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

                             FOR THE TENTH CIRCUIT                         December 2, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MONICA MORMAN, M.D., an individual,

      Plaintiff - Appellant,

v.                                                          No. 14-8090
                                                   (D.C. No. 1:13-CV-00243-ABJ)
CAMPBELL COUNTY MEMORIAL                                      (D. Wyo.)
HOSPITAL; ROBERT MORASKO;
SARA HARTSAW, M.D.; NANCY
TARVER; HARVEY JACKSON; JOE
HALLOCK; ALAN L. MITCHELL, M.D.;
GEORGE DUNLAP; BROOK
BAHNSON, in their individual and official
capacities,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Dr. Monica Morman is a board-certified orthopedic surgeon at Campbell

County Memorial Hospital (CCMH) in Gillette, Wyoming. She contends that CCMH

discriminated against her based on her gender by providing better facilities,

compensation, assistance, equipment, and advertising to its three male orthopedic

surgeons. Dr. Morman’s sole claim is that the defendants, as state actors, violated her


      *
         This order and judgment is not binding precedent, except under the doctrines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.
equal-protection rights under the Fourteenth Amendment. She seeks redress for that

violation under 42 U.S.C. § 1983. The district court dismissed Dr. Morman’s lawsuit

under Fed. R. Civ. P. 12(b)(6) and, alternatively, dismissed on qualified-immunity

grounds the claim against CCMH’s board members and Robert Morasko (CCMH’s

Chief Executive Officer) in their individual capacities.

      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm on both grounds.

First, Dr. Morman has not pleaded a plausible gender-discrimination claim because,

even accepting her facts as true, she and her three male colleagues were not similarly

situated. CCMH employed the three male orthopedic surgeons as part of a multi-

million-dollar purchase of the surgeons’ Powder River Orthopedics & Spine, P.C.

(PROS) business, including the surgeons’ building, equipment, and practice. By

contrast, CCMH employed Dr. Morman solely for her skill and experience. And

second, the board members and Morasko are entitled to qualified immunity in their

individual capacities because Dr. Morman has failed to show any clearly established

law that would have put the defendants on notice that their acquisition terms would

violate the Equal Protection Clause.




                                           2
                              I.     BACKGROUND

                                    A.     Facts1

      Dr. Morman is a board-certified orthopedic surgeon, specializing in hand,

wrist, and shoulder surgeries. She graduated from medical school in 1997. During the

next eight years, she completed an orthopedic-surgery residency, became board-

eligible under the American Board of Orthopaedic Surgery’s standards, became

board-certified for Orthopaedic Surgery under those same standards, completed a

hand-surgery fellowship, and received her Certification of Additional Qualification in

Hand Surgery.

      For five years after her hand-surgery fellowship, from 2003 to 2008, Dr.

Morman worked at PROS in Gillette, Wyoming. During this time, four other

orthopedic surgeons owned PROS: Drs. Nathan Simpson, Hans Kioschos, John Dunn,

and Gerald Baker. In 2008, Dr. Morman left PROS for a one-year fellowship at

Massachusetts General Hospital. In 2009, after completing the fellowship, Dr.

Morman returned to Gillette, Wyoming, and began working at CCMH, directly

competing with PROS for clientele. Dr. Morman’s contract with CCMH entitled her

to both an annual base salary of $550,000 and biannual bonus payments based on her

productivity. As bonus payments, Dr. Morman was entitled to 55% of all gross

collections that CCMH received for her services in excess of $500,000 during each


