Petition for Writ of Certiorari — Jagdish C. Laul, Petitioner v. Los Alamos National Laboratories

Supreme Court briefAug 5, 2019

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APPENDIX TABLE OF CONTENTS

Order and Judgment of the Tenth Circuit

(May 6, 2019) ...................................................... 1a

Memorandum Opinion and Order of the District

Court of New Mexico (May 8, 2018)................. 13a

Complaint for Employment Discrimination and

Retaliation (September 12, 2016) .................... 61a

App.1a

ORDER AND JUDGMENT

OF THE TENTH CIRCUIT

(MAY 6, 2019)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________________

JAGDISH C. LAUL,

Plaintiff-Appellant,

LOS ALAMOS NATIONAL LABORATORIES,

Defendant-Appellee.

________________________

No. 18-2084

(D.C. No. 1:16-CV-01017-JAP-KBM) (D. N.M.)

Before: HARTZ, MATHESON, and

CARSON, Circuit Judges.

Jagdish C. Laul appeals from the district court’s

grant of summary judgment in favor of Los Alamos

 After examining the briefs and appellate record, this panel has

determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f);

10th Cir. R. 34.1(G). The case is therefore submitted without

oral argument. This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

App.2a

National Laboratories (“LANL”)1 on his claims alleging

discriminatory failure to rehire him based on his age

and/or national origin, and retaliatory failure to rehire

him based on his previous complaints of discrimination. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

I. Background

Mr. Laul is a naturalized U.S. citizen from India.

In 1999, when Mr. Laul was 60 years old, LANL hired

him as a Safety Basis Analyst. Initially, Mr. Laul’s

job performance was satisfactory and he was even promoted. Beginning in 2007, however, his performance

steadily declined. In October 2013, his supervisor

recommended to James Tingey, a Safety Basis Division

Leader, to terminate Mr. Laul’s employment. Mr.

Tingey accepted the recommendation and issued a

notice of intent to terminate. Following an unsuccessful

internal LANL appeal, Mr. Laul’s employment was

terminated, effective December 6, 2013. See Laul v.

Los Alamos Nat’l Labs., 714 F. App’x 832, 834-35 (10th

Cir. 2017) (detailing Mr. Laul’s internal appeal and

job performance problems, including his unprofessional,

disrespectful, and disruptive workplace behavior),

cert. denied, 138 S. Ct. 2602 (2018).

In early January 2014, Richard Marquez, the

Executive Director of LANL, told Mr. Laul he could

apply for jobs despite having been discharged. Sometime

later, Mr. Laul went to LANL’s Occupational Medical

building and asked to speak with Janet McMillan, a

nurse and the wife of LANL’s Director, Charles Mc1 LANL’s name has been changed to Los Alamos National Security,

LLC.

App.3a

Millan. Mr. Laul showed Ms. McMillan a picture of

himself and the McMillans at a recent holiday event

and then asked to speak with her privately. Mr. Laul

followed Ms. McMillan into her office and shut the

door behind him. He then tried to hand Ms. McMillan

an envelope containing documents related to his

termination that he wanted delivered to her husband.

When Ms. McMillan refused the envelope, Mr. Laul

became increasingly angry. Ms. McMillan later reported

the incident to her supervisor.

On September 11, 2014, Mr. Laul filed a charge

of discrimination related to his termination with the

New Mexico Department of Labor, Human Rights

Division. He filed an amended charge on October 30.

Between October 20, 2014, and May 4, 2015, Mr.

Laul applied for 30 jobs at LANL. Eleven of the job

postings were cancelled and are not at issue. As to

the remaining 19 jobs, Mr. Laul was not hired for

any of them. All of the people hired were younger

than Mr. Laul, who was then in his mid-70s, and none

were of East Indian origin.

For two job openings as a Safety Basis Analyst,

Mr. Tingey, the manager who approved Mr. Laul’s

termination in October 2013, was the hiring manager.

He determined that Mr. Laul did not meet the minimum job requirements for a Safety Basis Analyst

because he had recently failed at the same job.

Barbara Pacheco, a Human Resources employee,

reviewed and screened the applications for an Operations Manager job. She was aware of Mr. Laul’s previous performance issues and his discrimination complaints. Ms. Pacheco said that she did not select Mr.

App.4a

Laul for an interview because he did not have the

necessary management experience.

Both Mr. Tingey and Ms. Pacheco said they did

not consider Mr. Laul’s age, race, national origin, or

previous complaint of discrimination in making their

decisions.

The hiring managers for the remaining 16 jobs

did not know that Mr. Laul had been terminated or

that he had filed discrimination charges against LANL.

Nor did they consider Mr. Laul’s age, race, or national

origin in making their decisions. Instead, they decided

not to interview Mr. Laul because he either lacked

the minimum qualifications or was not the best

qualified applicant.

In June 2015, Mr. Laul returned to the Occupational Medical building and again asked to see Ms.

McMillan. This time, Ms. McMillan met with Mr.

Laul in the lobby. Mr. Laul again tried to give her

the documents for delivery to her husband. When Ms.

McMillan refused, Mr. Laul became so aggressive that

he drew the attention of a physician assistant, who

told him to leave. Ms. McMillan reported the incident

to Mr. Marquez, who in turn informed Michael Lansing,

the Acting Associate Director for Operations and

Business. On July 1, Mr. Lansing and LANL Personnel

Security issued a “Be On The Lookout” (“BOLO”) for

Mr. Laul. LANL uses a BOLO to alert personnel that

the BOLO subject is not permitted on the property

and should be reported to security if he attempts to

enter or is seen on the premises.

In August 2015, Mr. Laul filed his first suit against

LANL for discriminatory discharge, failure to hire,

and retaliation. In September 2016, while LANL’s

App.5a

motion for summary judgment was pending in the

first suit,2 Mr. Laul filed a second suit in which he

asserted that LANL failed to rehire him based on his

age and national origin in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623

(a)(1), (“ADEA”); Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1); and the New Mexico

Human Right Act (“NMHRA”), N.M. Stat. Ann. § 281-7. He also claimed that LANL failed to rehire him

in retaliation for his previous charge of discrimination in violation of Title VII and the NMHRA. The

district court granted summary judgment in favor of

LANL, and this appeal followed.

II. Standard of Review

“We review summary judgment determinations de

novo, applying the same standard as the district court.

At this stage of the litigation, we view facts in the

light most favorable to the non-moving party and draw

all reasonable inferences in [his] favor.” DeWitt v.

Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017)

(citations, ellipses, brackets and internal quotation

marks omitted). “Even so, the non-movant . . . must

marshall sufficient evidence requiring submission to

the jury to avoid summary judgment.” Id. (brackets

and internal quotation marks omitted).

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact

2 The district court granted summary judgment in favor of LANL,

and this court affirmed on appeal. See Laul, 714 F. App’x at 834,

841.

App.6a

is material if, under the governing law, it could have

an effect on the outcome of the lawsuit. A dispute

over a material fact is genuine if a rational jury could

find in favor of the nonmoving party on the evidence

presented.” DeWitt, 845 F.3d at 1306. (internal quotation marks omitted).

III. Analysis

Age and National Origin Discrimination

The district court addressed Mr. Laul’s claims

for age and national origin discrimination together

because he used the same evidence to support both

claims. We do the same.

1. Legal Background

“Where, as here, an employee’s [Title VII] or

[ADEA] claim relies exclusively on circumstantial,

rather than direct, evidence, we apply the burden shifting scheme of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973).” Timmerman v. U.S. Bank,

N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). The

McDonnell-Douglas burden-shifting analysis also

applies to claims under the NMHRA. See Juneau v.

Intel Corp., 127 P.3d 548, 551 (N.M. 2005) (“When

considering a violation of the NMHRA,” the New Mexico

Supreme Court “has used the [McDonnell Douglas]

methodology”).3

3 For the first time on appeal, Mr. Laul argues that the district

court “erred in applying federal standards to [his] claims under

the [NMHRA].” Aplt. Opening Br. at 46. Setting aside the fact

that we generally do not consider arguments raised for the first

time on appeal, Mr. Laul does not say what standard the dis-

App.7a

Under McDonnell Douglas, Mr. Laul has the

burden to establish a prima facie case of failure to

hire based on his age and/or national origin. He “must

show that (1) he applied for an available position; (2)

he was qualified for the position; and (3) he was rejected

under circumstances which give rise to an inference

of unlawful discrimination.” Anaeme v. Diagnostek,

Inc., 164 F.3d 1275, 1278 (10th Cir. 1999) (internal quotation marks omitted). If Mr. Laul carries his burden,

LANL must then come forward with a legitimate,

non-discriminatory reason for its failure to hire him.

If LANL makes this showing, the burden shifts back

to Mr. Laul to show that LANL’s proffered justification is pretextual. See Timmerman, 483 F.3d at 1113.

“Under our precedents, a plaintiff can establish

pretext by showing 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.”

Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir.

2010) (brackets and internal quotation marks omitted).

“[O]ur role isn’t to ask whether the employer’s decision

was wise, fair or correct, but whether it honestly

believed the legitimate, nondiscriminatory reasons it

gave for its conduct and acted in good faith on those

beliefs.” Id. (brackets and internal quotation marks

omitted).

2. Analysis

For purposes of this appeal, we assume that Mr.

Laul could establish a prima facie case of discriminatrict court should have applied to these claims. In any event,

the court applied the correct standard.

App.8a

tion. The parties do not dispute that LANL articulated

a legitimate, nondiscriminatory reason for its decisions

not to rehire Mr. Laul. Thus, the issue is whether

Mr. Laul established pretext. We agree with the district court that he failed to do so.

Mr. Laul argues that LANL’s hiring managers

did not honestly believe his qualifications were lacking

or believe there were better qualified candidates. He

contends the managers manufactured these reasons and

argues his age and/or national origin was the real

reason he was not rehired. But it is not enough for Mr.

Laul to assert his belief that he was better qualified

than the other applicants. “[T]o suggest that an

employer’s claim that it hired someone else because

of superior qualifications is pretext for discrimination

rather than an honestly (even if mistakenly) held

belief, a plaintiff must come forward with an overwhelming disparity in qualifications.” Id. (internal

quotation marks omitted). See also Jaramillo v. Colo.

Judicial Dep’t, 427 F.3d 1303, 1309 (10th Cir. 2005)

(per curiam); Bullington v. United Air Lines, Inc., 186

F.3d 1301, 1319 (10th Cir. 1999), overruled on other

grounds, Nat’l R.R. Passenger Corp. v Morgan, 536 U.S.

101 (2002).

Mr. Laul presents a few examples to allege that

a hiring manager improperly considered his resume,

education, or experience. But “[t]o support an inference

of pretext, to suggest that something more nefarious

might be at play, a plaintiff must produce evidence

that the employer did more than get it wrong.” Id.

(emphasis added). “He . . . must come forward with

evidence that the employer didn’t really believe its

proffered reasons for action and thus may have been

pursuing a hidden discriminatory agenda.” Id.

App.9a

We also reject Mr. Laul’s attempt to prove pretext

by the sheer number of jobs he applied for but failed

to get an interview. To prove pretext on the theory he

was better qualified than the other candidates, Mr.

Laul must proffer evidence of an “overwhelming disparity” between his qualifications and those of the

successful candidate, which necessarily involves an

individualized consideration of the particular candidates

for a particular job. He has failed to do so.

Retaliation

1. Legal Background

A claim of Title VII retaliation can be proven

with direct evidence or by reliance on the McDonnell

Douglas framework. See Khalik v. United Air Lines,

671 F.3d 1188, 1192 (10th Cir. 2012). Under the latter,

a plaintiff must first “raise a genuine issue of material

fact on each element of the prima facie case.” Morgan

v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)

(citation omitted). The burden then “shifts to the

employer to offer a legitimate nondiscriminatory reason

for its employment decision.” Id. If the employer meets

its burden, “the burden then reverts to the plaintiff

to show that there is a genuine dispute of material

fact as to whether the employer’s proffered reason for

the challenged action is pretextual—i.e., unworthy of

belief.” Id. (internal quotation marks omitted).

