                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                        June 2, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT


 KAMEISHA HAMILTON,

          Plaintiff - Appellant,
                                                   Nos. 06-6235 and 06-6256
 v.                                                 (D.C. No. 04-CV-266)
                                                         (W.D. Okla.)
 BOISE CASCADE EXPRESS, a
 division of Boise Cascade Office
 Products, a corporation; SAMANTHA
 MOHR; ROBERT HARPER,
 individually; LAURIE JOHNSON,
 individually; BOISE CASCADE
 OFFICE PRODUCTS
 CORPORATION,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and McCONNELL, Circuit Judges.


      Plaintiff-Appellant Kameisha Hamilton appeals from the grant of summary

judgment in favor of her former employer and certain employees,

Defendant-Appellees Boise Cascade Express (“Boise”), Samantha Mohr (site

manager), Robert Harper (district sales manager), and Laurie Johnson (human


      *
        This order and judgment is not binding precedent, except under the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.
resources manager), on her race discrimination claims under Title VII and 42

U.S.C. § 1981. Our jurisdiction arises under 28 U.S.C. § 1291, 1 and we affirm.



                                    Background

      Plaintiff began her employment with Boise on March 24, 2003. Beginning

in late April or early May, Plaintiff had a number of appointments with her

physical therapist and physician that required her to miss some of her 7:30 a.m. to

4:30 p.m. shift. Although the exact times of the appointments are not found in the

record, Plaintiff admitted that she was never at an appointment before 8:00 a.m.

or after 5:00 p.m. Aplt. App. at 1365. The offices of her physical therapist and

physician are located 40 minutes and one hour from her workplace, respectively.

See id. at 1365–66. Plaintiff admitted that, for example, to arrive at a 4:00 p.m.

physical therapy appointment, she would have to leave at 3:20 p.m. at the latest to

arrive on time. See id. at 1365. Plaintiff attended a number of appointments on

      1
          Defendants argue that the notice of appeal filed on July 14, 2006, is
untimely to appeal the district court’s judgment against the Plaintiff entered on
January 19, 2006. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed
within 30 days after judgment). This contention is meritless given that a joint
stipulation of dismissal of the remaining parties and their claims was not entered
until June 19, 2006, well after the January 19, 2006 judgment. See Fed. R. Civ.
P. 54(b). Defendants argue that because they modified the caption in their
pleadings to delete the settling plaintiffs, and the district court followed entering
judgment with a similar caption, the January 19, 2006 judgment was final. We
disagree. Nothing suggests that the caption had ever been properly amended, or
that a final judgment over all the parties was entered prior to the stipulation of
dismissal of the remaining parties. See Beugler v. Burlington N. & Santa Fe Ry.
Co., 490 F.3d 1224, 1227 n.1 (10th Cir. 2007).

                                         -2-
days when she was scheduled to work.

      Another associate complained to a supervisor that Plaintiff was not working

the whole day, which the supervisor confirmed. See id. at 245. Subsequently, the

human resources manager, Laurie Johnson, reviewed Plaintiff’s time sheets,

phone records, and key fob records (records of when an employee’s badge was

swiped to enter the building), and concluded that Plaintiff had inaccurately

reported her time on the following dates: May 1, May 22, May 30, June 2, June

11, June 12, June 16, and June 20, 2003. See id. at 251–55. On June 23, 2003,

Robert Harper, a sales manager but not a supervisor over Plaintiff, invited

Plaintiff to a meeting in Ms. Johnson’s office where Ms. Johnson told Plaintiff the

purpose of the meeting was to discuss her excessive absenteeism and time card

fraud. Ms. Johnson showed Plaintiff her phone records and time sheets saying

that she committed time card fraud. See id. at 1353. At the end of the meeting,

Ms. Johnson told Plaintiff her employment was being terminated because she

committed time card fraud. See id. at 1354.

      Plaintiff filed this lawsuit alleging in her complaint that she was fired

because of her race. 2 Defendants filed a motion for summary judgment which the

district court granted. Hamilton v. Boise Cascade Express, No. 04-266, 2006 WL

149023 (W.D. Okla. Jan. 19, 2006). On appeal, Plaintiff argues that fact


      2
         Originally, the lawsuit involved four other plaintiffs who have all settled
their claims with Defendants.

                                         -3-
questions regarding Boise’s belief that Plaintiff engaged in time card fraud should

have precluded summary judgment. 3



                                    Discussion

      We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483

F.3d 1106, 1112 (10th Cir. 2007). Summary judgment is appropriate only “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Thus, to survive

summary judgment a non-moving party must put forth sufficient evidence—more

than a scintilla—such that a reasonable jury could find in its favor. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). We view the facts in the light

most favorable to the non-moving party. Scott v. Harris, 127 S. Ct. 1769, 1774

(2007).