      1
         In reviewing a dismissal for failure to state a claim, we must “accept[] all
well-[pleaded] facts as true and view[] them in the light most favorable to the
plaintiff.” Barnes v. Harris, 783 F.3d 1185, 1191–92 (10th Cir. 2015). As we discuss
later, we distinguish well-pleaded facts from legal conclusions.
                                          3
six-month bonus period. In earning her salary and bonuses, Dr. Morman felt hindered

by CCMH’s management of her practice. She argues that the hospital’s policies

placed her at a competitive disadvantage to nearby privately employed orthopedic

surgeons, including those at PROS. In December 2011, she renegotiated her contract

terms, getting a higher base pay of $58,333.34 per month plus $4,166.67 per month

to be on call ($62,500 per month or $750,000 annually) in exchange for an increased

revenue threshold before earning bonuses. Her base pay, however, was subject to

reduction if collections from her professional services fell below certain threshold

amounts. If she failed to meet those specified targets, her base salary for the next six

months would be reduced to $45,833.33 plus $4,166.67 for call coverage.

      In June 2012, CCMH agreed to a multi-million-dollar deal to purchase PROS

(including the building, equipment, and practice) from its three remaining owners

(Drs. Simpson, Kioschos, and Dunn), as well as to employ them at CCMH.2 The

district court explained that the different employment terms resulted from the great

disparity in what the PROS male surgeons brought to the negotiating table as

compared to what Dr. Morman had brought.




      2
        As part of the deal, CCMH also purchased various assets from Bone & Joint
Radiology, LLC for $4,000,000. These assets included: “[t]he digital x-ray
equipment, MRI equipment and assumption of the lease, good will and blue sky,
inventory, including supplies and stock in trade as of closing, furniture, fixtures,
computer software and hardware used in connection with [Bone & Joint] Radiology’s
operations, medical records, patient charts, progress notes, reports and similar
records.” Appellant’s App. vol. 2 at 180. PROS owned Bone & Joint Radiology, so
PROS’s three owners benefited from the asset sale.
                                           4
                             B.     Procedural History

      In October 2013, Dr. Morman filed her federal lawsuit, asserting a single claim

against CCMH, its CEO, and its board members. The claim is one for gender-based

discrimination under the Fourteenth Amendment, as enforced by 42 U.S.C. § 1983. In

support of her claim, she alleged that the defendants treated her differently from the

male orthopedic surgeons (who had owned PROS) by providing her with less-

favorable pay and terms and conditions of employment. Specifically, in her

complaint, Dr. Morman identified six ways in which the defendants had

discriminated against her based on gender:

    CCMH allowed the PROS surgeons to continue operating under the name
     “Powder River Orthopedics & Spine.” In contrast, although Dr. Morman’s
     orthopedic clinic at CCMH was originally called “Orthopaedic Specialists of
     Wyoming—a CCMH Clinic,” CCMH, soon after she began work, changed the
     name to “Campbell County Clinic—Orthopedics.” In Dr. Morman’s view, the
     name “County Clinic” put her at a competitive disadvantage by conveying an
     image of “free clinics for the indigent” and “substandard care.” Appellant’s
     App. vol. 1 at 14.

    CCMH funded PROS’s existing advertising campaign, which was more
     aggressive than the advertising for Dr. Morman’s clinic.

    CCMH purchased the building that had previously housed the PROS surgeons’
     private orthopedic practice and allowed them to continue practicing out of it,
     providing them with a superior office space to Dr. Morman’s. She argued that
     her office was insufficient for her practice and that the inadequate space
     resulted in inefficiencies and disorganization.

    CCMH allowed the PROS surgeons to hire and fire their own staff and to
     manage their own billing. CCMH also paid them a management fee to run the
     practice. By contrast, Dr. Morman argued that CCMH disallowed her from
     managing her clinic, kept her from hiring or firing staff, did not provide her
     onsite billing, and denied her a full-time office manager for her practice.



                                          5
    CCMH did not provide Dr. Morman with onsite radiology equipment, but
     CCMH purchased the PROS surgeons’ radiology equipment and allowed them
     to continue to maintain radiology services onsite.

    CCMH allowed the PROS surgeons to maintain their ownership in an outside
     imaging and surgery center, but it kept Dr. Morman from establishing an
     ownership interest in any center competing with CCMH.

