                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUL 18 2001
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 LEROY GLOVER, JR.,

          Plaintiff-Appellant,

 v.                                                        No. 00-3266
                                                            (D. Kan.)
 NMC HOMECARE, INC., a Delaware                      (D.Ct. No. 98-CV-2477)
 corporation, d/b/a Fresenius Medical
 Care North America,

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before HENRY,Circuit Judge, and HOLLOWAY and BRORBY, Senior Circuit
Judges.



      Mr. Glover appeals from the district court’s grant of summary judgment in

favor of his former employer, NMC Homecare, Inc. (“NMC Homecare”). Mr.

Glover challenges the district court’s decision on his claims of hostile work

environment in violation of 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), racial




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
discrimination in violation of Title VII and 42 U.S.C. § 1981 (“Section 1981”),

and “whistleblower” retaliatory discharge in violation of Kansas state law. 1 We

have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.



                                    BACKGROUND

       From September 1996 until his termination in May 1998, Mr. Glover

worked for NMC Homecare in its Billing Center in Lenexa, Kansas (“Kansas

Billing Center”). The Kansas Billing Center billed and collected for the services

provided by the NMC Homecare Renal Support Centers (“Renal Support

Centers”). NMC Homecare had five Renal Support Centers located in: (1)

Merriam, Kansas; (2) Anaheim, California; (3) Charlotte, North Carolina; (4)

Houston, Texas; and (5) Monroe, Louisiana. The Renal Support Centers accepted

call-ins for prescription medications, verified insurance information, completed

portions of paperwork and mixed patient’s prescriptions.



       NMC Homecare hired Mr. Glover, an African-American male, in September

1996, as one of two “team leaders” in the Kansas Billing Center. When he was



       1
          Mr. Glover does not appeal, and we do not address, the district court’s grant of
summary judgment in favor of NMC Homecare on Mr. Glover’s claims of intentional
infliction of emotional distress and disability discrimination.


                                            -2-
hired, the teams were organized based on the type of therapy billed. One team

billed for Intra-Dialytic Parenteral Nutrition Therapy, a nutrition supplement for

individuals with end stage renal disease, and the other team billed for Homecare

Services. By the spring and summer of 1997, following corporate changes, the

teams were re-structured around the two separate computer billing systems used

by the Kansas Billing Center. Mr. Glover supervised the team billing “System

36” accounts; Ms. Sarratt supervised the team billing “MESTA” accounts.



      In April 1997, NMC Homecare promoted Dr. Schwebke, who was a

manager of its pharmacy operations, to the position of Intra-Dialytic Parenteral

Nutrition Director of Operations. She was responsible for the Renal Support

Centers. Shortly thereafter, Ms. Allen, who was the Medicare Reimbursement

manager and hired Mr. Glover, moved into the position of Kansas Billing Center

manager. She reported to Mr. Roy, the Director of Finance. Mr. Glover

continued to report directly to Ms. Allen.



      In June 1997, Dr. Schwebke learned of a potential problem with the

Charlotte, North Carolina Renal Support Center’s completion of “certificates of

medical necessity,” a specific Medicare Program form describing a patient’s

medical condition. Dr. Schwebke immediately contacted the Corporate


                                         -3-
Compliance Department to report the paperwork problem, and went to the

Charlotte branch to investigate the situation. In July 1997, Mr. Glover

independently discovered the same potential problem and reported it to

individuals in the Kansas Billing Center’s Homecare Division; he did not,

however, disclose the problem to the Intra-Dialytic Parenteral Nutrition Division

in which he worked. As a result of Mr. Glover’s report (“July report”), the head

of the Homecare Division knew about the potential problem before the head of

the Intra-Dialytic Parenteral Nutrition Division. Ms. Allen subsequently told Mr.

Glover that the head of the Division where Mr. Glover worked was upset that he

learned of the problem after the head of the Homecare Division was notified. Mr.

Glover, however, was not criticized in his annual performance evaluation for

alerting the company to the potential problems with the certificates of medical

necessity. Ms. Allen did note in his evaluation that he “needs to be aware of the

chain of command for our division.” In the summer of 1997, NMC Homecare

conducted an investigation related to the altered certificates of medical necessity.



      In August 1997, Dr. Schwebke assumed responsibility for the Kansas

Billing Center, and Ms. Allen began reporting to Dr. Schwebke. Shortly

thereafter, NMC Homecare hired Mr. Turpin to work as financial services

manager, a non-supervisory position, based out of St. Petersburg, Florida. In


                                         -4-
November 1997, the Kansas Billing Center teams were again reorganized and

structured into a “market-centered concept.” The reorganization was intended to

increase NMC Homecare’s collections and efficiency. Under the “market

centered concept,” the patient account representatives (“collectors”) were divided

into three teams, each team assigned to bill and collect for a particular Renal

Support Center. 2 All the teams reported directly to Ms. Allen.



