                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 28, 2014
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 PATRICIA G. WHITE,

             Plaintiff - Appellant,

 v.                                                  No. 13-5142
                                                     (N.D. Okla.)
 STATE OF OKLAHOMA,                    (D.C. No. 4:12-CV-00088-GKF-FHM)

             Defendant - Appellee.


                          ORDER AND JUDGMENT *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff and appellant, Patricia G. White, appeals the grant of summary

judgment to the defendant, the State of Oklahoma (“State”), in her discrimination


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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. 32.1.
case following her termination from work. For the following reasons, we affirm

the district court’s decision.



                                 BACKGROUND

      On or about June 1, 2009, Ms. White, an African-American woman with

some form of mobility impairment, was hired by the Oklahoma Office of Juvenile

Affairs (“OJA”) to work as a Food Service Specialist at the L.E. Rader Center

(“Rader”) in Tulsa, Oklahoma. Ms. White was a probationary employee during

her employment at Rader. Pursuant to OJA policies and procedures, probationary

employees may be discharged at any time during their probationary period

without the right of appeal.

      Rader has a policy prohibiting cell phones inside the facility. Additionally,

on June 2, 2009, the Oklahoma Governor signed Oklahoma Senate Bill 1064,

which made it a felony in Oklahoma to knowingly, and without authorization,

bring a cell phone into a secure area of a state penal institution such as Rader.

The bill was effective immediately.

      On August 7, 2009, Juvenile Security Officer Jeanne Whitehead, formerly

Jeanne Lott (hereafter “Ms. Whitehead”), and Youth Guardian Specialist Carolyn

McElroy, both of whom were assigned to the front security gate of Rader,

searched Ms. White’s purse as she entered the Rader facility. They found a cell

phone in her purse, wrapped in newspaper. Both Ms. Whitehead and Ms.

                                         -2-
McElroy testified by affidavit that they “believed [Ms. White] was trying to

conceal her phone because it was wrapped closely with newspaper and concealed

in her purse.” Whitehead Aff. ¶ 3, McElroy Aff. ¶ 4; Appellant’s App. (hereafter

“App.”) at 87, 91. Ms. McElroy further stated that “Ms. White did not make any

statement to [Ms. Whitehead or Ms. McElroy] or others at the security gate that it

was an accident that she had her phone in her purse.” McElroy Aff. ¶ 5; see also

Whitehead Aff. ¶ 5; App. at 88, 91.

      Ms. McElroy, an African American woman, reported the incident to

supervisory personnel in a Multipurpose Report (a form used for incident reports)

because cell phones were not allowed in the facility. She stated in her affidavit

that, had Ms. White “made any statement suggesting it was accidental, [she]

would have included her statement in the Multipurpose Report. I would not have

reported the incident regarding [Ms. White’s] phone if I had believed it was an

accident instead of [Ms. White] trying to conceal the phone in order to bring it

into the facility.” McElroy Aff. ¶¶ 6,7; App. at 92. According to the

Multipurpose Report, Ms. White (with Ms. Whitehead’s permission) left the

phone at the security checkpoint and retrieved it later. Multipurpose Incident

Report at 1; App. at 94.

      In her deposition, Ms. White testified that, during her training, she had

been shown the policy that cell phones were not permitted at the facility, and that

she had “no doubt” that cell phones were not permitted. White Dep. at 28; App.

                                         -3-
at 98. She further testified that she typically brought her phone with her on her

way to work but left it in her car. With respect to the particular August 7, 2009,

incident where her cell phone was found in her purse, Ms. White testified that it

was “more or less” wrapped inside a brochure because she “didn’t want moisture

in it.” Id. at 34-35; App. at 99-100.

