                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS                  July 19, 2012
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 THUC TRAN,

              Plaintiff-Appellant,                     No. 11-6032
                                                (D.C. No. 5:10-CV-00069-C)
 v.                                                   (W.D. of Okla.)
 SONIC INDUSTRIES SERVICES,
 INC.,

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and TYMKOVICH, Circuit Judges.



      Thuc Tran is a former employee of Sonic Industries Services, an Oklahoma

food service company. In 2008 she was passed over for a promotion and then

terminated in 2009 after being placed on a performance improvement plan. She

filed suit, claiming that the company failed to promote her and then wrongfully

discharged her on the basis of race, national origin, and gender in violation of

Title VII of the Civil Rights Act of 1964.



      *
         This order and judgment is not binding precedent except under the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.
      The district court granted summary judgment in favor of Sonic, finding that

although Tran presented a prima facie case of discrimination, she failed to show

that Sonic’s legitimate business justifications for its failure to promote her and

her subsequent termination were pretextual.

      We affirm.

                                     I. Facts

      The parties are familiar with the facts, so we provide only a brief overview

for purposes of discussion. Sonic is a fast food chain with corporate headquarters

in Oklahoma City. In 2008, the company reorganized, creating several vacancies,

including a vacancy for a management position in Sonic’s marketing department.

      At that time, Tran, a woman of Vietnamese ancestry, worked as a research

analyst in the marketing department. She applied for the promotion but did not

receive it. The principal decision maker for filling the position was Paul

Macaluso, Sonic’s Chief Marketing Officer, who had worked closely with Tran

and other candidates in the past. He chose Trey Taylor, a co-worker of Tran’s,

for the position. As a director, Taylor became Tran’s new supervisor.

      When Taylor became Tran’s immediate supervisor their relationship

immediately began to sour. Tran alleges that Taylor disliked strong, assertive

women, and thought that women should demonstrate a submissive attitude. As

evidence, she claims Taylor in the past asked her to inform two vendors to change

sales representatives because the women reps were too aggressive. She also

                                         -2-
claims that he consistently chose male vendors, or vendors with male spokesmen,

when he could have contracted with women. She did not, however, report these

incidents internally as inconsistent with Sonic’s non-discrimination policy.

       Sonic argues that Tran resented Taylor’s promotion, refused to respect his

position, and interacted negatively with senior management. Among other things,

Sonic points to a series of events beginning in November of 2008 where Tran

displayed poor people skills and alienated a number of Sonic’s managers. One

example is a meeting where Tran interrupted Taylor and Macaluso, making

statements that undercut the positions they were advocating in front of Sonic’s

CEO.

       After that incident, Taylor sent Tran a memorandum outlining performance

expectations. The memo contained a list of changes that Tran needed to improve

her performance. Nonetheless, the next month Taylor placed her on a formal

“Performance Improvement Plan” (PIP), an internal process to document and

correct underperforming employees.

       In June 2009 Sonic’s marketing department conducted a review of its

underperforming employees. Taylor recommended Tran’s termination on the

ground that she had not sufficiently improved her performance or responded well

to the concerns in the PIP, and he suggested that she be replaced by another

woman in his department. Sonic then terminated Tran and a white male, the only

two employees on a PIP at the time.

                                        -3-
                                 II. Discussion

      Tran raises two issues on appeal relating to her Title VII claims, contending

factual issues prevent summary judgment on her failure to promote and wrongful

termination claims. She also appeals summary judgment in favor of Sonic on an

affirmative defense and asserts the district court abused its discretion in several

discovery matters.

      “We review a grant of summary judgment de novo.” MacKenzie v. Denver,

414 F.3d 1266, 1273 (10th Cir. 2005) (citations omitted). “Summary judgment is

appropriate if the non-moving party cannot adduce probative evidence on an

element of its claim upon which it bears the burden of proof.” Rohrbaugh v.

Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995) (citation omitted);

“Unsupported conclusory allegations, however, do not create an issue of fact.”

MacKenzie, 414 F.3d 1266, 1273 (10th Cir. 2005). To oppose summary

judgment, plaintiffs must do more than provide their subjective interpretation of

the evidence, they must marshal admissible evidence of material fact. Luster v.

