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

                                 TENTH CIRCUIT                             February 24, 2015
                        ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LINDA TATOM,

       Plaintiff - Appellant,
                                                             No. 14-6125
v.                                                   (D.C. No. 5:13-CV-00037-W)
                                                            (W.D. Okla.)
RES-CARE, INC., d/b/a Guthrie Job Corp
Center,

       Defendant - Appellee.
                     ____________________________________

                            ORDER AND JUDGMENT*
                       ____________________________________

Before KELLY, BALDOCK, and PHILLIPS, Circuit Judges.
                ____________________________________

       Plaintiff Linda Tatom, while a teacher at Guthrie Job Corps Center (“GJCC”),

refused to return to work after an altercation with a GJCC trainee. Defendant Res-Care,

which operates GJCC, deemed Tatom’s prolonged absence a voluntary resignation and

terminated her. Tatom sued, claiming age discrimination in violation of federal law and

wrongful discharge in violation of Oklahoma law. The district court granted summary

judgment to Res-Care. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
  This order and judgment is not binding precedent, except under the doctrines of law of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.

       GJCC is a federal program administered by the United States Department of Labor

(“DOL”) that provides no-cost vocational and academic training to people ages 16 to 24.

GJCC is federally funded and governed by DOL Guidelines. It does not receive any

funding from the state of Oklahoma or the Oklahoma Department of Education (“ODE”).

GJCC’s primary focus is providing technical training; however, it also offers trainees the

opportunity to earn a GED or high school diploma.         In order to offer high school

diplomas, GJCC must submit annually to ODE a form titled “Application for

Accreditation: Charter School.”

       Res-Care is a private for-profit company that operates GJCC pursuant to a contract

with the DOL. In 2006, Res-Care hired Tatom, then age 56, as an at-will employee at

GJCC. Tatom taught various courses at GJCC until October 28, 2011, when she was

involved in an altercation with C.F., a male GJCC trainee. The facts underlying this

altercation are in dispute, but not material. According to Tatom, C.F. “bolted at” her

“and got nose to nose with” her. Tatom then used her clipboard to protect her face, but

C.F. hit the clipboard which in turn hit Tatom’s face. C.F. then told Tatom “on blood, I

am going to kill you.” Tatom filled out an incident report and a separate type-written

statement concerning this altercation the same day, but Tatom did not fill out the section

of the incident report that asked her to identify whether C.F.’s actions amounted to a

Level I infraction, requiring immediate separation from GJCC, or a lesser Level II

infraction. Then, after declining an offer for a ride home, Tatom was permitted to leave

for the day.

                                           -2-
      On various occasions between October 30 and November 4, 2011, Tatom spoke by

phone to Donna Betchan, GJCC’s academic manager, and Amber Bedick, GJCC’s human

resources manager. Betchan and Bedick told Tatom during these calls that she needed to

return to work. Tatom never requested a leave of absence; rather, she informed Betchan

and Bedick that she would not return to GJCC as long as C.F. was on the premises.

      On Friday, November 4, 2011, Bedick sent Tatom a letter informing her that she

was “in violation of [GJCC]’s policy #7.1–12 of job abandonment.” The letter also

informed Tatom that she “ha[d] until Wednesday, November 9, 2011 at 8:00 a.m. to

report to the Human Resources office,” and that if she did not report, Res-Care would

classify her actions as “job abandonment” and report them as a “voluntary resignation.”

      On Monday November 7, Tatom sent an email to GJCC Director Priscilla

Mayberry and copied Bedick, among others. Tatom’s email first asserted that GJCC was

“not in compliance with” the Oklahoma School Protection Act (“OSPA”), particularly

that section of the OSPA “concerning student violence.” Tatom also acknowledged in

this email that Friday, November 4, was her “third unexcused day not to report to

school,” and that Bedick had told her on November 4 that she needed “to come to HR on

Monday, November 7 to sign papers for ‘disciplinary action up to termination.’” Tatom

concluded this email by asking for her appointment time to see HR, but also restated that

she would not come to GJCC “at all” if C.F. was still on the premises.

