                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         June 15, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 GUY DOM AI,

               Plaintiff-Appellant,                      No. 05-4166
          v.                                              (D. of Utah)
 DISCO VER FINANCIAL SERVICES,                    (D.C. No. 2:03-CV-696-K)
 Inc., a Delaware corporation,

               Defendant-Appellee.



                            OR D ER AND JUDGM ENT *


Before T YM KOV IC H, B AL DOCK , Circuit Judges, and FIG A District Judge. **


      Guy Domai brought a Title VII action against his former employer,

Discover Financial Services, alleging discrimination and retaliation based on race

and national origin. He also asserted two causes of action for breach of contract

under state law. 1 The district court granted D iscover’s motion for sum mary

      *
         This order and judgment is not binding precedent, except under the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 Honorable Phillip S. Figa, United States District Judge for the
District of Colorado, sitting by designation.
      1
         Domai’s contract claims are based on the theory that Discover’s anti-
discrimination policy created an implied contract with its employees. The district
court dismissed these claims, relying on precedents that hold an employer’s anti-
                                                                     (continued...)
judgment and Domai appealed. For substantially the same reasons set forth by

the district court, we affirm the grant of summary judgment.

                                   I. Background

      Domai claims he w as discriminated against by his former employer,

Discover, because he is black and a native of France. Domai moved to the United

States as a teenager and subsequently became a legal permanent resident. He has

lived in Utah for all periods relevant to this lawsuit.

      Domai began working for Discover, a credit card company, in January

1997. In 1999, he was promoted to senior account manager and was eventually

transferred to the charge-off department. The charge-off department handles past-

due accounts in the last stage of delinquency before being written-off or

transferred to the legal department for collections.

      Discover evaluates its employees in the charge-off department by set

criteria tracked on a monthly basis. These criteria include a number of

performance measures assessing, among other things, (1) collections, (2) account

write offs, and (3) delinquency rates. One measure used by the company is

known as “Pure Flow,” an objective measure of how successful an employee is at

      1
        (...continued)
discrimination policy does not create an implied contract where the employer
expressly disclaimed any contractual relationship. See, e.g., Johnson v. M orton
Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991). Discover’s employee handbook
expressly disclaimed any contractual relationship with its employees. W e agree
with the district court’s analysis and, thus, do not separately analyze Domai’s
state law claims here.

                                          -2-
reducing the level of delinquency on customers’ accounts. Pure Flow measures

workers’ success in taking the most delinquent accounts and making them current,

and then compares each employee against the department average.

      In two evaluations in 2000, Domai received overall satisfactory reviews but

repeatedly failed to meet requirements in the area of productivity goals. In 2001,

while still receiving an overall rating of “meets requirements,” he failed to meet

standards in several areas, including productivity and Pure Flow. W ith respect to

Pure Flow, Domai was at 64.29% of his department average in January 2001 and

at 48.48% of his department average in August 2001. As a result, Domai received

the lowest rating possible on this part of his August 2001 performance evaluation.

      In July 2001, Domai’s supervisor resigned and was replaced by a new

supervisor. Domai claims he was concerned when he learned this person was to

be his supervisor. He says he had been told by a friend, a Nigerian who had

previously been on that supervisor’s team, that she had treated him differently

because of his race and nationality. Domai contends he told this to another team

leader in the department, W endy Greene, who told him to give the new supervisor

a chance. He also says he mentioned his concerns to Tina Ison, the department

manager, who also told him to give the new supervisor a chance. Greene and Ison

confirm they each had a conversation with Domai, but they say he never raised

the issue of the new supervisor’s potential bias.




                                         -3-
      Later in 2001, Domai was placed on “Job-In-Jeopardy” status for making

international calls on a teamleader’s phone, a practice not allowed by the

company. He does not deny he made the calls. Around this time, he asked to be

transferred to another supervisor’s team. Discover granted his request.

      In November 2001, Domai was put on a performance action plan 2 targeting

his poor Pure Flow results, which had been deficient for the previous six months.

Discover told him he had to improve his performance within the next 90 days or

he could face further discipline up to and including termination.

