Lee-Fanning v. Chao

Filing 45

OPINION AND ORDER. The Court concludes that Defendant's Motion for Summary Judgment (Doc. No. 37 ) should be and hereby is GRANTED. Signed by Honorable Charles Goodwin on 01/08/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SUNNY LEE-FANNING,
Plaintiff,
v.
ELAINE L. CHAO, Secretary of
Transportation, FAA,
Defendant.

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Case No. CIV-17-878-G

OPINION AND ORDER
This matter comes before the Court on Defendant Secretary’s Motion for Summary
Judgment (Doc. No. 37). Plaintiff has responded in opposition to the Motion (Doc. No.
41), and Defendant has replied (Doc. No. 42). Based on the case record, the parties’
arguments, and the governing law, Defendant’s Motion should be granted.
BACKGROUND
Plaintiff Sunny Lee-Fanning, an African-American/Asian woman, brings this action
against the United States Secretary of Transportation, alleging that the Federal Aviation
Administration (“FAA”) engaged in racial discrimination in failing to promote Plaintiff
and thereby violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.
Specifically, Plaintiff alleges that her former supervisor Michelle Coppedge elected to hire
a Caucasian female rather than Plaintiff for the open position of Deputy Director based on
Plaintiff’s race. In her Motion, Defendant argues that summary judgment is appropriate
because (1) the FAA had a legitimate, nondiscriminatory reason for not promoting

Plaintiff, and (2) Plaintiff has failed to present evidence sufficient to establish that the
FAA’s reason was pretextual.
STANDARD OF REVIEW
Summary judgment is a means of testing in advance of trial whether the available
evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment when “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). “An
issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998). “An issue of fact is ‘material’ if under the substantive law it is essential
to the proper disposition of the claim.” Id.
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If the movant carries this initial burden, the
nonmovant must then “go beyond the pleadings and ‘set forth specific facts’ that would be
admissible in evidence in the event of trial from which a rational trier of fact could find for
the nonmovant.” Adler, 144 F.3d at 671 (quoting Fed. R. Civ. P. 56(e)). The Court must
then determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). Parties may establish the
existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information,
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affidavits or declarations, stipulations . . . , admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences
drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he
mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the [trier of fact] could reasonably find for
the [nonmovant].” Liberty Lobby, 477 U.S. at 252.
UNDISPUTED FACTS
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Plaintiff has been employed with the FAA for around thirty years. In 2011, Plaintiff
was promoted to the executive position of Superintendent, ES-2, at the Mike Monroney
Aeronautical Center (“MMAC”), a centralized service and support facility for the FAA and
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Department of Transportation. Def.’s Mot. at 9-10.

In July 2013, the FAA posted a

vacancy announcement for the MMAC’s Deputy Director position. Id. at 10. Plaintiff,
who had previously served as Acting Deputy Director for a six-month period, applied. Id.
at 7. Michelle Coppedge, Plaintiff’s supervisor and Director of the MMAC, was the
selecting official for the position. Id. at 10.

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All material facts relied upon in this Order are uncontroverted or, where genuinely
disputed, identified as such and viewed in the light most favorable to Plaintiff.
2

Citations to documents electronically filed in this Court use the CM/ECF pagination.
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The hiring process for the Deputy Director position had five steps. Id. The process
began with FAA Human Resources, which reviewed all the applications to determine
which applicants met the minimum qualifications. Id. Of the 91 applications received,
FAA Human Resources identified 26 applicants who met the qualifications and referred
these applicants to a Ratings Panel composed of three FAA executives. Id. at 12. The
Ratings Panel then reviewed the 26 applications and scored them based on the Deputy
Director position requirements. Id. at 10-11. The panel awarded the highest score to Ms.
Robyn Burk and the second-highest score to Plaintiff. Id. at 13. The Ratings Panel then
referred the top ten applicants to an Interview Panel, also composed of three FAA
executives. Id. at 13. The Interview Panel interviewed seven of these candidates, including
Plaintiff. Id. at 14-15. The panel asked each candidate the same interview questions, which
had been developed in part by Coppedge. Id. at 14. The Interview Panel ranked each
candidate’s responses to the questions based on how well they corresponded to a key of
model responses. Id. at 14-15. The panel members then provided qualitative feedback to
Coppedge regarding the relative strengths and weaknesses of each of the seven remaining
candidates. Id. at 15.
As the fourth step in the selection process, Coppedge selected and interviewed two
candidates from the pool of seven.