      Pursuant to this reorganization, NMC Homecare eliminated Mr. Glover’s

and Ms. Sarratt’s team leader positions and reassigned them to new, non-

supervisory positions. Mr. Glover was “demoted” to the position of “Critical

Accounts Specialist” to collect difficult Medicare accounts contained in the

computer billing system “System 36.” 3 Mr. Glover was not trained on the

“MESTA” billing system. Ms. Sarratt, the other former team leader, was

reassigned to the newly created position of Senior Patient Account


      2
          Prior to the November 1997 reorganization of the Kansas Billing Center, only
three of the five Renal Support Centers remained.

      3
         Mr. Glover claims his reassignment was a demotion because he was isolated, no
longer supervised other employees and shared the same responsibilities as the employees
he formerly supervised. NMC Homecare contends he was transferred to a lateral position
because his income and benefits did not change. Because we view the evidence in the
light most favorable to Mr. Glover, the non-moving party, we assume, without deciding,
his new position was a demotion.


                                           -5-
Representative.



      In the first week of December 1997, Mr. Glover told a co-worker that he

was twice sexually harassed by Mr. Turpin when he went to Mr. Turpin’s hotel

room after work to discuss business. According to Mr. Glover, Mr. Turpin

physically touched him, watched him urinate, and made sexually suggestive

remarks. Glover resisted Mr. Turpin’s sexual advances.



      After Mr. Glover told his co-worker about the sexual harassment, the co-

worker notified Dr. Schwebke. Dr. Schwebke reported the allegations to the

Corporate Human Resource Department (“Resource Department”). The Resource

Department directed Dr. Schwebke to ask Mr. Glover to document his allegations

in writing. Within a few days, Mr. Glover submitted two written accounts of the

incidents, which Dr. Schwebke then forwarded to the Resource Department.

After receiving Mr. Glover’s written statements, individuals from the Resource

Department interviewed Mr. Turpin, who denied Mr. Glover’s allegations of

sexual harassment. They also interviewed another potential witness to determine

whether she could corroborate a telephone conversation Mr. Glover claimed he

overheard while in Mr. Turpin’s hotel room. The witness stated she did not have

a telephone conversation with Mr. Turpin from his hotel room. The Resource


                                       -6-
Department deemed the investigation “inconclusive” after it conducted these

interviews and reviewed the receipts and expense reports from Mr. Turpin’s hotel

stay. Mr. Turpin was not terminated, but he was prohibited from having any

future verbal or physical contact with Mr. Glover. Mr. Glover admits Mr. Turpin

had no further verbal or physical contact with him after the investigation.



      At various times throughout Mr. Glover’s employment with NMC

Homecare, and beginning as early as October 1996, Mr. Glover arrived late to

work and returned late from lunch. In October 1996, Ms. Allen discussed with

Mr. Glover that he was expected to arrive at work at a set time each day. Ms.

Allen noted in Mr. Glover’s annual performance evaluation that his

“dependability” in arriving to work and meetings on time “need[ed]

[i]mprovement.” 4 Mr. Glover’s attendance and punctuality problems did not

abate, and NMC Homecare management repeatedly counseled and warned Mr.

Glover about his excessive tardiness. On April 27, 1998, Ms. Allen issued Mr.



      4
          “Needs Improvement” is defined as:

      Does not fully meet job requirements and/or performance is not consistent.
      Improvement is necessary. The level of supervision required is higher than
      would be expected for the position. An improvement/correction plan
      should be in place. Approximately 5-10% of employees will be rated in this
      category.


                                          -7-
Glover a written “Final Warning,” and placed him on a three-month warning, or

probationary, period. She explained the warning was issued because Mr. Glover

used her office without her permission, behaved insubordinately, failed to

perform his work as instructed, violated timecard and attendance policies, and

used the fax machine for non-business purposes. Mr. Glover was on notice that

his employment may be terminated if he failed to meet the terms of the warning

during the three month probationary period, including no unexcused absences or

tardiness.



      Three days later, Ms. Allen sent a second written warning to Mr. Glover

cautioning him that he had been late twice since she issued the first “Final

Warning.” She also noted two employees reported that Mr. Glover had removed

and photocopied other employees’ time cards. Ms. Allen concluded she would

give Mr. Glover “one final chance, ... [but] [a]ny further problem of any kind with

[his] performance or conduct will result in [his] immediate termination.” On May

12, 1998, Ms. Allen terminated Mr. Glover because he was “late twice coming

back from lunch in the same pay period after being warned twice in writing.”



