                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                JAN 6 2004
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ROBERT J. BROWN, SR.,

           Plaintiff-Appellant,
                                                             No. 01-1292
 v.
                                                       (D.C. No. 99-WM-1622)
                                                            (D. Colorado)
 DONALD L. EVANS, Secretary, United
 States Department of Commerce,*

           Defendant-Appellee.




                                  ORDER AND JUDGMENT**


Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges:


                                            I

                            THE FACTUAL BACKGROUND

                                            A

      The district court had jurisdiction over this case under 42 U.S.C. § 2000e-5(f)(3).


      *
       It should be noted that the plaintiff’s opening brief named William Daley as
Secretary of Commerce, while the defendant’s brief and plaintiff’s reply brief show the
name of Donald Evans, reflecting the change in administration since the lawsuit was
filed.
      **
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
The jurisdiction of this court exists pursuant to 28 U.S.C. § 1291 because the order and

judgment from which the plaintiff-appellant appeals is a final decision disposing of all

claims which the plaintiff-appellant has against the defendant-appellee.

       This is an appeal from a grant of summary judgment in favor of the defendant

employer, the Secretary of the United States Department of Commerce, in a Title VII

case. The plaintiff-appellant employee, Robert J. Brown, Sr. (“Brown”), who is African

American, alleged that he was discharged because of racial discrimination. Brown was

nominally employed by the Secretary of Commerce, but the subagency involved was the

Census Bureau, United States Department of Commerce.

       On January 12, 1998, Brown was appointed as a probationary Community

Partnership Specialist at the GG-11 grade level with the Census Bureau. His appointment

was subject to the completion of a one-year probationary period, and was temporary, not

to exceed three years. Aplt. App. 458 ¶ 7. Brown was fired on January 5, 1999 just

before completing this standard one-year probationary period. Aplt. App. 462 ¶ 45.

       In November 1997, Brown applied and was deemed qualified for two postings for

temporary employment at three levels (GG-9, GG-11, and GG-12) with the United States

Department of Commerce, Bureau of the Census, Denver Regional Census Center

(hereinafter “Census Bureau”), for a Temporary Community Partnership Specialist. Aplt.

App. 457 ¶¶ 4-5.

       On December 9, 1997, Pamela Lucero (Hispanic), the Regional Partnership


                                            -2-
Coordinator with defendant’s Denver Regional Census Center, Wayne Hatcher (White),

the Assistant Regional Census Manager, and Susan Lavin (White), the Regional Director,

interviewed Brown for the position of Community Partnership Specialist. Lucero

recommended Brown’s employment to Hatcher who subsequently hired Brown. Aplt.

App. 242. On January 12, 1998, Brown was appointed as a probationary Community

Partnership Specialist at the GG-11 grade level with the Census Bureau.

                                             B

       The Census Bureau Handbook states that “[a] probationary employee may be

separated merely by written notice that their continued employment is not in the interest

of the government.” Aplt. App. 458 ¶ 5. Brown was aware of this policy and of his EEO

rights. The partnership specialists were divided into three groups: Government

Specialists, Community Specialists, and Tribal Government Specialists. Each group had

a team leader who was at the GS-12 level. The position of team leader for the

Community Specialist group to which Brown belonged was not filled until September

1998 when Earl Brotten, who is also African-American, was hired. Until this position

was filled, Lucero acted as Brown’s direct supervisor and acting team leader from

January 12, 1998, to September 21, 1998. Aplt. App. 459 ¶ 13.1 November 2, 1998,

Brown received a performance rating at the low end of the “fully successful” category.

Aplt. App. 462 ¶ 39. The “Fully Successful” rating is an intermediate rating;



       It should be noted that Lucero’s husband is also African-American.
       1



                                            -3-
“Marginal/Minimally Satisfactory” and “Unacceptable/Unsatisfactory” precede and

“Commendable” and “Outstanding” follow it. Aplt. App. 408.

       In late December 1998, Brotten recommended the termination of Brown’s

employment due to Brown’s continued disregard of his supervisory directions and

Brown’s failure to follow the chain of command. Aplt. App. 28 ¶ 52, 351 ¶ 52. Lucero

concurred with the recommendation to terminate Brown. Aplt. App. 28 ¶ 53, 351 ¶ 53.

