188 F.3d 1204 (10th Cir. 1999), 98-1355, Shorter v ICG Holdings Inc.

Docket Nº:98-1355
Citation:188 F.3d 1204
Party Name:SHELIA SHORTER, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT, v. ICG HOLDINGS, INC., A COLORADO CORPORATION, DEFENDANT-COUNTER-CLAIMANT-APPELLEE.
Case Date:August 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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188 F.3d 1204 (10th Cir. 1999)

SHELIA SHORTER, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,

v.

ICG HOLDINGS, INC., A COLORADO CORPORATION, DEFENDANT-COUNTER-CLAIMANT-APPELLEE.

No. 98-1355

United States Court of Appeals, Tenth Circuit

August 17, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 97-B-955

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[Copyrighted Material Omitted]

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Nora V. Kelly (Ronald E. Gregson, Gregson & Pixler, Denver, Colorado, on brief), Denver, Colorado, for Plaintiff-Appellant.

Paul R. Wood (James Rollin Miller and Candace M. Dunley on brief), Miller & Welch, Denver, Colorado, for Defendant-Appellee.

Before Ebel, Magill,[*] and Lucero, Circuit Judges.

Magill, Circuit Judge.

Shelia Shorter sued her former employer ICG Holdings, Inc. (ICG), claiming she was unlawfully terminated because of her race in violation of 42 U.S.C. §§ 2000e - 2000e-17 (Title VII). She also sued ICG for breach of contract. The district court granted ICG's motion for summary judgment, and Shorter appealed. We affirm.

I.

The following are the facts viewed in the light most favorable to Shorter, the nonmoving party. Shorter, a black female, joined ICG in January 1996 as a corporate recruiter in ICG's Department of Human Resources (HR). As a recruiter, Shorter was responsible for keeping track of ICG's job openings, processing resumes sent to ICG, and forwarding those resumes to the appropriate hiring managers. At the time Shorter was hired, ICG was going through a period of rapid expansion.

Shorter was hired by Patricia Lawrence, then director of HR and Shorter's supervisor. In April 1996, Lawrence left ICG, and Judy Dughman replaced Lawrence as the new director of HR. Shorter worked under Dughman's supervision until May 15, 1996, when Dughman fired her.

During the time Shorter worked for Dughman, Dughman made three race-related comments to and about Shorter. Once, while eating lunch with Shorter, Dughman asked Shorter about black men's sex organs. On another occasion, Dughman told another ICG employee that Shorter talked like people of her culture, race, or color. See Appellant's App. at 412-13.1 During a confrontation with Shorter about Shorter's job performance, Dughman told her, "You are just on the defensive because you are black." Id. at 407.

On May 15, 1996, Dughman fired Shorter. Dughman cited Shorter's deficient job performance and poor attitude as the reasons for her decision. She also told another employee that she fired Shorter because Shorter was incompetent. One or two days after firing Shorter, Dughman, apparently in a fit of anger at not being able to locate an important document in Shorter's office, referred to Shorter as an "incompetent nigger." Id. at 421.

After filing a timely charge with the EEOC and receiving a right to sue letter, Shorter filed suit against ICG alleging race and sex discrimination.2 She also

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sued for breach of contract, claiming ICG did not follow its employee policy manual when it terminated her. The district court granted ICG's motion for summary judgment.3 This appeal followed.

II.

We review the district court's grant of summary judgment de novo. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if the moving party can show that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). We view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See McKnight, 149 F.3d at 1128.

In this case, Shorter claims she was discharged because of her race in violation of Title VII. The inquiry in a Title VII case is whether the defendant intentionally discriminated against the plaintiff. See EEOC v. WilTel, Inc., 81 F.3d 1508, 1513 (10th Cir. 1996) (citing USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). A plaintiff may prove intentional discrimination in one of two ways: "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (quotation marks omitted). Shorter argues that the evidence establishes intentional discrimination under either test.

A. Direct Evidence of Discrimination

Shorter contends that Dughman's statements constitute direct evidence of discrimination. We agree with the district court that Dughman's statements do not constitute direct evidence of discrimination.