To establish a prima facie case of Title VII retaliation, Mr. Laul “must show (1) that [he] engaged in

protected opposition to discrimination, (2) that a reasonable employee would have found the challenged

action materially adverse, and (3) that a causal connection existed between the protected activity and

App.10a

the materially adverse action.” Khalik, 671 F.3d at

1193 (internal quotation marks omitted). To establish

a causal connection, a plaintiff “must present evidence

of circumstances that justify an inference of retaliatory

motive.” Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir.

2014) (internal quotation marks omitted).

2. Analysis

The district court found that Mr. Laul established

the first two elements of a prima facie case but failed

to establish the third element—a causal connection

between his last protected activity and the decision

not to rehire him. We agree.

The hiring managers for 16 of the 19 jobs had no

knowledge that Mr. Laul had filed charges of discrimination against LANL. As such, there is no evidence of

any circumstances that would justify an inference of

a retaliatory motive. See Kendrick v. Penske Transp.

Servs., Inc., 220 F.3d 1220, 1234-35 (10th Cir. 2000)

(affirming dismissal of retaliation claim on summary

judgment where plaintiff presented no evidence that

decisionmaker knew of plaintiff’s protected activity

at time decision was made).

Mr. Laul argues that the district court made an

improper credibility determination on summary judgment because it “believed [LANL’s] evidence that the

hiring managers other than Mr. Tingey and Ms.

Pacheco did not have knowledge of [his] complaints

of discrimination.” Aplt. Opening Br. at 55. The court,

however, did not make a credibility determination. It

determined that Mr. Laul failed to present evidence

sufficient to create a genuine issue of material fact as

to whether his protected activity caused the hiring

decisions. Mr. Laul merely speculated that the hiring

App.11a

managers reviewed his personnel file, which contained

information about his discrimination charges. But to

“defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere

speculation, conjecture, or surmise.” Bones v. Honeywell

Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

Mr. Tingey and Ms. Pacheco knew about Mr. Laul’s

charges of discrimination but decided not to hire him.

But this occurred in April 2015, nearly six months

after his last protected activity in October 2014,

when he filed the amended charges with the state

agency. This gap between the protected activity and

the adverse action was too long to support an inference

of causation. “[W]here a gap of three months or longer

has occurred, a plaintiff must present other evidence—

more than mere speculation, conjecture, or surmise—

to establish that [his] protected activity was a but-for

cause of the adverse employment action. Bekkem v.

Wilkie, 915 F.3d 1258, 1271 (10th Cir. 2019) (internal

quotation marks omitted).

Finally, in opposing summary judgment, Mr. Laul

argued that LANL “further retaliated against [him]

to ensure that he cannot secure a position at LANL

by issuing a BOLO against [him].” Aplt. App., Vol. 3

at 742. Even if we assume Mr. Laul was engaged in

protected activity when he confronted Ms. McMillan,

we agree with the district court that “the evidence

clearly shows that the BOLO was issued because of

the inappropriate and threatening nature of Plaintiff’s

conduct in his encounters with Ms. McMillan”—not

because of a discriminatory or retaliatory motive. Id.,

Vol. 6 at 870. Mr. Laul failed to present any “evidence

that members of the security department, who issued

the BOLO, knew about Plaintiff’s prior complaints of

App.12a

discrimination.” Id. As such, he could not show that

protected activity caused issuance of the BOLO.

IV. Conclusion

We affirm the judgment of the district court.

Entered for the Court

Scott M. Matheson, Jr.

Circuit Judge

App.13a

MEMORANDUM OPINION AND ORDER OF THE

DISTRICT COURT OF NEW MEXICO

(MAY 8, 2018)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

________________________

JAGDISH C. LAUL,

Plaintiff,

LOS ALAMOS NATIONAL LABORATORIES,

Defendant.

________________________

No. 16 CV 1017 JAP/KBM

Before: James A. PARKER,

Senior United States District Judge.

In DEFENDANT LOS ALAMOS NATIONAL

SECURITY, LLC’S MOTION AND MEMORANDUM

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Doc. No. 58) (Motion), Los Alamos National

Security (LANS)1 asks the Court to dismiss all of

Plaintiff’s claims for alleged violations of the New

Mexico Human Rights Act (NMSA 1978 § 28-1-1 et seq.)

1 Although originally named Los Alamos National Laboratories,

the Defendant’s name has been changed to Los Alamos National

Security, LLC and the Court will refer to Defendant by that

name or as LANS.

App.14a

(NMHRA), the Age Discrimination in Employment Act

(29 U.S.C. § 621 et seq.) (ADEA), and Title VII of the

Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1) (Title

VII). See COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND RETALIATION (Doc. No. 1)

(Complaint). The Motion is fully briefed.2 In the Complaint, Plaintiff, who was discharged from employment

at LANS in December 2013, alleges that LANS

discriminated against and retaliated against him in

refusing to rehire him for other positions at LANS.

(Compl. ¶ 15.) Because Plaintiff failed to present

evidence that LANS discriminated against or retaliated

against him, the Court will grant the Motion.

Standard of Review

Summary judgment may be granted 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). When applying

this standard, the Court examines the factual record

and reasonable inferences therefrom in the light most

favorable to the party opposing summary judgment.

Applied Genetics Intl, Inc. v. First Affiliated Sec.,

Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The party

seeking summary judgment bears the initial burden

of “show[ing] that there is an absence of evidence to

support the nonmoving party’s case.” Bacchus Indus.,

Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.

1991) (internal quotation marks omitted). Once the

2 See PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. No. 64)

(Response); and DEFENDANT LOS ALAMOS NATIONAL

SECURITY LLC’S REPLY BRIEF IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT (Doc. No. 69) (Reply).

App.15a

movant meets this burden, the non-moving party

must designate specific facts showing that there is a

genuine issue for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986). In considering a motion

for summary judgment, the Court’s role is simply to

determine whether the evidence proffered by plaintiff

would be sufficient, if believed by the ultimate

factfinder, to sustain the claim. Foster v. Alliedsignal,

Inc., 293 F.3d 1187, 1195 (10th Cir. 2002).

At the summary judgment stage and at trial,

federal courts follow the McDonnell Douglas Corp. v.

Green,3 burden-shifting approach in assessing discrimination and retaliation claims under the ADEA,

the NMHRA, and Title VII.

II.

Background

Plaintiff is a 78 year old naturalized United

States citizen of East Indian birth. (Compl. ¶ 6.) In

1999, when Plaintiff was 60 years old, LANS hired

him as a Safety Basis Analyst (SBA-3).4 (Id. ¶ 5.) At

first, Plaintiff received awards, honors, and “kudos”

for his work; however, LANS terminated Plaintiff’s

employment on December 6, 2013 after Plaintiff

received several negative evaluations and after Plaintiff

unsuccessfully participated in a year-long Performance

Improvement Plan (PIP).5 The negative evaluations

3 411 U.S. 792, 802-803 (1973).

4 LANS had four Safety Basis Analyst levels. Safety Basis

Analyst (SBA) 1 was the lowest and SBA 4 was the highest level.

5 The facts related to the pre-termination events are set forth in

the MEMORANDUM OPINION AND ORDER (Doc. No. 83)

granting LANS’ motion for summary judgment in Laul I. In

that case, Plaintiff brought claims that he was discharged based

App.16a

and disciplinary actions focused on Plaintiff’s unprofessional, disrespectful, and disruptive behavior and

his inability to perform assigned tasks. Laul v. Los

Alamos Nat’l Laboratories, 15 CV 749 JAP/KBM,

2016 WL 9777256, at *5 (D.N.M. Sept. 27, 2016), aff’d,

714 F. App’x 832, 2017 WL 4772415 (10th Cir. Oct.

23, 2017) pet. for cert. filed (Laul I). The PIP focused

on “significant deficiencies in [Plaintiff’s] work performance[,]” including Plaintiff’s “tendency to rely on

others too much to help him complete his work[,]”

and Plaintiff’s failure to exhibit “the amount of

understanding of safety basis issues[.]”Id. at *6-*7

(quoting 2012 performance evaluation). LANS keeps

employment termination letters in an employee’s file

indefinitely.6

on his age, national origin, and in retaliation for complaining

about discrimination. 2016 WL 9777256, at *16.

6 Plaintiff testified in his affidavit that letters of termination were

kept in an employee’s file for one year (Laul Aff. ¶ 17); however,

Ms. Barbara Pacheco, the Human Resources Generalist for the

Associate Directorate for Nuclear and High Hazard Operations

testified:

And if an employee like Dr. Laul has been terminated for performance issues, how long does that

stay in his file, as far as the record of the

termination?

The termination folder stays whole forever.

And can hiring managers, can they look at those

folders and find out if an employee’s been

terminated?

They can.

(Resp. Ex. D, Pacheco Dep. 42:21-43:5.) Without evidentiary support, Plaintiff alleges that LANS intentionally failed to remove

Plaintiff’s December 6, 2013 termination letter from his personnel

App.17a

On January 2, 2014, Richard Marquez, LANS’

Executive Director, informed Plaintiff in an email

that despite having been discharged, he could apply

for external positions at LANS for which he was

qualified.7 (Id. ¶ 10.) From October 20, 2014 to May

4, 2015, Plaintiff applied for 19 positions8 at LANS

but was not interviewed for any of the positions. (Id.

¶¶ 13-14.) Plaintiff alleges that he was “well-qualified”

for all of the positions due to his “strong educational

background, excellent credentials, relevant professional

certifications, and approximately 38 years of experience

in various scientific disciplines.” (Id. ¶ 15.)

A. LANS issues a “Be on the Lookout” (BOLO)

In early 2014, Plaintiff went to LANS’ Occupational

Medicine (Occ. Med.) building and asked to speak to

Janet McMillan, a Certified Occupational Health Nurse

at LANS and the wife of LANS’ Director, Charles McMillan. (Mot. Ex. 16, J. McMillan Dep. 4:5-5:20; 9:1410:17; Mot. Ex. 17, J. McMillan Decl. ¶¶ 2, 4.) Plaintiff

found Ms. McMillan in a small triage office near the

file after the one-year period in order to prevent Plaintiff from

being rehired. (Laul Aff. ¶ 18.) The Court will disregard this

evidence as not based on personal knowledge. Fed. R. Civ. P. 56

(c)(4).

7 Plaintiff alleges that LANS intentionally refused to place the

January 2, 2014 email into Plaintiff’s personnel file, which prevented him from being rehired. (Id.) Since no other evidence

supports this assertion, the Court will not consider it. Moreover,

the email merely stated the obvious, that Plaintiff could apply

for external positions as a former employee.

8 Plaintiff applied for 30 positions; however, LANS cancelled 11

of them. Thus, only 19 positions are at issue in this lawsuit.

(Mot. at 4, UMF 2, Ex. 2 Laul Dep. 402:3-17.)

App.18a

main lobby and handed her a picture of himself, Ms.

McMillan and Mr. McMillan that was taken at a

holiday event one year earlier. (J. McMillan Decl.

¶ 4, J. McMillan Dep. 9:20-10:4.) Plaintiff asked to

speak with Ms. McMillan and closed the office door. (J.

McMillan Dep. 10:5-8.) Plaintiff told Ms. McMillan

that he had been unfairly discharged, and Plaintiff

asked Ms. McMillan to take some documents to Mr.

McMillan and to tell her husband to reinstate his

employment. (Id. 10:13-17.) Ms. McMillan refused to

take the documents and told Plaintiff to talk to the

appropriate people at LANS. Plaintiff continued to

urge Ms. McMillan to take the documents to her

husband. (Id.) After Ms. McMillan’s refusals, Plaintiff raised his voice and physically approached Ms.

McMillan in her “personal space.” (Id. 11:10-19.) Ms.

McMillan testified that Plaintiff told her that if she

did not take the documents, he would contact the

press, and he would “make things very ugly for me,

my husband, and the laboratory [LANS].” (Id. 11:2023.) Ms. McMillan felt threatened by Plaintiff’s words

and actions, maneuvered toward the closed door, and

opened the door while saying “I have clients coming

and I need to go now.” (Id. 12:1-8.) Plaintiff followed

Ms. McMillan out to the front desk while repeating

the statement that he would contact the press and

make things ugly for the McMillans and LANS. (Id.