On January 4, 1999, Hatcher sent Brown a letter notifying him that he was ending

Brown’s employment effective January 5, 1999. The letter made reference to Brown’s

unacceptable conduct: “Despite ongoing instruction and feedback, you have demonstrated

an unwillingness to accept management direction. Also, you are not flexible and you are

often uncooperative in accepting changes in decennial operations.” Aplt. App. 492.

       The letter provided three examples of Brown’s unacceptable behavior. The first

example had two parts: the first part chastised Brown for a verbal altercation with a co-

worker who had directed racial epithets at Brown; the second part criticized Brown for

his subsequent, frequent contacting of higher officials instead of immediate supervisors

regarding job issues, despite directions to follow the “chain of command.” Aplt. App.

492. The second example was Brown’s criticism of a management decision to send

recruiting materials to the Las Vegas area. Finally, the termination letter took issue with

Brown’s persistence in planning a trip to Utah despite directions to concentrate on

Colorado and postpone the Utah trip. Aplt. App. 493.


                                            -4-
       It is helpful to further explore these three examples of Brown’s “unacceptable

conduct” in order to develop a more detailed picture of the events leading up to Brown’s

termination. The first example from the termination letter involves an incident on March

20, 1998, when what appears to have been a disturbing pattern of treatment of Brown by

his co-worker Hernandez, culminated in a single confrontation. Hernandez, who is

Hispanic, had repeatedly addressed Brown with the remarks: “What’s up dog?” or

“What’s up black?” Aplt. App. 380. On March 20, apparently feeling that this treatment

had gone on too long, Brown engaged in an “extremely heated verbal disagreement” with

Hernandez over his use of derogatory names. Aplt. App. 380. Hernandez was at the GG-

12 level and had previous federal experience at that grade level. Aplt. App. 460, ¶ 21.

       Although Brown’s immediate supervisor, Lucero, was not in the office on March

20, Brown was aware that Lucero would be returning to the office the following Monday,

March 23, 1998, and Brown knew how to contact her at home. Aplt. App. 460 ¶ 22.

However, following the altercation, Brown complained to Jamey Christie, the Assistant

Regional Census Manager, about Hernandez’s verbal abuse, because the altercation had

resulted in a heightening of tension between Brown and Hernandez which, in Brown’s

opinion, required “immediate attention by the Bureau’s management officials.” Aplt.

App. 382 ¶ 21. Hernandez called Brown at home during the weekend following the

incident and apologized to Brown. Aplt. App. 384 ¶ 27.

       Lucero learned of the altercation from Christie upon her return to the office on


                                           -5-
Monday, March 23, 1998. Aplt. App. 460 ¶ 23. She subsequently met with Hernandez

on Tuesday, March 24 and with Brown on Wednesday, March 25, 1998 and informed

both men that derogatory language would not be tolerated in the office. Aplt. App. 460

¶¶ 24-26. In addition, during her meeting with Brown, Lucero informed Brown of the

importance of following the proper chain-of-command in the workplace. It should be

noted that Lucero spoke to Hernandez before she spoke to Brown and waited for a period

of two days after her return to discuss the incident with Brown. Brown did not file an

EEO complaint or seek EEO counseling with regard to the incident with Hernandez.

Aplt. App. 384 ¶ 28.

       The second example from the termination letter involved recruiting

announcements that the Bureau intended to use in Las Vegas. According to Brown, the

Bureau had prepared two sets of announcements for one position. Lucero had ordered the

sending of one job announcement by Hernandez to the Hispanic community in Las Vegas

containing a bilingual requirement for the position. Lucero also directed Brown to send a

different announcement for the same position to the black community which excluded the

bilingual requirement. Aplt. App. 385-386 ¶ 30. Brown questioned Lucero about the

efficacy of using these differing announcements because he was concerned that his and

the Bureau’s credibility would be hurt in the black community if applicants were led to

believe that they did not need Spanish skills when they actually did. Id. Lucero later

instructed Brown to send both announcements to the black community. Id. It is worth


                                            -6-
noting that although the friction between Brown and Lucero was cited as an example of

unacceptable behavior in Brown’s termination letter, Lucero rated Brown “Fully

Successful” in Brown’s November 1998 performance evaluation which was composed

two months before Brown’s termination.