      Mr. Glover sued NMC Homecare for hostile work environment sexual

harassment, race discrimination, disability discrimination, whistleblower


                                        -8-
retaliatory discharge and intentional infliction of emotional distress. The district

court granted summary judgment in favor of NMC Homecare on all of Mr.

Glover’s claims. Relevant to this appeal, the district court concluded Mr.

Turpin’s alleged sexual misconduct involved isolated incidents, and were

insufficient to support a claim of a hostile work environment. The district court

held Mr. Glover’s claim for race discrimination failed because he did not satisfy

his prima facie case, and, even assuming arguendo that he did make this showing,

Mr. Glover did not establish NMC Homecare’s reasons for eliminating his team

leader position and terminating him were pretextual. Finally, the district court

reasoned summary judgment in favor of NMC Homecare on Mr. Glover’s

whistleblower retaliatory discharge was appropriate, in relevant part, because Mr.

Glover failed to establish a prima facie case of retaliation and show NMC

Homecare’s reasons for discharging him were pretextual.



      We review the grant of summary judgment de novo. Steele v. Thiokol

Corp., 241 F.3d 1248, 1252 (10th Cir. 2001). “Summary judgment is appropriate

‘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.’” Id. (quoting Fed. R. Civ. P. 56(c)). Applying this standard, we view the


                                         -9-
evidence and draw reasonable inferences from that evidence in the light most

favorable to the nonmoving party. Id.



                                   DISCUSSION

      Mr. Glover challenges the district court’s grant of summary judgment in

favor of NMC Homecare on the following claims: (1) hostile work environment

caused by sexual harassment in violation of Title VII; (2) race discrimination in

violation of Title VII and Section 1981; and (3) whistleblower retaliatory

discharge in violation of Kansas state law. We address each claim in turn.



A. Hostile Work Environment

      Mr. Glover primarily argues the district court erroneously ruled on a basis

not raised in NMC Homecare’s motion and memorandum in support of summary

judgment. The district court ruled there was insufficient evidence establishing a

sexually hostile work environment; NMC Homecare argued there was no basis for

employer liability because it effected prompt remedial measures to end the sexual

harassment. Mr. Glover suggests he was “blind sided” by the district court

because he responded to NMC Homecare’s argument regarding employer liability,

and not the existence of a sexually hostile work environment. In response to Mr.

Glover’s argument, NMC Homecare suggests the district court properly


                                        -10-
considered and held Mr. Glover’s uncontroverted written accounts submitted to

Dr. Schwebke detailing Mr. Turpin’s sexual harassment were insufficient as a

matter of law to support a claim of a sexually hostile work environment. In the

alternative, NMC Homecare argues, as it did in its memorandum in support of

summary judgment, there is no basis for employer liability.



      “To survive summary judgment under Title VII, the record must support an

inference of a [sexually] hostile work environment and a basis for employer

liability.” Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000) (emphasis in

original). We resolve this claim based on the absence of employer liability,

thereby making the issue of the presence of a hostile work environment

immaterial to this appeal. 5 See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673

(10th Cir. 1998); see also Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d

1515, 1524 (10th Cir. 1997) (“[W]e are not constrained by the district court’s

conclusions, but may affirm the district court on any legal ground supported by

the record.”).




      5
         Mr. Glover claims the district court implicitly found NMC Homecare’s summary
judgment argument unpersuasive and unsupported because the district court did not rule
on that ground. Mr. Glover’s argument has no impact on this court, however, because we
review the district court’s grant of summary judgment de novo. Steele, 241 F.3d at 1252.


                                          -11-
      An employer may be vicariously or directly liable for a hostile work

environment created by its employee. See Harrison v. Eddy Potash, Inc., 158

F.3d 1371, 1376 (10th Cir. 1998); see also Hollins v. Delta Airlines, 238 F.3d

1255, 1258 (10th Cir. 2001). An employer may be vicariously liable when the

“supervisor’s harassment involves misuse of actual power.” Harrison, 158 F.3d

at 1376 (noting it is the “usual case” that a supervisor misuses actual authority)

(quotation marks and citation omitted). In addition, an employer may be

vicariously liable when the harassing employee acts with apparent authority.

Under this theory, plaintiff must allege “‘there is a false impression that the actor

was a supervisor, when he in fact was not, [and] the victim’s mistaken conclusion

[was] a reasonable one.’” Id. (quoting Burlington Indus. Inc, v. Ellerth, 524 U.S.

742, 759 (1998)) (recognizing liability under apparent authority is “the unusual

case”). Finally, under a negligence theory, an employer may be directly liable if

it fails to remedy or prevent a hostile work environment of which management-

level employees knew or should have known. See Adler, 144 F.3d at 673.



