                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 21, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
VINCENT FORBES,

      Plaintiff - Appellant,

v.                                                           No. 16-3081
                                                   (D.C. No. 6:14-CV-01228-EFM)
KINDER MORGAN, INC.,                                          (D. Kan.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HARTZ, and O’BRIEN, Circuit Judges.
                  _________________________________

      Vincent Forbes appeals from a summary judgment entered against him in this

employment discrimination case. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

      The parties are familiar with the facts and procedural history in this case — the

district judge detailed them, see Forbes v. Kinder Morgan, Inc., 172 F. Supp. 3d

1182, 1186–92 (D. Kan. 2016) — so we discuss only the material necessary to

understand the district court’s decision. Forbes, 57, was employed as a plant operator

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
at Kinder’s Elkhart, Kansas, facility. On March 7, 2013, when he left the facility and

went to his car, he found an “angle iron” placed near one of his tires. Suspecting this

was the handiwork of Norman Rogers, a co-worker known for practical jokes, Forbes

raised the issue with his immediate supervisor before going home for the night.

Upon his return to the facility, Rogers attempted to apologize for his “joke” and

accounts differ as to what happened next. It is undisputed, however, that Forbes,

incensed by either Rogers’ specific taunts or pranks in general, punched Rogers in

the face.

       Matt Mask, the facility’s divisional supervisor, conducted an investigation into

these events. He ultimately found Forbes to have violated the company’s “Violence

in the Workplace” policy, which prohibits acts or threats of violence. See Aplt. App.

at 161–62 (contained in an overarching policy entitled “The Workplace”). As a

result, he terminated Forbes’ employment. Rogers, for his part, was suspended

without pay for a day. Forbes brought this suit alleging, inter alia, he was

discriminated against in violation of the Age Discrimination in Employment Act

(ADEA).

       After discovery, Kinder moved for summary judgment. ADEA claims are

evaluated using the familiar burden-shifting framework of McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802–05 (1973); neither party disputed the other’s initial

burden under this analysis. Rather, “the parties dispute whether Forbes shoulders the

final burden: proving by a preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but were a pretext for

                                           2
discrimination.” Forbes, 172 F. Supp. 3d at 1193 (alterations and internal quotation

marks omitted). As evidence of pretext, Forbes presented three arguments:

(1) Kinder “altered its company policy after the fact to justify firing him;” (2) Kinder

“treated him more severely” than Rogers; and (3) “a reasonable jury cannot square”

Mask’s explanation for termination with what really happened between him and

Rogers. Id. The judge rejected these arguments.

      First, the judge found no alteration in company policy after Forbes’

termination. Both parties proffered competing versions of “The Workplace”

containing a “Violence in the Workplace” section that was located in different parts

of the overall policy.1 These sections were “identically worded” in the judge’s

estimation; he concluded finding pretext here would be to “adopt speculation.” Id. at

1194. In any event, the court noted “circumstantial evidence of bias” is not probative

of pretext without a connection to the decision to terminate, and Forbes offered “only

the policies’ dates.” Id.

      Turning to Forbes’ argument regarding Rogers’ disparate discipline, the judge

considered whether Forbes and Rogers were similarly situated. He noted how no

Kinder policy “required Mask to view Forbes[’] and Rogers’ actions as equally

unacceptable.” Id. at 1196. “In his discretion, Mask considered harming a coworker

more serious than harming a coworker’s property,” which the court found was within

      1
         The following text appears in both versions of “The Workplace” from
August 1, 2011, and March 8, 2013: “The Companies prohibit . . . [a]ny act or threat
of violence made by an employee against another including verbal, non-verbal,
written, or physical threats.” Compare Supp. App. Vol. 3 at 393 (2013), with Supp.
App. Vol. 4 at 600-01 (2011).
                                           3
his “managerial discretion” and “judgment in determining how best to regulate [his]

employees’ (mis)conduct.” Id. (internal quotation marks omitted). The judge said,

“[w]ithout evidence that Forbes and Rogers violated workplace rules of comparable

seriousness,” it could not “consider their disparate discipline unlawful.” Id. (internal

quotation marks omitted).

