                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 23, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

    G A BRIELLE SM ITH ,

               Plaintiff-Appellant,                    No. 05-5116



          v.                                        (N. D. Oklahoma)
    STATE OF OKLA HO M A EX REL.              (D.C. No. 03-CV-777-EA(C))
    TULSA COUN TY DISTRICT
    A TTO RN EY ,

               Defendant-Appellee.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, Circuit Judges, and R OBIN SO N, District Judge. **


        Gabrielle Smith worked as an investigator with the Tulsa County District

Attorney’s Office from 1997 until November 8, 2002, when she was discharged

by District Attorney Tim Harris. As grounds for his decision, M r. Harris




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   This order and judgment is not binding precedent except under the doctrines of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


**
 The Honorable Julie Robinson, United States District Judge for the District of
Kansas, sitting by designation.
explained that his office had suffered budget cuts and that, as a result, he was

forced to discharge several employees w hose performance was deficient,

including M s. Smith.

      Following her discharge, M s. Smith filed this wrongful termination action

against the Tulsa County District Attorney’s Office, alleging gender

discrimination claims under (1) Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e to 2000e-17, and (2) Oklahoma law. The district

court granted summary judgment to the District Attorney’s Office on both claims.

      M s. Smith now contends that she was performing her job adequately and

that the reasons offered by M r. Harris for her discharge were pretexts for gender

discrimination. As to her Oklahoma w rongful discharge claim, she contends that

she should be allowed to proceed to trial because Title VII is not an adequate

remedy. For the reasons set forth below , we are not persuaded by M s. Smith’s

arguments, and we therefore affirm the district court’s decision.



                                 I. BACKGROUND

      M s. Smith began her employment with the Tulsa County District Attorney’s

Office in 1996, when she was hired as a secretary. In September 1997, District

Attorney Bill LaFortune promoted her to a position as an investigator in the

Juvenile D ivision. After M r. Harris became the District Attorney in January

1999, he assigned M s. Smith to the Special Investigation Division of the Tulsa


                                         -2-
Police Department. There, M s. Smith worked with the juvenile gun court and the

gangs unit. Finally, in mid-2000, M r. Harris reassigned M s. Smith to the Felony

Investigation Unit in the downtown office, where M s. Smith was supervised by

his chief investigator, Don Bell.

      M r. H arris terminated M s. Smith’s employment on November 8, 2002. O n

that day, First Assistant District Attorney James Brandon and Chief Investigator

Bell met with M s. Smith. M r. Brandon told her that “her services were no longer

required in the district attorney’s office” and that he was not authorized to give

her any further explanation. Aplt’s App. vol. II, at 587. On November 20, 2002,

M r. Harris wrote M s. Smith a letter stating that “[o]ften times I am placed in the

position of making business decisions [o]n behalf of this office, especially during

extremely difficult financial times” and that “[d]ue to these financial conditions

and continued state budget cuts, it was necessary to evaluate a number of

different positions in the office.” Id. at 751.

      Subsequently, M r. Harris offered a more detailed explanation of his reasons

for terminating M s. Smith’s employment. He stated in deposition testimony that,

in November 2002, his office’s budget was being cut and he “was looking at

personnel that [were] not moving the district attorney’s office forward.” Id. vol.

I, at 88. After meeting with the First Assistant District Attorney and the Chief

Investigator, M r. Harris concluded that “M s. Smith did not have the skills to be

able to perform her investigative functions,” and that “her attitude towards other


                                          -3-
employees and other people in the office w as rude and condescending and curt

and arrogant.” Id. at 87-88. M r. Harris further explained that M s. Smith had

refused to file charging papers on behalf of the District Attorney’s Office and had

been disciplined by the Chief Investigator at least three times for that refusal.

M oreover, in M r. Harris’s view, M s. Smith was not a team player and was “not

the kind of face that [he] wanted to have in the community” (i.e. “somebody who,

with their tone of voice, their speech, was arrogant and condescending, extremely

demanding”). Id. at 88. Finally, M r. Harris added, many of his other employees

did not w ant M s. Smith to be placed in their divisions.

      Following her discharge, M s. Smith filed a charge of gender discrimination

with the Equal Employment Opportunity Commission (EEOC). During the

EEOC’s investigation, M r. Harris provided specific examples of M s. Smith’s

work performance that he deemed deficient.

