                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 30, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT




    DEBRA BROWN,

               Plaintiff-Appellant,

    v.                                                 No. 09-6063
                                                (D.C. No. 5:07-CV-01240-C)
    BOARD OF REGENTS FOR THE                           (W.D. Okla.)
    OKLAHOMA AGRICULTURE AND
    MECHANICAL COLLEGES FOR
    LANGSTON UNIVERSITY

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.



         Debra Brown appeals from the grant of summary judgment to the defendant

Board of Regents on her federal claims, under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Disabilities Act (ADA), 1 42 U.S.C. §§ 12101-12213, and on her pendent tort

claim under Oklahoma’s public-policy exception to the principle of at-will

employment, see Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla. 1989). On

de novo review, Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir.

2009), we affirm for the reasons stated below. 2

                                         I.

      We view the facts in a light most favorable to Ms. Brown, the non-movant,

and draw all reasonable inferences in her favor. Id. at 1142. But she “must still

identify sufficient evidence requiring submission to the jury . . . [and] cannot

avoid summary judgment merely by presenting a scintilla of evidence to support

her claim; she must proffer facts such that a reasonable jury could find in her

favor.” Id. (quotations and citations omitted).

      Ms. Brown came to Langston University on a temporary grant through

Workforce Oklahoma Career Connections (WOCC) in May 2006. She initially

worked as a front desk clerk under Mathilda Hall, but obtained a transfer to work



1
      The existence of her claimed disability, primarily involving limits on
walking and standing, is not at issue on this appeal.
2
       The district court denied Ms. Brown leave to proceed on appeal in forma
pauperis (IFP), concluding that her appeal was not taken in good faith. See
28 U.S.C. § 1915(a)(3). In Rolland v. Primesource Staffing, L.L.C., 497 F.3d
1077, 1079 (10th Cir. 2007), this court clarified that “a party who seeks [IFP]
status and is certified by the district court as not appealing in good faith may
nonetheless move this court for leave to proceed on appeal [IFP].” We grant
Ms. Brown’s renewed IFP motion and hence proceed to the merits of this appeal.

                                         -2-
for Nancy Alexander at the Minority Business Development Center (MBDC) as an

administrative assistant while still being paid under the WOCC grant. The grant

expired in November 2006, upon exhaustion of its limited funding of $15,000.

      In the meantime, however, Ms. Alexander secured, through her own distinct

grant funds as MBDC project manager, an additional $1,000 for Ms. Brown under

a consultant contract postponing Ms. Brown’s departure for a short time, while

awaiting word on whether there would be funding for 2007. When that contract

expired, in December 2006, MBDC still had no funding for the upcoming year,

precluding the obligation of funds for any positions—Ms. Alexander’s as well as

Ms. Brown’s—for 2007, and MBDC was ordered closed by the end of the month.

Ms. Brown’s temporary placement at Langston terminated. Then, in mid-January

2007, MBDC unexpectedly received a bonus year of funding. As Ms. Alexander

had taken another position after the December closure, MBDC hired Wayne

Lawson as project manager in February 2007.

      Ms. Brown did not apply for an administrative-assistant position under

Mr. Lawson, who hired someone else in March 2007. Ms. Brown filed suit,

claiming that the termination of her placement at Langston, and the failure

subsequently to bring her back, was the result of discrimination on account of her

age and disability.




                                        -3-
                                         II.

                          Disposition of Federal Claims

      The district court rejected Ms. Brown’s federal claims since she could not

demonstrate pretext. The expiration of grant funding provided a legitimate,

nondiscriminatory reason for the end of her placement at Langston, which she had

not shown was pretextual, and that Mr. Lawson’s hiring of someone else after the

unexpected restoration of funding was not actionable given her failure to apply

for the position. We agree with the district court’s assessment.

