Lewis v. Frito-Lay, Inc.
680 F. App'x 772
| 10th Cir. | 2017Background
- Byron Lewis, an African‑American packer employed at Frito‑Lay (1991–2012), received progressive discipline culminating in termination after multiple warnings and suspensions in 2011–2012.
- Frito‑Lay’s progressive discipline policy contains four steps and permits discretionary Last Chance Agreements (LCAs) as an alternative to termination.
- Lewis’s union requested an LCA on his behalf during the grievance process; Frito‑Lay (via manufacturing director Scott Denny) denied the grievance and the LCA request. The union’s Executive Board declined to arbitrate.
- Lewis sued under 42 U.S.C. § 1981, alleging race discrimination: that Frito‑Lay treated him less favorably than similarly situated white employees (Christine McComas and Mark Dugger) by terminating him instead of offering an LCA.
- The district court granted summary judgment for Frito‑Lay. On appeal, the Tenth Circuit reviewed only the pretext issue under the McDonnell Douglas framework and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lewis and identified white employees were similarly situated to show disparate treatment | Lewis: all LCA decisions were made by Denny, so McComas and Dugger are proper comparators | Frito‑Lay: comparators lacked same supervisory/disciplinary context and union threatened arbitration in their cases | Court: Not similarly situated; alternatively affirmed because union threatened arbitration in comparators’ cases |
| Whether inconsistent explanations about why Frito‑Lay enters LCAs show pretext | Lewis: Frito‑Lay gave conflicting reasons (to avoid arbitration outcome vs. only when union threatened arbitration) | Frito‑Lay: explanations are reconcilable—LCAs used when arbitration is threatened or to avoid uncertain arbitration results | Court: Statements are not meaningfully inconsistent; no pretext shown |
| Whether employer’s stated reason (union threat) was false or incredible | Lewis: absence of arbitration list and Denny’s vague memory suggest falsity/untruthfulness | Frito‑Lay: union threatened arbitration verbally and via HR communications; absence of list and lapse of memory insufficient to establish falsity | Court: Lack of list and imperfect recollection do not create genuine dispute of material fact; no evidence that stated reason was false |
| Whether weaknesses in employer’s explanation (inconsistencies/incoherences) permit inference of discrimination | Lewis: alleged implausibilities and contradictions in Denny’s testimony | Frito‑Lay: testimony shows a coherent practice—deny LCA during grievance unless union threatens arbitration, then negotiate LCA | Court: Employer’s reasons not so weak or inconsistent to permit a reasonable jury to infer pretext |
Key Cases Cited
- Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282 (10th Cir. 2007) (standard for de novo review of summary judgment)
- Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267 (10th Cir. 2012) (similarly situated comparator and pretext analysis)
- Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000) (applying McDonnell Douglas burden‑shifting in § 1981 employment claims)
- Timmerman v. U.S. Bank, N.A., 483 F.3d 1106 (10th Cir. 2007) (plaintiff must rule out nondiscriminatory explanations for differential treatment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (framework for burden shifting in discrimination cases)
- Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs., 569 F.3d 1244 (10th Cir. 2009) (appellate court may affirm on an alternative ground not challenged on appeal)