      After the EEOC issued a Dismissal and Notice of Rights, M s. Smith filed

this action in the federal district court against the District Attorney’s Office. She

asserted that her discharge violated the gender discrimination provisions of Title

VII, as well as Oklahoma public policy.

      According to M s. Smith, the explanations offered by M r. Harris for her

discharge were pretexts for gender discrimination. In support of that theory, she

contested his assertions that her performance as an investigator w as deficient.

She also alleged that she had been treated less favorably than male

                                          -4-
employees of the District Attorney’s Office, who received counseling and

opportunities to improve their work performance before being subjected to

adverse employment actions. Additionally, M s. Smith pointed to the evolving

explanations of her discharge, arguing that these explanations indicated that the

initial reasons offered by M r. H arris were pretextual.

      The district court granted summary judgment to the D istrict Attorney’s

Office on both of M s. Smith’s claims. As to her Title VII claim, it concluded that

M s. Smith had failed to establish a prima facie case of gender discrimination and

had failed to offer colorable evidence of pretext. On her state law claim, the

court applied an Oklahoma decision holding that an at-will employee may not

assert such a claim if she “‘has an adequate federal statutory remedy for the

wrongful discharge.’” A plt’s App. vol. III, at 1218 (Dist. Ct. Order, filed April

15, 2005) (quoting Clinton v. State ex rel. Logan County Election Bd., 29 P.3d

543, 546 (O kla. 2001)).



                                  II. D ISC USSIO N

      On appeal, M s. Smith argues that the district court erred in granting

summary judgment to the District Attorney’s Office on both her Title VII and

state law claims. W e review the district court’s decision de novo, applying the

sam e standards as the district court under Fed. R. Civ. P. 56. Orr v. City Of

Albuquerque, 417 F.3d 1144, 1148 (10th Cir. 2005). Summary judgment is


                                          -5-
warranted only “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). W e view the evidence and

the reasonable inferences drawn from it in the light most favorable to the

nonmoving party. M ickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310

(10th Cir. 2006). Nevertheless, the party opposing summary judgment “must still

identify sufficient evidence requiring submission to the jury to survive summary

judgment.” Piercy v. M aketa, 480 F.3d 1192, 1197 (10th Cir. 2007).



                                 A. Title VII Claim

      Title VII bars gender discrimination with respect to “compensation, terms,

conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). W hen, as

here, a plaintiff employee relies on circumstantial evidence to prove her claim, w e

apply the familiar framework set forth by the Supreme Court in M cDonnell

Douglas Corp. v. Green, 411 U.S. 792, 800-07 (1973). See, e.g, Timmerman v.

U.S. Bank, N.A.,483 F.3d 1106, 1113 (10th Cir. 2007) (applying M cDonnell

Douglas).

      Under that framework, the plaintiff-employee must first establish a prima

facie case of discrimination. M cDonnell Douglas, 411 U. S. at 802. If she makes

that showing, the burden shifts to the defendant-employer to state a legitimate,


                                          -6-
nondiscriminatory reason for the challenged employment action. Plotke v. W hite,

405 F.3d 1092, 1099 (10th Cir. 2005). Finally, in order to avoid summary

judgment, the employee must then offer evidence that the employer’s proffered

reason was a pretext for discrimination. Id.

      Here, M s. Smith challenges the district court’s conclusions that she failed

to establish a prima facie case and failed to offer colorable evidence of pretext.

W e consider each argument in turn.

1. Prima facie case

      “The Supreme Court recognized in M cDonnell Douglas that the articulation

of a plaintiff’s prima facie case may well vary, depending on the context of the

claim and the nature of the adverse employment action alleged.” Id. at 1099. As

a result, this court has set forth varying standards for a prima facie case of

discriminatory discharge under Title VII. See Aplt’s App. vol. III, at 1202-03

(discussing varying standards); see also Sorbo v. United Parcel Service, 432 F.3d

1169, 1173-74 (10th Cir. 2005) (same); Jaramillo v. Colorado Judicial Dep’t, 427

F.3d 1303, 1307 n.1 (10th Cir. 2005) (same). “The critical prima facie inquiry in

all cases is whether the plaintiff has demonstrated that the adverse employment

action occurred under circumstances which give rise to an inference of unlawful

discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227

(10th Cir. 2000) (internal quotation marks omitted).




