Echon et al v. Sackett et al

Filing 116

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE that 106 MOTION for Summary Judgment filed by Justin Echon, Maribel Echon, Esmeraldo Villanueva Echon, Jr. be GRANTED IN PART and DENIED IN PART. By Magistrate Judge Nina Y. Wang on 9/20/2017. (Attachments: # 1 - (7) Unpublished case law) (nywlc1)

Cox v. Lockheed Martin Corp., Not Reported in F.Supp.2d (2013)
2013 WL 140624

2013 WL 140624
Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
Cortez COX, Plaintiff,
v.
LOCKHEED MARTIN CORPORATION, a
Maryland Corporation also known as Lockheed
Martin Space Systems Company, Defendant.
Civil Action No. 11–cv–01479–PAB–BNB.
|
Jan. 11, 2013.
Attorneys and Law Firms
Nelson George Alston, Alston Law Firm, LLC, Aurora,
CO, for Plaintiff.
Austin E. Smith, David Daniel Powell, Jr., Ogletree,
Deakins, Nash, Smoak & Stewart, P.C., Denver, CO, for
Defendant.

ORDER
PHILIP A. BRIMMER, District Judge.
*1 This matter is before the Court on the Motion for
Summary Judgment [Docket No. 38] filed by defendant
Lockheed Martin Corporation (“Lockheed Martin”). The
motion is fully briefed and ripe for disposition.

I. BACKGROUND 1
This case arises out of plaintiff Cortez Cox's employment
with Lockheed Martin. Mr. Cox, who is African
American, worked for Lockheed Martin from March
22, 1993 until his termination on January 12, 2011. Mr.
Cox began his employment as a quality inspector and
was promoted to quality assurance senior engineer in
December 2005.
As a Lockheed Martin employee, Mr. Cox was required
to participate in the company's Performance Management
(“PM”) process. The PM process allows Lockheed Martin
to measure an employee's yearly performance against
the employee's own objectives and those provided by
management. The PM process requires that all Lockheed

Martin employees enter two sets of objectives into a
database called LMPeople. First, employees are required
to provide a list of personal objectives they hope to
accomplish during the calendar year. Second, employees
must choose objectives to complete from a “flow-down”
list provided by Lockheed Martin's managers.
For his 2009 personal objectives, Mr. Cox stated that
he would attempt to “remain current [with his] required
training and complete [his] time card before the end of
the week.” Docket No. 38–11 at 2. After reviewing these
personal objectives, Chris Fortin, a quality assurance
manager, informed Mr. Cox that his objectives for the
2009 calendar year were inadequate and requested that
Mr. Cox input additional objectives. Id. at 3. Mr. Cox
declined to provide additional objectives and stated that
he had his “objectives listed.” Id. at 3–4.
On April 1, 2009, Amy Gawlik, a human resources
(“HR”) business partner, spoke with Kelly Triplett, a
manager in HR, about Mr. Cox's reluctance to provide
additional objectives. Id. Ms. Triplett told Ms. Gawlik
to enter Mr. Cox's objectives for 2009 with the help of
a quality assurance manager and schedule a subsequent
meeting with Mr. Cox to implement necessary changes.
Id. On April 2, 2009, Ms. Gawlik sent Mr. Cox an email
advising him that she had made changes to his PM process
file. Id. On April 6, 2009, Mr. Cox requested that Ms.
Gawlik remove all the changes. As a result, no further
changes were made to Mr. Cox's PM process file for the
2009 calendar year. Id. at 5–6.
In addition to the PM process, Lockheed Martin
conducts an individualized Performance Assessment and
Development Review (“PADR”) for all of its employees
at the end of the calendar year. See Docket Nos. 38–
12, 38–19. For the 2009 calendar year, Jeanne Kerr, a
quality assurance manager, conducted Mr. Cox's PADR.
Docket No. 38–12; Docket No. 38–15. In the PADR,
Ms. Kerr concluded that Mr. Cox was a “Successful
Contributor” and a “competent performer and valued
team player, who meets the objectives and expectations of
[his] position” based on his technical performance. Docket
No. 38–12 at 1. However, with respect to non-technical
aspects of his employment, Ms. Kerr noted that Mr.
Cox was “difficult to communicate with and refuse[d] to
follow clearly communicated corporate command media
requirements.” Id. Specifically, Ms. Kerr found that Mr.
Cox refused to attend weekly staff meetings—including

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mandatory meetings—and found that his “behavior
associated with the Performance Management (PM)
process [in 2009] was unacceptable and in direct conflict
with the Lockheed Martin performance attributes.” Id.
The PADR recommended, among other things, that
Mr. Cox attempt to improve his interpersonal skills
by attending organizational meetings, by responding to
communications with management in a timely manner,
and by including “objectives (those flowed down to him
from management as a minimum)” when completing “the
2010 Performance Management process.” Id.
*2 On December 10, 2009, Ms. Kerr and Mr. Fortin held
a meeting with Mr. Cox to discuss his PADR. Docket
No. 38–2 at 6 (Cox Dep. 64:10–18); Docket No. 38–
15 at 1. During this meeting, Ms. Kerr and Mr. Fortin
informed Mr. Cox that if he failed “to do what is identified
in [the PADR's] areas of improvement,” he could be
subject to discipline, including placement on a personal
improvement plan (“PIP”). 2 Docket No. 38–15 at 1.
On March 15, 2010, as part of the PM process, Ms.
Kerr emailed flow-down objectives to her subordinates
and asked them to enter both their personal and flowdown objectives by March 26, 2010. Docket No. 38–8 at
1. The flow-down list provided by Ms. Kerr identified
five objectives all of her subordinates had to perform
and allowed each employee to choose three additional
objectives. Id. Mr. Cox did not include any of the
objectives provided by Ms. Kerr in his PM process file.
Docket No. 38–2 at 10 (Cox Dep. 84:9–20). Instead,
Mr. Cox listed the same objectives he had in 2009,
namely, keeping his training up to date and completing his
timecard before the end of the week. Docket No. 38–3 at
1 (Cox Dep. 85:16–19). On March 26, 2010, Ms. Kerr told
Mr. Cox that his flow-down objectives were inadequate
and requested a meeting to discuss his objectives. Docket
No. 38–13 at 1. This meeting, however, never took place.
Docket No. 38–3 at 1 (Cox Dep. 86:5–14).
On May 6, 2010, Ms. Kerr contacted Mr. Cox to remind
him that the objectives he listed in the PM Process did not
meet her expectations. Docket No. 38–9 at 2. Ms. Kerr
explained to Mr. Cox that all employees were expected
to complete the PM process and that his failure to enter
his objectives would result in a PIP. Id. On May 10, 2010,
Ms. Kerr again reminded Mr. Cox that he was required
to modify his PM objectives. Docket No. 38–14. On May
11, 2010, Mr. Cox responded to Ms. Kerr and told her

that he did not attend the weekly meetings because he
was subject to harassment at the meetings. Specifically,
he stated that he and Mary Romero, a fellow employee,
were called “the bugs” the last time he attended a weekly
meeting. 3 Docket No. 38–9 at 1. Mr. Cox also stated that
he would never have a fair review at Lockheed Martin
because management would find some reason to place him
on a PIP. Id.
In June 2010, Tom Molloy replaced Ms. Kerr as Mr. Cox's
manager. Docket No. 38–3 at 7 (Cox Dep. 144:16–18). On
June 28, 2010, Mr. Molloy asked Mr. Cox to reenter his
flow-down objectives for 2010. Docket No. 38–17 at 1–
2. Mr. Molloy explained to Mr. Cox that every employee
at Lockheed Martin was required to enter personal
objectives as well as those that “flowed down from Senior
Management.” Id. In addition, Mr. Molloy told Mr.
Cox that his current objective of timely completing his
timecard did not qualify as a legitimate objective. Id. On
July 14, 2010, Mr. Molloy also provided Mr. Cox with
a copy of Lockheed Martin's Corporate Policy CPS–503,
which indicates that employees are required to document
information that flowed down from senior management in
their PM process file. Docket No. 38–18 at 2. Mr. Cox told
Mr. Molloy that he did not believe that CPS–503 required
that he change his PM objectives. Id.
*3 On August 4, 2010, Ms. Burch met with Mr.
Cox to discuss the incident during which he and Ms.
Romero were called “the bugs.” Docket No. 38–16 at 2.
During this meeting, Mr. Cox told Ms. Burch that he
had no confidence in management at Lockheed Martin
and revealed that his participation in previous EEOP
investigations had made his work conditions worse. Id.
at 3. Ms. Burch's notes from the August 4, 2010 meeting
also show that Mr. Cox believed that, although he was
treated differently from other employees, it was “not a
racial thing.” Docket No. 38–16 at 5. Mr. Cox, however,
disputes this fact and states that he told Ms. Burch that
“Lockheed Martin had a culture where nonwhites were
not accepted as part of the team no matter how good they
were.” 4 Docket No. 43–1 at 2, ¶ 6.
On August 5, 2010, Mr. Molloy and Mandi Stites, senior
manager of HR, met with Mr. Cox to discuss his flowdown objectives. Docket No. 38–18 at 2. Ms. Stites
informed Mr. Cox that his failure to complete his PM
objectives would result in charges of insubordination.
Id. at 3. During the meeting, Mr. Cox chose not to sit