      Where a plaintiff relies on indirect or circumstantial evidence to show


      3
         We note that Plaintiff’s briefs fail to conform to the requirements of
Federal Rule of Appellate Procedure 28(a)(7) and (e) in the statement of facts and
citations to the record. It is inappropriate to reproduce verbatim the voluminous
facts from summary judgment pleadings and not pinpoint cite to the appendix.
See 10th Cir. R. 28.4; Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820
n.8 (3d Cir. 2006). Despite these deficiencies, we will still address the merits of
Plaintiff’s appeal. See MacArthur v. San Juan County, 495 F.3d 1157, 1161 (10th
Cir. 2007).

                                        -4-
discrimination under Title VII, we examine the claim under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04

(1973). See Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir. 2006).

First, the plaintiff must establish a prima facie case of discrimination. See id. If

the plaintiff establishes a prima facie case, the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason for the termination. See id. If

the defendant meets its burden, the burden shifts back to the plaintiff to show that

the defendant’s “proffered justification is pretextual.” See id.

      “In appropriate circumstances, the trier of fact can reasonably infer from

the falsity of the explanation that the employer is dissembling to cover up a

discriminatory purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 147 (2000). Although we do not require “pretext plus,” specifically that a

plaintiff demonstrate that the reason was false and a motive for discrimination,

the falsity combined with other circumstances in the case must permit the

inference that unlawful discrimination was a motivating factor in the decision.

Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005). In

determining whether the proffered reasons were pretextual, we consider the facts

as they appear to the decisionmakers and consider whether they honestly believed

those reasons and acted upon them in good faith. See Young, 468 F.3d at 1250.

      Assuming, arguendo, that Plaintiff has established a prima facie case,

Boise’s proffered non-discriminatory reason is that it terminated Plaintiff’s

                                         -5-
employment because she committed time-card fraud. Plaintiff argues that there is

a fact question concerning pretext when the facts are viewed collectively.

Plaintiff contends that other employees were not disciplined as she was, that her

time-card entries were merely erroneous, not fraudulent, and that a statement by

Valetta Wright demonstrates that management did not believe that she engaged in

time-card fraud. We are not persuaded.

      Insofar as evidence of pretext is based upon disparate treatment, Plaintiff

points to vague testimony that other employees with different supervisors also had

unspecified attendance issues but were treated differently. However, this

evidence falls far short of showing that new employees with approximately 90

days of employment under the same supervisor with similarly egregious reporting

problems received more favorable treatment. See McGowan v. City of Eufala,

472 F.3d 736, 745 (10th Cir. 2006). No evidence supports this angle. Moreover,

Plaintiff maintained that there were no errors on her time cards and has no

explanation for the many inconsistencies. Aplt. App. at 545, 1365.

      Plaintiff also relies on a statement by Valetta Wright, a former plaintiff,

which she put forward to the district court for the first time in her Surreply in

Opposition to Summary Judgment, to which Boise had no chance to respond

before summary judgment was rendered seven days later. Ms. Wright testified at

her deposition: “I remember that [Mr. Harper] said to me after they investigated

that they don’t believe that [Plaintiff] intentionally was fraudulent on her time

                                         -6-
card. . . . And [Ms. Johnson] was right there.” Id. at 1665. Mr. Harper was not

one of the decisionmakers—the decision was made by Ms. Johnson, Ms. Mohr,

and Diane Wiley, the area human resources manager. See id. at 238. Plaintiff

does not contest this and testified that he did not speak during the meeting. See

id. at 1353. We have doubts whether this statement would be admissible, but

even if it were admissible, the outcome is the same. Ms. Wright testified that Mr.

Harper made this statement the day following Plaintiff’s termination, but she also

testified that the day of Plaintiff’s termination Ms. Johnson and Mr. Harper stated

that Plaintiff had committed time-card fraud. See id. at 1679–80. Further, the

decisionmakers Ms. Mohr and Ms. Johnson testified that they believed that the

evidence showed, and Plaintiff admitted, that she recorded substantial time that

she did not work, and the record evidence fully corroborates this determination.