Dr. Morman claimed that these facts demonstrate CCMH discriminated against her

based on gender. She alleged in her complaint that she has been employed by CCMH

longer and “is more highly qualified than [the PROS surgeons] because, unlike the

three male doctors, she has completed both a hand surgery fellowship and a shoulder

surgery fellowship.” Appellant’s App. vol. 1 at 23. Accordingly, she contended that

the differential treatment “was performed knowingly, intentionally and maliciously to

deprive Dr. Morman of her rights under the United States Constitution.” Id.

       In response, the defendants filed a Rule 12(b)(6) motion to dismiss, asserting

that Dr. Morman had failed to state a claim upon which relief could be granted. After

full briefing, the district court granted the motion. It concluded that the PROS

surgeons and Dr. Morman were not similarly situated, defeating her equal-protection

claim. It noted that CCMH had hired the PROS surgeons as part of negotiations to

purchase their private practice, putting the PROS surgeons in a dissimilar (and

stronger) bargaining position than Dr. Morman. Because of this difference, the

district court concluded that the parties were not similarly situated and that Dr.

Morman had failed to plead a plausible claim for relief. Alternatively, the district

court held that the board members and Morasko were entitled to qualified immunity

in their individual capacities.

                                          6
                                 II.    DISCUSSION

      On appeal, Dr. Morman contends that the district court erred by dismissing her

claim. She argues that the district court “exceeded its authority when it weighed the

evidence and made a factual determination as to whether Dr. Morman was similarly

situated to her male peers.” Appellant’s Opening Br. 27. She also asserts that the

district court applied the incorrect legal standard, arguing that Fed. R. Civ. P. 8(a)

requires her to provide only a short and plain statement of a plausible claim to give

the defendants notice of the nature of the claim and grounds upon which it rested.3

She argues that she did just that. Further, she contends that the district court erred in

granting qualified immunity to the board members and Morasko in their individual

capacities because the differential treatment “violated her clearly established

constitutional right to be free from gender discrimination in the workforce.” Id. at 28.

We disagree with both arguments.4




      3
          Rule 8(a) provides:

      A pleading that states a claim for relief must contain: (1) a short and
      plain statement of the grounds for the court’s jurisdiction, unless the
      court already has jurisdiction and the claim needs no new jurisdictional
      support; (2) a short and plain statement of the claim showing that the
      pleader is entitled to relief; and (3) a demand for the relief sought,
      which may include relief in the alternative or different types of relief.
      4
        The board members and Morasko also argued at the district court and on
appeal that they are protected by absolute legislative immunity. Because of our
conclusions on the other issues, we need not address this claim.
                                           7
                              A.     Standard of Review

      We review de novo a district court’s dismissal granted under Rule 12(b)(6).

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). But

as we do so, Dr. Morman argues that we need ask only if she satisfied the liberal

pleading standard of Rule 8(a). She’s right. But she is mistaken as to what Rule 8(a)

requires. The Supreme Court has recently devoted considerable attention to clarifying

the standard used to evaluate a Rule 12(b)(6) motion to dismiss. In her argument, Dr.

Morman ignores these recent developments in the pleading standard as announced in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.

662 (2009).

      In Twombly, the Supreme Court clarified the relationship between Rules 8(a)

and 12(b)(6). The Court explained that, to survive a motion to dismiss, a complaint

must contain “enough facts to state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. A plaintiff must “nudge[] [her] claims across the line from

conceivable to plausible.” Id. Mere “labels and conclusions” and “a formulaic

recitation of the elements of a cause of action” are insufficient. Id. at 555.

      The Court expanded upon this in Iqbal. There, examining the effect of a

complaint’s legal conclusions, the Court explained that “the tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable.” Iqbal,

556 U.S. at 678. As the Court noted, “Rule 8 marks a notable and generous departure

from the hyper-technical, code-pleading regime of a prior era, but it does not unlock

the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id.

                                            8
at 678–79. We assume the veracity of well-pleaded facts, but we must “then

determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.

