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

                            FOR THE TENTH CIRCUIT                      November 20, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
CORTEZ COX,

             Plaintiff - Appellant,

v.                                                         No. 13-1038
                                               (D.C. No. 1:11-CV-01479-PAB-BNB)
LOCKHEED MARTIN                                             (D. Colo.)
CORPORATION, a Maryland
Corporation, also known as Lockheed
Martin Space Systems Company,

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



      Cortez Cox appeals from a district-court order granting Lockheed Martin

Corporation (LMC) summary judgment on his employment-discrimination claim.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    BACKGROUND

      LMC hired Mr. Cox, an African-American, in 1993 as a quality inspector. He

was later promoted to quality assurance senior engineer. Like other LMC employees,

Mr. Cox was required to participate in an annual Performance Management Process

(PMP), in which the employee enters his or her personal objectives for the year and

“flow-down” objectives that originate with management. Aplt. App., Vol. I at 42.

During the 2009 PMP, he entered as a personal objective that he would “remain

current [with his] required training and complete [his] time card before the end of the

week.” Id. at 132. But in March 2009 he refused to enter any flow-down objectives,

and when three such objectives were entered on his behalf, he requested that they be

removed.

      LMC also conducts an annual Performance Assessment and Development

Review (PADR) for each employee. The 2009 PADR for Mr. Cox noted problems in

his communication skills and his refusal to finalize the 2009 PMP:

      [Mr. Cox] continues to be difficult to communicate with and refuses to
      follow clearly communicated corporate command media requirements.
      Cortez has continually chosen, for the most part, to not be inclusive
      with his managers and peers . . . . For example[,] he refuses to attend
      any of the team’s weekly staff meetings including when they have
      mandatory attendance . . . . Cortez’s behavior associated with the
      [PMP] this year was unacceptable and in direct conflict with the
      Lockheed Martin performance attributes.

Id. at 137. At a meeting to discuss the PADR, Mr. Cox’s managers warned him that

if he failed to improve, he could be placed on a Personal Improvement Plan (PIP).



                                         -2-
During the meeting Mr. Cox wore earphones to avoid hearing his managers’

criticisms and he refused to sit down.

      In March 2010, Mr. Cox received flow-down objectives to be included in his

PMP, but he again declined to input them and inputted only his personal objectives.

LMC continued to warn him that his failure to enter flow-down objectives could

result in the issuance of a PIP. He responded in a May 2010 email, refusing to input

his flow-down objectives. Also he explained that he did not attend more meetings

because he felt harassed. He recounted a prior meeting at which he and a coworker

were called “the bugs,” and a manager seated at the table failed to intervene. Id. at

119. When the coworker filed an internal EEO complaint about the incident, LMC

began an investigation. Mr. Cox initially refused to cooperate, but spoke with the

investigator in August and September 2010. During the interviews Mr. Cox

compared himself to “Frankenstein,” id. at 143, 148, expressed frustration, and stated

that he was undergoing counseling.

      In August 2010, LMC managers met with Mr. Cox and warned him that failure

to enter his objectives would result in charges of insubordination. He refused to

comply and was placed on a PIP in September 2010. The PIP required that Mr. Cox,

among other things, enter his flow-down objectives and attend scheduled meetings.

LMC warned him that failure to comply with the PIP would be considered

insubordination, “and that termination would be next.” Id. at 166. Mr. Cox refused

to sign the PIP. In his deposition he stated that a PIP is a tool used by management


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to “disgrace [an employee],” and he did not want “someone else to come and define

[him],” id. at 83.

       LMC’s EEO investigator reached out to Mr. Cox to “inquire if everything was

‘okay.’” Id. at 150. She reported that he was angry and that he said: “I get nose

bleeds”; “This thing is killing me inside”; “I’m talking to myself”; “One of these

days, they will find me slumped over at my desk”; “A dog that has been beaten

repeatedly will turn even on a good master”; and “Every metal has a breaking point.”

Id. at 151-52. Mr. Cox contests having made most of these statements, but he

admitted at his deposition that he did make comments about “[e]very metal [having]

a breaking point” and “an abused dog,” id. at 85. Following her conversation with

Mr. Cox, the EEO investigator alerted LMC’s Case Management Team, which deals

with at-risk employees, that he “was having some health issues and he appeared

angry.” Id. at 127.

       On October 7, 2010, management met with Mr. Cox to provide him the

opportunity to acknowledge the PIP and comply with its requirements. He refused.

According to Mr. Cox, “[he] refused to enter management flow downs because [he]

did not believe they were [his] objectives.” Id., Vol. II at 250. LMC management

then began an investigation into allegations of insubordination against Mr. Cox. He

was not notified of the investigation.

