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

                             FOR THE TENTH CIRCUIT                          October 23, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JAGDISH C. LAUL,

      Plaintiff - Appellant,

v.                                                            No. 16-2245
                                                  (D.C. No. 1:15-CV-00749-JAP-KBM)
LOS ALAMOS NATIONAL                                             (D. N.M.)
LABORATORIES,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
                 _________________________________

      In this employment case premised on age and national-origin discrimination,

Jagdish C. Laul appeals from a district court order that entered summary judgment in

favor of his employer, Los Alamos National Laboratories (LANL). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                       BACKGROUND

       Laul is a naturalized U.S. citizen from India. He began working for LANL as a

safety engineer in 1999, when he was 60 years old. As early as his 2007 performance

evaluation, supervisors began noting that his “final work products typically need[ed]

significant rework for grammar, and in some cases standard format and acceptable

content.” Aplt. App., Vol. II at 92. Nevertheless, in early 2010, Laul was promoted to a

level four safety-basis analyst.

       Laul’s performance problems continued, however. In his September 2011 review,

his supervisor, Lisa Pansoy-Hjelvik, noted that Laul “has difficulty . . . grasping in-depth

technical details that are necessary for the safety analyst[ ] 4[’s] ability to develop

technically defensible [safety basis] documents before they are issued for internal

review.” Id. at 113. According to Pansoy-Hjelvik, Laul had trouble “distinguishing

major from trivial issues,” he “refus[ed] to accept . . . guidance from co-workers and

managers,” and he “manipulat[ed] technical discussions for personal gain.” Id.

       In addition to performance problems, LANL cited Laul for unprofessional

workplace behavior. Specifically, in 2011, Laul was given a “Notice of Corrective

Action-Written Counseling” for “unprofessional and disrespectful behavior toward” his

group leader and his team leader. Id. at 196. And in early 2012, he was given a written

reprimand for a “continued . . . pattern of unprofessional, disrespectful and disruptive

behavior.” Id. at 199.

       Laul contested the corrective-action notice and reprimand by submitting four

internal grievances to LANL, complaining that his perceived performance and behavioral

                                               2
problems were the product of “Discrimination or Harassment.” Id. at 127, 140, 155, 158.

The last such grievance was submitted in March 2012. LANL investigated Laul’s

grievances and concluded they were unfounded. Nevertheless, LANL transferred Laul to

a different work group, under the supervision of Ron Selvage.

        In May 2012, Laul was assigned to work on unreviewed safety questions (USQs),

a process that involves reviewing a nuclear facility’s license to determine if a contractor

can make changes to the facility. Laul once again had performance issues, prompting

Selvage to note in Laul’s 2012 performance review: “[Laul] has not shown the amount

of understanding of safety basis issues that should be expected from an Analyst 4. Tasks

need to be explained several times, and most of his work products need significant

revision.” Id. at 124.

        Afterward, Selvage informed the safety-basis division leader, James Miller, that

Laul “was having ongoing performance issues,” and that “at best,” Laul’s performance

was comparable to that of a level one or two analyst. Id. at 204. Miller, along with a

senior human-resources officer, David Rudolph, determined that Laul should be placed

on a performance action track (PAT) to monitor his progress. In conjunction with the

PAT, Laul was also placed on a performance improvement plan (PIP), which required

him “to address his performance deficiencies and to timely complete a set number of

USQ documents.” Id. at 205. Both the PAT and the PIP formally began on March 7,

2013.

        Starting in May 2013, Selvage and Laul had bi-weekly PAT assessment meetings.

Initially, Selvage rated Laul’s performance satisfactorily. But by August, Selvage

                                             3
learned he had been reviewing Laul’s work product after it had been revised by qualified

evaluators (QEs) and systems engineers (SEs). Selvage also learned that the USQ lead

contractor, Lance Platter, had been assigning Laul less difficult USQs to avoid Laul’s

“constant questioning” about the USQ process. Id. at 206. Consequently, Selvage

consulted with Miller and Rudolph, who approved the extension of Laul’s PAT to more

accurately assess his progress.

       By mid-October, Selvage concluded that Laul’s unedited work product on

complex USQs was deficient and that Laul was not performing at the safety-analyst 4

level. He therefore recommended to a safety-basis division leader, James Tingey, that

Laul’s employment be terminated. Tingey accepted Selvage’s recommendation and

issued a notice of intent to terminate.

