                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAR 22 2005
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MARY ANGELA MORALES,

               Plaintiff-Appellant,

    v.                                                 No. 04-1145
                                                (D.C. No. 02-M-261 (BNB))
    McKESSON HEALTH SOLUTIONS,                          (D. Colo.)
    LLC,

               Defendant-Appellee.


                           ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.



         Mary Angela Morales brought an employment discrimination suit against

McKesson Health Solutions, LLC, claiming that McKesson violated Title VII,

42 U.S.C. §§ 2000e to 2000e-17, by discriminating against her based on her

religion. The district court granted summary judgment to McKesson; Morales

appeals. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.




*
      This order and judgment is not binding precedent, except under the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.
                                           I

      Morales, a Roman Catholic, was employed by McKesson from

November 22, 1998, through December 24, 1999, as a telephone triage nurse.

Patients call the triage service to receive a brief assessment of their symptoms for

the purpose of determining the appropriate level and priority of medical treatment.

McKesson requires its triage nurses to query the callers using a computer-based set

of branching algorithms designed to sort patients into different risk categories.

Nurses are required to proceed systematically through the algorithms to reach the

appropriate level, timing, and provider of medical care, and may not make personal

observations. The average call is to last nine minutes. When asked for medical

information, the nurses are instructed to refer to items from a set list of approved

information sources. McKesson has written policies against deviation from

standard algorithm practices, inefficient work performance, insubordination,

engaging in behavior which creates discord, and distributing printed materials on

company time.

      In disregard of McKesson’s procedures and, we are told, occasionally

instilling fear in McKesson patients, Morales injected Roman Catholic prayer and

dogma into triage calls. She   referred one patient, for example, to a priest for

inquiry into whether his condition might be a “Eucharistic miracle.” Her

supervisors orally reprimanded her for such actions on December 3, 1999, and


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reasserted their policy against discussions outside the bounds of the algorithms.

McKesson further specified that if the callers themselves raised religious issues, as

Morales asserted some had done, she was to refer them to their local spiritual

leaders rather than imparting her personal religious viewpoint.

      Morales, however, persisted in making religious comments that callers

apparently found scary or offensive. She became embroiled in a dispute with one

caller who “t[ook] the Lord’s name in vain.” R., vol. 1, doc. 52, Ex. M at 1. The

caller was offended and terminated the encounter.   She also recited the “Divine

Mercy” prayer to a caller even though she acknowledges that it was “probably

more than [she] should do.” Doc. 52, Exhibit Y, 148:13-18, and later engaged in

an hour-long call without entering any algorithm information, in violation of the

algorithm procedure as well as McKesson’s policies governing efficient work

performance.

      Morales also engaged in a series of harassing incidents involving

co-workers, including telling one co-worker she was under attack by the “powers

of darkness,” and implying that another was Satan, or possessed by Satan

(although she later testified that she was speaking to Satan in the email to her

co-worker, rather than addressing the co-worker directly). Doc. 39, Exhibit J,

377:3-12.




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      McKesson prepared a written warning for Morales and presented it to her

on December 23. The warning sought assurances from Morales that she would

refrain from discussing religious beliefs or praying with callers, broaching

religious discussions in the workplace without the invitation of another employee,

distributing religious literature on company premises, and submitting forms

requesting the inclusion of spiritual information in the algorithms. Morales

declined to agree to the conditions specified in the warning. McKesson then

terminated her employment.

      Morales filed this religious discrimination suit alleging that she was

discharged for her nonacceptance of McKesson’s secularism. McKesson filed a

motion for summary judgment, which the district court granted. Morales

appealed.

                                          II

      Morales’s appeal is governed by the summary judgment standard, requiring

this court to review

      the district court’s grant of summary judgment de novo, using the
      same standards applied by the district court. The evidence and
      reasonable inferences drawn from the evidence are viewed in the
      light most favorable to the nonmoving party. Summary judgment is
      appropriate only where the pleadings, depositions, answers to
      interrogatories, and admissions on file, together with the affidavits, if
      any, show that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of law.



                                         -4-
Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004) (citations and internal

quotation marks omitted).

