                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 4 1998
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 TERESA INGRAM,

          Plaintiff - Appellant,
 v.

 INTERNATIONAL BROTHERHOOD                             No. 97-6091
 OF ELECTRICAL WORKERS,                         (D.C. No. CIV-92-1271)
 LOCAL 2021; EMPLOYEE                         (Western District of Oklahoma)
 BENEFITS COMMITTEE; LUCENT
 TECHNOLOGIES, INC., formerly
 known as AT&T Technologies, Inc.,

          Defendants - Appellees.




                             ORDER AND JUDGMENT         *




Before BRORBY , BARRETT and LUCERO , Circuit Judges.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After she was fired by Lucent Technologies (“Lucent”),    1
                                                                    Teresa Ingram

filed suit against her former employer and her labor union, the International

Brotherhood of Electrical Workers, Local 2021 (“the Union”). She contends that

Lucent discharged her in retaliation for: (1) seeking workers’ compensation

benefits, in violation of Okla. Stat. Ann. tit. 85, § 5 (1992); (2) seeking disability

benefits under Lucent’s employee benefit plan, in violation of § 510 of the

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140; and (3)

filing a complaint with the Occupational Safety and Health Administration

(“OSHA”), in violation of Oklahoma public policy. She also claims that, in

firing her, Lucent breached its collective bargaining agreement with the Union.

In addition, she alleges the Union breached its duty of fair representation, and

that Lucent improperly denied her claim for disability benefits. The district court

granted appellees summary judgment on all her claims. Ingram appeals pursuant

to 28 U.S.C. § 1291. We affirm.




      1
         At the time appellant filed this lawsuit, she was employed by AT&T
Technologies. This division of AT&T was subsequently spun off as Lucent
Technologies. There is no dispute that Lucent is the successor in interest of
AT&T Technologies for the purposes of this litigation.     See Appellees’ Br.
(Lucent Technologies and Employee Member Benefit Committee) at 1 n.1. For
the sake of clarity and consistency, we will refer to appellant’s former employer
as Lucent.

                                         -2-
                                        I

      While in Lucent’s employ, Ingram developed carpal tunnel syndrome. As a

result, she was absent from work for almost four months in 1989, and filed for

workers’ compensation pursuant to Oklahoma law. She also sought disability

benefits under her employer’s benefit plan. Although she was eventually

awarded workers’ compensation, Lucent’s Employee Benefits Plan Committee

denied her disability benefits claim.

      Appellant contends that when she returned to work, Lucent refused to

accommodate her injury in spite of her and her doctor’s requests. Frustrated to

be assigned to tasks that aggravated her condition, Ingram wrote to OSHA. In

September 1990, she submitted a formal complaint denouncing her allegedly

hazardous working conditions. In response, OSHA conducted an inspection of

Lucent’s facility in Oklahoma City. Although no citations were issued, the

compliance officer noted several problems and made recommendations “to reduce

the potential and minimize the hazards of upper extremity cumulative trauma

disorders.” Appellant’s App. at 637.

      In early 1991, Ingram’s injury again prevented her from going to work. On

March 6, Lucent mailed her a letter scheduling a medical appointment. The letter

states: “Failure to keep this appointment may result in LOSS OF BENEFIT PAY

or POSSIBLE TERMINATION OF EMPLOYMENT.”                Id. at 739 (emphasis in


                                        -3-
original). It also provided appellant with a telephone number to call were she

unable to keep the appointment. Appellant, however, did not attend the

appointment or alert Lucent of her inability or unwillingness to attend.

       Hearing nothing from appellant, Lucent called her home on March 11 and

12, both times leaving messages for her to contact the company. On March 12,

Lucent prepared a second letter, hand-delivered to appellant’s home that

morning, rescheduling her medical appointment and warning, “[i]n the event you

fail to maintain this appointment, we will assume you are no longer interested in

your employment with the Company.”         Id. at 645. Lucent also informed the

Union that appellant was in danger of being terminated.

       A Union representative attempted to contact appellant on March 12 and left

a message at her home warning her to contact either her employer or the Union

by 11:00 a.m. the next day or she would face termination. She contacted neither,

and on March 13 was informed by letter of her termination. The letter states her

dismissal was “due to [her] failure to report to Medical.”      Id. at 647.

       Shortly thereafter, appellant initiated a grievance over her discharge.

Arbitration proceedings upheld Lucent’s decision, with the arbitrator concluding

that “[t]he penalty, although harsh, is within reasonable range.”      Id. at 295.




                                            -4-
                                             II

       “We review the grant of summary judgment de novo, applying the same

legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).”      Kaul

v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quoting         Wolf v. Prudential Ins.