      Finally, he determined Mask’s conception of what occurred not to be flawed

because “Forbes almost entirely point[ed] to minor inconsistencies.” Id. In his view,

the “only major inconsistency argued by Forbes” was “Mask’s view that Forbes was

the situation’s aggressor.” Id. at 1197. Even though Forbes offered only his version

of the fight’s details, the judge allowed as how Forbes might possibly be right and “a

decisionmaker more omnipotent than Mask might agree with Forbes’ account,” but

he reasoned an employer need not “make a factually doubt-free decision to avoid an

inference of pretext.” Id. “Evidence excludes an inference of pretext if it shows a

good faith decision based on the facts presented.” Id. (citing Rivera v. City & Cty. of

Denver, 365 F.3d 912, 925 (10th Cir. 2004)). Given that all three “generally

unverifiable narratives” confirmed that Forbes hit Rogers, the judge decided Mask

was justified in concluding Rogers “was not the aggressor but the recipient of the

aggression.” Id. (internal quotation marks omitted). “None of the evidence shows

that Mask settled on a particular narrative because of Forbes’ age,” making this a

“business judgment” courts may not second-guess. Id. (internal quotation marks

omitted).



                                           4
      We review de novo the grant of summary judgment, applying the same legal

standard as the district court under Federal Rule of Civil Procedure 56(a). See

Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). In applying

this standard, “we view the evidence . . . in the light most favorable to the nonmoving

party.” Id. (internal quotation marks omitted). Having undertaken a thorough review

of the parties’ briefs, the record, and the applicable law, we conclude Forbes has not

shown reversible error in this case.

      Here, Forbes mostly reiterates the points he raised before the district judge in

support of his overarching argument: Kinder’s age-neutral explanation for his

termination was pretextual because (1) Mask’s decision was based on inaccurate

information; (2) Rogers was punished differently; and (3) there was no anti-violence

provision in company policy that was provided to Forbes. Specifically, Forbes

argues Mask was wrong about several facts surrounding the altercation, such as

whether Forbes was still angry when he returned to work the day after the prank. But

none of his points undermine the judge’s determination regarding Mask’s exercise of

business judgment to terminate Forbes for cause because none are relevant to Mask’s

ultimate finding that Forbes broke a coworker’s nose and none call into question

Mask’s good faith. Forbes next contends he had a right to self-defense and the

disparate punishments issued between him and Rogers stretch too far any deference

we owe to business judgment. Kinder’s anti-violence policy, however, put Forbes on

notice that “discipline, up to and including immediate termination of employment,”

was on the table for violating its terms, which preserve managerial discretion. See

                                           5
Aplt. App. at 161. As the judge noted, there was no Kinder policy requiring equal

treatment of employee violence situations. Mask was well within his business

judgment to find Forbes’ actions more serious than Rogers’ actions. Finally,

sidestepping the judge’s conclusion that the anti-violence provision was present in all

relevant versions of “The Workplace,” Forbes argues a “run, hide and fight clause” in

another policy recognizes his right to defend himself. Opening Br. at 26. Though the

relevant anti-violence language from these provisions did eventually end up in a

provision entitled “Violence and Security in the Workplace” that indeed contemplates

self-defense, Forbes’ argument is still meritless because this provision was not

enacted until July 1, 2014, over a year after the fight. See Supp. App. Vol. 4 at 569–

71.

      We agree with the district judge — while Kinder’s decision may have been

unwise, unfair, or incorrect, no evidence created a genuine issue of fact “concerning

whether Mask made a good faith, business-oriented decision.” Forbes, 172 F.

Supp. 3d at 1198. As much as Forbes might want, this is not a case about a violation

of the terms of an express or implied employment contract. Forbes is required to

prove Kinder’s firing decision was a pretext for age discrimination. Even if Kinder

violated its own policies, its decision is untethered from and unconnected to both

Forbes’ allegations of discrimination and of pretext.




                                           6
      We affirm the judgment of the district court for substantially the same reasons

stated in its published order granting Kinder’s motion for summary judgment.


                                          Entered for the Court


                                          Terrence L. O’Brien
                                          Circuit Judge




                                          7