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2013 WL 140624

down. Id.; see also Docket No. 38–3 at 9 (Cox Dep.
156:11–17). Mr. Molloy testified that Mr. Cox's refusal
to sit down did not violate Lockheed Martin's policies,
but the combination of him standing up, clenching his
jaw, and unclenching his fist made other employees
uncomfortable. Docket No. 43–12 at 2 (Molloy Dep.
43:17–21). Mr. Molloy, however, did not tell Mr. Cox
that other employees were concerned about his behavior
during meetings. Id. at 3 (Molloy Dep. 46:12–21, 48:3–
10). Ms. Stites also testified that she thought it was
disrespectful that Mr. Cox did not make eye contact
during meetings. Docket No. 43–4 at 5 (Stites Dep. 95:12–
24). However, Ms. Stites did not relay this information to
Mr. Cox. Id.
On August 9, 2010, Mr. Cox met with Ms. Kerr and Mr.
Molloy to discuss his flow-down objectives. Docket No.
38–18 at 3. According to Mr. Molloy's meeting notes, Mr.
Cox again refused to include the flow-down objectives in
his PM process file, refused to participate in a discussion
about his performance expectations, and told Mr. Molloy
and Ms. Kerr to place him on a PIP. Id. Mr. Cox states
that he did not tell Ms. Kerr and Mr. Molloy to place him
on a PIP. Docket No. 43–1 at 2, ¶ 10.
On September 24, 2010, Mr. Molloy and Ms. Stites
informed Mr. Cox that he would be placed on a PIP.
Docket No. 38–20. The PIP required Mr. Cox to, among
other things, enter his flow-down objectives, identify at
least three or more flow-down objectives in his PM process
file, attend daily and weekly meetings with his group, and
attend weekly PIP meetings with Mr. Molloy. Docket No.
38–22. According to Ms. Stites' meeting notes, Mr. Cox
refused to sign the PIP and said that he would not honor
the terms of the PIP. 5 Id. In response, Ms. Stites informed
Mr. Cox that, although he did not have to sign the PIP, he
was expected to meet the objectives listed therein. 6 Id.
*4 Later on September 24, 2010, Ms. Burch had a
phone conversation with Mr. Cox. Docket No. 38–4 at 3
(Cox Dep. 180:19–25). Ms. Burch and Mr. Cox provide
differing accounts of what happened. According to Ms.
Burch's interview notes, Mr. Cox said that Mr. Molloy
and Ms. Kerr “have no idea” what he does at work and
that he “wouldn't be on this PIP” if they knew how much
work he did. Docket No. 38–16 at 9. Ms. Burch's notes
also indicate that Mr. Cox also said that he was getting
nosebleeds, something was “killing [him] inside,” and that
one of these days he would be found “slumped over [his]

desk.” Id. at 10. Mr. Cox also said that “[a] dog that has
been beaten repeatedly will turn even on a good master.
There's been no apology made to me for the way I've been
treated ... [and][e]very metal has a breaking point.” Docket
No. 38–16 at 11.
Mr. Cox denies making these statements on September
24, 2010. Docket No. 43–1 at 2–3, ¶¶ 13–16. Mr. Cox
claims that he made the statements regarding the abused
dog and metal's breaking point on August 4, 2010, and
that the comment about the dog was an analogy about the
effect that certain acts of defendant had on Ms. Romero.
Docket No. 38–4 at 4 (Cox.Dep.194:23–195:10, 196:11–
15). Mr. Cox denies stating that he has never received
an apology for the way he was treated, but admits that
he once told Ms. Burch that the pressures of his work
caused him to have nosebleeds. 7 Docket No. 43–1 at 2–
3, ¶ 13. Because she was concerned about Mr. Cox's wellbeing, Ms. Burch testified that she told Monty Pierce,
a Case Management Team (“CMT”) member, that Mr.
Cox appeared angry and was experiencing some health
issues. Id. at 7 (Burch Dep. 73:8–12). CMT is responsible
for dealing with individuals who are a risk factor to
themselves or others. Docket No. 38–10 at 7 (Burch Dep.
74:13–18). Thereafter, Mr. Cox took medical leave from
September 7, 2010 to October 4, 2010. 8 Docket No. 39–
1 at 8.
On October 7, 2010, Mr. Molloy, Ms. Kerr, and Ms.
Stites discussed the September 24, 2010 PIP with Mr.
Cox. 9 Docket No. 38–18 at 5. According to Ms. Stites'
meeting notes, Mr. Molloy gave Mr. Cox an opportunity
to acknowledge the objectives and successfully complete
the PIP, which Mr. Cox refused to do. Id. Later that
day, Mr. Pierce asked Ms. Stites to investigate Mr. Cox
with regards to allegations of insubordination. Docket
No. 43–3 at 3 (Stites Dep. 43:17–25). Ms. Stites, however,
did not advise Mr. Cox that he was under investigation.
Id. at 4 (Stites Dep. 52:10–14). Ms. Stites testified that
insubordination is considered a performance-based issue
because it relates to an employee's failure to follow
instructions. Docket No. 43–4 at 1 (Stites Dep. 58:11–
15). Ms. Stites stated that, since the investigation was a
performance-based investigation, Mr. Pierce told her that
she was not required to contact Mr. Cox as part of the
investigation. 10 Id. (Stites Dep. 59:8–25).

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*5 In the morning of October 8, 2010, Mr. Cox asked Mr.
Molloy for help with inserting his flow-down objectives.
Docket No. 39–1 at 9. Mr. Cox told Mr. Molloy that
he wanted to complete the first objective of his PIP
by entering his PM process objectives. Id. Mr. Molloy
testified that, although Mr. Cox did not actually input his
flow-down objectives, he nonetheless credited 11 Mr. Cox
for completing one paragraph of the September 24, 2010
PIP. Docket No. 43–6 at 3 (Molloy Dep. 76:15–24); Id. at
4 (Molloy Dep. 88:11–17).
Later that day, Ms. Kerr, Ms. Stites, and Mr. Molloy
told Mr. Cox that Lockheed Martin was worried about
his well being due to some “disturbing behavior and
statements made over the last several months.” Docket
No. 43–1 at 3, ¶ 15. They advised Mr. Cox that
he would be removed from the work environment
pending a formal risk assessment performed by Dr. John
Nicoletti, a clinical psychologist who specializes in anger
management. Docket No. 39–1 at 9.
On October 15, 2010, Dr. Nicoletti performed Mr. Cox's
risk assessment. Docket No. 39–3. Dr. Nicoletti concluded
that there was insufficient evidence to show that Mr.
Cox presented a risk of danger to himself or other coworkers. Id. at 3. However, Dr. Nicoletti found that
Mr. Cox had “engaged in behaviors that [ ] created
Social and Psychological Disruption.” Id. Dr. Nicoletti
recommended that Lockheed Martin require Mr. Cox to
follow nine behavioral expectations upon his return to
work or be subject to disciplinary action. Id. at 12–13.
Based on Dr. Nicoletti's recommendations, Lockheed
Martin presented Mr. Cox with a revised PIP dated
November 4, 2010, Docket No. 38–24, and a Return to
Work Expectations (“RTWE”) document. Docket No.
38–25; Docket No. 43–5 at 2 (Rule 30(b)(6) Dep. 6:2–
24). The RTWE stated, among other things, that Mr.
Cox's failure to abide by the terms of the November 2,
2010 PIP or refusal to comply with the PIP could result
in disciplinary action, including termination. Docket No.
38–25 at 2.
On November 4, 2010, Mr. Cox met with Mr. Molloy,
Ms. Kerr, and Ms. Stites to discuss the RTWE and a
PIP dated November 4, 2010. Docket No. 39–1 at 11–
13. Ms. Stites presented Mr. Cox with the revised PIP.
Docket No. 38–6 at 7 (Molloy Dep. 107:5–9). Mr. Molloy
testified that Mr. Cox refused to engage in any meaningful