      “Evidence of pretext may . . . take a variety of . . . forms,” but “defeats

summary judgment only if it could reasonably lead the trier of fact to infer a

discriminatory motive.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d

1160, 1168 (10th Cir. 2007). Ms. Brown did not present any evidence of a

general discriminatory animus to which her termination could be related. Her age

and alleged disability had no demonstrated affect on the availability or allocation

of the grant funding essential to her continued placement at Langston, nor were

they alluded to in connection with the events leading to her departure. While she

alleges that Ms. Hall directed her to do some tasks that were physically difficult

for her, and that her refusal created friction between them, she acknowledges that

she asked for and received a transfer to work for Ms. Alexander. Nothing about

that circumstance suggests the explanation given for the later termination of her

placement at Langston under Ms. Alexander was a mere pretext concealing

                                         -4-
discrimination on account of her alleged disability. 3 Nor did she undermine that

explanation by presenting evidence of similarly situated persons kept on staff by

Ms. Alexander at MBDC after 2006. Indeed, MBDC’s closure precluded funding

for Ms. Alexander’s position as well.

      Lacking evidence otherwise suggesting that discrimination was the real

motive behind the loss of her position, Ms. Brown was left to establish pretext by

showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions” in the stated reason for the loss of her placement “that a

reasonable factfinder could rationally find [it] unworthy of credence.” Id. at 1167

(quotation omitted). This she also was not able to do. We have reviewed the

evidence submitted on summary judgment, and agree with the district court that it

does not raise a genuine issue of material fact regarding the credibility of the

reason given for the loss of Ms. Brown’s placement at Langston. 4

      Ms. Brown does not—and could not in light of the relevant documentary

evidence—dispute that the $15,000 WOCC grant which funded her placement

with Ms. Alexander at MBDC expired in November 2006, that her placement was



3
     Ms. Brown has not asserted, much less substantiated, a claim for failure to
accommodate her disability while she worked at Langston.
4
       The record prepared for the pro se appellant, see 10th Cir. R. 11.2(A), did
not include the materials she submitted in opposition to the motion for summary
judgment, as required by 10th Cir. R. 10.3(D)(2). We have, however, accessed
the materials electronically and considered them along with the rest of the record
in our review of the summary judgment order.

                                         -5-
then extended by the $1,000 consultant contract, and that the latter contract

expired in December. She does express doubt about the closure of MBDC, and

suggests that funding for 2007 was tacitly guaranteed or imminent when she lost

her position, but she has no personal knowledge of any facts with which to oppose

Ms. Alexander’s unequivocal testimony that MBDC was ordered closed by the

end of December and that the bonus funding for 2007 was awarded, unexpectedly,

only in mid-January.

      Ms. Brown also sought to circumvent the legal effect of her temporary

placement by claiming that Ms. Alexander had personally promised to make it

permanent, or at least continue it into 2007. Ms. Alexander, who was deposed

prior to Ms. Brown, was not asked about this, but she never mentioned such a

promise, which would have been as empty as it is implausible given MBDC’s

funding situation. But we need not wade into the facts of the matter. 5 In any

event, making an inadvisable promise that could not be kept in light of subsequent

economic reality does not negate the (undisputed) existence of that economic

reality—which, being the stated reason for the loss of Ms. Brown’s position, is

the focus of the pretext inquiry here. At most, Ms. Brown’s version of events

5
       Many documents, relating to Ms. Brown’s placement with Ms. Alexander
pursuant to the WOCC grant and the extension of that placement by the consultant
contract, undercut Ms. Brown’s version of events here, by explicitly noting the
temporary nature of her placement and its contingency on continued funding for
MBDC. In her support, Ms. Brown relied on a single document, prepared by
WOCC rather than Ms. Alexander, citing June 30, 2007 as the estimated end date
of her placement with MBDC under the WOCC grant.

                                         -6-
suggests the remote possibility of a claim for promissary estoppel; it is not

germane to her claims here, which require evidence that “could reasonably lead

the trier of fact to infer a discriminatory motive,” not just bad judgment in making

a promise. Swackhammer, 493 F.3d at 1168.