       Laul appealed the notice to an associate director, William Bivens. Bivens

reviewed the appeal and approved the termination, effective December 6, 2013.

       After unsuccessfully applying for other jobs at LANL, Laul filed charges of

discrimination and retaliation with the New Mexico Human Rights Bureau. After

receiving a right-to-sue letter, Laul filed suit in federal district court, alleging violations

of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a); Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); and the New Mexico Human

Rights Act (NMHRA), N.M. Stat. Ann. § 28-1-7.

       On LANL’s motion for summary judgment, the district court addressed Laul’s

ADEA, Title VII, and NMHRA claims together in the context of each adverse action he

challenged—termination, failure to hire, and retaliation. Doing so, the district court

                                                4
concluded that Laul had failed to raise a genuine issue of material fact for trial, and it

granted LANL’s motion.

       On appeal, because Laul asserts the same evidence and arguments regardless of

the statutory basis for recovery, we will structure our analysis in the same fashion as the

district court. Thus, we first address Laul’s claim for discriminatory discharge, then his

claim for discriminatory failure to hire, and finally, his retaliation claim.

                                         DISCUSSION

                        I. Summary Judgment Standard of Review

       We review summary judgment orders de novo. Ribeau v. Katt, 681 F.3d 1190,

1194 (10th Cir. 2012). A “court shall grant summary judgment 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). “When applying this standard, we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Ribeau, 681 F.3d at 1194 (internal quotation marks omitted).

                                II. Discriminatory Discharge

A.     Prima Facie Case

       An individual may not be discharged on the basis of national origin, 42 U.S.C.

§ 2000e-2(a)(1), or age (40 years of age or older), 29 U.S.C. §§ 623(a)(1), 631(a).1 When



       1
         Our analysis of Laul’s federal claims is equally applicable to his NMHRA
claims. See N.M. Stat. Ann. § 28-1-7(A) (prohibiting an employer from discharging
or refusing to hire a qualified person because of, among other things, age or national
origin); id. § 28-1-7(I)(2) (prohibiting retaliation); Juneau v. Intel Corp., 127 P.3d
                                                                               (continued)
                                               5
a plaintiff asserts a discriminatory discharge claim based on circumstantial evidence, as

Laul does here, he must establish a prima facie case by showing “[ ]he is a member of a

protected class, [ ]he suffered an adverse employment action, and the challenged action

occurred under circumstances giving rise to an inference of discrimination.” Bennett v.

Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015); see also Salguero v.

City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004). On appeal, the parties focus on

“[t]he critical prima facie inquiry”; i.e., inference of discrimination, Plotke v. White,

405 F.3d 1092, 1100 (10th Cir. 2005) (internal quotation marks omitted). Under this

inquiry, “a plaintiff is only required to raise an inference of discrimination, not dispel the

non-discriminatory reasons subsequently proffered by the defendant.” EEOC v.

Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000). An inference of

discriminatory motive can be shown by “a variety of circumstances,” ranging from

“actions or remarks made by decisionmakers that could be viewed as reflecting a

discriminatory animus” to “the timing or sequence of events leading to [the] plaintiff’s

termination.” Plotke, 405 F.3d at 1101 (internal quotation marks omitted).

       To that end, Laul complains he was the only individual in his group who was

placed on a PAT and evaluated negatively “even though the USQ process is a

collaborative effort.” Aplt. Opening Br. at 40-41. But even so, the evidence shows that

Laul’s own work “frequently had to be rewritten” by Platter. Aplt. App., Vol. II at 204.



548, 551-52 (N.M. 2005) (applying federal burden-shifting methodology for
NMHRA discrimination and retaliation claims).

                                              6
       Laul next argues that discrimination can be inferred from his receipt of a positive

performance evaluation in 2012. This argument rests on the premise that “it is facially

illogical to randomly fire an otherwise qualified employee and thereby incur the

considerable expense and loss of productivity associated with hiring and training a

replacement.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (internal

quotation marks omitted). But while Laul’s 2012 performance evaluation indicated that

in some areas he had fully met expectations, the constant theme throughout the evaluation

was that his work required “rewrites,” “significant modifications,” and “significant

revision.” Aplt. App., Vol. II at 121, 124. Earlier evaluations likewise noted

performance issues, including that his “final work products typically need[ed] significant

rework,” id. at 92, and he had “difficulty in grasping in-depth technical details,” id. at

109.

