Laul v Los Alamos National Laboratories
Filing
74
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson GRANTING 58 Defendant Los Alamos National Laboratories' Motion for Summary Judgment. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
_________________________________
JAGDISH C. LAUL,
Plaintiff,
vs.
No. 1:17-cv-0741-WJ-KBM
LOS ALAMOS NATIONAL
LABORATORIES,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court upon a Motion for Summary Judgment filed on
August 9, 2019 by Defendant Los Alamos National Laboratories (“LANL”) (Doc. 58).1 Having
reviewed the parties’ pleadings and the applicable law, the Court finds that Defendant’s motion is
well-taken and, therefore, is granted.
BACKGROUND
This is an employment discrimination case filed by Plaintiff Jagdish C. Laul (“Plaintiff” or
“Dr. Laul”) against his former employer for discrimination and retaliation based on age and
national origin. At the time the complaint was filed on July 14, 2017,, Dr. Laul was a 78 year-old
naturalized citizen of East Indian birth. He was terminated from employment at LANL on
December 6, 2013 for poor performance after he unsuccessfully participated in a year-long
Performance Improvement Plan. See Laul v. Los Alamos National Laboratories, LLC, No. 16-cv-
1
Los Alamos National Laboratories was the named defendant in the Complaint, but in its answer (Doc. 6),
Defendant identifies itself as Los Alamos National Security, LLC (“LANS”). However, Defendant uses LANS and
LANL interchangeably in the briefs and the Court will follow Defendant’s direction in their usage.
01017 JAP/KBM, 2018 WL 2122842 (D.N.M. May 8, 2018), Doc. 71 at 3, aff’d, 765 Fed.Appx.
434 (10th Cir. 2019) (“Laul II”).
I.
Previous Lawsuits
This is the fourth lawsuit Plaintiff has filed against his former employer since 2015. Two
of those cases were dismissed on the merits in favor of Defendant, and one was remanded to state
court which recently granted Defendant’s motion to compel arbitration:
(1) Laul v. Los Alamos National Laboratories, LLC, No. 15-cv-00749
JAP/KBM, 309 F.Supp.3d 1119 (D.N.M. 2016), aff’d, 714 Fed.Appx. 832 (10th
Cir. 2017), reh’g denied, cert. denied, 138 S.Ct. 2602 (2018) (“Laul I”).
Plaintiff alleged age and national origin discrimination based on his termination
from employment in December 2013 for unsatisfactory work performance and
for failure to rehire. Senior U.S. District Judge James A. Parker granted summary
judgment to Defendant, finding that LANL did not rehire Plaintiff because he
had been terminated from his former position for poor performance and not from
illegal or discriminatory motives. Doc. 83. The Tenth Circuit Court of Appeals
affirmed the rulings in favor of Defendant in November 2017. Plaintiff filed a
Petition for Writ of Certiorari in the United States Supreme Court in February
2018, which was denied on June 4, 2018. Doc. 100.
(2) Laul v. Los Alamos National Laboratories, LLC, No. 16-cv-01017
JAP/KBM, 2018 WL 2122842 (D.N.M. May 8, 2018), aff’d, 765 Fed.Appx. 434
(10th Cir. 2019) (“Laul II”). Plaintiff alleged retaliation based on Defendant’s
failure to rehire him between October 2014 and May 2015. This case was also
resolved on summary judgment in favor of Defendant by Judge Parker. Doc. 71.
The Tenth Circuit affirmed the rulings in that case in May 2019. In August 2019,
Plaintiff filed a Petition for Writ of Certiorari in the United States Supreme Court
which was recently denied on December 4, 2019. Doc. 85.
(3) Laul v. Los Alamos National Security, LLC, No. 16-cv-1386 MV/JHR (“Laul
III”). Plaintiff filed this case, primarily a lease dispute, in the First Judicial
District Court, Los Alamos County. Defendant removed the case to federal court
where it was subsequently remanded to state court by United States District
Judge Martha Vazquez. Doc. 29. See Laul v. Los Alamos Nat’l Security, D-132CV-2016-00098. In February 2019, the state court granted Defendant’s motion
to compel arbitration and stay of the state court case.
II.
Instant Lawsuit
2
In this most recent lawsuit (“Laul IV”), Dr. Laul revisits issues relating to his termination
and rehiring which have been previously litigated and alleges new claims of discrimination and
retaliation regarding 14 additional LANL jobs for which he applied between August 2015 and
March 2016 but was not selected. The job postings at issue in this litigation are:
IRC 42817
IRC 43155
IRC 43636
IRC 43695
IRC 44475
IRC 44537
IRC 44863
IRC 44975
IRC 45015
IRC 47970
IRC 48059
IRC 48229
IRC 48448
IRC 48649
Environmental Professional 3 position
Safety Basis Manager 4 position
Environmental Professional 4 (SRS) position
Environmental Professional 4 (TRU Waste) position
Nuclear Criticality Safety Analyst 1/2
Environmental Professional 3 position
Scientist 1/2
Scientist 3
ESH&Q Quality Assurance Engineer 2
Safety Basis Manager 4
Safety Basis Manager 3/4
TRU Waste Sciences Manager 2/3
Quality Assurance Specialist 3/4 ; and
Criticality Safety Officer 2
Defendant presents over one hundred facts, addressing each of the 14 positions. Plaintiff
“disputes” almost every one of those but fails to offer any actual evidence to rebut them. His
“responsive” facts fall into one (or more) of three categories: (1) facts that are unsupported by the
evidence; (2) facts that misrepresent the evidence; and (3) facts that are irrelevant or immaterial.
For example, Defendant’s Fact 30 states that the hiring committee members believed that
Paul Newberry was the best qualified for the IRC 43636 position. Plaintiff “denies” this fact in
his response, proceeds to recite his own qualifications, then states that “[a] member of the [hiring]
committee admits the Plaintiff was on the top of the list.” Doc. 61 at 7. Plaintiff’s references to
his resume do not qualify as responsive facts. See Simms v. Oklahoma ex rel. Dep't of Mental
Health and Substance Abuse Servs., 165 F.3d 1321, 1329 (10th Cir.1999); cmp. Selenke v. Med’l
Imaging of Colorado, 284 F.3d 1249, 1265 (10th Cir. 2001) (It is the manager’s perception of the
employee’s performance that is relevant, not plaintiff’s subjective evaluation of her own relative
3
performance). Also, Plaintiff’s affidavit statements that he was “better qualified” than other
applicants, see Doc. 61-1 at 5, is not evidence that can be used to refute Defendant’s facts. See
Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir.1995) (a nonmovant’s conclusory and
self-serving affidavit, without other supporting evidence, is insufficient for the purpose of
surviving summary judgment); Garrett v. Hewlett Packard Co. 305 F.3d 1210, 1218 (10th Cir.