conversation about its contents, id. (Molloy Dep. 107:19–
25); Docket No. 38–4 at 10 (Cox Dep. 233:11–13), refused
to sign the PIP, returned his work badges to Ms. Kerr, and
said that he knew where this meeting was going. Docket
No. 38–4 at 10 (Cox Dep. 234:8–235:17). Mr. Cox testified
that he refused to sign the revised PIP because his work
performance had been satisfactory and Dr. Nicoletti had
found that he was not a threatening individual. Id. Mr.
Cox also believed that the behavioral requirements of the
November 24, 2010 PIP were demeaning and unjustified.
Id. On November 5, 2010, Mr. Cox was told that he would
be suspended pending an investigation into charges of
insubordination. Id. at 9 (Cox Dep. 231:4–12). This was
the first time Mr. Cox was notified of the investigation Ms.
Stites had started on October 7, 2010. Id.; Docket No. 43–
4 at 4 (Stites Dep. 108:7–13).
*6 Ms. Stites' investigation focused on allegations that
Mr. Cox exhibited insubordinate behavior when he: (1)
failed to input his flow-down objectives; (2) refused to
sign his September 24, 2010 PIP; (3) refused to engage in
respectful discussions with his supervisors; and (4) refused
to sign and/or acknowledge the revised PIP of November
4, 2010 and comply with the RTWE. Docket No. 39–
1 at 3–4. At the conclusion of her report, Ms. Stites
found that three of the four allegations against Mr. Cox
were substantiated. Id. at 14–15. The results of Ms. Stites'
investigation were then presented to the Administrative
Review Committee (“ARC”). Docket No. 38–5 at 6 (Stites
Dep. 69:12–24).
On December 3, 2010, the ARC and the Executive Review
Committee (“ERC”) unanimously recommended that
Lockheed Martin terminate Mr. Cox's employment. 12
Docket 38–26. The ARC and ERC concluded that Mr.
Cox exhibited insubordinate behavior when he refused to
(1) enter his flow-down objectives into the PM process,
(2) acknowledge the September 24, 2010 PIP, 13 (3)
engage in respectful discussions with his supervisors,
and (4) acknowledge or sign the November 4, 2010 PIP
or the RTWE. Id. The ARC based its decision on all
four allegations contained in the report, concluding that
none of the individual allegations was more significant
than any other. 14 Docket No. 43–5 at 3 (Rule 30(b)
(6) Dep. 59:22–60:11). Lockheed Martin also contacted
Mr. Cox by telephone about his termination, but did not
provide him with any information on the allegations of
insubordination. Docket No. 43–1 at 4, ¶¶ 24–25.

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Mr. Cox appealed his termination to Rich Kludt, vice
president of HR. Docket No. 38–28 at 2–3. In his appeal,
Mr. Cox argued that he was not given an opportunity to
present information regarding his termination and present
“his side of the story.” Id. In response to the appeal,
Mr. Kludt requested that Mr. Cox submit all pertinent
documentation no later than December 21, 2010. Id. Mr.
Cox did not provide Mr. Kludt with any information.
Docket No. 38–4 at 15 (Cox Dep. 274:4–20). On January
12, 2011, Lockheed Martin denied Mr. Cox's appeal.
Docket No. 38–29.
On December 2, 2010, Mr. Cox filed a charge of
discrimination with the Colorado Civil Rights Division
(“CCRD”) and the Equal Employment Opportunity
Commission (“EEOC”). Docket No. 1 at 2, ¶ 3. On
March 11, 2011, Mr. Cox received a Notice of Right
to Sue from the EEOC. Id. at ¶ 5. On June 6, 2011,
Mr. Cox commenced this action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and 42 U.S.C. § 1981 alleging that he was subject to (1)
discrimination on the basis of race and (2) retaliation for
participating in protected activity. Docket No. 1 at 6–9.
On April 30, 2012, Lockheed Martin moved for summary
judgment on all of plaintiff's claims. Docket No. 38.

II. STANDARD OF REVIEW
According to Federal Rule of Civil Procedure 56, a court
“shall grant summary judgment 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); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248–50 (1986). In pursuing summary
judgment, the moving party generally bears the initial
burden of showing the absence of a genuine dispute
concerning a material fact in the case. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). However, “[w]hen, as
in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden
at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir.2001).
*7 “Once the moving party meets this burden, the burden
shifts to the nonmoving party to demonstrate a genuine
issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518

(10th Cir.1994) (citing Celotex, 477 U.S. at 325). The
nonmoving party may not rest solely on the allegations
in the pleadings, but instead must designate “specific
facts showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324; see FED.R.CIV.P. 56(e). “To
avoid summary judgment, the nonmovant must establish,
at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at
1115. However, to be clear, “it is not the party opposing
summary judgment that has the burden of justifying its
claim; the movant must establish the lack of merit .” Alpine
Bank v. Hubbell, 555 F.3d 1097, 1110 (10th Cir.2009).
Only disputes over material facts can create a genuine
issue for trial and preclude summary judgment. Faustin
v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th
Cir.2005). A fact is “material” if, under the relevant
substantive law, it is essential to proper disposition of the
claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–
32 (10th Cir.2001). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837,
839 (10th Cir.1997) (citing Anderson, 477 U.S. at 248).

III. ANALYSIS
A. Discrimination Based on the September 24, 2010
PIP
In his first claim for relief, Mr. Cox alleges that Lockheed
Martin discriminated against him because of his race in
violation of 42 U.S.C. § 1981 and Title VII by placing
him on a PIP on September 24, 2010. 15 Docket No. 1
at 6–7. “In racial discrimination suits, the elements of a
plaintiff's case are the same whether that case is brought
under §§ 1981 or 1983 or Title VI I.” Carney v. City & Cnty.
of Denver, 534 F.3d 1269, 1273 (10th Cir.2008) (quoting
Baca v. Sklar, 398 F.3d 1210, 1218 n. 3 (10th Cir.2005));
accord Barlow v. C.R. England, Inc., 703 F.3d 497, 2012
WL 6685467, at *5 (10th Cir. Dec. 26, 2012).
Mr. Cox, however, has not presented any direct evidence
that racial animus played a role in his placement on the
September 24, 2010 PIP. Absent direct evidence of race
discrimination, the Court will apply the burden-shifting
analysis of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). See Crowe v. ADT Sec. Servs. Inc., 649
F.3d 1189, 1194 (10th Cir.2011). Under the McDonnell
Douglas three-step analysis, plaintiff must first prove a
prima facie case of discrimination. See Garrett v. Hewlett–

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Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002). To
set forth a prima facie case of discrimination, a plaintiff
must establish that he (1) is a member of a protected
class, (2) was qualified and satisfactorily performing his
job, and (3) suffered an adverse employment action under
circumstances giving rise to an inference of discrimination.
See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th
Cir.1998); Khalik v. United Air Lines, 671 F.3d 1188,
1193 (10th Cir.2012); Equal Employment Opportunity
Commission v. PVNF, L.L.C., 487 F.3d 790, 800 (10th
Cir.2007) (citing Sorbo v. United Parcel Serv., 432 F.3d
1169, 1173 (10th Cir.2005)). 16 The burden then shifts to
the defendant to produce a legitimate, non-discriminatory
reason for the adverse employment action. See Garrett,
305 F.3d at 1216. If the defendant does so, the burden then
shifts back to the plaintiff to show that his protected status
was a determinative factor in the employment decision or
that the employer's explanation is pretext. Id. Here, it is
undisputed that Mr. Cox meets the first two elements of
his prima facie case. Defendant, however, argues that Mr.
Cox does not sufficiently show that his placement on a
PIP on September 24, 2010 occurred under circumstances
giving rise to an inference of unlawful discrimination.
Docket No. 38 at 13–14.
*8 Defendant claims that Mr. Cox was placed on
a PIP for his repeated failure to follow instructions
from his managers and enter his flow-down objectives
in accordance with company policy. Id. at 14–15. In
his response, Mr. Cox presents no evidence to rebut
this claim. Based on the evidence in the record, it is
clear that Mr. Cox was placed on a PIP on September
24, 2010 because of his refusal to enter his flow-down
objectives in his PM process file despite several warnings
from his supervisors. See Docket No. 38–15 at 1; Docket
No. 38–9 at 2; Docket No. 38–18 at 2. Therefore, Mr.
Cox fails to show that the September 24, 2010 PIP was
issued under circumstances giving rise to an “inference of
discrimination.” Daniels v. United Parcel Serv., Inc., 701
F.3d 620, 627 (10th Cir.2012). Because Mr. Cox fails to
raise a genuine issue of material fact with respect to the
September 24, 2010 PIP, the Court finds that defendant is
entitled to summary judgment on plaintiff's first claim.

