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

                             FOR THE TENTH CIRCUIT                April 25, 2014

                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
MOZELLA M. DYER,

              Plaintiff-Appellant,

v.                                                      No. 13-3190
                                               (D.C. No. 2:12-CV-02081-JTM)
CYNTHIA LANE, individually and in her                     (D. Kan.)
official capacity as Superintendent; USD
500; BARBARA KIRKEGAARD,
individually and in her official capacity as
Lead Human Resources Director; KELLI
MATHER, individually and in her official
capacity as Chief Financial Officer,

              Defendants – Appellees

and

JILL SHACKLEFORD, individually and
in her official capacity as former
Superintendent; JAYSON
STRICKLAND, individually and in his
official capacity as Assistant
Superintendent; EDWIN HUDSON,
individually and in his official capacity
as Chief Human Resources Officer;
DAVID SMITH, individually and in his
official capacity as Chief of Staff;
SHERRY SAMPLES, individually and in
her official capacity as Human Resources
Director, USD 500; STEVE VAUGHN,
individually and in his official capacity
as Human Resources Director, USD 500;
JOHN D. RIOS, individually and in his
official capacity as former Assistant
Superintendent, USD 500; JOHN LEE,
individually and in his official capacity
as Finance, Payroll & Human Resources
Manager; MARCELLA CLAY; JOE
FIVES, individually and in his official
capacity as Director of Technology and
Information; and KELLI MATHER,
individually and in her official capacity
as Chief Financial Officer

             Defendants.


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Plaintiff Mozella Dyer appeals from the district court’s grant of summary

judgment in favor of her employer, the Kansas City Unified School District No. 500

(KCUSD), and two of its administrators, on her discrimination and breach-of-implied

contract claims.1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     BACKGROUND

      The district court’s order thoroughly sets out the factual background in its

detailed thirty-five page decision. Thus, we only summarize the salient facts.

*
      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.
1
      Ms. Dyer’s complaint also named other defendants and asserted additional
claims, but she does not appeal the district court’s dismissal of those claims or
defendants.


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Ms. Dyer was employed by KCUSD, where her responsibilities included the training,

assignment and discipline of substitute teachers. In 2008, Ms. Dyer approved her

husband, Armand Dyer, as a KCUSD substitute teacher. School administrators sent

numerous performance complaints about Mr. Dyer to Ms. Dyer. These included

complaints that Mr. Dyer failed to show up; was tardy; used profanity and

inappropriate language; failed to accompany children to recess or be in the classroom

when they returned; used inappropriate discipline; and failed to supervise students or

control his classes. Four school principals requested that Mr. Dyer never again be

assigned to their school. It is undisputed that Ms. Dyer received these complaints;

directly supervised her husband as a substitute teacher; did not investigate or tell her

supervisors about the complaints; and did not tell her husband about the complaints

or otherwise counsel or discipline him. It is also undisputed that Ms. Dyer took

disciplinary actions against other substitute teachers, including terminating their

eligibility for assignments.

      In August 2011, two employees supervised by Ms. Dyer informed the head of

KCUSD Human Resources Department about Ms. Dyer’s failure to address

Mr. Dyer’s performance complaints. Ms. Dyer’s direct supervisor, Lead Human

Resources Director, Barbara Kirkegaard, was directed to investigate. Her

investigation confirmed the unchecked performance complaints and uncovered

evidence that Ms. Dyer had improperly pre-arranged substitute teaching assignments

for her husband. KCUSD policy requires substitute teachers be randomly assigned


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by a computer program, referred to as the SubFinder system. Ms. Kirkegaard’s

initial report concluded that Ms. Dyer had abused her authority by accessing the

SubFinder system to pre-arrange teaching assignments for her husband and failing

to address his performance complaints. She was asked to further investigate the

pre-arranged assignments. She concluded that Ms. Dyer inappropriately pre-arranged

her husband’s assignments thirty times, which prevented other substitute teachers

from getting assignments on three occasions. She also concluded that Ms. Dyer’s

improper use of the SubFinder system breached the trust KCUSD had placed in her

when it allowed her access to the computer, which includes confidential and personal

information about KCUSD employees.

      Ms. Kirkegaard’s final report recommended Ms. Dyer be terminated because

she demonstrated gross misconduct and neglect of duty in failing to address the many

complaints about her husband, which showed a lack of concern for students; abused

her power to give her husband preferential pre-arranged assignments for economic

gain; and committed a serious breach of trust by inappropriately accessing KCUSD’s

computer system in order to make the improper pre-arranged assignments. KCUSD

Superintendent, Cynthia Lane, concurred and recommended to the KCUSD School

Board that Ms. Dyer be terminated. KCUSD terminated Ms. Dyer’s employment,

affording her both pre- and post-termination due process.