       Nevertheless, Laul contends an inference of discrimination is demonstrated by

LANL giving him an award for saving money and publishing one of his articles. We fail

to see how such evidence by itself suggests his termination was the product of

discrimination. And Laul does not explain how the timing or sequence of these

circumstances shows his termination was motivated by discriminatory animus.

       Laul further claims an inference of discrimination is shown by the improper

extension of his PAT. But the evidence indicates it was not improperly extended.

LANL’s PAT guidelines authorize an extension “with approval from the division- or

higher-level manager” in “consultation with HR-ER.” Id. at 211. Selvage sought an

extension upon realizing that he had been reviewing Laul’s edited work product and he

                                              7
needed to “obtain a more accurate reading of . . . Laul’s PAT performance.” Id. at 206.

Selvage complied with the guidelines by obtaining Miller’s approval and by consulting

with Rudolph before extending the PAT.

       Finally, Laul contends the district court erroneously “required [him] to show in his

prima facie case that he [was] similarly situated” to Lawrence Garcia, another USQ

preparer who was not on a PAT. Aplt. Opening Br. at 39. This court has held that a

plaintiff alleging discriminatory discharge is not required to provide a “comparison to a

person outside of the protected class” to establish a prima facie case. Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1228-29 (10th Cir. 2000). The district court did not,

however, require any such comparison. Rather, it was Laul who suggested a comparison

to raise an inference of discrimination. See Aplt. App., Vol. III at 334 (arguing in

opposition to summary judgment that “[n]o other similarly situated employee . . .

received such strict scrutiny”); Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011)

(“One method by which a plaintiff can demonstrate an inference of discrimination is to

show that the employer treated similarly situated employees more favorably.”). The

district court merely observed that Laul failed to support his similarly-situated argument.

Laul repeats that failure on appeal, stating only that “younger, non-Indian USQ preparers

did not receive strict scrutiny from . . . Selvage.” Aplt. Opening Br. at 38. We do not

consider issues raised in a perfunctory manner, Hill v. Kemp, 478 F.3d 1236, 1255 n.21




                                             8
(10th Cir. 2007), and we “will not craft a party’s arguments for him,” Perry v.

Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).2

       We conclude that summary judgment was properly entered against Laul based on

his failure to establish a prima facie case of discriminatory discharge. But like the district

court, we will also consider whether summary judgment is alternatively warranted on the

ground that Laul has identified no genuine issue of material fact as to pretext.

B.     Pretext

       If a prima facie case of discrimination has been established, the employer must

articulate a legitimate, nondiscriminatory reason for the challenged employment decision.

See Sandoval v. City of Boulder, 388 F.3d 1312, 1321 (10th Cir. 2004). If the employer

overcomes that hurdle, the burden shifts to the employee to show that the employer’s

justification is a pretext for discrimination. Id. Pretext can be shown by demonstrating

that the stated justification is “so incoherent, weak, inconsistent, or contradictory that a

rational factfinder could conclude [it] is unworthy of belief.” Hinds v. Sprint/United

Mgmt. Co., 523 F.3d 1187, 1197 (10th Cir. 2008) (brackets and internal quotation marks

omitted).



       2
         To the extent Laul has claimed that Garcia and Platter are comparators,
neither is similarly situated. “Similarly situated employees are those who deal with
the same supervisor and are subject to the same standards governing performance
evaluation and discipline.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.
2006) (internal quotation marks omitted). Garcia occupied a lower-level position
than Laul, Aplt. App., Vol. II at 262, and Platter was the “USQ Lead,” assigning
work to Laul and critiquing his performance, id. at 203.


                                              9
       LANL justified its firing of Laul on the basis of unsatisfactory work performance.

Laul claims pretext is shown by various perceived improprieties in the PAT process. But

to the extent he advances as pretext the various minutiae of LANL’s handling of his

PAT,3 we stress that “[o]ur role is to prevent intentional discriminatory practices, not to

act as a super personnel department.” Dewitt v. S.W. Bell Tel. Co., 845 F.3d 1299, 1308

(10th Cir. 2017) (ellipsis and internal quotation marks omitted). In other words, we do

not “second guess[ ] employers’ honestly held (even if erroneous) business judgments.”

Id. (internal quotation marks omitted). Instead, the determinative question we must reach

is whether “a reasonable factfinder could rationally find [LANL’s justification for firing

Laul] unworthy of credence and hence infer that [it] did not act for the asserted non-

discriminatory reason[ ].” Bennett, 792 F.3d at 1267 (internal quotation marks omitted).