B. Discriminatory Termination
In his third claim for relief, Mr. Cox alleges that he
was terminated on December 3, 2010 because of his
race. Docket No. 1 at 8–9. As noted above, without

direct evidence of discrimination, Mr. Cox must rely
on the three-part, burden-shifting framework set out in
McDonnell Douglas. Under this framework, Mr. Cox
must first establish a prima facie case of discrimination.
Khalik, 671 F.3d at 1192. Only after Mr. Cox clears this
initial hurdle does the burden shift to the employer to
prove a “legitimate, non-discriminatory reason for the
adverse employment action.” Id . If Mr. Cox does not
establish a prima facie case, his claim fails. McDonnell
Douglas, 411 U.S. at 802 (“The complainant in a Title
VII trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination.”).
Here, it is undisputed that Mr. Cox meets the first two
elements of his prima facie case. Defendant, however,
argues that Mr. Cox does not sufficiently show that his
termination occurred under circumstances giving rise to
an inference of unlawful discrimination. Docket No. 38 at
13–14.
“The critical prima facie inquiry in all cases is whether the
plaintiff has demonstrated that the adverse employment
action occurred under circumstances which give rise
to an inference of unlawful discrimination.” Plotke v.
White, 405 F.3d 1092, 1100 (10th Cir.2005) (citation and
quotations omitted). In order to establish the third prong
of a prima facie case, Mr. Cox can present evidence
of “preferential treatment given to employees outside
the protected class,” “actions or remarks made by [a]
decision maker,” or circumstances related to “the timing
or sequence of events leading to” his termination. Id. at
1101 (citation and quotation omitted). The real question
is “whether a plaintiff has shown actions taken by the
employer from which one can infer, if such actions remain
unexplained, that it is more likely than not that such
actions were based on a discriminatory criterion.” Hysten
v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1181
(10th Cir.2002) (internal quotation and citation omitted).
*9 Mr. Cox presents four arguments to show that his
termination arose under circumstances giving rise to an
inference of discrimination. First, Mr. Cox argues that
he was treated differently than other similarly situated
employees because he was supposedly terminated for
refusing to sign his PIP while similarly situated employees
outside of his suspect class kept their employment for
the same offenses. Docket No. 43 at 13. Second, Mr.
Cox claims that defendant provided inconsistent reasons
to support the decision to terminate his employment. Id.
at 14. Third, Mr. Cox contends that defendant's stated

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reasons for termination are false. Id. Finally, Mr. Cox
asserts that defendant failed to follow its own policies and
procedures when investigating plaintiff's insubordination.
Id. at 16–17. The Court assumes, without deciding, that
these four factors are sufficient for plaintiff to establish his
prima facie case of discrimination based on race. 17
Accordingly, under McDonnell Douglas, the burden
then shifts to defendant to demonstrate a legitimate,
non-discriminatory reason for its termination decision.
Defendant asserts that it terminated Mr. Cox's
employment due to his (1) refusal to enter management's
flow-down objectives, (2) refusal to sign the September 24,
2010 PIP, (3) refusal to engage in respectful discussions
with his supervisors, and (4) refusal to acknowledge and
sign the November 4, 2010 PIP and RTWE. Docket No.
38–26. Because these are reasons that are not facially
prohibited, defendant has satisfied its burden to produce
legitimate non-discriminatory reasons for terminating Mr.
Cox's employment. See Stinnett v. Safeway, Inc., 337 F.3d
1213, 1218 (10th Cir.2003).
Therefore, the burden shifts back to Mr. Cox to show
that defendant's stated reasons are pretext for unlawful
discrimination. To defeat summary judgment, Mr. Cox
must show that there is a genuine dispute of material fact
as to whether defendant's explanations for terminating
his employment are pretextual. See Mickelson v. N.Y.
Life Ins. Co., 460 F.3d 1304, 1318 (10th Cir.2006). Mr.
Cox relies on four pieces of circumstantial evidence to
establish pretext: (1) evidence that defendant treated him
differently than similarly situated employees; (2) evidence
that defendant gave a false explanation for Mr. Cox's
termination; (3) evidence of allegedly inconsistent and
contradictory reasons that defendant gave to terminate
Mr. Cox's employment; and (4) procedural irregularities
that allegedly occurred in the course of Mr. Cox's
investigation for insubordination. Docket No. 43 at 12–
17.

1. Similarly Situated
Mr. Cox contends that defendant's stated reasons for his
termination are pretextual because two similarly situated
employees outside of his protected class, Steve Moody
and Mary Romero, were not terminated even though
they refused to sign PIPs issued by defendant. 18 Docket
No. 43 at 13. Moreover, Mr. Cox argues that Ms. Stites
testified that she knows of no other employee who has

been terminated for refusing to sign his PIP. Docket No.
43–4 at 3 (Stites Dep. 87:6–10).
*10 Individuals are considered similarly situated “when
they deal with the same supervisor, are subjected to the
same standards governing performance evaluation and
discipline, and have engaged in conduct of ‘comparable
seriousness.’ “ PVNF, 487 F.3d at 801 (quoting McGowan
v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006));
see also Rivera v. City & Cnty. of Denver, 365 F.3d 912,
922 (10th Cir.2004) (“[c]omparison of one disciplinary
action with another ordinarily is relevant only to show
the bias of the person who decided upon the disciplinary
action”). The Tenth Circuit has noted that differences in
how different employees are treated “may be explained
by the fact that discipline was administered by different
supervisors, or that the events occurred at different times
when the company's attitudes toward certain infractions
were different, or that the individualized circumstances
surrounding the infractions offered some mitigation for
the infractions less severely punished.” EEOC v. Flasher
Co., 986 F.2d 1312, 1320 (10th Cir.1992) (citations
omitted). In some cases, there may be “no rational
explanation for the differential treatment” between
employees “other than the inevitability that human
relationships cannot be structured with mathematical
precision, and even that explanation does not compel the
conclusion that the defendant was acting with a secret,
illegal discriminatory motive.” Id.
In the present case, the dissimilarities between the
allegedly comparable situations of Ms. Romero and Mr.
Moody and Mr. Cox's own dismissal are too great to
warrant an inference of discriminatory animus. It is
undisputed that the ARC and the ERC terminated Mr.
Cox's employment not simply because of his failure to
sign two PIPs, but also because he was disrespectful to his
supervisors, refused to enter his flow-down objectives, and
refused to abide by the RTWE. Docket No. 38–26; Docket
No. 43–5 at 3 (Rule 30(b)(6) Dep. 59:22–60:11). Although
Mr. Cox alleges that Mr. Moody and Ms. Romero are
similarly situated to him, he does not present evidence
showing that they were accused of comparably serious
violations. See Kendrick v. Penske Transp. Servs., 220 F.3d
1220, 1230 (10th Cir.2000) (plaintiff may show pretext
by “providing evidence that he was treated differently
from other similarly-situated employees who violated
work rules of comparable seriousness”); McGowan, 472
F.3d at 745 (“[e]ven employees who are similarly situated

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must have been disciplined for conduct of ‘comparable
seriousness' in order for their disparate treatment to be
relevant”). Without this evidence, Mr. Cox fails to show
that his conduct was sufficiently similar to that of Ms.
Romero and Mr. Moody. Accordingly, the Court finds
that Mr. Cox has failed to show that Mr. Moody and
Ms. Romero were charged with offenses of “comparable
seriousness” and, because there are significant differences
between their circumstances, he does not show that they
are similarly situated.

2. False Explanation
*11 Next, Mr. Cox argues that one of the reasons
provided by defendant for his termination—that Mr. Cox
refused to acknowledge and abide by the terms of the
RTWE—is pretextual. Docket No. 43 at 14. In support,
Mr. Cox states that paragraph 2 of the RTWE required
that he “acknowledge and sign the revised Performance
Improvement Plan dated November 2, 2010.” Docket
No. 38–25 at 1. In addition, paragraph 6b of the RTWE
required that Mr. Cox “sign, acknowledge or comply with
the revised PIP.” Id. at 2. Mr. Cox claims that, because
defendant presented a revised PIP dated November 4,
2010 and not November 2, 2010, he was never given an
opportunity to comply with paragraphs 2 and 6b of the
RTWE. Docket No. 43 at 14.
“In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory
purpose.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 147 (2000). “The relevant inquiry is not
whether [the employer's] proffered reasons were wise,
fair or correct, but whether [it] honestly believed those
reasons and acted in good faith upon those beliefs.”
Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924–
25 (10th Cir.2004) (alterations in original) (internal
quotation marks omitted) (quoting Bullington v. United
Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999),
overruled on other grounds by Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101 (2002)). “In determining whether
the proffered reason for a decision was pretextual, ‘we
examine the facts as they appear to the person making the
decision.’ “ Watts v. City of Norman, 270 F.3d 1288, 1295
(10th Cir.2001) (quoting Selenke v. Med. Imaging of Colo.,
248 F.3d 1249, 1261 (10th Cir.2001)). “An articulated
motivating reason is not converted into pretext merely
because, with the benefit of hindsight, it turned out to
be poor business judgment.” McKnight v. Kimberly Clark

Corp., 149 F.3d 1125, 1129 (10th Cir.1998). The Court's
role is to prevent and redress employment discrimination,
and not to act as a “ ‘super personnel department,’ second
guessing employers' honestly held (even if erroneous)
business judgments.” Young v. Dillon Cos., Inc., 468 F.3d
1243, 1250 (10th Cir.2006) (quoting Jones v. Barnhart, 349
F.3d 1260, 1267 (10th Cir.2004)).
The Court finds that Mr. Cox does not show that
defendant's reason for terminating his employment was
pretextual. First, the RTWE identifies several behavioral
expectations that Mr. Cox was required to follow upon
his return to work. Docket No. 38–25. As noted above,
Mr. Cox testified at his deposition that he would not
comply with these behavioral requirements because he
found them demeaning. Docket No. 38–4 at 10 (Cox
Dep. 235:1–7). Moreover, Mr. Cox admitted that he
refused to acknowledge and sign the November 4, 2010
PIP. 19 Id. at 11 (Cox Dep. 240:17–20). In a challenge
involving pretext, “[i]t is the manager's perception of the
employee's performance that is relevant, not plaintiff's
subjective evaluation of his own relative performance.”
Furr v. Seagate Tech ., Inc., 82 F.3d 980, 988 (10th
Cir.1996). The fact that the RTWE identified a date
of November 2, 2010 for the revised PIP, while the
revised PIP presented to Mr. Cox was dated November
4, 2010 does not give rise to an inference that defendant's
stated reason for termination was false. Flasher, 986 F.2d
at 1322 n. 12 (“a mistaken belief can be a legitimate
reason for an employment decision and is not necessarily
pretextual”). Based on the evidence presented to the ARC
and the ERC, it was reasonable to believe that Mr. Cox
would not comply with any PIP that included a list of
behavioral expectations. Tesh v. U.S. Postal Serv., 349
F.3d 1270, 1273 (10th Cir.2003) (noting that in pretext,
the question is not whether employer's stated reason
for the plaintiff's termination was factually accurate, but
whether the employer “reasonably ‘perceived’ that it was
accurate.”). Simply because the date listed on the revised
PIP varied slightly from the RTWE does not make the
ARC's and the ERC's belief any less credible. Accordingly,
because the ARC and the ERC had a good faith belief
that Mr. Cox failed to comply with the RTWE, Mr.
Cox has not raised an issue of material fact regarding
defendant's explanation for his termination. Metzler v.
Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179
(10th Cir.2006).