                                          -7-
      Here, the district court said, “the most appropriate test is [either] the three-

part test of M artin [v. Nanny & The N ew borns, 3 F.3d 1410 (10th Cir. 1993)] or a

four-part test as set forth in Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990).”

Aplt’s App. vol. III, at 1203. M s. Smith does not argue for a particular standard,

while the District Attorney’s Office contends that the M artin three-part standard

should be applied. See Aple’s Br. at 37-38.

      W e have applied the three-part M artin standard in Title VII cases in which,

plaintiffs, like M s. Smith, argue that they have been treated less favorably than

similarly situated co-workers, see, e.g., E.E.O.C. v. PV NF, 487 F.3d 790, 800

(10th Cir. 2007), and we therefore agree with the District Attorney’s Office that

the M artin three-part standard is appropriate. U nder that standard, in order to

establish a prima facie case of discrimination, M s. Smith must demonstrate that

she (1) belongs to a class of employees protected by Title VII; (2) was qualified

for her job; and (3) was terminated under circumstances giving rise to an

inference of discrimination. M artin, 3 F.3d at 1417; see also Haynes v. Level 3

Commc’ns, LLC, 456 F.3d 1215, 1225 n.11 (10th Cir. 2006) (applying the same

standard); Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004)

(same); see generally Sorbo, 432 F.3d at 1173 (stating that “several cases

involving adverse action prompted by unsatisfactory performance or misconduct

have framed the [third] element . . . broadly, as requiring a showing of




                                          -8-
circumstances giving rise to an inference of discrimination”) (internal quotation

marks omitted).

      Applying this standard, the district court concluded that M s. Smith had

failed to establish a prima facie case. The court addressed the second and third

M artin prongs.

      As to the second prong, whether M s. Smith was qualified, the court said

that M s. Smith had failed to establish that she was performing her job

satisfactorily. M s. Smith’s evidence of satisfactory performance— evaluations by

two of her supervisors and a co-worker— did not involve the same time period

during which the majority of asserted performance deficiencies occurred.

      As to the third prong, the court stated that M s. Smith had failed to offer

evidence that she was treated less favorably than similarly-situated male

employees. The court acknowledged that M s. Smith had offered evidence that, in

contrast to the manner in which she was treated, some male employees received

counseling before they were subjected to adverse action. However, the court

reasoned, these male employees were not similarly situated: unlike M s. Smith,

they were not terminated in response to budget cuts and some of them had not

committed multiple infractions, as M s. Smith had done.

      On appeal, M s. Smith challenges both of the district court’s conclusions

regarding her prima facie case. As to her work performance, she invokes her ow n

testimony that she was performing her job satisfactorily, as well as our decision


                                         -9-
in M acDonald v. E. W y. M ental Health Ctr., 941 F.2d 1115 (10th Cir. 1991).

There, we stated that “a plaintiff may make out a prima facie case of

discrimination . . . by credible evidence that she continued to possess the

objective qualifications she held when she was hired or by her own testimony that

her work was satisfactory, even when disputed by her employer, or by evidence

that she held her position for a significant period of time.” Id. at 1121 (internal

citations omitted). As to the allegedly more favorable treatment received by male

employees, M s. Smith contends that the record contains evidence from which a

reasonable juror could conclude that male employees accused of deficient

performance received opportunities to improve that she did not.

      M indful that the plaintiff’s burden at this first stage is “not onerous,”

Plotke, 405 F.3d at 1099 (internal quotation marks omitted), we conclude that M s.

Smith has established a prima facie case. As a woman, she falls within a class

protected by Title VII. M oreover, viewed in the light most favorable to M s.

Smith, her five-year tenure as an investigator, her own assessment of her

performance, and the fact that the District Attorney’s O ffice did not formally

reprimand, suspend, or discharge her for the alleged performance deficiencies

until budget concerns arose in late 2002 could all support her contention that she

was performing her job adequately.

      Finally, as to the third element of the prima facie case— whether she was

terminated under circumstances giving rise to an inference of discrimination—


                                         -10-
M s. Smith’s testimony that she did not receive the counseling given to others

supports her contention that she w as treated differently than male investigators.

