                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                     September 25, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ELIZABETH STEWART,

             Plaintiff - Appellant,

v.                                                        No. 14-6010
                                                   (D.C. No. 5:12-CV-01297-C)
STATE OF OKLAHOMA ex rel.                                 (W.D. Okla.)
OKLAHOMA OFFICE OF JUVENILE
AFFAIRS; GENE CHRISTIAN,
individually as former Executive Director
of the Oklahoma Office of Juvenile
Affairs,

              Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before KELLY, PORFILIO, and MATHESON, Circuit Judges.


      Elizabeth Stewart appeals from the district court’s entry of summary judgment

in defendants’ favor on claims relating to the termination of her employment.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I. Background

       Stewart is African American. In 2004, she began working as the Division

Administrator for the Institutional Services Division of the Oklahoma Office of

Juvenile Affairs (OJA). She was responsible for overseeing several youth detention

facilities, and she received positive performance reviews. Over a two-month span in

2011, an assault resulting in a brain injury, a mini riot, and an escape occurred at one

of those facilities, the medium-security Central Oklahoma Juvenile Center (COJC).

Mike Moriarty, who is Caucasian, was COJC’s Superintendent. One day after the

last of those three events, defendant Gene Christian, a Caucasian who was then

OJA’s Executive Director, relieved Stewart and Moriarty of their duties. Christian

informed Stewart that she could resign or be fired, and a few weeks later told

Moriarty that he could resign, retire, or be fired. Ms. Stewart decided to resign to

avoid the stigma of being fired. Moriarty chose to retire.

       Stewart then sued OJA and Christian, alleging that they discriminated against

her on the basis of race and sex when Christian ended her employment and

that Christian retaliated against her for complaining more than a year earlier about a

racial comment his assistant made. She also asserted a procedural due process claim

against Christian regarding his failure to provide her with a reason for relieving her

of her duties.1


1
       Stewart raised her race and sex discrimination claims under Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983 (the latter invoking the
                                                                           (continued)
                                          -2-
      Defendants moved for summary judgment on all claims, which the district

court granted. Applying the familiar burden-shifting paradigm of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the court assumed Stewart’s

resignation amounted to a discharge and held that she established a prima facie case

of discrimination.2 The court then determined that defendants had provided

legitimate, nondiscriminatory reasons for discharging her. Christian felt immediate

changes needed to be made in view of the three incidents at COJC over the

two-month period and the associated bad press OJA was getting. He was also

motivated by the fact that the incidents occurred at a time when OJA was trying to

end involvement by the United States Department of Justice (DOJ), which had

obtained a three-year consent decree in federal court in 2008 concerning conditions

of confinement at another OJA facility, the maximum-security L.E. Rader Center

(Rader). Rader effectively closed shortly before the first of the three incidents at

COJC.

      The court next concluded that Stewart failed to demonstrate that defendants’

reasons were a pretext for discriminatory intent. Stewart argued she was treated

Equal Protection Clause of the 14th Amendment to the United States Constitution).
She raised her retaliation claim against Christian under § 1981 and her due process
claim under § 1983. Stewart also asserted other claims, but in this appeal, she has
not taken issue with the district court’s disposition of them. We therefore do not
discuss them.
2
       The same elements apply to disparate treatment claims under Title VII, § 1981,
and § 1983, all of which are subject to the McDonnell Douglas analysis. Drake v.
City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991).


                                          -3-
differently than Christian and his Chief of Staff, Gary Bolin, but the court determined

Christian and Bolin were not similarly situated to her because they had larger roles

within OJA than overseeing juvenile facilities. The court reasoned that Moriarty was

most similarly situated to Stewart, and Christian treated him the same as he had

treated Stewart. The court further distinguished former Rader superintendents, none

of whom were ever relieved of their duties despite significant issues there and

allegedly constant bad press, because Stewart had not shown similar incidents

occurred there within a two-month span and at a time when OJA was trying to

conclude the consent decree.

      The court next addressed Stewart’s argument that Christian should have been

fired instead of her or Moriarty because, by closing Rader, he created the conditions

at COJC that led to the three incidents. The court concluded this was immaterial

because “[t]he relevant inquiry is not whether the employer’s proffered reasons were

wise, fair or correct, but whether it honestly believed those reasons and acted in good

faith upon those beliefs.” Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924-25

(10th Cir. 2004) (brackets and internal quotation marks omitted). As Stewart had

conceded, at the time Christian relieved her of her duties, she thought it was because

of the bad press and was “a way for him to take care of it and show that he was doing

something,” Aplt. App. at 275, similar to the reasons Christian gave.