      Ms. Dyer then filed a complaint alleging KCUSD discriminated against her

because of her race—African American—in violation of Title VII of the Civil Rights


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Act, 42 U.S.C. § 2000e et seq., and breached an implied-in-fact employment contract,

and that Ms. Lane and Ms. Kirkegaard racially discriminated against her in violation

of 42 U.S.C. § 1981. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194

(10th Cir. 2011) (holding that the standards for proving a discrimination claim under

Title VII and under § 1981 are the same). The district court granted summary

judgment in favor of the defendants.

      We review de novo the district court’s grant of summary judgment. Orr v.

City of Albuquerque, 417 F.3d 1144, 1148 (10th Cir. 2005). A party is entitled to

summary judgment if it demonstrates through pleadings, depositions, answers to

interrogatories, admissions on file, or affidavits, that there is no genuine issue as to

any material fact. Fed. R. Civ. P. 56(c).

                                DISCRIMINATION CLAIMS

      To prove a circumstantial-evidence discrimination claim under Title VII or

§ 1981, Ms. Dyer must establish a prima facie case of discrimination by

demonstrating “(1) [she] was a member of a protected class; (2) [she] was qualified

and satisfactorily performing [her] job; and (3) [she] was terminated under

circumstances giving rise to an inference of discrimination.” Salguero v. City of

Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004). If established, the burden then shifts

to the defendant to provide a legitimate, non-discriminatory reason for the

termination. Id. If the defendant does so, the burden shifts back to the plaintiff




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to provide evidence that the defendant’s proffered reasons are pretext for

discrimination. Id.

      The district court ruled Ms. Dyer failed to make out a prima facie case of

discrimination because she failed to show that any similarly-situated non-African

American school employee was treated differently from her. It further ruled that

even if Ms. Dyer had made out a prima facie case of discrimination, the defendants

established legitimate, non-discriminatory reasons for terminating Ms. Dyer, who

failed to present evidence showing that the defendants’ actions were a pretext for

discrimination.

      On appeal, Ms. Dyer argues the district court erred in ruling she did not

establish a prima facie case of discrimination or present evidence of pretext sufficient

to withstand summary judgment. We need only address her pretext arguments to

affirm the district court’s judgment.

             Pretext can be shown by such weaknesses, implausibilities,
      inconsistencies, incoherencies, or contradictions in the employer’s
      proffered legitimate reasons for its action that a reasonable factfinder
      could rationally find them unworthy of credence and hence infer that the
      employer did not act for the asserted non-discriminatory reasons. In
      determining whether the proffered reason for a decision was pretextual,
      we examine the facts as they appear to the person making the decision,
      not the plaintiff’s subjective evaluation of the situation. Thus, the
      relevant inquiry is not whether the employer’s proffered reasons were
      wise, fair or correct, but whether it honestly believed those reasons and
      acted in good faith upon those beliefs.

Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (internal quotation

marks, brackets and citations omitted).


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      As evidence of pretext, Ms. Dyer first cites the defendants’ failure to give her

a written warning or suspension before terminating her, which she claims violates

KCUSD’s progressive discipline policy. A plaintiff may show pretext by evidence

that the employer acted contrary to a written or unwritten policy or company practice

when making the adverse employment decision. Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). It is undisputed that KCUSD has a

progressive discipline policy, but Ms. Dyer did not dispute KCUSD’s evidence that

application of this policy is determined on an individual basis, is generally used only

when KCUSD concludes the issue can be remediated, and generally is not used if the

issue put a student’s safety or welfare at risk or involved a breach of trust. 2 KCUSD

presented evidence that Ms. Dyer’s failure to address her husband’s performance

issues put students’ welfare at risk and that her inappropriate use of its computer

program was a breach of trust. Ms. Dyer fails to show that KCUSD did not follow its

policy in her case or that its explanation for its decision to terminate her without a

warning or suspension is “unworthy of belief.” Id. 220 F.3d at 1230.

      Next, Ms. Dyer cites evidence that she claims shows that three non-African

American employees were treated more favorably than her because they were

suspended or reprimanded for misconduct, not terminated. See id., 220 F.3d at 1232

(holding a plaintiff may show pretext “by providing evidence that he was treated
2
       KCUSD admits that it has an unwritten progressive discipline policy.
Ms. Dyer’s only evidence of a written policy is three incomplete, apparently
unrelated, pages containing snippets of a progressive policy.