      In December 2001, Domai received a second action plan for his failure to

meet minimum requirements for monitor scores, the product of Discover’s

random monitoring of employee-customer phone calls, over the past three months.

In February 2002, Domai was again placed in Job-In-Jeopardy status for his

continued deficiency in his Pure Flow performance.

      Domai was given a third action plan in M arch 2002 for his failure to meet

minimum requirements for “A/R” scores, a measurement Discover uses to assess

what percentage of a delinquent account given to a particular employee is written

off. In M ay 2002, Domai received a fourth action plan in response to his

improper calling of cardmembers in violation of Discover’s outside dialing

regulations.



      2
       Performance action plans are a means used by Discover to counsel
employees whose performance is lagging and help them get back on track.

                                         -4-
      In response to these performance problems, Domai sent an email to his

team leader acknowledging that personal problems had prevented him from

performing at the level Discover expects from its employees. According to his

M ay 5, 2002 email, Domai said:

      It just kills me to see that all the efforts that I have been making,
      despite my personal problems, have not produced what I wanted them
      to. I feel bad because I feel like I have let you and also Tina down
      because you guys have been anything but fair and understanding [sic]
      to me. It’s probably too much to ask at this point but I would like to
      plead for one last chance which is to have 30 more days (the month
      M ay) . . .

R. at 218.

      On M ay 7, 2002, Ison, as the charge-off department manager, recommended

Domai be terminated due to his continued inability to meet Pure Flow standards.

Discover’s regional vice president approved the recommendation and Domai was

given the option of resigning, which he accepted.

                              II. Standard of Review

      W e review the district court’s entry of summary judgment de novo.

M ickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310 (10th Cir. 2006).

Summary judgment is only appropriate “if the pleadings, depositions, answ ers 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). On appeal, w e

review the record and make reasonable inferences in the light most favorable to

                                         -5-
the nonmoving party. M ickelson, 460 F.3d at 1310. W hile w e view the record in

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

sufficient evidence requiring submission to the jury to survive summary

judgment.” Piercy v. M aketa, 480 F.3d 1192, 1197 (10th Cir. 2007).

                                   III. Discussion

      Title VII prohibits an employer from terminating any individual because of

“race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), or from

retaliating against an individual who opposed unlawful discrimination, 42 U.S.C.

§ 2000e-3(a).

      In cases lacking direct evidence of discrimination such as this one, we

apply the familiar burden-shifting framew ork of M cDonnell Douglas Corp. v.

Green, 411 U .S. 792 (1973). First, the plaintiff must establish a prima facie case

of discrimination or retaliation. If the plaintiff does so, the burden shifts to the

defendant to show a legitimate non-discriminatory or non-retaliatory reason for

the adverse action. If the defendant succeeds, the burden shifts back to the

plaintiff to demonstrate that the defendant’s proffered reason is pretextual.

Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). Only the

plaintiff who prevails at each stage w ill withstand a motion for sum mary

judgment.

      W e evaluate both of Domai’s Title VII claims under this framew ork.




                                          -6-
      A . T itle V II D iscrimination Claim

      To make out a prima facie case of discrimination under Title VII, the

plaintiff must show (1) membership in a protected class, (2) an adverse

employment action, and (3) disparate treatment among similarly situated

employees. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).

Domai contends that he was singled out and treated differently than other

employees in Discover’s employee evaluation process because of his race and

national origin. The district court concluded that Domai, while establishing the

first two elements, faltered at the third. He could not show that he was treated

differently from similarly situated employees.

      Similarly situated employees are “those who deal with the same supervisor

and are subject to the same standards governing performance evaluation and

discipline.” Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). In

examining this question, 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.” Id. And “even employees

who are similarly situated must have been disciplined for conduct of ‘comparable

seriousness’ in order for their disparate treatment to be relevant.” M cGowan v.

City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (internal citation omitted).

      Discover says it fired Domai for his chronic failure to satisfy its objective

Pure Flow performance standard. Domai does not dispute that he consistently

                                         -7-
failed to meet Pure Flow’s minimum requirements— indeed, the record shows that

before the first disciplinary action against him, he was below standard for eleven

consecutive months. In the face of his poor performance record, Domai argues he

w as nevertheless treated differently from similarly situated employees in two

respects.

