F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JUL 2 2002

PATRICK FISHER
Clerk

EDWARD G. MARQUEZ,
Plaintiff - Appellant,
v.
BAKER PROCESS, INC.,

No. 01-4019
(D.C. No. 2:99-CV-738-B)
(D. Utah)

Defendant - Appellee.
ORDER AND JUDGMENT

Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff-appellant Edward G. Marquez brought this employment
discrimination action against his former employer, Baker Process, Inc. (Baker).

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Plaintiff alleged discrimination based on his Hispanic national origin and

retaliation for a previous discrimination complaint. The district court entered
summary judgment for Baker and plaintiff appeals. We have jurisdiction pursuant
to 28 U.S.C. 1291.
I. Background
Plaintiff was hired as a parts mover for Baker on May 12, 1997. On
January 13, 1999, plaintiff filed a complaint with the Utah Anti-Discrimination
Division (UADD) and the Equal Employment Opportunity Commission (EEOC)
alleging Baker continuously denied him requested overtime because he was of
Hispanic origin. In a general intake questionnaire filed with the UADD, Plaintiff
explained that he believed the overtime issue arose after he filed a grievance with
his local union representative complaining that Baker prohibited Plaintiff from
speaking Spanish while at work. That language claim is now Plaintiffs primary
claim of disparate treatment.

During the time his discrimination charge was under review, Plaintiff
reported that he received good work reviews and that he ultimately put in a bid
for a better job in a different department. He was told that he received that
position sometime in June of 1999. Plaintiff received the EEOCs right-to-sue
In his brief on appeal, Plaintiff has specifically dropped his allegation of
discrimination based on Bakers decisions to disallow overtime.

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letter on June 25, 1999, and claims he was told soon after that letter was released
that the new job would be rebid.
On July 1, 1999, Plaintiff was summoned to the office of his immediate
supervisor, George Parkinson, I App. 64-65, where he was confronted by
Parkinson and Parkinsons boss, Dave Whittle. Plaintiff was accompanied by his
union representative. Plaintiff claims that at this meeting, Whittle started saying
I said some very bad things about the company and that

I had presented a

discrimination complaint against the company and that Baker [] didnt like my
attitude and that I no longer worked for Baker [].

I App. at 65 (emphasis added);

see also id. at 106-07. Baker representatives dispute these allegations, arguing
that Plaintiff had made a disparaging comment to a visitor to the plant while the
visitor was with Plaintiffs supervisor. Baker claims that Plaintiffs statements,
coupled with his belligerent attitude, caused Whittle to place Plaintiff on a
three-day suspension. According to Baker, Whittle told Plaintiff to return to work
on July 7, 1999, for a disciplinary meeting with management and the union.
Plaintiff never returned to work, and instead filed a second charge of
discrimination with the UADD and EEOC alleging retaliation based on his belief
that he was terminated for engaging in protected EEO activity.
Plaintiff filed suit in federal district court alleging discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e
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through 2000e-17, and also a state claim for intentional infliction of emotional
distress. Plaintiff apparently did no discovery after filing his complaint, and at
the summary judgment phase he relied entirely on his own testimony from his
deposition to survive the motion. The court granted summary judgment for
Baker on all counts; however, Plaintiff has only appealed dismissal of his
Title VII claims.
II. Standard of Review
We review the grant of summary judgment de novo, applying the same
standard as did the district court.

Amro v. Boeing Co. , 232 F.3d 790, 796

(10th Cir. 2000). Summary judgment is appropriate if there is no genuine issue

as to any material fact and . . . the moving party is entitled to a judgment as
a matter of law. Fed. R. Civ. P. 56(c). We view the evidence and draw any
inferences in a light most favorable to the party opposing summary judgment, but
that party must identify sufficient evidence that would require submission of the
case to a jury.

Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 249-52 (1986).

Accordingly, summary judgment is appropriate against any party who fails to

make a showing sufficient to establish the existence of an element essential to
that partys case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

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III. Retaliation Claim

Plaintiff claims that as a result of his earlier EEO activity, Baker terminated
his employment. To establish a prima facie case of retaliation under Title VII, a
plaintiff must show that (1) he engaged in protected opposition to discrimination,
(2) his employer subjected him to an adverse employment action subsequent to the
protected activity, and (3) a causal connection exists between the protected
activity and the adverse employment action.

Pastran v. K-Mart Corp. , 210 F.3d

1201, 1205 (10th Cir. 2000). Once Plaintiff makes a prima facie showing, Baker
must articulate a legitimate, nondiscriminatory reason for the adverse employment
action. See McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 802 (1973).