2002).
As Defendant observes, Plaintiff’s assertion that he was “on top” of the candidate list is
not supported by the record at all and the exhibits Plaintiff cites to say nothing of the kind. In fact,
Wayne Hohs, the hiring manager for that position, excluded Dr. Laul from his list of top qualifiers.
Doc. 58-8 (Hohs Aff). at 2, ¶6 (“Dr. Laul’s name was not included on my initial list of candidates
to be interviewed as I did not view him as one of the best qualified applications, based on what I
felt were the key attributes the Group Leader would require for the tasks identified above.”).
As another example, Defendant’s Fact 59 states that Kent Abney, the hiring manager for
IRC 44863, asked the First Line Managers from the Manufacturing and Technology Division
(“MET”) to recommend candidates who were best qualified for that position. Plaintiff attempts to
dispute this fact using Dr. Abney’s deposition testimony that the hiring committee did not provide
him with specific information as to why Dr. Laul was deemed “not best qualified” by them. Doc.
61 at 16 (Resp. to Fact 59). There is no inconsistency between Defendant’s Fact 59 and Dr. Laul’s
testimony that the hiring committee “made a recommendation to me about who to hire for [the
position]” and so there is no dispute, either. Doc. 58-12 at 2-3, ¶10.
It would serve no purpose to continue with other examples of Plaintiff’s attempts to dispute
Defendant’s facts. Instead, the Court will discuss the relevant facts (and purported “disputes”)
within the appropriate discussions.
4
III.
Legal Standard
Summary judgment is appropriate “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). A fact is material if it could have an effect on the outcome of the suit. Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). A dispute over a material fact is genuine if the
evidence presented could allow a rational jury to find in favor of the nonmoving party. EEOC v.
Horizon/CMS Heathcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). A court is to view the facts
in the light most favorable to the non-moving party and draw all reasonable inferences in favor of
that party. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). A court cannot weigh the
evidence and determine the truth of the matter, but instead determines whether there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986).
DISCUSSION
In Counts I and II of the complaint, Dr. Laul asserts claims of discrimination on the basis
of age (ADEA) and national origin (Title VII). In Count III, Plaintiff alleges that LANL retaliated
against him in violation of Title VII, because of his “complaints of discrimination in the
workplace.” Doc. 1, ¶34. The Court will first address the discrimination claims based on age and
national origin in Counts I and II, and then move on to Plaintiff’s retaliation claim in Count III.
I.
Discrimination Based on Age and National Origin-Title VII and ADEA
Defendant offers several arguments for dismissal of Plaintiff’s discrimination claims.
1. Plaintiff is collaterally estopped from re-litigating claims previously litigated and
actually determined against him in Laul I and Laul II;
2. Plaintiff cannot establish that he was “qualified” for any of the positions at issue due to
the site restriction put in place in July 2015 that prohibited him from entering onto Laboratory
property for any reason, including employment, thereafter;
5
3. Without regard to the site restriction, Plaintiff either cannot establish a prima facie case
because he was not “minimally qualified” for many of the positions for which he applied or he
cannot show an inference of discrimination for those positions where he was rated as “not best
qualified.”
A.
Relevant Law
Claims under both Title VII and the ADEA are analyzed under the familiar burdenshifting requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Garrett v.
Hewlett Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002); O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308 (1996) (assuming that Title VII's McDonnell Douglas burden
shifting framework applies to ADEA case).
The plaintiff in both ADEA and Title VII cases bears the initial burden of setting forth a
prima facie case of discrimination. The burden of establishing a prima facie case by a
preponderance of the evidence is not onerous. McCowan v. All Star Maint., Inc., 273 F.3d 917,
922 (10th Cir. 2001). To establish a prima facie case under either the ADEA and Title VII, the
plaintiff must show: 1) he is a member of the class protected by the statute; 2) he suffered an
adverse employment action; 3) he was qualified for the position at issue; and 4) he was treated
less favorably than others not in the protected class. See Thomas v. Denny's Inc., 111 F.3d 1506,
1510 (10th Cir.1997) (race); Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1502 (10th
Cir.1996) (age); Jones v. Unisys Corp., 54 F.3d 624, 630 (10th. Cir.1995) (age); Cole v. Ruidoso
Municipal Sch., 43 F.3d 1373, 1380 (10th Cir.1994) (gender).
If the plaintiff meets his burden of establishing a prima facie case burden, the burden
shifts to the defendant “to articulate a legitimate, nondiscriminatory reason for the termination
that is not facially prohibited by Title VII.” Salguero v. City of Clovis, 366 F.3d 1168, 1175
(10th Cir. 2004) (quotation marks omitted). Once the defendant does this, then it is the
plaintiff’s burden to show that the stated reason is “a pretext for racial discrimination.” Id.
6
For purposes of addressing Plaintiff’s discrimination claims, the Court’s analysis need go
no further than a discussion at the prima facie stage. Plaintiff’s claims of discrimination based on
age and national origin are subject to dismissal because of a site restriction put in place in July
2015 which prohibits Plaintiff from entering onto LANL property for any reasons, including
employment.
B.
Facts Relevant to Site Restriction (“BOLO”)
All Laboratory (“Lab employees and contractors are required to have, display and maintain
site Access Badges in order to work on LANL property. Id. at ¶ 4. There are four primary types
of long-term badges that are issued to individuals who work on LANL property: (1) Laboratory
(“LAB”) badge; (2) Contractor (“CON”) badge); (3) External (“EXT”) badge; and an Affiliate
(“AFF”) badge.
Dr. Laul had been issued a LAB and a CON badge. Dr. Laul has not had a LAB badge
since December of 2013 when his employment was terminated for poor performance. The security
clearance associated with this badge was a “Q” clearance, which was also revoked in 2013 when
he was terminated. Dr. Laul was also issued a CON badge on June 11, 2014. This was an
“uncleared” badge, meaning that there was no security clearance associated with it. Doc. 58-3 at
3. The CON badge was destroyed on July 6, 2015. Id., Attachment A.
On June 30, 2015, the LANS Personnel Security Department issued a “Be On The
Lookout” (“BOLO”) and a LANL property restriction prohibiting Dr. Laul from accessing or being
physically present on any part of LANL property, which encompasses the Carlsbad and Los
Alamos Operations sites in Carlsbad and Los Alamos, New Mexico. Doc. 58-3-5 (Martinez Decl).
The BOLO was issued because of Plaintiff’s “inappropriate” conduct toward a Laboratory worker.