Boise maintains that Plaintiff missed 64 hours of unscheduled work during her

first three months and that her absences should have been reported as unpaid, as

Plaintiff lacked any paid time off. Even giving Plaintiff the benefit of every

possible doubt, meaning that Boise gave her credit for working through nearly

every lunch hour, there were still 10 hours of unaccounted time for which

Plaintiff was paid. 4 Aplt. App. at 1962. Ms. Mohr specifically testified that

      4
        Ms. Mohr testified that Plaintiff “was not terminated for filling out her
timesheet incorrectly on a daily basis. For example, recording 8 hours when she
only worked 7 or really worked 9. Had her total hours worked added up to the
right amount at the end of the week, she would not have been disciplined.” Aplt.
App. at 1962 (emphasis in original).

                                        -7-
      It wasn’t necessary for her to admit to, quote, fraud. It was
      necessary for her to admit that she knew the time sheets were wrong.
      Whether she equates that with fraud or not, frankly, wasn’t relevant. .
      . . What I know is that she had admitted to physically not being at
      work and the information on the time sheets being incorrect.

Id. at 1231. The fact that Boise may have more generously characterized

Plaintiff’s conduct after the fact does not make a case for pretext especially in

light of Ms. Mohr’s testimony that the distinction now used was irrelevant and the

overwhelming evidence that Boise’s given justification was reasonable.

      The importance of the distinction between time-card fraud and time-card

mistakes, based on Ms. Wright’s testimony and relied on by the dissent, is based

on the assertion that Boise would be able to bypass progressive discipline if

Plaintiff’s conduct was fraudulent but not if it was merely mistaken. However,

Plaintiff has pointed to no evidence in the record supporting this assertion, and

the record does not bear it out. Boise had a progressive discipline policy that

would be triggered, for example, by attendance or performance issues. Id. at 269,

303. However, a violation of a core value of the company, which includes

integrity, safety, and quality improvement, id. at 280, is an exception to the

progressive discipline policy and may result in immediate termination, id. at 269,

303. Integrity issues include “when [employees] are paid for hours worked

during which they were not at work.” Id. at 1961. An employer could reasonably

conclude that these material deviations resulting in Plaintiff being paid for time

she did not work raise an issue of integrity making progressive discipline

                                         -8-
unwarranted. The record clearly shows that Boise terminated Plaintiff for

integrity issues and not for absenteeism. Id. at 1961–62. Thus, Ms. Mohr

testified that it did not matter how Plaintiff’s conduct was characterized because

no one doubted that the conduct implicated integrity concerns. See id. at 1231.

Neither Plaintiff nor the dissent has pointed to any evidence in the record

supporting even the slightest inference that Boise characterized Plaintiff’s

conduct as time-card fraud to deprive her of progressive discipline. Boise’s

characterization of Plaintiff’s conduct is certainly reasonable, and hardly a

“disturbing procedural irregularity” sufficient to prove pretext. See Riggs v.

AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th Cir. 2007) (quotations

omitted). Our role is “not to act as a ‘super personnel department,’ second

guessing employers’ honestly held (even if erroneous) business judgments.”

Dillon, 468 F.3d at 1250 (quotations omitted).

      The dissent argues that the fact that Boise disciplined three African-

American women around the same time supports an inference of unlawful

discrimination. While evidence of a statistical correlation may create an

inference of discrimination, here the evidence is too flawed to raise a jury

question because it fails to compare similarly situated individuals or eliminate

nondiscriminatory explanations for the disparate treatment. See Furr v. Seagate

Tech., Inc., 82 F.3d 980, 986–87 (10th Cir. 1996).

      Although this circuit has rejected a “pretext plus” standard, there are cases

                                         -9-
where it simply would not be permissible to infer discrimination from the

evidence the plaintiff has mustered to show that the employer’s proffered reason

was false. See Reeves, 530 U.S. at 148. We believe that this is one of those

cases. Mr. Harper’s opinion (if it were admissible), and Ms. Johnson’s presence

when he expressed it, may provide a scintilla of evidence that Boise’s explanation

for terminating Plaintiff was false. But we conclude that on this thin basis—and

in the face of overwhelming evidence that Plaintiff was terminated because of

unexplained, inaccurate time-keeping—no reasonable jury could find in Plaintiff’s

favor. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th

Cir. 2007).

