Sorbo v. United Parcel Service, No. 03-1455.

• Decision Date: 28 December 2005
• Docket Number: No. 04-1251.,No. 05-1016.,No. 03-1455.
• Citation: 432 F.3d 1169
• Parties: David SORBO, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1169

432 F.3d 1169

David SORBO, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee.

No. 03-1455.

No. 04-1251.

No. 05-1016.

United States Court of Appeals, Tenth Circuit.

December 28, 2005.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs: David A. Sorbo, Pro Se, Appellant.

Elizabeth A. Phelan, Judith A. Biggs, Holland & Hart LLP, Boulder, CO, for Defendant-Appellee.

Steven M. Gutierrez, Holland & Hart LLP, Denver, CO, for Defendant-Appellee.

Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff David Sorbo, a white male, filed suit against United Parcel Service (UPS), alleging age discrimination, reverse race and sex discrimination, hostile work environment, retaliation, and breach of contract/covenant of good faith and fair dealing in connection with his termination following complaints about his behavior from female employees of a UPS customer.¹ In a thorough order, the district court held that plaintiff had not demonstrated a triable issue of fact as to any of his claims and, accordingly, granted summary judgment for UPS. Plaintiff seeks review of that order in appeal No. 03-1455. A dispute over costs ensued and, ultimately, the court awarded UPS $52,461.87 under Rule 54(d)(1).² Plaintiff challenges that award in appeal No. 04-1251. Finally, plaintiff sought relief from judgment under Rule 60(b), which the district court denied. Plaintiff seeks review of that ruling in appeal No. 05-1016. The three appeals were consolidated for procedural purposes.³ We address them in sequential order, determined by substance rather than chronology: the grant of summary judgment, followed by the denial of Rule 60(b) relief, and, finally, the award of costs.

I. Summary Judgment

A. Factual Background

A short summary of the basic facts should suffice as an introduction to the various issues raised on appeal from the grant of summary judgment. This summary is not intended to be exhaustive, and additional facts will be discussed where relevant later.

After some ten years with UPS, plaintiff became an account executive in the business development department in 1991, selling company services to new and existing customers. During the ensuing years, different supervisors voiced or related concerns about his relations with company personnel and customers. In October 1999, Monica Harlan, his direct supervisor, raised performance issues that resulted in his being placed on probation for three months by Harlan and UPS district sales manager Jack Donnell. Plaintiff signed an action plan stating that he "fully underst[ood] that one single concern about his follow-up skills, his work ethic, his arrogance, or his full commitment to change his behavior or attitude will result in further discussion with all involved which could lead up to and include his termination from UPS." R. vol. I, doc. 93, ex. A-14.

Shortly after plaintiff's probation expired, two female employees of UPS customer Employee Information Services (EIS) contacted his then-supervisor, Jesse Gallegos, with serious complaints about plaintiff's professional conduct and personal behavior that led to EIS canceling its account. The former complaints involved repeated gross tardiness and unresponsiveness to customer concerns; the latter included a sexist joke and inappropriate comments of a sexual nature. Id., ex. A-17. When Gallegos told plaintiff about the EIS employees' complaint, he responded by claiming that they had sexually harassed him. Id., ex. A-1, at 183. Plaintiff did not, however, complete a written account of this claim, as requested by Gallegos. Id., ex A-1, at 187-91.

Gallegos, Donnell, and Kevin Starbuck, a UPS human resources manager, interviewed the EIS employees, who reiterated and expanded on their complaints. Id., ex. A-19. They detailed their complaints more formally in follow-up communications by letter and email, which also expressed shock at plaintiff's (emphatically denied) counter-accusations. See id., exs. A-20, A-21. Based on these circumstances, plaintiff was terminated, with UPS district manager Myron Gray making the final decision. See id., ex. A-3, at 3 and ex. A-22, at 95.