         Shortly after reviewing the August 7, 2009, Multipurpose Report describing

the cell phone incident involving Ms. White, Rader superintendent Mike Moriarty

recommended to OJA that Ms. White be terminated because of that incident. On

the morning of August 20, 2009, Ms. White’s supervisor, Barbara Smith, asked

Ms. White to go with her to speak to Mr. Moriarty because “the issue about the

cell phone ha[d] come up again.” Id. at 71; App. at 112. Ms. White met with

Mr. Moriarty and explained what had happened with the cell phone. She further

asked, “how . . . that situation [would] affect [her] job.” Id. at 73; App. at 114.

Ms. White testified that Mr. Moriarty told her he “wasn’t sure, but all of the

paperwork had been forwarded to Oklahoma City.” Id. Mr. Moriarty indicated

that he did not have the final decision about her job. Mr. Moriarty testified by

affidavit that, during the August 20 meeting with Ms. White, he “informed [Ms.

White], in Ms. Smith’s presence, that the matter was no longer in [his] hands, and

that [he] had forwarded the paperwork (referring to the Multipurpose Report) to

Oklahoma City and had recommended her termination.” Moriarty Aff. ¶ 4; App.

at 83.

                                          -4-
      Mr. Moriarty further testified that “[a]t no time during [Ms. White’s]

employment was [he] ever advised of any complaints by [Ms. White] regarding

the lack of handicapped parking.” Id. ¶ 12; App. at 84. He also stated that his

recommendation to terminate Ms. White “was due to the August 7, 2009 cell

phone incident,” Id. ¶ 9; App. at 83-84.

      Later on August 20, 2009, at some point during the afternoon, Ms. White

left a handwritten signed note at the front security gate, which stated, “8-20-09[.]

As of 5:00pm today, I am returning the keys & I.D. badge assigned to me by L.E.

Radar [sic]. God Bless You[.] Patricia White.” App. at 192. Mr. Moriarty

testified that he believed the note (which he received on August 21, 2009) was a

resignation note. Moriarty Aff. ¶ 5; App. at 83. He stated that he forwarded the

note to Liz Davis and to Ms. White’s supervisor, Ms. Smith, indicating in the

“Subject” line of the email that it involved a “Resignation.” Id. ¶ 6; App. at 83.

He also notified OJA that Ms. White had resigned. Id.

      Ms. White testified that she did not appear for work on Friday, August 21,

2009, nor did she call Ms. Smith to tell her she would not be coming to work.

Ms. White’s physician subsequently sent to Rader’s Human Resources

Department a series of “release from work” forms which successively released her

for the periods of August 21, 2009 to August 24, 2009, August 24, 2009 to

August 28, 2009, and August 31, 2009 to September 9, 2009.




                                           -5-
      Mr. Moriarty testified that, on or about August 25, 2009, he learned from

OJA that Ms. White was claiming that she had not, in fact, resigned. Moriarty

Aff. ¶ 7; App. at 83. Mr. Moriarty stated as follows:

      OJA also informed me it had determined to terminate [Ms. White]
      due to the cell phone incident, but her “resignation” had alleviated
      the need to terminate her. Since [Ms. White] had allegedly not
      resigned, OJA instructed me to proceed with the termination, as
      originally intended. Per OJA’s instructions, I then revised Plaintiff’s
      separation papers to indicate “termination.”

Id. ¶ 8; App. at 83.

      Meanwhile, on the same day Ms. White was found with the cell phone in

her purse (August 7, 2009), Ms. Whitehead and Ms. McElroy observed another

individual, Linda Triplett, trying to conceal her phone inside an eyeglass case in

her purse. They testified by affidavit as follows:

      On August 7, 2009, YGS McElroy and I also observed Linda Triplett
      trying to conceal her phone inside an eyeglass case in her purse, in
      order to bring her phone into the facility. Ms. Triplett stated she was
      expecting a phone call. YGS McElroy and I reported the phone
      incident regarding Ms. Triplett in Multipurpose Reports because cell
      phones were not permitted in the facility. We were required to write
      reports on anyone that tried to conceal their phone in order to bring it
      into Rader.