       The third example from Brown’s termination letter involves a series of tense

interactions between Brown and his supervisors in December 1998. On December 3 and

4, 1998, Brotten ordered Brown to postpone a scheduled trip to Utah because

management had decided to refocus their efforts locally. On December 7, 1998, Brown

mentioned his previously scheduled trip to Utah to Brotten, and Brotten repeated his

instruction for Brown to postpone his trip. On December 9, 1998, Brown sent e-mail

messages to Brotten, Lucero, Hatcher, and Laura Lunsford expressing concern about

management’s change in work focus. On December 11, 1998, Brown again discussed the

trip to Utah with Brotten who repeated his explanation of the short-term strategy of

focusing on Denver. Later the same day, Brown sent an e-mail message to Lucero,

Hatcher, Hernandez, and Tanya Hughes (Decennial Clerk), alleging that Brotten had

“cussed” at him during their December 11, 1998, discussion of the trip to Utah. Aplt.

App. 462 ¶ 44. It should be noted that the majority of these persons were higher level

supervisors and that Brown’s habit of going up the chain of command with complaints

was one of the reasons given for firing him.

       In addition to the circumstances that the Bureau asserts in Brown’s termination


                                           -7-
letter were directly related to his firing, Brown cites two instances of possible racial

prejudice by Lucero. First, Brown asserts that Lucero accused Brown of being “behind” a

letter which was received from officials of the NAACP in Omaha criticizing the Bureau

for its employment practices. Aplt. App. 426 p.24:23-25.2 Second, Belva Morrison, one

of Brown’s co-workers, testified that Lucero had told her that she was going to hire a

black person to fire Brown. Aplt. App. 426-27 p.24:23-25:8. Morrison understood this

statement to mean that Lucero intended to hire a black person so that person could fire

Brown without there being any appearance of racial discrimination. Aplt. App. 427

p.25:14-26:4.

       The record shows that Brotten, who is black, was interviewed for the Team Leader

position solely by Lucero and that no other applicants were interviewed for the position

by Lucero. Aplt. App. 430 p.9:17-25 & 434 p.42:21-25. In addition, Lucero had worked

with Brotten previously in both the public and private sectors. Aplt. App. 434 p. 42:2-11

& p. 43:14-25, p.44:1-14.

                                                  II

                                    THE RULING BELOW

       The district court examined the Census Bureau’s evidence concerning Brown’s


       2
         These cites are to section in the appendix which reproduce transcripts of depositions.
Each page of the appendix which deals with deposition transcripts is broken into four parts, each
containing a page of the transcript. The first part of the citation refers to the page of the
Appendix, the second part refers to the pages of the transcript, the third part refers to the lines on
that page. For example: Aplt. App. 426 p.24: 23-25, refers to page 426 of the appendix, page 24
of the transcript and lines 23-25 of page 24 of the transcript.

                                                 -8-
disregard for the chain of command on five occasions3 and two instances of

insubordination.4 The court noted that Brown did not refute this evidence but instead

asserted that his conduct was reasonable under the circumstances.

       The district court dismissed Brown’s argument that his disagreement with

management over the reasonableness of his conduct was enough to establish pretext. The

plaintiff, the court asserted, may not establish pretext simply by arguing that his actions

were reasonable. Aplt. App. 495, citing Kendall v. Watkins, 998 F.2d 848, 851-52 (10th

Cir. 1993) (recognizing that an employer’s reason “need not be a sound business reason,

or even a fair one”) (internal citations and quotes omitted). Instead, the plaintiff has to

demonstrate that the defendant’s proffered reasons are not the real reason for his

termination. Aplt. App. 495. The district court concluded that the plaintiff failed to point

to evidence sufficient to create a genuine issue of material fact as to whether the

defendant’s articulated reasons for termination were a pretext for unlawful discrimination.

