                                                                                F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 APR 23 2004
                              FOR THE TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk


    KIMBERLY S. RENNER-WALLACE;
    MICHELE C. MCCABE,

                 Plaintiffs-Appellants,
                                                              No. 03-3125
    v.                                                 (D.C. No. 01-CV-1135-JAR)
                                                                (D. Kan.)
    CESSNA AIRCRAFT COMPANY,

                 Defendant-Appellee.


                               ORDER AND JUDGMENT               *




Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.


         In this action brought pursuant to Title VII and the       Kansas Act Against

Discrimination, Kan. Stat. Ann. § 44-1001, 1 plaintiffs Kimberly S. Renner-


*
   After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 36.3.
1
  Renner-Wallace and McCabe withdrew their claim under the Kansas Act
Against Discrimination in their reply to defendant’s motion for summary
judgment.
Wallace and Michele C. McCabe appeal the district court’s grant of defendant

Cessna’s motion for summary judgment.           Exercising jurisdiction under 28 U.S.C.

§ 1291, we AFFIRM.

       Renner-Wallace’s employment by Cessna required that she work around

keotone. Because of keotone’s highly flammable nature, Cessna discouraged

employees working with it from wearing certain types of nylon sweat pants at

work; nonetheless, Renner-Wallace chose to wear nylon pants on several

occasions. This led her crew chief to tell her not to wear nylon pants due to

safety concerns. Renner-Wallace contends that he also told her either that he

liked her better with her pants off or that he liked her better in shorts.   2
                                                                                 She

reported those alleged comments to McCabe, her union steward, and a meeting

was held with the two women, the crew chief, and the department foreman. At

the meeting, the department foreman warned Renner-Wallace not to wear nylon

pants in the workplace and admonished the crew chief to not make inappropriate

comments, a charge the crew chief denied.

       Subsequently Cessna conducted an internal investigation into Renner-

Wallace’s version of events. The company investigation failed to reveal evidence



2
  Renner-Wallace alleged that she had experienced other incidents of sexual
harassment by her crew chief. However, she admitted she never reported these
incidents to either her union steward or any supervisor. Cessna first learned of
the other alleged incidents when it received her EEOC complaint.

                                              -2-
supporting her sexual harassment claim. Instead, the very employees Renner-

Wallace identified as witnesses to the incident failed to support her account of the

conversation with the crew chief. Ultimately, Cessna’s investigator concluded

that insufficient evidence was presented to support Renner-Wallace’s sexual

harassment claim.

      Thereafter, Cessna received information indicating that Renner-Wallace

and McCabe may have fabricated the sexual harassment allegation. Cessna

initiated an internal investigation, which revealed several employees who offered

evidence supporting a conclusion that Renner-Wallace and McCabe had fabricated

the sexual harassment charge. After the completion of this investigation, Cessna

officials met to discuss the situation. At that meeting, company officials received

reports regarding both the sexual harassment and fabrication investigations, and

Renner-Wallace and McCabe were allowed to respond to the charge of

fabrication. Following the meeting, Cessna officials decided to terminate the two

women for breach of trust in falsifying reports of sexual harassment.

      Renner-Wallace and McCabe then sued Cessna in state court for sexual

harassment, discrimination, and constructive discharge. In their complaint, they

alleged both that Cessna had retaliated against them due to their sexual

harassment claim, and that they had been constructively discharged. Cessna

removed the case to federal court and moved for summary judgment on the


                                         -3-
grounds that: (1) plaintiffs had failed to establish a prima facie case of sexual

harassment ; and (2) even if they had established a prima facie case, Cessna had

presented a nonpretexual reason for its actions.

      Finding that Renner-Wallace and McCabe had failed to establish a prima

facie case of a sexually hostile work environment, the district court granted

Cessna’s summary judgment motion. Although the court assumed for the

purposes of the summary judgment motion that plaintiffs had established a prima

facie case of retaliation, it concluded that Cessna had articulated a

nondiscriminatory reason for the women’s termination; because Renner-Wallace

and McCabe failed to demonstrate that the company’s proferred reason was

pretextual, their retaliation claim also failed.

      “We review a grant of summary judgment de novo and apply the same

legal standard used by the district court under Fed. R. Civ. P. 56(c).” Timmons

v. White, 314 F.3d 1229, 1232 (10th Cir. 2003). Rule 56(c) provides that

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.”

      In considering Title VII discrimination claims, including retaliation claims

such as this, we employ the burden-shifting analytical framework first introduced


                                           -4-
in McDonnell Douglas Corp. v. Green       , 411 U.S. 792, 802–04 (1973). Discharged

employees must first establish a prima facie case of retaliation.   Doebele v.

Sprint/United Mgmt Co. , 342 F.3d 1117, 1135 (10th Cir. 2003)       (applying the

McDonnell Douglas framework). Once a prima facie case has been established,

the defendant must proffer a legitimate, nondiscriminatory reason for terminating

the plaintiff.   Id. If the defendant proffers a legitimate, nondiscriminatory reason

for its action, then the burden shifts back to the plaintiff to demonstrate that the

defendant’s reason was pretextual.      Id.

       We, like the district court below, will assume for the purposes of this

appeal that Renner-Wallace and McCabe established a prima facie case of

retaliation for having reported alleged sexual harassment. In response to the

plaintiffs’ retaliation case, Cessna stated that it did not terminate Renner-Wallace

and McCabe in retaliation for lodging their complaint of sexual harassment, but

rather because its investigation revealed that they had fabricated their complaint.

Accordingly, the burden shifted back to Renner-Wallace and McCabe: “w         hen a

defendant articulates a reason for terminating the plaintiff’s employment,

establishing a prima facie case is not sufficient to avoid summary judgment.

Instead, the plaintiff must offer evidence that the defendant’s reason is a pretext

for discrimination.” Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260

(10th Cir. 2001).


                                              -5-
      On appeal, Renner-Wallace and McCabe argue that they rebutted Cessna’s

proffered reason for its actions. First, they contend that they established that the

crew chief sexually harassed Renner-Wallace and that the company conducted a

sham investigation into their sexual harassment charge. They also insist that only

a weak inference supported Cessna’s conclusion that Renner-Wallace and

McCabe had fabricated the sexual-harassment allegation. As a result, they

contend, the district court erred in granting summary judgment to Cessna.

      Contrary to plaintiffs’ position, the record demonstrates that Cessna’s first

investigation revealed no evidence supporting Renner-Wallace’s sexual

harassment allegation, despite interviews with several witnesses Renner-Wallace

claimed would support her version of events. However, the company’s

investigation into the possibility that Renner-Wallace and McCabe had fabricated

the accusation against the crew chief revealed four witnesses whose testimony

corroborated that allegation.

      When assessing a contention of pretext, we examine the facts as they
      appear to the person making the decision to terminate [the] plaintiff.
      We may not second guess the business judgment of the employer.
      Instead, the relevant question is whether the reason articulated by the
      employer was the real reason for the challenged action.

Selenke, 248 F.3d at 1261 (quotation and citations omitted).




                                          -6-
We hold that Cessna presented a supported business reason for terminating

plaintiffs and that Renner-Wallace and McCabe failed to show that the reason was

pretextual.

      The judgment of the district court is     AFFIRMED .


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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