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Id. at 15-16. Robyn Burk was among these two

candidates, but Plaintiff was not. Id. Following these second-round interviews, Coppedge

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The parties dispute whether the Interview Panel made a direct recommendation to
Coppedge that only two candidates were prepared for the position and should be selected
for a second interview.
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selected Ms. Burk for the position and referred her selection to her supervisor and the FAA
Administrator for review and approval.

Id. at 16.

In March 2014, both the FAA

Administrator and Coppedge’s supervisor approved Ms. Burk for the Deputy Director
position. Id.
DISCUSSION
Plaintiff may establish a violation of Title VII “either by direct evidence of
discrimination . . . or by following the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 [] (1973).” Conroy v. Vilsack, 707 F.3d 1163, 1171 (10th
Cir. 2013). The parties agree that the McDonnell Douglas framework governs in this
matter, as Plaintiff does not produce direct evidence of racial discrimination. See Def.’s
Mot. at 19; Pl.’s Resp. at 24. Under the McDonnell Douglas rubric,
the plaintiff must first establish a prima facie case of discrimination . . . .
Then, the defendant may come forward with a legitimate, non-discriminatory
. . . rationale for the adverse employment action. If the defendant does so,
the plaintiff must show that the defendant’s proffered rationale is pretextual.
Conroy, 707 F.3d at 1171 (internal quotation marks omitted) (citing Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1195 (10th Cir. 2011)).
I.

Whether Plaintiff Has Established a Prima Facie Case of Discrimination
To establish a prima facie case of a failure-to-promote claim, Plaintiff must

demonstrate that: “(1) she was a member of a protected class; (2) she applied for and was
qualified for the position; (3) despite being qualified she was rejected; and (4) after she was
rejected, the position was filled.” Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003).
Establishing the prima facia case “creates a presumption that the employer unlawfully

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discriminated against the employee.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1223
(10th Cir. 2003) (internal quotation marks omitted) (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)).
Defendant does not contest, for purposes of her Motion, that Plaintiff has satisfied
her burden of establishing a prima facie case. See Def.’s Reply at 1. As such, the burden
shifts to Defendant to demonstrate a “legitimate, nondiscriminatory reason” for the FAA’s
employment action. Conroy, 707 F.3d at 1171 (citation and internal quotation marks
omitted).
II.

Whether Defendant Has Shown a Legitimate and Nondiscriminatory Reason for
Not Promoting Plaintiff
At step two of the McDonnell Douglas framework, Defendant must articulate a

legitimate, nondiscriminatory rationale for the adverse employment action and produce
evidence in support thereof. Burdine, 450 U.S. at 254. At this stage, Defendant is required
only to “explain [the FAA’s] actions against the plaintiff in terms that are not facially
prohibited by Title VII.” EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1317 (10th Cir. 1992).
She need not persuade the Court “that [the FAA] was actually motivated by the proffered
reasons.” Burdine, 450 U.S. at 254.
Defendant submits that the FAA selected Ms. Burk for the Deputy Director’s
position because she was the most qualified candidate. See Def.’s Mot. at 21-25. To satisfy
her burden of production, Defendant first cites the Rating Panel’s score sheet reflecting the
overall score of the applicants based upon their satisfaction of the position’s requirements.
See id. at 23 (citing Doc. No. 37-6). This score sheet identifies Ms. Burk as the applicant