Doc. 58-3 at 6.
7
Judge Parker’s opinion in Laul II includes the circumstances relevant to the issuance of the
BOLO. In early 2014, following his termination in December 2013, Plaintiff went to LANL’
Occupational Medicine building to speak to Janet McMillan, a Certified Occupational Health
Nurse at LANL and the wife of LANL’ Director, Charles McMillan. Laul II, 16cv01017 JAPKBM, Doc. 71 at 4-5. Plaintiff told Ms. McMillan that he had been unfairly discharged and asked
her to take the documents to her husband and tell her husband to reinstate his employment. When
she refused, Plaintiff raised his voice and approached Ms. McMillan in her “personal space,”
telling her that he would contact the press and make things “very ugly” for Ms. McMillan, her
husband and the Laboratory if she did not give her husband the documents. Ms. McMillan felt
threatened by Plaintiff’s conduct. As she exited her office, Plaintiff followed her out to the front
desk, continuing his threats to contact the press and make things ugly, and then exited the building.
Ms. Millan reported the incident to her supervisor, but no official report was filed because Ms.
McMillan hoped she had “given information to Plaintiff that would help him.” Id. at 5.
Plaintiff visited the Occupational Medicine building again on June 30, 2015 and asked Ms.
McMillan if they could go to a private place to talk. Ms. McMillan told him that she preferred to
discuss the matter where they were, in the lobby of the building.2 Plaintiff had an envelope which
he said were papers he wanted Ms. McMillan to present to her husband to help get his job back.
Ms. McMillan again refused to take the documents and Plaintiff threated to “make it very ugly”
Ms. Millan testified that she was “nervous” because she did not understand how Dr. Laul had been allowed to get
into the Occupational Medicine building without a badge. See Laul II, 16cv1017, Doc. 71 at 5 (“He said he had
not gotten his job back … and this made me nervous, because if he didn’t get that job back, I didn’t know how he
would be able to be in the building, because it’s a secure building and you have to badge in . . . .”). This Court had
the same question about Plaintiff’s ability to get into the Occupational Medicine building without a badge, since he
had been terminated a few months before he visited Ms. Millan. However, according to LANL security, while Dr.
Laul’s LAB badge was destroyed when he was terminated, he still had a CON access badge and possibly used that
to gain entry. See Doc. 58-3 at 2-3. The other possibility is that he could access the property as a visitor, as Plaintiff
claims he was still able to do as a visitor. See Laul III, 16-cv-01386 MV-JHR, Doc. 1-2, ¶12. Nevertheless, how
Dr. Laul accessed LANL property to see Ms. McMillan is not relevant to the summary judgment issues raised here.
2
8
for her. Plaintiff’s comments were overheard by at least one other worker who had walked into
the lobby. One of these workers, Wally Collings, intervened. He asked Ms. McMillan to go to
her office and then escorted Dr. Laul out of the building. Id. at 5.
This second incident was reported to Richard Marquez, Executive Director of LANS and
to the LANL Personnel Security office, after which the BOLO was issued, effective July 1, 2015.
Dr. Laul’s CON badge was destroyed on July 6, 2015. Id. On July 8, 2015, the Lab’s general
counsel informed Plaintiff by letter that nothing had changed since the issuance of the restriction.
The letter states that LANL did not intend to revisit the termination of Plaintiff’s employment; that
Plaintiff was currently prohibited from obtaining a Laboratory badge which meant he was not
eligible for Laboratory employment; and that the prohibition “will remain in effect indefinitely.”
Doc. 58-3 at 8.
B.
Analysis
In this lawsuit, Plaintiff asserts that LANL discriminated against him on the basis of age
and national origin because it did not rehire him for any of the 14 positions for which he applied
between August 2015 and March 2016. Each of the 14 positions for which Dr. Laul applied require
the successful candidate to obtain an access badge and work on a LANL site. See, e.g., Doc. 5810 at 8; Doc. 58-11 at 11. All of Plaintiff’s job applications at issue in this case took place after
the BOLO was issued. What defies common sense is how Plaintiff expected to qualify for any of
these positions if he was permanently prohibited from entering LANL property. Plaintiff had been
told that because of the BOLO, he could not obtain a Lab badge and therefore was not eligible for
Lab employment. Doc. 58-3 at 8.
In showing that he is “qualified” for the purpose of establishing a prima facie case, a
plaintiff need only show a basic eligibility for the position at issue. Slattery v. Swiss Reinsurance
9
Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001), as amended (June 6, 2001); Wexler v. White's Fine
Furniture, Inc., 317 F.3d 564, 575–76 (6th Cir. 2003) (plaintiff can show he is qualified by
“presenting credible evidence that his or her qualifications are at least equivalent to the minimum
objective criteria required for employment in the relevant field.”). Throughout his briefing,
Plaintiff insists he was best qualified for every one of the 14 jobs but ignores the one immovable
obstacle to his ability to perform any of them: he is restricted indefinitely from entering any LANL
property as an employee or even on assignment to a LANL subcontractor.
The Court has not found any case law including the ability to enter work property as a job
“qualification” for purposes of establishing a prima facie case, but the converse seems to make
sense in that someone who is banned indefinitely from work property is disqualified from working
there. Of course, there may be no case law regarding the effect of BOLO-type workplace
restrictions on a prima facie case because an individual would not normally think of applying for
jobs at a place where it is impossible for him to physically enter. There is no mention of the
possibility of teleworking in any of the job descriptions for the 14 positions, but even an employee
who teleworks would be expected to have access to the work site, even if for purely administrative
reasons.
Plaintiff does not dispute the issuance of the BOLO, but he contends that Defendant’s facts
regarding the restriction are “misleading and incomplete.” First, Plaintiff claims that the BOLO
was issued in retaliation for reporting discrimination. Doc. 61 at 2, ¶¶3, 5. Plaintiff seems to be in
complete denial of Judge Parker’s ruling in Laul II rejecting that very claim. Judge Parker found
that Plaintiff had “failed to set forth evidence to support a finding that the BOLO was issued in
retaliation” and that there was “no evidence that members of the security department, who issued
the BOLO, knew about Plaintiff’s prior complaints of discrimination.” Laul II, 16cv01017
10
JAP/KBM, Doc.71 at 37. This ruling has not been vacated or modified in any way and so the
Court agrees with Defendant that Plaintiff is collaterally estopped from relitigating this issue.