“[O]nly a complaint that states a plausible claim for relief survives a motion to

dismiss.” Id.

      Together, these cases offer a “refined standard” for us to consider when

evaluating dismissals. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th

Cir. 2011). Where a complaint contains allegations that are “so general that they

encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not

nudged their claims across the line from conceivable to plausible.’” Robbins v.

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at

570). What this means in any given case will depend entirely on the nature of the

claims and the context in which they arose. See Kan. Penn Gaming, 656 F.3d at 1215

(“The nature and specificity of the allegations required to state a plausible claim will

vary based on context.”). As the Supreme Court has explained, we must draw upon

our “judicial experience and common sense.” Iqbal, 556 U.S. at 679. Thus, though a

plaintiff need not meet the outdated and ill-informed requirements of code-pleading,

a court must find some plausible claim for a complaint to survive a motion to

dismiss. Id. at 678–79.

      So where does that leave us? In Khalik v. United Air Lines, 671 F.3d 1188

(10th Cir. 2012), we explained that “[w]hile the 12(b)(6) standard does not require

that [a plaintiff] establish a prima facie case in her complaint, the elements of each

alleged cause of action help to determine whether [she] has set forth a plausible

                                           9
claim.” Khalik, 671 F.3d at 1192. Accordingly, to assess whether Dr. Morman’s

complaint is “plausible” and thus survives the defendants’ 12(b)(6) motion to

dismiss, “we start by discussing the elements a plaintiff must prove to establish a

claim for discrimination.” Id.

                B.      Dr. Morman’s Gender-Discrimination Claim

      As a threshold matter, we must determine the nature of Dr. Morman’s sole

claim—a gender-based equal-protection claim under the Fourteenth Amendment. In

short, she supports this claim by contending that CCMH and the individual

defendants failed to provide her with the same employment benefits provided to the

three PROS male orthopedic surgeons later employed by CCMH. As she did in the

district court, Dr. Morman rests her claim not on disparate impact, but on disparate

treatment. Disparate treatment is intentional discrimination, while disparate impact

involves “practices that are not intended to discriminate but in fact have a

disproportionately adverse effect on [the protected class].” Ricci v. DeStefano, 557

U.S. 557, 577 (2009).

      In her complaint, Dr. Morman alleges that all “conduct was performed

knowingly, intentionally and maliciously to deprive Dr. Morman of her rights under

the United States Constitution.” Appellant’s App. vol. 1 at 23. She also claims that

“the acts of the individual defendants alleged in this Complaint constituted an official

policy or custom of CCMH and/or deliberate indifference on the part of CCMH.” Id.

But, as the district court determined, Dr. Morman’s allegation that the defendants

acted under a custom or policy is a legal conclusion unsupported by any of her

                                          10
factual allegations. The Supreme Court explained in Iqbal that “a court considering a

motion to dismiss can choose to begin by identifying pleadings that, because they are

no more than conclusions, are not entitled to the assumption of truth.” 556 U.S. at

679. We therefore agree with the district court that we need not accept this allegation

as true. She also abandoned the policy argument when she failed to argue it in

response to the motion to dismiss, and she does not assert this argument on appeal.

Thus, like the district court, we will evaluate her claim within the disparate-treatment

framework.

       To prove an equal-protection claim based on disparate treatment, a plaintiff

must provide either direct evidence of discrimination or prevail under the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972).5

Khalik, 671 F.3d at 1192. Under McDonnell Douglas, the plaintiff must first prove a

prima facie case of discrimination. Id. If she does so, then the burden “shifts to the

defendant to produce a legitimate, non-discriminatory reason for the adverse

employment action.” Id. If the defendant provides such a reason, “the burden then

shifts back to the plaintiff to show that the plaintiff’s protected status was a

determinative factor in the employment decision or that the employer’s explanation is

pretext.” Id.