For these reasons, on May 23, 2001 the district court granted the Census Bureau’s motion

       3
          First, on March 20, 1998, Brown discussed his verbal altercation with Hernandez with a
supervisor outside his chain of command. Second, on July 24, 1998, Brown asked Wayne
Hatcher, Assistant Regional Census Manager, about a salary increase. Third, on October 20,
1998, Brown jumped three levels of supervisors when he discussed a call from a contact directly
with the Regional Director’s office. Fourth, on December 9, 1998, Brown sent e-mail messages
to his supervisor and several people outside his chain of command complaining about the
strategic decision that resulted in the postponement of his Utah trip. Finally, on December 11,
1998, Brown sent another e-mail to several people not in his chain of command to complain
about his supervisor.
       4
          First, Brown refused to distribute a recruiting announcement per his supervisor’s
instructions to Brown’s contacts in Las Vegas. Second, Brown refused to postpone his trip to
Utah when management decided to refocus its efforts locally.

                                              -9-
for summary judgment.

                                             III

                            OUR STANDARD OF REVIEW

       Since the order appealed from granted summary judgment, the standard of review

is de novo, and this court applies the same legal standards appropriate for the district

court. Kendrick v. Penske Transportation Serv., Inc., 220 F.3d 1220, 1225 (10th Cir.

2000). Summary judgment should be granted “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 a

judgment as a matter of law.” Fed. R. Civ. P. 56 (c). This court views the evidence and

draws all reasonable inferences in the light most favorable to the nonmoving party. See

McNight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). The nonmovant

is given “wide berth to prove a factual controversy exists.” Jeffries v. Kansas, Dep’t of

Soc. & Rehab. Servs., 147 F.3d 1220, 1228 (10th Cir. 1998) (citation omitted).

       The court reviews the factual record and draws all reasonable inferences therefrom

most favorably to the nonmovant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986); Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777,

781 (10th Cir. 1995); Blue Circle Cement, Inc. v. Board of County Commissioners, F.3d

1499, 1503 (10th Cir. 1994). However, the nonmoving “party must identify sufficient

evidence that would require submission of the case to a jury.” Jensen v. Redevelopment


                                            - 10 -
Agency of Sandy City, 998 F.2d 1550, 1555 (10th Cir. 1993). It is not enough that the

nonmovant’s evidence be “merely colorable” or anything short of “significantly

probative.” Id. (quoting Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249-50 (1986)).

The nonmoving party may not rest upon its pleadings, but its response must set forth

specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 248. To accomplish this, the fact must

be identified by reference to affidavits, deposition transcripts, or specific exhibits

incorporated therein. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).

The court conducts this review from the perspective of the district court at the time it

made its ruling, ordinarily limiting the review to materials adequately brought to the

attention of the district court by the parties. Id.

       Brown’s claims will be analyzed under the McDonnell Douglas three-step burden-

shifting framework because he offered no direct evidence of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the complainant in a Title VII case

must carry the initial burden under the statute of establishing a prima facie case of racial

discrimination. This may be done by showing that the plaintiff: (i) belongs to a protected

class; (ii) was qualified and satisfactorily performing his job; and (iii) was terminated

under circumstances giving rise to an inference of discrimination. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981); see also Martin v. Nannie

and the Newborns, Inc., 3 F.3d 1410, 1417 (10th Cir. 1993). Here, the Census Bureau


                                              - 11 -
does not dispute that Brown presented a prima facie case. See Appellee’s Answer Brief, at

8.

       Second, after the complainant presents a prima facie case, the burden shifts to the

employer to articulate some legitimate, nondiscriminatory reason for the employee’s

rejection. McDonnell Douglas, 411 U.S. at 802. In the present case, the Census Bureau

says that Brown was fired for unacceptable conduct which included an unwillingness to

follow the chain of command, resistance to management’s direction, and general

inflexibility and uncooperativeness.

       Finally, the claimant is afforded a fair opportunity to show that the employer’s

stated reason for claimant’s rejection was in fact pretext. McDonnell Douglas, 411 U.S.

at 804. Since the first two prongs of the McDonnell Douglas framework have been

satisfied here, the only issue this court must address is whether there is evidence of

pretext.

                        ANALYSIS OF THE PRETEXT ISSUE

       To establish pretext a plaintiff must show either that “a discriminatory reason more

likely motivated the employer or . . . that the employer’s proffered explanation is

unworthy of credence.” Burdine, 450 U.S. at 256; see also Bullington v. United Air Lines,

Inc., 186 F.3d 1301, 1317 (10th Cir. 1999). A plaintiff may accomplish this by

demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a


                                            - 12 -
reasonable factfinder could rationally find them unworthy of credence.” Morgan v. Hilti,

Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quotation and citation omitted).