Plaintiff also argues that his Q clearance could always be reactivated if he was rehired, but
the Q clearance is immaterial and irrelevant to his site restriction from LANL property. LANL
was required to report the BOLO site restriction to the Department of Energy (“DOE”) which
issued the Q clearance. See Doc. 58-3 (Martinez Decl.) at 2, ¶3. Also, there would seem to be a
zero percent chance that DOE would issue a Q clearance to an employee who is barred from
physically entering any LANL work site in any employment capacity due to misconduct. Finally,
Plaintiff does not dispute that in his job applications, he falsely represented that he still has a Q
Clearance which is ironic since he claims that his Q clearance can be reactivated. See Doc. 58-10
at 35 ( resume stating at page 3: “Have Q clearance”). This falsehood certainly does not improve
Plaintiff’s chances of ever getting another Q clearance.
Dr. Laul also points out that he was told he could apply for job positions but he has never
been interviewed or hired after the BOLO was issued. See, e.g., Doc. 61 at 1-2, ¶¶3-4. This
statement is not only inadmissible hearsay, but also misrepresents evidence. First, Mr. Marquez
(former Lab Director during the relevant period) did send a letter to Plaintiff immediately after his
termination, telling him that he could reapply for positions at LANL—but this letter pre-dated the
BOLO and so at the time, Plaintiff still had access to LANL work sites. Doc. 67-4. In the letter,
Mr. Marquez denied Dr. Laul’s request for reinstatement and told him that he was “free to apply
as an external candidate for posted jobs” that fit his skill set. Id. Second, Plaintiff did apply for
jobs after he was terminated—Laul II is Plaintiff’s unsuccessful attempt to charge Defendant with
discriminatory failure to rehire him for numerous jobs he applied for between October 2014 and
11
May 2015. An invitation to apply for jobs has no bearing on whether an interview or job offer will
follow.
The subsequent site restriction by LANL Security created a circumstance that disqualified
Dr. Laul indefinitely from any of the positions he applied for and made him ineligible for
employment with LANL. The BOLO also serves as a bar to Plaintiff’s claims of discrimination.
Dr. Laul cannot establish a prima facie case under either Title VII or the ADEA because his
disqualification for employment at LANL refutes any claim that he is “qualified.”
Based on the Court’s ruling on Plaintiff’s prima facie case, further analysis of the
McDonnel-Douglas framework is unnecessary for Plaintiff’s discrimination claims under Title VII
and ADEA. Defendant is entitled to summary judgment on Counts I and II alleging discrimination
based on age and national origin.
II.
Retaliation Claims
Plaintiff claims that Defendant retaliated against him because LANL failed to rehire him.
Title VII prohibits retaliation against an employee for opposing any practice made unlawful by
Title VII or for asserting a charge, testifying, assisting or participating in any manner in an
investigation, proceeding or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Gunnell v. Utah
Valley State Coll., 152 F.3d 1253, 1262 (10th Cir. 1998). To the extent that Plaintiff is also alleging
a retaliation claim under the ADEA, the elements of a prima facie case are identical. See Nealey
v. Water District No. 1 of Johnson County, 324 Fed. Appx. 744, 750 (10th Cir. 2009). ). See
Mattioda v. White, 323 F.3d 1288, 1293 (10th Cir. 2003) (Title VII case); Corneveaux v. CUNA
Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (ADEA case).
Defendant argues that Plaintiff cannot establish a prima facie retaliation claim under Title
VII (or the ADEA) where hiring managers for particular positions were unaware of his prior
12
complaints of discrimination prior before they made their decisions on the best qualified candidate
and because he cannot show a causal connection between any prior complaints of discrimination
and his non-selection. Defendant further contends that Plaintiff cannot show that the hiring
decisions were made to retaliate against him other than for legitimate reasons.
I.
Prima Facie Case
To establish a prima facie case of retaliation, the plaintiff must show that: (1) he engaged
in protected activity under Title VII; (2) he suffered an adverse employment action; and (3) there
is a “but for” causal connection between the protected activity and the adverse employment action.
Id. at 1262-63; see Univ. of Texas SW Med. Center v. Nassar, 133 S.Ct. 2517, 2533 (2013) (holding
that Title VII retaliation claims must be proved according to traditional principles of but-for
causation).
A.
Protected Activity and Adverse Action
“Protected activity” for purposes of Title VII (or ADEA) retaliation includes lawsuits and
informal complaints where a plaintiff opposes unlawful employment practices. See O’Neal v.
Ferguson Constr. Co., 237 F.3d 1248, 1255 (10th Cir. 2001) (informal complaints to superiors and
litigation are protected activity for purposes of Title VII retaliation claim); Annett v. Univ. of
Kansas, 371 F.3d 1233 (10th Cir. 2004); cmp. Comstock v. Consumers Markets, Inc., 953 F.Supp.
1096, 1103 (W.D.Mo.1996) (employee's lawsuit not “protected activity” under Title VII, where
suit not brought under Title VII and did not allege employer engaged in any conduct that violated
Title VII). It is undisputed that Dr. Laul’s August 2015 lawsuit against LANL and his prior
complaints of discrimination are “protected activity.” Nor is there any dispute that Plaintiff’s nonselection employment satisfies the “adverse employment action” requirement for a prima facie
13
case. See Ritter v. Hill 'N Dale Farm, Inc., 231 F.3d 1039, 1043 (7th Cir. 2000) (failure to rehire
undisputed as adverse action).
Defendant contends, however, that Dr. Laul cannot show a causal connection between his
prior complaints of discrimination and his non-selection for any of the 14 positions because the
hiring managers were not aware of Plaintiff’s prior complaints during the hiring process.
B.
Causation
At the prima facie stage, the causal connection may be shown by producing “evidence of
circumstances that justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.” Bullington v. United Air Lines, 186 F.3d 1301) (10th Cir. 1999);
Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (in some cases, such causal
connection is shown when the adverse action closely follows the protected conduct).
1.
Employer’s Awareness of Protected Activity
An employer’s awareness of alleged protected activity could satisfy the causation
requirement in a prima facie case. See Petersen v. Utah Dep't of Corrections, 301 F.3d 1182, 1188
(10th Cir. 2002) (a decisionmaker must be aware of alleged protected activity to give rise to a
claim for retaliation); Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1231 (10th Cir.2000)
(court must consider facts as they appeared to the person making the decision at the time). None
of the ten hiring managers involved in the selection of candidates knew about Plaintiff’s prior
complaints of unfair treatment based on age or national origin and Plaintiff does not offer any facts
to suggest otherwise. However, Defendant overlooks the fact that Mr. James Tingey and Mr.
Wayne Hohs, hiring managers for 5 of the 14 job postings at issue, were aware that Dr. Laul had
sued LANL in August 2015 for unfair treatment on the basis of age and national origin. Mr. Hohs
was told about the lawsuit by Ms. Minton-Hughes, a member of the Interview Committee for one
14
of the positions. See Deft’s Fact 28. Although Plaintiff submits no evidence to suggest a “but-for”
connection between an awareness of his lawsuit and his non-selection, the Court will assume that
Plaintiff satisfies the causation requirement in a prima facie case.