Whitehead Aff. ¶¶ 6-7; McElroy Aff. ¶¶ 10-11; App. at 88, 92.

      Mr. Moriarty testified that he reviewed the incident reports regarding Ms.

Triplett, who is white, and notified OJA of the incident. Ms. Triplett was not, in

fact, an employee of Rader, but, rather, was an employee of the Sand Springs

School District. She was assigned by the District to teach juveniles at Rader.

                                         -6-
OJA did not have the authority to terminate Ms. Triplett from her employment

with the School District. OJA did, however, have the authority to ban her from

the Rader facility. On September 1, 2009, Ms. Triplett was banned from Rader

for violating the cell phone policy.

      On September 5, 2009, another Rader employee, Jennifer Chance, was

caught trying to sneak a phone into the Rader facility by concealing it in her bra.

Mr. Moriarty received an incident report on that matter; Ms. Chance was

subsequently terminated.

      Ms. White also testified that she had complained two or three times a week

to people at the security desk about the handicapped parking situation. In

particular, she complained that, although she had a handicapped parking decal in

her car, and the Rader parking lot had handicapped parking spaces, she had

trouble finding a spot because vehicles without displayed handicapped decals

were parking in the handicapped parking spaces. She testified that she did not

talk to her supervisor about this problem because she assumed it was not her

supervisor’s responsibility. Rather, she claimed she assumed that the security

personnel were responsible for dealing with handicapped parking. Ms. White

testified that she did contact an administrator (Liz Davis) on one occasion about

the handicapped parking problem, and Ms. Davis said she would contact someone

in security. Ms. White testified, however, that she never followed up with Ms.

Davis on this matter.

                                         -7-
      Ms. White claims, and she stated in her deposition, that she believed she

was reprimanded for the cell phone incident because she is black, and in

retaliation for complaining about handicapped parking. She further testified that,

on the day of the cell phone incident (August 7, 2009), she complained to Ms.

Whitehead that she had to park far away, but she did not specifically complain

about the lack of available handicapped parking that day. She testified that she

complained again to Ms. Whitehead on August 20.

      On the other hand, Ms. White testified that she had no reason to believe

that Mr. Moriarty’s recommendation that she be terminated had any relationship

to her complaints about the handicapped parking:

      Q:    But you had no reason to believe that Mr. Moriarty’s
            recommendation of termination had any relation to your
            complaints about handicap parking, do you?

      A:    Mr. Moriarty had no connection at all with my complaints
            about the handicap parking.

      Q:    Do you think he even was aware that you ever . . . complained about
            handicap parking?

      A:    No.

      Q:    No, you don’t think he was aware?

      A:    No.

      Q:    In your meeting with Mr. Moriarty on August 20th, was there
            any discussion about handicap parking?

      A:    No.


                                        -8-
Q:     So is it your belief or your contention that the multipurpose
       report about your cell phone being hidden in newspaper was
       written up because you had complained about handicap
       parking?

A:     Okay. I’m assuming that some key persons must have arrived,
       a form of irritation over my complaints about the handicap
       parking.

Q:     Who are the key persons you’re referring to?

A:     I wasn’t assuming I needed to take names and information
       about those persons when I was making the complaints
       continuously.

Q:     What is the retaliation? What retaliation was taken against
       you?

A:     That they found my cell phone wrapped in newspaper – in
       which they did not.

Q:     So you’re claiming that this report, multipurpose report, about
       your cell phone was written up in retaliation for you making
       complaints about handicap parking? Is that your claim?

A:     I sure do.

Q:     Who are these key people that you’re claiming were frustrated
       or annoyed with your complaints? You can’t identify them?

A:     I have no idea.

B:     So you . . . just are suspicious of that?

A:     Yes.

Q:     But you have no facts to support that suspicion, do you?

A:     No.

....

                                    -9-
      Q:       Okay. So do you think your termination was related in any
               manner to your complaints of handicap parking?

      A:       The first I understood the handicap – the complaints about
               handicap parking shouldn’t have had anything to do with my
               termination.

