                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   August 2, 2016
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT
                                                                      Clerk of Court


 MICHAEL G. DRURY,

               Plaintiff - Appellant,

 v.                                                     No. 15-3021
                                                          (D. Kan.)
 BNSF RAILWAY COMPANY,                         (D.C. No. 2:13-CV-02282-JTM)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, LUCERO, and BACHARACH, Circuit
Judges.


      Michael Drury brought this employment discrimination action against his

former employer, BNSF Railway Company. Drury alleges that his demotion and

termination were the product of (1) race discrimination on account of his Native

American ancestry and (2) retaliation in violation of Kansas public policy.

BNSF, however, claims to have demoted and fired Drury because of his poor

performance.



      *
         This order and judgment is not binding precedent except under the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 district court granted summary judgment for BNSF, and Drury appeals.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                  I. Background

      BNSF hired Drury in 1996 as a signalman. Drury held a variety of

positions within that department, and during his first ten years with the company,

he received excellent performance reviews, bonuses, and promotions. Throughout

his tenure, he was also known as an advocate for Native American interests

among employees and potential employees of BNSF. Drury was involved with

the American Indian affinity group at BNSF, and was sent as a representative to

the Choctaw Nation to speak about employment opportunities. He mentioned his

race on his public employee profile and often spoke with his coworkers and

supervisors about his heritage.

      After several years with the railroad, Drury was promoted to Signal

Maintainer and then to Retarder Yard Specialist. In 2001, he became a supervisor

of the signal department, and in 2005 became the director of special projects

within signal. In 2006, BNSF made Drury Senior Manager of Technical Training

at the Technical Training Center (TTC) at Johnson Community College. In this

capacity, he reported to Jeffrey Abbott, general director of the TTC.

      Drury raised allegations of race and age discrimination against Abbott in

2006 based on comments Abbott had made to Drury and others. He complained

directly to Abbott, and also to other BNSF officials. After that, in the first

                                         -2-
negative performance review of his career, Drury received an overall “needs

improvement” from Abbott for the year 2006. Drury filed a formal written appeal

of this review in January 2007, alleging that Abbott’s review was retaliation for

Drury’s complaints. After an investigation, BNSF fired Abbott in March and

revised the negative performance review to an overall rating of “on target”. But

management left Drury’s needs improvement rating in the leadership category

because he had “demonstrated multiple actions that have been detrimental to the

TTC mission,” such as “not demonstrating support for leadership positions with

which you may not personally agree.” Dist. Ct. at 8.

      Because of this rating, management informed Drury he would be placed on

a Performance Improvement Plan (PIP) for leadership. Drury complained to

human resources that the PIP was continuing discrimination in violation of both

the law and BNSF policy. He sent a supplemental letter to the EEOC, and also

emailed his complaints to BNSF’s chief operating officer. The COO requested

the director of human resources meet with Drury about his concerns. After this

meeting took place, the director of human resources wrote to the COO that

“Mike’s behavior has crossed the line: he is very combative, arrogant and his

compliance with [his supervisor]’s instructions is malicious at best.” Dist. Ct. at

9. Drury filed a Charge of Discrimination alleging retaliation with the EEOC in

March 2007 and later received a right to sue letter. In April 2007, Drury

completed the PIP.

                                         -3-
      In August 2007, Scott Schafer replaced Abbott as the new director of the

TTC. Schafer issued Drury an on target rating for his year-end review for 2007.

Schafer also rated Drury on target for his mid-year and year-end reviews in 2008

and 2009. In 2010, Schafer rated Drury needs improvement in leadership because

of his handling of reporting expenses, but he still received an on target overall.

In July 2010, BNSF hired Lynne Joplin as director at the TTC. Drury began

reporting to Joplin instead of Schafer.

      In November 2010, Drury learned that one of his subordinates had used

BNSF funds to purchase items for personal use. He reported this conduct and

expressed an understanding that BNSF’s failure to detect this misuse of funds

could lead to inaccurate corporate tax returns. He also told BNSF that he thought

this type of behavior was not uncommon at the company. The initial fraud

investigation report was given to BNSF executives who were aware of Drury’s

earlier discrimination and retaliation complaints. Drury alleges that the resulting

company audit “made a lot of people look bad,” including Schafer and Jim

LeVere, the Assistant Vice President of Signal. Dist. Ct. at 12. But he also

admits that neither Schafer nor LeVere ever indicated they were upset with him.

And Drury acknowledges Joplin commended him in his performance review for

his detection and reporting of the fraud. Joplin completed Drury’s 2010 year-end

performance evaluation, which rated him on target overall and in leadership.