There is no evidence, and it is undisputed, that any of the hiring managers for the remaining
9 positions knew about Dr. Laul’s August 2015 lawsuit or his prior complaints of discrimination
or retaliation.3 An employer’s awareness of protected activity is a key requirement in a prima facie
case. See Petersen v. Utah Dept. of Corrections, 301 F.3d 1182 (10th Cir. 2002) (no retaliation
where retaliatory supervisor was unaware that employee engaged in protected opposition ); Jones
v. Barnhart, 349 F.3d 1260, 1269 (10th Cir. 2003) (causation requirement of prima facie case not
met where employer not aware of employee’s outspoken complaints of racial discrimination). The
Court need not address those 9 jobs further except to find that Plaintiff cannot establish a prima
facie case of retaliation for those positions and instead will focus the discussion on the 5 positions
for which Mr. Tingey and Mr. Hohs were the hiring managers, which are the following:
Job Posting
IRC 43155- Safety Basis Manager 4
position
IRC 47970-Safety Basis Manager 4
IRC 48059- Safety Basis Manager 3/4
IRC 43636-Environmental Professional
4 (SRS) position
IRC 43695-Environmental Professional
4 (TRU Waste) position
2.
Hiring Manager
Mr. Tingey
Date Plaintiff Applied
October 2, 2015
Mr. Tingey
Mr. Tingey
Mr. Hohs
March 20, 2016
March 10, 2016
September 6, 2015
Mr. Hohs
September 6, 2015
Temporal Proximity
3
Mr. Tingey was also aware of the BOLO issued restricting Dr. Laul’s physical access to LANL property, along
with Patricia Gallagher, the hiring manager for IRC 42817. Because Ms. Gallagher did not know about the August
2015 lawsuit, Plaintiff cannot show any causation for a prima facie case of retaliation for IRC 42817, and so that job
position is eliminated from the discussion. Awareness of the BOLO by any of the hiring managers is irrelevant.
Plaintiff does not argue (nor would he succeed in doing so) the BOLO site restriction is protected activity for
purposes of a retaliation claim. Inasmuch as Plaintiff argues that the BOLO was issued in retaliation for his
complaints of discrimination, the door has shut closed on that issue with Judge Parker’s ruling in Laul II that
Plaintiff had “failed to set forth evidence to support a finding that the BOLO was issued in retaliation.”
15
A close temporal proximity between the protected activity and an adverse employment
action can also establish a causal connection. See Candelaria v. EG&G Energy Measurement, Inc.,
33 F.3d 1259, 1261 (10th Cir. 1994).
Dr. Laul applied for job postings IRC 43155, IRC 43636 and IRC 43695 within one or two
months of filing his August 25, 2015 lawsuit against LANL. These events are close enough in
temporal proximity to suggest a causal connection between the protected activity and his nonselection for those positions. See Ramirez v. Oklahoma Dep’t. of Mental Health, 41 F.3d 584, 596
(10th Cir. 1994) (concluding that a one and one-half month period between protected activity and
adverse action may establish causation); see also Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999) (assuming that temporal proximity of two months and one week is sufficient
to support a prima facie case of retaliation). Plaintiff has therefore shown a prima facie case for
these three positions so that the burden shifts to Defendant for further analysis under the
McDonnel-Douglas framework.
In contrast, Dr. Laul applied for the two other positions (IRC 47970 and IRC 48059) in
March 2016—seven months after he filed his civil rights lawsuit against LANL. This span of time
is considered too distant to infer any causal connection between the filing of his lawsuit and his
non-selection. See Hysten v. Burlington Northern & Santa Fe Railway Co., 296 F.3d 1177 (10th
Cir. 2002) (almost three months between time of plaintiff’s lawsuit and alleged retaliatory act was
not close enough in time to establish causation); Conner v. Schnuck)Markets, Inc., 121 F.3d 1390,
1395 (10th Cir.1997) (four-month time lag between plaintiff’s participation in protected activity
and his termination by itself would not be sufficient to justify an inference of causation; Meiners
v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (quotation omitted) (a six-week period
between protected activity and adverse action may be sufficient, standing alone, to show causation,
16
but a three-month period, standing alone, is insufficient); Cook v. Corp. of President of the Church
of Jesus Christ of Latter Day Saints, 121 F. App’x 326 (10th Cir. 2005) (expressing doubt that
five-month delay justifies an inference of retaliatory motive).
IRC 47970 and IRC 48059 would normally not be considered in the analysis because of
the distant temporal proximity, but because Mr. Tingey and Mr. Hohs were also the hiring
managers for the other three positions with a closer temporal proximity, the Court will consider all
five positions further in the McDonnell-Douglas analysis.
B.
Defendant’s Legitimate Reasons for Non-Selection
For each of the 14 positions at issue, Defendant provides a large number of exhibits,
including but not limited to: the job posting for that position, the relevant Hiring Documentation
Reports, Plaintiff’s cover letter and resume and the cover letter and resume for the successful
candidate for that job. The Hiring Documentation Report details information about the hiring
process for that specific position, such as the name of the hiring manager for that position; the date
the application was received; and the applicant’s status (for example, “First interview,” “Make
offer,” “Terminate application” and “Offer rejected”). Following the completion of the interviews
and hiring process, a code was entered in the last column on the right in the Hiring Documentation
Report to describe the reason for the applicant’s status, such as “5a” (“not best qualified”); “5b”
(“Unreachable”); “5c” (“does not meet minimum requirements; “5d” (“Application materials
false”); and “5e” (“poor references”). The code explanations are included on the last page of each
Hiring Documentation Report. See, e.g., Doc. 58-5 at 15; see also Doc. 58 at 41, n. 35; Doc. 5811 at 3, ¶9 (Haagenstad Decl. stating that applicants with “5c” code were terminated because they
were “not best qualified for the job”); Doc. 61-1 at 51 (Tepley Depo. at 15).
1.
IRC 43155 and IRC 47970: Safety Basis Manager 4 positions
17
After reviewing Dr. Laul’s application, Mr. Tingey concluded that Dr. Laul did not meet
the minimum qualifications for these Safety Basis Manager 4 position. Doc. 58-5 at 1-7 (Tingey
Decl.); at 9-12 (job posting requirements); Doc. 58-10 at 33 (Laul cover letter and resume).