Plaintiff must then respond by showing Bakers asserted reasons for the adverse
action were not its true reasons, but were a pretext for discrimination.

See Perry

v. Woodward , 199 F.3d 1126, 1135 (10th Cir. 1999). Baker does not dispute that

While the elements required to establish a prima facie case of retaliation

differ slightly from those of a claim of disparate treatment under Title VII, the
analytical framework of McDonnell Douglas guides our review of both.
See
Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1178 (10th Cir. 1999). In the
instant case, Plaintiff relies on testimony, discussed
infra , which would qualify as
direct evidence of retaliatory intent. Plaintiff focuses his argument on the indirect
method of proof, however, mentioning direct evidence only once in his brief. We
have analyzed the case as Plaintiff has presented it, relying on the
McDonnell
Douglas framework.

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Plaintiff engaged in a protected activity when he filed his initial complaint with
the EEOC and UADD on January 13, 1999.
Relying on testimony of those at the disciplinary meeting, including
testimony from Plaintiff himself, the district court found that Plaintiff did not
suffer an adverse employment action as he was not terminated as a result of his
statements, but merely suspended. I App. at 6. We have held, however, that
[a]ctions such as suspensions or terminations are by their nature adverse, even if
subsequently withdrawn.

Roberts v. Roadway Express, Inc.

, 149 F.3d 1098,

1104 (10th Cir. 1998). Moreover, because this circuit liberally defines the phrase
adverse employment action,

see Anderson , 181 F.3d at 1178, we feel that

Bakers rescission of Plaintiffs new position was also an adverse employment

action. Therefore, we conclude that Plaintiff did meet his burden as to the second
element of his prima facie case.
In addition to demonstrating a protected activity followed by an adverse
employment action, to survive a motion for summary judgment a plaintiff must
also show a causal connection between the protected activity and that action.
A causal connection may be shown by evidence of circumstances that justify an
inference of retaliatory motive, such as protected conduct closely followed by
adverse action.
Cir. 2001) (quoting

ONeal v. Ferguson Constr. Co.

, 237 F.3d 1248, 1253 (10th

Burrus v. United Tel. of Kans. Inc

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., 683 F.2d 339, 343 (10th

Cir. 1982)). Unless there is very close temporal proximity between the protected
activity and the retaliatory conduct, the plaintiff must offer additional evidence to
establish causation.

ONeal, 237 F.3d at 1253.

Plaintiff argues that Bakers action on July 1, 1999, whether disciplinary or

otherwise, was so close to the issuance of the EEOCs right-to-sue letter that the
temporal proximity itself justifies an inference of retaliatory motive. We
disagree. The EEOCs issuance of a plaintiffs right-to-sue letter, by itself, is not
a protected activity of the employee under 42 U.S.C. 2000e-3(a).

See Clark

County Sch. Dist. v. Breeden , 532 U.S. 268, 273 (2001) (per curiam) (stating that
the argument that an EEOC right-to-sue letter is a protected activity under Title
VII is utterly implausible). Moreover, in

Breeden , the Court rejected the

argument that the letter provided the employer with its first notice of the charge
of discrimination, thus allowing the inference that the adverse employment action
following issuance of the letter was in fact a reaction to the original charge.

See

id. Therefore, we review Plaintiffs retaliation claim based on his protected

activity of filing a formal charge of discrimination on January 13, 1999.

See

Anderson , 181 F.3d at 1178.

We have held that a one and one-half month period between protected
activity and adverse action may, by itself, establish causation. By contrast, we
have held that a three-month period, standing alone, is insufficient to establish
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causation. ONeal , 237 F.3d at 1253 (quoting

Anderson , 181 F.3d at 1179).

Here the actions of which Plaintiff complains occurred more than five months
after his discrimination charge was filed. However this temporal proximity was
not relied on alone by Plaintiff as he has also offered other evidence of retaliatory
motive. In addition to Plaintiffs testimony that his superior Whittle knew of, and
criticized him for, his formal discrimination complaint during the disciplinary
meeting on July 1, 1999, Plaintiff also claims that the qualifications for the job
offer that Baker rescinded were changed, and that the job was subsequently
offered to a white woman. Finally, Plaintiff argues that the timing of all of these
events taken together raise the inference of retaliatory motive.
Discussing a plaintiffs burden to present a prima facie case in the context
of a claim of disparate treatment, the Supreme Court has explained that,
the prima facie case raises an inference of discrimination only
because we presume these acts, if otherwise unexplained, are more
likely than not based on the consideration of impermissible factors.
Establishment of the prima facie case in effect creates a presumption
that the employer unlawfully discriminated against the employee. If
the trier of fact believes the Plaintiffs evidence, and if the employer
is silent in the face of the presumption, the court must enter judgment
for the Plaintiff because no issue of fact remains in the case.
Tex. Dept of Cmty. Affairs v. Burdine

, 450 U.S. 248, 254 (1981) (footnote

omitted). This language is equally fitting to a claim of discriminatory retaliation.