      Q:       Do you think that it did?

      A:       No.

White Dep. at 119-121; App. at 123-25.

      Ms. White filed a Charge of Discrimination with the Oklahoma Human

Rights Commission (“OHRC”) on October 23, 2009, alleging she had been

discriminated against based on her disability and her race, and that she had

suffered retaliation based on her complaints about the unavailability of

handicapped parking. On November 2, 2010, the OHRC issued a determination

concluding that “there is reasonable cause to believe that the complaint is true and

that the respondent has engaged in a discriminatory act as alleged.”

Determination; App. at 148. A “Case Summary,” also dated November 2,

described in some detail the circumstances surrounding Ms. White’s departure

from Rader. 1 Ms. White also provided a document titled “Interview Summary for

      1
          The Case Summary concluded by stating that:

      The evidence of record demonstrates that the complainant has a
      handicap parking decal and this was issued to her because of her
      mobility impairment. She repeatedly complained about her inability
      to obtain a handicap parking space at the site and the security
      department’s failure to enforce the parking rules so that those
                                                                      (continued...)

                                           -10-
Barbara Smith,” dated February 10, 2010, with the reference “OHRC 016-A10ED

Patricia White v. L.E. Rader.” App. at 156. The document purported to be a

summary of an interview of Ms. White’s supervisor, Ms. Smith, by an unknown

OHRC representative. The document includes the following exchange:

      6. Do you know of others here who have brought cell phones onto
      the property? If so, what happened with those persons? What were
      their races?

      Ms. Triplett had done this–as had Ms. Sherman. Smith said the
      management went back and did something to them after the disparate
      treatment was raised. Smith said they play favorites there and do not
      enforce the rules consistently. It really depends a lot on who’s down
      at the security gate and how well you know them?

Interview Summary at 2; App. at 157.

      Defendant (the State) filed a motion for summary judgment, arguing that

states enjoy Eleventh Amendment immunity from monetary damages brought by

employees for ADA violations, and that it “is entitled to judgment as a matter of


      1
       (...continued)
      without handicap parking stickers could not take those designated
      spaces. Further, upon learning of the situation, the respondent did
      not do anything to rectify the problem []or provide the complainant
      with an alternate parking solution that would’ve accommodated her
      disability. It is evident then that the respondent also failed in its
      duty to provide her with the reasonable accommodation she
      requested. Thus, the complainant was denied the reasonable
      accommodation and then discharged for an infraction that others who
      are white and/or have not complained of discrimination before had
      not been fired for doing previously. A clear pattern of disparate
      treatment is therefore apparent.

Case Summary at 2, App. at 150.

                                        -11-
law on each of [Ms. White’s] claims because [Ms. White] cannot establish that

she was unlawfully discriminated against or retaliated against by Defendant.”

Mot. for Summ. J. at 8-9; App. at 64-65. More specifically, the State averred that

Ms. White:

      cannot establish a prima facie case for disparate treatment to support
      her race discrimination claim, nor can [Ms. White] establish that
      Defendant’s decision to terminate [Ms. White] was due to her
      protected activity, i.e. complaints regarding handicapped parking.
      Instead, [Ms. White’s] own actions caused her termination when she
      attempted to commit a felony by trying to sneak a concealed phone
      into the L.E. Rader Center.

Id. at 9; App. at 65.

      The district court granted the State’s motion, concluding: (1) with respect

to her race discrimination claim, that the State “ha[d] come forward with a

legitimate nondiscriminatory reason for terminating her, i.e., that she violated

OJA policy prohibiting cell phones in penal institutions,” and Ms. White

presented no valid evidence of pretext; (2) with respect to her ADA claim, that

the State also “ha[d] proffered a legitimate nondiscriminatory reason for

terminating her, and White ha[d] failed to introduce admissible evidence that the

stated reason is pretext”; and (3) with respect to her retaliation claim, that “[Ms.]