      Tatom, then age 61, did not report to GJCC’s Human Resources office on

Wednesday, November 9.       In response, Bedick, Betchan, and Mayberry terminated

Tatom and listed violations of company Policies 7.1(A)(11)–(12) as the “Reason for the

                                           -3-
Action.”1 Res-Care initially used substitute teachers to fill the void left by Tatom but

eventually assigned two preexisting teachers—Doug Ford, then age 56, and Jill Zimmer,

then age 53—to take over Tatom’s teaching duties. GJCC disciplinarily discharged C.F.

on November 14, 2011.

       Tatom sued Res-Care on January 9, 2013 claiming (1) age discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”), and (2) retaliatory

wrongful discharge in violation of Oklahoma public policy. The district court granted

summary judgment to Res-Care on both claims. Tatom then filed a motion to alter or

amend the judgment under Rule 59(e), which the district court denied.

                                            II.

       “We review the district court’s order granting summary judgment de novo.”

Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). We do not

judge witness credibility or weigh evidence. Rather, we view the facts in the light most

favorable to the non-moving party, drawing all reasonable inferences in her favor. A

grant of summary judgment is proper only if there is no genuine dispute as to any

material fact, and the evidence is such that no reasonable jury could find in favor of the

non-moving party. Id.



1
  Policy 7.1 generally lists “actions which will be . . . subject to corrective action up to
and including termination of employment.” Policy 7.1(A)(11) lists “unauthorized
absence from the work area” as one such action. Policy 7.1(A)(12) lists “[u]nreported
absence of two (2) consecutive scheduled work days without directly notifying the
supervisor on duty,” as another such action and provides that “[t]his form of separation
will be considered as job abandonment (extenuating circumstances may be considered)
and reported as a voluntary resignation.”
                                            -4-
                                             III.

       Tatom admits both of her claims on appeal depend on GJCC being a “school”

subject to the OSPA. As such, we address this issue first. Tatom argues GJCC is subject

to the OSPA because it is a charter school. The district court, however, held that as a

matter of law GJCC was not a charter school. We agree.

       The OSPA defines a “school” as either (1) “a public school district,” (2) a

“governmental entity that employs teachers,” or (3) a “private kindergarten, elementary,

or secondary school.” Okla. Stat. Ann. tit. 70, § 6-149.3(2). Tatom conclusorily asserts

in her brief that, based on the “plain language of the [O]SPA, GJCC is a school.” Yet she

nowhere attempts to establish which of these three categories GJCC should fall into, let

alone why. “Conclusory legal statements cannot preclude summary judgment.” Nahno-

Lopez v. Houser, 625 F.3d 1279, 1285 (10th Cir. 2010).2

       Indeed, rather than analyze the nature of GJCC under the language of § 6-

149.3(2), Tatom relies on two facts not discussed in that subsection to assert that GJCC is


2
   Even were we to entertain this conclusory legal statement, the record lacks sufficient
evidence to determine how GJCC would qualify as a school under the OSPA. First,
GJCC is clearly not a public school district. Moreover, Tatom makes no effort to
establish that GJCC is a governmental entity. Rather, GJCC is part of federal program
operated by Res-Care, a private for-profit entity. See 29 U.S.C. § 2887(a)(1)(A) (“The
Secretary shall enter into an agreement with a Federal, State, or local agency, an area
vocational education school or residential vocational school, or a private organization,
for the operation of each Job Corps center.” (emphasis added)). Finally, Tatom provides
no evidence that GJCC is a “private . . . secondary school” under Oklahoma law. A
private school is a “privately owned . . . entity,” Okla. Stat. Ann. tit. 70, § 21-101, and we
see nothing in the record to establish that GJCC is itself privately owned, by Res-Care or
anyone else. All the record establishes is that GJCC is part of a federal program,
overseen and administered by the DOL, and operated by a private for-profit organization.
This is not enough to establish that GJCC is a school as defined in the OSPA.
                                             -5-
a school under the OSPA: first, that GJCC annually files a form with the ODE entitled

“Application for Accreditation: Charter School,” and second, that GJCC confers GEDs

and high school diplomas. On these facts alone, Tatom concludes that GJCC must be an

Oklahoma charter school and therefore must be subject to the OSPA. We disagree.

