                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 19, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    NEAL LOCKE,

                Plaintiff-Appellant,

    v.                                                  No. 10-6278
                                                (D.C. No. 5:09-CV-00327-M)
    GRADY COUNTY, a political                          (W.D. Okla.)
    subdivision which is sued in the name
    of the Board of County Commissioners
    of Grady County,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.




         Neal Locke appeals the district court’s order granting summary judgment in

favor of his former employer, Grady County, on his claim of discrimination in

violation of the Age Discrimination in Employment Act of 1967 (ADEA),


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
29 U.S.C. §§ 621-634, and Oklahoma state law. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

                               I. BACKGROUND

      Mr. Locke was employed as a deputy sheriff for the Grady County Sheriff’s

Office from July 2003 until his termination on January 9, 2009. In November

2008, Art Kell was elected Sheriff and on December 8, 2008, he promoted

Mr. Locke to supervisor over the night shift. Shortly thereafter, Sheriff Kell

received information that Mr. Locke had sexually harassed a female

law-enforcement officer, so he opened an investigation. Also in early December,

Mr. Locke claims he recommended that Sheriff Kell hire a man for a deputy

sheriff position, but Kell rejected the applicant, saying he did not want any old

men working for the sheriff’s department. Mr. Locke responded that the applicant

was aged 58, the same age as Locke himself.

      Sheriff Kell’s investigation of sexual harassment resulted in statements by

four women law-enforcement personnel asserting that Mr. Locke had made

sexually inappropriate remarks, appeared at one of the women’s homes uninvited,

had offered to assist another with a training program in exchange for “favors,”

and had suggested to one of the women that he would not provide police back-up

unless she provided sexual favors to him. In conducting the investigation, Sheriff

Kell asked generally if any officer had behaved inappropriately; the only one

named as having done so was Mr. Locke. Consequently, on January 6, 2009,

                                         -2-
Sheriff Kell gave Mr. Locke a writing showing the statements Kell had collected

but not the names of the women who had made the statements. Sheriff Kell then

demoted Mr. Locke and placed him on probation for one year. Mr. Locke

immediately went to the jail and angrily confronted one of the women who had

made a statement. Upon learning of the confrontation, Sheriff Kell fired

Mr. Locke, believing he had ordered Locke not to talk to any of the women who

had made statements.

      Mr. Locke sued, alleging that he was demoted and terminated because of

his age and because he pointed out to Sheriff Kell that a job applicant deemed too

old was the same age as he. He asserted violations of the ADEA and Oklahoma

state law. The district court granted defendant’s motion for summary judgment,

evaluating Mr. Locke’s ADEA claim under the McDonnell Douglas framework. 1

The court held that Mr. Locke had established a prima facie case of age

discrimination; defendant had proffered legitimate, non-discriminatory reasons for

demoting and terminating him; and Mr. Locke had not adduced evidence of




1
       McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
framework, the plaintiff must first establish a prima facie case of discrimination.
Riggs v. Airtran Airways, Inc., 497 F.3d 1108, 1114 (10th Cir. 2007). If he does
so, the employer “must articulate a legitimate, nondiscriminatory reason for the
adverse employment action.” Id. If this is done, “the burden shifts back to the
employee to prove that the proffered legitimate reason was a pretext for
discrimination.” Id. at 114-15. These burdens are burdens of production, rather
than persuasion, at the summary judgment stage. Id. at 1115.

                                         -3-
pretext to withstand summary judgment. For the same reasons, the court also

granted summary judgment on Mr. Locke’s state-law wrongful-discharge claim.

      Mr. Locke advances three arguments on appeal. First, he argues that the

district court improperly granted summary judgment to defendant on his ADEA

claim by weighing the evidence and drawing inferences reserved for the jury. He

further contends that the district court impermissibly required him to produce

evidence of “pretext-plus” 2 and misapplied the business-judgment doctrine.

Second, Mr. Locke claims the district court granted summary judgment on his

state-law age-discrimination claim by applying the incorrect standard of proof.