      Ms. Brown also testified that Ms. Alexander had promised to recall her in

the event MBDC acquired funding for 2007. This was not specifically brought up

in Ms. Alexander’s earlier deposition, and it would not have been implausible to

have made such a promise (as it would have been to make a promise of continued

employment) in light of MBDC’s funding situation. But, again, we need not go

into the facts of the matter. It is undisputed that by the time an administrative

assistant was to be hired in 2007, that responsibility fell not to Ms. Alexander but

to MBDC’s new project manager, Wayne Lawson.

      In addition to insisting that she should have been kept on at MBDC or

recalled by Ms. Alexander, Ms. Brown appears to assert, in perfunctory fashion,

that Mr. Lawson’s failure to hire her bespeaks discrimination. But Mr. Lawson

stated in his affidavit that Ms. Brown never applied for the position with him, and

Ms. Brown has never disputed that fact. All she has said is that she called

Ms. Alexander, who did not return her calls. Ms. Alexander did not confirm these

facts, but even if she had ignored Ms. Brown’s phone calls, that hardly supports a

claim based on Mr. Lawson’s failure to hire Ms. Brown to fill a position for

which she never applied.

                                          -7-
      In sum, Ms. Brown did not demonstrate a genuine issue of material fact on

her federal claims for discrimination. We therefore affirm the grant of summary

judgment on those claims.

                                        III.

                              State Law Burk Claim

      The district court held that its rationale for rejecting Ms. Brown’s federal

claims undercut her state-law Burk claim as well, since it was based on the same

allegations of discrimination for which she offered insufficient proof to oppose

summary judgment. This court has on numerous occasions recognized that such a

failure of proof is equally dispositive of both federal and Burk discrimination

claims. See, e.g., Ruleford v. Tulsa World Publ’g Co., 266 F. App’x 778, 784

(10th Cir. 2008); Smith v. Okla. ex rel. Tulsa County Dist. Attorney, 245 F. App’x

807, 818 (10th Cir. 2007); Malone v. MAPCO, Inc., No. 91-5073, 1992 WL

26788, at *1 (10th Cir. Fed. 11, 1992) (unpub.). Accordingly, we affirm the grant

of summary judgment on the Burk claim as well.

                                        IV.

                     Miscellaneous Issues Raised on Appeal

      What we have already said above regarding the merits obviates further

point-by-point discussion of the bulk of Ms. Brown’s pro se briefing. But she

also raises a few objections collateral to the merits that we should address briefly.




                                         -8-
      First, she contends that she performed poorly at her deposition because she

was taking a prescription pain reliever at the time and insists that she should be

deposed a second time to more effectively present her case. This argument was

not raised before the district court and we do not consider new issues on appeal

absent unusual circumstances, such as where the issue involves a pure question of

law and its resolution is certain. See, e.g., Proctor & Gamble Co. v. Haugen,

222 F.3d 1262, 1271 (10th Cir. 2000). The allowance of depositions involves,

rather, a matter of trial court discretion, see Champagne Metals v. Ken-Mac

Metals, Inc., 458 F.3d 1073, 1082 n.7 (10th Cir. 2006), and favorable action on

Ms. Brown’s unusual request for a repeat-deposition would not have been certain

but, rather, highly unlikely. Nothing about her thorough, detailed, and cogent

deposition testimony would seem to offer any support for such a request.

      Ms. Brown also voices several criticisms of her trial counsel. But the

performance of counsel does not provide a cognizable basis for challenging the

disposition of a civil case such as this. See, e.g., Nelson v. Boeing Co., 446 F.3d

1118, 1119 (10th Cir. 2006); Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169

(10th Cir. 2003).

      Finally, Ms. Brown complains in vague and general terms about improper

disclosure of protected health information in the course of the proceedings. This

complaint, which has nothing to do with the summary judgment order on review,

is clearly outside the scope of this appeal.


                                          -9-
     The judgment of the district court is AFFIRMED. Plaintiff’s motion for

leave to proceed in forma pauperis is GRANTED.


                                    Entered for the Court


                                    Timothy M. Tymkovich
                                    Circuit Judge




                                     -10-