With our inquiry so focused, we turn to Laul’s assertions of pretext.

       Laul claims pretext is shown by Selvage’s reliance on subjective criteria to review

his work. Laul cites no supporting evidence, but instead surmises that subjective criteria

must have been used because “Selvage was not qualified to evaluate USQs.” Aplt.

Opening Br. at 45. Selvage testified, however, that while his managerial position did not

require the production of USQ documents, he had expertise in reviewing those

documents. And even if Selvage did rely on subjective criteria, that is insufficient by

itself to show pretext. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195


       3
         For example, Laul complains that a “second-line supervisor never signed the
PAT,” Aplt. Opening Br. at 42, and he (Laul) was refused “copies of the USQs that were
part of [a] meeting,” id. at 47.

                                             10
(10th Cir. 2006). Indeed, subjective “criteria must play some role in certain management

decisions.” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1145 (10th Cir. 2009)

(internal quotation marks omitted).

       Laul next complains he was criticized for “copying and pasting a portion of a USQ

analysis,” even though other safety analysts who used the same method were not

criticized. Aplt. Opening Br. at 46. To advance his premise, however, Laul conflates the

use of that method with the erroneous use of that method. Although other safety analysts

used the copy and paste method, Laul does not identify any evidence that he was the only

analyst criticized for erroneously using that method.

       Laul also derives pretext from Tingey’s decision to accept Selvage’s termination

recommendation. Laul complains that Tingey (1) spoke with Selvage only three times to

determine if the PAT had been successfully completed, and (2) did not review Laul’s

“USQ rebuttals even after [his] repeated request[s].” Id. at 47. Similarly, Laul complains

that Bivens affirmed his termination in just one day, even though Laul had submitted

“133 pages of rebuttal documents to review.” Id. at 48.

       First, these pretext assertions reveal little about the motivations underlying Laul’s

termination. Laul does not explain why Tingey should have spoken with Selvage more

than three times before accepting Selvage’s recommendation. Nor does Laul indicate

how the promptness of Bivens’ determination casts doubt on the legitimacy of Selvage’s

termination recommendation or Tingey’s acceptance of that recommendation.

       Second, the undisputed evidence shows that Tingey and Bivens considered the

recommendation on its merits. Specifically, Tingey testified that he reviewed Laul’s

                                             11
work product during the PAT period as well as Selvage’s bi-weekly PAT assessments,

and he consulted with a human-resources officer before accepting Selvage’s

recommendation. Bivens testified he evaluated the information Laul provided and

consulted with a human-resources officer before affirming the termination. No rational

factfinder could derive pretext from these circumstances.

       Insofar as Laul complains that Bivens “never received the specialized training

required to be a USQ Qualified Evaluator,” Aplt. Opening Br. at 48, Laul does not

indicate how that fact in any way shows he was terminated because of his age or national

origin rather than for unsatisfactory performance. “Mere conjecture that the employer’s

explanation is a pretext for intentional discrimination is an insufficient basis for denial of

summary judgment.” DeWitt, 845 F.3d at 1307 (brackets and internal quotation marks

omitted).

       Finally, Laul asserts that pretext is shown by many of the same grounds he

advanced to show an inference of discrimination. For the same reasons we rejected

Laul’s attempt to raise a genuine issue of material fact as to a prima facie case, we

likewise determine that those grounds do not create a triable issue as to pretext.

       We conclude that the district court properly entered summary judgment on Laul’s

discriminatory discharge claim based on his failure to show pretext.

                             III. Discriminatory Failure to Hire

       To establish a prima facie case of discriminatory failure to hire, “a plaintiff must

show that (1) he applied for an available position; (2) he was qualified for the position;

and (3) he was rejected under circumstances which give rise to an inference of unlawful

                                              12
discrimination.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1278 (10th Cir. 1999)

(internal quotation marks omitted). Laul argues he was “qualified for 6 . . . job postings”

based on his lengthy safety-analyst experience, which involved the preparation and

review of numerous USQs. Aplt. Opening Br. at 50. But he does not identify the

qualifications required for any of the jobs.

       “[A]t the prima facie stage, a plaintiff must show that [ ]he satisfied an employer’s

objective qualifications.” Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191

(11th Cir. 2016). Without “evidence about the jobs that became available, we simply

have no way of knowing whether the jobs were commensurate with [Laul’s] previous

duties, compensation, and rank.” Green v. City of St. Louis, 507 F.3d 662, 667 (8th Cir.