Although the district court concluded that these male employees were not

similarly situated, its analysis turned on an assessment of the reasons offered by

the District Attorney for M s. Smith’s termination (i.e., that budget cuts justified

the discharge of a deficient employee). However, at the prima facie stage, “a

plaintiff is only required to raise an inference of discrimination, not dispel the

non-discriminatory reasons subsequently proffered by the defendant.” E.E.O.C.

v. Horizon/CM S Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000); see also

Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1469-70 (10th Cir. 1992) (stating that

“the employer’s reasons for the adverse action are not appropriately brought as a

challenge to the sufficiency of the plaintiff’s prima facie case”) (alteration and

internal quotation marks omitted).

      W e therefore proceed to the final two stages of the M cDonnell Douglas

inquiry, examining the reasons given by M r. Harris for the discharge and M s.

Smith’s contention that those reasons were pretexts for gender discrimination.

2. Evidence of Pretext

      Once the plaintiff establishes a prima facie case, the burden of production

shifts to the defendant-employer to articulate some legitimate, nondiscriminatory

reason for the adverse employment action. M cDonnell D ouglas, 411 U.S. at 802.




                                         -11-
W hen the plaintiff meets this burden, the court’s “factual inquiry then proceeds to

a new level of specificity.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 255 (1981). The presumption of discrimination established by the prima

facie show ing “simply drops out of the picture,” St. M ary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511 (1993), and the plaintiff must establish that her employer

discriminated on the basis of gender. Bryant v. Farmers Ins. Exch., 432 F.3d

1114, 1124 (10th Cir. 2005). The plaintiff may meet this burden by

demonstrating that the reason for the discharge proffered by the employer is a

pretext for discrimination. Horizon/CM S H ealthcare Corp., 220 F.3d at 1191.

      Pretext can be shown by “such w eaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unw orthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” M organ v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997) (internal quotation marks omitted). In support of a claim of

pretext, a plaintiff may offer evidence of differential treatment, indicating that the

employer “treated [the plaintiff] differently from other similarly-situated

employees who violated work rules of comparable seriousness.” Swackhammer v.

Sprint/United M gmt Co., No. 05-3222, --- F.3d ----, 2007 W L 1969672, at * 5

(10th Cir. July 9, 2007) (quoting Kendrick, 220 F.3d at 1230). A lternatively, a

plaintiff may offer direct evidence that the employer’s stated reason for the

                                         -12-
discharge is false. “Evidence of pretext may also take a variety of other forms.”

Id.

      Nevertheless, “it is not always permissible for the factfinder to infer

discrimination from evidence that the employer’s explanation is unworthy of

belief.” Id. If there is conclusive evidence of some other, nondiscriminatory

reason for the plaintiff’s discharge 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,’

the fact that the employer’s explanation was unworthy of belief would no longer

be sufficient to create an inference of discrimination.” Id. (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, (2000)). Additionally, if the

plaintiff’s evidence that she was treated differently than other, similarly-situated

employees is “trivial or accidental or explained by a nondiscriminatory motive,”

this evidence does not create an inference of discrimination. Kendrick, 220 F.3d

at 1232.

      In this appeal, M s. Smith invokes four categories of evidence in support of

her pretext argument. According to M s. Smith, this evidence establishes that the

district court erred in granting summary judgment against her.

      a. Treatment of M ale Investigators

      M s. Smith cites record evidence that three male investigators w ho were

discharged by M r. Harris were first reprimanded and then counseled about the


                                         -13-
deficiencies in their work performance. M s. Smith maintains that these

employees were thus afforded an opportunity to improve before they were

terminated. In contrast, M s. Smith testified that she “‘had not been reprimanded

about anything’” and “‘did not get that privilege to be talked to about anything if

there was a problem.’” Aplt’s Br. at 53-54 (quoting Aplt’s App. vol. II, at 506).

Viewed in the light most favorable to her, M s. Smith argues, this evidence

supports a finding that she was treated differently than similarly-situated male

employees and thus supports her claim of pretext.

      W e agree with the district court that this evidence is not sufficient to

support M s. Smith’s pretext argument. As an initial matter, the record does not

suggest that the District Attorney’s Office had a progressive discipline policy

requiring all employees to be counseled and subjected to milder discipline before

discharge. To the contrary, M r. Harris testified that decisions regarding employee

discipline were made on a case-by-case basis, and M s. Smith has not rebutted that

testimony. Thus, even accepting M s. Smith’s testimony that she was never

counseled about her work performance before she was terminated, that testimony

does not establish that M r. Harris violated an office policy.

      M ore importantly, M s. Smith has failed to establish that these three male

investigators were similarly situated. M r. Harris offered testimony that M s.

