Hollis v. Aerotek, Inc.
667 F. App'x 725
| 10th Cir. | 2016Background
- Hollis (African American, pro se) met Aerotek recruiter Mulcahy on June 12, 2014 seeking referral to EC Manufacturing (ECM); Hollis disclosed a gap (2009–2013) saying he had been on disability. Mulcahy began to say, “You don’t look like …” but did not finish the sentence.
- Mulcahy declined to refer Hollis to ECM, citing lack of recent relevant production experience, concern Aerotek managers would question a referral, and Hollis’s argumentative demeaner; Mulcahy offered Hollis a different short-term production placement, which Hollis refused.
- Aerotek placed 110 workers with ECM in the relevant period; Mulcahy’s referrals to ECM resulted in several hires of varying races including African Americans.
- Hollis filed EEOC charge, received a right-to-sue letter, then sued Aerotek and Mulcahy for Title VII race discrimination and ADA disability discrimination; district court granted summary judgment for defendants and dismissed claims against the EEOC and investigator Ventura; Hollis appeals.
- The parties conceded Hollis established prima facie cases and defendants articulated legitimate nondiscriminatory reasons; the appeal centers on whether Hollis created a genuine dispute that those reasons were pretextual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Timeliness / fabricated-evidence claim | Hollis says defense counsel admitted fabricating evidence and that evidence labeling him "combative" was fabricated, warranting relief | Defendants dispute fabrication; district court found plaintiff raised fabrication only post-judgment and untimely | Court affirmed: fabrication claim untimely; post-judgment motion not proper avenue for new arguments |
| 2. Characterization as "combative/argumentative" as pretext | Hollis contends Mulcahy’s characterization was false and used to mask discrimination | Mulcahy says subjective assessment of interview comportment was one factor among several, including resume deficiencies | Held: plaintiff’s disagreement with subjective assessment insufficient to show pretext; resume and other reasons supported decision |
| 3. Remarks evidencing race/disability bias ("Y’all always…", "You don’t look like…") | Hollis says remarks show race- and disability-based animus and that requiring proof via temp job was discriminatory | Defendants argue remarks are ambiguous, race-neutral on their face, and insufficient without other evidence of discrimination | Held: isolated, ambiguous comments do not permit an inference of discriminatory intent; insufficient to show pretext |
| 4. Statistical and comparator evidence / similarly situated applicants | Hollis contends statistics and named white comparators show disparate treatment | Defendants argue statistics are unsupported/misplaced and comparators are not shown to be similarly situated | Held: Hollis failed to provide record support or demonstrate legal similarity; comparators/statistics insufficient to create genuine dispute |
| 5. Hearsay exclusion of ECM employees’ interview statements | Hollis offered out-of-court statements to show ECM trained employees and did not require prior experience | Defendants objected as hearsay on summary judgment | Held: district court did not abuse discretion excluding those statements as inadmissible hearsay |
| 6. Claims against EEOC/Ventura (FTCA/discretionary function) | Hollis alleged EEOC/Investigator mishandled/falsified investigation | Defendants argue no private cause against EEOC; FTCA claims barred by discretionary-function and libel/slander exceptions | Held: no cause of action against EEOC; FTCA bars claims against Ventura (discretionary-function/defamation exceptions) |
Key Cases Cited
- Brown v. ScriptPro, LLC, 700 F.3d 1222 (10th Cir. 2012) (summary-judgment evidence viewed in nonmovant’s favor)
- Smothers v. Solvay Chems., Inc., 740 F.3d 530 (10th Cir. 2014) (ADA circumstantial-evidence framework / summary judgment review)
- Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261 (10th Cir. 2015) (three-step McDonnell Douglas analysis and pretext standard)
- Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir. 2009) (subjective decisionmaking not unlawful per se; inference of pretext when criteria entirely subjective)
- EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011) (evaluate facts as they appear to decisionmaker, not plaintiff’s subjective view)
- Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136 (10th Cir. 2008) (isolated, ambiguous remarks generally insufficient to infer discrimination)