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3. Inconsistent and Contradictory Reasons for
Termination
*12 Mr. Cox next argues that defendant offered two
inconsistent explanations for his termination. Docket No.
43 at 12. First, Mr. Cox asserts that defendant's shifting
rationale between “signing” and “acknowledging” a PIP
shows this reason for termination is pretextual. Docket
No. 43 at 13. Second, Mr. Cox claims that, because he was
not disrespectful to leadership, this reason for termination
is contradictory. Id. at 15–16.
Mr.
Cox
can
demonstrate
pretext
by
showing “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action.” Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997); see also
Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1111
(10th Cir.2005). Evidence of an inconsistent reason for
termination is only helpful to a plaintiff if “the employer
has changed its explanation under circumstances that
suggest dishonesty or bad faith .” See Jaramillo v. Colo.
Judicial Dep't, 427 F.3d 1303, 1310 (10th Cir.2005).
Mr. Cox claims that the ARC and the ERC first found that
he was insubordinate for failing to “sign” the September
24, 2010 PIP, but then found that he was insubordinate
for “refusing to acknowledge and sign” the November 4,
2010 PIP. Docket No. 38–26 at 1. Mr. Cox argues that he
was never advised about the difference between signing a
PIP and acknowledging a PIP. Docket No. 43–1 at 3, ¶ 17.
He asserts that defendant does not have a clear definition
for the differences between “sign” and “acknowledge” and
adopted Ms. Stites' definition. Docket No. 43–5 at 4 (Rule
30(b)(6) Dep. 62:5–9).
The Court finds that, while defendant may have relied
on both Mr. Cox not signing his PIPs and not
acknowledging his PIPs, defendant's explanations for Mr.
Cox's termination have not been inconsistent. Jaramillo,
427 F.3d at 1311 (“Courts have looked to two factors
to evaluate a change in the employer's explanation for
an employment decision: (1) the timing of the change
in position and (2) the evidentiary basis for the new
rationale.”). The evidence in the record shows that, during
the week of October 4, 2010 to October 8, 2010, Mr. Cox
made some effort to comply with the September 24, 2010
PIP by attending group meetings, Docket No. 43–6 at 4
(Molloy Dep. 86:11–14), and even once approached Mr.
Molloy to enter his flow-down objectives. Id. at 3 (Molloy

Dep. 76:17–24). However, as noted in the investigation
report, Mr. Cox was found to be insubordinate, not for
failing to comply with the September 24, 2010 PIP, but
for repeatedly indicating that it was not his PIP and
that he would not follow the PIP. Docket No. 39–1
at 14. In addition, although Ms. Stites states that it is
unclear whether the distinction between “acknowledging”
and “signing” the PIP was made clear to Mr. Cox
on September 24, 2010, id. (Stites Dep. 85:4–8), it is
undisputed that Mr. Cox refused to acknowledge and sign
the November 4, 2010 PIP. Docket No. 38–4 at 11 (Cox
Dep. 240:14–20).
*13 Based on this evidence, defendant has not changed
its rationale between “signing” and “acknowledging” in
order to “mask an illegitimate motive.” Jaramillo, 427
F.3d at 1310. On the contrary, defendant's explanation
for finding that Mr. Cox did not acknowledge the PIP
is based on Mr. Cox's repeated statements that the
September 24, 2010 PIP was “unjustified.” Docket No.
38–4 at 2 (Cox Dep. 173:5–14, 174:6–9). As Ms. Stites
testified, although there is no Lockheed Martin policy
defining what it means to acknowledge a PIP, an employee
can acknowledge a PIP by “[a]gree[ing] to abide by the
PIP, understand that this is a PIP document that needs
to be completed.” Docket No. 43–4 at 2 (Stites Dep.
79:21–24). In this case, it is clear that Mr. Cox never
acknowledged his PIPs, signed his PIPs, or stated that he
understood it was a document that had to be completed.
Based on these facts, the Court finds that the distinction
between signing and acknowledging a PIP would not
cause a rational factfinder to discount the legitimacy
of defendant's non-retaliatory explanation for Mr. Cox's
termination. Jaramillo, 427 F.3d at 1310 (inconsistency
evidence is only helpful to a plaintiff if “the employer has
changed its explanation under circumstances that suggest
dishonesty or bad faith”).
Next, Mr. Cox contends that, because he was not
disrespectful to his supervisors, defendant's stated reason
for terminating his employment is contradictory. Docket
No. 43 at 15–16. Mr. Cox claims that, although he stood
up during meetings, Mr. Molloy, Ms. Stites, and Ms. Kerr
never insisted that he sit down or that he make more eye
contact. Id. In addition, Mr. Cox states that neither Mr.
Molloy, Ms. Stites, nor any other employee at Lockheed
Martin told him that they viewed his behavior negatively.
Id.

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Even assuming Mr. Cox subjectively believed he did not
have a poor attitude, “[i]t is the manager's perception of
the employee's performance that is relevant, not plaintiff's
subjective evaluation of [his] own relative performance.”
Furr, 82 F.3d at 988. The evidence in the record shows
that Mr. Cox clenched his fists during meetings, Docket
No. 43–12 at 2 (Molloy Dep. 43:17–21), wore headphones
during meetings, Docket No. 38–2 at 9 (Cox Dep.
74:11–19), responded in an untimely manner to email
correspondence, repeatedly refused to enter his flowdown objectives, Docket No. 38–18 at 2, and elevated
his voice when talking to Mr. Molloy. Based on the
foregoing, the Court finds that no reasonable juror could
find that Mr. Molloy, Ms. Stites, the ARC, and the
ERC did not genuinely perceive Mr. Cox as having
inadequate interpersonal skills or failing to show respect
for his supervisors. Accordingly, Mr. Cox has not raised
a genuine issue of material fact regarding defendant's
explanation that Mr. Cox was terminated, in part, because
of a lack of adequate interpersonal skills and failure to
respect his supervisors.

4. Defendant's Actions were Contrary to Established
Policies
*14 Finally, Mr. Cox argues that defendant's failure to
seek his response to the allegations of insubordination is
sufficient to show that its reasons for terminating him were
a pretext for discrimination. Docket No. 43 at 17. Mr. Cox
argues that, pursuant to defendant's policies, the ARC was
required to provide him with an opportunity to respond
to his charges of insubordination. 20 Id. Moreover, Mr.
Cox states that Mr. Pierce, a member of the CMT and
ARC, told Ms. Stites that she did not have to contact Mr.
Cox in the course of her investigation. Mr. Cox argues
that defendant's failure to let him defend his charge of
insubordination is evidence of pretext. 21 Docket No. 43
at 17.
The fact that a “defendant acted contrary to a written
company policy prescribing the action to be taken by
the defendant under the circumstances” may in an
appropriate case give rise to a fact issue regarding pretext.
Kendrick, 220 F.3d at 1230. The Tenth Circuit has
held “disturbing procedural irregularities surrounding an
adverse employment action may demonstrate that an
employer's proffered nondiscriminatory business reason
is pretextual.” Timmerman v. U.S. Bank, N.A., 483 F.3d
1106, 1122 (10th Cir.2007). However, “[t]he mere fact that