B. District Court's Disposition

A summary of the district court's disposition of plaintiff's various claims is necessary to frame our analysis of the issues on appeal. With regard to plaintiff's hostile work environment claim, the district court addressed the instances of allegedly hostile conduct directed at plaintiff by his UPS superiors (Harlan, Gallegos, Donnell, and Gray), and by the two EIS employees whose complaints prompted his termination. After considering these in detail, separately and collectively, the court concluded that plaintiff could not show actionable conduct severe or pervasive enough to give rise to the type of abusive environment necessary for a hostile-environment claim. R. vol. II, doc. 201, at 6-11 (applying Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998)).

The district court then disposed of the discrimination claims, holding that plaintiff had failed to demonstrate a prima facie case of either age, sex, or race discrimination and that, in any event, UPS had conclusively shown a legitimate business reason for his termination. Plaintiff's discrimination claims failed in the first instance because his comparisons to the treatment of younger, female, and/or non-white employees did not raise any inference of discrimination in light of the fact that these other employees were not shown to be truly similarly situated. Even if this deficiency in his case were ignored, however, plaintiff's misconduct and unsatisfactory performance provided a legitimate reason for termination that he failed to discredit as mere pretext for discrimination.

The district court rejected plaintiff's retaliation claim for failure to show any pertinent protected activity upon which such a claim could be premised. As with the discrimination claims, the court also held that plaintiff had, in any event, failed to create a triable issue regarding the pretextuality of the otherwise plainly legitimate grounds stated by UPS for his termination.

Finally, the district court determined that plaintiff's claims for breach of contract and breach of the duty of good faith and fair dealing were deficient for reasons of controlling state law. Plaintiff has not raised any issues on appeal with respect to these claims, however, and we therefore do not address them further. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1140 (10th Cir.2003).

Before proceeding to the issues presented by this appeal, there is a legal point that should be clarified. The district court recited an older version of the prima facie case for discrimination which has limited, if indeed any, remaining application in this circuit. The version it recited (initially in reference to the age claim) required plaintiff to "show that (1) he belongs to the protected age group; (2) his job performance was satisfactory; (3) adverse employment action was taken against him; and (4) comparable employees who were not in a protected class did not receive comparable adverse employment action." R. vol. II, doc. 201, at 12 (following Thomas v. IBM, 48 F.3d 478, 484-85 (10th Cir.1995)). In reference to the fourth prong of the test, the Supreme Court has specifically held that age-discrimination plaintiffs need not show disparate treatment as compared to co-workers outside the protected class (i.e., those not over forty years of age). See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-12, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). In Perry v. Woodward, 199 F.3d 1126, 1135-40 (10th Cir.1999), this court extended the same basic point to other forms of alleged discrimination.⁴

Indeed, numerous decisions of this court indicate that a prima facie case may not require a "similarly-situated person" comparison at all. In particular, several cases involving adverse action prompted by unsatisfactory performance or misconduct have framed the relevant element much more broadly, as requiring a showing of "circumstances giving rise to an inference of discrimination." Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.2004); see Plotke v. White, 405 F.3d 1092, 1101 (10th Cir.2005); Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181 (10th Cir.2002); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir.2000). While this broader requirement may be (and often is) satisfied by proof that the employer treated similarly situated employees more favorably, such proof is just one sufficient means to do this and should not itself be mistaken as an indispensable element of the prima facie case. See Plotke, 405 F.3d at 1101; Hysten, 296 F.3d at 1181; Jones, 203 F.3d at 753.⁵

That said, we do not think that the district court's recitation of an outmoded prima facie case test in itself warrants reversal. The parties have not noticed the point, much less offered any challenge to or defense of the district court's formulation. More importantly, however the test is framed in the abstract, where, as here, comparison to others similarly situated is "the method chosen by [the plaintiff]" to raise an inference of discrimination, the claim is properly analyzed in those terms. Jones, 203 F.3d at 753. And, whether that analysis is conducted in reference to the prima facie case or the business justification versus pretext inquiry, see supra note 5, if the court correctly concludes that the evidence of discrimination/pretext fails as a matter of law, summary judgment for the defendant is the proper result.

C. Issues Raised on Appeal

Much of plaintiff's briefing relates directly or indirectly to his objection that UPS advanced inconsistent positions as to who was the decision-maker for his termination, naming sales manager Jack Donnell in discovery proceedings, but then citing district director Myron Gray during summary judgment proceedings. The adverse...