                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 23 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PATRICIA K. MANN,

                Plaintiff-Appellant and
                Cross-Appellee,
                                                    Nos. 98-3307 & 98-3318
    v.                                            (D.C. No. 96-CV-1333-JTM)
                                                           (D. Kan.)
    HUTCHINSON PUBLIC SCHOOLS,
    U.S.D. 308,

                Defendant-Appellee and
                Cross-Appellant.


                             ORDER AND JUDGMENT           *




Before ANDERSON , BARRETT , and BRISCOE , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Patricia K. Mann appeals from an order of the district court

dismissing her employment retaliation claim. We affirm.

       Ms. Mann was employed by defendant in its maintenance department for

almost eight years, five of them as supervisor of the grounds crew. She

commenced this action after she was terminated, alleging sex discrimination and

retaliation. At the conclusion of trial, the district court granted defendant’s

motion for judgment as a matter of law,     see Fed. R. Civ. P. 50, on her sex

discrimination claim. Her retaliation claim was submitted to the jury. A mistrial

was declared after the jury was unable to reach a verdict.   1
                                                                 Shortly before retrial,

defendant moved to dismiss the retaliation claim. The court granted the motion.

       In appeal No. 98-3307, Ms. Mann argues that the district court erred in

granting defendant’s motion to dismiss her retaliation claim. She also asserts she

met her burden to state a retaliation claim and the second trial should proceed.

Ms. Mann does not contest the dismissal of her sex discrimination claim. In

appeal No. 98-3318, defendant cross-appeals the district court’s denial of its

Rule 50 motion as to Ms. Mann’s retaliation claim.




1
       Ms. Mann states that the jury found that she had been retaliated against, but
was unable to agree on damages. The record does not support this assertion. The
district court stated that the jury was unable to reach a verdict on her retaliation
claim. We accept the district court’s characterization.

                                            -2-
       Ms. Mann argues that defendant’s motion to dismiss was untimely because

it was not filed until just prior to the second trial. Ms. Mann contends defendant

was actually seeking reconsideration, pursuant to Fed. R. Civ. P. 59      , of the

court’s denial of its Rule 50 motion.

       If the motion to dismiss were actually a Rule 59 motion, we would agree

that it was untimely as it was filed more than three months after the declaration

of a mistrial. However, Rule 59 motions are to be filed “after entry of the

judgment.” Id. An order granting a mistrial is an interlocutory order, not a

judgment. Cf. Esneault v. Waterman S.S. Corp.         , 449 F.2d 1296, 1297 (5th Cir.

1971) (order granting mistrial is interlocutory and not appealable as a final

judgment). Defendant did not file its motion to dismiss pursuant to Rule 59.

       Despite the fact that the motion is titled “Motion to Dismiss,” defendant

contends it filed the motion pursuant to Rule 50(a)(2) which permits filing at any

time before the case is submitted to the jury. Defendant notes that it filed the

motion before the case was submitted to a second jury. However, Rule 50(a)(2)

motions may only be filed “during a trial by jury.”      Id. The motion was not filed

during trial, but after the first trial and before the second trial was scheduled to

begin. Thus, the motion to dismiss was not filed pursuant to Rule 50(a)(2).

       We conclude that the motion to dismiss was filed pursuant to

Fed. R. Civ. P. 12(b)(6). A Rule 12(b) motion to dismiss may be “made in


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any pleading . . . , or by motion for judgment on the pleadings, or at the trial on

the merits.” Rule 12(h)(2). “In other words, a defense of dismissal is waived

only when presented after trial.”    Weatherhead v. Globe Int’l, Inc.    , 832 F.2d 1226,

1228 (10th Cir. 1987); see also Moodie v. Federal Reserve Bank          , 861 F. Supp. 10,

13 (S.D.N.Y. 1994) (Rule 12(b)(6) motion not waived even if not made until the

eve of re-trial after the first trial was declared a nullity, as long as it is filed

before any merits determination is made on plaintiff’s claim). Defendant’s

motion was timely.

       A Rule 12(b)(6) motion must be based only on the facts stated in the

pleadings. See Rule 12(b)(6). A review of the motion shows that defendant

referred to matters outside the pleadings, including the evidence presented at trial.

When a party files a motion to dismiss, but relies on matters outside the

pleadings, and those matters are not excluded by the court in its consideration, the

motion must “be treated as    one for summary judgment” under Fed. R. Civ. P. 56

and notice must be given to the opposing party permitting it to also present “all

material made pertinent.”    Id.

       The district court considered all the materials to which defendant referred.

Thus, the motion was converted to one for summary judgment. Ms. Mann was

not given notice of this conversion. However, the lack of notice was harmless

error as Ms. Mann responded in kind and discussed the evidence she presented at


                                             -4-
trial. See David v. City & County of Denver        , 101 F.3d 1344, 1352 (10th Cir.

1996), and cases cited therein. The Rule 12(b)(6) motion was properly converted

to a motion for summary judgment and was properly considered by the district

court.