                                          -4-
      Drury received a negative mid-2011 review. Joplin sought feedback for

this review from Greg Britts and Jim LeVere, both of whom expressed concerns

about Drury’s performance. They said they were dissatisfied with his customer

service and that he showed little innovation in updating training programs.

LeVere told Joplin he wanted Drury to be rated needs improvement. Joplin

thought this request to issue a specific rating was both unusual and inappropriate,

so she reported LeVere to human resources. Joplin then solicited feedback from

Drury’s subordinates, including several who had been implicated in the fraud he

had previously reported to the company. Joplin reviewed all these responses and

rated Drury needs improvement in leadership. Among other things, she

specifically noted that he had bad relationships with his subordinates, had

incorrectly instructed an employee to charge operating expenses to capital

expenses, had not identified his own development goals, and had not effectively

managed a project he was supposed to be running.

      After this negative review, Schafer and Joplin worked on a performance

timeline detailing Drury’s poor performance. It is not clear when this timeline

was created, but Joplin received a draft on August 2, 2011. On August 9, she

emailed the timeline to Schafer. This timeline included a needs improvement

rating in 2006, without detailing that the rating was later revised to on target. In

late August, Joplin met with Drury. She offered him the choice between a

demotion or a new PIP. Because the demotion came with a pay cut and bonus

                                         -5-
reduction, Drury chose the PIP. Joplin placed Drury on the ninety-day PIP, which

included six areas for improvement. Joplin testified she did not know of Drury’s

earlier EEOC charges, but admits she did know of his Native American heritage.

Drury told Joplin he felt the PIP was designed to terminate him, and he claims

Joplin agreed.

      On August 31, 2011, LeVere sent an email to his own supervisor suggesting

Drury be demoted. And in October 2011, Drury was involuntarily demoted to

Engineer Interlocking Systems in LeVere’s signal department. He reported

directly to Dwight Golder. The new position paid ten percent less than Drury’s

old job and had a lower bonus. In his 2011 year-end review, Golder rated Drury

“needs improvement” overall. Drury never received a written copy of his review.

Golder never warned Drury his job was at risk. Although it is BNSF policy to

place employees on PIPs before termination, Drury was not placed on a PIP in

2011. In January 2012, LeVere emailed Golder’s supervisor instructing him to

prepare documents for Drury’s termination. Drury was terminated on January 25,

2012. Although Drury could no longer hold a managerial role at BNSF, he was

eligible to remain as a scheduled employee. But because Drury had not paid his

union dues during his salaried tenure, he could not return to a non-exempt craft

position.

      After receiving his EEOC notice of right to sue, Drury filed suit in federal

court. He sought a jury trial on his claims of illegal demotion and termination

                                        -6-
based on race and national origin discrimination and illegal retaliation for his

complaints of discrimination under Title VII, 42 U.S.C. § 1981; age

discrimination and illegal retaliation in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621–34; and retaliation in violation of

Kansas public policy. The district court entered an order granting BNSF’s motion

for summary judgment on all claims.

                                   II. Analysis

       We review the district court’s grant of summary judgment de novo. Simms

v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir. 1999). We view the evidence and

make all inferences in the light most favorable to the non-moving party. Id.

       Drury challenges the district court’s ruling on race and national origin

discrimination in violation of Title VII and retaliation in violation of Kansas

public policy. 1

       A. Race or National Origin Discrimination

       Drury alleges his termination was the product of intentional race

discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e-2(a)(1), and 42 U.S.C. § 1981. A plaintiff seeking to prove race

discrimination may do so by presenting direct evidence of discriminatory



       1
         Because his opening brief did not raise an argument about retaliation in
violation of the ADEA, we consider this claim waived. See Reedy v. Werholtz,
660 F.3d 1270, 1274 (10th Cir. 2011).

                                         -7-
motivation, such as statements made by a supervisor showing racial bias. See

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). In

the absence of direct evidence of racial discrimination, a plaintiff initially must

prove a prima facie case of discrimination based on race by showing “(1) he was a

member of a protected class; (2) he was qualified and satisfactorily performing

his job; and (3) he was terminated under circumstances giving rise to an inference

of discrimination.” Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.

2004).

         After an employee has satisfied his burden of establishing a prima facie

case of discrimination, the burden of production shifts back to the employer to

“articulate some legitimate, nondiscriminatory reason” for its termination

decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once

the employer has done so, the burden shifts back to the employee to show that the

proffered reason is pretextual. Id. at 804.

         A plaintiff may establish pretext “by providing specific facts showing that

[the employer’s] reasons for its decision are pretextual or racially motivated.”