      Finally, contrary to Plaintiff’s suggestion, Plotke v. White, 405 F.3d 1092

(10th Cir. 2005), is not almost directly on point here. It is true that we are

skeptical of “subjective evaluations in making termination decisions,” id. at 1106,

but Boise relied on documentary evidence to conclude that Plaintiff could not

have worked all the time she recorded on her time sheets, even assuming she

worked through her lunches, Aplt. App. at 545. In addition, none of the other

evidence supporting our conclusion in Plotke is present here. See 405 F.3d at

1103–08 (relying on, for example, the proffered reason for termination was

generated only after the termination, and the defendant likely fabricated evidence

relating to the termination).

      AFFIRMED. Plaintiff’s motion to amend the caption to omit Plaintiff

                                         - 10 -
Danielle Callaghan as a party due to settlement is GRANTED.

                                    Entered for the Court


                                    Paul J. Kelly, Jr.
                                    Circuit Judge




                                     - 11 -
Hamilton v. Boise Cascade Express, Nos. 06-6235, 06-6256
EBEL, Circuit Judge, dissenting.


      Plaintiff-Appellant Kameisha Hamilton claims Defendants fired her

because of her race. Defendants—Boise Cascade Express and three of its

managerial employees—assert that they, instead, terminated Hamilton’s

employment because they believed, in good faith, that Hamilton had committed

time card fraud. The district court granted Defendants summary judgment. The

specific question before this court now on appeal, therefore, is whether Hamilton

presented evidence calling into doubt Defendants’ good-faith belief that she

committed time card fraud sufficient to survive summary judgment. Because I

conclude she has, I would reverse summary judgment entered for Defendants. 1


      1
        I agree with the majority that we have appellate jurisdiction because
Hamilton filed a timely notice of appeal following the district court’s June 19,
2006, decision dismissing with prejudice the remaining claims and plaintiffs
involved in this litigation. Although neither party argues it, there is another
jurisdictional question lurking here, however, because the district court’s
otherwise final June 19 decision retained jurisdiction to enforce settlement
agreements involving Defendants and several other plaintiffs. This court has
never considered whether such an order is sufficiently final to provide appellate
jurisdiction under 28 U.S.C. § 1291. I would conclude it is, so long as the order
is otherwise final and retains jurisdiction only to enforce a settlement agreement.
See Futernick v. Sumpter Twp., 207 F.3d 305, 310 (6th Cir. 2000) (holding that
the “district court’s retention of jurisdiction to enforce the terms of a settlement
agreement” did not “render[] an otherwise final judgment non-final” because the
judgment in essence “resolved all issues on the merits and effectively ended the
litigation”); see also Bourg v. Cont’l Oil Co., No. 98-30572, 1999 WL 684161, at
*2 & n.3 (5th Cir. Aug. 13, 1999) (unpublished); cf. Brandner Corp. v.
V-Formation, Inc., 98 Fed. App’x 35, 37 (2d Cir. 2004) (unpublished) (referring
to district court’s order resolving all remaining claims as a “final” order, despite
its retention of jurisdiction to enforce settlement, without specifically addressing
whether that order was in fact final for 28 U.S.C. § 1291 purposes). See
       The evidence in the record, viewed in the light most favorable to Hamilton,

as the nonmoving party, see Moore v. Bd. of County Comm’rs, 507 F.3d 1257,

1258 (10th Cir. 2007), indicates the following: Hamilton was fired during a

meeting with Defendants Laurie Johnson, the office human resources manager,

and Robert Harper, a mid-level manager. Johnson told Hamilton, during this

meeting, that she was fired because Hamilton had committed time card fraud.

Nevertheless, the next day Harper stated to Hamilton’s immediate supervisor, in

front of Johnson, that “[w]e do agree with you that Kameisha did not purposefully

falsify her timecard.”

       The majority, like the district court, discounts Harper’s statement because

he was not one of the people who made the decision to fire Hamilton. While that

appears to be true, it is not dispositive in this case. 2


generally Cusumano v. Microsoft Corp., 162 F.3d 708, 710, 712 (1st Cir. 1998)
(noting “[i]t is settled law that a court’s retention of jurisdiction in order to
facilitate the consideration of possible future relief does not undermine the
finality of an otherwise appealable order”); 15B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 3915.3 (2008)
(noting many district court “[r]eservations or conditions are compatible with
finality;” for instance, “[a] judgment that expressly retains jurisdiction to enter
merely ministerial orders . . . can be final”); 36 C.J.S. Federal Courts § 424
(noting that “[t]he fact that a judgment is subject to reservations or conditions
does not automatically deprive the judgment of finality”).
       2
        The majority, without further explanation, “doubts whether [Harper’s]
statement would be admissible.” I harbor no such doubts at this stage of the
litigation. First and foremost, Defendants have never objected to this statement’s
admissibility. While they admittedly had a limited opportunity to object to this
evidence in the district court, because Hamilton submitted this evidence in her
surreply opposing summary judgment, Defendants could have challenged its

                                           -2-
      The district court determined that the decision to fire Hamilton was made

by three people: 1) the general manager of Boise’s Norman, Oklahoma, office,

Defendant Samantha Mohr; 2) Johnson, the human resources manager for that

office; and 3) Boise’s regional human resources manager, Diane Wiley. The

majority agrees. The evidence supports this conclusion and Defendants have

never disputed it.

