                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    October 8, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    KESHA LASHAWN MASTON,

                Plaintiff-Appellant,
                                                         No. 08-5027
    v.                                      (D.C. No. 4:06-CV-00694-CVE-FHM)
                                                         (N.D. Okla.)
    ST. JOHN HEALTH SYSTEM, INC.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



         Kesha Lashawn Maston appeals from the district court’s order granting

summary judgment to her former employer, St. John Health System, Inc., on her

racial-discrimination complaint brought under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e – 2000e-17, and 42 U.S.C. § 1981. Because

Ms. Maston failed to create a genuine issue of material fact concerning whether



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
St. John’s reasons for firing her were pretextual, we affirm the grant of summary

judgment.

                                  BACKGROUND

      1. Ms. Maston’s Employment with St. John

      Ms. Maston is African-American. Regional Medical Laboratory (RML),

a division of St. John, employed her from August 2001 until September 15, 2005.

She began work for RML as a data-entry clerk. In 2002 she was transferred to

RML’s billing office, where Lorinda Wear became her supervisor. Wear

remained her supervisor until St. John terminated her employment.

      During the time Wear supervised Ms. Maston, she promoted her three

times: to Client Specialist II, Client Specialist III, and to be a team leader for the

Customer Service Team. Ms. Maston remained a team leader until her

employment was terminated. She had a good working relationship with Wear,

who gave her good performance reviews.

      2. The ABC Incident

      On September 12, 2005, Wear received a past-due statement from a

mail-order company, ABC Distributing, LLC (ABC), for $304.27. RML had a

business account with ABC. When Wear contacted ABC, she was told that orders

had been faxed in to ABC from a “Felecia Vandiver” at RML.

      “Felecia Vandiver” was not an RML employee. That name was an alias

created by Djuana Welker, a white co-employee of Ms. Maston’s. In the orders

                                          -2-
she faxed to ABC, Welker gave RML’s billing-office address as the shipping

address and the billing-office email address as the email address for the orders.

Using this system, Welker ordered Christmas gifts and had them delivered to

herself, using the Felecia Vandiver name, at RML.

      Wear determined that RML employees Georgia Bevenue and Destiny

Taylor had signed for Federal Express packages from ABC. Bevenue and Taylor

are white. On September 13, 2005, Wear spoke to James Withrow, RML’s

Director of Human Resources, about the ABC orders. He instructed her to contact

security.

      3. The Investigation

      Tim Thomas, a security officer employed by St. John, began his

investigation that same day. He interviewed and obtained statements from

Ms. Maston, Bevenue, Taylor, and Welker.

      In her statement Welker admitted that in the Fall of 2004 she went online

and set up an account in the name of Felecia Vandiver. She ordered Christmas

gifts online using the account. At one point she double-ordered items by mistake.

She kept some of these items and her co-employees paid for others. In 2005 she

established a second account in the name of Donna Brookover or Donna

Overstreet. She set up this account so that she could order items on Taylor’s

behalf without risk to her credit if Taylor failed to pay.




                                          -3-
      Welker stated that she had not placed any orders using these accounts since

her initial orders, for which she paid in full. She apologized for creating the

accounts, and stated that she had “full intentions of providing any/all requested

information I am able to provide to show all of this information is completely

true.” Aplt. App. at 135.

      In her statement Taylor admitted that she had once gone to Welker to ask

her to order items from ABC. Welker placed the order, and Taylor paid for the

items with a money order. Taylor insisted that she had never personally opened

an account with ABC under a false name, and did not find out about the use of a

false name until after she placed the order with Welker. She did not have

knowledge of any other personal orders from ABC.

      Bevenue admitted in her statement that she had signed for a couple of

packages that came into the office. She stated she did this at Ms. Maston’s

instructions. The only time she ever bought ABC items was when she purchased

them from Welker, when Welker was selling Christmas items.

      Ms. Maston stated that she had witnessed magazines, catalogs, and

packages coming into the office for Felecia Vandiver. She signed for the

packages and just put them in the usual place for packages and mail. She heard

Welker say that if anything came in for “Felecia,” such items would be hers. She

saw Welker and Taylor pick up the packages.