12:15-15.) Plaintiff then left the building. (Id. 12:17-20.)

Ms. McMillan reported this incident to her supervisor,

Laura Kosky, but told Ms. Kosky not to file an official

report because Ms. McMillan thought she had given

information to Plaintiff that would help him. (Id.

12:21-25; J. McMillan Decl. ¶ 10.)

App.19a

On June 30, 2015, Plaintiff again visited the Occ.

Med. building. (Id. ¶ 11.) Ms. McMillan was working in

her private office, and Plaintiff asked the front desk

receptionist to page her. (J. McMillan Dep. 14:10-16.)

Ms. McMillan testified she responded to the page, but

“ . . . when I came around the corner and I saw him, I

instantly recognized him[.]” (Id. 14:19.) Plaintiff asked

Ms. McMillan if they could go to a “private place to talk,

like my office.” (Id. 15:1-5.) Ms. McMillan responded

No, I don’t think anything that we would be

talking about would be a problem. Sit right

down here. . . . He resumed his same presentation as before. 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. . . . And

then he had an envelope, which he said

were papers I need to present to my husband

to help him get his job back.

(Id. 15:6-16:4.) Ms. McMillan again refused to take

the documents, and Plaintiff threatened to “make it

very ugly for you.” (Id. 16:8-9.) Ms. Losky walked into

the lobby, and Ms. McMillan called her over. (Id. 16:16.)

One of the health care providers, Wally Collings also

entered the lobby. Mr. Collins testified that Plaintiff

continued to urge Ms. McMillan to take the paperwork to her husband or Plaintiff would “go to the

press.” (Mot. Ex. 18, Collins Decl. ¶ 4.) Mr. Collins

intervened, asked Ms. McMillan to go to her office,

and escorted Plaintiff out of the building. (Mot. Ex.

18, Collins Decl. ¶ 6.) Ms. McMillan sent an email

describing this second incident to Richard Marquez,

App.20a

Executive Director of LANS, and sent a copy of the

email to her husband. (Mot. Ex. 16, J. McMillan Decl.

¶ 16; J. McMillan 25:25-26:6.)

After receiving the email, Mr. Marquez informed

Michael Lansing, Acting Principal Associate Director

for Operations and Business, about the incident. (Mot.

Ex. 19, Marquez Dep. 22:20-23:8.) On July 1, 2015,

Mr. Lansing and the LANS Personnel Security office

issued a “Be on the Lookout” or BOLO for Plaintiff.

(Id. 23:11-16.) LANS’ security personnel use a BOLO

to alert officials at LANS’ gates that an individual is

not permitted to enter LANS’ property, and if the

person is seen on the property, a report should be

made to LANS’ security office. (Id. 23:20-25.)

B. Plaintiff’s job applications and LANS’ responses

1. Environmental Positions

a. Environmental Professional 3 position

(IRC 35849)

On October 8, 2014, LANS posted this position, and

Plaintiff submitted an application for the position on

October 20, 2014. (Mot. Ex. 4, Payne Decl. ¶ 3(a).)

Patricia Gallagher, now deceased, was the Environmental Stewardship Group Leader and the hiring

manager for the position. (Id. ¶ 3.) Ms. Jennifer Payne,

the current Environmental Stewardship Group Leader,

was a member of Ms. Gallagher’s hiring team. (Id.

¶¶ 2, 3(b).) Ms. Payne testified that, based on her

personal knowledge as a member of the hiring team

and based on a review of the relevant documents, she

determined that Ms. Gallagher elected not to interview Plaintiff because Plaintiff did not meet the min-

App.21a

imum qualifications for the position. (Id. ¶ 3(c).) Ms.

Payne testified that Plaintiff lacked experience in

maintaining compliance with the National Environmental Policy Act (NEPA), which was required for

the position. (Id. ¶¶ 3(c), (d), (k).) The successful

candidate, Elizabeth English, a 55 year old Caucasian,

had extensive experience developing and preparing

NEPA compliance documents for the Chemistry and

Metallurgy Replacement Project at LANS. (Id. ¶ 3(e).)

Ms. Payne testified that there is no indication in

Ms. Gallagher’s records that Ms. Gallagher was aware

of Plaintiff’s discharge from LANS or that Ms. Gallagher was aware of Plaintiff’s complaints against LANS

for discrimination. (Id. ¶¶ 3(g), (h).) Ms. Payne testified that there is no indication that Ms. Gallagher

considered Plaintiff’s age, race, or national origin in

making her decision. (Id. 3(i).) Nor was there any

indication that Ms. Gallagher was told not to interview

or hire Plaintiff. (Id. ¶ 3(f).)

b. Environmental Professional 3 position

(IRC 35763)

On October 9, 2014, LANS posted this position, and

Plaintiff submitted an application for the position on

October 21, 2014. (Mot. Ex. 4, Payne Decl. ¶ 3(l).) Again,

the hiring manager was Ms. Gallagher, and Ms.

Payne assisted her and reviewed the documents related

to Ms. Gallagher’s decision. (Id. ¶¶ 2, 3.) Ms. Payne

testified that Ms. Gallagher elected not to interview

Plaintiff because she determined that Plaintiff was

not qualified for the position. (Id. ¶ 3(m).) Ms. Gallagher

noted Plaintiff’s lack of experience with broad environmental regulatory compliance oversight particularly under the Resource Conservation and Recovery

App.22a

Act (RCRA), a specific requirement for the position.

(Id. 3(n), (t).)

The successful candidates—James Stanton, Pattie

Baucom, and Victoria Baca—had between 10 and 25

years of experience with environmental regulatory

compliance and RCRA. (Id. 3(o).) Mr. Stanton, Ms.

Baucom, and Ms. Baca are younger than Plaintiff and

are not East Indian. (Resp. Ex. A, Laul Aff. ¶ 7.)

Ms. Payne testified that there was no indication

that in making this decision, Ms. Gallagher was aware

of Plaintiff’s previous performance issues at LANS,

his discharge, or his discrimination claims against

LANS. (Mot. Ex. 4, Payne Decl. ¶¶ 3(q), (r).)

c. Environmental Professional 3 position

(IRC 37521)

On February 3, 2015, LANS posted this position,

and Plaintiff submitted an application on February

12, 2015. (Mot. Ex. 4, Payne Decl. ¶ 3(u).) Patricia

Gallagher was the hiring manager for the position.

(Id. ¶ 3.) Forty-three people applied for the position.

(Id. ¶ 3(u).) Ms. Payne, a member of the hiring team,

testified that Plaintiff was not interviewed for this

position because without NEPA experience, Plaintiff

was not the best qualified applicant for the position.

(Id. ¶ 3(w).) Randall Reddick was hired for this position

because he had more than 20 years of experience in

NEPA compliance. (Id. ¶ 3(x).) Mr. Reddick is younger

than Plaintiff and is not East Indian. (Resp. Ex. A, Laul

Aff. ¶ 19.)

Ms. Payne testified that there was no indication

that Ms. Gallagher was aware of Plaintiff’s previous

performance issues at LANS, Plaintiff’s discharge, or

App.23a

Plaintiff’s discrimination claims against LANS. (Mot.

Ex. 4, Payne Decl. ¶¶ 3(y), (z).) There was no indication

that Ms. Gallagher considered Plaintiff’s age, race, or

national origin in her decision not to interview Plaintiff

for this position. (Id. ¶ 3(bb).) Nor was Ms. Gallagher

advised by James Tingey or any other LANS employee

not to interview or hire Plaintiff. (Id. ¶ 3(y).)

d. Environmental Manager 3 position

(IRC 37809)

On March 3, 2015, LANS posted this position, and

Plaintiff submitted an application on March 5, 2015.

(Mot. Ex. 11, Grieggs Decl. ¶ 3.) Anthony Grieggs, Environmental Manager 4 (Group Leader) in the Environmental Protection & Compliance Division, was the

hiring manager for this position. (Id. ¶ 2.) Mr. Grieggs

received 31 applications for this position. (Id. ¶ 3.)

Plaintiff, along with several of the other applicants,

was not considered for the position because he “did

not have the experience in environmental management

and compliance that was required for the job posting.”

(Id. ¶ 5.) Michael Saladen and Mark Haagenstad were

hired based on their “extensive requisite experience

in environmental management and compliance.” (Id.

¶ 6.) At the time of the hiring decision, Mr. Grieggs

did not know about Plaintiff’s previous performance

issues, discharge, or discrimination complaints against

LANS. (Id. ¶¶ 8, 9).) Mr. Grieggs did not consider

Plaintiff’s age, race, or national origin when making

the decision. (Id. ¶ 10.) Nor was he advised by James

Tingey or any other LANS employee not to interview

or hire Plaintiff due to his prior performance issues.

(Id. ¶ 7.)

App.24a

Ms. Saladen and Mr. Haagenstad are both substantially younger than Plaintiff and are not East

Indian. (Resp. Ex. A, Laul Aff. ¶ 35.)

e. Plaintiff’s Response

Plaintiff argues that Ms. Payne’s affidavit should

be disregarded because she has no personal knowledge

of Ms. Gallagher’s reasons for rejecting Plaintiff.

(Resp. at 1-2.) The Court finds that Ms. Payne’s affidavit

is based on personal knowledge because she was a

member of the hiring team for each of the positions.

In his deposition, however, Plaintiff testified he

did not know whether Ms. Gallagher discriminated

against him:

Now tell me, do you believe that . . . you didn’t

get the job because Ms. Gallagher was considering your age or your race or your national

origin?

I can’t read her mind, but she knows who I

am.

You called who?

Gallagher knows who I am.

Yeah.

And I had reviewed their program, so they

know it. And whether she is thinking of ruling

me out on national origin, race, that is her

consideration. I have no way of knowing. I

can’t read her mind.

(Mot. Ex. 2, Laul Dep. 158:18-159:6.) Plaintiff asserts

that he not only met the minimum requirements for all

four of the Environmental positions, but was more

App.25a

qualified for the positions than the candidates who were

chosen. (Resp. Ex. A, Laul Aff. ¶¶ 3, 4, 6, 7, 18, 19, 33,

34.) Plaintiff maintains that he is “considered a Subject Matter Expert (SME) in Environmental Regulatory

Compliance Programs including NEPA.” (Id. ¶ 3.)

Plaintiff contends that his education and experience

is far superior to each of the candidates chosen for

these positions.9

2. Research and Development Manager 4

position (IRC 35837)

This position was located in the Actinide Analytical

Chemistry Group, and was posted on September 23,

2014. (Mot. Ex. 5, Stark Decl. ¶ 3.) Plaintiff submitted

an application for this position on October 29, 2014.

(Id.) David Morris, the hiring manager, assigned Peter

Stark, a Research and Development Manager 4 (Group

Leader) for the Chemistry Division’s Chemical Diagnostic and Engineering Group, to review and screen

9 Plaintiff testified that he has “M.S. degree in Chemistry and

Ph.D in Nuclear Chemistry from Purdue University, and also

M.S. in Environmental Science and Engineering from CSM, CO

[Colorado School of Mines]. I was involved in developing of Environmental Regulations courses of [sic] CAA (Clean Air Act),

CWA (Clean Water Act), RCRA (HW), and NEPA at Rocky Flatts

[sic]. I provided guidance to 10-15 workers and reviewed their

Environmental reports and gave feedback for improvement. I

audited LANL Environmental Regulatory Programs including

Mr. Saladen [sic] CWA program in 2014. . . . I have published

100 reports and papers alone and in collaboration with others in

various technical areas. I have received 20 Awards/Honors/Kudos

from various technical projects. I am also a member of ANS,

REM, CHMM, NFPA, EFCOG/SAWG under five Professional

Societies/National Committees and is [sic] a Subject Matter Expert

in Environmental Regulatory Compliance Programs.” (Resp. Ex.

A, Laul Aff. ¶ 34.)

