                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  November 5, 2010
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court


    HIPOLITO GERONIMO (JERRY)
    PEREZ,

                Plaintiff-Appellant,

    v.                                                   No. 09-5158
                                            (D.C. No. 4:08-CV-00533-CVE-FHM)
    ST. JOHN MEDICAL CENTER; THE                         (N.D. Okla.)
    CARPENTERS LOCAL UNION #943,
    TULSA, OKLAHOMA OF
    ARKANSAS REGIONAL COUNCIL
    OF UNITED BROTHERHOOD OF
    CARPENTERS AND JOINERS OF
    AMERICA,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.


         Mr. Perez sued his former employer, St. John Medical Center (St. John),

and the Carpenters Local Union #943 (Union), alleging wrongful termination and


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
failure to rehire based on race and national origin discrimination. The district

court granted summary judgment on all claims, and exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

                                          I

      Mr. Perez is a Hispanic member of the Union, which he joined in 1975. In

2001, Mr. Perez was working on a major renovation project at St. John Medical

Center. Although he started the project as an employee of a contract labor service

called General Acoustics (GA), in February 2003 Mr. Perez was hired as a

St. John employee by the hospital’s director of renovations, David Hurst.

Mr. Perez was designated a temporary “713 carpenter,” a reference to St. John’s

budgetary cost code for temporary carpenters, but he was reassigned to a liaison

position coordinating the project with hospital staff. At all times, though, his pay

and job classification remained that of a 713 carpenter. During this period, the

Union filed a grievance against Mr. Perez, alleging he failed to return a $125.00

check for attending a council meeting that he did not actually attend. The Union

also alleged Mr. Perez left early from a union meeting without authorization.

      In January 2007, construction at St. John neared completion, and Mr. Perez

returned to his duties as a carpenter. But by mid-2007, Hurst received directions

from a senior management official to reduce the number of 713 employees. To

that end, Hurst solicited from individual supervisors the names of employees

whom they wished to retain. At the time, Mr. Perez was working on a sixth-floor

                                         -2-
renovation project under Cecil Allison, who did not wish to keep Mr. Perez and

three other GA carpenters. Hence, Hurst laid-off Mr. Perez on August 16, 2007,

indicating on his termination letter that he was laid-off due to a lack of work and

was eligible for rehire.

      Mr. Perez responded on March 7, 2008, by filing two separate charges of

discrimination with the Equal Employment Opportunity Commission. In one

charge he accused St. John of wrongful termination based on national origin

discrimination; in the other he charged the Union and its officers with harassment

and conspiring to violate his rights based on his national origin. He also accused

Union officials of using racial slurs. Later, Mr. Perez complained of

discrimination to St. John’s director of internal audit, Andrea Eldridge, but

reapplied for a job with the hospital. And when he was not rehired, he filed

another discrimination charge alleging retaliatory failure to rehire.

      Mr. Perez eventually brought his case to federal court, claiming violations

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and

42 U.S.C. § 1981, among other things. 1 In particular, Mr. Perez charged St. John

with wrongful termination and failure to rehire based on race and national origin

discrimination, and the Union with contributing to his termination on account of


1
       Mr. Perez also advanced a claim under Burk v. K-Mart Corp., 770 P.2d 24,
29 (Okla. 1989); state-law tort claims against the Union; and a Title VII
retaliation claim against both defendants. None of these claims are the subject of
this appeal. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).

                                         -3-
the same discriminatory animus. St. John and the Union moved for summary

judgment, and the district court granted their motions on all claims.

      Now Mr. Perez contends the district court erred. More specifically, he

argues that (1) St. John’s proffered reasons for terminating him were pretext for

discrimination; (2) St. John’s proffered reasons for failing to rehire him were

pretext for discrimination; and (3) the Union’s discriminatory acts culminated in

his termination.

                                         II

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

standard as the district court. Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1277

(10th Cir. 2010). Summary judgment is appropriate “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c)(2). “While we view the record in the

light most favorable to the non-moving party, that party must still identify

sufficient evidence requiring submission to the jury to survive summary

judgment.” Fischer v. Forestwood Co., 525 F.3d 972, 978 (10th Cir. 2008)

(quotation omitted).

      A. No Showing of Pretext for Wrongful Termination

      Mr. Perez first contends the district court erred in granting judgment to

St. John on his wrongful termination claims brought under Title VII and § 1981.

                                         -4-
He maintains that St. John’s reasons for terminating him were pretext for

discrimination and that the court improperly weighed the evidence against him.