                                          -7-
differently from other similarly-situated, nonprotected employees who violated work

rules of comparable seriousness”). Ms. Dyer has the burden to show other employees

were similarly situated. Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1121 n.4

(10th Cir. 2007). She presented evidence that a KCUSD high school principal and

assistant principal were given written reprimands for inadequate accounting controls

and fiscal practices, such as paying for items from the wrong account and failing to

ensure accuracy and accountability. She argues their misconduct is comparable to

hers because it involved fiscal misconduct. But there is no evidence that these two

employees’ actions put students’ safety or welfare at risk, that they breached any

position of trust, or that they or their family members personally benefited from their

fiscal mismanagement.

      Ms. Dyer also presented evidence that a third employee, an assistant

superintendent, was suspended for creating an environment in which teachers were

fearful of expressing opinions, for focusing on increasing test scores regardless of

students’ well-being, and having favorite employees. Ms. Dyer argues his

misconduct is comparable to hers because both involved concerns about student

welfare. But there is no evidence that this employee’s emphasis on testing showed as

serious a lack of concern for students’ welfare as Ms. Dyer’s. Ms. Dyer continued to

give her husband teaching assignments despite numerous, specific complaints that he

was neglecting students’ welfare, complaints so serious that four administrators

banned him from their schools. Moreover, there is no evidence that this employee’s


                                         -8-
actions breached any position of trust or that he or his family personally benefited

from his misconduct. Ms. Dyer’s evidence fails to establish pretext because she

failed to proffer evidence showing that these employees’ misconduct were of

comparable seriousness to her own misconduct. See Kendrick, 220 F.3d at 1233

(“A company must be allowed to exercise its judgment in determining how severely

it will discipline an employee for different types of conduct.”).

      Finally, Ms. Dyer asserts that two statements in Ms. Kirkegaard’s report

concerning Ms. Dyer’s admissions of wrongdoing were false. Ms. Kirkegaard

reported that Ms. Dyer admitted pre-arranging thirty substitute assignments for her

husband and admitted this was preferential treatment. Ms. Dyer asserts she did not

make these admissions in her interview, and she argues Ms. Kirkegaard’s alleged

dishonesty is evidence of pretext. We disagree. Ms. Dyer disputes the number of

times she pre-arranged assignments—apparently because of how she defines the

term—but she does not deny the relevant fact in the report that she did pre-arrange

assignments for her husband, nor does she dispute that KCUSD’s policy is to

randomly assign substitute teachers. Further, notwithstanding her own beliefs or

admissions, Ms. Dyer presents no evidence that the defendants did not believe she

gave her husband preferential treatment in pre-arranging assignments for him. Her

disputes about Ms. Kirkegaard’s report do not suggest that KCUSD’s explanation for

terminating her are unworthy of belief. See id., 220 F.3d at 1231 (“[A] challenge of

pretext requires us to look at the facts as they appear to the person making the


                                          -9-
decision to terminate.”). We agree with the district court’s conclusion that Ms. Dyer

has not shown the existence of any genuine factual dispute regarding pretext.

                           BREACH OF IMPLIED CONTRACT

      Ms. Dyer contends she had an implied-in-fact contract with KCUSD that she

could only be terminated for just cause. KCUSD argued that, assuming for

arguments sake that was true, it was entitled to summary judgment because it is

undisputed that it did terminate her for just cause. The district court agreed with

KCUSD, ruling the uncontroverted evidence established that KCUSD had just cause

to terminate Ms. Dyer based on the evidence she abused her position of trust by

circumventing the random assignment process for the benefit of her husband and

failing to act on serious complaints about his performance.

      On appeal, Ms. Dyer cites the same evidence she cited as pretext to argue there

was not just cause to terminate her, namely, that she was not given an opportunity to

remediate her misconduct, that other employees were given that opportunity, and that

she did not admit to pre-arranging assignments thirty times or giving her husband

preferential treatment. Again, Ms. Dyer only disputes the number of times she

improperly pre-arranged assignments, but it is undisputed she improperly

pre-arranged some number of teaching assignments for her husband. She disputes

the seriousness of the complaints about his performance but it is undisputed she

failed to take any action whatsoever on numerous complaints about his conduct

which were serious enough to the reporting schools to request Mr. Dyer never again


                                         - 10 -
be assigned to their schools. Ms. Dyer’s disputes do not create a genuine issue of

material fact as to whether KCUSD had just cause to terminate her employment,

because it is undisputed that she abused her authority and breached her position of

trust. The district court did not err in granting summary judgment in favor of

KCUSD on Ms. Dyer’s breach-of-implied contract claim.

      The judgment of the district court is affirmed.


                                                 Entered for the Court


                                                 Stephen H. Anderson
                                                 Circuit Judge




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