App.26a

applications. (Id. ¶¶ 2-3.) Mr. Stark reviewed Plaintiff’s application and concluded that Plaintiff was not

the most qualified candidate for the position because

Plaintiff’s research skills in analytical and radiochemistry, an important job qualification, were inferior

to the skills of Anne Schake, the successful candidate.

(Id. ¶¶ 4-6.)

Mr. Stark testified that at the time he made the

hiring decision, he was not aware of Plaintiff’s discharge, performance issues, or discrimination claims

against LANS. (Id. ¶¶ 8-9.) Mr. Stark testified that

in making his decision he did not consider Plaintiff’s

age, race, or national origin. (Id. ¶ 10.) Nor was Mr.

Stark advised by James Tingey or any other LANS’

employees that he should not interview Plaintiff due

to his age, race, national origin, past performance

issues, or discharge. (Id. ¶ 7.)

Plaintiff has acknowledged that Ms. Schake was

“well qualified” for the position. (Mot. Ex. 2, Laul Dep.

194:5-11.) However, Plaintiff contends that he was

more qualified than Ms. Schake: “My cover letter and

resume illustrate my strong technical background

with 15 years of experience in developing various

radiochemical separations. I have written thirty papers

on radiochemistry methodologies that deal with instrumentations and radiochemical separations. I have

written two review articles involving NAA and radiochemical separations.” (Resp. Ex. A, Laul Aff. ¶ 8.)

Plaintiff continued: “Ms. Schake has a Ph.D in

Inorganic Chemistry and a BA in Chemistry, and 20

years of experience in a nuclear facility. She has listed

42 reports and publications alone and in collaboration. Ms. Schake has won six awards and honors. She

was a member of professional organizations and

App.27a

committees.” (Id. ¶ 9.) Nevertheless, Plaintiff maintains that his educational background is superior.

(Id.)

At his deposition Plaintiff testified:

She was chosen. That’s what it says. Justification for hire. “How is the selected candidate

the most qualified?” That’s what it says; right?

Let me read.

Well, I think she seems well qualified because

the way I see it, I think she is, but if you look

at my resume, my resume is also pretty good.

(Mot. Ex. 2, Laul Dep. 194:5-11.) Despite this testimony,

Plaintiff opines that he was not hired because he was

East Indian or because of his age.

3. Engineer 3/4 position (IRC 36084)

On October 17, 2014, LANS posted a notice for

three engineer positions, and Plaintiff submitted an

application on October 31, 2014. (Mot. Ex. 6, Burnett

Decl. ¶ 3.) Mel Burnett was the hiring manager and

reviewed Plaintiff’s application along with 10 other

applications. (Id. ¶¶ 3-5.) Mr. Burnett did not interview

Plaintiff because Plaintiff did not have a sufficient

level of experience specific to system engineering. (Id.

¶¶ 5, 11.) Jeffrey Freeburg, Randall Stringfield, and

Jason Apperson were hired for the positions based on

their extensive experience with system engineering.

(Id. ¶ 6.)

Mr. Burnett testified that he was not aware of

Plaintiff’s previous performance issues, discharge, or

discrimination claims against LANS. (Id. ¶¶ 8-9.) Mr.

Burnett testified that he did not consider Plaintiff’s

App.28a

age, race, or national origin when making the hiring

decision. (Id. ¶ 10.) Mr. Burnett testified he was never

advised by James Tingey or any other LANS employee not to interview Plaintiff for the position. (Id. ¶ 7.)

Plaintiff claims he was more qualified than those

who were hired. (Resp. Ex. A, Laul Aff. ¶¶ 11-12.)

However, Plaintiff admitted in his deposition that all

three of these candidates were qualified for the position.

(Mot. Ex. 2, Laul Dep. 211:1-212:17.) Plaintiff emphasizes that all three successful candidates were Caucasians and significantly younger than Plaintiff. (Resp.

Ex. A, Laul Aff. ¶¶ 11-12.)

4. Scientist 2/3 position (IRC 37277)

On January 15, 2015, LANS posted this position,

and Plaintiff submitted an application for the position

on January 23, 2015. (Mot. Ex. 7, Steiner Decl. ¶ 3.)

Robert Steiner, the Team Leader of the Radiochemistry

Group in the Chemistry Division of LANS, was the

hiring manager. (Id. ¶¶ 2-3.) Mr. Steiner reviewed

Plaintiff’s application materials and elected not to

interview Plaintiff because Plaintiff did not have the

requisite experience in secondary ion mass spectrometry

(SIMS). (Id. ¶¶ 4-5, 11.) Travis Tenner was hired for the

position because he had extensive experience in SIMS

and in using magnetic sector SIMS instruments. (Id.

¶ 6.)

Mr. Steiner testified that at the time of the

hiring decision, he did not know about Plaintiff’s previous performance issues, discharge, or discrimination claims against LANS. (Id. ¶¶ 8-9.) Mr. Steiner

testified he did not consider Plaintiff’s age, race, or

national origin when making the decision. (Id. ¶ 10.)

Nor was Mr. Steiner advised by James Tingey or any

App.29a

other LANS employee not to interview Plaintiff. (Id.

¶ 7.)

Plaintiff again argues that he was more qualified

than the successful candidate, a younger Caucasian.

(Resp. Ex. A, Laul Aff. ¶¶ 14-15.) However, in his deposition, Plaintiff testified:

Do you have any reason to believe that Mr.

Steiner was motivated not to interview or

hire you by your age, race, age or your

national origin?

He has that information. Whether he was

motivated or not, that is his conscience. He

never called me, said JC, I am not interviewing you because blah, blah, blah. All I’m

saying is he has that information through my

personnel file. This is common sense.

(Mot. Ex. 2, Laul Dep. 429:25-430:8.)

5. Quality Assurance Positions

a. Quality Assurance Engineer 4 position

(IRC 37014)

On December 15, 2014, LANS posted this position,

and Plaintiff submitted an application on February

12, 2015. (Mot. Ex. 8, Sivils Decl. ¶ 3(a).) Dale Sivils,

Director for the Manufacturing Quality Division of

the Plutonium Science and Manufacturing Directorate,

was the hiring manager. (Id.) Mr. Sivils reviewed

Plaintiff’s application materials and elected not to

interview Plaintiff. According to Mr. Sivils, Plaintiff

lacked the requisite experience in weapons quality

work, which is very different from the safety basis

work that Plaintiff had previously performed at LANS.

App.30a

(Id. ¶ 3(c).) Linda Cassidy and Joseph Pestovich were

hired for this job posting based on their relevant

experience. (Id. ¶ 3(d).)

Mr. Sivils testified that at the time of the hiring

decision, he did not know about Plaintiff’s previous

performance issues, discharge, or discrimination claims

against LANS. (Id. ¶¶ 3(e), (f).) Mr. Sivils testified he

did not consider Plaintiff’s age, race, or national origin

when making the decision. (Id. ¶ 3(g).) Nor was Mr.

Sivils advised by James Tingey or any other LANS

employee not to interview or hire Plaintiff. (Id. ¶ 3(e).)

Plaintiff maintains that he was more qualified

than Ms. Cassidy and Mr. Pestovich who are younger

Caucasians:

Do you have any reason to believe that

Mr. [Sivils] hiring manager for 37014 was

motivated by your race, your age, or your

national origin?

[...]

It’s possible. Many people see he is brown,

he is black, he is Indian. Intrinsic bias comes

in.

(Mot. Ex. 2, Laul Dep. 457:15-458:8.)

b. Quality Assurance Engineer 3/4 position

(IRC 38532)

On April 16, 2015, LANS posted this position,

and Plaintiff submitted an application on April 28,

2015. (Mot. Ex. 8, Sivils Decl. ¶ 3(j).) Mr. Sivils was

also the hiring manager for this position. (Id.) Mr.

Sivils reviewed Plaintiff’s application materials and

elected not to interview Plaintiff because he did not

App.31a

have the requisite experience in a manufacturing

quality environment. (Id. ¶ 3(l).) Marvin Montoya,

Samuel Adams, Eric Keim, David Bell, Ronald Salazar,

Victoria Teel, Georgia Chavez, Daniel Stewart, and

Mark Haines were hired for job posting IRC 38532

based on their extensive experience in manufacturing

quality.” (Id. ¶ 3(m).)

Mr. Sivils testified that at the time of the hiring

decision, he did not know about Plaintiff’s previous

performance issues, discharge, or discrimination claims

against LANS. (Id. ¶¶ 3(o), (p).) Mr. Sivils testified

he did not consider Plaintiff’s age, race, or national

origin when making the decision. (Id. ¶ 3(q).) Nor

was Mr. Sivils advised by James Tingey or any other

LANS employee not to interview or hire Plaintiff. (Id.

¶ 3(n).)

c. Quality Assurance Engineer 4 position

(IRC 37672)

On February 13, 2015, LANS posted this position,

and Plaintiff submitted an application on February

16, 2015. (Mot. Ex. 9, Tepley Decl. ¶ 3(a). Daniel Tepley,

the Group Leader for the Quality and Performance

Assurance Institutional Quality Group in the Quality

and Performance Assurance Division, was the hiring

manager. (Id. ¶ 3(a).) Plaintiff was not interviewed for

this position because Plaintiff did not demonstrate

the requisite experience in construction quality assurance. (Id. ¶ 3(c).) Robert Swatek was hired based on his

30 years of experience in construction quality assurance. (Id. ¶ 3(d).)

At the time of the hiring decision, Mr. Tepley did

not know about Plaintiff’s previous performance issues,

discharge, or discrimination claims against LANS.

App.32a

(Id. ¶¶ 3 (f), (g).) Mr. Tepley did not consider Plaintiff’s

age, race, or national origin when making the decision.

(Id. ¶ 3(h).) Nor was Mr. Tepley advised by James

Tingey or any other LANS employee not to interview

or hire Plaintiff. (Id. ¶ 3(e).)

Plaintiff argues he is better qualified than Mr.

Swatek, a 60-year-old Caucasian male. (Resp. Ex. A,

Laul Aff. ¶¶ 20-22.) Plaintiff testified that Mr. Swatek “has some understanding of nuclear construction

codes, standards, principles, and processes associated

with NQA-1 program LANL SD330, and product

quality. Mr. Swatek does not list any publications

. . . and no mention of Awards/Honors/Kudos in his

job service. . . . [nor] any memberships with Professional Societies/National Committees.” (Id. ¶ 21.)

d. Quality Assurance Engineer 4 position

(IRC 37732)

On February 13, 2015, LANS posted this position,

and Plaintiff submitted an application on February

16, 2015. (Mot. Ex. 9, Tepley Decl. ¶ 3(j).) Mr. Tepley,

the hiring manager, testified that Plaintiff was not

interviewed for this position because he did not

demonstrate any specific experience in construction

quality assurance. (Id. ¶ 3(l).) Richard Love was hired

based on his history of “building teams, delivering technical training, setting goals, and developing individual employees in a construction quality assurance

setting. He also had superior technical understanding of LANS’ nuclear construction codes, standards,

principles and processes associated with the Nuclear

Quality Assurance-1 program and product quality.”

(Id. ¶ 3(m).)

App.33a

Mr. Tepley testified that at the time of the hiring

decision, he did not know about Plaintiff’s previous

performance issues, discharge, or discrimination claims

against LANS. (Id. ¶¶ 3 (o), (p).) Mr. Tepley testified

he did not consider Plaintiff’s age, race, or national

origin when making the decision. (Id. ¶ 3(q).) Nor

was Mr. Tepley advised by James Tingey or any other

LANS employee not to interview or hire Plaintiff. (Id.

¶ 3(n).)

Plaintiff asserts he is more qualified than the

successful candidate Mr. Love, who is a 71 year old

Caucasian male. (Resp. Ex. A, Laul Aff. ¶¶ 23-25.)

Plaintiff maintains that although Mr. Love “does have

some experience in management and leadership experience, technical training delivery, goal setting,

and individual employee development[,] . . . Mr. Love’s

resume does not clearly show his educational history

or list any publications or reports and papers. Mr.