         “We review the entry of summary judgment de novo, drawing all

reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc.,

43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no

genuine issue as to any material fact and it is entitled to judgment as a matter of

law. See id. The nonmovant must establish, at a minimum, an inference of the

presence of each element essential to the case. See id.

         The analytical framework set forth in     McDonnell Douglas Corp. v. Green        ,

411 U.S. 792, 802-04 (1973), guides our review of a retaliation claim.           See

Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1178 (10th Cir. 19 99). First,

Ms. Mann must establish a prima facie case of retaliation.       See id. Then

defendant must support its employment decision with a non-discriminatory

reason. See id. Finally, Ms. Mann must rebut defendant’s reason by showing it

is pretextual.   See id. To establish a prima facie case of retaliation, Ms. Mann

must show “(1) protected opposition to discrimination or participation in a

proceeding arising out of discrimination; (2) adverse action by the employer; and

(3) a causal connection between the protected activity and the adverse action.         ”


                                             -5-
Jeffries v. Kansas , 147 F.3d 1220, 1231 (10th Cir. 1998) (quotation omitted). To

prevail on the first prong,   Ms. Mann must show that she had a good faith,

reasonable belief that she was being subjected to unlawful discrimination.     See

Love v. Re/Max of Am., Inc. , 738 F.2d 383, 385 (10th Cir. 19 84) (“opposition

activity” is protected even when based on mistaken good faith belief). Thus, Ms.

Mann must show that, at the time she told her supervisor, Ray Atkins, she

thought he was discriminating against her, the actions she complained of were

ones she reasonably could have believed had been taken due to her sex.

       Here the issue is whether Ms. Mann met the first prong of a prima facie

case. She has established an adverse employment action.        See Burlington Indus.,

Inc. v. Ellerth , 524 U.S. 742, 761 (1998) (“A tangible employment action

constitutes a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or

a decision causing a significant change in benefits.”)    . Ms. Mann may also have

established the third prong, if we determine that she has met the first prong, as

her termination occurred twelve days after she threatened to file discrimination

charges. See Chavez v. City of Arvada , 88 F.3d 861, 866 (10th Cir. 1996)

(retaliatory motive may be inferred when an adverse action closely follows

protected activity).




                                            -6-
      Ms. Mann argues that she has met the first prong because she had a

reasonable good faith belief that she was the object of gender discrimination. To

support her argument, Ms. Mann cites to evidence she presented demonstrating

that her problems with Mr. Atkins began when he was appointed her supervisor.

In her complaint, she alleged that Mr. Atkins derogated her authority to her crew,

scrutinized her more than other employees, made sarcastic remarks about her to

other employees, delayed requesting raises for her, criticized her for using an

indoor toilet rather than a tree on the school grounds, and investigated a

Christmas gift she received from a local nursery.

      At trial, Mr. Atkins stated that some of her crew had complained to him

that Ms. Mann was showing favoritism to others      . He talked to her about that and

admitted he kept a close eye on her to see if her behavior changed.      Ms. Mann

admitted that, as a supervisor, more was expected of her than of her crew

members and that she should not show favoritism towards her crew members.

See Appendix at 171:23.

      Ms. Mann testified that when she asked for a pay increase, Mr. Atkins told

her she was making more money than many men with families.            See id. at 104:59.

However, she subsequently received the largest raise she had ever received as a

supervisor. See id. at 170:17. Mr. Atkins also wrote her a very favorable

recommendation when the request was submitted.         See id. at 105:63-64.


                                           -7-
       Ms. Mann testified that a male employee spent $80.00 of school funds on

long distance phone calls for which he was put on probation and was required to

repay the funds.   See id. at 110:82. Ms. Mann did not testify that she knew, at

the time she told Mr. Atkins he was discriminating against her, that one of the

issues supporting her termination would be that she kept $2.99     she received after

cashing in a sack of aluminum cans, an issue she now cites as sexual

discrimination.

       While Ms. Mann testified that Mr. Atkins investigated the gift of a

Christmas tree she received from a friend, who was also a supplier for the school,

she did not testify that he took any action against her.   Nor did Ms. Mann show,

beyond a conclusory statement, that male employees had received similar gifts

without any investigation at all.    See id. at 112:92.

       Ms. Mann testified that Mr. Atkins made unwelcome comments to her and

about her to others. However, she failed to show that any of them were sexually

motivated. Ms. Mann’s husband testified that his wife thought that Mr. Atkins

treated her differently than other employees, but he did not indicate that she

thought Mr. Atkins generally treated women differently from men.       See id. at

135:183-84; 136:186.

       Ms. Mann presented no evidence establishing that she had a reasonable

good faith belief that she was the object of unlawful sexual discrimination. She


                                             -8-
has failed to meet the first prong of the prima facie case. Therefore, we AFFIRM

the judgment of the United States District Court for the District of Kansas in

appeal No. 98-3307. We DISMISS appeal No. 98-3318 as moot.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




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