Drury v. BNSF Railway Company, 657 F. App'x 785

Background

Michael Drury, a longtime BNSF employee who identified as Native American and had been active in company Native American affinity efforts, held supervisory roles in the Technical Training Center (TTC) and later in the signal department.
After complaining about alleged race and age discrimination by a supervisor (Abbott) in 2006, Abbott was fired and Drury’s overall 2006 rating was revised, but a "needs improvement" leadership mark remained and Drury was placed on a leadership PIP; Drury filed EEOC charges alleging retaliation.
Subsequent supervisors (Schafer, Joplin, LeVere, Golder) gave mixed reviews through 2010; Drury reported co-worker fraud in November 2010 and was commended for doing so.
In 2011 Drury received negative reviews, was offered a demotion or a 90‑day PIP (he chose the PIP), was later demoted in October 2011 to a lower‑paid engineer position, and was terminated in January 2012; he could not return to a craft position because he had not paid union dues while salaried.
Drury sued alleging race and national origin discrimination (Title VII and § 1981), ADEA claims (some waived), and retaliation under Kansas public policy; the district court granted summary judgment for BNSF, and Drury appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Drury’s demotion/termination were motivated by race or national origin (Title VII/§ 1981)	Drury contends decisions were racially motivated; points to racist comments by coworkers/supervisors and alleged false denials of knowledge of his race to create an inference of discrimination and pretext	BNSF contends legitimate, nondiscriminatory reasons: documented performance problems, negative reviews, timeline showing decline, and that comments cited were by persons not involved in the challenged decisions	Affirmed for BNSF — court found no direct evidence tying racist remarks to decisionmakers and no sufficient evidence of pretext
Whether supervisors’ alleged false denials of knowing Drury’s race establish pretext	False denials (and other comments) show discriminatory animus and pretext for the adverse actions	Even if supervisors knew his race, mere false denials without evidence race influenced the decisions do not prove pretext	Rejected — false denials alone insufficient to demonstrate pretext
Whether negative 2011 reviews and performance timeline were pretextual	Reviews relied on inaccurate or stale information and were manufactured to justify demotion/termination	Reviews reflected supervisors’ honest beliefs about declining performance and insubordination; past good reviews do not negate subsequent poor performance	Rejected — plaintiff failed to show reviewers did not honestly believe criticisms or that reasons were false
Whether Drury’s reporting of coworker fraud created a Kansas‑law whistleblower retaliation claim	Drury says demotion/termination were retaliation for whistleblowing about fraud (Kansas public policy)	BNSF notes supervisors praised Drury for reporting fraud and there was a substantial time gap (report Nov 2010; demotion Oct 2011; termination Jan 2012) undermining causation	Affirmed for BNSF — no clear and convincing evidence of retaliatory discharge; temporal gap and positive reactions undercut causation

Key Cases Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden‑shifting framework for discriminatory discharge claims)
Salguero v. City of Clovis, 366 F.3d 1168 (10th Cir. 2004) (prima facie and pretext analysis in Title VII cases)
Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526 (10th Cir. 1994) (isolated or ambiguous comments about protected classes insufficient to infer discrimination)
Knitter v. Corvias Military Living, LLC, 758 F.3d 1214 (10th Cir. 2014) (sham affidavit rule — new affidavit contradicting deposition may be disregarded)
Palmer v. Brown, 752 P.2d 685 (Kan. 1988) (elements and clear‑and‑convincing proof requirement for Kansas public‑policy wrongful discharge claim)