Love does not have any Awards/Honors/Kudos in his

job service, or any memberships with Professional

Societies/National Committees.” (Id. ¶ 24.)

e. Quality Assurance Engineer 3/4 position

(IRC 37952)

On February 27, 2015, LANS posted this position,

and Plaintiff submitted an application on February

28, 2015. (Mot. Ex. 9, Tepley Decl. ¶ 3(cc).) Mr.

Tepley, the hiring manager, received 17 applications.

(Id.) Plaintiff, along with several of the other applicants,

was not considered for this position because he “did

not demonstrate in his application any specific experience in construction quality assurance[.]” (Id. ¶ 3(ee).)

Roger Crawford was hired based on his “demonstrated

. . . ability to successfully ensure quality assurance

App.34a

requirements were met during the design, bid, build,

and start-up of various types of facilities, all of which

were specifically listed in the job position as minimum requirements or desired skills.” (Id. ¶ 3(ff).)

Mr. Tepley testified that at the time of the hiring

decision, he did not know about Plaintiff’s previous

performance issues, discharge, or discrimination claims

against LANS. (Id. ¶¶ 3 (hh), (ii).) Mr. Tepley testified

he did not consider Plaintiff’s age, race, or national

origin when making the decision. (Id. ¶ 3(jj).) Nor

was Mr. Tepley advised by James Tingey or any other

LANS employee not to interview or hire Plaintiff due

to his prior performance issues. (Id. ¶ 3(gg).)

Plaintiff again stacks his qualifications higher

than Mr. Crawford’s, who is a Caucasian male and who

“does not have experience in quality assurance requirements (QAR).” (Resp. Ex. A, Laul Aff. ¶ 31.)

f. Quality Assurance Specialist 2 position

(IRC 37678)

On February 27, 2015, LANS posted this position,

and Plaintiff submitted an application on February

28, 2015. (Mot. Ex. 9, Tepley Decl. ¶ 3(t).) Mr. Tepley,

the hiring manager, received 29 applications for the

position. (Id.) Mr. Tepley testified that Plaintiff,

along with several of the applicants, was not considered

for this position because Plaintiff “did not demonstrate

any specific experience in inspections and quality

assurance—one of the minimum requirements for the

position.”10 (Id. ¶ 3(v).) Laura Solano was hired based

10 In the Response, Plaintiff argues that the Court can imply

pretext because the cover letter and resume that is attached to

Mr. Tepley’s affidavit are not the cover letter and resume that

App.35a

on her “demonstrated experience in inspections and

quality assurance.” (Id. ¶ 3(w).)

Mr. Tepley testified that at the time of the hiring

decision, he did not know about Plaintiff’s previous

performance issues, discharge, or discrimination claims

against LANS. (Id. ¶¶ 3 (y), (z).) Mr. Tepley testified

he did not consider Plaintiff’s age, race, or national

origin when making the decision. (Id. ¶ 3(aa).) Nor

was Mr. Tepley advised by James Tingey or any other

LANS employee not to interview or hire Plaintiff due

to his prior performance issues. (Id. ¶ 3(x).)

Plaintiff argues that his qualifications are better

than Ms. Solano’s who has only 10 years’ experience

in Quality Assurance compared with Plaintiff’s 30

years. (Resp. Ex. A, Laul Aff. ¶ 29.) Plaintiff notes that

Ms. Solano is a “younger non-Indian.” (Id.)

Plaintiff submitted to LANS. (Resp. at 38.) Plaintiff attaches

the “correct” cover letter and resume to his Response, which he

claims illustrate his quality assurance experience. (Resp. Ex. E.)

However, even if Plaintiff’s correct documents reflected quality

assurance experience, the evidence does not establish a fact

issue that he was refused an interview because of his age or

national origin or because of his prior complaints of discrimination. There is no evidence that Mr. Tepley’s preference for Ms.

Solano was a pretext for discrimination. Plaintiff also speculates in

his argument that the document mistake is evidence of a business “cover-up.” Webb v. Level 3 Communications, LLC, 667 F.

App’x 725, 733 (10th Cir. 2006) (unpublished) (stating that the

plaintiff had presented no evidence of a conspiracy outside of

pure speculation).

App.36a

6. Safety Analyst Positions

a. Critical Safety Analyst 1/2 position

(IRC 37674)

On February 19, 2015, LANS posted this position,

and Plaintiff submitted an application on February

28, 2015. (Mot. Ex. 10, Wysong Decl. ¶ 3.) Dr. Andrew

Wysong, the Nuclear Criticality Safety Division Leader

in Nuclear and High Hazard Operations, was the hiring

manager. (Id.) Dr. Wysong testified that Plaintiff was

not interviewed because “he did ‘not have hands on

experience in running codes’” (Id. ¶ 5) (quoting Plaintiff’s application). Michael MacQuigg, Trevor Stewart,

and Alan Yamanaka were hired “based on either their

past experience in criticality safety or their demonstrated ability to run safety analysis tools[.]” (Id.

¶ 6.)).) Dr. Wysong testified that at the time of the

hiring decision, he did not know about Plaintiff’s previous performance issues, discharge, or discrimination claims against LANS. (Id. ¶¶ 8, 9.) Dr. Wysong

testified he did not consider Plaintiff’s age, race, or

national origin when making the decision. (Id. ¶ 10.)

Nor was Dr. Wysong advised by James Tingey or any

other LANS employee not to interview or hire Plaintiff. (Id. ¶ 7.)

b. Safety Basis Analyst 1/2 position (IRC

38516)

On April 22, 2015, LANS posted this position, and

Plaintiff submitted an application on April 27, 2015.

(Mot. Ex. 13, James Tingey Decl. ¶ 3(a).) James Tingey,

then the Deputy Division Leader for the Safety Basis

Division in Nuclear and High Hazard Operations, was

App.37a

the hiring manager.11 (Id. ¶ 3(a).) Mr. Tingey testified

that after a review of the 45 applications for the position, he determined that Plaintiff did not meet the

minimum requirements based on “his past job performance at [LANS], in which he failed to demonstrate an

ability to successfully perform at the level of a Safety

Basis Analyst 1/2.” (Id. ¶ 3(c).) Francisco Enrique

Koerdell-Sanchez, Andrew Montoya, Dr. Alexander Laptev, and Samir El-Darazi were hired for the job posting

“based on their demonstrated ability to successfully

perform at the level of a Safety Basis Analyst 1/2 or

at the same level in a position similar to safety basis

analysis.” (Id. ¶ 3(d).)12

11 In October 2013, two months before Plaintiff’s discharge, Mr.

Tingey, the Safety Basis Deputy Division Leader, reviewed and

approved Mr. Selvage’s recommendation that LANS terminate

Plaintiff’s employment. Laul, 2016 WL 9777256, at *11.

12 Mr. Tingey testified regarding the two positions for which he

was the hiring manager:

After Dr. Laul was terminated, were you ever

contacted by any hiring managers at LANL about

Dr. Laul?

No.

Were you aware Dr. Laul was still applying for

other positions at LANL after he was terminated?

Yes.

How did you know that?

Because those applications came to me for

assessment.

And what did you do when the applications

came to you?

I had my chief of staff prepare a binder that

contained all the resumes for that particular

App.38a

Because Mr. Tingey approved the termination of

Plaintiff’s employment in December 2013, Mr. Tingey

was well aware of Plaintiff’s past performance issues

and Plaintiff’s discrimination claims. Mr. Tingey testified he did not consider Plaintiff’s discrimination

claims, age, race, or national origin in his decision

not to interview Plaintiff. (Id. ¶ 3(e), (f).)

job opening. Then assembled a team and go

through the resumes to determine which candidates should be interviewed and—to go further

in the process.

Did you make any recommendations with regard

to Dr. Laul’s applications whether or not he

would be interviewed?

Yes.

What was your recommendation?

My recommendation was that he would not be

interviewed based on the fact that he was

terminated because his performance in the

safety basis area was not satisfactory.

So would it be fair to say that based on your recommendation that he not be interviewed, he

was not given any interviews?

[...]

It was the recommendation of the hiring team

that we put together.

[...]

Okay. And Mr. Tingey, was it your recommendation in every application you reviewed that Dr.

Laul put in that he not be interviewed?

Yes.

(Resp. Ex. B, Tingey Dep. 51:20-53:17.)

App.39a

c. Safety Basis Analyst 3/4 position (IRC

38573)

On April 25, 2015, LANS posted this position, and

Plaintiff submitted an application on April 27, 2015.

(Id. ¶ 3(h).) Mr. Tingey, the hiring manager, testified

that he did not interview Plaintiff because “while

employed at LANS, [Plaintiff] . . . demonstrated an inability to successfully perform at the level of a Safety

Basis Analyst 3/4.” (Id. (i), (j).) Thus, Mr. Tingey

determined that Plaintiff did not meet the minimum

qualifications for the position. (Id.) Sharon Walker

was hired for the position “based on her thirty (30)

years of successful work in safety basis.” (Id. ¶ 3(k).)

As mentioned, Mr. Tingey was aware of Plaintiff’s

discrimination claims, but he testified that “this did

not affect his consideration of [Plaintiff’s] application.” (Id. ¶ 3(l).) Mr. Tingey also testified that he did

not consider Plaintiff’s age, race, or national origin.

(Id. ¶ 3(m).)

Ronald Selvage was the manager of the Safety

Basis-Technical Services Group to the Environmental

and Waste Management Group at the time Plaintiff was

discharged. Laul, 2016 WL 9777256, at *5. Mr. Selvage

testified about the decisions not to interview Plaintiff

for positions in the Safety Basis Group:

Do you know if Dr. Laul, did he ever apply

for any job vacancies in your group?

Yes.

Did you ever interview him?

No.

Did you ever consider him for any vacancies

that he applied for in your group? A. . . . as I

App.40a

looked through and look at candidates, I did

see Dr. Laul’s name on there, and I did not

recommend him. I did not look at him for

hiring, even though I didn’t hire anybody.

And I did not recommend him for any positions because he had just been terminated. I

didn’t stop anybody from—if they had wanted

to look or interview, I certainly didn’t stop

anyone from doing that.

(Resp. Ex. F, Selvage Dep. 72:12-19.)

7. Operations Positions

a. Operations Manager 6 position (IRC

38253)

On March 18, 2015, LANS posted this position,

and Plaintiff submitted an application on April 9,

2015. (Mot. Ex. 12, Pacheco Decl. ¶ 3.) The hiring

manager, Cheryl Cabbil, assigned Barbara Pacheco to

review and screen the applications. (Id. ¶¶ 2-3.) Ms.

Pacheco determined that Plaintiff “did not demonstrate

in his application a sufficient level of management

experience in the operation of large nuclear and nonnuclear facilities,” and elected not to refer Plaintiff

for an interview. (Id. ¶ 5.) Brian Watkins, Leslie

Sonneberg, and Stuart McKernan were hired for the

position “based on their extensive and recent experience

in operation of large nuclear and non-nuclear facilities.”

(Id. ¶ 6.)

As a member of the HR department, Ms. Pacheco

was aware of Plaintiff’s previous performance issues

at LANS and Plaintiff’s discrimination complaints

against LANS. (Id. ¶ 8.) In fact, Ms. Pacheco participated in evaluating Plaintiff’s performance under the

App.41a

PIP. Laul, 2016 WL 9777256, at *8. However, Ms. Pacheco testified that this knowledge did not affect her determination that Plaintiff did not meet the minimum

qualifications for this management position. (Id.) Ms.

Pacheco testified she did not consider Plaintiff’s age,

race, or national origin when making her decision. (Id.

¶ 9.) Ms. Pacheco testified that she was not advised

by James Tingey or any other LANS personnel not to

interview Plaintiff. (Id. ¶ 7.)

Plaintiff maintains that he was more qualified

than the successful candidates due to his “10 years of

management and 15 years of project management at

PNNL, Rocky Flats, and LANL.” (Resp. Ex. A, Laul Aff.