Both of these positions required heavy management experience, which Plaintiff’s resume
does not reflect that he possessed. For IRC 43155, the hiring committee selected Seth Johnson, an
internal candidate whose background and experience were well within both the job requirements
and the desired skills for that position. Mr. Johnson had significant management experience as
construction supervisor and Project Leader at TA-55 at LANL.4 Doc. 58-5 at 3 (Tingey Decl); at
25-26 (Johnson resume). He also held a Masters Degree in Project Management and worked as a
Project Management Professional. Dr. Laul had neither of these qualifications.
Karen McHugh, who was hired for IRC 47970, also had considerable management
experience at various LANL sites. She was also an acting Group Leader for the LANL Waste
Facilities and Balance of Plant Facilities Safety Basis Division, which the hiring committee felt
made her the best qualified candidate for that position.5
Plaintiff “disputes” the facts regarding IRC 47970 (Deft’s Facts 18-24), contending that
Mr. Tingey admitted in his deposition that re-training would enhance his ability to perform the
Safety Basis Analyst job. However, Mr. Tingey did not testify that Plaintiff had received retraining since his 2013 termination, as Plaintiff suggests. Mr. Tingey made a hypothetical
statement that the purpose of re-training to enhance “the ability of the analyst to perform.” Doc.
61-1 at 34-35 (page 20-21 of Tingey Depo.). Mr. Tingey never testified either that Dr. Laul had
Defendant does not provide any details of “TA-55,” but an internet search indicates that it is a location or
“Technical Area” within LANL’s Plutonium Facility.
4
5
The Court assumes that none of the candidates for the 14 positions, with the exception of Dr. Laul, had ever been
issued a BOLO restriction or lost their Q clearances—either of which would have weighed heavily against selection
even on an initial review.
18
received re-training since he was terminated or that such training would have improved Plaintiff’s
performance on the Safety Basis position for which he was applying. Plaintiff’s attempt to dispute
Defendant’s facts regarding IRC 43155 amounts to sheer mischaracterization of Mr. Tingey’s
deposition testimony. Thus, Defendant’s facts will be considered by the Court as undisputed.
Plaintiff also “disputes” Defendant’s Facts regarding IRC 47970 (Facts 78-84) by claiming
that his name did not appear on the LANL Hiring Documentation Report (“hiring report”) for IRC
47970. He suggests, without offering any real facts, that HR was able to “prescreen” candidates
and played a role in his name not appearing on the hiring report. Plaintiff attributes an improper
motive where there is none to be found.
According to Daniel Tepley, Program Manager for the Plutonium Strategy Infrastructure
Division at LANL, LANL’s hiring process has several stages. Doc. 61-1 (Pltff’s Ex. I). It begins
with an initial screening done by the “Oracle” system within its Human Resources (“HR”)
Department, which provides a list of candidates and their resumes or cover letters. Doc. 61-1 at
51 (Pltff’s Ex. I at 13-15). After applications are reviewed for minimum qualifications, they are
reviewed by the hiring managers who appoint hiring committees to make recommendations for the
best qualified candidates. These recommended candidates are then interviewed by the Interview
Committee that was elected for that position. See, e.g., Doc. 58 at 7 (Fact 14); at 9 (Fact 25); at
14 (Fact 52); at 15 (Fact 59). Dr. Tepley’s description of LANL’s hiring process is not disputed.
Dr. Laul offers no evidence to rebut Defendant’s facts for this position. First, Dr. Laul’s
name did not appear on the hiring report for IRC 47970 and two other positions (IRC 48649 and
IRC 45015), but he was listed on the hiring reports for all of the other four positions being
considered here by the Court. Doc. 58-5 at 53 (IRC 48059); Doc. 58-5 at 14 (IRC 43155); Doc.
58-5 at 11 (IRC 43636); Doc. 58-9 at 12 (IRC 43695). Plaintiff offers no plausible explanation
19
for why HR might “prescreen” him as an excuse to remove him from consideration from three
positions but leave his name on the report for the rest.
Second, Mr. Tepley testified that “first line” hiring managers might do the initial screening
of candidates for minimum requirements, in which case HR might then remove his name from the
list based on a negative assessment of threshold qualifications. He stated that:
typically, either myself or my first line manager would have conducted a
preliminary review of the applicants’ cover letters and resumes on Oracle, the
system Human Resources uses to facilitate hiring. I understood that the names of
the applicants who are coded as not qualified on an initial interview may not
appear on the final Hiring Documentation Report.
Doc. 58-15 at 2, ¶6 (f; Doc. 61-1 at 5 (page 13:8-4, 24:9-17).
Third, according to Leah Sanchez, LANL’s HR Manager, five other applicants who were
the subjects of an initial review also do not appear on the Hiring Documentation Reports for IRC
45015. Doc. 58-16 at 3, ¶11(B). Mr. Tingey also observed that Plaintiff’s name does not appear
for one of the hiring reports for another position (IRC 48059) because he belonged to a subset of
applicants marked as “not qualified” in the Oracle computer recruiting system before the hiring
decision was made for IRC 48059. Yet, Dr. Laul was listed on another hiring report for that same
position. Doc 58-5 at 5, ¶19. Plaintiff’s “disputes” regarding the facts for IRC 47970 are grounded
in nothing more than speculation and those facts remain undisputed.
Plaintiff also attempts to dispute facts regarding IRC 47970 by claiming that Defendant
“failed to produce” the entire list of applicants for the positions where his name is not listed on the
hiring reports. For support, Plaintiff relies on his written interrogatory requests (Doc. 61-1 at 61,
or Pltff’s Ex. M), but the Court fails to see how a complete list of applicants would have been
responsive to any of those interrogatories—or for that matter, are relevant now to any of the facts
regarding any of the positions.
20
2.
IRC 48059: Safety Basis Manager 3/4
Mr. Tingey concluded that Dr. Laul did not meet the minimum requirements for this Safety
Basis Manager position, based on his review of his cover letter and resume, and on his prior poor
performance at LANL in a Safety Basis Analysis 4 position. Doc. 58-5 at 53. The successful
candidates for IRC 48059 were Carl Schepens, Lynsey Fyffe, Matthew Miller, and Charles Slama.
They were hired for these vacancies based on the match of their prior experience with the minimum
job requirements:
(1) Mr. Schepens had experience as a Lead Safety Analyst for Solid and Liquid Waste
facilities at LANL and at other facilities, which qualified him as a Level 4 Safety Basis Analyst;
(2) Ms. Fyffe’s in-depth knowledge and understanding of safety basis documents such as
Hazard ID/Analysis, Hazard Categorization, and Unqualified Safety Questions, as well as her
experience with a DOE Fellowship, qualified her as a Level 3 Safety Basis Analyst;
(3) Mr. Miller had extensive Navel nuclear background, including direct management of
radiation safety processes in accordance with DOE Safety Basis and Navel Reactor policies and
regulations, which qualified him as a Level 3 Safety Basis Analyst;
(4) Mr. Slama’s extensive navel nuclear background and current employment using the
Unqualified Safety Questions and Hazard Analysis processes, qualified him as a Level 4 Safety
Basis Analyst.