      First, he presents a list of department employees he claims also failed to

meet Pure Flow standards for two or more months yet were never disciplined.

But as his manager Tina Ison explained, company policy is to initiate the formal

disciplinary process only after an employee misses targets for four consecutive

months. Under this standard, Domai does not establish that any of the employees

on his list qualified for disciplinary action. The data he relies on only tracks

performance for four non-contiguous months (June–July 2001 and M arch–April

2002), and not consecutive months. Accordingly, no evidence shows that the

listed employees were ripe for discipline under Discover’s policy in the first

place. Nor does Domai point to any employee with as lengthy a period of below

expectation performance who was treated differently. In short, the group he seeks

to compare himself to is not “similarly situated,” and Domai’s evidence cannot

support an inference of discrimination based on the Pure Flow data. 3




      3
         Domai’s charge of disparate treatment is further belied by evidence on
the record that Discover routinely disciplines employees for Pure Flow violations.
M oreover, the vast majority of disciplined employees have been white.

                                          -8-
      Domai’s second argument is that employee data on the A/R performance

m easure (used to assess the percentage of delinquent accounts written off) show s

he was disciplined differently from similarly situated employees. Specifically, he

presents a list of employees who failed to meet A/R targets for two or more

months but were never disciplined. Domai was placed on a performance action

plan for his weak performance in this area. 4

      Discover admits six of the employees on Domai’s list could have been

disciplined for their A/R performance but were not. Nevertheless, M s. Ison

explained the reasons for this— namely that five of the six employees had recently

transferred into the charge-off department or had been given someone else’s

accounts, mitigating circumstances for which D iscover regularly allowed extra

time to meet targets before implementing an action plan. Domai, on the other

hand, was a seasoned veteran of the department at the time his A/R performance

was questioned. It is also notable for purposes of this case that the six employees

at issue were of five different ethnic backgrounds.

      Even assuming Domai had presented a prima facie case of discrimination,

Discover has met its burden of showing a legitimate non-discriminatory reason

for Domai’s progressive discipline and ultimate termination. Having presented a

      4
        The relevance of this data is questionable because Discover’s rationale
for terminating Domai was his deficiency in Pure Flow and not A /R.
Nevertheless, a performance action plan is arguably an adverse employment
action within the meaning of Title VII and the evidence must be judged in the
light most favorable to Domai on a motion for summary judgment.

                                         -9-
legitimate reason for its disciplinary actions against Domai, Discover thus shifted

“the burden [] back to the employee to show that there is a genuine dispute of

material fact as to whether the employer’s reason for the challenged action is

pretextual and unworthy of belief.” Trujillo v. Univ. of Colo. Health Sciences

Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998).

      Nothing in the record supports an inference that Domai was singled out

because of his race or national origin, or that the company’s proffered explanation

of D omai’s discipline w as riddled w ith “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” such that a “reasonable

factfinder could rationally find them unw orthy of credence and hence infer that

the employer did not act for the asserted non-discriminatory reasons.” Argo v.

Blue Cross & Blue Shield of Kan., 452 F.3d 1193, 1203 (10th Cir. 2006).

      The district court did not err in granting summary judgment on Domai’s

Title VII discrimination claim.

      B. Title V II Retaliation Claim

      Domai also argues that Discover retaliated against him for comm ents he

made about his new supervisor. Specifically, he says he was placed on Job-in-

Jeapordy status, and ultimately terminated, because he expressed concerns that his

new supervisor was racially biased. To establish a prima facie case of retaliation,

Domai must show that (1) he engaged in protected opposition to discrimination,

(2) he suffered an adverse action that a reasonable employee would have found

                                        -10-
material, and (3) there is a causal nexus between his opposition and the

employer’s adverse action. See Burlington N. & Santa Fe Ry. Co. v. White,

— U.S.— , — , 126 S. Ct. 2405, 2415 (2006); Antonio v. Sygma Network, Inc., 458

F.3d 1177, 1181 (10th Cir. 2006). An employer can rebut a prima facie showing

by demonstrating a legitimate, non-pretextual reason for its conduct. Domai’s

retaliation claim suffers from the same weaknesses as his discrimination claim.