       On October 8, Mr. Cox approached management and sought “help with

documenting his flow-down performance management objectives.” Id., Vol. I at 192.


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He “was respectful and engaged during his conversation.” Id. But later that day,

apparently before any objectives were inputted, LMC placed him on paid

administrative leave pending a risk assessment of his comments and behavior.

Dr. John Nicoletti conducted the assessment and concluded that there was

insufficient data indicating that Mr. Cox was a threat to himself or others. But

Dr. Nicoletti did conclude that “Mr. Cox has engaged in behaviors that have created

Social and Psychological Disruption.” Id. at 215.

      On November 4, 2010, LMC issued a revised PIP for Mr. Cox and established

Return to Work Expectations (RTWE) that were derived from Dr. Nicoletti’s

assessment. Despite being warned that “[f]ailure to sign, acknowledge or comply

with the revised PIP will result in disciplinary action, up to and including

termination,” id. at 177, Mr. Cox refused to acknowledge or sign it. The following

day, LMC suspended him with pay and informed him for the first time that he was

under investigation.

      LMC’s investigation focused on four allegations of insubordination:

(1) failure to input flow-down objectives; (2) refusal to sign the September 24, 2010,

PIP; (3) refusal to respectfully discuss performance issues with managers; and

(4) refusal to sign or acknowledge the revised PIP and comply with the RTWE. The

investigator substantiated all but the first allegation, and forwarded the results to

LMC’s Administrative Review Committee (ARC). The ARC overruled the

investigator’s finding regarding the first allegation of insubordination, determined


                                           -5-
that all allegations were substantiated, and recommended termination. LMC’s

Executive Review Committee (ERC) concurred with the ARC.

      On December 3, 2010, LMC terminated Mr. Cox. He appealed his

termination, arguing that he had never been given the opportunity to address the

allegations against him. But despite several requests from LMC for documentation in

support of his appeal, Mr. Cox did not respond. LMC denied the appeal on January

12, 2011.

      Cox sued LMC, alleging racial discrimination and retaliation in violation of

42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2000e-17. The district court granted LMC’s motion for summary

judgment, prompting this appeal.

                                     DISCUSSION

                    I. Summary Judgment Standard of Review

      We review the district court’s summary judgment order de novo, applying the

same standards that the district court should have applied. See Helm v. Kansas,

656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In conducting the

analysis, we “view[ ] all facts [and evidence] in the light most favorable to the party

opposing summary judgment.” Grynberg v. Total S.A., 538 F.3d 1336, 1346

(10th Cir. 2008).


                                          -6-
                      II. Discriminatory Discharge & Retaliation

         Mr. Cox claims that he was fired (1) because of his race and (2) in retaliation

for complaining about being called a bug and for giving a statement about that

incident. To show discriminatory discharge and retaliation, he relies on the familiar

three-part framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir.

2011) (“A plaintiff may prove violation of Title VII or 42 U.S.C. § 1981—the

standards are the same—either by direct evidence of discrimination, or by adhering to

the burden-shifting framework of McDonnell Douglas . . . .” (citations omitted)).

         Under the framework, if the plaintiff can show a prima facie case of

discrimination, “[t]he burden then shifts to the [employer] to produce a legitimate,

non-discriminatory reason for the adverse employment action. If the [employer] does

so, the burden then shifts back to the plaintiff to show that the plaintiff’s protected

status was a determinative factor in the employment decision or that the employer’s

explanation is pretext.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.

2012). Similarly, if the plaintiff establishes a prima facie case of retaliation, the

employer must offer a legitimate, nonretaliatory reason for its decision, which the

plaintiff must then rebut by “show[ing] that the employer’s reason is merely a pretext

for retaliation.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir.

2011).




                                            -7-
      LMC does not dispute that Mr. Cox has made prima facie cases of

discrimination and retaliation, and we assume, for the sake of argument, that he has.

And for his part, Mr. Cox does not dispute the legitimacy of LMC’s reasons for

terminating him. Instead, he argues that those reasons are pretextual.

      A party may show pretext “by demonstrating such weaknesses,

implausibilities, inconsistencies, incoherences, 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 nondiscriminatory reasons.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189,

1196 (10th Cir. 2011) (internal quotation marks omitted). Pretext may also be shown

by providing direct evidence discrediting the proffered rationale, or by showing that

the plaintiff was treated differently from others similarly situated. See id. But “mere

conjecture that [an] employer’s explanation is a pretext for intentional discrimination

is an insufficient basis for denial of summary judgment.” Santana v. City & Cnty. of

Denver, 488 F.3d 860, 864-65 (10th Cir. 2007) (internal quotation marks omitted).