       5
        “[T]he elements of a plaintiff’s case are the same, based on the disparate
treatment elements outlined in McDonnell Douglas, whether that case is brought
under §§ 1981 or 1983 or Title VII.” Drake v. City of Fort Collins, 927 F.2d 1156,
1162 (10th Cir. 1991); see Randle v. City of Aurora, 69 F.3d 441, 450 (10th Cir.
1995) (stating that a city can be held liable for any impermissible employment
decisions under either §§ 1981 or 1983).
                                          11
       We must pause here, though, to ask what this means in the procedural posture

of this case: a Rule 12(b)(6) motion to dismiss.

       In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court

explained that McDonnell Douglas’s prima facie case is “an evidentiary standard, not

a pleading requirement.” Swierkiewicz, 534 U.S. at 510. As the Court made clear, the

standards for employment discrimination set forth in McDonnell Douglas simply do

not “apply to the pleading standard that plaintiffs must satisfy in order to survive a

motion to dismiss.” Id. at 511. Still, Twombly and Iqbal require that a plaintiff allege

a plausible claim. Despite what Dr. Morman suggests, we can evaluate her claim’s

plausibility only by considering the prima facie case of discrimination that she would

need to prove in court. In pleading a discrimination claim, she need not set forth a

prima facie case for discrimination. But she must allege facts that make such a claim

at least plausible.

       Thus, to evaluate whether her complaint survives a motion to dismiss, absent

direct evidence of discrimination, we examine the first step of the McDonnell

Douglas framework: the elements Dr. Morman would need to establish to prove a

prima-facie case of gender discrimination. See Khalik, 671 F.3d at 1192. That is the

only way to assess if her claim is, in fact, plausible. Dr. Morman must have pleaded a

plausible claim of gender discrimination to survive dismissal. The inferences offered

by the McDonnell Douglas framework assist judges in resolving motions to dismiss

by providing an analytical framework to sift through the facts alleged. Messina v.

Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir. 1990). Although the

                                          12
burden-shifting framework is only an evidentiary standard, we must recognize that

“the McDonnell Douglas framework should not be applied in a manner that renders it

nothing more than an empty pleading formula, allowing every allegation of employer

discrimination to get to a jury.” Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1173

(10th Cir. 2007); see id. (evaluating the standard in the context of a motion for

summary judgment).

      What Dr. Morman needed to plead to state a plausible claim of discrimination

depends on the nature of the claim she filed. Here, Dr. Morman’s sole claim is

premised on the Equal Protection Clause, which requires that no state “deny to any

person within its jurisdiction equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. This constitutional guarantee “prohibits state and local governments from

treating similarly situated persons differently.” Rector v. City & Cty. of Denver, 348

F.3d 935, 949 (10th Cir. 2003). The fundamental guarantee is that “all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

473 U.S 432, 439 (1985).

      The prima-facie case required to support a claim of intentional discrimination

under the Equal Protection Clause varies based on the context and nature of the facts.

Indeed, “[t]he Supreme Court recognized in McDonnell 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.” Plotke v. White, 405 F.3d

1092, 1099 (10th Cir. 2005) (citing McDonnell Douglas, 411 U.S. at 802 n.13); see

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (explaining that

                                         13
McDonnell Douglas created a flexible standard for plaintiffs to show a prima facie

case of discrimination that may be modified to fit the facts of a case). “[T]he

McDonnell Douglas burden-shifting framework applies to equal-protection claims in

the employment context.” Ney v. City of Hoisington, 264 F. App’x 678, 684 (10th

Cir. 2008) (unpublished).

      Because there are varying standards based on the particular facts of any given

discrimination case, the parties dispute which elements should apply here.6 But we

need not decide the specific elements Dr. Morman would need to prove to succeed at

trial. Under any standard, to prevail on an equal-protection claim, she would need to

show that she was treated differently than similarly situated employees—in other

words, she needed to be similarly situated to the male orthopedic surgeons. See

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (explaining that a plaintiff

must show that she was “intentionally treated differently from others similarly

situated”). In any employment-discrimination case, the ultimate issue and “central

focus of the inquiry . . . is always whether the employer is treating some people less

favorably than others because of their race, color, religion, sex, or national origin.”