Vilsack, 667 F.3d 1089, 1094 (2011).

      With this standard of review in mind, we consider Tran’s two Title VII

claims.




                                         -4-
      A. Title VII Claims

             1. Failure to Promote

      Tran first claims she was wrongfully denied a promotion because of her

race and gender.

      We evaluate this claim under the three-step McDonnell Douglas

framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973).

Following this familiar framework, a plaintiff must first establish a prima facie

case of discrimination. Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1114

(10th Cir. 2007). To establish a prima facie case for failure to promote, the

plaintiff must demonstrate “(1) she was a member of a protected class; (2) she

applied for and was qualified for the position; (3) despite being qualified she was

rejected; and (4) after she was rejected, the position was filled by someone

outside the protected class.” MacKenzie, 414 F.3d at 1278.

      Sonic does not contest that Tran has made out a prima facie case.

Accordingly, under McDonnell Douglas, the company must “articulate a

legitimate, nondiscriminatory reason for its employment action.” Id. If it does,

Tran must “proffer evidence demonstrating the employer’s reason is pretextual.”

Id. Pretext can be established “by revealing 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.” Id. (citation omitted). To “suggest that something

                                         -5-
more nefarious might be at play” than a legitimate business rationale, a plaintiff

“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.” Johnson v. Weld Cnty., 594 F.3d 1202, 1211 (10th Cir.

2010) (citation omitted).

      Sonic articulated several legitimate business reasons for preferring Taylor

over Tran. According to Macaluso, who was primarily responsible for the

promotion decision, he looked for a candidate who could bring a fresh approach

to gathering and interpreting consumer data; interact well with senior

management; and bring demonstrated leadership skills. Prior to the selection,

Macaluso had worked with other potential candidates in the department, including

both Taylor and Tran, for a number of years and knew each of them well.

      Tran points to nothing that undercuts the legitimacy of the skills Sonic

sought in the new supervisor, and does not claim the company’s reasons were

facially improper. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186,

1195 (10th Cir. 2006) (Skills such as “team building, personal leadership, and

personal accountability” are proper for employee evaluations.). Nor does she

offer any evidence that Macaluso harbored any bias against women or Vietnamese

people. In fact, Tran admitted in her deposition that she had never heard any

biased remarks from Macaluso or the other supervisors she worked for in the past.




                                         -6-
      Instead, Tran claims the promotion criteria were overly subjective and that

she was better qualified and had more seniority than other candidates. “Although

‘the presence of subjective decision-making can create a strong inference of

discrimination,’ the use of subjective considerations by employers is ‘not

unlawful per se.’” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1145 (10th

Cir. 2009) (quoting Bauer v. Bailar, 647 F.2d 1037, 1045–46 (10th Cir. 1981)).

“We thus typically infer pretext only when the criteria on which the employers

ultimately rely are entirely subjective in nature.” Turner, 563 F.3d at 1145

(citations omitted).

      The job criteria Sonic used were not entirely subjective. Tran apparently

had only limited experience in leadership positions, a fact she does not dispute.

And personal skills such as communicating and working effectively with senior

management have an obvious objective component to them. Nor is there any

cause to suspect these reasons were a cover for invidious discrimination in this

case. Tran testified that neither Macaluso nor her other supervisors exhibited any

racial or gender bias prior to filling this vacancy.

      Tran nonetheless argues that these factors, when paired with evidence

showing she was better qualified than Taylor, support an inference of pretext. In

cases where there are competing qualified candidates, “to suggest 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,

                                          -7-
a plaintiff must come forward with facts showing an overwhelming disparity in

qualifications.” Johnson, 594 F.3d at 1211 (quotation omitted).

      Here, Sonic never contended Tran was not qualified, but Tran also does not

demonstrate that Taylor was unqualified for the position. Taylor and Tran were

similarly situated, each with several years of experience with the company, but in

different departments and with different responsibilities. Tran had more seniority

with Sonic, but Taylor had substantial relevant prior work experience. Each had

similar years of experience in the marketing field, although Tran’s experience

dealt more with quantitative research and Taylor’s included more supervisory

roles and experience dealing with customers. There was no “overwhelming

disparity in qualifications.” Id.