White ha[d] failed to come forward with any admissible evidence of . . . a causal

connection between the protected activity and the material adverse action” and

that “the State proffered a legitimate, nondiscriminatory reason for [Ms. White’s]

termination.” Op. & Order at 13-15; App. at 205-07. Ms. White appeals.

                                         -12-
                                  DISCUSSION

      “We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284

(10th Cir. 2011). Summary judgment is appropriate “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). We view the summary

judgment evidence “in the light most favorable to the non-moving party.” Helm,

656 F.3d at 1284. “A fact is material if, under the governing law, it could have

an effect on the outcome of the lawsuit. A dispute over a material fact is genuine

if a rational jury could find in favor of the nonmoving party on the evidence

presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (internal

quotation marks omitted).

      Ms. White claimed discrimination on the basis of race and handicap, and

retaliation for complaints about the lack of handicapped parking, in violation of

Title VII, 42 U.S.C. §§ 2000e – 2000e-17, and the Americans with Disabilities

Act, 42 U.S.C. §§ 12101-12213 (“ADA”).



      I. Race Discrimination/ Title VII Claim:

      “A plaintiff proves a violation of Title VII either by direct evidence of

discrimination or by following the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792.” Khalik v. United Air Lines, 671 F.3d

                                        -13-
1188, 1192 (10th Cir. 2012). “[The] McDonnell Douglas . . . three-step analysis

requires the plaintiff first prove a prima facie case of discrimination.” Id. To

establish a prima facie case, Ms. White “must establish that (1) she is a member

of a protected class, (2) she suffered an adverse employment action, (3) she

qualified for the position at issue, and (4) she was treated less favorably than

others not in the protected class.” Id. If Ms. White makes out a prima facie case,

“[t]he burden then shifts to [the State] to produce a legitimate, non-discriminatory

reason for the adverse employment action.” Id. If the State meets that burden,

“the burden then shifts back to [Ms. White] to show that her protected status was

a determinative factor in the employment decision or that the employer’s

explanation is pretext.” Id.

      “To show pretext, [Ms. White] must produce evidence showing weakness,

implausibility, inconsistency, incoherency, or contradiction in [the State’s] stated

reasons, such that a reasonable jury could find them unconvincing.” Debord v.

Mercy Health System of Kansas, Inc., 737 F.3d 642, 655 (10th Cir. 2013) (further

quotation omitted). Further, in making the determination “whether the proffered

reason for a decision was pretextual, we examine the facts as they appear to the

person making the decision, not as they appear to the plaintiff.” Id. Finally, “we

do not ask whether the employer’s proffered reasons were wise, fair or correct;

we ask only whether [the State] honestly believed those reasons and acted in good

faith upon those beliefs.” Id. (further quotation omitted).

                                         -14-
      As the district court noted, the State has conceded the first two elements of

the prima facie case, in that Ms. White, an African-American, claims she was

terminated (i.e., suffered an adverse action) because of her race. The

disagreement lies in the third element of the prima facie case—disparate

treatment. As the district court further observed, on this point Ms. White alleged

that “[a] couple of other people, not black or handicapped, were found at the

security gate with cell phones about the same time as Plaintiff. They were

disciplined only after Plaintiff and her supervisor complained about disparate

treatment for Plaintiff.” Pl.’s Resp. to Mot. for Summ. J. ¶ 9; App. at 138-39. To

support this claim, Ms. White relied upon her Charge of Discrimination, the Case

Summary, and the Interview Summary. She also relied upon those documents, as

well as the OHRC Determination, for her allegation that OJA’s stated reason for

terminating her (bringing the cell phone into the Rader facility) was pretextual.

Thus, as the district court further observed, the admissibility and the significance

of the OHRC Determination and related documents is a critical issue.

       Ordinarily, the decision at trial of whether to admit a report like that of the

OHRC in this case is left to the sound discretion of the trial court. Hall v.

