Zou v. Linde Engineering North America, Inc.

Qnited States District Court

for the #orthern District of Oklahoma

Case No. 19-cv-554-JDR-JF]J

Bo Zou,

Plaintiff,

versus

LINDE ENGINEERING NORTH AMERICA, INC.,

Defendant.

OPINION AND ORDER

In 2018, Linde Engineering North America, Inc. hired Plaintiff Bo

Zou, a 54-year-old Chinese American. Less than a year later, Mr. Zou was laid

off. Mr. Zou now claims that Linde (1) discriminated against him based on

both his race and his age, in violation of Title VII, 42 U.S.C. § 20006¢ et seq.,

and the Age Discrimination in Employment Act of 1964, 29 U.S.C. §§ 621-

34 and (2) retaliated against him by giving him more work and selecting him

for layoff in violation of both Title VII and the ADEA. See Dkt. 13 at 2 (4 4)."

Both parties have moved for summary judgment. Dkts. 231, 232. The motions

have been fully briefed, and the Court held a hearing on the motions on De-

cember 18, 2024. Dkt. 247. For the reasons discussed below, Mr. Zou’s mo-

tion for summary judgment is denied, and Linde’s motion for summary judg-

ment is granted.

' All citations utilize CMECF pagination.

No. 19-cv-554

I.

Linde specializes in designing and building large-scale chemical plants

for the production of industrial gases and the processing of natural gas. Dkt.

232-1 at 2-3 ({ 4). Prior to Mr. Zou’s employment with Linde, Linde hired

two piping designers, Dustin Duncan and Kenny Sharp, both of whom are

Caucasian males under the age of forty. Dkts. 231 at 2 (7); 232-1 at 4 (412).

By August of 2018, both Mr. Duncan and Mr. Sharp had been promoted to

piping design engineers. Piping design engineers assist team leaders and pro-

ject personnel during the layout and design aspects of project execution; the

position does not require an engineering degree. Dkt. 232-1 at 4 (10).

On October 1, 2018, Linde hired Mr. Zou, who was 54 years old at the

time, to fill the sole piping engineer position in its Tulsa office. Dkt. 232-1 at

3 (7). Mr. Zou, who has a master’s degree in mechanical engineering, met

all qualifications for the position. Dkt. 231 at 1-2 ({ 2, 5). Mr. Zou reported

directly to Jerry Gump, Linde’s manager of engineering. Dkt. 232-1 at 3-4 (

9). The piping engineer position, which typically requires an engineering de-

gree, is responsible for the execution of projects across all phases and ap-

proaches projects from a broad technical perspective. Jd. Before Mr. Zou

filled the position, projects from the Tulsa office requiring a piping engineer

were completed by piping engineers in other offices. Dkt. 232-1 at 4 (13).

Mr. Zou maintains that, from the beginning of his employment with Linde,

he was treated differently than Mr. Duncan and Mr. Sharp.

On May 6, 2019, Mr. Zou complained to Aaron Watson, Linde’s hu-

man resources department supervisor, that Mr. Gump was letting Mr. Sharp

perform Mr. Zou’s job duties, that Mr. Zou was being excluded from specifi-

cation meetings, that Mr. Zou was only listed as an “optional” attendee for

other meetings, and that Mr. Gump acknowledged Mr. Sharp in a meeting

with a cash award for his hard work after Mr. Sharp had made a mistake. Dkts.

232 at 8-9 (J 11); 236 at 7 11). The human resources department advised

Mr. Zou to discuss the issues with Mr. Gump, and he did so. Dkt. 236 at 7 ({

No. 19-cv-554

11). Following the discussion, Mr. Zou was invited to attend the specification

meetings. Jd.

Four days after his initial complaint to HR, Mr. Zou sent a formal writ-

ten letter detailing his complaints to Linde vice president David Close. Dkt.

231 at 3 16), 45. In the letter, Mr. Zou called into question Mr. Gump’s

fairness and ethics in performing his job as a supervisor. Dkt. 231 at 45-47. In

addition to his concerns raised with HR, Mr. Zou claimed that Mr. Gump

cancelled some of his trainings and asked Mr. Zou’s roommate and coworker,

Bob Wong, to monitor him and search his room at their shared home. Jd.

