EBEL, Circuit Judge.
Plaintiff-Appellant Karry L. Thomas — who is African American — worked for Defendant-Appellee Berry Plastics Corporation ("Berry") from 2003 to 2010. Following his termination, Thomas sued Berry, alleging that Berry terminated him in retaliation for opposing racial discrimination within the company. The district court granted summary judgment in favor of Berry. Exercising our jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
Taking the facts in the light most favorable to Thomas, see Ward v. Jewell, 772 F.3d 1199, 1202 (10th Cir.2014), the record established the following:
From 2003 to 2010, Thomas was employed by Berry, which owns and operates over seventy manufacturing plants throughout North America. Thomas was initially hired as a Printing Operator in Berry's Kansas facility, but after a few years, he was promoted to Printing Technician. As a Printing Technician, Thomas was responsible for setting up the machines and ensuring that they ran properly.
Over the course of Thomas's seven-year employment, eight different Berry supervisors initiated at least thirteen disciplinary actions against him. These actions ranged in severity from verbal coaching and written warnings to suspensions and final warnings.
According to Thomas, the series of events leading up to his termination began in May 2009, when Jason Morton became Thomas's group leader. As group leader, Morton had limited disciplinary authority. Although Morton's limited authority prevented him from independently issuing high levels of discipline (e.g., suspensions, last chance agreements, final warnings, and terminations), he nonetheless played some role in most of the disciplinary actions leading up to Thomas's termination in September 2010.
The most relevant of these actions began in July 2010, when Morton, after conferring with his supervisor, suspended
A few weeks later, Morton, acting pursuant to Watson's and Human Resources' direction, gave Thomas a Final Warning. This Final Warning, which indicated that Thomas's employment would be terminated if he had any further quality or performance related issues, was based on Thomas's alleged failure to pack product properly on July 27. When Morton and two other Berry representatives met with Thomas to discuss this Final Warning, Thomas maintained that he did not fail to pack the product properly on July 27 and stated that he felt he was "getting discrimination because of race." App. at 86. Upon further investigation, Morton discovered that the July 27 packing problem was not Thomas's fault and rescinded the related performance issue.
Thereafter, Morton submitted a report to Printing Manager Watson that faulted Thomas for a print-quality issue that occurred on September 10. After reviewing this incident and without consulting Morton, Watson decided to terminate Thomas's employment. Before Human Resources could review and approve Watson's termination decision, Morton, acting pursuant to another supervisor's instructions, issued a written warning to Thomas based on another incident wherein Thomas failed to complete paperwork. Shortly thereafter, Berry officially terminated Thomas's employment.
Thomas initially challenged his termination through Berry's Termination Review Process,
Thomas thereafter filed suit for wrongful discharge, alleging, inter alia, that he was terminated in retaliation for opposing race discrimination in violation of Title VII and 42 U.S.C. § 1981.
The district court ultimately granted Berry's motion for summary judgment, and Thomas appealed.
On appeal, Thomas argues that the district court erroneously granted summary judgment in favor of Berry because, according to Thomas, he presented sufficient circumstantial evidence from which a reasonable jury could conclude that the stated reason for his termination was a pretext for retaliation based on a cat's-paw theory of recovery. We disagree. Reviewing the district court's summary judgment order de novo and applying the same standard as the district court, Ward, 772 F.3d at 1202, we conclude that the court properly granted summary judgment in favor of Berry for two reasons, either one of which requires our affirmance.
A plaintiff can state a valid claim under Title VII or § 1981 by presenting either direct or circumstantial evidence of retaliation.
Although the parties disagree about whether Thomas established a prima facie case of retaliation — the first step of the McDonnell Douglas framework — we focus our analysis on whether Thomas established pretext — the last step of the framework. Because we conclude that Thomas failed to meet his burden of establishing that Berry's explanation for terminating his employment was pretextual, we need not separately consider whether Thomas established a prima facie case of retaliation.
Where, as here, the plaintiff lacks evidence that the actual decisionmaker possessed an unlawful retaliatory animus, the plaintiff can establish pretext by invoking the cat's-paw theory of recovery
Because Thomas's retaliation claim was based on a cat's-paw theory, Thomas needed to establish a genuine issue of material fact as to Morton's retaliatory animus in order to survive summary judgment. On appeal, Thomas argues that he made this showing because a reasonable jury could infer that Morton possessed retaliatory animus based on two pieces of circumstantial evidence.
First, Thomas argues that a reasonable jury could find that Morton possessed retaliatory animus because his report regarding the September 10 print-quality issue — the incident triggering Thomas's termination — was dishonest as to a material fact. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (explaining that pretext can be inferred from the falsity of an employer's explanation for taking an adverse action). According to Thomas, Morton's report — which indicated that Thomas's press was missing a tagline for fifty-eight minutes — was dishonest because it did not also indicate that Thomas had properly inspected the product before going on his one-hour break.
We conclude that a reasonable jury could not infer from this evidence that Morton was acting with retaliatory animus. Thomas does not argue that the actual content Morton included in his report was dishonest or false; rather, Thomas maintains that Morton's report was dishonest by omission in the sense that Morton did not mention Thomas had properly inspected the product before taking his break. Importantly, however, Thomas does not argue, and nothing in the record suggests, that Berry does not hold Printing Technicians like Thomas responsible for errors that occur while they are on break.
Second, Thomas argues that a reasonable jury could find that Morton possessed retaliatory animus because his report regarding Thomas's September 10 print-quality issue was inconsistent with Morton's rescission regarding Thomas's earlier July 27 performance problem. Cf. Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir.2008) (explaining that pretext can be shown by "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's explanation for taking an adverse action). The crux of this "inconsistency," according to Thomas, is that Morton relied on exculpatory evidence
Again, we conclude that a reasonable jury could not infer from this evidence that Morton was acting with retaliatory animus. As an initial matter, there is nothing intrinsically inconsistent about including less information when initially reporting a disciplinary problem than when subsequently rescinding a disciplinary action upon further investigation. Moreover, the timing of these reports in relation to Thomas's single complaint about race discrimination further negates an inference of retaliatory animus.
Because no reasonable jury could infer from Thomas's proffered circumstantial evidence that Morton possessed retaliatory animus, we could affirm the district court's summary-judgment order on this basis alone.
However, even if we assume that Thomas established a genuine issue of material fact as to Morton's retaliatory animus, Thomas's retaliation claim cannot survive summary judgment for yet another reason — he did not produce sufficient evidence from which a jury could infer that Morton's animus was a "but-for" cause of Thomas's termination.
Here, as part of Berry's termination review process, a Termination Review Panel reviewed and affirmed Thomas's termination. The Panel, which was comprised of two independent Berry managers, undertook its review within two days of Thomas's termination. In addition to reviewing Thomas's entire disciplinary history — which included information not only from Morton but also from seven other supervisors who had disciplined Thomas — the Panel interviewed Thomas and gave him an opportunity to share his side of the story.
We conclude that Berry's independent termination review process broke the causal chain between Morton's purported retaliatory animus and Thomas's termination. Thomas does not argue, and there is no evidence to suggest, that the Panel's review was a sham, that the Panel failed to adhere to Berry's termination-review policy, that the review policy was itself flawed, or that anyone on the Panel acted with animus.
Because Thomas did not proffer sufficient evidence from which a jury could infer that Morton's animus was a but-for cause of Thomas's termination, Thomas's retaliation claim cannot survive summary judgment even if we assume that there is a genuine issue of material fact as to Morton's animus.
For these reasons, we AFFIRM the district court's order granting summary judgment in favor of Berry.