Salguero, 366 F.3d at 1176. This may be done through a showing of “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

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

factfinder could rationally find them unworthy of credence and hence infer that

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

                                           -8-
v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005). Usually, a

plaintiff shows pretext in one of the following ways: “(1) with evidence that

defendant’s stated reason for the adverse employment action was false; (2) with

evidence that the defendant acted contrary to a written company policy

prescribing the action taken by the defendant under the circumstances; or (3) with

evidence that he was treated differently from other similarly-situated employees

who violated work rules of comparable seriousness.” Salguero, 366 F.3d at 1176.

      Here, Drury claims the district court erred by not considering

discriminatory comments made by co-employees of BNSF. He claims these

comments are sufficient to create an inference of discrimination by BNSF

managers. But the majority of the racist comments Drury points to include

statements by Jeffrey Abbott, Drury’s former supervisor who was fired, and Jesus

Quintero, Drury’s former coworker. Because neither individual was involved in

Drury’s demotion or termination, their racist comments cannot be evidence of

discriminatory animus in those decisions. See Cone v. Longmont United Hosp.

Ass’n, 14 F.3d 526, 531 (10th Cir. 1994).

      Drury argues Dwight Golder, who gave him a negative performance review

and also was involved in the decision to terminate him, was another who harbored

racial animus toward Native Americans. But in his deposition, Drury testified he

had never heard Golder make any racist comments about Native Americans. The

only evidence of Golder’s alleged animus is an affidavit presented by Drury

                                        -9-
himself for the first time in his opposition to the summary judgment motion in

which he alleged he had heard Golder make a derogatory remark about Native

Americans. The district court rejected the affidavit, finding it a sham filing that

was plainly inconsistent with Drury’s earlier deposition testimony that he had

never heard Golder express animus toward Native Americans, and thus could not

be evidence of discrimination. See Knitter v. Corvias Military Living, LLC, 758

F.3d 1214, 1218 (10th Cir. 2014). We agree that the court did not abuse its

discretion in rejecting the affidavit.

      Finally, Drury alleges both Schafer and Golder harbored bias against racial

minorities generally. He claims to have heard them make racist statements about

other minorities. Even assuming all Drury’s allegations are true, none of the

highlighted comments were about Drury or Native Americans. Instead, they are

exactly the kind of isolated or ambiguous statements unrelated to the challenged

action that we previously have held insufficient to create a jury issue. See Cone,

14 F.3d at 531 (finding negative comments made by a supervisor about older

workers in general did not support an inference of age discrimination in the

instant case).

      Turning to Drury’s arguments about indirect evidence of discrimination,

neither party argues on appeal he did not make out a prima facie case of

discrimination. Nor is there any dispute that BNSF met its burden of articulating




                                         -10-
a legitimate basis for Drury’s termination. 2 But Drury has not shown sufficient

evidence of pretext.

       First, Drury’s main argument about pretext is that four of his supervisors

lied about their knowledge of his race. Because we make all inferences in favor

of the plaintiff at this stage, we assume that those BNSF supervisors did indeed

know Drury was Native American. But even if his supervisors lied about

knowing Drury’s race, there is no precedent for the idea that a falsely claimed

lack of knowledge is enough to prove pretext. Without any showing that such

knowledge played a role in the decisions to demote or terminate Drury, or any

evidence that BNSF’s legitimate rationale for the demotion and firing was false,

this claim fails.

       Second, Drury argues his 2011 negative reviews were pretextual. He

contends his supervisors ensured his termination by giving him negative

performance reviews based on inaccurate information. Regarding his 2011 mid-

year review, Drury argues Joplin ignored previous positive performance reviews

and erroneously relied on other employees’ observations. As to his 2011 year-end


       2
         In his reply brief, Drury raises for the first time before this court the
argument that BNSF failed to provide a legitimate, non-discriminatory reason for
his termination. He alleges BNSF’s motion for summary judgment to the district
court was insufficient, and BNSF first adequately explained its reasoning only in
its reply to the response to the motion for summary judgment before that court.
But because Drury did not raise this issue in his opening brief in this court, we
consider it waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984
n.7 (10th Cir. 1994).

                                        -11-
review, Drury alleges Golder also erroneously relied on other employees’

observations, and also incorrectly relied on observations made about Drury’s

performance in his old position at TTC, rather than his post-demotion

performance in signal.

      Drury points to specifically documented admissions of his objectively good

performance. But these documents cover only the period from 2007 to 2010.

They do not rebut claims that Drury’s work deteriorated after that period of time.

And successful past performance does not support the conclusion that subsequent

negative evaluations are pretextual. Viola v. Philips Med. Sys. of North Am., 42

F.3d 712, 717–18 (2d Cir. 1994) (rejecting inference of discrimination or pretext

from negative performance review after prior positive reviews); see also

Richardson v. Gallagher, 553 F. App’x. 816, 825 (10th Cir. 2014). Even if we

assume Drury has shown his 2011 reviews were incorrect, “[e]vidence that the

employer should not have made the termination decision . . . is not sufficient to

show that the employer’s explanation is unworthy of credibility.” Simmons v.