      But the evidence in the record, viewed in the light most favorable to

Hamilton, see Moore, 507 F.3d at 1258, further indicates that Harper, a mid-level

manager, was actively involved in the investigation of Hamilton’s time records.

Harper was one of only three district sales managers in Boise’s Norman office.

Each of these three managers supervised several “teams” of sales representatives,

such as Hamilton; each sales team was, in turn, directly supervised by a team

leader who reported to one of the three district sales managers.

      Although Harper was not Hamilton’s second-level supervisor, he had been

watching her attendance for several weeks, apparently because Hamilton had

missed a number of days of work. On one occasion while Harper was checking to




admissibility on appeal, but did not. Because there is no specific objection to this
evidence, it is difficult to address its admissibility in such a vacuum. But, if the
majority is concerned that Harper’s statement might be hearsay, Hamilton has all
along argued that Harper’s statement is not hearsay, but instead is admissible as a
statement of a party opponent, made by Boise’s agent, Harper. As such, it
arguably would be admissible. See Fischer v. Forestwood Co., No. 06-4121, 2008
WL 2009866, at *8-*9 (10th Cir. May 12, 2008) (applying Fed. R. Evid. 801).

                                        -3-
see if Hamilton was at work, another of Hamilton’s team members complained to

Harper that Hamilton had been leaving work early. Harper informed Hamilton’s

district sales manager, Larry Woods.

      Mohr, Woods and Johnson met over a weekend to review Hamilton’s time

records, finding discrepancies. Because Mohr and Woods were scheduled to be

out of town on business the following week, Mohr asked Johnson and Harper to

meet with both Hamilton and Hamilton’s direct supervisor, Valetta Wright.

      Harper and Johnson first met with Wright. It was Harper who took the lead

in talking to Wright, questioning her about Hamilton’s time records and informing

her that “we” had been investigating the matter for a week or two.

      Harper and Johnson next met with Hamilton. Although Harper escorted

Hamilton to Johnson’s office and stayed during their meeting, he did not speak.

During this meeting, Johnson fired Hamilton. Later that day, Hamilton

telephoned her direct supervisor, Wright, to apologize, telling Wright that she had

not done anything intentionally.

      That afternoon, Harper and Johnson again met with Wright. Wright told

Harper and Johnson about the call she had received from Hamilton. At the

conclusion of that meeting, Harper and Johnson suspended Wright with pay and

sent her home while they investigated further. Johnson and Harper then

“continued to look through all the documents we had as well as other time sheets

on Ms. [Wright’s] team to verify, to research, to ensure no other time card fraud

                                       -4-
was taking place.”

      The next day, Harper and Johnson called Wright back into work to meet

with them again. It was Harper who opened the meeting by informing Wright that

“[w]e do agree with you that Kameisha didn’t purposely falsify her timecard.”

Wright understood Harper’s reference to “we” to mean Harper and Johnson, who

was also present at this meeting.

      This evidence, viewed in the light most favorable to Hamilton, indicates

that Harper was actively involved in investigating Hamilton’s time records, both

before and after her termination, and was in a position to observe Boise’s

decisionmakers and to know on what evidence they relied to fire her. In light of

that, Harper’s assertion, made in front of one of the decisionmakers, that “[w]e

agree with you that Kameisha didn’t purposely falsify her timecard,” calls into

doubt Defendants’ good-faith belief that Hamilton committed time card fraud.

This lingering doubt enables Hamilton to survive summary judgment.

      The majority further discounts Harper’s statement to Wright by blurring the

distinction between time card fraud and time card mistakes. It has been Boise’s

theory throughout this litigation that it fired Hamilton for time card fraud, rather

than for simply making mistakes in reporting her time. Boise’s managerial

employees have consistently stated that Hamilton was fired for fraud. And

Hamilton, too, reported that Defendants cited fraud as the reason they terminated

her employment.