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who received the highest overall score from the Ratings Panel. See Doc. No. 37-6 at 1.
Defendant next submits testimony from members of the Interview Panel describing their
reasons for identifying Ms. Burk as a top candidate for the Deputy Director position. See
Def.’s Mot. at 23-24 (citing Doc. Nos. 37-7, 37-8, 37-9). Finally, Defendant quotes
Coppedge’s written selection rationale, which includes the following statement:
Ms. Burk is a good fit based on her past experience and knowledge. A crossfunctional panel representing NextGen, PMO and Finance all participated in
the interviews. We have confidence that [Burk] is the right candidate for this
position and can be successful in moving forward the mission and
requirements of the Aeronautical Center and FAA.
Ms. Burk is an achievement-oriented leader with experience in Logistics,
Acquisition, Financial Management, Legal, Regulatory, Environmental, and
IT. She is considered an expert on continuous improvement and streamlining
processes due to her extensive experience and strong leadership. She has a
solid command presence and has a great combination of domestic and
international experience as well as experience working National Defense
Program (NDP) projects in coordination with the FAA for the past several
years. Ms. Burk is currently responsible for a multi-functional team of
military, government civilian and contract personnel providing services to
customers (FAA, MDA, NOA, and other Services) in fee-for-service
partnerships.
Id. at 25 (internal quotation marks omitted) (quoting Doc. No. 37-1 at 12).
Plaintiff does not dispute that Defendant has met her burden under step two of the
McDonnell Douglas framework. See Pl.’s Resp. at 30. Because Defendant’s explanation
is not “facially prohibited by Title VII,” the Court concludes that Defendant has satisfied
her burden of articulating a legitimate, nondiscriminatory reason for the FAA’s decision
not to promote Plaintiff to the Deputy Director position. Flasher, 986 F.2d at 1317.

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Whether Defendant’s Rationale Was Pretextual

III.

At the third step of the McDonnell Douglass framework, Plaintiff is required to
“meet [the] ultimate burden of persuading the court by demonstrating the proffered reason
is not the true reason.” McCowan, 273 F.3d at 922. Plaintiff may do this “either directly
by showing a discriminatory reason more likely motivated the employer or indirectly by
challenging the employer’s reason as unworthy of credence.” Id. (footnote omitted). Here,
Plaintiff does not counter Defendant’s articulated nondiscriminatory reason with facts that
would a more likely, racially-motivated basis for the failure to promote. Thus, the matter
turns on whether Plaintiff has successfully demonstrated that Defendant’s rationale may
reasonably be found to be not the true basis for the failure to promote. See Jones, 349 F.3d
at 1266.
Though there is “no one specific mode of evidence required” to prove pretext,
Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir. 2008), pretext can generally be
established by showing that “the defendant’s proffered non-discriminatory explanations
for its actions are so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude they are unworthy of belief,” EEOC v. C.R. Eng., Inc., 644 F.3d
1028, 1038-39 (alteration and internal quotation marks omitted) (quoting Johnson v. Weld
Cty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010)). An inference of pretext may also be
drawn where there is “an overwhelming merit disparity” between the plaintiff and the
chosen candidate, Santana v. City & Cty. of Denver, 488 F.3d 860, 865 (10th Cir. 2007)
(citation and internal quotation marks omitted), or where the plaintiff’s assertions of pretext
are supported by “disturbing procedural irregularities, including deviations from normal

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company procedure,” Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1138 n.11 (10th
Cir. 2003) (internal quotation marks omitted) (quoting Garrett v. Hewlett-Packard Co.,
305 F.3d 1210, 1219-20 (10th Cir. 2002)).
To demonstrate a triable dispute over whether Defendant’s rationale is pretextual,
Plaintiff argues that (1) Plaintiff was better qualified for the position than Ms. Burk; (2)
Coppedge had a history of discriminatory behavior; and (3) the selection process exhibited
procedural irregularities, including (a) Coppedge’s selection of the Interview Panel, (b)
Coppedge’s imposition of a factually inaccurate interview question, and (c) Coppedge’s
failure to interview Plaintiff despite Plaintiff’s completion of the FAA’s Senior Leadership
Development Program (“SLDP”). See Pl.’s Resp. at 31-33.
a. First Theory of Pretext: Plaintiff Was Better Qualified for the Position
Plaintiff first argues that she was better qualified for the position than Ms. Burk.
Plaintiff points to her experience in leadership positions at the FAA, beginning in 1996 and
including a six-month tenure as Acting Deputy Director. Id. at 31. Plaintiff adds that she
was “the most senior of . . . Coppedge’s executives” and that she possessed “a broad
background of knowledge and experience in headquarters and in the field,” as well as
experience “in the areas of technical and management training, international training,
financial management, logistics and inventory management, and project management.” Id.
In addition to outlining her own work experience, Plaintiff asserts that Ms. Burk “lacked
the experience necessary to competently serve as Deputy Director” and that this is
evidenced by the fact that Ms. Burk was reassigned from the position within a year of her
appointment. Id. at 32.