      First of all, it is not obvious that Domai engaged in protected opposition to

discrimination. See 42 U.S.C. § 2000e-3(a). His charge that his new supervisor

was racially biased is based on unsubstantiated hearsay (Domai says a friend who

previously worked for the supervisor, told him she was prejudiced) and no

admissible evidence in the record supports the conclusion that the supervisor

engaged in discriminatory conduct in the past. M oreover, both persons to whom

Domai claims to have complained about the new supervisor deny that he raised

the issue of racial bias. W hile a credible complaint about a supervisor’s racial

animus could constitute protected opposition to discrimination, here we have only

the most indirect and cursory claim of either bias or protected conduct.

      Even assuming Domai engaged in protected conduct, he has failed to show

a causal nexus between such conduct and the alleged adverse employment actions

in this case. Domai claims he was placed in Job-in-Jeapordy status and ultimately

terminated for his comments about the new supervisor. First, there is no evidence

on the record that Domai’s new supervisor w as even aware of his comments to

                                         -11-
management (i.e., W endy Greene and Tina Ison). Second, even if the new

supervisor knew about Domai’s concerns, that fact establishes nothing unless

Domai can link it up to some retaliatory behavior by her. H e has not done so.

      Domai alleges tw o possible retaliatory actions in this case: (1) his

placement in Job-in-Jeapordy Status and on various performance action plans, and

(2) his ultimate termination. Each is analyzed in turn.

Job In Jeopardy/Action Plans

      Domai admits he made the prohibited international phone calls that

prompted his new supervisor to place him on Job-in-Jeopardy status, and this

form of discipline was permitted under company policy. M oreover, he admits to

the substandard performance that led Discover to place him on action plans

directed at his Pure Flow and A/R numbers. Since Discover offered a legitimate

reason for its disciplinary actions against him, the burden was on Domai to prove

that this reason was pretextual. Trujillo, 157 F.3d at 1215.

      As the district court observed, Discover gave Domai repeated counseling

and opportunities to meet the required standards, which he consistently failed to

achieve. The only evidence in the record that discrimination was “the real

reason” for Domai’s discipline is his own testimony (based on yet another

employee’s comments) that a supervisor was racially prejudiced. But as we have

consistently held, unsupported assertions by an employee that an employer’s




                                         -12-
actions are based on his race are insufficient to avoid summary judgment. See

Sim m s v. O klahom a, 165 F.3d 1321, 1329 (10th Cir. 1999).

Ultimate Termination

      Domai’s evidence of the requisite causal link between his complaints about

his supervisor and his ultimate termination is even more tenuous. Domai was

transferred to another team nearly a year before he was terminated, and no

evidence suggests that his new team leader somehow retaliated against him for

stray comments he made about his previous supervisor months earlier. “Unless

there is very close temporal proximity between the protected activity and the

retaliatory conduct, the plaintiff must offer additional evidence to establish

causation.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.

2001). Domai has failed to offer any such evidence.

      In sum, the undisputed facts do not suggest that Discover was aware of

Domai’s complaint against his supervisor or that the supervisor had anything but

legitimate reasons for placing him on one of the three action plans to which he

was subject. The evidence is overwhelming, moreover, that Domai repeatedly

failed to meet the company’s objective performance standards. In any event,

Domai has failed to show any causal connection between his comm ents and

Discover’s ultimate personnel decision.

      If that were not enough, Domai even conceded to management that his

performance was substandard, and rather than claiming he was being

                                          -13-
discriminated against, he promised to do better. Just days before he was

terminated, Domai admitted “all the efforts that I have been making . . . have not

produced what I wanted them to. I feel bad because I feel like I have let you []

down because you guys have been anything but fair and understanding [sic] to me

. . .” R. at 218. W hile he explains after the fact that he was trying to protect his

job with these comments, Domai’s own words highlight the absence of probative,

material evidence in support of his retaliation claim.

      The district court did not err in granting summary judgment on this claim.

                                   IV. Conclusion

      For the foregoing reasons, we AFFIRM the district court order granting

summary judgment to Discover.

                                         Entered for the Court,

                                         Timothy M . Tymkovich
                                         Circuit Judge




                                          -14-