       Oklahoma charter schools are governed by the Oklahoma Charter Schools Act

(“OCSA”). Okla. Stat. Ann. tit. 70, §§ 3-130 to 3-143. Under this act, charter schools

must “comply with all federal regulations and state and local rules and statutes relating to

health, safety, civil rights and insurance.” Id. at § 3-136(A)(1). Moreover, charter

schools are “to the extent possible . . . subject to the same reporting requirements . . . as a

school district.” Id. at § 3-136(A)(6). Significantly, however, the OCSA applies “only to

charter schools formed and operated under the provisions of [the OCSA].” Id. at § 3-

132(A). Moreover, the OCSA defines “charter school” as

       a public school established by contract with [1] a board of education of a
       school district, [2] an area vocational-technical school district, [3] a higher
       education institution, [4] a federally recognized Indian tribe, or [5] the State
       Board of Education pursuant to [OCSA] to provide learning that will
       improve student achievement and as defined in the Elementary and
       Secondary Education Act of 1965, 20 U.S.C. 8065.

Id. at § 3-132(B).

       Tatom appears to argue that, by annually filling out and submitting to ODE the

“Application for Accreditation: Charter School” form, GJCC became “a public school

established by contract with . . . the State Board of Education.” Not so. GJCC was not

established by contract with the Oklahoma State Board of Education. Rather, GJCC is

part of a federal program, established by federal law, administered by the DOL, and


                                             -6-
operated by a private company through a contract with the DOL. GJCC annually fills out

this accreditation application for the sole purpose of offering high school diplomas to its

trainees in accordance with published federal guidelines and policies. Finally, lest any

doubt remain, Oklahoma itself does not identify or recognize GJCC, or any other Job

Corps for that matter, as a charter school subject to ODE requirements. See Current

Charter   Schools    of   Oklahoma,    Oklahoma      State    Department   of   Education,

http://www.ok.gov/sde/current-charter (last visited Feb. 17, 2015).

       In sum, Tatom has failed to provide sufficient evidence, even drawing all

inferences in her favor, to establish that GJCC is a school subject to the OSPA, either

under the language of the OSPA itself, or as a charter school.

                                           IV.

       Given that GJCC is not a school subject to the OSPA or OCSA, Tatom’s ADEA

and retaliatory wrongful discharge claims fall flat. We address each in turn.

                                            A.

       Under the ADEA, an employer may not “discharge any individual . . . because of

such individual’s age.”     29 U.S.C. § 623(a)(1).           Tatom acknowledges her age

discrimination claim is based entirely on circumstantial evidence, thus, the burden-

shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–05 (1972), applies. Under this framework, Tatom must first establish a prima facie

case of discrimination by showing (1) membership in a protected class and (2) an adverse

employment action that (3) took place under circumstances giving rise to an inference of

discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). If Tatom

                                            -7-
can establish a prima facie case, the burden shifts to GJCC to assert a legitimate

nondiscriminatory reason for its actions. If it can do so, the burden shifts back to Tatom

to introduce evidence that the stated nondiscriminatory reason is merely a pretext for

discriminatory intent. Daniels, 701 F.3d at 627.

       The district court found Tatom had established a prima facie case of age

discrimination because Tatom was in a protected age group, was qualified to perform her

duties and was doing so satisfactorily until the C.F. altercation, was fired by Res-Care,

and was replaced by younger employees. We assume without deciding that Tatom has

established a prima facie case of age discrimination. See Aramburu v. Boeing Co., 112

F.3d 1398, 1403 (10th Cir. 1997).

       Turning to the second step of the McDonnell Douglas framework, the district

court found Res-Care had established a legitimate nondiscriminatory reason for its action.

We agree. The record amply supports Res-Care’s proffered nondiscriminatory reason for

discharging Tatom. Tatom missed eight consecutive workdays following her altercation

with C.F. and admitted in her November 7 email that at least three of these absences were

unexcused. Furthermore, Tatom failed to report to Human Resources on November 9,

2011, even though she had been notified in writing that failure to do so would be treated

as a voluntary resignation.