      In this instance, Mr. Glover suggests NMC Homecare should be held

vicariously liable for the sexually hostile work environment, pursuant to the

“actual” or “apparent” authority theory. In contrast, NMC Homecare suggests

negligence is the appropriate theory of liability, and, under this theory, Mr.


                                         -12-
Glover did not show NMC Homecare failed to remedy the hostile work

environment. We examine all three bases in order to determine whether NMC

Homecare is liable for a sexually hostile work environment.



1. Vicarious Liability

      Mr. Glover argues in his response memorandum to NMC Homecare’s

motion for summary judgment that Mr. Turpin possessed either “real” or

“apparent” supervisory authority. Mr. Glover submits this argument despite a

stipulated fact to the contrary in the pretrial order, which the court issued after the

completion of discovery. The stipulation states, in relevant part, “in August or

September 1997, [NMC Homecare] hired Randy Turpin into the position of

Financial Services Manager, a non-supervisory position, based out of St.

Petersburg, Florida.” (Emphasis added.) Moreover, the pretrial order listed as an

unresolved factual issue, the question of whether NMC Homecare was negligent.

The pretrial order did not identify the nature of Mr. Turpin’s authority as an

unresolved issue.



      Under these circumstances, we hold the parties’ factual stipulation is clear

and unambiguous, “is neither improvident nor would it work a manifest injustice,”

and is conclusive that Mr. Turpin lacked actual and apparent supervisory


                                         -13-
authority. 6 L.P.S. v. Lamm, 708 F.2d 537, 539-40 (10th Cir. 1983) (“This court is

... reluctant to relieve parties from the benefits, or detriments, of their

stipulations. We note that it is not our function to review the content of the

stipulations to decide their relative worth.”); see also Fed. R. Civ. P. 16(e).

Accordingly, NMC Homecare is not vicariously liable.



2. Negligence Liability

       Having concluded NMC Homecare is not vicariously liable for a sexually

hostile work environment on an actual or apparent authority theory, we consider

whether it is directly liable under a negligence theory. To determine whether an

employer is liable for negligence in allowing employees to engage in sexual

harassment, courts make two inquiries: “first, into the employer’s actual or

constructive knowledge of harassment, and second, into the adequacy of the

employer’s remedial and preventative responses to any actually or constructively



       6
          We note it is the general rule that courts deem stipulations of fact as conclusive
without additional evidentiary support in the record, “absent circumstances tending to
negate a finding of informed and voluntary assent of a party to the agreement.” In re
Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000) (quotation marks and citation
omitted). Whether relief from the stipulation should be granted or denied depends on
when the relief was requested, and whether there are other overriding rules or policy
considerations. Id. In this instance, Mr. Glover stipulated to the fact in the pretrial order
after the completion of discovery, and failed to seek withdrawal of his stipulation. Cf. id.
at 554-56.


                                            -14-
known harassment.” Adler, 144 F.3d at 673. NMC Homecare’s knowledge is not

at issue in this appeal; instead, we examine the adequacy of its remedial and

preventative responses.



      Mr. Glover advocates for the more stringent vicarious liability standard,

and fails to rebut NMC Homecare’s evidence establishing its conduct was not

negligent. See Hollins, 238 F.3d at 1258. From the record before us, it is

uncontroverted that Dr. Schwebke, upon learning of Mr. Glover’s allegations,

notified the Resource Department, collected Mr. Glover’s written accounts and

Mr. Turpin’s expense reports, and forwarded this information to the Resource

Department. The Resource Department then promptly interviewed Mr. Turpin and

another potential witness, who both denied Mr. Glover’s allegations. After

reviewing the information and conducting the interviews, the Resource

Department determined its investigation was inconclusive, but, nevertheless,

prohibited Mr. Turpin from having any further verbal or physical contact with Mr.

Glover. Mr. Glover admits Mr. Turpin had no contact with him after the

investigation. In short, when NMC Homecare learned of Mr. Glover’s harassment

allegations, it immediately investigated and effectively stopped the harassing

conduct. Based on these undisputed facts, we hold Mr. Glover failed to show a

genuine issue of material fact whether NMC Homecare is negligently liable for


                                        -15-
the alleged sexually hostile work environment.



      We affirm the district court’s grant of summary judgment in favor of NMC

Homecare on Mr. Glover’s hostile work environment claim albeit for reasons

different than those relied upon by the district court.



B. Racial Discrimination

      Mr. Glover relies on indirect evidence to support his claims of

discriminatory demotion and discharge under Title VII and Section 1981.

