                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           AUG 15 2001
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARMELITA T. MUNIZ,

               Plaintiff-Appellant,

    v.                                                   No. 00-1325
                                                     (D.C. No. 97-S-2092)
    CHRISTINE HIGHNAM, individually                       (D. Colo.)
    and as Director of Boulder County
    Department of Social Services;
    BOULDER COUNTY DEPARTMENT
    OF SOCIAL SERVICES,

               Defendants-Appellees.


                           ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




         Plaintiff Carmelita Muniz was the Human Resources Manager for the

Boulder County Department of Social Services until her termination in July 1996.

She brought this action against defendants asserting claims for discrimination and

retaliation under Title VII and 42 U.S.C. § 1981, for violation of her First, Fifth,


*
      This order and judgment is not binding precedent, except under the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.
and Fourteenth Amendment rights, and for intentional infliction of emotional

distress. She appeals the district court’s order of September 2, 1998, dismissing

her due process claim and the court’s order of July 18, 2000, granting summary

judgment to defendants on her Title VII and § 1981 claims. Plaintiff does not

appeal the court’s disposition of any of her other claims. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.     1



       At the outset, we must address defendants’ contention that we do not have

jurisdiction to review the disposition of plaintiff’s due process claim because

plaintiff did not designate the court’s order of September 2, 1998, in her notice of

appeal. The notice stated only that plaintiff was appealing from the judgment and

order of dismissal entered July 18, 2000.

       “Our jurisdiction is limited to the judgment, order, or part thereof

designated in the notice of appeal, but the notice of appeal is not to be given a

wooden interpretation.”     Perington Wholesale, Inc. v. Burger King Corp.        , 631

F.2d 1369, 1379 (10th Cir. 1980) (on rehearing) (citation omitted). “[W]e

construe notices of appeal liberally in order to avoid denying review of issues the

parties clearly intended to appeal.”       Dupree v. United Parcel Serv., Inc.   , 956 F.2d



1
       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.

                                               -2-
219, 220 n.1 (10th Cir. 1992) (quotation omitted). Thus, we have permitted a

notice of appeal that names only the final judgment to support review of earlier

interlocutory orders that merge in the final judgment “under the general rule that

appeal from a final judgment supports review of all interlocutory orders.”       Cole v

Ruidoso Mun. Sch. , 43 F.3d 1373, 1382 n.7 (10th Cir. 1994) (quotation omitted).

Plaintiff clearly intended to appeal the district court’s dismissal of her due

process claim, and we conclude that we have jurisdiction to review that dismissal

even though plaintiff did not specifically designate the dismissal order in the

notice of appeal.

      The facts of this case are well known to the parties, and we will not repeat

them here except as necessary to our analysis. The district court dismissed

plaintiff’s due process claim against defendant Christine Highnam in her official

capacity as the Director of the Department of Social Services on the basis of

Eleventh Amendment immunity. The court also dismissed plaintiff’s claim

against Ms. Highnam in her personal capacity on the basis of qualified immunity.

Plaintiff challenges only the latter dismissal.

      “[G]overnment officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.”     Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). “In


                                           -3-
analyzing qualified immunity claims, we first ask if a plaintiff has asserted the

violation of a constitutional right at all, and then assess whether that right was

clearly established at the time of a defendant’s actions.”   Clanton v. Cooper , 129

F.3d 1147, 1153 (10th Cir. 1997).

       The district court concluded that plaintiff’s claim failed on the first prong

of the analysis, because she failed to assert the violation of a constitutional right.

Defendant Highnam placed plaintiff on administrative leave on July 5, 1996, and

told her she was considering firing plaintiff. On July 8, Ms. Highnam wrote

plaintiff a letter informing her that a pre-disciplinary conference was scheduled

for July 12 to discuss the facts that might lead to termination. In the letter,

Ms. Highnam informed plaintiff of the information she currently had before her

and of the reasons she was considering firing plaintiff. Plaintiff appeared at the

conference with counsel. She objected to Ms. Highnam conducting the

conference, on the ground that she was not impartial, and to the presence of a

County Attorney who had been involved in the circumstances leading up to the

disciplinary proceedings. The conference went forward, nonetheless, and plaintiff

was given an opportunity to defend her actions. On July 17, Ms. Highnam sent a

letter to plaintiff and her counsel informing them of her decision to terminate

plaintiff effective July 19, and setting forth her reasons for doing so. Plaintiff

subsequently appealed her termination administratively and received a


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post-termination hearing before an administrative law judge at which she had an

opportunity to subpoena witnesses, present her own testimony, and present

argument in support of her position. The administrative law judge affirmed the

termination decision.