Sykes Enters., Inc., 647 F.3d 943, 948 (10th Cir. 2011). In examining whether a

negative review is pretextual, we examine “the facts as they appear to the person

making the decision, not the plaintiff’s subjective evaluation of the situation.”

Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013). Even if, as

Drury alleges, his supervisors focused on negative comments and left out some of

the positive observations about his work, so long as they honestly believed Drury

                                         -12-
had engaged in a pattern of below-average performance and insubordinate

behavior, the reviews are not discriminatory. Drury presents no evidence

showing Joplin or Golder gave him bad performance reviews when they thought

he deserved better ones. Without this showing, Drury cannot prove pretext.

      The same analysis also applies to Drury’s complaints about his performance

timeline. Because Drury has presented no evidence the timeline reflected

anything but the honest beliefs of its authors, the timeline does not show pretext.

      Drury argues he never asked to be transferred out of the TTC, so this

explanation for his demotion was pretext. While “our summary judgment

standard requires us to view the facts in the light most favorable to the non-

moving party, it does not require us to make unreasonable inferences in favor of

the non-moving party.” Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173,

1187 (10th Cir. 2013). Evidence in the record supports BNSF’s contention that

Drury wanted to be transferred out of the department. He applied for over 100

positions outside of TTC, and told his supervisors he was seeking a way out of

that department. Drury admitted in his testimony that he was actively attempting

to leave his position. We therefore find Drury has not shown this explanation for

his transfer was pretext for discrimination.

      In sum, having considered all the evidence presented by Drury to satisfy his

summary judgment burden, we do not find any genuine dispute of material fact as

to pretext. Without a showing of pretext or evidence that he was discriminated

                                         -13-
against based on his race, Drury cannot prevail on a claim of race discrimination.

The district court did not err in granting summary judgment on the race

discrimination claim.

      B. Retaliation

      Drury also contends he was demoted and terminated in violation of Kansas

public policy. The district court held against Drury on this count as well.

      Under Kansas law, an employee has a cause of action for a wrongful

discharge in violation of public policy when he can demonstrate that a “co-

worker . . . was engaged in activities in violation of rules, regulations, or the law

pertaining to public health, safety, and the general welfare; the employer had

knowledge of the employee’s reporting of such violation prior to discharge of the

employee; and the employee was discharged in retaliation for making the report.”

Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988). An employee must satisfy this

burden by “clear and convincing evidence.” Id. Because it is often difficult to

provide direct evidence of retaliatory animus, Kansas courts look to temporal

proximity between the whistleblowing activity and the adverse employment

action. See Rebarchek v. Farmers Co-op. Elevator, 35 P.3d 892, 899 (Kan.

2001). A period of more than four months between the two actions, without

more, generally does not establish causation. Conner v. Schnuck Mkts., Inc., 121

F.3d 1390, 1395 (10th Cir. 1997). Temporal proximity, plus evidence of

satisfactory work performance and supervisor evaluations can sustain a claim.

                                         -14-
Boe v. AlliedSignal Inc., 131 F. Supp. 2d 1197, 1204 (D. Kan. 2001).

Furthermore, proof of intervening positive employment actions cuts against an

inference of causation. Trujillo-Cummings v. Pub. Serv. Co., 1999 WL 169336, at

*3 (10th Cir. Mar. 29, 1999).

       Drury asserts that he was demoted and terminated because he reported the

actions of another employee who had been defrauding the company. BNSF

disputes only whether Drury was discharged in retaliation for making the report.

We find the district court’s decision justified under Kansas law.

       First, the evidence in the record does not show Drury’s superiors reacted

negatively to his reporting of the fraud. Rather, as the district court found, they

commended him for his actions at that time.

       Second, Drury cannot make a circumstantial case based on temporal

proximity. He reported the misconduct of his coworkers in November of 2010.

He was demoted in October 2011 and fired in January 2012. These events did not

occur closely enough in time to allow the court to infer that any adverse actions

were caused by Drury’s reporting of the fraud. Again, nowhere in the record does

Drury point to any action or statement, at any time, by any decision maker that is

critical of his reporting of his coworkers’ fraud. Rather, Drury received a

positive performance review after his report of the fraud, and he was taken off his

PIP.




                                        -15-
      We affirm the district court’s grant of summary judgment on Drury’s

Kansas public policy claim.

                              III. Conclusion

      We AFFIRM the district court’s judgment.

                                                 ENTERED FOR THE COURT


                                                 Timothy M. Tymkovich
                                                 Chief Judge




                                      -16-