                           A. Insubordination Allegations

      To begin with, Mr. Cox argues that LMC has inconsistently described the

insubordination allegations that led to his termination, and he concludes that the

inconsistencies show pretext. His argument is based on a comparison of the reasons

given for his termination in LMC’s discovery admissions to the reasons given in

LMC’s investigation report. He cites LMC’s admissions that he was fired “for a


                                          -8-
pattern of insubordinat[e] behavior” that included “failure [to] comply with the

[PMP]”; “fail[ure] to acknowledge two [PIP] documents”; “fail[ure] to treat his

leadership team with respect”; and “refus[al] to acknowledge and abide by [RTWE].”

Aplt. App., Vol. II at 273. These are essentially the same reasons LMC has cited all

along for why Mr. Cox was fired. Any perceived inconsistencies strike us as merely

semantic, rather than substantive. We now address each reason in turn.

                    1. Failure to Input Flow-Down Objectives

      Mr. Cox contends that his willingness on October 8 to input his flow-down

objectives shows that LMC’s reason for discharging him was pretextual. He also

points out that LMC’s investigator found that this ground of insubordination was

unsubstantiated because of his willingness to input the objectives.

      We are not persuaded. Despite numerous requests from management, Mr. Cox

refused to input his flow-down objectives for nearly 18 months. He even denied that

they were his objectives. He finally expressed a willingness to input the 2010

objectives only after he was placed on a PIP and threatened with termination.

Although LMC’s investigator found no insubordination on this ground, Mr. Cox has

not shown that the ARC and ERC were bound by the investigator’s conclusions

regarding insubordinate behavior. And the finding by the ARC and ERC is almost

compelled by the record. Mr. Cox has failed to produce evidence that LMC’s

reliance on his failure to input his flow-down objectives was not in good faith.




                                         -9-
                    2. Refusal to Acknowledge PIP Documents

      Mr. Cox argues that because “there is no policy requiring that an employee

acknowledge a PIP,” LMC’s reliance on his failure to acknowledge the revised PIP is

pretextual. Aplt. Opening Br. at 36. Further, he asserts that he was not told to

acknowledge the initial PIP.

      Mr. Cox’s argument regarding the initial PIP is, at best, a mere quibble. A PIP

is a Personal Improvement Plan. No reasonable person could think that it was

anything other than a directive to perform what is set forth in the plan. Mr. Cox

refused to sign it and otherwise conveyed that he did not feel bound to follow it.

Whether one characterizes his conduct as failure to “acknowledge” the PIP or uses

other language, there is no question that he was expressing disobedience to his

superiors. Mr. Cox provides no reason to believe that LMC’s reliance on his

response to the PIP as a ground for discipline was pretextual.

      As for the revised PIP, Mr. Cox testified at his deposition that he refused to

sign or acknowledge it. But he asserts that his testimony was mistaken and that his

affidavit opposing summary judgment corrects his mistake by stating that he refused

only to sign the revised PIP. The district court addressed these assertions, and

rejected Mr. Cox’s contrary affidavit statement as an attempt to create a sham fact

issue. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (“[T]he utility of

summary judgment as a procedure for screening out sham fact issues would be

greatly undermined if a party could create an issue of fact merely by submitting an


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affidavit contradicting his own prior testimony.”). Mr. Cox does not address Franks.

Nor does he provide any discussion that would support using his affidavit testimony

over his earlier deposition testimony. We conclude that Mr. Cox has failed to

provide evidence of pretext regarding his failure to acknowledge a PIP.

                         3. Failure to Respect Management

      Mr. Cox argues that a reasonable factfinder would determine that he was not

disrespectful to his supervisors. He relies on his deposition testimony contesting

management’s view of his behavior and attitude at work. It appears undisputed,

however, that on at least one occasion, Mr. Cox acted disrespectfully by wearing

earphones during a meeting and refusing to sit down. Further, Dr. Nicoletti

determined that Mr. Cox had engaged in disruptive behaviors.

      Even if Mr. Cox did not believe that he had any behavior and attitude

problems at work, “[i]t is the manager’s perception of the employee’s performance

that is relevant, not [the employee’s] subjective evaluation of [his] own relative

performance.” Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996). There

is no reason in this record to believe that management did not sincerely believe that

Mr. Cox was disrespectful.

