Cross v. The Home Depot

Decision Date08 December 2004
Docket NumberNo. 03-1070.,03-1070.
Citation390 F.3d 1283
PartiesConail CROSS, Plaintiff-Appellant, v. THE HOME DEPOT, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

William R. Hess, Los Angeles, CA, for Plaintiff-Appellant.

Daniel E. Friesen (Christine K. Lamb, with him on the brief), of Hale Hackstaff Friesen, LLP, Denver, CO, for Defendant-Appellee.

Before SEYMOUR and BRISCOE, Circuit Judges, and PAYNE,* District Judge.

SEYMOUR, Circuit Judge.

Conail Cross filed suit against his employer, The Home Depot, alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981; retaliation in violation of 42 U.S.C. § 2000e-3; breach of an implied covenant of good faith and fair dealing; and intentional infliction of emotional distress. The district court granted summary judgment in Home Depot's favor on all claims except race discrimination in violation of Title VII. After one day of trial on his remaining claim, Mr. Cross voluntarily dismissed it with prejudice. He appeals the grant of summary judgment on his Title VII and § 1981 claims. We affirm in part, reverse in part, and remand for further proceedings on Mr. Cross' § 1981 claim.


We review the grant of summary judgment de novo and apply the same legal standards as those utilized by the district court. Viernow v. Euripides Dev. Corp., 157 F.3d 785, 792 (10th Cir.1998). Summary judgment is only permissible where "pleadings, depositions, ... and admissions ..., together with the affidavits, ... show that there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "The factual record and all reasonable inferences therefrom must be viewed in the light most favorable to the party opposing summary judgment." Viernow, 157 F.3d at 792. Viewed in this light, the record reflects the following.

Mr. Cross, who is African-American, began working for Home Depot in California in 1988. His original position was that of Sales Associate, but in 1992 he received a promotion to Assistant Store Manager (ASM). Three years later, Mr. Cross requested and received a transfer to a store in Colorado. In 1999, Home Depot transferred Mr. Cross to yet another store in Colorado, and shortly thereafter the events relevant to this appeal occurred.

According to Mr. Cross, after he became promotable under Home Depot's internal policies, racial discrimination on the part of his supervisors and others in management positions prevented him from becoming a Store Manager. Home Depot purported to employ a "succession planning process" in identifying ASMs for promotion to Store Manager positions. A "9-box grid" system identified factors Home Depot viewed as essential to promotion, and each ASM received a score with respect to these factors. On July 30, 1999, management downgraded Mr. Cross' score on this "9-box grid," rendering him unpromotable. Mr. Cross disputed the objectivity and uniformity of this system, alleging that racial bias among supervisors rather than actual performance determined the scores for ASMs at his store. Several ASMs working in Colorado Home Depot stores received promotions during Mr. Cross' employ, but the parties disputed which of these promotions were relevant "comparitors" in assessing Home Depot's failure to promote Mr. Cross. The parties agreed, however, that the promotion of John "Mike" Hill on April 27, 1999, should factor into an analysis of Mr. Cross' discrimination claims.

At some point in the summer of 1999, Mr. Cross complained to Sherri Gibson McCune, a District Human Resources Coordinator, about his downgrade and Home Depot's failure to offer him a promotion. He accused store management of making racially motivated employment decisions. Both before and after these complaints, Mr. Cross received mixed performance reviews. In May 2000, Mr. Cross began taking a series of medical leaves and admits he was thereafter no longer capable of becoming a Store Manager.


We first address Mr. Cross' Title VII claims. He contends Home Depot is liable under Title VII for both unlawful retaliation against protected activity and racially discriminatory failure to promote. On appeal, he challenges the district court's grant of summary judgment in favor of Home Depot on his retaliation claim. He also asserts that the district court, in ruling in his favor on his failure-to-promote claim, nonetheless erroneously limited the claim to the April 1999 promotion of Mike Hill. After carefully reviewing the district court's rulings and the record on appeal, as well as deciphering the parties' submissions to this court, we determine the district court correctly granted summary judgment for Home Depot on Mr. Cross' retaliation claim, and committed no error in its rulings on Mr. Cross' Title VII failure-to-promote claim.