       This brings us to the third step of the McDonnell Douglas framework, under which

the burden shifts back to Tatom, who must show that Res-Care’s stated reasons were a

pretext for its discriminatory intentions. The district court found Tatom had failed to

introduce evidence that Res-Care’s nondiscriminatory reason was merely pre-textual.

                                           -8-
Again, we agree. In order to demonstrate pretext, Tatom must produce “evidence of such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Res-

Care’s] proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence and hence infer that [Res-Care] did not act for

the asserted non-discriminatory reasons.” Jaramillo v. Colorado Judicial Dep’t, 427 F.3d

1303, 1308 (10th Cir. 2005). Tatum asserts Res-Care’s proffered explanation for her

termination is unworthy of credence because (1) Res-Care violated its own Policy and

Practice Manual in terminating her, (2) GJCC underplayed the severity of C.F.’s

infractions, (3) Res-Care failed to handle C.F.’s infractions in a timely fashion, and (4)

Res-Care and GJCC employees and former employees lied in an attempt to cover up the

real reason for her termination. None of these assertions hold water.

      “It is well-established that pretext can be shown by evidence that the defendant

acted contrary to a written company policy prescribing the action to be taken by the

defendant under the circumstances.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106,

1119 (10th Cir. 2007). Tatom believes Res-Care acted contrary to written company

policies that authorized and excused her concededly “excessive absenteeism,” but her

two-pronged argument on this point misapprehends both the applicable law and the

applicable company policies. First, Tatom points out that Res-Care’s Policy 7.2(B) states

“[a]uthorized absences are defined by . . . applicable state/provincial laws,” among other

things. But this argument misapprehends the law. Tatom relies solely on the OSPA,

specifically Okla. Stat. Ann. tit. 70, § 6-149.8, to “authorize” her absences; however, as

we explained above, the OSPA does not apply to GJCC. Thus, Policy 7.2(B) gets Tatom

                                           -9-
nowhere. Second, Tatom argues Res-Care’s written policy mandates Res-Care “shall”

consider extenuating circumstances but Res-Care did not consider the circumstances

related to her altercation with C.F. before terminating her. This argument misapprehends

Res-Care’s policies. The policies Tatom was charged with violating do not require Res-

Care to consider extenuating circumstances.       Policy 7.1(A)(11) says nothing about

extenuating circumstances, and Policy 7.1(A)(12) says only that “extenuating

circumstances may be considered.” (emphasis added). On the other hand, the policies

Tatom relies on to mandate consideration of extenuating circumstances do not apply

directly to her case. For example, Policy 7.2(C) relates not to the justification for an

absence, but to an employee’s failure to timely report that absence. Moreover, although

Policy 7.2(I) states that Res-Care will consider the reasons employees give to justify their

absences, it then refers back to Policy 7.2(B) which lists the reasons that may justify an

absence. Tatom’s proffered reason (fear based on an altercation with a trainee) does not

appear on that list. Tatom also argues that Res-Care violated Policy 7.2(K) because that

policy defines “job abandonment” as “when an employee is absent for two (2)

consecutive scheduled work days without prior notice . . .” and Tatom gave notice to both

Betchan and Bedick that she would not return to GJCC as long as C.F. was on center.

What Tatom fails to acknowledge, however, is that Policy 7.2(K) applies to absences

“without prior notice to or approval from his/her immediate supervisor,” (emphasis

added), and Tatom admits she never requested a leave of absence, let alone received

approval for her absences.



                                           -10-
       Tatom goes on to assert that other actions surrounding the C.F. altercation prove

Res-Care did not act in good faith in terminating her. We disagree. Tatom asserts that

GJCC should have classified C.F.’s actions against her as a Level I infraction, which

requires automatic separation, but instead “falsified” its incident report by labeling C.F.’s

actions as a less severe Level II infraction. But Tatom’s own incident report fails to

specify whether C.F.’s infraction was a Level I or a Level II infraction, even though the

report form clearly provides boxes to indicate the alleged infraction level. Given that

even Tatom did not initially identify C.F.’s infraction level, we cannot fault Res-Care or

GJCC for not applying the classification Tatom later decided should have applied.