                                         -5-
      Boise has characterized Hamilton’s conduct as fraudulent, rather than

mistaken, because under the terms of its personnel manual, Boise could fire

Hamilton immediately for fraud, as it did, but would have had to invoke

progressive disciplinary measures instead if she had only made mistakes in

reporting her time. 3 This appears true even though Hamilton was still a

probationary employee at the time she was fired.

      Moreover, there is evidence in the record from which a jury could conclude

that Hamilton had only made mistakes in reporting her time, and had not

committed fraud. Many Boise employees who were trained at the same time

Hamilton received her “new-hire” training were confused about how to complete

their time sheets. During training, new hires were told that if they had to leave

work an hour early one day to attend, say, a medical appointment, the employee

could make up that time by working through lunch another day during that same


      3
        Boise’s progressive discipline policy provided that it would fire an
employee for integrity issues, such as fraud. The majority asserts that Boise
“could reasonably conclude that these material deviations resulting from being
paid for time she did not work raise an issue of integrity making progressive
discipline unwarranted.” It might be true that Boise could have deemed mistakes
made in completing time cards to rise to the level of an integrity issue. But Boise
never made that argument here. Rather, Boise has, all along, indicated that it
fired Hamilton for fraud.

       The majority asserts that “Mohr testified that it did not matter how
[Hamilton’s] conduct was characterized because no one doubted that the conduct
implicated integrity concerns.” But what Mohr said was, it did not matter how
Hamilton characterized her reporting errors, because Boise considered those
errors to be fraudulent.

                                        -6-
week. The employee had to get her supervisor’s approval before doing so,

however. The human resources office instructed employees that if they made up

missed time in this manner, the employee should simply record on her time sheets

that she worked eight hours on each of these days, even though the employee had

actually worked, for example, seven hours one day and nine hours another. In

Hamilton’s case, both Wright and another sales representative testified in their

depositions that Hamilton had been working through her lunch hours to make up

time she had missed, although this would not have been sufficient to make up all

the missed time because the make-up time had to occur during the same week that

the hours were lost.

      Finally, the majority concludes that, even if there is evidence suggesting

that Defendants’ proffered reason for terminating Hamilton—their good-faith

belief that Hamilton committed time card fraud—is false, “this is one of those

cases” “where it simply would not be permissible to infer discrimination from the

evidence [Hamilton] has mustered to show that the employer’s proffered reason”

for terminating Hamilton “was false.” The majority explains that, despite the fact

that Harper’s statement to Wright, made in front of Johnson, “may provide a

scintilla of evidence that Boise’s explanation for terminating [Hamilton] was

false[,] . . . on this thin basis—and in the face of overwhelming evidence that

[Hamilton] was terminated because of unexplained, inaccurate time-keeping—no

reasonable jury could find in [her] favor.”

                                        -7-
      In addition to evidence creating a disputed issue of fact as to whether

Defendants’ proffered reason for terminating Hamilton was false, however, the

record contains other evidence that supports Hamilton’s allegation that

Defendants were acting with a racially discriminatory animus when they fired her.

Johnson met with three employees on June 23, 2003, the day she fired Hamilton.

By the end of that day, Johnson had fired one employee (Hamilton) and

suspended the other two before eventually disciplining them. All three of these

employees are African-American women. The adverse employment actions taken

against these three women, on a single day, caused several other sales

representatives, both black and white, to complain to the human resources

department that there was at least an appearance of racial discrimination

stemming from these and other disciplinary actions. This evidence supports

Hamilton’s assertion that there was a racially discriminatory atmosphere at

Boise’s Norman office. This, coupled with evidence from which a jury could find

that Defendants’ asserted reason for firing Hamilton—time card fraud—was false,

would “permit the inference that unlawful discrimination was a motivating factor”

in Defendants’ decision to fire Hamilton.

      For these reasons, I would reverse summary judgment entered for

Defendants. I would do so reluctantly because the evidence suggesting that

Hamilton did in fact commit time card fraud is quite strong. It is likely that, in

the face of that evidence, a jury considering the merits of Hamilton’s

                                        -8-
discrimination claims would conclude that she had in fact committed fraud in

recording the time she worked. But at this stage of the litigation, our review is

governed by summary judgment principles. See Fed. R. Civ. P. 56(c). And those

principles require that, because Harper’s statement is sufficient to create a

genuinely disputed issue as to whether Defendants had a good-faith belief that

Hamilton committed time card fraud at the time they fired here, Hamilton is

entitled to have a jury decide her race discrimination claims.




                                         -9-