In order to state a prima facie case for retaliation, Mr. Cross was required to show: (1) that he engaged in protected activity, (2) that he was subject to an adverse employment action, and (3) that a causal connection existed between his protected activity and the subsequent adverse action. See Jeffries v. Kansas, 147 F.3d 1220, 1231 (10th Cir.1998). In support of his prima facie case, Mr. Cross alleged he complained of racial discrimination in Home Depot's promotion decisions and was subsequently downgraded to an unpromotable ranking. Home Depot did not dispute Mr. Cross' asserted protected activity or adverse employment action. It argued instead, and the district court agreed, that Mr. Cross' downgrading occurred before his complaints of discriminatory promotion practices and, therefore, he could not show a causal connection between the two.

On appeal, Mr. Cross challenges the district court's timing conclusion, contending he expressed concern about discrimination prior to his downgrading on July 30, 1999. The district court ruled that Mr. Cross did "not dispute the timing of the downgrade and he fail[ed] to respond ... in any way [to Home Depot's argument he was downgraded prior to his complaints]." Aplt.App. at 122. Mr. Cross did in fact dispute the timing of his downgrading, id. at 70, 72, but cited no evidence to rebut Home Depot's version of events. The deposition of Ms. McCune, to which Mr. Cross cited in stating he was downgraded after his complaints, id. at 72, reveals Ms. McCune's uncertainty as to the timing of Mr. Cross' complaints and a general recollection that they occurred after he was downgraded on July 30, 1999. See Aple. Supp.App., vol. I at 86. At his own deposition, Mr. Cross provided inconsistent testimony as to the dates of his complaints. See id. at 71-72. At that deposition, counsel for Home Depot revealed a chronology admittedly prepared by Mr. Cross and his counsel indicating his complaints did not take place until nearly a month after he was downgraded to an unpromotable status. Id. Although Home Depot argued in its summary judgment brief that Mr. Cross' retaliation claim failed because he did not complain about discrimination before he was downgraded, Aplt.App. at 52, Mr. Cross made no contrary argument in his response. See id. at 73-75. Mr. Cross thus failed to make a prima facie case of retaliation. We therefore affirm the district court's grant of summary judgment for Home Depot on this claim.


Mr. Cross also alleged racially discriminatory failure to promote in violation of Title VII. On appeal, Mr. Cross contends the district court's order on summary judgment "defined the Title VII claim which [he] was permitted to present to the jury, [and] was in error because it limited the parameters of the trial on Cross' Title VII action to the April[ ] 1999 promotion [of Mr. Hill]." Aplt. Reply Br. at 2. Having read the district court's order and the subsequent proceedings in this case, we find no such limitation and determine Mr. Cross cannot prevail on this claim.

In order to establish a prima facie case of employment discrimination under Title VII, an employee is required to show that: (1) he is a member of a protected class; (2) he applied for and was qualified for the particular position; (3) he was not promoted despite his qualifications; and (4) the position was filled or remained open after he was rejected. See Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.2003); Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.1991). Establishing a prima facie case shifts the burden to the employer to present a legitimate, nondiscriminatory reason for its actions. Jones, 349 F.3d at 1266. If such a showing is made, the burden then shifts back to the employee to demonstrate that the employer's proffered explanation was merely pretext for discrimination. Id.

Home Depot moved for summary judgment on Mr. Cross' Title VII failure-to-promote claim. It did not address whether Mr. Cross had made a prima facie case, but instead focused its arguments on its legitimate, non-discriminatory reasons for not promoting Mr. Cross. Home Depot asserted Mr. Cross' poor evaluations and "unpromotable" status on the "9-box grid" as its legitimate business reasons for failing to promote Mr. Cross and also disputed Mr. Cross' presentation of pretext. Aplt.App. at 102-09. The district court denied Home Depot's motion, ruling Mr. Cross had raised genuine issues of material fact as to pretext. Id. at 121. We agree. In ruling for Mr. Cross on this issue, the district court briefly described the evidence Mr. Cross submitted on the question of pretext:

Cross points to the inconsistencies in the application of Home Depot's 9-box grid system as evidence of pretext. He asserts that the policies and procedures for ranking employees are not uniform and are arbitrarily applied. Further, he points to his own extensive qualifications as compared to Hill's as additional evidence of pretext. Viewing this evidence in a light most favorable to Cross, there are factual disputes regarding his qualifications and...

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