       Tatom also asserts GJCC failed to immediately submit the C.F. reports to the

Behavior Modification Officer (“BMO”) as required by its zero tolerance policy for

student violence. Rather, she believes her November 7 email is the only reason C.F.’s

actions were reported. Even assuming GJCC did not submit the C.F. altercation to the

BMO until after Tatom sent her November 7 email, however, the zero tolerance policy

Tatom relies on states that it is for the benefit of GJCC trainees, not GJCC staff like

Tatom. As such, any shortcomings in Res-Care’s implementation of this zero tolerance

policy are not so intertwined with the reasons for Tatom’s termination as to raise a

genuine question of pretext. Tatom contends that, had Res-Care immediately followed its

zero tolerance policy, C.F. might have been discharged by November 9, and thus Tatom

would have felt safe returning to GJCC before the deadline listed in Bedick’s letter. But

the record belies this contention. Bedick’s November 4 letter to Tatom informed her that

she needed to return only to GJCC’s Human Resources office by November 9 to avoid

                                            -11-
voluntary resignation. Even if C.F. was still on center at the time, we see no reason why

he would be at the Human Resources office. Furthermore, Tatom acknowledges that if

she truly did fear coming to GJCC because of C.F., she could have asked one of the

employees at GJCC’s security gate to escort her to Human Resources, but she did not.3

      In any event, “the pertinent question in determining pretext is not whether the

employer was right to think the employee engaged in misconduct, but whether that belief

was genuine or pretextual.” Pastran v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir.

2000) (alterations and quotation marks omitted). Indeed, “the issue is not whether the

decision to terminate [Tatom] was wise, fair or correct, but whether [Res-Care]

reasonably believed at the time of the termination that [Tatom] had violated company

policy, and acted in good faith upon that belief.” Timmerman, 483 F.3d at 1120.

      In sum, Res-Care may not have applied its policies as prudently as possible to

Tatom’s case, but that is not the question before us. Tatom missed eight consecutive

workdays (at least three of which were concededly unexcused absences) without ever

requesting a leave of absence.     Moreover, she failed to report to GJCC’s Human

Resources office by November 9 even though Bedick had notified her in writing that such

failure would be treated as a voluntary resignation. These actions gave Res-Care reason

to genuinely believe Tatom had violated its company policy and to terminate her in good

faith under that policy.   Although Tatom may have provided grounds on which to

3
  Finally, to the extent Tatom now argues that current and former Res-Care employees
lied to cover up the real reason for her termination, Res-Care points out that this issue
was not raised below, and Tatom does not point to any place in the record that shows she
made such an argument below. As such, this argument is waived. Wilburn v. Mid-S.
Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003).
                                          -12-
question the prudence with which Res-Care handled the situation stemming from her

altercation with C.F., she “has not created a genuine issue concerning the sincerity of the

proffered reasons for her termination.” Cone v. Longmont United Hosp. Ass’n, 14 F.3d

526, 530 (10th Cir. 1994). As such, Tatom has failed to introduce sufficient evidence to

indicate pretext, and the district court properly granted summary judgment to Res-Care

on her ADEA claim.

                                            B.

      Tatom also asserts that Res-Care wrongfully terminated her in retaliation for her

November 7 email, which reported what she believed were violations of the OSPA. The

district court concluded that, “even assuming [Oklahoma law] does not preclude Tatom’s

whistleblower/retaliation claim,” Tatom was not entitled to relief because, among other

things, GJCC was not a “school” subject to the OSPA. Thus, Tatom’s allegations of

OSPA violations could not serve as the basis for a whistleblower claim. We agree. As

we explained above, GJCC is not a charter school or otherwise subject to the OSPA.

Moreover, Tatom has not identified any other applicable law that Res-Care may have

been violating. Accordingly, as there was nothing for Tatom to blow the whistle on, her




                                           -13-
wrongful termination whistleblower/retaliation claim fails.4

      AFFIRMED.

                                         Entered for the Court,


                                         Bobby R. Baldock
                                         United States Circuit Judge




4
  Because we agree that Tatom’s wrongful termination claim fails because GJCC is not
subject to the OSPA, we do not address the district court’s alternative holdings on the
issue.
                                           -14-