an employer failed to follow its own internal procedures
does not necessarily suggest that the substantive reasons
given by the employer for its employment decision were
pretextual.” Berry v. T–Mobile USA, Inc., 490 F.3d
1211, 1222 (10th Cir.2007) (alteration omitted) (internal
quotation marks omitted).
“[T]he standard for establishing pretext requires evidence
of not just any procedural shortfall, but of a ‘disturbing
procedural irregularity,’ “ often exemplified by an
“employer's ‘falsifying or manipulating of relevant
criteria.’ “ Cooper v. Wal–Mart Stores, Inc., 296 F. App'x
686, 696 (10th Cir.2008) (citations omitted). Moreover,
an employee's mere allegation that his employer deviated
from company policy is insufficient to prove pretext;
rather, the employee must present evidence that the
employer believed that a relevant company policy existed
and chose to deviate from the policy in spite of that
belief. See Cooper, 296 F. App'x at 696 (finding that the
employer's failure to “seek out the employee's side of
the story” was contrary to company policy, but did not
amount to a “disturbing procedural irregularity” where
the employee failed to present evidence that the employer
believed that its policy required it to obtain the employee's
side of the story); Berry, 490 F.3d at 1222 (stating that
if the “decision makers did not believe a rigid policy
existed,” their mistake in failing to follow it does not show
pretext).
It is undisputed that defendant did not contact Mr. Cox
over the course of its investigation. However, according to
Ms. Stites, even though Lockheed Martin's policy states
that an employee should be given the opportunity to
submit a written statement before the investigation is
referred to the ARC, it had been company practice in
performance-based investigations for several years not to
include a written statement from the accused employee.
Docket No. 43–4 at 4 (Stites Dep. 107:17–23). Moreover,
Ms. Stites testified that, pursuant to company policy,
insubordination is considered a performance-based issue
because it relates to an employee's failure to follow
instructions. Id. at 1 (Stites Dep. 58:11–15). Thus, because
Mr. Cox's investigation was performance-based, Ms.
Stites testified that defendant was not required to contact
Mr. Cox over the course of the investigation. Id. at 1 (Stites
Dep. 59:8–25).
*15 The Court finds that Ms. Stites' interpretation
of defendant's policy does not constitute a “disturbing

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2013 WL 140624

procedural irregularity.” The policy is called “Conduct
and Disciplinary Action” and by its terms the policy
applies to employees accused of “wrongdoing,” as
opposed to employees being disciplined for substandard
work. In addition, Mr. Cox has not shown that defendant
had a rigid policy of interviewing an accused employee
before concluding a performance-based investigation.
Berry, 490 F.3d at 1222 (finding that, because it is
undisputed that decisionmakers did not believe a rigid
policy existed, “even if the failure to [follow procedure]
was a mistake, it was not pretextual”) (citation omitted).
Based on these facts, Mr. Cox has not proffered evidence
showing that defendant's failure to interview him is
evidence of a disturbing procedural irregularity. Cooper,
296 F. App'x at 696 (finding that establishing pretext
requires evidence “of not just any procedural shortfall,
but of a ‘disturbing procedural irregularity ... often
exemplified by an employer's ‘falsifying or manipulating
of relevant criteria’ ”) (citations omitted). Accordingly, the
Court finds that Mr. Cox fails to show that defendant's
failure to interview him prior to making a termination
decision is evidence of pretext. Id.

5. Conclusion
The record in this case shows that Mr. Cox was terminated
for his failure to implement flow-down objectives into
the PM process, his refusal to abide by the terms of
the September 24, 2010 PIP and the November 4, 2010
PIP, for repeatedly refusing to engage in respectful
conversations with his supervisors, and for his refusal to
abide by the RTWE established based on Dr. Nicoletti's
evaluation. Lockheed Martin had been trying to get Mr.
Cox to comply with the PM process since 2009. Viewing
the evidence in a light most favorable to Mr. Cox, the
evidence he presents does not show that defendant's stated
reasons are so weak, implausible, inconsistent, incoherent,
or contradictory that a reasonable jury could rationally
find them unworthy of belief. Morgan, 108 F.3d at 1323.
Accordingly, because Mr. Cox fails to raise a genuine
issue of material fact with respect to the basis for his
termination, the Court finds that defendant is entitled to
summary judgment on plaintiff's third claim.

C. Retaliation
1. Prima Facie Case
Mr. Cox argues that he was terminated for engaging in
protected activity. Docket No. 43 at 18. Title VII makes it

unlawful for an employer to retaliate against an employee
“because he has opposed any practice made an unlawful
employment practice by this subchapter .” 42 U.S.C. §
2000e–3(a). To prevail on a Title VII retaliation claim,
Mr. Cox must establish that retaliation played a part in
the employment decision. Fye v. Okla. Corp. Comm'n, 516
F.3d 1217, 1224 (10th Cir.2008).
One means by which Mr. Cox can establish retaliation
is through a “mixed-motive” theory, wherein he may
show direct evidence that retaliatory animus played a
“motivating part” in the employment decision. 22 See
Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998
(10th Cir.2011) (citation omitted). However, because Mr.
Cox presents no direct evidence showing a mixed motive,
he may also show retaliation through the McDonnell
Douglas framework. Id. Under this framework, Mr. Cox
must first establish a prima facie case of retaliation
by demonstrating that: (1) he engaged in protected
opposition to discrimination, (2) that a reasonable
employee would have found the challenged action
materially adverse, and (3) that a causal connection
existed between the protected activity and the materially
adverse action. Id. at 998 (internal quotation marks
omitted). If Mr. Cox establishes a prima facie case
of retaliation, then the burden-shifting analysis of
McDonnell Douglas is applicable and defendant must
articulate a legitimate, non-retaliatory reason for the
challenged employment decision. Fye, 516 F.3d at 1227. If
defendant meets this burden, then the plaintiff must prove
retaliation by showing that defendant's proffered reason
is pretextual. Id.
*16 Mr. Cox claims that he engaged in two instances of
protected activity: (1) the May 21, 2010 email to Ms. Kerr
notifying her that he and Ms. Romero were called “the
bugs” during a staff meeting and (2) the August 4, 2010
interview with Ms. Burch when he used the analogy about
metal's breaking point and an abused dog. 23 Docket
No. 43 at 18. The Court finds that these two events
qualify as protected activity under Title VII. See 42
U.S.C. § 2000e–3(a) (“[i]t shall be an unlawful employment
practice for an employer to discriminate against any of
his employees ... because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”); Hertz v.
Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir.2004)
(“[p]rotected opposition can range from filing formal
charges to voicing informal complaints to superiors”).

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Next, Mr. Cox alleges, and defendant does not dispute,
that the commencement of the ARC's investigation
and disciplinary disposition constitutes an adverse
employment action. Docket No. 43 at 19. To qualify
as adverse, an employer's action must be sufficient to
“dissuade” a reasonable worker from making a complaint
or supporting a charge of discrimination. Bertsch v.
Overstock.com, 684 F.3d 1023, 1028–29 (10th Cir.2012)
(noting that, after the Supreme Court's decision in
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006), a plaintiff is no longer required to show
“a significant change in her employment status” in a
prima facie case of retaliation). Here, the Court finds
that the commencement of the ARC's investigation
on August 18, 2010 and the requirement that Mr.
Cox undergo a risk assessment evaluation constitute
adverse employment actions because they are sufficient
to dissuade an employee from supporting a charge of
discrimination. Id.
Finally, Mr. Cox claims that he can show a causal
connection because his participation in Ms. Romero's
investigation triggered a series of actions which led to his
termination on December 3, 2010. Docket No. 43 at 18.
Mr. Cox argues that he can show causation because: (1)
the ARC commenced termination proceedings on August
18, 2010; 24 (2) the CMT began an investigation about
insubordination on October 7, 2010; (3) he was removed
from the work premises for a risk assessment on October
8, 2010; and (4) he was placed on leave on November 5,
2010 for failure to abide by the November 4, 2010 PIP and
the RTWE. Id. at 19.
In a case of retaliation, 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. Fye, 516 F.3d at 1228;
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir.1999); Metzler v. Fed. Home Loan Bank of Topeka, 464
F.3d 1164, 1171 (10th Cir.2006) (“a plaintiff may rely on
temporal proximity alone only if the termination is very
closely connected in time to the protected activity”).
*17 The Court finds that the two months between
Mr. Cox's participation in protected activity (testifying
about Ms. Romero's discrimination complaint) and the
adverse employment actions (the commencement of the
ARC termination process, the CMT investigation, and his

removal for a risk assessment) are sufficient to establish
a causal connection. See Anderson, 181 F.3d at 1179
(assuming a period of approximately nine weeks was
sufficient to establish a prima facie case of retaliation);
Annett v. Univ. of Kansas, 371 F.3d 1233, 1239–40
(10th Cir.2004) (holding that a period of up to two to
three months demonstrated causation for the purposes of
establishing a prima facie case under Title VII). Because
Mr. Cox has satisfied his burden to establish a prima facie
case of retaliation, defendant must now offer a legitimate,
nondiscriminatory reason for Mr. Cox's termination.

2. Legitimate Non–Discriminatory Reason for
Termination
Establishing a legitimate, nondiscriminatory reason is a
burden of production and “can involve no credibility
assessment.” Reeves, 530 U.S. at 142. As noted above,
defendant asserts that it commenced a CMT investigation
due to Mr. Cox's (1) refusal to enter management's flowdown objectives, (2) refusal to sign the September 24,
2010 PIP, (3) refusal to engage in respectful discussions
with his supervisors, and (4) refusal to acknowledge
or sign the November 4, 2010 PIP and RTWE.
Docket No. 38–26. Additionally, defendant contends
that it placed Mr. Cox on a PIP on September 24,
2010 because he refused to enter management's flowdown objectives into the PM process despite three
separate warnings from Ms. Kerr, Mr. Molloy, and
Ms. Stites. See Docket No. 38–15 at 1; Docket No.
38–9 at 2; Docket No. 38–18 at 2. Moreover, Mr.
Cox was required to undergo a risk assessment because
of the threatening nature of the statements he made
to Ms. Burch. Furthermore, Mr. Cox was terminated
because defendant found that the four allegations of
insubordination were substantiated. Because these are
legitimate, nondiscriminatory reasons for beginning an
investigation for subordination, requiring Mr. Cox to
undergo a risk assessment, and Mr. Cox's subsequent
termination, the burden now shifts to Mr. Cox to
show why defendant's nondiscriminatory reasons are
pretextual.