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While there is no dispute that Plaintiff was qualified for the Deputy Director
position, Plaintiff’s assertion of a significant disparity between her and Ms. Burk’s
qualifications is unavailing. Plaintiff does not point to any specific area of expertise
required for the Deputy Director position in which Ms. Burk was lacking. Nor does
Plaintiff contest the findings of the Ratings Panel, which included that Ms. Burk’s
qualifications and experience corresponded to the Deputy Director position requirements
better than any other applicant’s. Indeed, the job posting’s delineation of duties included:
“oversight for the corporate operational, resource, and logistical issues associated with
managing the . . . campus site.” Doc. No. 37-4 at 1. These duties corresponded with Ms.
Burk’s experience in “Logistics, Acquisition, Financial Management, Legal, Regulatory,
Environmental, and IT” and her “combination of domestic and [i]nternational experience
as well as experience working [on] National Defense Program . . . projects in coordination
with the FAA.” Doc. No. 37-1 at 6.
The fact that Ms. Burk had not previously been employed by the FAA does not, as
Plaintiff suggests, so overshadow her other qualifications as to produce the type of
“overwhelming merit disparity” that might raise genuine doubt about the FAA’s motivation
for hiring her. Santana, 488 F.3d at 865 (citation and internal quotation marks omitted).
Plaintiff cannot show pretext by merely “identifying minor differences between
[P]laintiff’s qualifications and those of successful applicants.” Id. (internal quotation
marks omitted) (quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319 (10th
Cir. 1999)).

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Ms. Burk’s ultimate reassignment from the position is likewise insufficient to
establish pretext, as Plaintiff must do more than show that the FAA “got [the employment
decision] wrong”; she must instead “come forward with evidence that the employer didn’t
really believe its proffered reason[] for [its] action.” Johnson, 594 F.3d at 1211. The Court
agrees with Defendant that Plaintiff has failed to make this showing.
Accordingly, the Court finds that Plaintiff has failed to show that the difference
between her qualifications and those of Ms. Burk were so significant as to discredit
Defendant’s proffered rationale that it found Ms. Burk to be more qualified. Plaintiff has
not, in this regard, established pretext.
b. Second Theory of Pretext: Coppedge Had a History of Discriminatory
Behavior
Plaintiff next argues that Defendant’s legitimate, nondiscriminatory rationale is
pretextual because Coppedge had “a history of discriminatory behavior, including
harassing her subordinates.” Pl.’s Resp. at 32. In support of this argument, Plaintiff cites
the affidavits of Stanley Sieg and Deloris Martin. See id. (citing Doc. Nos. 41-4, 41-5).
The former describes Mr. Sieg’s receipt of complaints from employees working for
Coppedge regarding her management style and their fear of retaliation and requests for
transfers. Doc. No. 41-4 at 1. The latter describes an incident in which an executive
working under Coppedge’s direct supervision voluntarily resigned because Coppedge was
“difficult to work with and had subjected the executive to a hostile work environment.”
Doc. No. 41-5 at 2-3.

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Evidence of a decision maker’s general bias against a protected class may, in some
circumstances, “support an inference that the decision maker[] [was] influenced by the
bias” in making an adverse employment decision. Turner v. Pub. Serv. Co. of Colo., 563
F.3d 1136, 1144 (10th Cir. 2009). But Plaintiff does not contend—and the cited affidavit
testimony does not reflect—that the individuals Coppedge allegedly subjected to hostile or
other disparate treatment were members of a protected class. Because Plaintiff fails to
show that Coppedge’s past managerial conduct reflects a general bias toward any specific
protected class, this evidence cannot serve to support an inference that Coppedge’s
selection of Ms. Burk over Plaintiff was influenced, as she alleges, by racial bias.
Accordingly, this argument does not support Plaintiff’s contention of pretext.
c. Third Theory of Pretext: The Selection Process Contained Procedural
Irregularities
Plaintiff’s third line of argument focuses on alleged procedural irregularities in the
five-step selection process. See Pl.’s Resp. at 31-32. The Tenth Circuit has recognized
that “disturbing procedural irregularities, including deviations from normal company
procedure, provide support for a plaintiff’s assertion of pretext.” Doebele, 342 F.3d at
1138 n.11 (internal quotation marks omitted) (quoting Garrett, 305 F.3d at 1219-20). To
establish pretext based upon a procedural irregularity, Plaintiff must “identify an applicable
written or unwritten policy or procedure that [Defendant] failed to follow.” Cooper v. WalMart Stores, Inc., 296 F. App’x 686, 695 (10th Cir. 2008). Further, “there must be some
evidence that the irregularity ‘directly and uniquely disadvantaged a minority employee.’”