After investigating the complaints, Linde provided Mr. Zou with a

written summary of their investigation and findings based on his written com-

plaint. Dkt. 232-8 at 2. Mr. Watson also sent a formal letter to Mr. Zou in-

forming him that no evidence was found to corroborate his allegations and

that the investigation into his complaint was closed. Dkt. 232-9 at 2. Becky

Ford with Linde’s HR department initially scheduled a follow-up meeting

with Mr. Zou for July 11, 2019, to discuss the complaint. Dkt. 232-7 at 3. But

on July 3, 2019, Mr. Zou told Ms. Ford that he had spoken with Mr. Gump,

and the issues about his job duties had been resolved. Jd. at 2. Mr. Zou stated

that, so long as Ms. Ford had read his complaint, he “‘may cancel the meet-

ing.” /d. He stated that he never asked Linde to investigate his complaint but

instead wanted management to pay attention to the issues he had identified.

Tad.

Ms. Ford sent Mr. Zou an email on July 11, 2019, confirming that she

was cancelling the follow-up meeting. Dkt. 232-10 at 2. Mr. Zou responded

that he did not accept the “incorrect” investigation results but reiterated that

he did not object to cancelling the meeting so long as she had read his com-

plaint. Jd. On August 7, 2019, Linde laid off Mr. Zou as part of a company-

wide reduction in force. Dkt. 236 at 65.

No. 19-cv-554

Il.

Summary judgment is proper “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.” Federal Rule of Civil Procedure 56(a). A material fact is

one that “might affect the outcome of the suit under the governing law,” and

a dispute is genuine “if the evidence is such that a reasonable jury could re-

turn a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). In deciding a motion for summary judgment, “the

judge’s function is not himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.” Jd.

at 249. “The mere existence of a scintilla of evidence in support of the plain-

tiff’s position will be insufficient; there must be evidence on which the [trier

of fact] could reasonably find for the plaintiff.” Jd. at 252. Further, the “evi-

dence must be based on more than mere speculation, conjecture, or surmise.”

Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999) (citing Brown ».

Reardon, 770 F.2d 896, 904 (10th Cir. 1985)). ““Cross-motions for summary

judgment are to be treated separately; the denial of one does not require the

grant of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.

1979) (citing SEC ». American Commodity Exchange, Inc., 546 F.2d 1361, 1365

(10th Cir. 1976)).

Il.

Mr. Zou argues that he is entitled to summary judgment on his claims

because he was treated differently than other younger, Caucasian employees.

Dkt. 231 at 5. He also claims that he was laid off because he was Asian, over

the age of forty, and for filing a complaint with HR about the disparate treat-

ment. /d. Linde argues that it is entitled to summary judgment because Mr.

Zou cannot establish a prima facie case of employment discrimination under

any theory and has no evidence that Linde’s legitimate, non-discriminatory

reason for laying him off—a reduction in force—is pretext. Dkt. 232 at 13.

No. 19-cv-554

A.

The Court first considers Mr. Zou’s race* and age® discrimination

claims. At the summary judgment stage, both race and age discrimination

claims are evaluated under the burden-shifting framework set forth in McDon-

nell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).* See Carney v. City &

Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008); Beaird v. Seagate Tech.,

Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). Under that framework, Mr. Zou has

the initial burden of establishing a prima facie case of discrimination. McDon-

nell Douglas Corp., 411 U.S. at 802. If he establishes a prima facie case, Linde

must then set forth a legitimate, nondiscriminatory reason for its decision the

alleged disparate treatment and for including Mr. Zou in the RIF. /d. If Linde

satisfies this burden, it then falls back to Mr. Zou to demonstrate that the

proffered justification is pretextual. Laul v. Los Alamos Nat’! Lab?ys, 765 F.

App’x 434, 440 (10th Cir. 2019)°; Anaeme v. Diagnostek, Inc., 164 F.3d 1275,

1278-79 (10th Cir. 1999).

For purposes of these motions, the Court assumes Mr. Zou has estab-

lished a prima facie case of race and age discrimination with respect to the

only adverse employment action at issue here—the termination of Mr. Zou’s

employment.® The burden shifts to Linde to offer proof of a facially

> Title VII, 42 U.S.C. § 2000e et seg., prohibits employers from discriminating

against an individual because of the individual’s race, color, religion, sex, or national origin.

See 42 U.S.C. § 2000e-2(a).

The Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34, pro-

hibits employers from discriminating against an individual because of his or her age. See 29

U.S.C. § 623(a)(1).

* Mr. Zou has not presented any evidence of direct discrimination. The Court will

utilize the standard for circumstantial or indirect discrimination. See, e.g., Ramsey v. City &

Cty. of Denver, 907 F.2d 1004, 1007-08 (10th Cir. 1990).