3. Pretext
To show pretext, Mr. Cox must “produce evidence
of 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

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of credence and hence infer that the employer did not act
for the asserted nondiscriminatory reasons.” Argo v. Blue
Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1203
(10th Cir.2006).
Mr. Cox's pretextual arguments rely predominantly on
the same evidence discussed in relation to his race
discrimination claim. See Docket No. 43 at 11–17. The
Court has already found that these reasons are insufficient
to establish pretext and there is nothing in the context
of his retaliation claim that makes them more sufficient
now. However, Mr. Cox makes two arguments specifically
related to his claim of retaliation. Mr. Cox appears to
argue that the ARC's decision to initiate termination
proceedings on August 18, 2010—leading to the October
7, 2010 investigation—and the decision to require that he
undergo a risk assessment show that defendant's reasons
for termination are pretextual. Docket No. 43 at 20.
*18 Mr. Cox claims insubordination was not a true
reason for beginning the ARC termination process
because, on August 18, 2010, most of the evidence of his
alleged insubordination had yet to occur. Docket No. 43
at 19–20. Moreover, Mr. Cox claims that he has provided
sufficient evidence of retaliation given that June Taylor,
an ARC member, was aware of Mr. Cox's participation in
Ms. Romero's case since September 24, 2010. 25 Id.
The Court finds that Mr. Cox does not sufficiently show
that the ARC's decision to commence the October 7,
2010 investigation was pretextual. Mr. Cox does not
rebut defendant's legitimate non-discriminatory reasons
for beginning the investigation, namely, that he: (1)
refused to enter his management flow-down objectives in
the PM process file; (2) refused to sign the September
24, 2010 PIP; (3) refused to engage in respectful
discussion with his leaders regarding his performance;
and (4) refused to acknowledge and sign the November
4, 2010 PIP and RTWE. Id. at 1–2. To the extent
plaintiff argues that defendant violated its own policies
during the investigation, the Court finds that defendant's
interpretation of a policy not to require interviewing him
was reasonable and therefore defendant did follow its
policy and that, even if defendant did fail to follow its
policy, plaintiff fails to show that such policy was rigidly
adhered to. See Berry, 490 F.3d at 1222.
Mr. Cox claims that the decision to investigate his
employment is tainted because Ms. Taylor, as a member of

the ARC, knew about his participation in Ms. Romero's
discrimination complaint. Docket No. 43 at 20. In her
complaint of discrimination, Ms. Romero asserted that
Kent Sorenson had called her and Mr. Cox “the bugs.”
Docket No. 39–2 at 13. Assuming Ms. Taylor was aware
of these allegations, Mr. Cox does not explain why Ms.
Taylor's knowledge of his involvement in Ms. Romero's
complaint could lead a rational factfinder to infer that
defendant's expressed reason for the investigation was
pretextual. Argo, 452 F.3d at 1203.
Next, Mr. Cox argues that he has sufficiently shown
retaliation because he was required to perform a risk
assessment based on comments he made during the
investigation of Ms. Romero's complaint. Docket No.
43 at 18–19. However, Mr. Cox does not dispute that
he used two analogies which led to CMT's decision to
require a risk assessment. Although Mr. Cox suggests
that the comments referred to Ms. Romero, both of these
analogies could be reasonably interpreted to constitute a
threat to the safety of the workplace. Ms. Burch testified
that she approached Mr. Pierce because she was concerned
that Mr. Cox was having some health issues and appeared
angry. 26 Docket No. 38–10 at 7 (Burch Dep. 73:8–12).
Moreover, it is undisputed that CMT also requested
the risk assessment based on evidence provided by Mr.
Molloy and Ms. Burch that Mr. Cox exhibited threatening
behavior. Docket No. 43–5 at 6 (Rule 30(b)(6) Dep.
73:18–25, 76:14–19). Mr. Molloy's evidence consisted of
the complaint brought forward by Mr. Floyd as well as
Mr. Molloy's own interactions with Mr. Cox. Id. (Rule
30(b)(6) Dep. 75:19–23). Given these non-discriminatory
reasons, the Court finds that Mr. Cox fails to show that
the decision to have him undergo a risk assessment was
pretextual.
*19 In summary, Mr. Cox does not present sufficient
evidence to show that defendant's stated reasons for the
October 7, 2010 investigation, the risk assessment, and
subsequently his termination are pretextual. Viewing the
evidence in a light most favorable to Mr. Cox, Mr. Cox
fails to demonstrate that defendant's non-discriminatory
reasons are so weak, implausible, inconsistent, or
incoherent that a reasonably jury could rationally find
them unworthy of belief. As a result, defendant is entitled
to summary judgment on Mr. Cox's retaliation claim.

IV. CONCLUSION

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For the foregoing reasons, it is
ORDERED that Defendant's Motion for Summary
Judgment [Docket No. 38] is GRANTED. It is further
ORDERED that the trial set for January 28, 2013 is
VACATED. It is further
ORDERED that, within 14 days of the entry of judgment,
defendant may have its costs by filing a bill of costs with
the Clerk of the Court. It is further
ORDERED that this case is CLOSED.

FINAL JUDGMENT
In accordance with the orders filed during the pendency
of this case, and pursuant to Fed.R.Civ.P. 58(a), the
following Final Judgment is hereby entered.

Pursuant to the Order (# 77) of Hon. Philip A. Brimmer
entered Jan. 11, 2013 it is
ORDERED that Defendant's Motion for Summary
Judgment (# 38) is GRANTED. Accordingly, it is
FURTHER ORDERED that judgment is hereby entered
in favor of Defendant Lockheed Martin Corporation
and against Plaintiff Cortez Cox, the plaintiff shall
recover nothing, the action is dismissed. Defendant is
further AWARDED its costs, to be taxed by the Clerk
of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and
D.C.COLO .LCivR 54.1.

All Citations
Not Reported in F.Supp.2d, 2013 WL 140624

Footnotes

1
2

3
4
5
6

7

The following facts, unless otherwise indicated, are not in dispute.
Mr. Cox does not deny that Mr. Fortin and Ms. Kerr told him about the possibility of a PIP; however, Mr. Cox testified that
he was wearing headphones during the meeting so he might not have heard his managers' criticisms. Docket No. 38–2
at 9 (Cox Dep. 74:11–19, 76:14–19). Additionally, Mr. Cox refused to sit down during the meeting, but maintains that he
did not turn his back on Ms. Kerr or Mr. Fortin. Id. at 8 (Cox Dep. 72:4–6).
On May 21, 2010, Ms. Romero, a quality assurance engineering staff member, complained that she and Mr. Cox were
called “the bugs” during a staff meeting. Docket No. 39–2 at 10–11. Evelyn Burch, a Lockheed Martin Equal Employment
Opportunity Programs (“EEOP”) investigator, investigated Ms. Romero's complaint. See Docket No. 39–2.
Mr. Cox told Ms. Burch that he was certain that he would placed on a PIP because Ms. Romero had been placed on
a PIP. Docket No. 43–1 at 1, ¶ 2.
Mr. Cox disputes these facts and states that, although he refused to sign the PIP, Docket No. 38–4 at 3 (Cox Dep. 180:3–
6); id. at 11 (Cox Dep. 240:14–17), he testified that he would comply with the terms of the PIP and do what his managers
asked of him. Id. at 2 (Cox Dep. 173:6–14); Docket No. 43–1 at 3, ¶ 17.
In her deposition, Ms. Stites testified that there is no Lockheed Martin policy that identifies the difference between an
employee signing or merely acknowledging a PIP. Docket No. 43–4 at 3 (Stites Dep. 85:16–25). Ms. Stites testified that
Lockheed Martin requires that an employee sign a PIP but, in the event an employee does not sign the PIP, that employee
is still expected to perform the expectations of the PIP. Id. at 2 (Stites Dep. 79:4–12–25). Ms. Stites also indicated that
refusing to sign a PIP or refusing to acknowledge a PIP is not an independently terminable offense. Id. at 3 (Stites Dep.
86:7–20). Ms. Stites stated that she has never terminated another employee for refusing to sign a PIP. Id. (Stites Dep.
87:6–10).
In its reply, defendant argues that Mr. Cox cannot rely on “his own uncorroborated, self-serving and conclusory
statements ... to establish genuine issues of material fact.” Docket No. 44 at 1 (citing Salguero v. City of Clovis, 366
F.3d 1168, 1177 n. 4 (10th Cir.2004)). However, defendant's reliance on Salguero in inapposite. The court in that case
refused to consider the plaintiff's testimony because the plaintiff did not demonstrate that he had personal knowledge or
corroborating evidence to show a material issue of fact. Id. Here, however, Mr. Cox's affidavit is based on his own personal
knowledge of the conversations he had with Ms. Burch and other Lockheed Martin employees. See Berry v. Chicago
Transit Authority, 618 F.3d 688, 691 (7th Cir.2010) (“[W]e long ago buried—or at least tried to bury—the misconception
that uncorroborated testimony from the non-movant cannot prevent summary; judgment because it is ‘self-serving.’ If