      Looking at the evidence in the light most favorable to Tran, we see no basis

from which a jury could find that Sonic’s choice was anything other than a good

faith business decision. Accordingly, we conclude the district court did not err in

granting summary judgment in favor of Sonic on her failure to promote claim.

             2. Wrongful Termination

      Tran also alleges she was wrongfully terminated because of her race and

gender.

      The district court found Tran made out a prima facie case of wrongful

termination by showing she “(1) belonged to a protected class; (2) was qualified

for her position; [and] (3) was discharged.” Plotke v. White, 405 F.3d 1092, 1099

                                         -8-
(10th Cir. 2005). As with the failure to promote claim, the burden then shifted to

Sonic to show a legitimate, nondiscriminatory reason for her discharge.

      Sonic again does not challenge Tran made out a prima facie case. But it

contends it had adequate reasons for terminating her, including her ongoing poor

skills in dealing with senior management, her increasingly negative attitude and

poor working relationship with Taylor, her performance problems that were

highlighted in the PIP, and her failure to make substantial improvements in

meeting the goals of the PIP.

      In support of these justifications, Sonic points to Tran’s work history in the

months prior to her termination. In a memorandum prepared in June 2009, prior

to her termination, Taylor documented the deterioration in her work in the

preceding months and her failure to meet the expectations of the PIP. The

memorandum documents several specific incidents in support of these

observations, including her failure “to complete key projects in a timely manner”;

her failure “to complete some projects in a comprehensive manner”; her

“comments, tone, and body language”; and her failure to better evaluate vendors

for price and quality. App., V.II at 607.

      Based on this track record, Taylor recommended termination. Sonic

pointed to several incidents that illustrate the concerns expressed by the PIP and

the June memo. The first incident occurred at a meeting in November 2008, and

is consistent with the PIP in January. At this meeting, the marketing team—

                                        -9-
including Tran—gave a new product presentation to the senior management and

Sonic’s CEO. Tran repeatedly interrupted or contradicted Taylor and other

presenters, and at one point the CEO was visibly irritated with her, turning his

chair around and holding up his arms as she spoke. The incident was serious

enough that the day after the meeting, Macaluso sent an email to the CEO: “I

would be remiss if I didn’t mention that [Taylor] and I have already connected

about what we thought was ineffective interaction on the part of [Tran]. We have

plans to meet with her early next week to provide her with the appropriate

coaching.” App., V.II at 539. After this meeting with Tran, Taylor emailed

Macaluso:

      i talked to thuc for 30mins yesterday after we met with her. her head
      seems to be in the right place. she appreciates receiving the feedback
      and views it as constructive . . . though she is still frustrated with
      herself. she looks forward to the challenge of improving. i gave her
      some specific pointers on how to interface with mgmt . . . most of it
      relates to the concepts of being brief, listening/allowing people to
      talk, saying “we’ll get back with you,” etc. if you want specifics, i
      will share. all in all, i think she is ready to learn and improve . . .
      and, i'd like to give her her chance at the first “state of the consumer”
      update in sr mgmt. thoughts or feedback? trey

App., V.II at 540 (typos in original). Macaluso replied, “I am open to her having

a small part of the presentation, but want to discuss giving her a little break (or

rather, giving Sr. Management a little break from her).” App., V.II at 541.

      Sonic placed her on a PIP two months later in January 2009. The PIP

outlined a number of areas where Tran needed improvement, including


                                         -10-
“commitment to helping evolve the department, level of respect you display,

timely project follow-up, positive attitude, improved communication, and

understanding team member roles.” App., V.II at 604. The plan also urged her to

“show a willingness to embrace your superiors’ decisions even when they differ

from your preferences” and not “talk negatively about insights-team members

(including your department seniors) without them present.” Id. at 605. The PIP

detailed nine “core competenc[ies]” where she needed improvement. She signed

the PIP on January 15, 2009.