Finally, he maintains that the district court committed reversible error in denying

his request to file a surreply to the motion for summary judgment. 3

                                II. DISCUSSION

                             A. Standards of Review

      We review the district court’s summary judgment order de novo, applying

the same legal standards as the district court. Swackhammer v. Sprint/United

2
      “Under pretext-plus, the plaintiff must do more than show pretext; he must
also come forward with additional, direct evidence of a discriminatory motive. In
other words, a complete lack of evidence regarding the employer’s motive is not
enough to raise a genuine issue of fact.” Jaramillo v. Colo. Judicial Dep’t,
427 F.3d 1303, 1312 (10th Cir. 2005) (citation omitted) (internal quotation marks
omitted). This circuit has rejected the pretext-plus doctrine. Id.
3
        Mr. Locke also argues that he named the correct party as the defendant in
this action, anticipating that defendant would renew in this court its argument that
it is not the proper party defendant. We, like the district court, need not address
this dispute because Mr. Locke cannot prevail against his employer.

                                        -4-
Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007). Summary judgment is

appropriate if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Pursuant to this standard, “we must view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Swackhammer, 493 F.3d at 1167 (internal quotation marks

omitted). “Because our review is de novo, we need not separately address

Plaintiff’s argument that the district court erred by viewing evidence in the light

most favorable to the [defendant] and by treating disputed issues of fact as

undisputed.” Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir.

2004). “The purpose of a summary judgment motion is to assess whether a trial is

necessary. In other words, there must be evidence on which the jury could

reasonably find for the plaintiff.” Berry v. T-Mobile USA, Inc., 490 F.3d 1211,

1216 (10th Cir. 2007) (citation omitted) (internal quotation marks omitted).

                                  B. ADEA Claim

      The ADEA makes it “unlawful for an employer . . . to discharge any

individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). The

ADEA requires “but-for” causation; therefore, a plaintiff claiming age

discrimination must establish by a preponderance of the evidence that his

employer would not have taken the challenged employment action but for the

plaintiff’s age. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009).

                                         -5-
“Gross does not disturb longstanding Tenth Circuit precedent by placing a

heightened evidentiary requirement on ADEA plaintiffs to prove that age was the

sole cause of the adverse employment action.” Jones v. Okla. City Pub. Schs.,

617 F.3d 1273, 1278 (10th Cir. 2010). Nor does Gross “preclude our continued

application of McDonnell Douglas to ADEA claims.” Id.

      Neither party challenges the district court’s determination that Mr. Locke

established a prima facie case of age discrimination and that defendant proffered

legitimate, non-discriminatory reasons for demoting and discharging him.

Therefore, we proceed directly to Mr. Locke’s arguments that the district court

improperly weighed the evidence and drew inferences in defendant’s favor (1) by

rejecting his evidence that the stated reasons for demoting and firing him were a

pretext for age discrimination, (2) by improperly requiring him to show

“pretext-plus,” and (3) by placing undue emphasis and reliance on the

business-judgment doctrine.

      A plaintiff can withstand summary judgment if he presents evidence

sufficient to raise a genuine dispute of material fact regarding whether the

defendant’s articulated reason for the adverse employment action is pretextual.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-49 (2000). 4


4
       Relying on Tonkovich v. Kansas Board of Regents, 159 F.3d 504 (10th Cir.
1998), Mr. Locke repeatedly argues that the court must accept his version of the
facts as true. But in Tonkovich, this court reviewed the grant of a motion to
                                                                      (continued...)

                                         -6-
“Pretext exists when an employer does not honestly represent its reasons for

terminating an employee.” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1111

(10th Cir. 2005). Pretext may be shown by “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Rivera, 365 F.3d at 925 (internal quotation

marks omitted).

      We do not ask whether the employer’s reasons were wise, fair or
      correct; the relevant inquiry is whether the employer honestly
      believed its reasons and acted in good faith upon them. Even a
      mistaken belief can be a legitimate, non-pretextual reason for an
      employment decision. Thus, we consider the facts as they appeared
      to the person making the decision, and we do not second-guess the
      employer’s decision even if it seems in hindsight that the action
      taken constituted poor business judgment. The reason for this rule is
      plain: our role is to prevent intentional discriminatory [employment]
      practices, not to act as a “super personnel department,” second
      guessing employers’ honestly held (even if erroneous) business
      judgments.

Riggs v. Airtran Airways, Inc., 497 F.3d 1108, 1118-19 (10th Cir. 2007) (citations

omitted) (internal quotation marks omitted).




4
 (...continued)
dismiss. Id. at 517 (“[W]e reiterate that this appeal comes to us on a partial
denial of the defendants’ motion to dismiss, as opposed to motions for summary
judgment.”). Here, in contrast, we review a grant of summary judgment.
Tonkovich is inapposite.