       Title VII prohibits an employer from discharging “any individual . . .

because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). To

prevail, a plaintiff must prove termination was based upon intentional

discrimination.   EEOC v. Horizon/CMS Healthcare Corp.       , 220 F.3d 1184,

1191-92 (10th Cir. 2000). Where there is no direct evidence of discrimination,

the court evaluates a summary judgment motion under the burden-shifting

framework of McDonnell Douglas Corp. v. Green         , 411 U.S. 792, 802-04 (1973).

Horizon/CMS Healthcare Corp. , 220 F.3d at 1191. Applying the        McDonnell

Douglas approach, a plaintiff must first establish a prima facie case of unlawful

discrimination, so that the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the plaintiff’s termination.    Id. If the employer

produces such a reason, the burden returns to the plaintiff, who can avoid

summary judgment by showing that the employer’s proffered reason was merely a

pretext for unlawful discrimination.    Id.

       Here, the appropriate prima facie case for plaintiff’s discriminatory

discharge claim requires a showing that: (1) plaintiff is a member of a protected

class; (2) she was qualified to perform her job; (3) despite her qualifications, she

was discharged; and (4) the job from which she was terminated was not


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eliminated. Perry v. Woodward , 199 F.3d 1126, 1140 (10th Cir. 1999). For the

purposes of our analysis, we assume that Morales’s evidence meets this test.

“Nothing in the case law in this circuit    requires a plaintiff to compare herself to

similarly-situated co-workers to satisfy the fourth element of her prima facie

case.” Horizon/CMS Healthcare Corp. , 220 F.3d at 1195. Thus, the district court

erred in requiring Morales to demonstrate that similarly situated employees were

treated differently.

       Nevertheless, this error does not affect the validity of the district court’s

entry of summary judgment. As an alternative basis for its ruling, the district

court proceeded to the second step of the     McDonnell Douglas analysis. It

properly determined that McKesson had articulated legitimate reasons for

terminating Ms. Morales’s employment and Morales had failed to demonstrate

pretext. “To show pretext, the plaintiff must call into question the honesty or

good faith” of the employer’s assessment of the situation.      Exum v. United States

Olympic Comm. , 389 F.3d 1130, 1137 (10th Cir. 2004).

       Pretext may be demonstrated by revealing “weaknesses, implausibilities,

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

legitimate reasons for its action [such] 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 reason.”     Morgan v. Hilti, Inc. , 108


                                             -6-
F.3d 1319, 1323 (10th Cir. 1997). In Morales’s case, in contrast, she testified

that neither her boss, nor “any of the other supervisors” were anti-Catholic,

alleging only a generalized institutional secularism. Doc. 52, Exhibit Y 125:6-14.

She furthermore does not deny having engaged in the harassing and rule-violating

conduct that form the basis of her dismissal.

         On our review of the record, we agree with the district court that

Morales’s repeated straying from the algorithms and disruptions of workplace

harmony were violations of McKesson’s workplace policies, and constitute valid,

nondiscriminatory reasons for terminating her employment – reasons that Morales

has not shown to be pretextual under the   standards of Exum or Morgan .

      Under Title VII, an employer is required reasonably to accommodate an

employee’s religious practices or beliefs where accommodation does not cause

undue hardship to the company’s business interests.     Shapolia v. Los Alamos

Nat’l Lab. , 992 F.2d 1033, 1037 (10th Cir. 1993). However, a religious

accommodation claim is distinct from a “straightforward disparate treatment”

claim. Id. In the instant case, Morales claims that she was fired because she did

not hold the same religious beliefs as her supervisors. Morales’s counsel did not

raise the accommodation issue below and we will not reach it here.   See United

States v. Chavez-Marquez , 66 F.3d 259, 261 (10th Cir. 1995) (stating that we do

not consider issues which are raised for the first time on appeal except to review


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for plain error resulting in manifest injustice). As in    Shapolia , “[t]he question for

the trier of fact is straightforward,” whether Morales’s termination was motivated

by an animus directed against non-secular employees.         Id. We cannot conclude

that it was.

       The judgment of the district court is AFFIRMED.        1




                                                          Entered for the Court



                                                          Carlos F. Lucero
                                                          Circuit Judge




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.

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