Western Prod. Co., 988 F.2d 1050, 1057 (10th Cir. 1993) (citing Perrin v.

Anderson, 784 F. 2d 1040, 1046-47 (10th Cir. 1986)); Paolitto v. John Brown E.

& C.,Inc., 151 F. 3d 60, 65 (2d Cir. 1998) (“Most circuits that have considered

the issue have left the question of whether to admit EEOC or state-agency

                                         -15-
findings to the sound discretion of the district court.”). As we stated in Hall,

“[t]his court has held that, in civil actions, agency reports are admissible under

Fed. R. Evid. 803(8)(C) if they are prepared pursuant to authority granted to the

agency by law and are trustworthy.” Hall, 988 F.2d at 1057-58. “This rule covers

both factual findings and ‘conclusions and opinions found in evaluative reports of

public agencies.’” Id. at 1058 (quoting Perrin, 784 F.2d at 1047). The district

court retains discretion, nonetheless, “to determine when otherwise relevant, thus

admissible, evidence should be excluded” under Fed. R. Evid. 403. Id. In Hall,

we approved the district court’s determination to exclude the state agency report

and related materials, stating that “all the evidentiary matter before [the state

agency] could be presented to the jury in some other form or fashion and,

therefore, the only purpose to be served by admitting into evidence the [state

agency] report would be to suggest to the jury it should reach the same conclusion

as [the state agency].” Id.

      In deciding whether to admit and consider the OHRC Determination and

related materials, the district court also relied upon our decision in Simms v.

Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1331 (10th

Cir. 1999). In Simms, we affirmed the grant of summary judgment to the

defendant/employer, rejecting the plaintiff’s argument that a favorable letter of

determination by the EEOC established a material issue of fact about whether the

employer’s proffered reason for denying him a promotion was pretext. We stated:

                                         -16-
      Finally, [the Plaintiff] makes much of the fact that the EEOC had
      issued a favorable letter of determination regarding his claim of race-
      based failure to promote, and that he had presented the letter to the
      district court. However, when the independent facts before the
      district court judge fail to establish a genuine issue of material fact, a
      favorable EEOC letter of determination does not create one.

Id. at 1331; see also, Dinse v. Carlisle FoodService Prods., Inc., No. 12-6178,

2013 WL 5930804 (10th Cir. Nov. 6, 2013) (unpublished) (same); Konzak v.

Wells Fargo Bank, 492 Fed. Appx. 906, 908 n.1 (10th Cir. Aug. 1, 2012)

(unpublished) (same) 2; Septimus v. Univ. of Houston, 399 F.3d 601, 610 (5th Cir.

2005) (holding that an EEOC “reasonable cause” determination letter did not

constitute evidence precluding summary judgment when the other evidence was

insufficient to create a genuine issue of material fact).

      After examining the above authorities, the district court decided not to

consider the OHRC documents in ruling on the State’s motion for summary

judgment. We agree with that decision. We further agree with the following

statement of a federal district court which observed, in reliance on Simms:

      the Court adjudicates the motion for summary judgment based on the
      presentation of independent facts by both sides, where relevant and
      admissible. As stated below, the Court concludes that Plaintiff fails
      to establish a genuine issue of material fact based on this
      independent evaluation, and like Simms, the Colorado Civil Rights
      Commission’s determination does not create one.



      2
       While we normally do not cite unpublished decisions as expressions of
court authority, we cite these unpublished cases because they reiterate established
Tenth Circuit authority.

                                         -17-
Makeen v. Comcast of Colorado X, LLC., 2011 WL 3300392, at *6 (D. Colo.

May 6, 2011) (unpublished).

         The district court accordingly addressed and resolved Ms. White’s

argument as follows:

                Here, as in Simms and Makeen, White relies solely on the
         OHRC determination and related documents to support her claims of
         disparate treatment and pretext. She has presented no independent
         evidence (other than her own belief) of disparate treatment based on
         race. McElroy, who submitted the Multipurpose Report on her, is
         black. Two other individuals caught trying to sneak cell phones were
         either banned from the facility (in the case of Triplett, the white
         school teacher) or fired (in the case of Chance, the black employee
         caught in September 2009).