                                         -4-
      4. Firings and Rehirings

      As a result of the investigation, RML fired Welker, Taylor, Bevenue, and

Ms. Maston. Welker and Taylor were fired on a Friday--September 16, 2005--for

their involvement in the ABC matter.

      The following Monday, Wear and Carol Ghere, director of RML, went to

the human resources department to discuss reinstatement of Welker and Taylor.

Wear and Ghere concluded that although the women used poor judgment in

ordering items under a false name and in using RML as the guarantor, they did

pay for the items they ordered, and were not involved in the order that resulted in

the unpaid balance. Welker and Taylor were reinstated, under a number of

specific conditions.

      Ms. Maston was fired on September 15, 2005, for insubordination and for

failure to cooperate in the investigation of the ABC orders. Wear prepared a

termination statement that stated:

      On two different occasions of being questioned, [Ms. Maston]
      became insubordinate with Tim Thomas and myself. The first
      occasion she did state “Do I need to write this down, so I don’t have
      to keep repeating myself?” The second time [she] stated “Do I need
      a lawyer, I don’t have time for this shit.”

      On 9-15-05 Carol [Ghere] and I called [Ms. Maston] at home and
      told her she was being terminated for insubordination and not
      cooperating during an investigation.

Aplt. App. at 140.




                                        -5-
      Bevenue was also fired for insubordination and/or failure to cooperate with

the investigation. Neither Ms. Maston nor Bevenue was rehired.

                                    ANALYSIS

      “This court reviews the district court’s summary judgment decision

de novo, viewing the evidence in the light most favorable to the non-moving

party; in this case, in [Ms. Maston’s] favor.” Herrera v. Lufkin Indus., Inc.,

474 F.3d 675, 679-80 (10th Cir. 2007). Summary judgment is appropriate “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      “Where, as here, a Title VII plaintiff relies on indirect or circumstantial

evidence to show discrimination, we examine the claim under the familiar

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 . . .(1973).” Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir.

2006). “Under McDonnell Douglas, the plaintiff carries the initial burden of

establishing a prima facie case of racial discrimination. See Kendrick [v. Penske

Transp. Servs., Inc.], 220 F.3d [1220,] 1226 [10th Cir. 2000] (discussing

McDonnell Douglas [test]).” Id. “Once the plaintiff establishes a prima facie

case, the burden shifts to the employer to articulate some legitimate,

non-discriminatory reason for the adverse employment action.” Id. “If the




                                         -6-
defendant makes this showing, the burden then shifts back to the plaintiff to show

that the defendant’s proffered justification is pretextual.” Id.

       In response to Ms. Maston’s uncontested prima facie case of

discrimination, St. John supplied two related, nondiscriminatory reasons for firing

her: her insubordination, and her failure to cooperate with the ABC investigation.

The burden then shifted back to Ms. Maston to show that these reasons were

pretextual. 1

       Ms. Maston makes two arguments to support her theory that St. John’s

reasons for firing her were a pretext for discrimination. She contends (1) that St.

John’s stated justification was unworthy of belief, and (2) that she is similarly

situated to the white employees who were rehired.

       1. Credibility of St. John’s Stated Justification for the Termination

                A. Scope of Inquiry

       We must first determine which incidents are relevant to the pretext inquiry.

In Ms. Maston’s termination statement, Wear specifically identified two

comments that Ms. Maston made that justified her dismissal. But in seeking

summary judgment, St. John presented broader evidence of Ms. Maston’s



1
      As a general matter it is the plaintiff’s burden to show that each of the
employer’s reasons was pretextual. Tyler v. RE/MAX Mountain States, Inc.,
232 F.3d 808, 814 (10th Cir. 2000). When, however, the multiple grounds are
closely intertwined and plaintiff shows that one of them is strongly suspicious,
she may prevail. Id.

                                          -7-
behavior. Thomas stated in his deposition, for example, that during the

interviews about the ABC orders, Ms. Maston kept cursing and “kept saying she

wouldn’t answer my questions.” Aplt. App. at 123. He also stated that he

believed she was being evasive, although his opinion of Ms. Maston’s conduct

was of limited value, except to the extent adopted by Wear, because Wear, not

Thomas, was the decision-maker. See Kendrick, 220 F.3d at 1231.