      While Tran characterizes the PIP as subjective, most of the skills it

describes are common workplace competencies. Tran does not believe that the

PIP accurately reflects her work performance. But those views show a difference

of opinion, not evidence of discrimination. An employee’s disagreement with her

employer’s opinion of her performance “obviously does not prove discriminatory

intent.” Durham v. Xerox Corp., 18 F.3d 836, 839 (10th. Cir. 1994). Nor does a

claim, unsupported by evidence, that “her superiors gave her artificially low

ratings in her evaluations.” Id.

      Sonic points to other incidents in March and June 2009 where Tran failed

to produce timely or complete work. Again, Tran has her own subjective view of

her performance, 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, 875–76

                                        -11-
(10th Cir. 2004). “The subjective nature of the evaluations may be a factor to

consider in pretext but it ordinarily is not by itself sufficient to establish pretext.”

Pippin, 440 F.3d at 1195. And a company may take into account “such subjective

considerations as team building, personal leadership, and personal accountability”

when they “also require[] the employee’s immediate supervisor to enumerate

specific results achieved with supporting examples.” Id. In short, Tran has not

adduced sufficient evidence that Sonic’s stated exercise of business judgment in

evaluating her performance was actually a cover for racial or gender bias.

      Tran points to several other reasons she suspects pretext. Tran claims she

received positive evaluations from her supervisors before she began working

under Taylor and positive reviews from her coworkers during the period when she

was already on the PIP. But the company hired an outside consultant in early

2009 to prepare a performance review of its employees, and the results of this

evaluation largely supported Taylor’s observations. It showed that other senior

managers and Tran’s supervisors rated her at low levels even though she was

rated higher by some of her peers. See, App., V.II at 565–83.

      Finally, Tran claims that there is evidence that Taylor was biased against

women. She points to several incidents where Taylor “would make comments

about some of the vendors that we work with who are female, and he would say,

‘She’s aggressive. She’s rough.’ And then after that, he would . . . tell me not to

send a proposal to a group of female vendors that we were working with that

                                          -12-
knew about our projects.” App., V.IV at 1342–43. Even so, in the one incident

Tran describes in detail, Taylor asked that Tran tell the vendor to send another

female sales representative as a substitute.

      While gender stereotypes can be a factor in inferring discrimination, “an

isolated and ambiguous comment is generally considered too abstract to support

an inference of discrimination.” Adamson v. Multi Cmty. Diversified Servs., Inc.,

514 F.3d 1136, 1151 (10th Cir. 2008). “Without more” we have noted, “an

employee’s subjective belief in a comment’s invidious nature also does not

support an inference of discriminatory intent.” Id. Tran does not point to other

evidence of inappropriate work place behavior from Taylor, and she never

complained to Sonic about the alleged comments. Finally, she makes no

allegation of any discriminatory remarks by Macaluso or any other member of the

management team who were familiar with Tran’s performance and agreed with

Taylor’s overall evaluation. 1

      In sum, we have carefully reviewed all of the evidence Tran points us to

and from which she claims a jury could make an inference of pretext. Based on

that review, we agree with the district court that Sonic was entitled to summary

judgment on the wrongful termination claim.


      1
          Tran also claims that Taylor commented that she was “hard to
understand,” which she took as a comment on her accent. We agree with the
district court that the comment was an isolated incident and does not create doubt
about Sonic’s reasons for the termination.

                                         -13-
         B. Other Issues

         Tran also challenges the trial court’s rulings on two discovery motions and

its refusal to grant her motion for partial summary judgment on Sonic’s

affirmative defense relating to mitigation evidence. We have carefully reviewed

the record and see no abuse of discretion by the district court in granting a

protective order. Nor did the court err in denying additional discovery on

witnesses identified by Sonic. We need not consider the court’s summary

judgment ruling on Sonic’s affirmative defense in light of our affirmance of

summary judgment on Tran’s Title VII claims.

                                 III. Conclusion

         For the reasons stated above, we AFFIRM the judgment of the district

court.

                                         ENTERED FOR THE COURT,

                                         Timothy M. Tymkovich
                                         Circuit Judge




                                          -14-