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Johnson, 594 F.3d at 1213 (citing Randle v. City of Aurora, 69 F.3d 441, 454 n.20 (10th
Cir. 1995)).
Plaintiff marshals three examples of alleged procedural irregularities. First, Plaintiff
contends that when selecting the executives to serve on the Interview Panel, Coppedge
intentionally omitted an executive from the “one-third . . . of the Aeronautical Center
services . . . under Plaintiff’s leadership and oversight.” Pl.’s Resp. at 15-16, 29. But
Plaintiff does not identify any policy or procedure mandating that the Interview Panel
include an executive from that group or be composed of executives from some array of
backgrounds. See Cooper, 296 F. App’x at 695; see also Doc. No. 37-5 at 3 (FAA policy
stipulating that “[i]ndividuals serving on executive rating or interview panels may be career
or noncareer executives and may be employed by the FAA or another federal agency”).
For this reason, her argument fails.
Second, Plaintiff argues that Coppedge imposed a factually inaccurate interview
question regarding the MMAC’s budget. See Pl.’s Resp. at 22-23. Here again Plaintiff
fails to point to a policy that was violated. See Cooper, 296 F. App’x at 695. And there is
no basis for concluding that the alleged error “directly and uniquely disadvantaged
[Plaintiff],” since the Interview Panel asked each candidate the same question. Johnson,
594 F.3d at 1213 (citation omitted). Accordingly, Plaintiff has failed to show a procedural
irregularity based upon the allegedly inaccurate interview question.
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Plaintiff also suggests that Coppedge’s “participation in the selection of the panel
members,” “assist[ance] with the selection of questions for candidates,” and “selection as
to who would receive the final interview and the position” create an inference of pretext
because of the “subjective aspect of the process.” Pl.’s Resp. at 32. Plaintiff fails to point
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Finally, Plaintiff asserts that Coppedge’s decision not to interview Plaintiff despite
Plaintiff’s completion of the SLDP illustrates a procedural irregularity sufficient to give
rise to an inference of pretext. See Pl.’s Resp. at 31. Plaintiff points to the FAA’s Human
Resources Policy Manual, Policy Bulletin No. 64, titled “Executive System Interviews and
Selection Approval,” which stipulates that
SLDP graduates who are evaluated by an executive panel and rated among
the best qualified will be referred to the selecting official and will be given
the opportunity to interview for the position. The best qualified
determination will be made by an executive panel based upon evaluation of
the written application package submitted in response to an FAA executive
vacancy announcement.
Doc. No. 37-5 at 3.
Defendant does not dispute that Plaintiff is an SLDP graduate but argues that Plaintiff
was not entitled to the benefits under the policy. Defendant cites the affidavit of Kimberly
Brooks, the current FAA Director of Executive Resources in the Office of Human
Resources Management, who testified that “[o]nce a SLDP graduate reaches the executive
level, the SLDP program no longer provides them any additional benefit,” and that Plaintiff
was “not entitled to a guaranteed interview under the [policy]” because she “was already
an executive when she applied for the Deputy Director position.” Def.’s Mot. at 33 (citing