                                         -7-
                                    (i) Demotion

      Mr. Locke argues that the district court disregarded his evidence of pretext

and erroneously drew inferences in favor of finding that Sheriff Kell properly

exercised reasonable business judgment in demoting him. He relies on the

following evidence of pretext: (1) the investigation did not follow the established

policy and procedure and was unfair; (2) Sheriff Kell lied about various aspects of

the situation, thus indicating that his real reason was not his stated reason for

demoting him; (3) by promoting him even though Sheriff Kell was aware that he

had made inappropriate remarks in the past, Kell wiped the slate clean, thus

showing he was demoted for a reason other than sexual harassment; and

(4) several witnesses testified that Sheriff Kell made ageist statements.

      Mr. Locke asserts that Sheriff Kell’s investigation did not follow

established procedures, thus demonstrating pretext. He avers that the official

procedure was for the undersheriff to conduct the investigation and report to the

sheriff, but here the sheriff himself, with the assistance of a lieutenant, conducted

the investigation. Mr. Locke alleges the following additional policy violations:

(1) Sheriff Kell himself initiated the investigation; (2) no written complaint was

filed to begin the investigation; (3) Sheriff Kell solicited the complaints;

(4) Sheriff Kell did not talk to, or include in his report, women who would have

(or did) provide information favorable to Mr. Locke; (5) Sheriff Kell did not

prepare an official investigation written report; (6) there is no evidence that

                                          -8-
Sheriff Kell viewed the procedures as permissive, rather than mandatory; and

(7) Sheriff Kell failed to interview Mr. Locke.

      “Evidence of pretext may include . . . the employer’s policy and practice

regarding . . . employment (including statistical data); disturbing procedural

irregularities (e.g., falsifying or manipulating hiring criteria); and the use of

subjective criteria.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance

Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999). None of the alleged policy

violations presents disturbing irregularities indicating pretext.

      Mr. Locke’s claim that Sheriff Kell solicited complaints against him is not

supported by the record. The investigation began when an intermediary contacted

the sheriff to inform him that the first complainant was afraid to make a

complaint of sexual harassment. Thereafter, Sheriff Kell and a lieutenant talked

to her and several other women asking general questions about sexual harassment,

some of whom denied any harassment and others who named Mr. Locke, but no

one else. The undersheriff did not conduct the investigation because he and

Mr. Locke were close personal friends. To the extent Mr. Locke complains that

Sheriff Kell did not prepare an official written report, no report was necessary

because he conducted the investigation himself. Finally, although allowing

Mr. Locke to tell his “side of the story would seem to be the most fair way of

addressing the situation, we cannot say that [Sheriff Kell’s] failure to do so in

these circumstances constitutes a ‘disturbing procedural irregularity’ sufficient to

                                          -9-
prove pretext.” Riggs, 497 F.3d at 1119. Moreover, Mr. Locke has not shown

that the policy required Sheriff Kell to interview him. Cf. Aplt. App. Vol. II at

240-41 (investigations policy and procedure).

      Mr. Locke next claims that Sheriff Kell’s reason for demoting him is

unworthy of belief because Kell knew he had made inappropriate comments at the

time he promoted him, and Kell’s statements differed from testimony by other

witnesses. It is undisputed that the allegations of sexual harassment came to light

after Sheriff Kell promoted Mr. Locke. There was, however, no agreement to

expunge or overlook all prior or future sexual harassment. Cf. Jackson v. City of

Albuquerque, 890 F.2d 225, 228 (10th Cir. 1989) (employer agreed to expunge

admittedly inappropriate memo from plaintiff’s employment records). As for the

claim that Sheriff Kell was dishonest about material facts, we conclude that the

alleged lies were not material to the reason Kell demoted Locke. For example,

Mr. Locke argues that Sheriff Kell stated that the police chaplain recommended

firing him, but the chaplain testified that he did not recommend termination. See

Aplt. App. Vol. III at 597, 658. But it is undisputed that Sheriff Kell alone made

the demotion and firing decisions and did not rely on, nor was he required to

consider, the chaplain’s recommendation. See id. Vol. I at 31; id. Vol. II at 195.