Direct evidence is "[e]vidence, which if believed, proves [the] existence of [a] fact in issue without inference or presumption." Black's Law Dictionary 460 (6th ed. 1990); see also WilTel, 81 F.3d at 1514 (noting that evidence which "require[s] the trier of fact to infer that discrimination was a motivating cause of an employment decision" is at most circumstantial evidence of discrimination, not direct evidence); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997). In contrast, statements of personal opinion, even when reflecting a personal bias or prejudice, do not constitute direct evidence of discrimination. See WilTel, 81 F.3d at 1514; Heim v. Utah, 8 F.3d 1541, 1546-47 (10th Cir. 1993); see also Ramsey v. City and County of Denver, 907 F.2d 1004, 1008 (10th Cir. 1990) (distinguishing between direct evidence of discrimination and "direct evidence of personal bias"). At most, such statements constitute only indirect or circumstantial evidence of discrimination because the trier of fact would have to infer that the bias reflected in the statements was the reason behind the adverse employment decision. See WilTel, 81 F.3d at 1514; Heim, 8 F.3d at 1547; Ramsey, 907 F.2d at 1008.

This case is similar to the situation we faced in Heim. In that case, the plaintiff accused her male supervisor of denying her job training opportunities because of her gender. Her supervisor, in an angry outburst over the plaintiff's performance of her duties, stated, "Fucking women, I hate having fucking women in the office." Heim, 8 F.3d at 1546. Plaintiff argued that this comment constituted direct evidence of discrimination. We disagreed:

Although the remark by [the supervisor] was certainly inappropriate and boorish, it was on its face a statement of [the supervisor's] personal opinion. The evidence does not show that [the supervisor] acted with discriminatory intent, only that he unprofessionally offered his private negative view of women during a

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display of bad temper at work. At best, it is only arguable that a discriminatory intent... can be inferred from the statement. This type of inferential statement is not "direct evidence" of discrimination satisfying plaintiff's burden.

Id. at 1547.

Likewise, in this case, Dughman's remarks about Shorter were statements of personal opinion. As in Heim, the statements are not direct evidence that Dughman fired Shorter because she was black. Instead, the trier of fact would have to infer Dughman's motive from her statements. See Ramsey, 907 F.2d at 1008 (holding that supervisor's stated views that certain jobs were more suitable for women than other jobs were statements of personal opinion and did not constitute direct evidence of discrimination); Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1547, 1549 (10th Cir. 1987) (holding that managers' statements that plaintiffs were too old to learn new technologies and too old to be in supervisory positions were not direct evidence of discrimination; rather, remarks were "specific instances of discriminatory statements" from which the reasons for the adverse employment decision would have to be inferred).

Because Dughman's remarks were statements of personal opinion and not statements directly relating to Shorter's termination, we conclude that Shorter has failed to present any direct evidence of discrimination.4

B. Indirect Evidence of Discrimination

In the alternative, Shorter argues that she can establish her claim of intentional discrimination indirectly by relying on circumstantial evidence of discrimination. We evaluate Shorter's claim under the familiar burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under the McDonnell Douglas framework, the plaintiff initially bears the burden of establishing a prima facie case of discrimination. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1533 (10th Cir. 1995). If the plaintiff establishes her prima facie case, the burden shifts to her employer to proffer a facially nondiscriminatory reason for the challenged employment action. See id. If the employer offers a nondiscriminatory reason, the burden shifts back to the employee to show that there is a genuine issue of material fact as to whether the employer's proffered reason is merely pretextual. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). A plaintiff can establish pretext by showing "either that a discriminatory reason more likely motivated the employer... or that the employer's proffered explanation is unworthy of credence." Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994) (quotation marks omitted) (alteration in original).

We assume without deciding that Shorter established a prima facie case of race discrimination in her termination. Thus, we consider whether ICG proffered a facially nondiscriminatory reason for Shorter's termination. See Reynolds, 69 F.3d at 1533.

ICG's proffered reason for terminating Shorter is inadequate job performance. In support of this reason, ICG offered extensive evidence of Shorter's inability and failure to do her job. Patricia Lawrence, the person who hired Shorter, testified that Shorter lacked fundamental recruiting

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skills and contacts in the field, a background which Lawrence believed Shorter possessed when she...

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