Co. , 50 F.3d 793, 796 (10th Cir. 1995)). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

       When applying this standard, we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the
       party opposing summary judgment. If there is no genuine issue of
       material fact in dispute, then we next determine if the substantive
       law was correctly applied by the district court.

Kaul , 83 F.3d at 1212 (quoting     Wolf , 50 F.3d at 796). The movant bears the

burden of showing the absence of a genuine issue of material fact, and if it

satisfies this burden, “the non-movant may not rest upon its pleadings, but must

set forth specific facts showing a genuine issue for trial as to those dispositive

matters for which it carries the burden of proof.”       Id.

                                             A

       Appellant first contends that the district court should not have granted

summary judgment to Lucent as to her three claims of retaliatory discharge. We


                                             -5-
agree with the district court that Ingram has failed to adduce sufficient evidence

to substantiate these claims.

       The district court subjected each of these claims of retaliation to the

burden-shifting framework laid out in      McDonnell Douglas Corp. v. Green    , 411

U.S. 792 (1973). As neither party challenges this decision, for purposes of this

appeal we will assume that the    McDonnell Douglas framework properly applies

to all of appellant’s retaliation claims. Under   McDonnell Douglas :

       First, the plaintiff has the burden of proving by the preponderance of
       the evidence a prima facie case of discrimination. Second, if the
       plaintiff succeeds in proving the prima facie case, the burden shifts
       to the defendant ‘to articulate some legitimate, nondiscriminatory
       reason for the employee’s rejection.’ Third, should the defendant
       carry this burden, the plaintiff must then have an opportunity to
       prove by a preponderance of the evidence that the legitimate reasons
       offered by the defendant were not its true reasons, but were a pretext
       for discrimination.

Texas Dep’t of Community Affairs v. Burdine       , 450 U.S. 248, 252-53 (1981)

(quoting and citing McDonnell Douglas , 411 U.S. at 802, 804). Even assuming

that appellant establishes a prima facie case of retaliation, the district court

correctly concluded that she did not meet her burden of discrediting the proffered

reason for termination.

       Once Lucent asserts that it terminated appellant for failing to attend or

reschedule her medical appointment, it is Ingram’s burden to “present enough

evidence to support an inference that the employer’s reason was merely pretext,


                                            -6-
by showing either ‘that a discriminatory reason more likely motivated the

employer or . . . that the employer’s proffered explanation is unworthy of

credence.’” Cone v. Longmont United Hosp. Ass’n      , 14 F.3d 526, 530 (10th Cir.

1994) (quoting Burdine , 450 U.S. at 256).

      Ingram asserts that Lucent’s proffered reason is unworthy of belief because

there is no evidence of other employees being terminated for missing medical

appointments. The record belies this unsupported claim. The company presented

the district court with an affidavit from a Labor Relations Specialist at Lucent

indicating that over a ten year period seven other employees had been terminated

for the same conduct.   See Appellant’s App. at 742-44.

      Appellant also argues that an absence of disciplinary action when she

previously missed several medical appointments shows pretext. On each of these

earlier occasions, however, appellant informed her employer that she would be

unable to attend the appointment and rescheduled accordingly. It is undisputed

that, prior to being terminated for the March incident, appellant did not contact

either Lucent or the Union nor did she attempt to reschedule her appointment.

Cf. Cone , 14 F.3d at 532 (“To make a comparison demonstrating discrimination,

the plaintiff must show that the employees were similarly situated.”)

      Finally, appellant contends that pretext is shown by Lucent’s decision to

terminate “an employee with a superlative record.” Appellant’s Br. at 29.


                                         -7-
Appellant, however, fails to supplement this assertion with evidence that her

performance at Lucent was in fact “superlative,” or that such employees are not

equally subject to termination for similar conduct.     See Branson v. Price River

Coal Co. , 853 F.2d 768, 772 (10th Cir. 1988) (“[P]laintiffs’ mere conjecture that

their employer’s explanation is a pretext for intentional discrimination is an

insufficient basis for denial of summary judgment.”).    2



                                            B

       Appellant next argues that the district court erred in granting summary

judgment on her claim that Lucent violated the collective bargaining agreement.