* Although unpublished and, therefore, not precedential, this and other un-

published decisions may be cited for their persuasive value. 10 Cir. R. 32.1(A).

° To the extent Mr. Zou claims Linde discriminated against him in other ways, he

has failed to identify any other adverse employment actions or activities that give rise to “a

significant change in employment status, such as hiring, firing, failing to promote,

ge

No. 19-cv-554

nondiscriminatory reason for Mr. Zou’s termination. At this stage, Linde’s

burden is “exceedingly light”; to meet it, Linde need only produce admissible

evidence that would allow a jury to conclude that it was not motivated by dis-

criminatory animus. Avnaeme, 164 F.3d at 1279 (citation and quotation marks

omitted).

Linde asserts that Mr. Zou was one of eighteen Tulsa employees laid

off due to a reduction in force “driven by external business factors, a shift in

Linde’s focus, and projected future work requirements.” Dkts. 232-1 at 5-6

(IJ 21-23); 235 at 1. Mr. Zou was selected for the RIF because “a piping en-

gineer focused on natural gas was no longer needed in the Tulsa office due to

Linde’s movement away from natural gas.” Dkt. 232-1 at 6 (J 23). The imple-

mentation of a RIF is a facially nondiscriminatory reason to lay off an em-

ployee. See, e.g., Beaird, 145 F.3d at 1168. Because Linde has offered a facially

nondiscriminatory reason, the burden shifts back to Mr. Zou to produce suf-

ficient evidence to permit a factfinder to conclude that Linde’s stated reason

is pretextual. Plotke »v. White, 405 F.3d 1092, 1102 (10th Cir. 2005); Salguero

». City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004).

“A plaintiff demonstrates pretext by showing either that a discrimina-

tory reason more likely motivated the employer or that the employer’s prof-

fered explanation is unworthy of credence.” Stinnett v. Safeway, Inc., 337 F.3d

1213, 1218 (10th Cir. 2003) (quoting Rea v. Martin Marietta Corp., 29 F.3d

1450, 1455 (10th Cir. 1994)). Pretext can be established by demonstrating

“such weaknesses, implausibilities, inconsistencies, incoherencies, or contra-

dictions in [Linde’s] proffered legitimate reasons for its action that a reason-

able factfinder could rationally find them unworthy of credence.” Morgan »v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation and quotation marks

omitted). But “‘mere conjecture’ that [Linde’s] explanation is pretext is not

a sufficient basis to deny a motion for summary judgment.” Green v. Paragon

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.” See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

No. 19-cv-554

Films, Inc., 814 F. Supp. 2d 1174, 1182 (N.D. Okla. 2011) (quoting Branson v.

Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1998)).

Pretext in the context of a RIF may be demonstrated by evidence that

Mr. Zou’s “termination was inconsistent with the RIF criteria articulated by

[his] employer; a claimed business judgment so idiosyncratic or questionable

that a factfinder could reasonably find that it is pretext for illegal discrimina-

tion; the employer’s inconsistent application of the RIF criteria; or other pro-

cedural irregularities in the RIF process.” Eke v. CaridianBCT, Inc., 490 F.

App’x 156, 164 (10th Cir. 2012) (internal quotation and citation omitted).

Further evidence of pretext “may include the following: prior treatment of

plaintiff; the employer’s policy and practice of employment regarding age (in-

cluding statistical data); disturbing procedural irregularities ...; and the use

of subjective criteria.” Berry » Airxcel, Inc., No. 20-1362-KHV, 2022 WL

2952511, at *7 (D. Kan. July 26, 2022) (citing Simms v. Okla. ex rel. Dep’t of

Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999)).

Mr. Zou’s pretext arguments are many and various. He first argues

that Mr. Gump treated him differently than the younger, Caucasian employ-

ees, Mr. Sharp and Mr. Duncan. Dkt. 231 at 5. Second, Mr. Zou offers his

subjective belief that Linde treated him differently than other employees. Jd.

at 6, 13-14. Third, Mr. Zou claims that his position was not actually elimi-

nated. /d. at 10-12. Fourth, Mr. Zou contends that he should have been trans-

ferred to a vacant engineering position in another department. Jd. at 12-13.

And finally, Mr. Zou argues that Linde’s proffered reason is pretext because

everyone laid off under Mr. Gump was over the age of forty, tenure was not a

given reason at the time of the layoff, and Linde did not ultimately change its

focus away from natural gas. Dkt. 241 at 4, 8-9.

i.