Smith’s termination was triggered by budget cuts, a factor not involved in the

termination of the male investigators. M r. Harris explained, “[W ]hen you are


                                         -14-
flush and you have enough money, you can carry your weaker employees along

with you. . . . But . . . once your budget [be]comes tighter and tighter and tighter

and tighter, you don’t have the luxury of kind of bringing these people along with

you in hopes that they will succeed. . . . [N]ow that I don’t have money, . . . I

have to make the tough decisions.” Aplt’s App. vol. II, at 535-36; see also

E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992) (noting that

differences in the treatment of employees may sometimes be explained by the fact

that “the events occurred at different times w hen the company’s attitudes toward

certain infractions were different”).

      M oreover, M s. Smith’s testimony that she was never counseled about the

deficiencies in her work does not address the key question of whether M r. Harris

acted w ith discriminatory intent. In evaluating evidence of pretext, we do not ask

“whether the employer’s proffered reasons were wise, fair or correct, but whether

[he] honestly believed those reasons and acted in good faith upon those beliefs.”

Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)

(quotation and alterations omitted). Here, M r. Harris testified that Don Bell, his

chief investigator, told him that he had counseled M s. Smith on her performance

“numerous times[,]” Aplt’s App. vol. I, at 97, and M r. Bell himself testified that

he had counseled M s. Smith. Similarly, George Nelson, the chief of the Juvenile

Division, told M r. Harris that he had talked to M s. Smith about her “attitude

problem.” Id. at 82. Thus, M s. Smith’s testimony that she was never counseled


                                         -15-
does not undermine M r. Harris’s contention that he had an honest, good-faith

belief that such counseling had occurred. Cf. Furr v. Seagate Techn. Inc., 82 F.3d

980, 988 (10th Cir. 1996) (stating that “[i]t is the manager’s perception of the

employee’s performance that is relevant, not plaintiff’s subjective evaluation of

his own relative performance”); see also E.E.O.C. v. Total Sys. Servs, Inc., 221

F.3d 1171, 1176 (11th Cir. 2000) (observing that an employer is entitled to rely

on good-faith beliefs about employee misconduct).

      b. Budget Cuts

      M s. Smith also contends that two of M r. Harris’s own statements indicate

that the alleged budget cuts were pretextual.

      First, she points to the following statement in the agenda for an October 4,

2002 staff meeting (roughly a month before she w as terminated):

      Before I get started I wanted to take a few minutes to talk to you about
      our Budget. I know that you are all reading the new spaper and hearing
      the news on the television about all the shortage of funds and offices
      are being furloughed and I just w ant to tell you not to let fear get any
      rumors started about us being furloughed or rumors about layoffs. As
      of today, w e have our budget in place and in good shape through next
      June, 2003.

Aplt’s App. vol. I, at 377.

      Second, M s. Smith relies on the following exchange in M r. Harris’s

deposition:

      Q: [by M s. Smith’s counsel]:    A re you testifying that in better
                                       budgetary times, there may have been
                                       alternatives to termination for these
                                       employees?

                                         -16-
       A: [by M r. Harris]:             It com es to a point. It’s how bad is
                                        their performance overall, are they
                                        assisting us, moving the whole team
                                        forward or are they a drag on the team
                                        ....

       Q: [by M s. Smith’s counsel]:    Just let m e ask the question. In better
                                        budgetary times, would M s. Sm ith
                                        have been given an opportunity to
                                        correct her performance?

       A: [by M r. Harris]:             No.

Id. at 77.

       Finally, M s. Smith cites a November 8, 2002 memorandum from First

Assistant District Attorney James Brandon. The memorandum states that “there

have been many issues related to [M s.] Smith during my time here” and that “the

most recent that was brought to my attention was the failure to sign charges and

get them to the Court Clerk’s office in a timely fashion.” Aplt’s App. vol. II, at

863. However, M r. Brandon’s memorandum does not mention budget cuts as

grounds for her discharge.

       In our view , this evidence does not support M s. Smith’s contention that M r.