      6
        On the one hand, in her response to the motion to dismiss, Dr. Morman urged
the court to apply the standard from E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790 (10th
Cir. 2007): “[A] prima facie case of discrimination must consist of evidence that
(1) the victim belongs to a protected class; (2) the victim suffered an adverse
employment action; and (3) the challenged action took place under circumstances
giving rise to an inference of discrimination.” PVNF, 487 F.3d at 800. On the other
hand, the defendants turn to Orr v. City of Albuquerque, 417 F.3d 1144 (10th Cir.
2005), which required a plaintiff to prove “(1) membership in a protected class, (2)
adverse employment action, and (3) disparate treatment among similarly situated
employees.” Orr, 417 F.3d at 1149. The district court applied the latter.
                                          14
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (internal quotation marks

omitted). Thus, to survive the motion to dismiss, Dr. Morman needed to plead a

plausible claim that she was similarly situated to the male orthopedic surgeons. That

she has failed to do.

      Accepting all of Dr. Morman’s allegations as true, we readily can see that she

hasn’t pleaded a plausible claim that she was similarly situated to the PROS surgeons

“in all material respects.” Kan. Penn Gaming, 656 F.3d at 1217 (emphasis added).

Gender alone is insufficient without considering other factors, such as the contrasting

circumstances in which Dr. Morman and the PROS surgeons became CCMH

employees.

      In September 2009, CCMH employed Dr. Morman after she returned from her

Massachusetts fellowship. In May 2012, by contrast, CCMH hired the PROS

surgeons as part of CCMH’s multi-million-dollar purchase of their ongoing practice,

building, and equipment. Thus, CCMH hired Dr. Morman as a qualified surgeon who

just had returned to Gillette, but hired the PROS surgeons as part of a multi-million-

dollar transaction in which they sold their established orthopedic surgery and

radiology practices to CCMH.

      Simply put, the facts Dr. Morman alleged in her complaint show her

dissimilarity from the PROS surgeons. She did not offer anything approaching the

level of assets, staff, building, patient base, equipment, or years of building a local

and regional reputation as had the PROS surgeons. Her education and skill cannot

justify a legal rule requiring that, before acquiring PROS and hiring its owners,

                                          15
CCMH must elevate Dr. Morman’s employment conditions to those offered to the

PROS surgeons. Nor can it justify a rule requiring that it must condition its purchase

of PROS upon its three surgeons receiving the same pay and employment conditions

as it had hired Dr. Morman. Simply put, the Equal Protection Clause provides no

such relief here.

       Dr. Morman incorrectly contends that the district court engaged in

impermissible fact-finding in dismissing her claim. In fact, the district court did no

more than faithfully accept her factual allegations as true and evaluate those facts

within the disparate-treatment framework. It examined the consideration paid for the

PROS practice, the negotiated management agreement, and the services that the

PROS surgeons provided. When it looked at these facts alleged in her complaint, the

district court concluded—and we agree—that the PROS surgeons “brought many

things to the bargaining table when they were hired that [Dr. Morman] simply did

not.” Appellant’s App. vol. 3 at 347. As the district court explained, all of the issues

that form the bases of Dr. Morman’s claim—the clinic name; employee hiring,

staffing, and management; the office space; radiology services; and marketing

campaigns—“are things [the PROS surgeons] brought to the table when they entered

into the agreements with CCMH three years after [Dr. Morman] was hired.” Id.

       As Dr. Morman acknowledges, to prevail she must plausibly allege that the

differential treatment is “on account of being a member of a protected class.”