      The district court determined that plaintiff could not assert a due process

violation because she had received all the process she was due.   See, e.g., West v.

Grand County , 967 F.2d 362, 367-70 (10th Cir. 1992) (discussing pre-termination

and post-termination process due a public employee). Accordingly, the court

concluded that defendant Highnam was entitled to qualified immunity. Based on

our own careful review, we affirm the district court’s determination that plaintiff

received all the process to which she was entitled and, therefore, failed to

establish that defendant Highnam violated her due process rights.

      We turn, then, to plaintiff’s Title VII and § 1981 claims for discrimination

and retaliation. Plaintiff contended that she was terminated because she was

Hispanic and because she spoke out against discrimination against other minority

employees within the Department of Social Services. Defendants contended that

plaintiff was neither discriminated against nor retaliated against, but was

terminated for her exceedingly poor judgment and negligence in connection with

the hiring of several employees who had criminal records.




                                           -5-
      Plaintiff relied upon indirect evidence to support her claims of

discrimination. Accordingly, the district court analyzed the case under the

burden-shifting approach established by       McDonnell Douglas Corp. v. Green     , 411

U.S. 792, 802 (1973). This analytical framework applied equally to plaintiff’s

Title VII and § 1981 claims.      See Kendrick v. Penske Transp. Servs., Inc.   , 220

F.3d 1220, 1225 (10th Cir. 2000).

              In order to survive summary judgment, a plaintiff relying on
      McDonnell Douglas bears an initial burden of establishing a prima
      facie case intended to eliminate the most common nondiscriminatory
      reasons that might account for the adverse employment action. Once
      the plaintiff has established a prima facie case, the burden then
      shift[s] to the employer to articulate some legitimate,
      nondiscriminatory reason for taking an adverse employment action
      against the plaintiff. If the defendant successfully meets its burden
      of production, the burden shifts back to the plaintiff to put forth
      evidence sufficient to allow a jury to find that the defendant's reason
      is pretextual, e.g. , that it is unworthy of belief.

English v. Colo. Dep’t of Corr.    , 248 F.3d 1002, 1008 (10th Cir. 2001) (quotation

and citations omitted; alteration in original).

      In moving for summary judgment, defendants assumed for the sake of

argument that plaintiff could establish her prima facie case. They then came

forward with a legitimate, nondiscriminatory reason for terminating plaintiff. In

her letter of July 17, 1996, setting forth her decision to terminate plaintiff,

defendant Highnam stated that she made the decision “after much deliberation,

after considering Ms. Muniz’ ten year history with the Department, and after


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consideration of the alternatives.” R. Vol. I, Doc. 46, Ex. 3 at 2. Ms. Highnam

further explained:

      Unfortunately, the recent incidents described in my July 8, 1996
      letter . . . have shattered my trust in Ms. Muniz’ judgment and
      willingness to provide me with information essential to make human
      resources decision[s]. In these circumstances, progressive discipline
      is not “practicable,” and the Merit System permits immediate
      dismissal, due to the seriousness of the offense.

             The bases for terminating Ms. Muniz, as described in my
      July 8, 1996 letter, are her repeated failures to provide me critical
      information concerning employees. While Ms. Muniz attempts to
      portray the issue as a concern for routine police records checks, the
      issues here were not routine, and a Human Resources Manager
      should have brought these matters to my attention. Ms. Muniz
      admits that she was informed by Veda English and Curt Butler on
      March 8, 1996 that Ms. English, a social worker, had been convicted
      of assault on a developmentally disabled patient. She did not
      disclose this critically important information to me for over two
      months, and instructed Mr. Butler not to disclose this information to
      his manager. Similarly, with Ms. Guidry, Ms. Muniz knew that
      Ms. Guidry had been fired from her job with the Denver Police
      Department, and convicted of crimes relating to misuse and sale of
      government information. Ms. Muniz either deliberately withheld this
      information from me, or showed extremely poor judgment in failing
      to provide this information to me prior to Ms. Guidry’s hiring, and
      for almost two months thereafter. Ms. Muniz also failed to provide
      me accurate information about the time required to obtain criminal
      records checks on employees. These are such extreme situations that
      my trust in her ability to act as Human Resources Manager for the
      Department has been destroyed. Ms. Muniz’ withholding of
      information may have jeopardized the safety of Department clients,
      exposed the Department to liability, and jeopardized the security of
      the Department records.

Id.



                                        -7-
      Once defendants articulated this legitimate, nondiscriminatory reason for

terminating plaintiff, the burden shifted to plaintiff to raise a material issue of

fact as to whether the reason articulated by defendants was pretextual.