Harris’s reliance on budget cuts was pretextual. M r. Harris testified that, when

his office’s budget began to get cut dramatically, he discharged some “weak

players on the team,” including M s. Smith and two male Assistant District

Attorneys. Aplt’s App. vol. II, at 535. M s. Smith has offered no evidence to

controvert the existence of these funding reductions. M r. Harris’s statements in



                                         -17-
the October 4, 2002 agenda that the budget was “in place” and “in good shape”

and that employees should not fear layoffs or furloughs were made to his staff as

a whole and demonstrate an intent to reassure the majority of them. The

statements are not inconsistent with the existence of budget cuts that triggered the

discharge of a few employees, including M s. Smith, whose performance was

deficient.

      M r. Harris’s response to the hypothetical question about whether M r. Smith

would have been given an opportunity to correct her performance “in better

budgetary times” is similarly insufficient to demonstrate pretext. As noted above,

when he decided to discharge her, M r. Harris reasonably believed that M s. Smith

did receive counseling about the deficiencies in her performance. M r. Harris’s

statement that she would not have been given an opportunity to correct her

performance indicates only that, after learning more details about the deficiencies

in her w ork, M r. Harris determined that M s. Smith’s work-related problems were

“long going” and were unlikely to be corrected by counseling or other measures.

Id. at 536. His statement does not undermine his reliance on the budget cuts as a

basis for her termination.

      Finally, the fact that M r. Brandon’s November 8, 2002 memorandum does

not mention the budget cuts is not significant. M r. Brandon explained in his

deposition that he did not make the decision to discharge M s. Smith. His role

“w as providing information to the decision-maker [M r. Harris],” and he therefore



                                        -18-
offered examples of her deficient performance. Aplt’s App. vol. I, at 116. Thus,

the November 8 memorandum reveals M r. Brandon’s limited role and does not

support M s. Smith’s claim of pretext.

      c. Deficiencies in W ork Performance

      M s. Smith further argues that a jury could conclude that M r. Harris acted

unreasonably in relying on the statements of various employees regarding the

deficiencies in her work. She maintains that M r. Harris failed to investigate the

truth or accuracy of the complaints about her and that this failure also constitutes

evidence of pretext. As an example of his alleged failure to investigate, she cites

M r. Harris’s testimony that he relied on a complaint by James M anning. She

asserts that M r. M anning testified that he did not make this complaint until after

her discharge, thus, in her view , undermining M r. Harris’s account of his

investigation of her w ork performance.

      Additionally, M s. Smith contends that there are disputed facts regarding

several of the incidents invoked by M r. Harris as examples of her deficient

performance. As to several of these incidents, M s. Smith disputes that she

performed inadequately. As to others, she cites her own testimony that she never

received counseling or an opportunity to improve.

      After thoroughly review ing the record, we cannot agree with M s. Smith that

there is colorable evidence of pretext. In his deposition testimony, M r. Harris

explained that after meeting with the First Assistant District Attorney and the



                                          -19-
Chief Investigator, he concluded that M s. Smith did not have the skills necessary

to perform investigative functions; that she had demonstrated a rude,

condescending, curt, and arrogant attitude toward other employees; that she had

refused to file charging papers on behalf of the District Attorney’s Office; and

that she had been disciplined by the Chief Investigator at least three times for that

refusal. M r. Harris reported that many employees had stated that, in light of these

difficulties, they did not want M s. Smith placed in their divisions.

      As the district court observed, M r. Harris’s explanation is supported by the

testimony of more than twenty employees of the District Attorney’s Office. Some

of these employees cited specific examples of M s. Smith’s deficient performance;

others, including the Chief Investigator and the Chief of the Bogus Check

Division, confirmed that they had requested that M s. Smith not be assigned to

their division. Others characterized her attitude toward her fellow employees in a

manner similar to M r. Harris. This testimony demonstrates that M r. Harris’s

determination regarding the deficiencies in M s. Smith’s work performance was

reasonable.

      The evidence invoked by M s. Smith does not undermine this conclusion.

For example, the dispute about whether M r. Harris relied on a complaint from M r.

M anning concerns only the chain of communication about a complaint regarding

M s. Smith: M r. Harris indicated that M r. M anning complained to him directly

while M r. M anning stated that he complained to his immediate supervisor, who

relayed the complaint up the chain of command until it reached M r. H arris.

                                         -20-
Nevertheless, no matter how the complaint reached M r. Harris, it is undisputed

that he received information from M r. M anning, and from other employees, that

M s. Smith was not performing her job adequately.

      d. Changing Reasons for Termination

      Finally, M s. Smith contends that, over time, M r. Harris offered different

reasons in support of his decision to discharge her and that these changing reasons

constitute evidence of pretext. As the district court explained, on the day that she

was discharged, neither M r. H arris nor his staff offered M s. Smith an explanation.