to any authority supporting this proposition. And while the presence of subjective
decision-making can, in some circumstances, create an inference of discrimination, courts
“typically infer pretext in these contexts only when the criteria on which the employers
ultimately rely are entirely subjective in nature.” Jones, 349 F.3d at 1267-68 (emphasis
added). The Tenth Circuit has found that where, as here, “each applicant answered the
same questions, and the interviewers ranked the applicants’ responses using predetermined
criteria,” the selection criteria were not excessively subjective. Turner, 563 F.3d at 1145;
accord Santana, 488 F.3d at 866.
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Doc. No. 37-5). In response, Plaintiff offers the conflicting testimony of Deloris Martin,
an individual who served as an FAA Human Resources Specialist during the times relevant
to this lawsuit. Ms. Martin testified that the benefits provided to SLDP graduates under
the policy do not “terminate[] or expire[] once [the] graduate reache[s] an executive-level
position.” Doc. No. 41-5 at 2. Defendant submits that the Court should disregard Ms.
Martin’s testimony because it would be inadmissible in evidence. See Def.’s Reply at 5-7,
10.
The Court need not address these issues, as Plaintiff’s argument fails even if the
Court assumes Plaintiff was entitled to an interview with Coppedge under the policy. The
failure to interview Plaintiff is not, in this instance, sufficient to establish an inference of
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pretext. The Tenth Circuit has explained,
The mere fact that an employer failed to follow its own internal procedures
does not necessarily suggest that the employer was motivated by illegal
discriminatory intent or that the substantive reasons given by the employer
for its employment decision were pretextual. Ingels [v. Thiokol Corp., 42
F.3d 616, 623 (10th Cir. 1994)] (“To the extent there is any inconsistency at
all in following the employer’s internal procedures, it only goes to process

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Insofar as Plaintiff frames her argument in terms of Coppedge’s “failure to recognize
Plaintiff’s benefits” under the policy, Pl.’s Resp. at 23, the Court notes that the policy does
not dictate that the selecting official is responsible for identifying the SLDP graduates but
only that she interview those referred to her. See Doc. No. 37-5 at 3. Plaintiff attempts to
place responsibility on Coppedge by pointing to a memorandum from a human resources
specialist that advises Coppedge that she must interview all SLDP graduates. See Pl.’s
Resp. at 23, 28. This argument is unavailing. The human resources specialist also stated
in the memorandum that “[a]ny such [SLDP] candidates are identified on [an attached]
certificate,” Doc. No. 41-19 at 1, and as Plaintiff concedes the accompanying certificate
fails to identify her as an SLDP graduate. See Pl.’s Resp. at 15; Doc. No. 41-19 at 5. In
the absence of evidence that Plaintiff was referred to Coppedge as an SLDP graduate,
Plaintiff has not shown that Coppedge was responsible for a procedural irregularity.
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and not to purpose or motivation, and could not provide a sufficient basis for
a jury to find pretext for [racial] discrimination.”).
Randle, 69 F.3d at 454 (alteration omitted); accord Berry v. T-Mobile USA, Inc., 490 F.3d
1211, 1222 (10th Cir. 2007). The summary judgment record reflects the FAA’s attempt to
follow the cited policy. See Doc. No. 41-19 at 1 (memorandum from human resources
specialist advising Coppedge that she must interview SLDP graduates listed “on [an
attached] certificate”); id. at 5 (certificate not listing Plaintiff as required interviewee). This
record, even considering the affidavit testimony of Ms. Martin, reflects at most a mistaken
understanding of the policy or error in its application and not that any such mistake or error
was insincere or otherwise pretextual. See Randle, 69 F.3d at 455 (“[T]he City offered
evidence that it believed that it was following its own internal procedures, and thus, even
if the failure to announce [the] position was a mistake, it was not pretextual. That is, just
because the reasoning relied upon for a certain action is mistaken does not mean that the
reason is pretextual.”); Berry, 490 F.3d at 1222 (“Because it is uncontroverted that TMobile decisionmakers did not believe a rigid policy existed, ‘even if the failure to [follow
procedure] was a mistake, it was not pretextual.’”).
In sum, Plaintiff’s assertions of procedural irregularities do not illustrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
[Defendant’s] proffered legitimate reason[] for [the adverse employment] action that a
reasonable factfinder could rationally find [it] unworthy of credence.” Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted). Accordingly, the Court finds

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that these assertions do not present a triable dispute over whether Defendant’s rationale is
pretextual.
CONCLUSION
For the foregoing reasons, Plaintiff has failed to present sufficient evidence to create
a genuine issue of material fact that Defendant’s proffered reason for the FAA’s failure to
promote Plaintiff is pretext for discrimination. Thus, Plaintiff has failed to satisfy her
burden under the third step of the McDonnell Douglas framework.
Accordingly, the Court concludes that Defendant’s Motion for Summary Judgment
(Doc. No. 37) should be and hereby is GRANTED.
ENTERED this 8th day of January, 2019.

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