Pursuant to the McDonnell Douglas framework, the employee “must carry the

initial burden under the statute of establishing a prima face case of racial

discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226

(10th Cir. 2000) (quotation marks and citation omitted). Once the employee

establishes a prima facie case, “the burden then must shift to the employer to

articulate some legitimate, nondiscriminatory reason for its employment action.”

Id. (quotation marks and citation omitted). If the employer satisfies its burden of

production, the employee must then show that the employer’s justification is

pretextual – i.e., unworthy of belief. Id. at 1226, 1230. “[A] plaintiff’s prima

facie case, combined with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude that the employer


                                         -16-
unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 148 (2000).



1. Prima Facie Case

          The district court held Mr. Glover failed to establish a prima facie case of

disparate treatment regarding his demotion and termination. To establish a prima

facie case of discriminatory demotion, Mr. Glover must show: (1) “that he was

within a protected group, (2) adversely affected by defendant’s employment

decision, (3) qualified for the position at issue, and (4) that the job from which he

was demoted was not eliminated.” Jones v. Denver Post Corp., 203 F.3d 748, 753

(10th Cir. 2000) (citation omitted). A prima facie case of discriminatory

termination requires Mr. Glover to establish: “(1) he belongs to a protected class;

(2) he was qualified for his job; (3) despite his qualifications, he was discharged;

and (4) the job was not eliminated after his discharge.” Kendrick, 220 F.3d at

1229. 7



          Neither the parties nor the district court analyzed Mr. Glover’s prima facie case
          7

under these standards. The district court evaluated whether Mr. Glover proved “similarly
situated non-minority employees were treated differently,” and relied on Trujillo v.
University of Colo. Health Sciences Ctr., in which we summarized a district court’s prima
facie requirement. 157 F.3d 1211, 1215 (10th Cir. 1998) (“The district court found that
Plaintiff met his initial burden of establishing a prima facie case of racial discrimination
by showing (1) that he is a member of a racial minority, (2) that he suffered an adverse
employment action, and (3) that similarly situated employees were treated differently.”).
It is doubtful Mr. Glover could establish a prima facie case of discriminatory demotion

                                            -17-
2. Legitimate, Nondiscriminatory Reason for Demotion and Discharge

      The burden shifts to NMC Homecare to provide a legitimate,

nondiscriminatory reason for demoting and discharging Mr. Glover. NMC

Homecare explains it demoted Mr. Glover to “Critical Accounts Specialist”

because it reorganized the Kansas Billing Center and eliminated both team

leaders’ positions. NMC Homecare states it discharged Mr. Glover because he

was consistently tardy after he was issued written warnings prohibiting such

behavior. NMC Homecare therefore has articulated legitimate, nondiscriminatory

reasons for demoting and terminating Mr. Glover.



3. Pretext

a. Demotion

      Mr. Glover argues he presented sufficient evidence demonstrating NMC

Homecare’s reasons for demoting him were pretextual. According to Mr. Glover,

NMC Homecare’s reorganization was “not justified,” and its rationale for the

restructuring, i.e., to increase the company’s efficiency and collections, is

inconsistent with the fact that Mr. Glover’s billing team had already dramatically



because his team leader job, like Ms. Sarratt’s, was eliminated when the Kansas Billing
Center was reorganized. However, for purposes of this appeal, we focus our analysis and
disposition on Mr. Glover’s argument that NMC Homecare’s reasons for demoting and
terminating are pretextual.


                                         -18-
improved its collections. He points to NMC Homecare’s abandonment of its

restructuring efforts only two months after he was terminated, restoration of a

team leader organization, and decision to promote Ms. Sarratt back to a

supervisory position, as further evidence its decision to reorganize and demote

him are unworthy of credence. Mr. Glover also opines, without factual support,

his new position “would eventually work itself to an end” once he collected all

the delinquent accounts, because NMC Homecare did not offer to retrain him on

the “MESTA” computer billing system. In essence, Mr. Glover insinuates NMC

Homecare’s reorganization rationale is pretextual because the reorganization was

economically unnecessary, quickly abandoned, and masterminded to isolate him

from other employees and eventually eliminate his position.



      Mr. Glover’s conjecture the reorganization was not necessary fails to create

a genuine issue of material fact that NMC Homecare’s reasons for reorganizing

and demoting him is pretextual. The record clearly shows NMC Homecare was

undergoing and responding to corporate and management changes, and

restructured its teams several times within a short time period. Mr. Glover’s

opinion and conclusory allegation the reorganization was not economically

“justified” merely attempts to substitute his judgment, based on his limited

knowledge of one billing team’s improved collection efforts, for that of the


                                        -19-
employers. See L&M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284,

1287 (10th Cir. 2000) (“Unsupported conclusory allegations ... do not create a

genuine issue of fact.”).