Plaintiff does not dispute the qualifications of these individuals; rather, he states only that
he “is better qualified”—without specifically explaining how or why. Resp. to Deft’s Facts 9195. That statement does not constitute a material fact, much less one that rebuts the facts presented
by Defendant. Cmp. Doc. 58-5 at 37-42 (Dr. Laul’s resume).
3.
IRC 43636: Environmental Professional 4 (SRS) position
21
Mr. Hohs and three other individuals from the six-person Interview Committee reviewed
all applications for this Group Leader job. After this review, Mr. Hohs created a list of 8 persons
he believed were best qualified for the position and who would be interviewed. Dr. Laul was not
on that list because Mr. Hohs did not believe that he was one of the best qualified applicants. Doc.
58-8 at 2, ¶6; id. at 11.
Paul Newberry was hired based on his 25 years of experience in the management of the
storage, shipping, and remediation of both Mixed Low Level and Transuranic Waste. He had 11
years of management experience as a Group Leader and had a specialized TA-54 RCRA Permit
with respect to storage, receiving and shipment of waste. The Interview Committee decided not
to interview Dr. Laul because he lacked general as well as specific experience relevant to
operational functions associated with transuranic and hazardous waste management.
Plaintiff’s “disputes” on these facts are as immaterial and non-responsive as those he offers
on the other positions and it would serve no purpose to spend time discussing more than one or
two for illustration. As one example, Defendant’s Fact 31 states that Mr. Hohs was not aware of
and did not base his hiring decisions for IRC 43636 or 43695 on the basis of age or national origin.
In response, Plaintiff states that “Defendant admits to direct evidence of retaliation.” Resp to Fact
31. The statement is not a fact, is misrepresentative and inaccurate, and not legally correct. While
Mr. Hohs knew about Dr. Laul’s August 2015 lawsuit for wrongful termination, that knowledge
is significant only in establishing a prima facie case and is certainly not “direct” evidence of
retaliation. Dr. Laul’s legal conclusion is not only incorrect but it makes little sense: it would
mean that an employer’s mere knowledge of protected activity makes the employer automatically
liable for illegal motive, whether or not that knowledge is the “but-for” reason for the adverse
action. Plaintiff’s response to Fact 31 therefore does not create an issue of fact or otherwise rebut
22
Fact 31. Another example of a plainly unsupported statement is Plaintiff’s curt “denial” of
Defendant’s Fact 33 listing Mr. Newberry’s qualifications accompanying his statement that he was
“more qualified than Mr. Newberry.”
4.
IRC 43695: Environmental Professional 4 (TRU Waste) position
The successful candidate for IRC 43695, David Frederici, was the Committee’s highest
rated applicant for both of the Group Leader positions in IRC 43636 and IRC 43695 in the Waste
Disposition Division.6
Dr. Laul was not included in the list of seven candidates selected for initial interview by
Mr. Hohs and two others from the Interview Committee. At least 41 applications were submitted
for this position, which involved the environment waste management and remediation at the
nuclear facility. Doc. 58-9 at 2 (“The primary task before the environmental Manager 4 was the
treatment of the Remediated Nitrate Salt waste stream and the restart of the WCCR Nuclear
Facility.”). Two members of the Interview Committee conducted a secondary review of all the
applicants for this position and compared them to the position’s minimum job requirements. As a
result of this secondary review, six additional applicants (beyond those initially recommended)
were identified, including Dr. Laul and an applicant named Leonard Kline.
In the course of conducting her own review of all the applicants, Ms. Minton-Hughes
advised Mr. Hohs by e-mail that she had worked with both Dr. Laul and Mr. Kline and that she
believed neither should be considered further due to their poor performance when they worked for
her.7
6
Notwithstanding Ms. Minton-Hughes e-mail, Mr. Hohs still considered Dr. Laul’s
As previously mentioned, Paul Newberry was ultimately selected to fill IRC 43636.
7
Ms. Minton-Hughes, it will be remembered, advised Mr. Hohs that Plaintiff had previously sued LANL for
wrongful termination. That fact allowed Plaintiff to get past the prima facie stage but has little import at this stage
in the analysis. At this point, the Court considers whether Plaintiff is able to present evidence that his lawsuit
against LANL was the reason he was not selected for this position.
23
application in the final review, although Dr. Laul was not included in the final list of four
candidates selected for interviews. See Doc. 58-9 at 12 (coding Dr. Laul as “5c” or not meeting
minimum requirements). The Interview Committee also decided not to interview Dr. Laul, because
he lacked general as well as specific relevant experience with the particular waste streams relevant
for this job.
After the Interview Committee completed the interviews, Mr. Hohs interviewed the top
candidates for both this position and IRC 43636 (see discussion above). After consulting with
Dave Funk, the Deputy Associate Director for Environmental Management and Dave Frederici
himself, it was decided that Mr. Frederici was the best applicant to serve as the Group Leader for
Waste Process Engineering (IRC 43695).
Defendant’s evidence supports the facts presented describing why Dr. Laul was not
selected for the position. Mr. Frederici’s resume describes extensive experience (as well as
knowledge) about environmental waste management generally and transuranic waste remediation
specifically, for example:
•
Doc. 58-9 at 23 (describing Mr. Frederici’s experience at LANL as Project Manager at “a
large work group operating multiple nuclear processes to achieve aggressive transuranic
waste remediate goals agreed to by DOE and the State of New Mexico to reduce the risk
associated with above ground storage of large quantities of combustible transuranic
waste.”);
•
Doc. 58-9 at 24 (listing Mr. Frederici’s experience as a Shift Manager in a Defense Waste
Processing Facility); and
•
Doc. 58-9 at 25 (familiarity with LANL Hazardous Waste Permit and listing six years of
experience within LANL’s Environmental Programs dealing with environmental work
and nuclear facility operation).
In comparison, Plaintiff’s resume devotes a few lines to his “waste management”
qualifications, stating that Plaintiff has “extensive knowledge in RCRAS, LLW, TRU, and mixed
24
hazard waste including their packaging, shipping, storage criteria, compliance certification, and
inspection.” Doc. 58-9 at 19. There are no details about time periods or any actual experience in
the area of waste management describing where Plaintiff worked, how long or in what capacity.