Before turning to the merits of Mr. Zou’s arguments, the Court first

addresses Mr. Zou’s evidentiary challenge to the declaration of Deana Hoey

[Dkt. 232-1], a member of Linde’s HR department. /d. at 1 (J 2). The

No. 19-cv-554

declaration supports Linde’s reasonings for the RIF and why Mr. Zou was

ultimately selected. Mr. Zou argues that the declaration is inadmissible be-

cause it contradicts other evidence and should be considered hearsay.’ Dkt

236 at 1. The credibility of Linde’s proffered reason is certainly at issue. But

the explanation is supported by Ms. Hoey’s declaration and is not facially pre-

textual.

To challenge Linde’s reasons, Mr. Zou cannot simply state that Ms.

Hoey’s declaration is incredible. Instead, he must present evidence which

“undermine[s] the employer’s credibility to the point that a reasonable jury

could not find in its favor.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303,

1310 (10th Cir. 2005) (citing Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir.

1995)). Mr. Zou cannot rely solely on his attack of Ms. Hoey’s credibility to

withstand Linde’s motion for summary judgment. See, e.g., Nat?] Am. Ins. Co.

yp. Am. Re-Ins. Co., 358 F.3d 736, 742 (10th Cir. 2004) (“Standing alone, at-

tacks on the credibility of evidence offered by a summary judgment movant

do not warrant denial of a summary judgment motion.”). Doubts as to Ms.

Hoey’s credibility “must relate to a material issue in order to undermine a

grant of summary judgment.” Eke »v. CaridianBCT, Inc., 490 F. App’x 156,

168 (10th Cir. 2012) (citing Sorbo v. United Parcel Serv., 432 F.3d 1169, 1176

(10th Cir. 2005)).

Mr. Zou fails to raise anything more than generalized credibility chal-

lenges, and he presents no evidence to contradict Linde’s evidence. Mr. Zou

generally disputes almost all of Ms. Hoey’s statements based on his own per-

ception of the facts. For example, he states that “Deana Hoey should be

American Caucasian, rather than American Indian. The fact is inadmissible.”

Dkt. 236 at 19. Mr. Zou has not provided any evidence that Ms. Hoey is not

’ The Court notes that Mr. Zou’s objection to hearsay does not necessarily preclude

the Court from considering Linde’s evidence at the summary judgment stage. See Argo ».

Blue Cross & Blue Shield of Kans., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (indicating that

evidence that would be inadmissible at trial may be considered at summary judgment if the

evidence could ultimately be presented in non-hearsay form).

No. 19-cy-554

Native American.* Further, Mr. Zou does not identify any inconsistencies by

Ms. Hoey as to any material fact. In fact, he points to no facts at all that would

put Ms. Hoey’s statements legitimately in question. “This is nothing more

than a bare attack on the credibility of a summary judgment witness’s testi-

mony, which is not sufficient, standing alone, to avoid summary judgment.”

Eke, 490 F. App’x at 169 (citing Nat?] Am. Ins. Co., 358 F.3d at 742). The Court

will consider Ms. Hoey’s declaration.

2.

As to Mr. Zou’s first pretext argument, he believes that Mr. Gump

treated younger, Caucasian employees more favorably by allowing them to

perform his job duties, attend meetings he should have been invited to, and

failing to punish Mr. Sharp for a mistake in his work product. The Tenth Cir-

cuit has recognized that a plaintiff may establish pretext by showing that “the

employer ‘treated [the plaintiff] differently from other similarly-situated em-

ployees who violated work rules of comparable seriousness’ in order to show

that the employer failed to follow typical company practice in its treatment of

the plaintiff.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168

(10th Cir. 2007) (quoting Kendrick ». Penske Transp. Servs., Inc., 220 F.3d

1220, 1230 (10th Cir. 2000)). An employee is similarly situated if he “deals

with the same supervisor and is subject to the ‘same standards governing per-

formance evaluation and discipline.’” Kendrick, 220 F.3d at 1232 (quotation

§ At the motion hearing, the Court asked Mr. Zou what evidence he had to dispute

Ms. Hoey’s declaration that she is Native American. He stated that the only basis for his

dispute was the color of Ms. Hoey’s skin and that she had never told him she was Native

American. Mr. Zou then filed a document titled “Plaintiff’s Supplemental Clarifications to