She asserts before us that Lucent violated the agreement by terminating her

employment without cause. This assertion is meritless. As noted above,




       2
          Appellant asserts that the district court erred in failing to “address
whether requiring medical examinations under the circumstances of this case was
a ‘legitimate, nondiscriminatory’ reason for discharge.” Appellant’s Br. at 28.
Appellant misunderstands the nature of Lucent's burden at the second step of
McDonnell Douglas . “Step two only requires that the defendant explain its
actions against the plaintiff in terms that are not facially prohibited by [the
statute].” EEOC v. Flasher Co. , 986 F.2d 1312, 1317 (10th Cir. 1992). “If that
[facially nondiscriminatory] reason is applied only against [the protected class],
has a disparate impact upon [the protected class], or is otherwise a sham, that
comparative analysis occurs under step three where the plaintiff has the burden of
proof.” Id. at 1318 n.6. Appellant, however, provides us with no evidence that
Lucent’s requirement is itself a pretext for discrimination. Challenging the
requirement without adducing evidence that this policy was implemented for
discriminatory purposes or so applied in her particular case does not establish
pretext.

                                            -8-
appellant fails to establish that her termination was a product of improper

motives.

                                             C

       Appellant also asserts that the district court erred in granting summary

judgment to the Union. Appellant’s claim against the Union involves two claims:

“(1) that the employer breached the collective bargaining agreement, and (2) that

the union breached its duty of fair representation.”    Considine v. Newspaper

Agency Corp. , 43 F.3d 1349, 1357 (10th Cir. 1994) (quoting       Aguinaga v. United

Food & Commercial Workers Int'l       , 993 F.2d 1463, 1469 n.1 (10th Cir. 1993));

see DelCostello v. International Bhd. of Teamsters     , 462 U.S. 151, 163-65 (1983).

Because appellant fails to establish that Lucent breached the collective

bargaining agreement, her related claim against the Union cannot stand.    3



                                             D

       Finally, appellant asserts that Lucent wrongly denied her request for

disability benefits and that summary judgment on this claim was therefore

improper. In Firestone Tire & Rubber Co. v. Bruch       , 489 U.S. 101 (1989), the



       3
         Appellant also challenges on appeal an order of the district court denying
her motion to disqualify the Union’s attorneys. Appellant’s sole claim against
the Union rests on her breach of collective bargaining agreement claim against
Lucent. Because the latter claim fails, the former must as well. Because there is
no prospect that the outcome of the suit against the Union would be different,
this claim is moot and we decline to address its merits.

                                            -9-
Supreme Court held that “a denial of benefits challenged under § 1132(a)(1)(B)

is to be reviewed under a de novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan.”    Id. at 115.

       Our first task, therefore, is to determine the appropriate standard of review.

The benefit plan at issue provides:

       The Sickness and Accident Disability Benefit Plan is administered
       through the benefit committees, appointed by the Company . . .
       which have been delegated the responsibility for managing the day-
       to-day operations of the Plan including the right to grant and deny
       initial claims for benefits under the Plan. The Employees’ Benefit
       Claim Review Committees determine conclusively for all parties all
       questions arising in the administration of the Plan, and any decision
       of these committees is not subject to further review.

Appellant’s App. at 325. Because the terms of the plan grant the administrator

discretionary authority to determine eligibility for benefits, its decision “is

entitled to review under the deferential arbitrary and capricious standard.”      Dycus

v. Pension Benefit Guar. Corp. , 133 F.3d 1367, 1369 (10th Cir. 1998) (reviewing

deferentially decisions by committee possessing authority under plan to “decide

all questions concerning the application or interpretation of the provisions of the

plan”). 4


       4
        Appellant contends that the benefit committee’s decision is entitled less
deference because the same doctor who reviews claims for the committee
represented Lucent in opposing appellant’s workers’ compensation claim. The
                                                                    (continued...)

                                            -10-
       Appellant contends that, because she was awarded workers’ compensation

benefits, she is automatically entitled to benefits under the plan. This assertion is

contradicted by the terms of the plan.    See Appellant’s App. at 674

(Administrative Guidelines, ¶ 1.3) (stating that, although cases qualifying for

workers’ compensation usually qualify for benefits under plan, “doubtful

circumstances” may justify denial of benefits). In addition, the decision to deny

benefits was based on reports provided by two doctors and an ergonomics

engineer. See id. at 314-20. Consequently, the decision was neither arbitrary nor

capricious.   5



                                           III

       For the foregoing reasons, we     AFFIRM the decision of the district court.

                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge


       (...continued)
       4

record, however, does not indicate that this doctor was a member of the
committee or that he was otherwise given discretionary authority under the plan.
See Chambers v. Family Health Plan Corp. , 100 F.3d 818, 825-26 (10th Cir.
1996) (less deferential standard of review is triggered by conflict of interest on
the part of plan administrator).
       5
         Appellant argues that although the benefit committee considered her
claim for accident benefits they failed to consider her eligibility for “occupational
disease” benefits. This claim is contradicted by the record.   See Appellant’s App.
at 321-22.

                                           -11-