      Because Mr. Perez had no direct evidence of discrimination, the district

court employed the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). 2 To make out a prima facie case of

discrimination resulting in wrongful discharge, Mr. Perez must show

(1) membership in a protected class; (2) he was qualified for the position;

(3) he was terminated despite his qualifications; and (4) he was terminated under

circumstances which give rise to an inference of unlawful discrimination. See

Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166 (10th Cir. 2007). 3

The district court observed that Mr. Perez satisfied the first three elements and




2

      Under McDonnell Douglas, a plaintiff may survive summary
      judgment by providing circumstantial rather than direct evidence of
      discrimination. To do so, the plaintiff must first demonstrate a prima
      facie case of unlawful discrimination. If she succeeds at this first
      stage, the burden of production then shifts to the employer to identify
      a legitimate, nondiscriminatory reason for the adverse employment
      action. Once the employer advances such a reason, the burden shifts
      back to the plaintiff to prove the employer’s proffered reason was
      pretextual.

Jones, 617 F.3d at 1278 (citations omitted).
3
     The elements under Title VII and § 1981 are the same. See Carney v. City
& Cnty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008).

                                         -5-
apparently satisfied the fourth. 4 But the court determined that St. John offered

legitimate, non-discriminatory reasons for his termination, and Mr. Perez failed to

show those reasons were pretext for discrimination. We agree.

      A plaintiff demonstrates pretext by showing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence and hence infer that the

employer did not act for the asserted non-discriminatory reasons.” Jones,

617 F.3d at 1280 (quotation omitted). Here, St. John claimed to dismiss

Mr. Perez because there was little work left to the renovation project and

Mr. Allison did not pick him for retention. Mr. Perez points to four

circumstances which he claims prove these reasons were pretext for

discrimination.

      First, he argues that Hurst revealed his true animosity by using or tolerating

racial slurs. But Mr. Perez’s testimony on this score was vague and conclusory.

See Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000) (“Vague, conclusory

statements do not suffice to create a genuine issue of material fact.” (quotation

4
      The district court recited the standard formulation for a prima facie case,
describing the fourth element as requiring that the job be retained after discharge.
We have explained, however, that this element is “flexible” and “[t]he critical
prima facie inquiry . . . is whether the plaintiff has demonstrated that the adverse
employment action occurred under circumstances which give rise to an inference
of unlawful discrimination.” Swackhammer, 493 F.3d at 1166 n.8 (quotations
omitted).

                                         -6-
omitted)). Indeed, he stated that people used an epithet throughout his years of

employment, but he could not identify anyone other than Hurst and the Union

president, nor could he remember precise dates, context, or the first or last time

he heard it. Instead, he could only estimate that the slur was used twenty times a

year and eventually “tapered-off.” Aplt. App. at 237. Although he alleged Hurst

threatened to fire him if he complained, he could not recall when and seemingly

guessed that the alleged threat was made during his first year of employment.

Mr. Perez cites other discriminatory remarks, but one was made years before he

was dismissed, without any apparent connection to the dismissal, and none were

made by Hurst. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856

(10th Cir. 2000). On the other hand, there was evidence that construction was

near completion; that Hurst’s decision to fire Mr. Perez was a function of

Allison’s recommendation; and that there were simultaneous layoffs for three GA

carpenters, all from the sixth-floor project. And since Hurst originally hired

Mr. Perez, there is a strong inference that St. John’s proffered reasons were not

pretextual. See Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 & n.4

(10th Cir. 2006).

      Second, Mr. Perez points out that St. John hired a white 713 carpenter,

Mike Pendleton, in March of 2007. Pendleton had been a carpenter for GA, had

served as the Union’s vice-president, and was hired to be Mr. Perez’s supervisor

under a budget allocation for an electrician. Mr. Perez contends that Pendleton

                                         -7-
was to be his replacement once Hurst found an excuse to fire him, but this is mere

conjecture. See Swackhammer, 493 F.3d at 1172 (conjecture is an insufficient

basis for denying summary judgment). Pendleton was hired some five months

before Mr. Perez was laid-off to replace another temporary carpenter who had

quit. 5 Notwithstanding Mr. Perez’s suspicions, there is no evidence that

Pendleton was to be his replacement. Nor is there any evidence to support his

suggestion that Pendleton’s salary manifests pretext because it was allocated for

an electrician.

      Third, Mr. Perez insists he was being set-up for dismissal. His main

argument concerns the Union grievance, referenced in his EEOC charge, which

went before a Union tribunal and resulted in a $2,000 fine against him. When he

refused to pay the fine, Hurst twice threatened to fire Mr. Perez if he failed to

comply with the order. Mr. Perez asserts this exemplifies Hurst’s discriminatory

intent to replace him with Pendleton, but this, too, is mere conjecture. See id.