Appellant’s Opening Br. 37. The Fourteenth Amendment provides “equal laws,” but

it does not guarantee “equal results.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,

                                          16
273 (1979). Here, given the difference in what Dr. Morman and the PROS physicians

brought to CCMH, Dr. Morman has not pleaded a plausible claim for gender

discrimination. Her facts, accepted as true, show only that the hospital’s negotiations

with different parties resulted in different outcomes—the PROS surgeons had far

more to offer CCMH when they negotiated their terms of employment. Because Dr.

Morman has failed to allege a plausible claim that she was treated differently than

similarly situated employees, we hold that the district court properly dismissed her

discrimination claim.

                              C.    Qualified Immunity

      Dr. Morman also argues that the district court improperly held that CCMH’s

board members and Morasko were entitled to qualified immunity in their individual

capacities. We disagree.

      We review de novo a district court’s decision to grant qualified immunity.

Harman v. Pollock, 446 F.3d 1069, 1077 (10th Cir. 2006). We evaluate a Rule

12(b)(6) dismissal based on qualified immunity under a two-part test that asks:

(1) whether the plaintiff’s constitutional right was violated, and (2) whether that right

was clearly established at the time it was violated. Pearson v. Callahan, 555 U.S.

223, 232 (2009). Under Pearson, we have discretion to address either prong first “in

light of the circumstances in the particular case at hand.” Id. at 236. In this case, we

begin—and end—with the second prong.

      For a right to be clearly established, “there must be a Supreme Court or Tenth

Circuit decision on point, or the clearly established weight of authority from other

                                           17
courts must have found the law to be as the plaintiff maintains.” Fogarty v. Gallegos,

523 F.3d 1147, 1161 (10th Cir. 2008) (internal quotation marks omitted). We

acknowledge that “[t]he plaintiff is not required to show, however, that the very act

in question previously was held unlawful . . . to establish an absence of qualified

immunity.” Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (internal

quotation marks omitted). Defendants must make “reasonable applications of the

prevailing law to their own circumstances.” Currier v. Doran, 242 F.3d 905, 923

(10th Cir. 2001) (internal quotation marks omitted).

      Here, Dr. Morman contends that she has identified clearly established law

supporting her view that CCMH and the individual defendants violated her equal-

protection rights by employing the PROS male surgeons on terms more favorable

than those she agreed to for herself. Broadly she asserts that any public official would

know that gender discrimination is unlawful. She argues that “precedent from both

the Supreme Court and this Court should have made it clear to any person in the

defendants’ position that it would have been unlawful to treat Dr. Morman differently

from her male colleagues in the manner described in the Complaint based on her

[gender].” Appellant’s Opening Br. 54–55.

      Despite her argument that the law was clearly established, Dr. Morman fails to

meet her burden. She references “precedent from both the Supreme Court and this

Court,” but fails to offer anything more than general principles of law to support her

claim. Id. at 54. The issue here is not whether Dr. Morman had a right to be free from

gender discrimination in the workplace—there is no dispute about that. Instead, the

                                          18
question is whether clearly established law required CCMH to employ the PROS

surgeons on the same terms as Dr. Morman when entering a multi-million dollar

acquisition of their longtime local and regional practice, building, and equipment. Dr.

Morman would have to plausibly allege that the defendants as reasonable officials

would understand that their actions would violate her equal-protection rights. See

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

       Here, Dr. Morman has not cited a single case that would support her position

that the law demands equal results when an employer negotiates an employment

contract with differently situated employees. Instead, she merely cites Feeney, 442

U.S. at 273, and City of Cleburne, 472 U.S. at 439, for general principles of equal-

protection jurisprudence. Because Dr. Morman offers nothing more than “a broad

general proposition,” Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007) (en

banc) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)), we conclude that Dr.

Morman failed to show that the individual defendants violated clearly established

law. Thus, we hold that qualified immunity protects the defendant board members

and Morasko from suit and liability in their individual capacities. We therefore affirm

the district court.

                               III.   CONCLUSION

       Because Dr. Morman failed to state a plausible claim for relief and qualified

immunity shields the defendant board members and Morasko from liability in their




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individual capacities, we affirm the district court on all grounds.



                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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