      A plaintiff typically makes a showing of pretext in one of three ways:

             (1) with evidence that the defendant’s stated reason for
             the adverse employment action was false; (2) with
             evidence that the defendant acted contrary to a written
             company policy prescribing the action to be taken by the
             defendant under the circumstances; or (3) with evidence
             that the defendant acted contrary to an unwritten policy
             or contrary to company practice when making the
             adverse employment decision affecting the plaintiff. A
             plaintiff who wishes to show that the company acted
             contrary to an unwritten policy or to company practice
             often does so by providing evidence that he was treated
             differently from other similarly-situated employees who
             violated work rules of comparable seriousness.

English , 248 F.3d at 1009 (quotation omitted).

      Plaintiff relied on a variety of factors to establish pretext. First, she argued

that she did not really violate a work rule, because the policy on criminal

background checks (which she developed and implemented) did not have a

required time frame for conducting the background checks, the policy did not

require her involvement until after the Department received the results of the

background check from the police, and her assistant was the one responsible for

sending the routine requests for background checks to the police and she fell a

month behind in doing so without plaintiff’s knowledge. Plaintiff also presented


                                          -8-
a different version of what was said during her meeting with Mr. Butler and

Ms. English concerning Ms. English’s conviction. Plaintiff tried to justify her

handling of the Guidry matter by pointing out that she did not hire Ms. Guidry,

her assistant did; Ms. Guidry’s name came from the Merit System register; and

the criminal case against Ms. Guidry was dismissed after she complied with the

deferred judgment and sentence, which was before she was hired by the

Department.

      Plaintiff also presented evidence that up until shortly before he was

terminated, she had received above-standard and outstanding performance

evaluations, and in February 1996 she was reappointed to the Benefits Advisory

Board and she was awarded a longevity recognition award by defendant Highnam.

Plaintiff also relied on the fact that in ruling on her uncontested application for

unemployment benefits, the Colorado Department of Labor and Employment

found that she did not commit any volitional act that could be construed as the

cause for her separation. Plaintiff also argued that similarly situated employees

were not disciplined as harshly for what she believed to be similar infractions,

and she submitted a report by the Colorado Institute for Hispanic Education &

Economic Development indicating that racism existed in the workplace at the

Department. Finally, plaintiff presented affidavits from four other Department

employees expressing their opinions that racism existed within the Department.


                                         -9-
       The district court concluded, for various reasons, that none of the evidence

presented by plaintiff raised a material fact as to pretext. We have carefully

reviewed the entire record in this case and, based upon our review, we affirm the

district court’s determination that plaintiff did not raise a genuine issue of

material fact as to pretext. Accordingly, the district court properly entered

summary judgment against plaintiff on her Title VII and § 1981 claims of

discriminatory discharge.

       Plaintiff also asserted Title VII and § 1981 claims for retaliatory discharge.

She alleged that she was retaliated against for continually speaking out against

discrimination she witnessed against other employees in the Department and, in

particular, against Susie Goodloe, the only black supervisor in the Department.

       “To establish a prima facie case of retaliation, [a plaintiff] must establish

that: (1) he engaged in protected opposition to discrimination; (2) he suffered an

adverse employment action; and (3) there is a causal connection between the

protected activity and the adverse employment action.”     O’Neal v. Ferguson

Constr. Co ., 237 F.3d 1248, 1252 (10th Cir. 2001). “These elements are identical

for § 1981 and Title VII actions.”   Roberts v. Roadway Express, Inc.   , 149 F.3d

1098, 1103 n.1 (10th Cir. 1998).

       “As with claims for discriminatory discharge, if the plaintiff establishes a

prima facie case of retaliation, the burden shifts to the employer to articulate a


                                          -10-
nondiscriminatory reason for the adverse employment action. If the employer

satisfies this burden of production, then, in order to prevail on her retaliation

claim, the plaintiff must prove that the employer’s articulated reason for the

adverse action is pretextual, i.e. unworthy of belief.”     Selenke v. Med. Imaging of

Colo. , 248 F.3d 1249, 1264 (10th Cir. 2001) (quotation omitted).

       The district court concluded that plaintiff failed to establish her prima facie

case because she did not make the requisite showing of a causal connection

between her termination and her alleged protected activity. Our review of the

record supports the district court’s determination. Moreover, even if we were to

assume that plaintiff established her prima facie case, her claim would fail

because she failed to raise a triable issue of fact with regard to pretext, as

discussed above. Therefore, we conclude the district court properly entered

summary judgment against plaintiff on her Title VII and § 1981 claims of

retaliatory discharge.

       The judgment of the district court is AFFIRMED.



                                                          Entered for the Court



                                                          Mary Beck Briscoe
                                                          Circuit Judge



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