      Mr. Glover’s evidence that his team increased collections also does not

show NMC Homecare’s reasons for restructuring are unworthy of belief. Shortly

after Dr. Schwebke assumed responsibility for the Kansas Billing Center, the

reorganization was implemented to increase the company’s overall efficiency and

profitability. Dr. Schwebke and Ms. Allen believed the “market centered

concept” would improve efficiency because it assigned one team from the Kansas

Billing Center to one particular Renal Support Center, in order to eliminate

previous confusion resulting from “try[ing] to figure out which [billing] system

the patient was on.” Ms. Allen also testified Mr. Glover was transferred to his

new position to collect on difficult Medicare accounts worth over six million

dollars, thereby increasing NMC Homecare’s collections. As such, Mr. Glover’s

evidence casts no doubt on NMC Homecare’s efficiency rationale, and merely

questions the economic wisdom of its reorganization and restoration of a team

leader system eight months later. We consistently recognize, however, courts “are

not in the position of determining whether a business decision was good or bad.

Title VII [and Section 1981 are] not violated by the exercise of erroneous or even


                                        -20-
illogical business judgment.” Sanchez v. Philip Morris Inc., 992 F.2d 244, 247

(10th Cir. 1993) (citations omitted).



      Similarly, Mr. Glover’s supposition his job would end once he settled all

the critical accounts, and his evidence that NMC Homecare never offered to

retrain him on the “MESTA” computer billing system fails to evince pretext. Ms.

Allen noted in Mr. Glover’s annual performance evaluation that “[w]hen

[MESTA] classes are available, he will be included in sessions for infusion.” She

testified that seats in the “MESTA” classes were oftentimes unavailable, and

when there were available openings, the Intra-Dialytic Parenteral Nutrition

Division used those seats for the “branch personnel because they had to key

tickets in.” Mr. Glover’s work, unlike the branch personnel, did not require him

to use the “MESTA” billing system. In fact, his new position required him to

settle over six million dollars in uncollected accounts contained exclusively in the

“System 36” billing system. Mr. Glover merely speculates he would not be given

more assignments on the “System 36” billing system, or retrained on another

billing system in the future. See Branson v. Price River Coal Co., 853 F.2d 768,

772 (10th Cir. 1988) (“[M]ere conjecture that [the] employer’s explanation is

pretext ... is an insufficient basis for denial of summary judgment.”). Workforce

reorganizations implemented for the purpose of improving profits and efficiency,


                                        -21-
and the training appropriate for an employee to achieve such results, are within

the province of the employer’s judgment. This court will not second guess such

judgment. See Kendrick, 220 F.3d at 1233.



b. Termination

      Mr. Glover also claims he provided sufficient evidence showing NMC

Homecare’s reasons for terminating him are pretextual. Mr. Glover raises two

arguments: first, NMC Homecare should not monitor his tardiness, nor require

him to use a timecard, because he is a salaried employee who performs his work

and receives no overtime compensation; and second, he was disparately treated

because he was terminated for tardiness, but Ms. Sarratt, who was also frequently

tardy, was not discharged.



(i) Salaried Employee

      Mr. Glover asserts NMC Homecare should neither be concerned with his

tardiness, nor require him to use a timecard, because he is a salaried, non-hourly

employee who does not receive overtime. Dr. Schwebke explained, however, that

NMC Homecare experienced ongoing problems with salaried employees arriving

to work late, leaving early, and taking extended lunches. NMC Homecare

believed this behavior by salaried employees “set a bad example.” As a result,


                                        -22-
NMC Homecare expected all employees, except clinical reimbursement personnel,

to time in and out. NMC Homecare presented overwhelming evidence its

requirement that salaried employees use time cards and not be late was a

legitimate business decision. Mr. Glover merely questions the sagacity of NMC

Homecare’s business practice. We conclude it is the employers’ prerogative to

deem punctuality imperative to business operations and to require employees,

including salaried employees, to use time cards. This court is ill-suited to

question such business judgment. Kendrick, 220 F.3d at 1233.



(ii) Disparate Treatment

       Mr. Glover argues he was treated differently than Ms. Sarratt, who,

according to Mr. Glover, was also repeatedly tardy but was not terminated. His

only evidence of disparate treatment is an affidavit signed by Ms. Berg, a hourly,

nonsupervisory employee working on Mr. Glover’s billing team. 8 Ms. Berg’s

affidavit states, in relevant part:

       [D]uring the same period of time that Leroy Glover was being
       reprimanded by NMC Homecare for excessive tardiness, Sheila
       Sarratt, a similarly situated white employee, was equally, if not more


       8
         The district court noted Mr. Glover failed to establish Jammie Berg was
competent to testify about the comparative attendance and tardiness of Mr. Glover and
Ms. Sarratt, and their respective discipline. Ms. Allen, in an affidavit, states Ms. Berg
lacked responsibility for and authority to monitor the attendance of other employees.