      Lastly, we address Mr. Locke’s claim that Sheriff Kell’s ageist statements

demonstrate that the real reason for demoting him was his age. Although Sheriff

Kell denied making the statements, drawing all reasonable inferences in

                                        -10-
Mr. Locke’s favor, this is circumstantial evidence that Sheriff Kell was disposed

against older workers. Nevertheless, the statements “are insufficient to carry

[Mr. Locke’s] burden of showing pretext” because the ageist statements do not

address Sheriff Kell’s evidence that Mr. Locke was demoted for sexually

harassing women law-enforcement personnel. English v. Colo. Dep’t of Corr.,

248 F.3d 1002, 1010 (10th Cir. 2001). Sheriff Kell consistently offered a single

explanation for Mr. Locke’s demotion–sexual harassment–and Locke failed to

adduce evidence that this explanation was false. Summary judgment was

therefore appropriate because Sheriff Kell’s nondiscriminatory reason “remained

unrebutted and [his] credibility has not been so damaged as to render [his]

explanation suspect.” Swackhammer, 493 F.3d at 1169. More to the point, even

if the evidence suggested that age may have been one motivating factor in the

decision to demote him, it is insufficient to indicate “that age was the ‘but-for’

cause” of his demotion. See Gross, 129 S. Ct. at 2352.

                                  (ii) Termination

      Mr. Locke asserts that Sheriff Kell’s stated reason for firing him–he

disobeyed a direct order–is unworthy of belief because the evidence was disputed

whether he gave such an order. Mr. Locke relies on the dispute over whether

Sheriff Kell issued a direct order forbidding him from talking to the women who

complained about him. Sheriff Kell testified that he gave the order, but

Mr. Locke denies it and the undersheriff stated that he did not hear the sheriff

                                         -11-
give the order. Mr. Locke maintains that the summary judgment cannot stand

because it was based on this disputed fact. He contends that the district court

impermissibly substituted a reason other than Kell’s stated reason for the

termination.

      Viewing the evidence in Mr. Locke’s favor that no direct order was given

and Sheriff Kell fired him for disobeying a direct order, no reasonable jury could

find unworthy of credence the evidence that Mr. Locke was fired for angrily

confronting one of the women who had complained about him immediately after

being disciplined for harassing her. The evidence is undisputed that Sheriff Kell

refused to give Mr. Locke the women’s names and the undersheriff recommended

terminating Mr. Locke, who, according to the undersheriff, “should have known

to stay away from [the women],” especially since “the sheriff gave him the

women’s statements without their names,” Aplt. App. Vol. II at 359.

      Mr. Locke contends that his confrontation with the witness was not similar

to the behavior for which he had just been disciplined. He maintains that he

approached the witness to apologize and she did not find him to be intimidating

during the encounter. This argument is disingenuous. The witness testified that

Mr. Locke was standing over her, his tone of voice was threatening, and he was

very angry, making her uncomfortable, intimidated, and afraid. Id. Vol. II at 413,

418. Mr. Locke was forced to admit that he did not just apologize and leave, and




                                        -12-
that he was visibly angry, id. Vol. II at 220, 227. 5 The witness’s later statement

to Mr. Locke’s prospective employer that she had not been afraid of him was

motivated by her wish to help him get another job. Id. Vol. III at 640-41; id.

Vol. IV at 832. Similarly, her attempt to recant her complaint against Mr. Locke

was motivated by her fear of being sued by him and her desire to extricate herself

from the dispute. Id. Vol. III at 640-41.

      Even if Sheriff Kell was mistaken in his belief that Mr. Locke had

disobeyed a direct order, there is no evidence that the sheriff did not honestly

believe that he had. The facts appearing to Sheriff Kell at the time provided a

legitimate, non-pretextual reason for firing Mr. Locke. Moreover, even if the

inference is drawn in Mr. Locke’s favor that Sheriff Kell harbored ageist animus

toward older deputies, the evidence is insufficient to show that age was the

but-for cause of his termination.

                                    (iii) Conclusion

      For the reasons discussed above, we conclude that Mr. Locke’s evidence of

pretext is insufficient to withstand summary judgment. See Young v. Dillon Cos.,

Inc., 468 F.3d 1243, 1250 (10th Cir. 2006) (stating a prima facie case and

sufficient evidence of pretext may permit a finding that the employer unlawfully

discriminated). In conducting our de novo review, we have considered the



5
      The confrontation was recorded on the jail’s security videotape.

                                          -13-
cumulative weight of his proffered evidence based on the evidence as a whole.