       A plaintiff usually makes a showing of pretext in one of three ways. First, a

plaintiff can provide “evidence that the defendant’s stated reason for the adverse

employment action was false.” Kendrick, 220 F.3d at 1230. Second, plaintiff can submit

“evidence that the defendant acted contrary to a written company policy prescribing the

action to be taken by the defendant under the circumstances.” Id. Finally, plaintiff can

produce “evidence that the defendant acted contrary to an unwritten policy or contrary to

company practice when making the adverse employment decision affecting the plaintiff.”

Id. A plaintiff who wishes to show that the company acted contrary to an unwritten

policy or practice often does so by providing evidence that he was “treated differently

from other similarly-situated employees who violated work rules of comparable

seriousness.” Id. The plaintiff has the burden of showing that he and the employees he

seeks to compare himself with were similarly situated. See Kelley v. Goodyear Tire &

Rubber Co., 220 F.3d 1174, 1178 (10th Cir. 2000). The plaintiff may also provide

evidence of defendant’s reaction, if any, to respondent’s legitimate civil rights activities

to show pretext. McDonnell Douglas, 411 U.S. at 804.

       This court, although bound to view the facts in the light most favorable to the non-

movant, when analyzing a contention of pretext examines the facts “as they appear to the

person making the decision to terminate plaintiff.” Kendrick, 220 F.3d at 1231. Brown,


                                            - 13 -
the plaintiff, has the ultimate burden of demonstrating that the Census Bureau’s stated

reasons for his termination are in fact a pretext for unlawful discrimination, Jones v.

Denver Post Corp., 203 F.3d 748, 752-53 (10th Cir. 2000). At this stage, Brown must

provide evidence that reveals a genuine issue of fact as to pretext. Celotex, 477 U.S. at

322-23.

       A challenge of pretext requires us to look “at the facts as they appear to the person

making the decision to terminate plaintiff.” Kendrick, 220 F.3d at 1231; see also Shorter,

188 F.3d at 1209 (stating that the manager’s perception of the employee’s performance

rather than the employee’s subjective evaluation of her own performance, is relevant for

determining pretext). Evidence which is a mere suggestion of pretext is not sufficient

grounds for resisting a summary judgment motion. In Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 148-49 (2000) the Court discussed circumstances where

such a mere suggestion of pretext is not sufficient:

       Whether judgment as a matter of law is appropriate in any particular case
       will depend on a large number of factors. Those include the strength of the
       plaintiff’s prima facie case, the probative value of the proof that the
       employer’s explanation is false, and any other evidence that supports the
       employer’s case and that properly may be considered on a motion for
       judgment as a matter of law.

       Here we feel that the showing of the Plaintiff Brown is not sufficient. It is not the

plaintiff’s perception of the facts, but that of the employer at the time of the decision to

discharge the plaintiff, which controls. See Selenke v. Medical Imaging of Colorado, 248

F.3d 1249, 1261 (10th Cir. 2001); Kendrick v. Penske Transp.Service, 220 F.3d 1220,

                                             - 14 -
1231 (10th Cir. 2000). “Merely showing the reason articulated by the employer is wrong

or unreasonable will not suffice.” Kendall v. Watkins, 998 F.2d 848, 851 (10th Cir. 1993)

(citing Gray v. University of Arkansas, 883 F.2d 1394, 1401 (8th Cir. 1989)).

       We note that it was not Ms. Lucero, but Mr. Hatcher who terminated Plaintiff

Brown’s employment. He stated in part: “Despite repeated counselings, you continued to

circumvent your first level supervisors in order for them to handle problems at the

program level and instead you go directly to the ARCM’s, usually with issues that are not

critical enough to utilize ARCM’s time and resources.” Plaintiff’s Exhibit 3, ¶ 6.

       In sum, we feel that the plaintiff’s showing is not sufficient to establish pretext for

the purpose of defeating the defendant’s motion for summary judgment.

       Accordingly the judgment of the district court is

              AFFIRMED.

                                                           ENTERED FOR THE COURT



                                                           William J. Holloway, Jr.
                                                           Circuit Judge




                                             - 15 -