                                            -23-
      tardy, or late, with regard to her coming to and leaving work, as well
      as leaving and returning from lunch. However, to affiant’s
      knowledge, Sheila Sarratt was not reprimanded on the same basis as
      Leroy Glover, and Sheila Sarratt certainly was not terminated ....

      That after Leroy Glover was terminated from his employment with
      NMC Homecare in May, 1998, the excessive tardiness of Sheila
      Sarratt became even greater than it was during the time period that
      Leroy Glover was still employed at NMC Homecare.... To my
      knowledge, she was not reprimanded by Judy Allen.

It is undisputed Ms. Berg was not responsible for disciplining employees and

lacked access to the disciplinary records of NMC Homecare’s employees.



      An employee may “show pretext on a theory of disparate treatment by

providing evidence that he was treated differently from other similarly situated,

nonprotected employees who violated work rules of comparable seriousness.”

Kendrick, 220 F.3d at 1232 (emphasis added). “An employee is similarly situated

to the plaintiff if the employee deals with the same supervisor and is subject to

the same standards governing performance evaluation and discipline.” Id.

(quotation marks and citation omitted). In determining whether an employee is

similarly situated to the plaintiff, “[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. at 1232

(quotation marks and citation omitted). Trivial or accidental differences in

treatment, or those explained by a nondiscriminatory motive, do not show the

                                         -24-
employer’s reasons for the adverse employment action are pretextual. Id.



       Although Mr. Glover and Ms. Sarratt were tardy and each received a “Final

Warning Notice,” their employment circumstances are distinguishable in

significant respects. See id. at 1233 (noting the persuasive value of the

comparative evidence is diminished when the employer takes relatively severe

disciplinary action against both employees). In Mr. Glover’s case, three days

after he received his “Final Warning Notice,” Ms. Allen sent him a second written

warning explaining that he had already been late two times since being placed on

probation, and other employees saw him remove and photocopy their time cards.

Less than two weeks after Mr. Glover received his second written warning, he

was late twice returning from lunch. Ms. Sarratt’s breach of NMC Homecare’s

tardiness rule is substantially different from Mr. Glover’s transgressions. There is

no evidence indicating Ms. Sarratt violated the terms of her “Final Warning,” or

was issued further written warnings. 9 In fact, Dr. Schwebke testified that after

Ms. Sarratt received her warning, Ms. Sarratt “shaped up” and no longer had

tardiness or absentee problems. Accordingly, Ms. Sarratt and Mr. Glover did not

breach work rules of “comparable seriousness” because Ms. Sarratt’s tardiness


       9
         Assuming without deciding Ms. Berg’s affidavit is admissible, she does not
speak to whether Ms. Sarratt’s tardiness continued after Ms. Sarratt received her written
final warning.

                                           -25-
ceased after receiving her warning, while Mr. Glover received multiple written

warnings, violated the terms of his probation period, and, despite these warnings,

returned late to work two times within a short time frame. Id. at 1233. “A

company must be allowed to exercise its judgment in determining how severely it

will discipline an employee for different types of conduct.” Id. We conclude Mr.

Glover’s claim of disparate treatment fails to create a genuine issue of material

fact that NMC Homecare’s reason for terminating him is unworthy of belief.



      Even viewing the evidence and construing reasonable inferences in the light

most favorable to Mr. Glover, we hold Mr. Glover failed to show a genuine issue

of material fact that NMC Homecare’s reasons for demoting and terminating him

are pretextual. We therefore affirm the district court’s grant of summary

judgment in favor of NMC Homecare on Mr. Glover’s Title VII and Section 1981

race discrimination claims.



C. Whistleblower Retaliatory Discharge

      Mr. Glover alleges he was discharged in retaliation for his July report of

problems with the Charlotte, North Carolina Renal Support Center’s completion

of certificates of medical necessity. To show a prima facie case of

whistleblowing under Kansas state law, an employee bears the burden of proving:


                                        -26-
      [(1)] A reasonably prudent person would have concluded the
      employee’s co-worker or employer was engaged in activities in
      violation of rules, regulations, or the law pertaining to public health,
      safety, and the general welfare; [(2)] the employer had knowledge of
      the employee’s reporting of such violation prior to discharge of the
      employee; and [(3)] the employee was discharged in retaliation for
      making the report.

Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988). To recover for retaliatory

discharge, an employee must prove that the discharge was “based on” the

employer’s intent to retaliate, but employees are not obligated to show retaliation

was the employer’s “sole motive” for the termination. See Brown v. United

Methodist Homes for the Aged, 815 P.2d 72, 88 (Kan. 1991) (worker’s

compensation claim); see also Lierz v. Coca Cola Enters., Inc., 36 F. Supp. 2d

1295, 1301 (D. Kan. 1999) (whistleblower claim); Ortega v. IBP, Inc., 874 P.2d

1188, 1194 (Kan. 1994) (“The basis of both workers compensation retaliation

cases and whistle-blowing retaliation cases is the employer’s bad motive in

discharging the employee.”). An employee must prove his whistleblowing claim

“by a preponderance of the evidence ... [that is] clear and convincing in nature.”

Lytle v. City of Haysville, 138 F.3d 857, 869 (10th Cir. 1998) (noting the Kansas

Supreme Court stated, “[w]e find no justification for applying different standards

of proof in whistle-blowing and workers compensation retaliatory discharge

cases”) (quotation marks and citation omitted). Evidence “is clear if it is certain,

unambiguous, and plain to the understanding. It is convincing if it is reasonable


                                         -27-
and persuasive enough to cause the trier of facts to believe it.” Id.



      Mr. Glover claims NMC Homecare began retaliating against him in a series

of adverse events culminating in his discharge because he made his July report to

high ranking management employees at the Kansas Billing Center. We presume,

although it is unclear from his appellate brief and his memorandum in response to

NMC Homecare’s motion for summary judgment, Mr. Glover believes the

following evidence establishes his prima facie case of whistleblower retaliatory

discharge: (1) he was “admonished” by Ms. Allen in his annual review for failing

to obey the chain of command when he reported the potential problem with the

certificate of medical necessity paperwork to managers outside his department;

(2) a co-worker accused him of sexual harassment, and Ms. Allen was involved

with the investigation of those allegations; (3) the Kansas Billing Center was

reorganized and he was transferred to a new position; (4) Ms. Allen continued to

reprimand and issue written warnings to him due to his tardiness; and (5) he was

discharged.



      Mr. Glover’s annual performance evaluation is far from “clear and

convincing” evidence that his termination eight months later, and ten months after

his July report, was in retaliation for apprizing NMC Homecare management of


                                         -28-
the paperwork problem in the Charlotte, North Carolina Renal Support Center.

See Lytle, 138 F.3d at 869. Notably, the evaluation contained absolutely no

criticism of the contents of Mr. Glover’s disclosure, or for bringing the problem

to the company’s attention. Ms. Allen included one comment informing him that

he needs to be cognizant of his division’s “chain of command,” but rated his

overall “communication skills” as commendable. 10 Indeed, the evaluation form

mandated Ms. Allen to consider whether Mr. Glover “[c]ommunicated

information to appropriate people in a timely basis.” (Emphasis added.) The

evidence is not of a clear and convincing nature in Mr. Glover’s favor because we

can only speculate from his favorable evaluation what, if any, impact his July

report had on his termination.



      Mr. Glover’s additional evidence also fails to establish his discharge was in



      10
         Ms. Allen rated Mr. Glover’s “communication skills” as “meets requirements.”
“Meets requirements” is defined as:

      Consistently meets and may occasionally exceed requirements. Levels of
      quality, quantity, job knowledge and overall performance consistently meet
      expectations to perform the job. Minimal supervision is required. In a high
      performance company such as ours it is expected that the vast majority of
      employees, 75-80%, will achieve this commendable performance level.

(Emphasis added.) Mr. Glover stipulated that he reported the paperwork problem to
individuals in another Division of the Kansas Billing Center.


                                         -29-
retaliation for making his July report to NMC Homecare management. The

precise evidence Mr. Glover argues shows retaliation actually cuts against his

claim. Ms. Allen’s involvement in a co-worker’s claim of sexual harassment

against Mr. Glover does not suggest Ms. Allen retaliated against Mr. Glover for

his July report. Ms. Allen merely investigated the claim, and, in fact, deemed the

investigation “inconclusive.” Furthermore, the reorganization of the entire

Kansas Billing Center and the warnings he received for his undisputed tardiness

fail to show, in a clear and convincing nature, that his termination was in any way

connected to, let alone in retaliation for his July report. Accordingly, we hold

Mr. Glover failed to establish a prima facie case of whistleblower retaliatory

discharge under Kansas state law.



      In sum, we AFFIRM the district court’s grant of summary judgment in

favor of NMC Homecare on Mr. Glover’s claims of hostile work environment,

racial discrimination and whistleblower retaliatory discharge.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Senior Circuit Judge




                                        -30-