                                         -4-
       The court also determined that no reasonable inference of discrimination by

Christian could be drawn from the racial comment his assistant had made,3 noting

that Christian was not present at the time it was made and that, after Stewart

informed him of the comment, he promptly instructed his assistant to apologize.

Finally, the court addressed Stewart’s reliance on another employee’s claims of

gender discrimination against Christian and OJA. The court observed that Christian

had apologized for a flippant comment he had made to the employee, Laura Broyles,4

and that Broyles’s equal-pay claim had been resolved in her favor. The court

concluded this evidence was insufficient to create a genuine issue of fact with regard

to pretext.

       The district court next considered Stewart’s retaliation claim against Christian.

It granted summary judgment on that claim because her complaint about the racial

comment Christian’s assistant had made occurred more than a year before Christian

relieved Stewart of her duties, and there was no additional evidence to establish

causation.5


3
       At an OJA Board of Directors retreat, Christian’s assistant told a story in
Stewart’s presence that when the assistant was a teenager, she and some friends
dressed up as Ku Klux Klan members for Halloween, with one person painting his
face black and wearing a noose around his neck.
4
       Christian admitted he told Broyles that OJA’s budget issues might be resolved
if she slept with a state legislator.
5
       The court also stated that Stewart failed to exhaust her administrative remedies
with respect to her retaliation claim against OJA under Title VII. To the extent she
stated such a claim, the district court lacked jurisdiction over it due to the failure to
                                                                               (continued)
                                           -5-
       Moving to the procedural due process claim against Christian, the district court

applied state law to determine whether Stewart had a property interest in her job.

See Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012) (explaining that state law

governs that inquiry). Under Okla. Stat. tit. 74, § 840-5.1A(A), an unclassified

Oklahoma employee has no right or expectation of continued employment and,

consequently, no property interest in her job. The court pointed to Stewart’s

deposition testimony that she was an unclassified staff member and an at-will

employee, and it noted that her written job offer described the position in those

terms. The court also pointed out that, although Stewart’s position was not among a

list of those specifically identified by Okla. Stat. tit. 74, § 840-5.5 as unclassified,

another statutory provision (Okla. Stat. tit. 74, § 840-5.15) allows OJA to place an

additional forty-one employees into unclassified service. Accordingly, the court held

that Stewart lacked the property interest required to maintain a procedural due

process claim. See Ribeau, 681 F.3d at 1194 (property interest required for such a

claim).

                                      II. Discussion

       “We review the district court’s summary judgment order de novo, and apply

the same legal standards as the district court.” Doe v. City of Albuquerque, 667 F.3d

exhaust. See Eisenhour v. Weber Cnty., 744 F.3d 1220, 1226 (10th Cir. 2014). But
we fail to see such a claim in the controlling amended complaint, where the only
retaliation claim was against Christian and asserted under 42 U.S.C. § 1981, not
Title VII. There is no exhaustion requirement for § 1981 claims. Aramburu v.
Boeing Co., 112 F.3d 1398, 1410 n.9 (10th Cir. 1997).


                                           -6-
1111, 1122 (10th Cir. 2012). “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). “When applying this

standard, we view the evidence and draw reasonable inferences therefrom in the light

most favorable to the nonmoving party.” Doe, 667 F.3d at 1122 (internal quotation

marks omitted).

       Applying these standards, we agree in full with the district court’s analysis and

affirm its decision for substantially the reasons the court gave. This is not an

instance where “a claimed business judgment is so idiosyncratic or questionable that

a factfinder could reasonably find that it is a pretext for illegal discrimination.”

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1169 (10th Cir. 1998); see also Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). (“[A]n employer [is]

entitled to judgment as a matter of law if the record conclusively revealed some

other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created

only a weak issue of fact as to whether the employer’s reason was untrue and there

was abundant and uncontroverted independent evidence that no discrimination had

occurred.”). We will, however, briefly discuss a few specific points Stewart makes

about evidence the district court addressed, and we will discuss evidence the district

court did not address in its decision, the omission of which we deem harmless.