¶ 36.) Plaintiff states he was the only East Indian

candidate and the persons selected were younger nonIndians. (Id.)

b. Operations Support Specialist 4 position

(IRC 38692)

On April 24, 2015, LANS posted this position,

and Plaintiff submitted an application on April 29,

2015. (Mot. Ex. 14, Orr Decl. ¶ 3.) Timothy Orr, then

the Safety Basis Manager 6 (Division Leader), was

the hiring manager and led the hiring committee. (Id.

¶ 2.) Mr. Orr testified that Plaintiff, along with many

of the other applicants, was not interviewed because

he did not meet the minimum qualifications for the

position. (Id. ¶ 5.) In addition, the hiring committee

determined that Plaintiff “did not have the right

skillset for this position because he did not demonstrate

the appropriate level of writing skills and his application package did not provide sufficient specific

experience to demonstrate he possessed the required

combination of technical and administrative skills

App.42a

necessary for this position.” (Id. ¶ 5.) Deborah Gonzales

and Linda Vosburgh were selected for the position

based on their “demonstrated combination of technical,

procedure writing, and administrative skills and

experience relevant to the requirements of the position.”

(Id. ¶ 6.) Ms. Gonzales had 28 years of experience at

LANS, at Rocky Flats Environmental Technology Site,

and at Rockwell International; and she exhibited

extensive knowledge of Department of Energy orders

and had experience writing and editing Technical Safety

Requirements (TSR) and Documented Safety Analyses

(DSA), all of which were listed as necessary or desired

skills in the posting. (Id.) Mr. Orr testified that in

making the decision, he did not consider Plaintiff’s

age, race, or national origin and only considered Plaintiff’s lack of qualifications for the position. (Id. ¶ 9.)

Plaintiff testified:

—what did the hiring officer—was Mr.

Orr—what did he do with that information

[age, race and ethnicity]? How did he use it?

Well, the fact is he didn’t give me a job

interview. That means he ruled me out. And

now he says that . . .

He ruled you out.

He ruled me out.

Who else did he rule out—

Well, he—

—based on age or ethnicity?

Other peoples, too, but they don’t—all of

them don’t have Ph.Ds.

Okay. (Simultaneous discussion.)

App.43a

So you think he—he—he basically said,

“Okay, I don’t want the East Indians.”

That may be his thinking, but he’s not telling me.

You don’t know right?

Yeah. I don’t know, but this is my belief.

(Mot. Ex. 2, Laul Dep. 700:15-701:10.) Plaintiff testified in minute detail explaining why his qualifications and experience were superior to the successful

candidates’ qualifications and experience. (Resp. Ex.

A, Laul Aff. ¶¶ 44-46.) For example, Plaintiff testified

that he had “experience in various areas such as writing

and/or reviewing DSAs, BIOs, AB or SB, USQDs, SSCs

and TSRs for nuclear facilities; and HC, FSA, FSP

for non-nuclear facilities[,]” and Plaintiff cited his “10

years of management and 15 years of project management experience.” (Id. ¶ 44.) Plaintiff testified that

he was discriminated against in this decision because

he was the only East Indian applicant and he is substantially older than the successful candidates. (Id.

¶ 46.)

8. Radiation Protection Manager 4 position

(IRC 38434)

On April 6, 2015, LANS posted this position, and

Plaintiff submitted an application on May 4, 2015.

(Mot. Ex. 15, Jones Decl. ¶ 3.) Scotty Jones, Radiation

Protection Division Leader in the LANS Environment,

Safety and Health Directorate, was the hiring manager

and the leader of the hiring committee. (Id. ¶¶ 2-3.)

Mr. Jones testified that he did not interview Plaintiff

due to Plaintiff’s “lack of sufficient management experience in radiation protection or any other related field.”

App.44a

(Id. ¶ 5.) Stephen Costigan, a 54-year-old Caucasian,

was hired, “based on his demonstrated management

experience in radiation protection, his demonstrated

problem-solving abilities, and his relevant experience

as a Group Leader and acting Division Leader in the

Radiation Protection Division.” (Id. ¶ 6.)

Mr. Jones testified that when he made the hiring

decision, he was not aware of Plaintiff’s previous performance issues, the termination of his employment for

poor performance, or Plaintiff’s previous discrimination claims against LANS. (Id. ¶ 8.) In making his

decision, Mr. Jones did not consider Plaintiff’s age,

race, or national origin. (Id. ¶ 10.) During the process of

reviewing Plaintiff’s application neither James Tingey

nor any other LANS employee advised Mr. Jones not

to interview or hire Plaintiff due to his performance

issues. (Id. ¶ 7.)

Plaintiff testified that he is more qualified than

Mr. Costigan whose application “lacks information in

relation to his knowledge in 10 CFR 835; ‘Occupational

Radiation Protection Program’ and its applications;

ESH&Q, DOE O 435.1 ‘Radioactive Waste Management’, and 10 CFR 851 ‘Worker Safety and Health

Program’.” (Resp. Ex. A, Laul Aff. ¶ 48.) Mr. Costigan

is a younger Caucasian. (Id. ¶ 49.)

C. Plaintiff’s Charge and Complaint

On July 22, 2015, Plaintiff filed charges of discrimination and retaliation with the New Mexico

Department of Labor, Human Rights Division. (Id. ¶ 9.)

On September 12, 2016, Plaintiff filed this Complaint.

In Count I, Plaintiff alleges that LANS failed to rehire

him because of his age in violation of the ADEA and

the NMHRA. (Compl. ¶¶ 24-26.) In Count II, Plaintiff

App.45a

asserts a claim that LANS refused to rehire him based

on his national origin in violation of the NMHRA and

Title VII. (Id. ¶¶ 27-29.) In Count III, Plaintiff contends

that LANS declined to rehire him in retaliation for

his previous complaints about unlawful discrimination. (Id. ¶¶ 30-33.)

III. Discussion

A. Collateral Estoppel

In its Motion, LANS argues that under the doctrine

of collateral estoppel, any issues that were decided

in the prior action, Laul I, cannot be relitigated in

this action. Augustine v. Adams, 88 F. Supp. 2d 1166,

1177 (D. Kan. 2000) (summary judgement is a final

judgment on the merits for purposes of collateral estoppel). “[C]ollateral estoppel . . . prevents a party from

relitigating ‘ultimate facts or issues actually and

necessarily decided in a prior suit.’” Cordova v. New

Mexico Taxation & Revenue Dep’t, CIV 08-0681 JB/

ACT, 2011 WL 7164459, at *27 (D.N.M. Dec. 28, 2011)

(unpublished) (quoting Ullrich v. Blanchard, 2007NMCA-145, ¶ 19, 171 P.3d 774,142 N.M. 835 (citations

omitted)). For collateral estoppel to apply, four elements

must be met: “(1) the parties in the current action

were the same or in privity with the parties in the

prior action, (2) the subject matter of the two actions

is different, (3) the ultimate fact or issue was actually litigated, and (4) the issue was necessarily determined.” Cordova, 2011 WL 7164459, at * 11 (quoting

Ullrich supra). See also Howard v. Las Animas

County Sheriff’s Office, 09-CV-00640-PAB-KLM, 2010

WL 1235668, at *6 (D. Colo. Feb. 23, 2010), report and

recommendation adopted, 09-CV-00640-PAB-KLM,

2010 WL 1235673 (D. Colo. Mar. 22, 2010) (unpub-

App.46a

lished) (holding that plaintiff’s was precluded from

relitigating the termination of his employment “by

collateral estoppel because his discrimination and

retaliation claims have already been decided adversely

to him on the merits in this Court.”).

In Laul I, Plaintiff asserted that LANS rejected

several different job applications other than those at

issue here because of discrimination or in retaliation

for Plaintiff’s complaints of discrimination in late

2013. On the claim that Plaintiff was not hired due

to his age, national origin or race, the Court found

that Plaintiff failed to rebut LANS’ evidence that

Plaintiff was not as qualified as the successful applicants. 2016 WL 9777256, at * 25. The Court further

found that Plaintiff failed to establish that the proffered

reason for his rejection was a pretext for unlawful

discrimination. Id. at * 26.

On Plaintiff’s retaliatory failure to hire claim,

this Court found that Plaintiff had established a

prima facie case of retaliation because his complaints

of discrimination were very close in time to the dates

he submitted his applications for positions at LANS.

Id. at * 27. However, the Court determined that Plaintiff failed to establish that the reason he was not

hired, lack of qualifications and experience, was a pretext for retaliation. “Plaintiff presented no rebuttal to

the testimony of each hiring manager that Plaintiff

did not meet the minimum qualifications for a position

or that Plaintiff was not the best qualified for a position.” Id. This Court also rejected Plaintiff’s argument

that Mr. Tingey’s and Mr. Selvage’s asserted reason

for not recommending Plaintiff, the recent discharge

for poor performance, was a pretext for retaliation.

Id. On appeal the Tenth Circuit upheld this Court’s

App.47a

finding: “[B]oth Selvage and Tingey testified that

their decisions were based solely on Laul’s termination for poor performance. Laul identifies no evidence

that Selvage and Tingey did not honestly believe the

legitimate nondiscriminatory reason they gave for

their decisions or that they did not act in good faith

on their beliefs.” 714 F. App’x at 840.

In its Motion, LANS argues that this Court’s

and the Tenth Circuit’s holdings on that issue should

foreclose Plaintiff from arguing “that Mr. Tingey or

any other hiring manager’s determination not to

interview or hire Dr. Laul based on prior poor performance is not a legitimate, non-discriminatory and

non-retaliatory reason for such action.” (Mot. at 27.)

In response, Plaintiff argues he should be allowed to

argue that the hiring managers who refused to hire

him did not honestly believe in their proffered reasons

or did not act in good faith. In short, Plaintiff wants

to argue that if a hiring manager proffered Plaintiff’s

discharge as a reason for his rejection, Plaintiff should

be allowed to attack it as a pretext for discrimination

or retaliation. Plaintiff reasons that collateral estoppel

should not bar him from this argument because the

positions at issue in this case are different from the

positions for which he applied in Laul I.

In Laul I the Court decided that Messrs. Selvage

and Tingey had a legitimate, nondiscriminatory, nonretaliatory reason for not recommending that Plaintiff

be hired. The Court also decided that Plaintiff presented

no evidence that Messrs. Selvage and Tingey did not

act honestly or in good faith. The evidence in this

case shows that the only positions that Mr. Tingey

and Mr. Selvage were involved in were the two Safety

Basis Analyst positions (IRC 38516 and IRC 38573)

App.48a

submitted in April 2015. Because the issue is identical

and the parties are the same, the Court will preclude

Plaintiff from arguing that Messrs. Tingey and Selvage

were not acting honestly or in good faith in proffering

this legitimate reason for rejecting Plaintiff. However,

there is no evidence that the other hiring managers,

except Ms. Pacheco, were aware of Plaintiff’s discharge.

And those hiring managers and Ms. Pacheco have not

proffered the discharge as the reason Plaintiff was

not hired. Hence, the Court will only bar Plaintiff

from arguing that Messrs. Selvage and Tingey were

not honest or were not acting in good faith in proffering

Plaintiff’s discharge as their reason for not hiring

Plaintiff for the two Safety Basis postings. To show

pretext as to those positions, Plaintiff must present

additional evidence.

B. Counts I and II: Discriminatory Failure to

Hire13

Plaintiff has not come forward with any direct

evidence of LANS’ discriminatory intent; therefore,

the Court will analyze Plaintiff’s discriminatory failure

to hire claims using the McDonnell Douglas burdenshifting analysis. McDonnell Douglas Corp., 411 U.S.

13 Because Plaintiff uses the same evidence to support both age

and national origin discrimination, the Court will address the

failure to hire claims in Counts I and II together. Also, since

claims under the NMHRA are analyzed similarly to their federal counterparts, the Court will address Counts I and II under

the federal standards. Clayton v. Vanguard Car Rental U.S.A.,

Inc., 761 F. Supp. 2d 1210, 1249-50 (D.N.M. 2010) (noting that

the Supreme Court of New Mexico applies the framework established in McDonnell Douglas “[w]hen considering a violation of

the NMHRA.”) (quoting Juneau v. Intel Corp., 2006-NMSC-002,

¶ 9, 139 N.M. 12, 127 P.3d 548 (2005)).