Plaintiff’s Dispute About Deana Hoey’s Race” after the hearing. Dkt. 248. In the docu-

ment, Mr. Zou states that Linde offered the fact that Ms. Hoey is Native American for the

first time in the declaration “without evidence.” Jd. at 2. According to Mr. Zou, the fact is

inadmissible because Linde did not provide Ms. Hoey’s certificate of degree of Indian

blood. Jd. But evidence contained in a declaration need only be “based on personal

knowledge and must set forth facts that would be admissible in evidence.” Ellis v. J.R.’s

Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015). Whether Ms. Hoey is Native

American certainly falls within her own personal knowledge and is a fact she could testify

to at trial.

oO

No. 19-cv-554

and citation marks omitted). “Work histories, company policies applicable to

the plaintiff and the comparator, and other relevant employment circum-

stances should be considered when determining whether employees are sim-

ilarly situated.” Green ». New Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005)

(citing Kendrick, 220 F.3d at 1232). Mr. Zou has failed to present evidence

that the allegedly favored employees are similarly situated. See Riggs ».

AirTran Airways, Inc., 497 F.3d 1108, 1121 n.4 (10th Cir. 2007) (holding that

the plaintiff has the burden to produce evidence that employees are similarly

situated).

Mr. Duncan and Mr. Sharp are piping design engineers, not piping en-

gineers. Dkts. 231 at 3 ( 14); 235 at 7. The evidence shows that these roles

are materially different. Mr. Duncan and Mr. Sharp also have different edu-

cational, professional, and work experience than Mr. Zou. Dkt. 235 at 7-8. It

is undisputed that Mr. Duncan, Mr. Sharp, and Mr. Zou worked under Mr.

Gump, but Mr. Duncan and Mr. Sharp held different positions and had been

employed at Linde longer than Mr. Zou. Linde provides evidence that tenure

was a factor in Linde’s decision to select employees for the RIF. /d. at 8. There

is no evidence in the summary judgment record contradicting Linde’s evi-

dence; thus, the Court finds that Mr. Duncan’s and Mr. Sharp’s tenure and

different position is sufficient to distinguish them from Mr. Zou. See Brunker

». Schwan’s Home Serv., Inc., 583 F.3d 1004, 1010 (7th Cir. 2009) (experience

and education are relevant factors when determining if employees are simi-

larly situated); Williams v. Carolinas Healthcare Sys., No. 3:10-CV-232-GCM,

2011 WL 1131087, at *3 (W.D.N.C. Mar. 25, 2011) (same). Mr. Zou has failed

to produce any evidence of a similarly situated employee that was treated

more favorably than him and which would lead to an inference of pretext. See

Riggs, 497 F.3d at 1121 n.4 (holding that the plaintiff has the burden to produce

evidence that employees are similarly situated to support a pretext argument

that the similarly situated employee was treated more favorably). Accord-

ingly, Mr. Gump’s treatment of Mr. Duncan or Mr. Sharp is not sufficient

si

No. 19-cv-554

evidence upon which a reasonable jury could determine that Linde’s reason

is pretext.

3:

Mr. Zou also alleges that Linde’s ongoing disparate treatment is evi-

dence of Linde’s animus toward him, which would indicate that the RIF was

pretext for terminating Mr. Zou’s employment. In support, he claims that

several trainings he was set to attend were cancelled and not rescheduled.

Dkt. 231 at 6. He also provides evidence that the Tulsa Linde employees

threw a birthday party for Mr. Gump and another employee, but did not

throw a party for Mr. Zou or give him a birthday card on his birthday. Jd. at

14; 102-08. As to the trainings, Linde maintains that “[a] training or two

might have been cancelled due to conflicts and/or lack of participation; this

would affect multiple employees and would not be isolated to only Zou.” Dkt.

232-1 at 3 8). And as to the birthday celebrations, Mr. Zou has not pre-

sented any evidence indicating whether the parties were thrown for every

Linde employee or whether the people responsible for the parties and cards

even knew when Mr. Zou’s birthday was.

The evidence cited does not support a conclusion of race or age-based

animus. Further, there is no evidence to connect those decisions to Linde’s

selection of Mr. Zou for the RIF. See, e.g., Eke »v. CaridianBCT, Inc., 490 F.

App’x 156, 168 (10th Cir. 2012) (finding that the plaintiff failed to provide

sufficient evidence that the defendant’s proffered reason was pretext because

the plaintiff failed to “connect any of her specific examples of alleged discrim-

ination to [her supervisor’s] decision to eliminate her job”). A plaintiff’s

opinion that discrimination is pervasive alone cannot establish pretext. Beaird

v. Seagate Technology, Inc., 145 F.3d 1159, 1170 (10th Cir. 1998). The evidence

presented would not permit a reasonable jury to conclude that Mr. Zou’s per-

ceived disparate treatment was pretext for Linde’s proffered reasoning.