       Stewart contends Christian fired Moriarty in order to cloak his true objective—

ridding himself of Stewart, whom he had inherited when he was appointed Executive


                                           -7-
Director of OJA in 2006. In support, she points to Moriarty’s testimony that on the

day after the third incident, Christian first asked Moriarty what assistance he needed

at COJC. Later that day, Christian told Moriarty it looked like he would be getting a

new division administrator, thus indicating Stewart was going to be fired. Moriarty

offered to resign, but Christian did not respond. Still later that day, Christian

relieved Moriarty of his duties and, several weeks later, offered him the choice to

resign, retire, or be fired. Stewart claims an inference of discrimination can be drawn

from this sequence. But any such inference is speculative, not reasonable.

      Stewart also claims the district court erred in crediting Christian’s view that

the three incidents at COJC complicated OJA’s efforts to conclude the Rader consent

decree because two of the incidents occurred after the federal district court declined

the DOJ’s request to extend the decree to COJC after the Rader youths were

transferred there. But this argument is faulty because it rests on a slight

mischaracterization of Christian’s affidavit, where he expressed his concern that the

three incidents “would extend the DOJ involvement at a time when we were trying to

conclude it.” Aplt. App. at 421. It is evident that Christian’s concern was DOJ

involvement in any respect, not just under the consent decree. Moreover, the federal

case was not formally closed until more than a month after the third incident took

place. Hence, Christian’s concern was not inconsistent with the facts to the point

where a reasonable inference of discrimination could be drawn from it.




                                          -8-
      Stewart notes that, several weeks after the first of the three incidents and

before the other two, Christian signed her performance review. The review, which

did not mention the incident, indicated she was meeting standards. She also points

out that, after the second event, Christian did not discuss them with her. We see

nothing of pretext in this since the proffered reason for relieving Stewart of her duties

was the cumulative effect of the three incidents.

      Stewart complains the district court failed to address evidence that Christian

engaged in a pattern of personnel decisions that resulted in white males occupying a

number of positions, including Stewart’s; that he fired an upper-level female

employee early in his tenure as OJA’s Executive Director; and that since Stewart’s

firing, there are no black executive staff in the OJA. But this evidence exists in a

vacuum. There is no indication whether any black or female candidates applied for

the positions and there is no detail as to why Christian fired the upper-level female

employee. Hence, no reasonable inference of pretext can be drawn from this

evidence.

      The district court also failed to discuss evidence that, sometime during his first

year as OJA’s Executive Director, Christian was present when OJA showed a video

depicting women sitting at a bar and appearing to wear either no pants or a thong, but

he did nothing. However, there is no evidence Christian had any role in the decision

to show this video, no further detail on his reaction to it, and no allegation that there

was any complaint about it such that he might have addressed it. Moreover, the


                                           -9-
incident occurred some four years before he relieved Stewart of her duties.

Therefore, it would be unreasonable to draw an inference that he was biased from his

mere presence and inaction. The same can be said of a skit OJA employees put on,

during the same time frame, in which they allegedly mocked someone with a thick

Indian accent.

      Stewart further points to the fact that when Christian was a state district

attorney (apparently many years before his decision to end Stewart’s OJA

employment), he told a black female assistant district attorney “that she needed to

seek other employment, that being a prosecutor, being in the courtroom was probably

not her forte.” Aplt. App. at 615. Although that person is now a special district

judge in Oklahoma County, we fail to see how a reasonable inference of

discrimination can be drawn from Christian’s opinion that she may not have been a

good prosecutor.

      Stewart points out an inconsistency between Christian’s sworn statement that

he told Chief of Staff Bolin he had discussed firing Stewart with OJA’s Board of

Directors and other testimony that he had not discussed it with the Board. We fail to

see how this inconsistency creates a reasonable inference of discriminatory animus.

      Stewart also claims she was paid less than the state average for her level and

only slightly more than Moriarty despite having significantly more responsibilities

than him. But there is insufficient factual development to rule out any

nondiscriminatory basis for the pay differential, so no reasonable inference of


                                         - 10 -
discrimination can be drawn from the naked facts. Likewise, several other claims

Stewart makes are insufficiently developed to reasonably infer pretext: after

complaining about discrimination, she and Broyles were excluded from decisions

they should have been involved in; both Stewart and Broyles were “aware of

Christian’s lack of respect and value of women in the workplace,” Aplt. Opening Br.

at 40; and that Broyles thought Christian was unconcerned about racially equal

treatment of youth offenders held in OJA facilities.

                                   III. Conclusion

      The judgment of the district court is affirmed.


                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




                                        - 11 -