Just as a plaintiffs burden to demonstrate a prima facie case is not onerous in

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the context of a claim of disparate treatment,

see id. at 253, it is no more so in

the context of a claim of retaliation.

We hold the additional evidence offered by Plaintiff in this case, combined
with the proximity between Plaintiffs protected activity and the adverse
employment actions, is sufficient to raise an inference of discrimination such that
Plaintiff has established his prima facie case of discriminatory retaliation.
Under McDonnell Douglas , after a prima facie case of retaliation is
established by the plaintiff, the burden shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for the adverse employment action suffered
by the plaintiff.

Perry , 199 F.3d at 1135. In determining whether a particular

defendant has met its burden of coming forward with facially legitimate,
nondiscriminatory reasons for the employment actions, this court has stated:
[t]he defendants burden is merely to articulate through some proof a
facially nondiscriminatory reason for the [action]; the defendant does
not at this stage of the proceedings need to litigate the merits of the
reasoning, nor does it need to prove that the reason relied upon was
bona fide, nor does it need to prove that the reasoning was applied in
a nondiscriminatory fashion. However, the proffered reason for the
action taken against the minority employee must be reasonably
specific and clear.
EEOC v. Flasher Co. , 986 F.2d 1312, 1316 (10th Cir. 1992) (citations and
footnote omitted). If the defendant is able to articulate a valid reason, the
plaintiff can avoid summary judgment only if [he] is able to show that a genuine

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dispute of material fact exists as to whether the defendants articulated reason

was pretextual.

Perry , 199 F.3d at 1135.

In this case, Baker proffered reasons for its decision to suspend Plaintiff.
Relying on the testimony of other participants from the disciplinary meeting,
including the affidavit of Plaintiffs union representative, Baker claims that the
meeting was called solely to discuss Plaintiffs insubordinate statements made to
a plant visitor, and that no mention was made concerning Plaintiffs prior EEO
activity. Baker also claims that Plaintiff was ultimately terminated after he had
missed several days of work following his suspension, and after he had declined
to attend two meetings scheduled by his union representative. Finally, Baker
argues that after Plaintiff had been awarded his new position, Baker realized that
the job had been improperly classified. Baker claims that it was willing to allow
Plaintiff to rebid, but that Plaintiff had already made his decision not to return to
work.
Given these facially legitimate reasons for Bakers employment actions, to
survive summary judgment Plaintiff was required to present conflicting facts to
create a genuine issue as to whether these reasons are not the true reasons for the
employment decisions, but rather a pretext for discrimination. To establish
pretext, a plaintiff must show either that a discriminatory reason more likely
motivated the employer or . . . that the employers proffered explanation is
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unworthy of credence . . . .

Burdine , 450 U.S. at 256. Plaintiff could

accomplish this by revealing such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employers proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them unworthy of
credence. Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (quotation
and citation omitted). However, mere allegations alone are insufficient,

see id. at

1324, and mere conjecture that [the] employers explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary
judgment. Branson v. Price River Coal Co.

, 853 F.2d 768, 772 (10th Cir. 1988).

We have noted that pretext may be established in a variety of ways.

Kendrick v. Penske Transp. Servs., Inc.

See

, 220 F.3d 1220, 1230 (10th Cir. 2000).

Reading the record in the light most favorable to Plaintiff as the party opposing
summary judgment, Anderson , 477 U.S. at 249-52, we are convinced that Plaintiff
sufficiently met his burden to survive the motion. We are persuaded that Plaintiff
has shown the existence of a genuine issue that a discriminatory reason more
likely motivated Baker, or that Bakers proffered explanation of events was
unworthy of credence. In his deposition Plaintiff testified about the July 1, 1999
meeting to which he was called at the behest of Mr. Dave Whittle, the boss of
George Parkinson, the supervisor of Plaintiff. I App. at 64-65. Plaintiff testified
that
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Dave Whittle was the big boss. And he started saying I said some
very bad things about the company and that I had presented a
discrimination complaint against the company and that Baker [] did
not like my attitude and that I no longer worked for Baker []. And
thats all, and they told me to leave.
Id. at 65. Plaintiff said that some four or five days later he heard he was really
only on a three-day suspension. Plaintiff was asked whether he was told to come
to work to discuss his suspension, and he testified:
[t]hey told me I was no longer on the payroll. They did not tell me to
come back to work. They just said to come back because there was
going to be a meeting. They said I was not on the payroll. They
were not paying me and I was obviously fired.
Id. at 68. Plaintiff testified that Whittle had told him he was not on the payroll
the same day they fired him, July 1, 1999.

