716 Fed.Appx. 758 (10th Cir. 2017), 16-1494, Sotunde v. Safeway, Inc.

Docket Nº:16-1494
Citation:716 Fed.Appx. 758
Opinion Judge:Paul J. Kelly, Jr., Circuit Judge
Party Name:Abiodun SOTUNDE, Plaintiff-Appellant, v. SAFEWAY, INC., Defendant-Appellee.
Attorney:Rosemary Orsini, Orsini Law, Denver, CO, for Plaintiff-Appellant Gregory A. Eurich, Holland & Hart, Denver, CO, for Defendant-Appellee
Judge Panel:Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
Case Date:November 24, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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716 Fed.Appx. 758 (10th Cir. 2017)

Abiodun SOTUNDE, Plaintiff-Appellant,


SAFEWAY, INC., Defendant-Appellee.

No. 16-1494

United States Court of Appeals, Tenth Circuit

November 24, 2017

Editorial Note:

UNPUBLISHED OPINION (See Fed. Rule of Appellate Procedure 32.1. See also U.S.Ct. of App. 10th Cir. Rule 32.1.)

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[Copyrighted Material Omitted]

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(D.C. No. 1:15-CV-01139-MEH) (D. Colorado)

Rosemary Orsini, Orsini Law, Denver, CO, for Plaintiff-Appellant

Gregory A. Eurich, Holland & Hart, Denver, CO, for Defendant-Appellee

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.


Paul J. Kelly, Jr., Circuit Judge

Abiodun Sotunde, a naturalized United States citizen originally from Nigeria, appeals from the district court’s grant of summary judgment to his former employer, Safeway, Inc., on his claims of disparate treatment, hostile work environment, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings on certain disparate treatment claims. We affirm the grant of summary judgment to Safeway on the remaining claims.


Safeway, a grocery chain, runs a Denver Distribution Center to receive and distribute the products it sells in its retail stores. The center includes warehouses for meat, perishables, frozen foods, produce, and grocery items. At the relevant times, Donald Grambusch was the Director of Distribution. The rest of the management chain consisted of (in descending order) Managers, Superintendents, and Supervisors.

In October 2004, Grambusch hired Sotunde to work in the Produce Warehouse. In February 2005, Grambusch promoted Sotunde to Supervisor, also in the Produce Warehouse. While employed at Safeway, Sotunde earned a second bachelor’s degree in finance and a master’s degree in business administration (MBA) and objectively improved the performance of the Produce Warehouse. Nevertheless, he was never promoted above Supervisor. Sotunde resigned from Safeway’s employment in May 2013.

After he resigned, Sotunde brought this suit under Title VII and § 1981. Detailing instances of preferential treatment of white employees, he claimed he was denied promotion because of race, color, and national

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origin discrimination; he was subjected to a racially hostile work environment; he was subjected to retaliation after he complained to Safeway about unfair treatment; and he was constructively discharged. The district court, a magistrate judge presiding by consent of the parties under 28 U.S.C. § 636(c), granted Safeway’s motion for summary judgment on all claims.


"We review the district court’s grant of summary judgment de novo, applying the same standard as the district court." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). We view the evidence in the light most favorable to and draw all reasonable inferences in favor of Sotunde, the nonmoving party. Lounds v. Lincare, Inc., 812 F.3d 1208, 1220 (10th Cir. 2015). Summary judgment is appropriate "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). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe, 649 F.3d at 1194 (citation and internal quotation marks omitted).

We do not separately discuss the Title VII and § 1981 claims because they share the same legal standards. See

Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017) (retaliation); Lounds, 812 F.3d at 1221 (hostile work environment); Crowe, 649 F.3d at 1194 (disparate treatment).

I. Failure to Promote

Sotunde focuses his disparate treatment discrimination claims on three failures to promote him in 2012. All three positions— two for Manager and one for Superintendent— went to white males. The district court applied the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In that framework, "the plaintiff must first establish a prima facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, non-discriminatory ... rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant’s proffered rationale is pretextual." Crowe, 649 F.3d at 1195. For the Manager positions, the district court held that Sotunde had established his prima facie case but had not presented sufficient evidence of pretext. For the Superintendent position, it held that he had not established a prima facie case.

A. Manager Positions

i. Factual and Legal Background

In April 2012, Safeway posted two Manager positions at the Denver Distribution Center. The postings required a four-year college degree in logistics or seven years of related work experience. Sotunde applied, and Safeway’s talent acquisition team identified him as a candidate who should proceed to the next step in the process. Grambusch decided who to interview and who would get the jobs. He did not select Sotunde for an interview. Ultimately, he awarded the positions to Richard Pawelcik, a white Denver Distribution Center employee with twenty years’ experience, ten of them as a Supervisor, and Jason Cesario, a white out-of-state candidate who had managed warehouse operations for Chrysler and had previously worked for Safeway in a California distribution center.

The district court held that Sotunde had established a prima facie case and that

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Safeway had proffered legitimate, non-discriminatory reasons— that the " ‘candidates chosen had far greater potential for success ... [and] had more relevant warehouse management and leadership experience than Sotunde,’ " and that Safeway "had concerns about [Sotunde’s] leadership and communication skills." Aplt. App., Vol. 2 at 517 (quoting id., Vol. 1 at 53). The district court then held that Sotunde had failed to offer evidence that would allow a reasonable jury to find that Safeway’s proffered reasons were a pretext for discrimination.

"[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 unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). A plaintiff may establish pretext by showing "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." Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005) (internal quotation marks omitted). "[P]laintiffs are not limited in their proof on this score; pretext can be shown in any number of ways...." Orr v. City of Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008). "[A]t the summary judgment stage, the inference of discrimination permitted by evidence of pretext must be resolved in favor of the plaintiff." Bryant, 432 F.3d at 1125.

ii. Evidence of Pretext

We disagree with the district court’s evaluation of the evidence and conclude that the following evidence, viewed as a whole and in the light most favorable to Sotunde, would allow a reasonable factfinder to disbelieve Safeway’s asserted explanations for not interviewing him for the Manager positions.1

a. Qualifications

"An employer’s failure to give more than sham or pro forma consideration to a candidate or his or her qualifications, coupled with other circumstantial evidence of discriminatory intent, can demonstrate pretext." Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1251 (10th Cir. 2002). "While it is the employer’s understanding of an employee’s qualifications that counts," a "reasonable inference that [the successful candidate’s] qualifications were unreasonably inflated ..., while plaintiff’s were unreasonably denigrated," can be relevant to a pretext inquiry. Id. at 1252.

From an educational standpoint, a reasonable juror could find Sotunde was more qualified than either successful candidate. Pawelcik had no college degree, and it appears that Cesario had a bachelor’s degree in business. But Sotunde had two bachelor’s degrees and an MBA. And from a performance standpoint, Sotunde produced evidence that he met his individual and department goals and increased efficiency in the Produce Warehouse, and the talent acquisitions team identified him as a

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candidate who should proceed. Nevertheless, Grambusch did not offer him an interview. Moreover, Grambusch later asserted he had concerns about Sotunde, but as discussed below, successful candidate Pawelcik suffered from deficits comparable to ones Grambusch identified with regard to Sotunde.

These discrepancies could lead a reasonable juror to conclude that Grambusch gave only pro forma consideration to Sotunde’s application and/or unreasonably inflated the successful candidates’ qualifications while unreasonably denigrating Sotunde’s.

b. Procedural Irregularities

"[D]isturbing procedural irregularities can satisfy the requirements of a pretext claim." Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1220 (10th Cir. 2002) (internal quotation marks omitted).

The job postings in the record show that Safeway managerial...

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