Plaintiff “denies” Defendant’s facts regarding IRC 43695 and as one example, claims that
(1) “Mr. Hohs did not hire Plaintiff” and (2) that a member of the hiring committee “placed
Plaintiff on his list of candidates prior to Ms. Minton-Hughes’ interjection.” Neither statement
points to any supporting evidence.
The Court finds that Defendant has presented solid and legitimate reasons for its nonselection of Dr. Laul and has therefore satisfied its burden of production at this stage of the
McDonnel-Douglas analysis.
C.
Pretext
If a defendant articulates legitimate and non-retaliatory reasons for its actions, then the
ultimate burden rests with the plaintiff to show that the defendant’s proffered reasons are
pretextual. Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir. 2008); Murray v. City
of Sapulpa, 45 F.3d 1417, 1421 (10th Cir. 1995) (ultimate burden of persuasion in Title VII cases
rests on plaintiff).
Pretext can be shown by “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 of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Dewitt v. Sw. Bell Tel. Co., 845
F.3d 1299, 1307 (10th Cir. 2017) (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997)). Evidence of pretext “may take a variety of forms” but typically, a plaintiff may show
pretext in one of three ways:
25
(1) with evidence that the defendant’s stated reason for the adverse employment action
was false;
(2) with evidence that the defendant acted contrary to a written company policy
prescribing the action to be taken by the defendant under the circumstances; or
(3) with evidence that the plaintiff was treated differently from other similarly-situated
employees who violated work rules of comparable seriousness.
Id. (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 187–88 (1989)). Dr. Laul contends
that that he was best qualified for every one of the 14 positions he applied for and that the reasons
LANL gives for non-selection is pretextual for retaliatory motives. His problem in advancing this
argument is that he offers absolutely no evidence to show pretext and even attributes his non-hire
to reasons other than retaliation:
•
Plaintiff stated that he has no knowledge of whether the hiring managers for any of the
positions were aware of his prior lawsuits or what motivated the managers’ non-selection
decisions. He just assumed they were aware because “[w]ord of mouth goes like fire.”
Doc. 58-1 at 13 (Deft’s Ex. A at 165-66; at 735: 3-7; at 985: 10-15; at 1052:10-14).
•
Plaintiff believes that the hiring managers were biased against him because of his age or
national original because he was rated as “5C” in the majority of the applications he
submitted. Ex. Doc. 58-1 at 33 (Deft’s Ex. A at 506). For example, in response to being
asked if Mr. Hohs ever did anything that he personally regarded as evidence or an
indication of age or national origin bias, Plaintiff stated “The fact I got 5C, I’m ruled
out.” Doc. 58-1 at 35 (Deft’s Ex. A at 515).
•
Plaintiff himself is even unclear about the alleged cause of the retaliation. He attributes
the non-hires to the “jealousy” of hiring managers (Doc. 58-1 at 6, Deft’s Ex. A at
115:14-117:3); to work getting out about his prior poor performance as a Safety Basis 4
LANL employee (Doc. 58-1 at 21, Deft’s Ex. A at 226:2-227:2); and to hiring managers’
“favoritism” (Doc. 58-1 at 26, Deft’s Ex. A at 379:25-381:5).
Even assuming that Plaintiff is correct that was not hired because of jealousy, prior poor
performance, or personal favoritism, he has not shown pretext because none of those motivations
are prohibited under either Title VII or the ADEA. See Adamson v. Multi Community Diversified
Servs., Inc., 514 F.3d 1136, 1153 (10th Cir.2008) (“Employers are free to terminate at-will
26
employees for any other reason—however unfair, unwise, or even erroneous—so long as it is not
unlawful.8
Dr. Laul does not accept that others could have been more qualified than he for any of the
14 positions, despite the substantial undisputed evidence presented by Defendant, but he fails to
show any evidence that his non-selection was retaliatory or that Defendant’s reasons were
pretextual for illegitimate retaliatory motives. Branson v. Price River Coal Co., 853 F.2d 768, 772
(10th Cir. 1988) (mere conjecture that [the] employer’s explanation is a pretext for intentional
discrimination is an insufficient basis for denial of summary judgment). Defendant is therefore
entitled to summary judgment on Plaintiff’s claims of retaliation under Title VII and the ADEA.
Plaintiff’s qualifications have not changed for the better since his last lawsuit (Laul III).
Since that time, Plaintiff has been barred from entering any of the LANL facilities for employment
purposes and his Q clearance was revoked. The Court wonders how, after three unsuccessful
attempts to sue his employer for civil rights violations, Plaintiff would reasonably have a good
faith belief that this fourth attempt would fare any better.9
THEREFORE,
8
See Housley v. Boeing Co., 177 F.Supp.2d 1209, 1217 (D. Kan. 2001) (favoritism based on criteria other than
gender or age does not violate the federal anti-discrimination laws and “does not raise an inference of
discrimination.”); E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1321 (10th Cir. 1992) (Title VII does not prohibit
motivation for employer’s decision based on favoritism, revenge, or random or erroneous conduct or judgment);
Taken et al v. Okla Corp Comm., 125 F.3d 1366 (10th Cir. 1997) (favoritism, unfair treatment and unwise business
decisions do not violate Title VII unless based on a prohibited classification).
In the final analysis, it matters little whether Plaintiff was not actually not hired because of reasons different from
those presented by Defendant, as long as that reason was non-discriminatory and non-retaliatory. See Randle v. City
of Aurora, 69 F.3d 441, 451 n.14 (10th Cir. 1995) (when true reason for employment decision is not a prohibited
discriminatory reason, even if concealed, defendant is entitled to summary judgment although it was pretextual).
9
Plaintiff alleged discrimination or retaliation (or both) in all four lawsuits. Laul III was remanded to state court
because it asserted state claims of breach of contract and retaliation under New Mexico’s Human Rights Act. Thus,
the instant lawsuit is Plaintiff’s fourth attempt to sue LANL for civil rights violations. See Laul III, 16-cv-01386
MV-JHR, Doc. 1-2.
27
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 58) is hereby
GRANTED in that Plaintiff’s claims of discrimination based on age and brought under the ADEA
(Count I) are hereby DISMISSED WITH PREJUDICE;
IT IS FURTHER ORDERED that Plaintiff’s claims of discrimination based on national
origin brought under Title VII (Count II) are hereby DISMISSED WITH PREJUDICE;
IT IS FINALLY ORDERED that Plaintiff’s claims of retaliation Count III brought under
Title VII and, if asserted under the ADEA, are hereby DISMISSED WITH PREJUDICE.
A Rule 58 Judgment shall be entered separately.
_________________________________________
CHIEF UNITED STATES DISTRICT JUDGE
28
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