See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir.

2000) (holding evidence viewed in the aggregate was sufficient to show pretext);

Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004) (“When assessing

whether a plaintiff has made an appropriate showing of pretext, we must consider

the evidence as a whole.” (internal quotation marks and brackets omitted)). We

also reject Mr. Locke’s claim that he was required to show pretext-plus.

“Pretext-plus becomes relevant only after the employee has discredited the

employer’s reasons, leaving nothing in the record to explain the employment

decision.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1312 (10th Cir.

2005). Mr. Locke did not present evidence to discredit the employer’s reasons for

demoting and firing him; consequently, pretext-plus is irrelevant. We affirm the

district court’s judgment on the ADEA claim.

                    C. State Law Age Discrimination Claim

      Mr. Locke also appeals the district court’s grant of summary judgment to

defendants on his claim for wrongful discharge in violation of Oklahoma public

policy, pursuant to Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). He argues

that the more lenient “significant factor” burden of proof applies to this claim,

rather than the ADEA’s “but-for” standard, and the district court erred in not

applying the lower standard. We recognize the difference in legal standards, but

conclude that Mr. Locke’s evidence does not meet the lower standard.

                                        -14-
      The significant-factor test “imposes much more than some de minimus

burden on the plaintiff. It requires a showing of more than a mere causal link, in

that a factor may be a cause without being significant.” Medlock v. United Parcel

Serv., Inc., 608 F.3d 1185, 1197 (10th Cir. 2010) (internal quotation marks

omitted) (brackets omitted) (applying Oklahoma law). As explained above,

Mr. Locke “has failed to create a triable case that age played any role, much less

a significant role, in the decision[] to terminate his employment.” Id. 6

Accordingly, we affirm the district court’s summary judgment on Mr. Locke’s

Burk claim.

              D. Refusal to Permit Surreply on Summary Judgment

      Finally, Mr. Locke contends that the district court committed reversible

error in denying his request to file a surreply on summary judgment. He avers

that he was entitled to file one because defendant’s reply added evidentiary

materials and legal arguments, and the district court’s summary judgment does

not indicate whether the court considered these additional materials and

arguments.

      We review for an abuse of discretion the district court’s decision not to

permit a surreply. Green v. New Mexico, 420 F.3d 1189, 1198 (10th Cir. 2005).


6
      “Burk provides a tort remedy only for an employee’s actual or constructive
discharge.” Medlock, 608 F.3d at 1198 n.10. Mr. Locke’s demotion claim
appears not to be actionable under Burk. See id. (citing Davis v. Bd. of Regents
for Okla. State Univ., 25 P.3d 308, 310 (Okla. Civ. App. 2001)).

                                         -15-
      Generally, the nonmoving party should be given an opportunity to
      respond to new material raised for the first time in the movant’s
      reply. If the district court does not rely on the new material in
      reaching its decision, however, it does not abuse its discretion by
      precluding a surreply. “Material,” for purposes of this framework,
      includes both new evidence and new legal arguments.

Id. (citations omitted) (internal quotation marks omitted).

      Mr. Locke argues that the reply contained new evidence and arguments, but

he has made little effort to demonstrate which evidence and arguments were new,

or to show that the district court relied on them. To support this argument, he has

cited to his district-court motion for leave to file a surreply. 7 Not surprisingly,

defendant argues that its district-court opposition to the surreply demonstrated

that no new evidence or arguments were presented in the reply. We decline to sift

through the district court file to ascertain whether the reply included new

material. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1246 n.13

(10th Cir. 2003) (declining to search the record for evidence). Mr. Locke has

failed to demonstrate an abuse of discretion.




7
       In his reply brief, Mr. Locke points to one allegedly new argument raised in
defendant’s reply: “failure to follow policies does not support pretext.” Aplt.
Reply Br. at 19. But Mr. Locke argued in his opposition to summary judgment
that Sheriff Kell’s failure to follow the departmental policy was evidence of
pretext. Aplt. App. Vol. III at 500-501. Thus, Mr. Locke has not shown that
defendant raised new material in its reply. Moreover, we have considered and
rejected his arguments based on asserted conflicting legal precedents.

                                          -16-
                      III. CONCLUSION

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Wade Brorby
                                          Senior Circuit Judge




                               -17-