Id.

Baker strenuously argues that opposing evidence contested the testimony of

Marquez. Such contradictory evidence does not, nevertheless, show entitlement
to summary judgment. The Plaintiffs own testimony may, by showing a genuine
question of fact as to a material issue, be sufficient to survive summary judgment.
See Selenke v. Medical Imaging of Colorado

, 248 F.3d 1249, 1257-59 (10th Cir.

2001) (even where plaintiffs affidavit allegedly was contradictory to her previous
deposition testimony, court was unwilling to say that the affidavit was insufficient
to preclude summary judgment on the point in question; summary judgment for

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defendant employer affirmed on other grounds).

Accordingly, we are satisfied

that summary judgment on the retaliation claim was error on this record.
IV. The Discrimination Claim
Plaintiff Marquez also claims he was discriminated against because Baker
forbade him from speaking in his cultural language, Spanish, in the work place.
The original charge of discrimination by Plaintiff was asserted before the UADD
and the EEOC. Plaintiff there alleged that he was told . . . not to speak my
cultur[al] language on February 2, 1998. I App. at 11. In his deposition,
however, Plaintiff gave a more specific statement of this discrimination claim.
He said that he was told the first time by Mr. Scott Kay that he didnt want me to
use my language, and then he changed it and said he didnt want me to use that
In Franks v. Nimmo , 796 F.2d 1230, 1236-38 (10th Cir. 1986), we held that
the plaintiffs affidavit could be ignored in consideration of the defendants
motion for summary judgment because the affidavit constituted an attempt to
create a sham fact issue. The opinion set out factors for the courts to consider
in determining whether an affidavit contradicting previous deposition testimony
should be considered or ignored. Clearly implicit in
Selenke and other cases
following or distinguishing Franks is the principle that a partys testimony by
itself may be sufficient to preclude summary judgment,
even when the party has
also given contradictory testimony .
Of course, in the instant case, Plaintiffs testimony was not contradicted by
any other statements by him about the conduct on July 1, 1999 when Plaintiff was
fired or suspended. We think it clear, then, that Plaintiffs own testimony was
sufficient to avoid summary judgment.
See Leslie v. Grupo ICA , 198 F.3d 1153,
1158 (9th Cir. 1999) (if direct evidence produced by the moving party conflicts
with direct evidence produced by the nonmoving party, the judge must assume the
truth of the evidence set forth by the nonmoving party with respect to that fact).
3

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word. I App. at 78. Plaintiff was asked about the word panocha, and he
confirmed that it was his nickname, and that the word stood for brown sugar.
Id at 79. Then Plaintiff was asked about the understanding of the meaning of the
word panocha, and he further confirmed that one of the women in his work
place believed it was slang for pussy. Plaintiff was asked whether this
understanding about the meaning of panocha was why the company asked him
to stop using the word. Plaintiff responded Yes.

Id. at 79. Later Plaintiff

confirmed that Mr. Kay had said he could use the word on the floor, but not on
the radio. When asked if this was what Mr. Kay told him, Plaintiff replied: Yes,
it was. Id. at 80.
We are satisfied that the company had a proper and legitimate basis for
directing that Plaintiff not use the word which was understood as profanity. The
regulations of the EEOC recognize that a rule requiring employees to speak only
English is a burdensome term and condition of employment. 29 C.F.R. 1606.7
(a). Nevertheless, the regulations also provide an employer may have a rule
limiting language used if it is justified by business necessity. 29 C.F.R.
1606.7 (b), which we believe was shown here. Thus the grant of summary
judgment as to this claim of discrimination based on the direction concerning the
word used by Plaintiff on the radio communication system was correct, and we
uphold that ruling.
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V. Conclusion
Accordingly we REVERSE the grant of summary judgment as to the
retaliation claim of Plaintiff Marquez and

REMAND that claim for further

proceedings. We AFFIRM the grant of summary judgment with respect to the

discrimination claim based on the companys direction to cease use of the profane
word. We DENY the motion of Baker for sanctions and costs.

Entered for the Court

William J. Holloway, Jr.
Circuit Judge

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