App.49a

at 802-04. To establish a prima facie case of discriminatory failure to hire, “a plaintiff must show that

(1) he applied for an available position; (2) he was

qualified for the position; and (3) he was rejected

under circumstances which give rise to an inference

of unlawful discrimination.” Anaeme v. Diagnostek,

Inc., 164 F.3d 1275, 1278 (10th Cir. 1999). If Plaintiff

establishes a prima facie case, the burden shifts to

LANS to articulate some legitimate, nondiscriminatory reason for its action. McDonnell Douglas, 411

U.S. at 802. If LANS carries that burden, Plaintiff

can avoid summary judgment “by presenting evidence that the employer’s reason is pretextual, i.e.,

unworthy of belief or by otherwise introducing evidence of a discriminatory motive.” Danville v. Regional

Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002) (citation omitted).

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.” Morgan v. Hilti,

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

omitted). In deciding if a plaintiff has made a sufficient

showing of pretext, the court “must consider the evidence as a whole.” Danville, 292 F.3d at 1250. Mere

allegations are insufficient, Morgan, 108 F.3d at 1324,

and “mere conjecture that [the] employer’s explanation is a pretext for intentional discrimination is an

insufficient basis for denial of summary judgment,”

Branson v. Price River Coal Co., 853 F.2d 768, 772

(10th Cir. 1988).

App.50a

At the summary judgment stage, the plaintiff’s

own conclusory opinions about his qualifications and

about the employer’s motives do not give rise to a

material factual dispute. Bullington v. United Air

Lines, 186 F.3d 1301, 1318 (10th Cir. 1999). The pertinent inquiry at this stage does not focus on whether

the employer’s “proffered reasons were wise, fair or

correct,” but looks at whether the employer “honestly

believed those reasons and acted in good faith on that

belief.” Id. (citation omitted). Importantly, in deciding

pretext, the courts are not to act as “super-personnel

departments” that second-guess employers’ business

judgments. Tyler v. RE/MAX Mountain States, Inc., 232

F.3d 808, 813-14 (10th Cir. 2000). “However, ‘[e]vidence

indicating that an employer misjudged an employee’s

performance or qualifications is, of course, relevant

to the question whether its stated reason is a pretext

masking prohibited discrimination.’” Id. at 814 (quoting

Fischbach v. District of Columbia Dept. of Corrections,

86 F.3d 1180, 1183 (D.C. Cir. 1996)).

1. Plaintiff’s Prima Facie Case

The Court finds that Plaintiff has presented sufficient evidence to meet the first element of a prima

facie case of age and national origin discrimination.

Plaintiff applied for several positions at LANS.

As to the second element, LANS argues that it

presented the testimony of hiring managers showing

that Plaintiff did not meet the minimum qualifications

for several of the 19 positions at issue.14 Therefore,

14 The Motion contains a chart illustrating that for 12 of the 19

positions, Plaintiff was rejected by the hiring manager because

he did not have the minimum qualifications for the position.

Actually the chart contains 13 positions, but regarding the position

App.51a

as to those positions, LANS argues Plaintiff fails to

meet the second element of his prima facie burden.

The 12 positions are: (1) Environmental Professional 3

(IRC 35849); (2) Environmental Professional 3 (IRC

35763); (3) Scientist 2/3 (IRC 37277); (4) Quality Assurance Engineer 4 (IRC 37672); (5) Quality Assurance

Engineer 4 (IRC 37732); (6) Criticality Safety Analyst

1/2 (IRC 37674); (7) Quality Assurance Specialist 2

(IRC 37678); (8) Quality Assurance Engineer 3/4 (IRC

37952); (9) Environmental Manager 3 (IRC 37809); (10)

Operations Manager 6 (IRC 38252); (11) Safety Basis

Analyst 3/4 (IRC 38573); and (12) Operations Support Specialist 4 (IRC 38692).

Plaintiff counters that he presented evidence sufficient to create a fact issue that he was qualified for all

19 of the positions. That evidence consists of Plaintiff’s

self-serving affidavit testimony. Plaintiff’s subjective

belief that he possessed the qualifications for these

positions is insufficient to create a fact issue capable

of overcoming summary judgment. Toney v. Cuomo,

92 F.Supp.2d 1186, 1192 (D. Kan. 2000) (stating that

plaintiff’s own opinions that he was more qualified

than the applicant chosen for a promotion did not give

rise to a material factual dispute that the proffered

reasons for not choosing plaintiff were pretexts for

discrimination). Although the Court believes that Plaintiff has failed to meet the second element regarding

the 12 positions, the Court will assume that the element

has been met and move to the third element and discuss

Plaintiff’s evidence as it relates to all 19 positions.

of Environmental Professional 3 (IRC 37521), the hiring manager

determined that Plaintiff was not the best qualified candidate.

App.52a

Plaintiff has failed to meet the third element of

his prima facie case of age or national origin discrimination. Plaintiff has presented no evidence, other

than his subjective belief, from which the Court can

reasonably infer that Plaintiff was not interviewed or

hired because of his age or national origin. In addition, each hiring manager testified that age and

national origin did not enter into their decisions not

to interview Plaintiff for the positions. For a complete

analysis, however, the Court will discuss the evidence

of pretext.

2. LANS’ Legitimate Reasons for Not Hiring

Plaintiff

For all of the positions except the positions over

which Tingey was hiring manager, the decision not to

hire Plaintiff was because Plaintiff lacked the minimum

qualifications for the position or Plaintiff was not the

best qualified applicant. With regard to Mr. Tingey’s

evaluation of Plaintiff for two positions, Safety Basis

Analyst 1/2 (IRC 38516) and Safety Basis Analyst 3/4

(IRC 38573), Mr. Tingey determined that Plaintiff

was not qualified based on “his past job performance”

in which Plaintiff “failed to demonstrate an ability to

successfully perform at the level” of either Safety

Basis Analyst 1/2 or 3/4. As discussed above, Plaintiff’s

past discharge for poor performance is a legitimate

reason for not hiring him. Therefore, LANS has

established legitimate nondiscriminatory reasons for

not hiring Plaintiff for all 19 positions: (1) Plaintiff

was not minimally qualified for some positions; (2)

Plaintiff was not the best qualified candidate for some

positions; and (3) Plaintiff was not qualified based on

his past job performance for the positions handled by

Mr. Tingey.

App.53a

3. Pretext

Since LANS has proffered a valid reason for not

hiring Plaintiff, Plaintiff must “present evidence that

that proffered reason he was not hired was pretextual,

i.e. unworthy of belief.” Beaird v. Seagate Tech., Inc.,

145 F.3d 1159, 1165 (10th Cir. 1998) (quotation marks

omitted). It is not enough that Plaintiff testified that

he was more qualified than each successful candidate

and that the candidates were younger and non-Indian.

See Anaeme, 164 F.3d at 1284 (“The mere failure to

hire Plaintiff as compared to other qualified nonAfrican-American candidates may not be sufficient to

establish an inference of race discrimination.”); Angione

v. Sikorsky Aircraft Corp., 199 F.Supp.3d 628, 639

(D. Conn. 2016) (“Standing alone, the fact that [defendant] may have hired someone who was younger than

[plaintiff] does not raise an inference of discrimination.”). LANS is entitled to select candidates based on

its notion of the qualifications required for a job as

long as the qualifications are not discriminatory. And

a claimant who argues that he is more qualified than

the chosen candidate must show there was a great

disparity in qualifications in order to create a fact

issue that this reason is a pretext for discrimination.

See Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th

Cir. 2010) (“[T]o suggest that an employer’s claim

that it hired someone else because of superior qualifications is pretext for discrimination rather than an

honestly (even if mistakenly) held belief, a plaintiff

must come forward with facts showing an overwhelming

disparity in qualifications.”). Plaintiff’s own testimony

that he was not chosen because he is 77 years old or

East Indian, is insufficient for this Court to find that

LANS’ reasons for not hiring Plaintiff were unworthy

App.54a

of belief. (See Mot. Ex. 2, Laul Dep. 478:7-11; 510:416; 699:11-701:10.) And Plaintiff’s argument that he

was more qualified than the applicants who were

hired does not support pretext because Plaintiff has

not shown that there was a great discrepancy between

Plaintiff’s qualifications and the successful candidates’

qualifications.

Plaintiff argues that he presented evidence of

pretext through Ms. Pacheco’s testimony that he “was

never going to be hired” at LANS after he was discharged. However, this argument mischaracterizes Ms.

Pacheco’s testimony. Ms. Pacheco testified:

Have you ever been involved in rehiring an

employee who had been fired for performance

issues?

I’m going to say, yes. We had a reduction in

force. And several of those folks were on a—

based on performance. And that was in 1995.

And we did do some hiring of those employees—rehiring.

Associated with a RIF?

Yes.

And my understanding is people that were—

maybe the low performers are the ones that

usually were on the list to go first, is that

correct, on a RIF?

I’m not going to say which ones went where;

but, yeah, they were performance issues

usually.

App.55a

Okay. So you have had issues where—or situations where an employee who may be on

a RIF would be rehired later?

Correct.

Have you ever had an employee in a situation like Dr. Laul where they were fired for

performance issues, who were rehired at the

Lab, that you are aware of?

I have not, personally.

(Resp. Ex. D, Pacheco Dep. 44:19-45:18.) Instead of

saying that Plaintiff was never going to be rehired,

Ms. Pacheco simply testified that she personally had

never seen a person who was fired for poor performance

get rehired. Thus, Ms. Pacheco’s testimony cannot

support pretext.

As the Court found in Laul I, LANS’ decision to

discharge Plaintiff was not based on his age or national

origin; therefore, the fact that Plaintiff was discharged

for poor performance cannot be used as evidence of

pretext for rejecting Plaintiff in this case. Sengillo v.

Valeo Elec. Systems, Inc., 328 F. App’x 39, 41 (2d Cir.

2009) (unpublished) (finding that employer’s decision

not to rehire plaintiff who was terminated for poor

performance was a legitimate, non-discriminatory

reason for electing not to rehire the plaintiff); Mullen

v. Waterbury Board of Educ., No. 3:15-CV-00023

(VLB), 2017 WL 6060875, at *4 (D. Conn. Dec. 7, 2017)

(unpublished) (finding that poor performance at a

previous job was a legitimate, nondiscriminatory

reason for deciding not to hire an applicant); Wallace

v. Beech Aircraft Corp., 87 F. Supp. 2d 1138, 1149

(D. Kan. 2000) (finding that reasons for previous termination of employment, such as poor performance of

App.56a

job duties, were not pretext for discrimination in failure

to rehire plaintiff after plaintiff’s employment was

terminated). In sum, no rational factfinder could base

a finding of pretext on the evidence presented in this

summary judgment record. Wallace v. Beech Aircraft

Corp., 87 F. Supp. 2d at 1149.

The Court will grant summary judgment in favor

of LANS on Plaintiff’s Count I claim that he was

rejected for the 19 positions based on age discrimination

and on Plaintiff’s Count II claim that he was rejected

for the 19 positions based on national origin discrimination.

C. Count III: Retaliatory Failure to Hire

To establish a prima facie case of retaliation

under Title VII, a plaintiff must show that “(1) she

engaged in protected opposition to discrimination; (2)

she suffered an adverse action that a reasonable

employee would have found material; and (3) a causal

nexus exists between her opposition and the employer’s

adverse action.” Chung v. El Paso Cty./Colorado Springs

Sch. Dist. #11, 115 F. Supp. 3d 1242, 1260 (D. Colo.

2015), aff’d sub nom. Chung v. El Paso Sch. Dist. #11,

659 F. App’x 953 (10th Cir. 2016) (citations omitted).

Plaintiff has met the first two elements of his

prima facie case. As outlined in Laul I, Plaintiff

complained of discrimination through the grievances

in 2011 and 2012 and an email sent to Mr. Selvage

and Ms. Pacheco on November 13, 2013. See 2016 WL

9777256, at * 13-14. On January 5, 2014, Plaintiff sent

a letter to LANS’ Executive Director, Richard Marquez,

describing Mr. Selvage’s unwillingness to take certain

actions as “harassment and discriminatory practice.”