                       4. Failure to Comply with the RTWE

      The RTWE required Mr. Cox to, among other things, “acknowledge and sign

the revised [PIP] dated November 2, 2010.” Aplt. App., Vol. I at 176. Mr. Cox

argues that pretext is shown by the fact that the date of the revised PIP given to him


                                         - 11 -
was November 4, whereas the RTWE listed the date of the revised PIP as

November 2. He appears to conclude that because he did not refuse to acknowledge

or sign a November 2 PIP, he could not have been faulted for failing to comply with

the RTWE. But Mr. Cox has offered nothing to suggest that the discrepancy in dates

is anything other than a clerical error. An employer’s mistaken belief “is not

necessarily pretextual.” EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1322 n.12 (10th

Cir. 1992). We conclude that the discrepancy in dates is essentially irrelevant. The

undisputed fact remains that Mr. Cox failed to comply with the RTWE’s requirement

that he acknowledge and sign the revised PIP.

      We note that Mr. Cox asserts that “[w]here one of the stated reasons for

termination predominates over the others, demonstrating that reason to be pretextual

is enough to avoid summary judgment.” Aplt. Opening Br. at 49. But he concedes

that LMC viewed “the four allegations of insubordination [as] equal with no

allegation more serious than the other.” Id. at 45-46. In any event, we have

determined that he has failed to raise an issue of fact regarding any of the four

allegations.

                              B. LMC’s Internal Policy

      Mr. Cox argues that LMC’s investigation of the four insubordination

allegations is evidence of pretext because LMC failed to follow its internal policy

concerning investigations. LMC requires that an employee who is accused of

wrongdoing be notified of the allegations, given an opportunity to provide his


                                         - 12 -
account of the events to the investigator, and given “an opportunity to submit a

written statement before the case is referred to the ARC for disposition.” Aplt. App.,

Vol. II at 294. It is undisputed that LMC did not notify Mr. Cox that he was under

investigation until November 5, 2010, and it did not seek his account of the

allegations until after he was terminated and had requested the opportunity to address

the allegations.

       Nevertheless, “[t]he mere fact that an employer failed to follow its own

internal procedures does not necessarily suggest that the substantive reasons given by

the employer for its employment decision were pretextual.” Berry v. T-Mobile USA,

Inc., 490 F.3d 1211, 1222 (10th Cir. 2007) (ellipsis and internal quotation marks

omitted). “[F]or an inference of pretext to arise on the basis of a procedural

irregularity, there must be some evidence that the irregularity directly and uniquely

disadvantaged a minority employee.” Conroy, 707 F.3d at 1176 (ellipsis and internal

quotation marks omitted). Mr. Cox has failed to identify any evidence to show how

LMC’s deviation from its investigations policy detrimentally affected him. Indeed,

when he appealed his termination and sought to address the insubordination

allegations, he failed to provide any documentation despite LMC’s repeated requests.

       Mr. Cox also attempts to demonstrate pretext by showing that LMC treated

two coworkers more favorably by affording them an opportunity to respond to

charges against them. But Mr. Cox has not shown how those coworkers were

similarly situated.


                                         - 13 -
      Similarly situated employees are those who deal with the same
      supervisor and are subject to the same standards governing performance
      evaluation and discipline. In determining whether two employees are
      similarly situated, a court should also compare the relevant employment
      circumstances, such as work history and company policies, applicable to
      the plaintiff and the intended comparable employees. Moreover, even
      employees who are similarly situated must have been disciplined for
      conduct of comparable seriousness in order for their disparate treatment
      to be relevant.

McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (citations and

internal quotation marks omitted). And although Mr. Cox made this argument in the

district court, he did not mention the second coworker. Consequently, his argument

is waived as to that coworker. See Tele-Commc’ns, Inc., v. Comm’r, 104 F.3d 1229,

1232 (10th Cir. 1997) (an appellate court will not consider an issue raised for first

time on appeal, particularly when dealing with appeal from the grant of summary

judgment).

                     C. Date on Termination Recommendation

      Finally, we reject Mr. Cox’s attempt to show pretext by pointing out that the

ARC’s termination recommendation bears an “8/18/10” date. Aplt. App., Vol. I at

178. According to Mr. Cox, that date is significant because it shows that the ARC

decided to recommend termination even before the investigation began on October 7,

2010. It is clear, however, that the “8/18/10” date is incorrect. Indeed, the ARC’s

recommendation discusses events that occurred well after the August 18 date.

Moreover, the LMC employee who conducted the investigation testified that the date




                                         - 14 -
on the ARC’s recommendation should have been “November 18, 2010,” rather than

“8/18/10.” Id., Vol. II at 265.

      The district court correctly ruled that Mr. Cox had failed to produce adequate

evidence of pretext.

                                    CONCLUSION

      The judgment of the district court is affirmed.

                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




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