No. 19-cv-554

4.

Next, Mr. Zou argues that Linde’s offered reason is pretext because

his position was not in fact eliminated but was instead transferred to Mr. Dun-

can and Mr. Sharp. Dkt. 231 at 10-12. Prior to the RIF, Mr. Zou was working

on a project with a September 30, 2019, deadline and was about to begin an-

other project that required the work of a piping engineer. Jd. at 10-11. Mr. Zou

states that Linde simply eliminated his job title, rather than his actual job, and

the work he had been doing was then transferred to Mr. Duncan and Mr.

Sharp. Jd. at 11. Linde maintains that, after the RIF, the Tulsa office did not

hire another piping engineer, and the Tulsa office ultimately closed in Octo-

ber of 2021. Dkt. 235 at 9-10. Any work that required a piping engineer was

handled by a piping engineer in another Linde office. Jd.

The Tenth Circuit has held that “the test for position elimination is

not whether the responsibilities were still performed, but rather whether the

responsibilities still constituted a single, distinct position.” Furr ». Seagate

Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996). Regardless of whether some of

his work was transferred to piping engineers in other offices, Mr. Zou con-

cedes that his responsibilities were transferred to multiple individuals. Dkt.

231 at 11. Asa result, his position was no longer a single, distinct position. See,

e.g., Furr, 82 F.3d at 988 (A position was not eliminated where the “former

responsibilities were divided up and absorbed ... and no new person took over

[the employee’s] former responsibilities.”). Evidence simply does not sup-

port the conclusion that Linde lied when it stated that Mr. Zou’s position was

eliminated.

Mr. Zou next argues Mr. Duncan and Mr. Sharp “were not qualified

for [the] piping engineer positions.” Dkt. 231 at 11-12. It is not clear how this

fact, even if true, would establish pretext. But whether Mr. Duncan and Mr.

Sharp were qualified to perform the duties is not a determination for the

Court to make, nor is it determinative of pretext in this context. The decision

to divide Mr. Zou’s position among several employees falls entirely under

19

No. 19-cv-554

Linde’s discretion. See Furr, 82 F.3d at 986 (“[T]he manner in which a com-

pany chooses to conduct a RIF is within the company’s sound business dis-

cretion ....”). The facts establish that the position was eliminated and the

elimination does not demonstrate that Linde’s proffered reasoning is pre-

textual.

5.

Mr. Zou also asserts that Linde had open engineering positions in the

Tulsa office at the time of the RIF that Mr. Zou was qualified for, and Linde’s

failure to transfer him to those positions demonstrates that the RIF was pre-

text for his termination. Dkt. 231 at 12-13. Linde maintains that it was not

required to find a new position for Mr. Zou in lieu of terminating his employ-

ment. Dkt. 235 at 10. In Eke v. CaridianBCT, Inc., the plaintiff argued that her

former employer’s failure to find her another position in the company instead

of laying her off demonstrated pretext. 490 F. App’x 156, 166 (10th Cir. 2012).

The Tenth Circuit rejected her argument, finding that there was “no evi-

dence that the company’s RIF selection process directed the decision makers

to find alternate positions for employees whose jobs were ... eliminat[ed]”

and plaintiff “cite[d] no authority supporting her proposition that an em-

ployer’s failure to consider placing an employee in another job before termi-

nating her employment is evidence of pretext.” Jd. at 166 n. 8. Likewise here,

Mr. Zou has provided no evidence that Linde was required to find the em-

ployees selected for the RIF an alternative position or cite to any authority

requiring Linde to do so in effectuating the RIF. Accordingly, the Court re-

jects Mr. Zou’s argument and finds that a reasonable jury could not conclude

that Linde’s failure to offer Mr. Zou another vacant engineering position is

evidence of pretext.

6.

Finally, Mr. Zou makes an overarching argument that Linde’s prof-

fered reasoning is pretext because every employee laid off under Mr. Gump

was over the age of forty [Dkt. 231 at 15], tenure was not a listed reason for

a3

No. 19-cv-554

the RIF on the original separation agreement [Dkt. 241 at 4], and Linde did

not ultimately change its focus away from natural gas [/d. at 8]. Linde re-

sponds that it terminated eighteen of fifty-four employees from the Tulsa of-

fice in August of 2019 and the remaining employees ranged in age from

twenty-seven to seventy-one. Dkt. 232-1 at 6 ( 25). Further, twelve of the

retained employees were older than Mr. Zou and only two of the seven Asians

in the Tulsa office were included in the RIF. Jd.