Plaintiff filed a charge of discrimination with the

App.57a

New Mexico Department of Labor, Human Rights Division on September 11, 2014 and he filed an amended

charge on October 30, 2014. All of these activities are

considered protected activities because Plaintiff opposed

unlawful discrimination. See Hinds v. Sprint/United

Mgmt. Co., 523 F.3d 1187, 1202-03 (10th Cir. 2008)

(finding certain emails did not constitute protected

activity because they were general complaints about

company management).

Plaintiff argues that his two encounters with

Ms. McMillan constitute protected activity because

he complained about his discriminatory discharge from

employment at LANS. However, Ms. McMillan testified

that Plaintiff merely complained that he had been

“unjustly terminated from his position.” (Mot. Ex. 17,

McMillan Decl. ¶ 6.) Plaintiff himself testified that he

only complained to Ms. McMillan about the process

related to his discharge. (Resp. Ex. I, Laul Dep. 120:

22-121:12.) Therefore, Plaintiff’s complaints to Ms.

McMillan are not protected activity. Hinds, 523 F.3d

at 1202-03.

To establish the third element Plaintiff must also

show that the persons responsible for hiring were

aware of his protected activities. However, most of

the hiring managers testified that they were unaware

of Plaintiff’s complaints of discrimination. Kendrick

v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1235

(10th Cir. 2000) (affirming dismissal of retaliation claim

on summary judgment where plaintiff presented no

evidence that decision maker knew of plaintiff’s protected activity at time decision was made). Plaintiff

counters that there is a dispute as to whether the

hiring managers had knowledge of his protected

activity because “Defendant’s HR, who was aware of

App.58a

Plaintiff’s reports of discrimination, was in charge of

organizing the files for the hiring managers when

asked.” (Resp. at 33.) Plaintiff is merely speculating

that all of the hiring managers, in contravention of their

sworn testimony, had knowledge of his complaints

because they could have asked for his personnel file.

Hence, the evidence shows that all of the hiring

managers except Ms. Pacheco and Mr. Tingey were

unaware of Plaintiff’s complaints of discrimination.

Ms. Pacheco and Mr. Tingey handled the hiring

for three of the 19 positions. They testified that they

rejected Plaintiff based on his lack of qualifications or

based on his previous discharge for poor performance

and not because he complained about discrimination.

(Mot. Ex. 12, Pacheco Decl. ¶ 8; Ex. 13, Tingey Decl.

¶ 3(l).) Plaintiff argues that he has shown causation

by noting the close temporal proximity between the

date of his last protected activity and the dates he was

rejected by Mr. Tingey and Ms. Pacheco. The decisions

to hire for the positions managed by Ms. Pacheco and

Mr. Tingey happened in April 2015, which is 5 to 6

months after Plaintiff’s last protected activity on October 30, 2014. Under Tenth Circuit case law, a five to

six month gap between a protected activity and an

adverse employment action is too long to constitute

“close temporal proximity” and thereby raise the

inference of retaliation. See, e.g., Proctor v. United

Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)

(“Four months is too large a time gap to establish a

causal connection.”); Haynes v. Level 3 Commc’ns,

LLC, 456 F.3d 1215 1228 (10th Cir. 2006) abrogated

on other grounds by Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006) (stating that seven

month period between protected activity and adverse

App.59a

employment action was not close enough in proximity

to establish causation element of prima facie retaliation claim); Anderson v. Coors Brewing Co., 181 F.3d

1171, 1179 (10th Cir. 1999) (“[A] three-month period,

standing alone, is insufficient to establish causation.”). Plaintiff further argues that the investigation

related to his October 30, 2014 amended charge

culminated several months later, narrowing the gap

in time. However, even if the Court takes that into

account and finds a prima facie case for the three

positions managed by Mr. Tingey and Ms. Pacheco,

Plaintiff has still failed to rebut the legitimate

reasons given for rejecting his applications.

Simply put, Plaintiff has not created a disputed

issue of material fact as to whether these proffered

reasons are “unworthy of belief.” Mr. Tingey testified

that he did not consider Plaintiff for the two Safety

Basis Analyst positions based on Plaintiff’s “past job

performance at LANL.” (Mot. Ex. 13, Tingey Decl.

¶ 3(c); (j).) Ms. Pacheco testified that Plaintiff lacked

sufficient management experience in the operation of

large nuclear and non-nuclear facilities. (Mot. Ex. 12,

Pacheco Decl. ¶ 5.) Plaintiff presents no evidence showing that these reasons are unworthy of credence. See

Sengillo, 328 F. App’x at 41 (unpublished) (upholding

dismissal of retaliatory failure to rehire claim based

on evidence that plaintiff was not rehired because he

was discharged from a position in another department for poor performance).

D. Retaliatory Issuance of the BOLO

Plaintiff also contends that his complaint to

Ms. McMillan about his unfair treatment at LANS

constituted protected activity. The Court has concluded

App.60a

that Plaintiff did not complain specifically about discrimination. However, even if Plaintiff did complain

about discrimination to Ms. McMillan, the evidence

clearly shows that the BOLO was issued because of

the inappropriate and threatening nature of Plaintiff’s

conduct in his encounters with Ms. McMillan. (Mot.

Ex. 19, Marquez Dep. 22:20-23:19.) And, there is no

evidence that members of the security department,

who issued the BOLO, knew about Plaintiff’s prior

complaints of discrimination. Therefore, Plaintiff has

failed to set forth evidence to support a finding that

the BOLO was issued in retaliation for his complaints

of discrimination.

IT IS ORDERED that DEFENDANT LOS

ALAMOS NATIONAL SECURITY, LLC’S MOTION

AND MEMORANDUM IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT (Doc. No. 58) is granted.

/s/ James A. Parker

Senior United States District Judge

App.61a

COMPLAINT FOR EMPLOYMENT

DISCRIMINATION AND RETALIATION

(SEPTEMBER 12, 2016)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

________________________

JAGDISH C. LAUL,

Plaintiff,

LOS ALAMOS NATIONAL LABORATORIES,

Defendant.

________________________

No. 1:16-CV-01017

Jury Demanded

Plaintiff, by and through his attorney, The Gilpin

Law Firm, LLC, (Donald G. Gilpin) alleges and states:

Jurisdiction and Venue

1. This action is brought by Plaintiff to remedy

discrimination and retaliation in violation of the New

Mexico Human Rights Act, the ADEA and Title VII.

2. Plaintiff is a resident of Santa Fe County,

New Mexico.

3. Defendant, Los Alamos National Laboratories

is a foreign corporation licensed to transact business

App.62a

in New Mexico. Defendant is an employers within the

meaning of the New Mexico Human Rights Act and

Title VII.

4. Venue is proper because all the unlawful

practices complained of herein occurred within the

District of New Mexico. Plaintiff timely filed and exhausted his administrative remedies and received his

Notice of Right to Sue.

Allegations

5. Plaintiff began working for Defendant in 1999

as a Senior Safety Engineer (SBA-3). Plaintiff’s last

position with Defendant was as a Principal Safety

Engineer (SBA-4).

6. Plaintiff was born in India and became a US

citizen in 1974. Plaintiff is 77 years old.

7. Plaintiff has received dozens of awards, honors

and “kudos” while working for Defendant. Including

one award that is considered the highest honor for an

employee to receive.

8. Plaintiff was terminated by Defendant on

December 6, 2014 for alleged unsatisfactory work performance.

9. Plaintiff filed charges of discrimination and

retaliation with the New Mexico HRB on July 22, 2015.

10. After Plaintiff was terminated, Plaintiff was

informed in writing on January 2, 2014, that he could

still apply for positions with Defendant.

11. Defendant’s Policies state that an employee

is eligible for rehire if they have been terminated for

poor work performance and not terminated for misconduct.

App.63a

12. Plaintiff was not terminated for misconduct.

13. Plaintiff applied for 30 positions with Defendant from October 2014 to May 2015.

14. Defendant has not interviewed Plaintiff for

any of the positions.

15. Plaintiff is well qualified for all 30 positions

in which Plaintiff applied. Plaintiff has a strong educational background, excellent credentials, relevant

professional certifications, and approximately 38 years

of experience in various scientific disciplines.

16. It is Plaintiff’s good faith belief that Defendant

intentionally placed Plaintiff’s termination letter in

his Personnel file to prevent Plaintiff from receiving

interviews and job offers.

17. Defendant’s policy states that a termination

letter is to be kept in a former employees personnel

file for one year.

18. However, Defendant has still failed to remove

the termination letter from Plaintiff’s personnel file.

Further, Defendant has failed to place the January 2,

2014, letter stating Plaintiff is eligible for rehire.

19. Plaintiff discovered that his former second-line

supervisor told the hiring management not to interview

or hire Plaintiff.

20. Additionally, Defendant placed restrictions

on Plaintiff that would not allow him to receive an

access badge and banned Plaintiff from Defendant’s

premises for discussing his case with Los Alamos

National Laboratory employees.

App.64a

21. As a result from this unjustifiable action,

Independent Contractors who work on Defendant’s

premises declined to hire him for this sole reason.

22. As a result of the retaliatory acts of Defendant, Plaintiff has suffered harm in the form of lost

wages and benefits.

23. As a result of the retaliatory acts of Defendant, Plaintiff has suffered harm in the form of emotional distress. Plaintiff has incurred Attorney’s fees

including costs.

Count I. Age Discrimination

24. Plaintiff repeats and realleges each and every

allegation contained in all other paragraphs of this complaint with the same force and effect as if set forth

herein.

25. Defendant has discriminated against Plaintiff in the terms and conditions of his employment on

the basis of his age in violation of the New Mexico

Human Rights Act and the ADEA, on the basis of the

facts alleged above.

26. Plaintiff is now suffering and will continue

to suffer irreparable injury and monetary damages

as a result of Defendant’s discriminatory practices

unless and until this Court grants relief.

Count II. National Origin Discrimination

27. Plaintiff repeats and realleges each and every

allegation contained in all other paragraphs of this

complaint with the same force and effect as if set

forth herein.

App.65a

28. Defendant has discriminated against Plaintiff in the terms and conditions of his employment on

the basis of his national origin in violation of the

New Mexico Human Rights Act and Title VII, on the

basis of the facts alleged above.

29. Plaintiff is now suffering and will continue

to suffer irreparable injury and monetary damages

as a result of Defendant’s discriminatory practices

unless and until this Court grants relief.

Count III. Retaliation

30. Plaintiff repeats and realleges each and

every allegation contained in all other paragraphs of

this complaint with the same force and effect as if set

forth herein.

31. As alleged above, Plaintiff complained of

discrimination in the workplace.

32. Defendant has retaliated against Plaintiff in

the terms and conditions of his employment in

violation of the New Mexico Human Rights Act and

Title VII because of Plaintiff’s complaints of discrimination in the workplace.

33. Plaintiff is now suffering and will continue

to suffer irreparable injury and monetary damages

as a result of Defendant’s unlawful retaliatory practices unless and until this Court grants relief.

Jury Demand

34. Plaintiff requests a trial by jury.

WHEREFORE, Plaintiff respectfully requests

that this Court enter a judgment:

App.66a

(A) Awarding Plaintiff compensatory damages

that would make him whole for all earnings

he would have received but for Defendant’s

retaliatory treatment, including, but not

limited to, wages, pension, and other benefits;

(B) Awarding Plaintiff the costs for this action

together with reasonable attorney’s fees as

provided by the New Mexico Human Rights

Act, the ADEA and Title VII.

for his mental anguish and humiliation; and

(D) Granting such other and further relief as

this Court deems necessary and proper.

Respectfully submitted,

GILPIN LAW FIRM, LLC

/s/ Donald Gilpin

6100 Indian School Rd., NE

Ste. 201

Albuquerque, NM 87110-4180

Tel. (505) 244-3861

Fax (505) 254-0044

Attorney for Plaintiff

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.