On November 20, 2002, M r. Harris sent M s. Smith a letter stating that “[d]ue to

these financial conditions and continued state budget cuts, it was necessary to

evaluate a number of different positions in the office.” Aplt’s App. vol. II, at

751. In responding to requests for information during the EEOC investigation,

M r. Harris referred to budget cuts and subsequently referred to deficiencies in

M s. Smith’s work performance. Then, during discovery in the district court

proceedings, M r. H arris provided more examples of her deficient performance.

Finally, in the summary judgment papers, M r. Harris offered more evidence about

those deficiencies.

      In some circumstances, a change in an employer’s explanation of the

reasons for an adverse personnel action may constitute evidence of pretext

Jaramillo, 427 F.3d at 1311. However, “the mere fact that [an employer] has

offered different explanations for its decision does not create a genuine question

of pretext.” Id. In determining whether a changing explanation is sufficient to

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permit an inference of pretext, we consider (1) the timing of the change in

explanation and (2) the evidence supporting the newly-proffered explanation. Id.

      Here, we agree with the district court that the explanations offered for M s.

Smith’s discharge are “not part of a long line of ‘new’ reasons but an increasingly

detailed explanation for the reasons [M r. Harris] articulated in general terms soon

after [M s. Smith] was terminated: budget cuts, combined with her attitude and

performance problems.” Aplt’s App. vol. III, at 1214. M r. Harris offered

unrebutted testimony that the budget cuts triggered both his examination of

underperforming employees and his decision to discharge M s. Smith. Before he

discharged her, he received information about M s. Smith’s deficient performance

from his staff. The fact that the District Attorney’s O ffice began to marshal

evidence about those deficiencies as it prepared for anticipated litigation does not

constitute colorable evidence of pretext.

3. Conclusion

      Because M s. Smith failed to offer evidence from which a reasonable

factfinder could conclude that the reasons for her termination were a pretext for

gender discrimination, we conclude that the district court properly granted

summary judgment to the District Attorney’s Office on her Title VII claim.



                                 B. State Law Claim

      M s. Smith also asserted a claim for wrongful discharge under Oklahoma

law. Her claim is based upon Burk v. K-M art Corp., 770 P.2d 24 (Okla. 1989),

                                            -22-
which held that an at-will employee may assert a claim that she was terminated in

violation of “a clear and compelling public policy.” Id. at 29. As evidence of

Oklahoma’s public policy, M s. Smith invokes a state statue barring gender

discrimination. Okla. Stat. tit. 25, § 1302(A).

       In applying Burk, the Oklahoma Supreme Court has held that a wrongful

discharge claim is precluded “[w]hen an employer discharges a terminable-at-will

employee based on the employee’s status and the reason for the discharge violates

Oklahoma’s clear and compelling public policy, but the employee has an adequate

federal statutory remedy for the wrongful discharge.” Clinton v. State ex rel.

Logan County Election Bd., 29 P.3d 543, 544 (Okla. 2001). The district court

granted summary judgment to the District Attorney’s Office on the grounds that

M s. Smith “has an adequate statutory remedy under Title VII.” Aplt’s A pp. vol.

III, at 1218.

       M s. Smith now argues that her remedy under Title VII is not adequate

because that statute limits the amount of recovery of compensatory and punitive

damages. See 42 U.S.C. § 1981a(b)(3). She does not cite, nor have we found, a

body of law defining what constitutes an “adequate” remedy under Clinton.

       Nevertheless, in this case, we need not decide whether Title VII is an

adequate remedy. Even assuming that, under Clinton, Title VII does not provide

an adequate remedy to M s. Smith, the District Attorney’s O ffice is still entitled to

summary judgment. As we have explained above, M s. Smith has failed to offer

colorable evidence of gender discrimination. As a result, a reasonable factfinder

                                          -23-
could not conclude that M r. Harris violated Oklahoma public policy in discharging

her.



                               III. C ON CLU SIO N

       W e therefore AFFIRM the district court’s grant of summary judgment to the

District Attorney’s Office on M s. Smith’s Title VII and state law claims.



                                Entered for the Court,



                                Robert H. Henry
                                United States Circuit Judge




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