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

                            FOR THE TENTH CIRCUIT                         May 21, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WILLANA GENEVA TURNER,

             Plaintiff-Appellant,

v.                                                          No. 12-5133
                                               (D.C. No. 4:11-CV-00606-CVE-FHM)
THE CITY OF TULSA,                                          (N.D. Okla.)

             Defendant-Appellee.


                             ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.



      In this employment discrimination case, Dr. Willana Geneva Turner appeals

from a district court order that entered judgment on the pleadings in favor of the City

of Tulsa, Oklahoma. We have jurisdiction under 28 U.S.C. § 1291, and affirm for

substantially the same reasons identified by the district court.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    BACKGROUND

      Dr. Turner, an African-American female, was the director of the City of

Tulsa’s human-rights department. In 2010, Ms. Turner was responsible for preparing

“a HUD 5-year action plan.” Aplt. App. at 8. On the deadline for the plan’s

submission, it was “was incomplete, but reparable.” Id.

      During a meeting with her supervisor, Jim Twombly, “regarding the plan’s

shortcomings,” Dr. Turner “felt she was being discriminated against due to her sex

and race.” Id. at 9. Consequently, she filed a grievance with the human resources

department, claiming that Mr. Twombly had “created a hostile work environment as a

result of his racial and sexual discrimination towards her.” Id. An investigation into

the matter revealed no evidence of discrimination. Soon thereafter, Mr. Twombly

recommended that she be disciplined for her preparation of the incomplete HUD

plan, and she was ultimately suspended by the City without pay for five days.

      Dr. Turner sued the City under 42 U.S.C. §§ 1981, 1981(a), and 1983, alleging

that it “has allowed a policy wrongfully retaliating against city employees,” id. at 13,

and that “Jim Twombly was acting as a policy-maker for the City of Tulsa,” id. at 7.

The City filed an answer and later moved to dismiss the complaint for failure to state

a claim for relief, arguing, among other things, that Mr. Twombly lacked final

policymaking authority under the 1989 Amended Charter of the City of Tulsa.

Attached as an exhibit to the motion was a copy of the charter, which establishes a

civil service commission to promulgate rules and regulations governing employee


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discipline. Those rules and regulations must then be approved by the city council.

Further, the charter specifies that any decisions regarding employee discipline are

reviewable by the commission. Dr. Turner filed an opposition to the motion to

dismiss, but did not address the City’s arguments concerning the charter, and instead

clarified that she was not pursuing a Title VII claim.

      The district court construed the City’s motion as seeking judgment on the

pleadings, given that an answer had already been filed, see Fed. R. Civ. P. 12(b) &

(c), and it granted the motion, concluding that Dr. Turner had failed to adequately

plead that “the alleged constitutional deprivation occurred pursuant to an official

policy or custom, or was the result of actions taken by an official with final

policymaking authority.” Aplt. App. at 128. In doing so, the district court took

judicial notice of the City’s charter and pointed out that Dr. Turner had neither

(1) “identified a specific official policy, adopted and promulgated by the City, that

allowed for the alleged constitutional violations,” id. at 123; nor (2) responded to the

City’s argument “that the City Charter unambiguously shows that [Mr.] Twombly

was not the final policymaker regarding discipline of employees,” id. at 125.

                                      DISCUSSION

      “We review a district court’s grant of a motion for judgment on the pleadings

de novo, using the same standard that applies to a Rule 12(b)(6) motion.” Park Univ.

Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006). “[W]e accept all facts

pleaded by the non-moving party as true and grant all reasonable inferences from the


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pleadings in favor of the same.” Id. A motion for judgment on the pleadings “should

not be granted unless the moving party has clearly established that no material issue

of fact remains to be resolved and the party is entitled to judgment as a matter of

law.” Id. (quotation omitted).

      “[I]n order for municipal liability to arise under section 1981, [the plaintiff]

must demonstrate that the City’s officials retaliated against her pursuant to a custom

or policy of retaliation.” Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276

(10th Cir. 2008) (quotation omitted). Section 1983 provides the vehicle to pursue

such claims. See Bolden v. City of Topeka, 441 F.3d 1129, 1134 (10th Cir. 2006).

      A municipal policy or custom may take the form of (1) a formal
      regulation or policy statement; (2) an informal custom amounting to a
      widespread practice that, although not authorized by written law or
      express municipal policy, is so permanent and well settled as to
      constitute a custom or usage with the force of law; (3) the decisions of
      employees with final policymaking authority; (4) the ratification by
      such final policymakers of the decisions—and the basis for them—of
      subordinates to whom authority was delegated subject to these
      policymakers review and approval; or (5) the failure to adequately train
      or supervise employees, so long as that failure results from deliberate
      indifference to the injuries that may be caused.

Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (brackets and

quotations omitted).

      Dr. Turner does not address the district court’s determinations concerning

municipal liability. Any challenge to those determinations is, therefore, waived.

See Therrien v. Target Corp., 617 F.3d 1242, 1253 (10th Cir. 2010) (“[F]ailure to

raise an argument sufficiently in the opening brief waives that argument.”).


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      Rather, Dr. Turner argues that the district court erred in considering the City’s

charter without giving her notice and converting the motion to dismiss into one for

summary judgment. But, as the district court recognized, a court may take judicial

notice of a city charter, see Melton v. City of Okla. City, 879 F.2d 706, 724 (10th Cir.

1989), “without converting a motion to dismiss into a motion for summary

judgment,” Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1

(10th Cir. 2004). Moreover, Dr. Turner had notice that the City was relying on its

charter, yet she did not object or request that the motion to dismiss be converted into

one for summary judgment.

      Accordingly, we AFFIRM for substantially the same reasons given by the

district court in its June 15, 2012 Opinion and Order granting judgment on the

pleadings to the City.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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