2007); see, e.g., Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004)

(concluding that the plaintiff could not establish a prima facie case of discriminatory

failure to promote without evidence “suggesting what the [employer’s] qualifications for

its [position] might have been”). Because Laul has not shown a triable issue as to his

prima facie case, summary judgment was appropriate on his failure-to-hire claim.

                                      IV. Retaliation

       To establish a prima facie case of retaliation, the plaintiff must show “(1) that he

engaged in protected opposition to discrimination, (2) that a reasonable employee would

have found the challenged action materially adverse, and (3) that a causal connection

exists between the protected activity and the materially adverse action.” Hansen v.

SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016) (internal quotation marks omitted).

If the plaintiff establishes a prima-facie retaliation case, the employer must then “come

                                               13
forward with a legitimate, non-retaliatory rationale for the adverse employment action,”

which then shifts the burden back onto the plaintiff to “show that the [employer’s]

proffered rationale is pretextual.” Id. (internal quotation marks omitted). Laul claims

LANL retaliated against him by terminating him and by not hiring him because he

submitted four internal grievances complaining of discrimination or harassment.

A.     Retaliatory Termination

       Laul’s retaliatory-termination claim fails on the third element of his prima-facie

case. In other words, he has shown no causal connection between his opposition to

discrimination and his termination. In this regard, we note that Laul submitted four

internal grievances, with the latest dated March 20, 2012. Selvage decided to recommend

Laul’s termination over a year-and-a-half later, in mid-October 2013. Given the lengthy

temporal separation between Laul’s submission of grievances and Selvage’s termination

recommendation, we cannot infer a retaliatory motive, and instead, we require that Laul

present additional evidence tying his termination to the grievances. See Ward v. Jewell,

772 F.3d 1199, 1203 (10th Cir. 2014). This, he has not done.

       Instead, Laul attempts to close the temporal gap by citing a November 13, 2013,

email to Selvage and a human-resources officer complaining of discrimination. Granted,

the email is close in time to Tingey’s November 26, 2013, acceptance of Selvage’s

recommendation and Bivens’ December 6, 2013, affirmance of the termination. But Laul

cites no evidence that either Tingey or Bivens was aware he had complained of

discrimination. Indeed, Laul testified that he did not mention discrimination to Tingey,

Aplt. App., Vol. II at 189, and Laul asserts only that Bivens did not “truly consider[ ]” his

                                             14
appeal documents, Aplt. Opening Br. at 59. It is axiomatic that an employer cannot

retaliate against an employee for protected activity the employer is unaware of. See

Kendrick, 220 F.3d at 1234-35.

       We conclude that summary judgment was properly entered in LANL’s favor on

Laul’s retaliatory-termination claim.

B.     Retaliatory Failure to Hire

       The district court concluded that Laul had shown a prima facie case of retaliatory

failure to hire based on the temporal proximity between a January 2014 letter

complaining of “harassment and discriminat[ion],” Aplt. App., Vol. III at 302, and the

dates his applications for new jobs were rejected. We decline to reach this issue, as

neither party satisfactorily addresses it. Instead, we proceed to the district court’s

alternative ruling that Laul failed to show LANL’s reason for not hiring him (lack of

qualifications) was pretextual.

       As we noted earlier, Laul cites no evidence he was qualified for the new jobs he

sought. Instead, as evidence of pretext he points out that (1) Selvage decided not to

recommend him for any of the jobs; and (2) Tingey recommended that Laul not be

interviewed for those jobs. But both Selvage and Tingey testified that their decisions

were based solely on Laul’s termination for poor performance. Laul identifies no

evidence that Selvage and Tingey did not honestly believe the legitimate,

nondiscriminatory reason they gave for their decisions or that they did not act in good

faith on their beliefs. See Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655

(10th Cir. 2013) (“In determining whether the proffered reason for a decision was [a]

                                              15
pretext[ ] [for retaliation], . . . we do not ask whether the employer’s proffered reasons

were wise, fair or correct; we ask only whether the employer honestly believed those

reasons and acted in good faith upon those beliefs.” (brackets and internal quotation

marks omitted)). Accordingly, summary judgment was properly entered on Laul’s claim

for retaliatory failure to hire.

                                       CONCLUSION

       The judgment of the district court is affirmed.
                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge




                                             16