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8
9
10

11
12

13
14

15

16

17
18
19

based on personal knowledge or firsthand experience, such testimony can be evidence of disputed material facts. It is
not for courts at summary judgment to weigh evidence or determine the credibility of such testimony; we leave those
tasks to factfinders”). Accordingly, because the Court must resolve all factual disputes in the light most favorable to the
non-moving party, the Court assumes that Mr. Cox made these statements during his meeting with Ms. Burch on August
4, 2010. See Scott v. Harris, 550 U.S. 372, 380 (2007).
Ms. Burch's investigation notes reveal that, upon his return on October 4, 2010, Mr. Cox said that he had no intention
of completing the September 24, 2010 PIP. Docket No. 38–16 at 14. Mr. Cox denies making these statements to Ms.
Burch. Docket No. 43–1 at 3, ¶ 14.
On October 6, 2010, Bill Floyd, a quality engineering manager, contacted Mr. Molloy to discuss Mr. Cox's behavior at
a meeting the three of them attended. Docket No. 38–18 at 1. Specifically, Mr. Floyd told Mr. Molloy that Mr. Cox's
abruptness in conversation, his outward hostility, and his demeanor made him uncomfortable. Id.
Lockheed Martin Conduct and Disciplinary Acton for Salaried Employees states in pertinent part that: “The Administrative
Review Committee ... shall ensure that the employee who is accused of wrongdoing has been notified of the allegation,
is given an opportunity to provide his or her account of the events to the appropriate investigator, and is provided an
opportunity to submit a written statement before the case is referred to the ARC for disposition.” Docket No. 43–11 at 4–5.
Ms. Stites testified that, even though company policy states that an employee should be given the opportunity to submit
a written statement before the case is referred to the ARC, it is company practice in performance-based investigations
not to include a written statement from the individual. Docket No. 43–4 at 4 (Stites Dep. 107:17–23).
Mr. Molloy testified that Mr. Cox attempted to comply with the PIP in other ways such as notifying him when he was not
able to attend meetings. Docket No. 43–6 at 4 (Molloy Dep. 86:11–14).
The ARC's recommendation of termination is dated August 18, 2010, Docket No. 38–26, while the ERC's concurrence
is dated November 24, 2010. Id. Although Ms. Stites found the allegation that Mr. Cox had not completed his flow-down
objectives was unsubstantiated, Docket No. 39–1 at 14, the ARC overruled her decision based on Mr. Cox's pattern of
insubordinate behavior. Docket No. 43–5 at 5 (Rule 30(b)(6) Dep. 72:13–73:4).
The ARC relied on Ms. Stites' definition of “acknowledge” in reaching its conclusion. Docket No. 43–5 at 4 (Rule 30(b)
(6) Dep. 62:5–9).
June Taylor, an ARC member, was aware of Mr. Cox's involvement in the investigation with respect to Mary Romero.
Docket No 43–5 at 4 (Rule 30(b)(6) Dep. 62: 21–25). Moreover, Mary Robinson, another ARC member, knew that Mr.
Cox had brought forward concerns with HR in 2007, but did not know the specifics of Mr. Cox's complaints. Id. (Rule
30(b)(6) Dep. 63:6–11).
Title VII makes it unlawful “to discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). 42 U.S.C. § 1981 states: “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as
is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.”
See PVNF, 487 F.3d at 800 n. 5 (“There exists some tension in our case law regarding what a plaintiff must establish
as part of his or her prima facie case of discrimination. Some cases treat circumstances suggestive of discrimination as
an element of a prima facie case; other cases treat the surrounding circumstances as part of the analytically subsequent
inquiry into the employer's stated reason for the challenged action and the plaintiff's opposing demonstration of pretext.
Sorbo, 432 F.3d at 1173 & n. 5 (listing cases). Regardless of whether we analyze the plaintiff's evidence ‘in reference to
the prima facie case or the business justification versus pretext inquiry, ... 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.’ Id. at 1173.”).
The Court notes that plaintiff does not fully address the prima facie standard in his opposition to the motion for summary
judgment despite the fact that it is his burden to make out a prima facie case.
Steve Moody, a white male supervised by Mr. Molloy, refused to sign his PIP and was not subject to termination. Docket
No. 43–6 at 2 (Molloy Dep. 63:17–25). In addition, Ms. Romero, a Hispanic employee placed on a PIP by Ms. Kerr,
refused to sign her PIP and was not threatened with a charge of insubordination. Docket No. 43–2 at 1, ¶ 4.
Mr. Cox stated in his affidavit dated May 17, 2012, and attached to his response that “[o]n November 4, 2010, [he]
accepted the PIP. I was never told how to acknowledge the PIP. I engaged in conversations and asked a number of
questions about the revised PIP.” Docket No. 43–1 at 3. The affidavit contradicts Mr. Cox's earlier deposition testimony
of November 9, 2011, in which he admitted that he refused to sign and acknowledge the revised PIP. Docket No. 38–4 at

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20

21

22

23

24
25
26

11 (Cox Dep. 240:17–20). In Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir.1996), the Tenth Circuit found
than an affidavit that contradicts earlier deposition testimony should not be considered. In Franks v. Nimmo, 796 F.2d
1230, 1237 (10th Cir.1986), the Tenth Circuit held that an affidavit that contradicts earlier sworn testimony should only be
disregarded if it “constitutes an attempt to create a sham fact issue.” Under the more lenient Franks standard, the Court
will disregard Mr. Cox's later contradictory affidavit because it appears to be an attempt to create a sham issue. Mr. Cox's
statement is wholly inconsistent with his deposition testimony which states that he would not sign or follow the November
4, 2010 PIP because it was demeaning. Furthermore his May 17, 2012 affidavit is not based on evidence that was not
available to him at the time of his deposition. See Franks, 796 F.2d at 1237 (noting that whether affiant had access to
the pertinent evidence at the time of his earlier testimony is relevant to whether a sham fact issue exist).
Lockheed Martin Conduct and Disciplinary Action for Salaried Employees states in pertinent part, that: “The Administrative
Review Committee ... shall ensure that the employee who is accused of wrongdoing has been notified of the allegation,
is given an opportunity to provide his or her account of the events to the appropriate investigator, and is provided an
opportunity to submit a written statement before the case is referred to the ARC for disposition.” Docket No. 43–11 at 4–5.
Mr. Cox argues that Jerry Honea, a white male employee, was terminated on August 16, 2009 for insubordination for
refusing to attend meetings, working outside of core hours, and refusing to follow management's directives was notified
of the charge lodged against him and afforded an opportunity to respond to the allegations. Docket No. 43–10 at 2–3.
Mr. Cox, however, does not show that Mr. Honea is similarly situated to him as he provides no evidence of Mr. Honea's
work title or the identify of Mr. Honea's supervisor. See Flasher, 986 F.2d at 1320 (finding that discipline by different
supervisors or discipline occurring at a different times may explain the differences in how different employees are treated)
In Fye, the Tenth Circuit noted that a plaintiff “need not characterize [his or her case] as a mixed-motive or pretext case
from the outset” but “[a]t some point, however, the plaintiff must” choose which framework he will pursue. 516 F.3d at
1225. Here, plaintiff does not rely on direct evidence or “evidence of conduct or statements by persons involved in the
decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude.” Twigg, 659 F.3d at
1000.
The Court notes that defendant disputes the date on which Mr. Cox made analogies to an abused dog and metal's
breaking point. Docket Nos. 38, 43, 44 [Undisputed Material Fact Nos. 43–46]. However, as discussed above, because
the Court must draw all evidence and reasonable inferences in light of the nonmoving party—Mr. Cox—the Court will
analyze the retaliation claim as though Mr. Cox made these statements to Ms. Burch on August 4, 2010. Stover v.
Martinez, 382 F.3d 1064, 1070–71 (10th Cir.2004).
Defendant's Rule 30(b)(6) witness stated that the date on ARC's investigation document was incorrect and that it should
reflect a date of November 18, 2010. Docket No. 43–5 at 4 (Rule 30(b)(6) Dep. 64:21–25). However, viewing the evidence
in a light most favorable to Mr. Cox, the Court finds that the ARC discharge action began on August 18, 2010. Id.
June Taylor became a member of the ARC in May 2010. Docket No. 38–10 at 10 (Burch Dep. 90:17–20).
Ms. Burch testified that she told Mr. Pierce about Mr. Cox's statements because of a presentation Dr. Nicoletti gave
Lockheed Martin employees. Docket No. 38–10 at 9 (Burch Dep. 82:6–18).

End of Document

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