nelson treated him differently from other similarly situated white trainees by
allowing them to proceed through that process but denying him the same opportunity.
The record shows however that air traffic managers like Nelson determine whether
to initiate the Article 61 process based on written training reports authored by a
trainee's immediate supervisors, and all five of the Article 61 transferees identified
by Huynh "are not valid comparators because they had different immediate
supervisors." Bone, 686 F.3d at 956.

      The two remaining putative comparators transferred through the ERR process,
and Huynh admits that his supervisors did not control whether a receiving facility
would accept such a transfer. The fact that "different decision makers are involved"
in accepting each transfer through the ERR process is "strong evidence of
noncomparability." See Jones v. Frank, 973 F.2d 673, 676 (8th Cir. 1992). Huynh
nevertheless argues that supervisor Santer wrote a recommendation letter for one of
the two white comparators who then successfully secured an ERR transfer, but
refused to write a similar letter for him. The summary judgment record indicates that
recommendation letters are not required for ERR transfers and are not ordinarily part

                                         -12-
of the ERR process. Furthermore, Santer's decision to write a letter for one trainee
does not change the fact that each ERR transfer involves "different decision makers,"
Jones, 973 F.2d at 676, and Huynh has not identified coworkers "who were similarly
situated in all relevant respects." See Austin, 779 F.3d at 525. This argument by
Huynh thus fails, and we conclude that the district court properly granted summary
judgment to the government because Huynh has not shown that the DOT's stated
reason for firing him was a pretext for racial discrimination.

      For these reasons we affirm the judgment of the district court.
                      ______________________________




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