                Even if plaintiff had presented evidence establishing a prima
         facie case, defendant has come forward with a legitimate
         nondiscriminatory reason for terminating her, i.e., that she violated
         OJA policy prohibiting cell phones in penal institutions. And
         White’s only “evidence” of pretext is the OHRC determination and
         related documents. Therefore, defendant is entitled to summary
         judgment on the race discrimination claim.

Op. & Order at 13; App. at 205. We agree fully with the district court’s analysis

of the evidence relevant to the motion for summary judgment. The State

accordingly is entitled to summary judgment on Ms. White’s race discrimination

claim.

         II. ADA Discrimination Claim:

         “To state a prima facie case for discrimination under the ADA, [Ms. White]

must establish that: (1) she is disabled; (2) she was qualified, with or without

reasonable accommodation, to perform the essential functions of her job; and (3)

                                           -18-
her employer discriminated against her because of her disability.” Robert v.

Board of Cnty. Comm’rs, 691 F.3d 1211, 1216 (10th Cir. 2012); Taylor v. Pepsi-

Cola, 196 F.3d 1106, 1109 (10th Cir. 1999). Once again, the State does not

dispute the first two elements of the prima facie case. The only dispute relates to

the third element—whether she presented any evidence of discrimination based on

her disability. On this point, we again agree with the district court that she failed

to present any evidence of discrimination. The district court accordingly

correctly granted summary judgment to the State on this claim.



      III. Retaliation Claim:

      Ms. White’s final claim is that she was terminated because she complained

about the lack of handicapped parking and was thus subject to a retaliatory

dismissal. The ADA prohibits “discriminat[ion] against any individual because

such individual has opposed any act or practice made unlawful by this chapter”

and “interfere[nce] with any individual in the exercise or enjoyment of . . . any

right granted or protected by this chapter.” 42 U.S.C. § 12203(a) and (b). To

establish a prima facie case of retaliation under the ADA, Ms. White must show

“(1) that she engaged in protected activity; (2) that she suffered a materially

adverse action by [the State] either after or contemporaneous with her protected

activity; and (3) a causal connection between the protected activity and the




                                         -19-
adverse action.” Reinhardt v. Albuquerque Pub. Schools Bd., 595 F.3d 1126,

1131 (10th Cir. 2010); Proctor v. UPS, 502 F.3d 1200, 1208 (10th Cir. 2007).

      As the district court found, the only potentially disputed issue is the third

element—a causal connection between her complaints about handicapped parking

and her termination. Ms. White has once again failed to present any admissible

evidence on this point: she submitted no complaints in writing; she could not

identify the security personnel to whom she claimed she made verbal complaints;

Ms. McElroy and Ms. Whitehead both testified that they never heard her make

such complaints; Ms. White herself testified that she had no reason to believe that

Mr. Moriarty’s recommendation of termination was related at all to her

complaints about handicapped parking. Indeed, she testified that she did not

think Mr. Moriarty was even aware of her complaints about handicapped parking.

      In short, the district court correctly summed up the only possible evidence

supporting Ms. White’s claim: “[t]he only admissible evidence White has

submitted that could conceivably link her discharge to complaints about

handicapped parking is her testimony that when she came in on the morning of

August 7, she complained to [Ms. Whitehead] about having to park far away. But

she also admitted she did not specifically complain about lack of handicapped

parking. This scintilla of evidence is insufficient to rescue her claim from

summary judgment.” Op. & Order at 15; App. at 207.




                                         -20-
      We accordingly affirm the district court’s grant of summary judgment to

the defendant, the State, on Ms. White’s retaliation claim.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment.

                                               ENTERED FOR THE COURT

                                               Stephen H. Anderson
                                               Circuit Judge




                                        -21-