Mr. Zou asks the Court to focus solely on the employees terminated

under Mr. Gump rather than the RIF in its entirety. “Statistics taken in iso-

lation are generally not probative of ... discrimination.” Jones v. Unisys Corp.,

54 F.3d 624, 632 (10th Cir. 1995). “At the very least, in order to create an

inference of pretext, ‘a plaintiff’s statistical evidence must focus on eliminat-

ing nondiscriminatory explanations for the disparate treatment by showing

disparate treatment between comparable individuals.’” Timmerman v. U.S.

Bank, N.A., 483 F.3d 1106, 1115 (10th Cir. 2007) (quoting Fallis ». Kerr-McGee

Corp., 944 F.2d 743, 746 (10th Cir. 1991)). Thus, “[s]tatistical evidence that

does not adjust for the various performance evaluations and departmental

rankings of the employees included in the statistical pool” is insufficient to

establish pretext. See Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186,

1197-98 (10th Cir. 2006) (citation and quotation marks omitted). Mr. Zou’s

statistical evidence does not account for nondiscriminatory explanations for

the disparity, such as “differences in various individuals’ job performance,

experience, and training.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1110

(10th Cir. 2008). Without accounting for these variables, Mr. Zou’s evidence

fails to suggest pretext. See Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456

(10th Cir. 1994) (“‘Plaintiff’s statistical evidence compares only the ages of

employees retained with the ages of those laid off .... Plaintiff’s statistical ev-

idence fails to eliminate nondiscriminatory explanations for disparate treat-

ment—z.e., that those laid off had lower performance evaluations and rank-

ings than those retained—and therefore does not permit an inference of pre-

text.”).

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No. 19-cv-554

Looking now to the separation agreement, it stated that the RIF was

“due to a change in [Linde’s] business direction ... as well as the current mar-

ket conditions and expected work load ....” Dkt. 236 at 65. The agreement

further states that individuals were selected for the RIF based on “job elimi-

nation, job function, critical skills, performance, abilities, effectiveness, ver-

satility, value to continuing business operations, uniqueness, and reassign-

ment potential.” Dkt. 236 at 72. Mr. Zou takes issue with the fact that tenure

was not specifically listed in the agreement as a selection criterion. Dkt. 241

at 4. But “[p]roviding additional justifications for termination without aban-

doning the primary reason for termination does not, without more, establish

pretext.” Litzsinger v. Adams Cnty. Coroner’s Office, 25 F.4th 1280, 1293 (10th

Cir. 2022). “To support an inference of pretext, the additional justifications

must ‘suggest dishonesty or bad faith.” Jd. (quoting Trigg v. Hawker

Beechcraft Corp., 659 F.3d 987, 1002 (10th Cir. 2011)). Linde’s supposedly ad-

ditional reasoning —tenure—is entirely in line with and could fall under any

number of the criteria listed in the separation agreement. Mr. Zou has failed

to provide evidence that this additional reason suggests dishonesty or bad

faith by Linde.

Mr. Zou also argues that Linde did not actually change its business fo-

cus, as offered in the separation agreement. Dkt. 241 at 8-9. When assessing

Linde’s proffered reason for the RIF,

the relevant ... inquiry is whether the employer’s stated reasons

were held in good faith at the time of the discharge, even if they

later prove to be untrue, or whether plaintiff can show that the

employer’s explanation was so weak, implausible, inconsistent

or incoherent that a reasonable fact finder could conclude that

it was not an honestly held belief but rather was subterfuge for

discrimination.

Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (citing Revera v. City

& Cty. of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)). At the time of the

RIF, Linde indicated to its employees that it was shifting its business

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No. 19-cy-554

direction. Dkt. 236 at 65. Less than a year after Mr. Zou’s termination, Mr.

Duncan and Mr. Sharp, who worked in the same department as Mr. Zou,

were also laid off. Dkt. 232-1 at 6 (7 27). And the Tulsa office ultimately closed

in October of 2021. Jd. at 6 (728). This evidence certainly suggests that Linde

intended to make significant changes to the Tulsa office and ultimately fol-

lowed through with those plans. Mr. Zou has provided no evidence which

suggests that Linde did not intend to shift its business direction at the time of

the original RIF which led to Mr. Zou’s termination.