Mr. Perez admitted during his deposition that he could only speculate why Hurst

intervened in the dispute, guessing it was because of Hurst’s “ties with the

Union,” Aplt. App. at 268, not some discriminatory animus. In fact, he later

5
       Contrary to Mr. Perez’s contention, a fact-issue is not created by his mere
allegation that Pendleton was hired as his replacement. See Reply Br. at 2. The
record confirms that Pendleton was hired to replace a different 713 carpenter,
Larry Faucet, who had resigned. Aplt. App. at 144, 158. Mr. Perez’s conclusory
allegations suggesting otherwise do not suffice to show pretext or raise a genuine
question of material fact. See Matthieson v. Banc One Mortg. Corp., 173 F.3d
1242, 1247 (10th Cir. 1999).

                                         -8-
acknowledged that Hurst had never even referenced Mr. Perez’s race or national

origin and was only upset because he did not want his name mentioned at the

Union trial. See id. at 289-90.

      Lastly, Mr. Perez contends it “made no economic sense” to fire him and

retain more costly employees. Aplt. Br. at 25. We decline to second-guess

St. John’s business judgment. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d

1136, 1144 (10th Cir. 2009). Mr. Perez has not shown that St. John’s legitimate,

non-discriminatory reasons for terminating him were unworthy of credence and

hence pretext for unlawful discrimination.

      B. No Showing of Pretext for Failure to Rehire

      Turning to Mr. Perez’s failure-to-rehire claim, the district court again

employed the McDonnell Douglas scheme and assumed Mr. Perez made a

prima facie case for failure to rehire. See Fischer, 525 F.3d at 982-83 (setting

forth elements). The court concluded, however, that St. John gave a legitimate,

non-discriminatory explanation for failing to rehire Mr. Perez—it hired no 713

carpenters and had no need for new 713 carpenters after he was dismissed—and

Mr. Perez did not show that these reasons were pretext for discrimination. On

appeal, Mr. Perez insists he demonstrated pretext because there were available

positions for which he could have been rehired but St. John filled those jobs with

other workers.




                                        -9-
      Mr. Perez bears the burden of showing that he is similarly situated to the

employees to whom he is comparing himself. See Kelley v. Goodyear Tire &

Rubber Co., 220 F.3d 1174, 1178 (10th Cir. 2000). And on this score, his

argument fails. Indeed, he asserts that St. John briefly rehired GA carpenters, but

he does not explain how these workers were similarly situated to him. Even more

tenuous is Mr. Perez’s assertion that he could have been rehired to fill a clerical

vacancy. But Mr. Perez does not claim he was similarly situated to the person

hired by St. John, nor does he claim to be qualified for the job, let alone better

qualified than the individual who was hired, see Jones v. Barnhart, 349 F.3d

1260, 1267 (10th Cir. 2003) (“[W]e are willing to infer pretext when the facts

assure us that the plaintiff is better qualified than the other candidates for the

position.”). Under these circumstances, we have little difficulty concluding there

was no triable issue of pretext regarding St. John’s refusal to rehire Mr. Perez.

      C. Union Discrimination

      Finally, Mr. Perez claims the Union’s discriminatory actions culminated in

his termination and violated Title VII. See 42 U.S.C. § 2000e-2(c)(3) (“It shall be

an unlawful employment practice for a labor organization . . . to cause or attempt

to cause an employer to discriminate against an individual[.]”). Once again,

however, he fails to show a genuine issue of material fact, this time concerning

the Union’s efforts to have him fired. Hurst testified that he alone made the

decision to layoff Mr. Perez, without any influence from the Union. Mr. Perez

                                         -10-
questions Hurst’s motivation, asserting Hurst favored the Union as evidenced by

his alleged threats concerning the Union fine. But he cites no evidence showing

that the Union encouraged or caused Hurst to terminate Mr. Perez on account of

discriminatory animus.

      Further, although Mr. Perez insists that Union President Wayne Eddings

made racially offensive remarks, Eddings had no authority to terminate Mr. Perez,

and there is no evidence that his remarks bore any relation to Mr. Perez’s

dismissal. See Medlock v. United Parcel Serv., 608 F.3d 1185, 1197 (10th Cir.

2010) (recognizing that to rely on discriminatory statements, a plaintiff “must

show that they were made by the decision maker, and that there was a nexus

between the discriminatory statements and the decision to terminate” (quotations

omitted)). Nor is there any evidence that Pendleton acted on a discriminatory

basis to indirectly influence Hurst’s decision. All we have is Mr. Perez’s

testimony that Pendleton threatened to go to Hurst if he slowed down on the job.

While Mr. Perez speculated that Pendleton could tell Hurst whom to fire, he

conceded that “Hurst does whatever he wants.” Aplt. App. at 285. And in any

event, the alleged threat was based on a non-discriminatory ground that would not

forestall summary judgment. See Medlock, 608 F.3d at 1195-96. Given this




                                        -11-
evidence, we conclude that Mr. Perez has failed to show a genuine issue of

material fact concerning this or any other claim on appeal. 6

      Accordingly, the judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




6
      Mr. Perez’s conclusory allegations relating to conduct dating back to the
1970s does not alter our disposition.

                                         -12-