For these reasons, the Court finds that Mr. Zou has not presented suf-

ficient evidence for a jury to find that Linde’s proffered non-discriminatory

reason for his lay off was pretextual. Thus, Linde’s motion for summary judg-

ment on Mr. Zou’s Title VII and ADEA discrimination claims is granted and

Mr. Zou’s motion is denied.

B.

The parties next argue that they are entitled to summary judgment on

Mr. Zou’s claim for unlawful retaliation in violation of both Title VII and the

ADEA. Mr. Zou claims that he was retaliated against when he was required

to work overtime, and again when Linde decided to include him in the RIF.

The retaliation claim, like Mr. Zou’s Title VII and ADEA claims, is subject

to the McDonnell Douglas burden-shifting framework: Mr. Zou must first set

forth a prima facie case of retaliation by showing that (1) he engaged in pro-

tected opposition to discrimination, which (2) resulted in a materially adverse

employment action that (3) was causally connected to the protected activity.

Somoza v. Univ. of Denver, 513 F.3d 1206, 1211 (10th Cir. 2008).

The Tenth Circuit has stated that “‘[a]lthough no magic words are re-

quired, to qualify as protected opposition the employee must convey to the

employer his or her concern that the employer has engaged in a practice made

unlawful by [Title VII or the ADEA]. General complaints about company

management ... will not suffice.” Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1203 (10th Cir. 2008) (citations omitted); see also Peterson v. Utah Dept.

4,

No. 19-cv-554

of Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002) (“[A]n employee cannot

engage in unlawful retaliation if it does not know that the employee has op-

posed or is opposing a violation of Title VII.”). The employee must notify the

employer that the complained of action is unlawful. See Kawahara v. Guaranty

Bank & Trust, 835 F. App’x 386, 390 (10th Cir. 2020).

In Mr. Zou’s letter to HR, he makes various complaints about Mr.

Gump and Linde’s practices. Dkt. 231 at 45-47. The only complaints which

pertain to disparate treatment are that he was not included in meetings, that

Mr. Gump allowed Mr. Sharp to perform some of his duties, and that Mr.

Gump asked Mr. Zou’s roommate to search his room. /d. But Mr. Zou does

not attribute any of Mr. Gump’s alleged disparate treatment to the fact that

he is Asian or over the age of forty. The letter does not contain any infor-

mation that would indicate to HR that Mr. Zou believed a Title VII or ADEA

violation had occurred. Viewing the evidence in the light most favorable to

Mr. Zou, the Court finds that Mr. Zou has not shown that he engaged in any

protected activity before he was laid off. Thus, Mr. Zou cannot establish a

prima facie claim of retaliation.

Even if Mr. Zou could establish a prima facie case of retaliation, he

could not establish that Linde’s reason was pretextual. Mr. Zou uses the same

arguments for this claim to attack Linde’s non-retaliatory reason for its ac-

tion—the RIF. These arguments fail for the same reasons as those discussed

earlier. Plaintiff also argues that the length of time between the complaint and

the RIF—three months—is sufficient evidence to show that Linde’s reason

is pretextual. Had Linde singled out Mr. Zou, this timing might have provided

sufficient evidence for a jury to find that Linde’s reasoning was pretextual.

But Mr. Zou was one of eighteen employees laid off in the context of a RIF.

See, e.g., Cruces v. Int’l Down & Feather Testing Laboratory, 956 F. Supp. 2d

1299, 1316-17 (D. Utah 2013) (holding that defendant’s reason for a reduction

in hours was not pretextual, even though it occurred “shortly after” pro-

tected activity, because the plaintiff was not “singled out” and the reduction

No. 19-cv-554

was “in the context of a RIF after applying objective criteria”). And eventu-

ally, Linde closed the Tulsa office. Mr. Zou has provided no evidence that the

complaint was causally related to the RIF. Accordingly, Linde is entitled to

summary judgment as to Mr. Zou’s retaliation claim. Mr. Zou’s motion for

summary judgment is denied.

IV.

The Court concludes that there are no disputed questions with respect

to the facts relevant to resolve Mr. Zou’s claims. Accordingly, Linde is enti-

tled to judgment in its favor. Mr. Zou’s motion for summary judgment [Dkt.

231] is denied and Linde’s motion for summary judgment [Dkt. 232] is

granted. The Court will enter judgment accordingly.

DATED this 21st day of January 2025.

JOHN D. RUSSELL

United States District Judge