      St. John’s reliance on such additional incidents was permissible. First,

there were no inconsistencies between the two comments specifically described in

the termination statement and the behavior later cited in depositions and

affidavits. Second, all the described incidents fit within the overall justification

given for the termination—namely, insubordination and failure to cooperate with

an investigation. See Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076, 1080-81

(10th Cir. 1999). We may thus go beyond the two specific comments set forth in

the termination statement in determining whether St. John’s reasons for

termination were unworthy of belief.

             B. Alleged Deviation from the Handbook

      Ms. Maston contends that her actions could not have constituted

insubordination, because they do not fit the definition of insubordination

contained in St. John’s employee handbook. The handbook contains a

nonexclusive list of “circumstances/behaviors [that] may result in immediate

termination.” Aplt. App. at 131. The term insubordination appears in one of the

                                          -8-
listed items: “Willful refusal to follow direct orders (insubordination).” Id. at

132. Ms. Maston contends that her actions did not fit the handbook definition

because she did not willfully refuse to follow a direct order. Therefore, she

argues, RML’s justification for her termination, that she was insubordinate, is

unworthy of belief.

      An employer’s deviation from a binding company policy stated in an

employee handbook can in certain circumstances be evidence of pretext. See

Kendrick, 220 F.3d at 1230; Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,

1197 (10th Cir. 2008); Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th

Cir. 2007). Here, however, any inconsistency between the insubordination relied

upon by Wear and the handbook “definition” is not evidence of pretext. The

handbook definition is preceded by a caveat that “[t]he following list is a

guideline and does not include all possible offenses.” Aplt. App. at 131.

Although the term insubordination on the itemized list in the handbook refers to a

willful refusal to follow direct orders, St. John made no representation in the

handbook that it does not also fire employees for other forms of insubordination.

These could reasonably include being evasive during an interview, expressing

defiance during an investigation, or swearing at an investigator. See, e.g.,

McClellon v. Gage, 770 S.W.2d 466, 469 (Mo. Ct. App. 1989) (listing “a defiant

attitude” among recognized forms of insubordination). In short, the evidence




                                         -9-
does not support a claim that St. John deviated from its policies in terminating

Ms. Maston.

              C. Evidence of Insubordination and Failure to Cooperate

      Thomas stated in his deposition that during the interviews about the ABC

orders, Ms. Maston kept cursing and “kept saying she wouldn’t answer my

questions.” Aplt. App. at 123. Ms. Maston disputes this. In an affidavit she

stated that she wasn’t uncooperative or evasive and that she continued to answer

questions, even though she was asked the same questions over and over and was

feeling harassed. But during her earlier deposition testimony she stated that at

one point she had just stopped saying anything at all, because she was tired of

answering the same questions over and over again. This silence at “one point,”

which is not inconsistent with her testimony that in general she continued to

answer questions, fits St. John’s contention that she did refuse to answer

questions and thereby to cooperate with the investigation. Ms. Maston also

admitted that she may have sworn once during the interviews. She presents no

evidence to rebut St. John’s contention that she was the only employee who swore

during the investigation.

      Ms. Maston contends, however, that her termination based on “failure to

cooperate” was pretextual because Thomas expressed an equivocal opinion of her

behavior. When asked during his deposition whether he felt she had been

uncooperative during the interview, Thomas stated: “I don’t know if she was or

                                        -10-
not. I really don’t know.” Aplt. App. at 124. But Thomas was a security officer,

not the decision-maker in Ms. Maston’s case. It is the decision-maker’s

perception that counts in these circumstances. See Kendrick, 220 F.3d at 1231.

      Ms. Maston also relies on the apologetic tone that Wear took after the

interviews. She testified that Wear said, “I’m sorry he [Thomas] talked to you

that way, and I know that wasn’t right.” Aplt. App. at 97. 2 We fail to see,

however, how this apology supports Ms. Maston’s claim. The apology was by the

key person in Ms. Maston’s termination. Wear was the supervisor present during

Ms. Maston’s interview. She was the one who wrote Ms. Maston’s termination

statement. And she was the one who sought reinstatement of two of Ms. Maston’s

coworkers but not reinstatement of Ms. Maston. The apology can only be viewed

as an indication that Wear bore no personal hostility toward Ms. Maston. Indeed,

Wear had promoted her three times, and Ms. Maston admitted that she had a good

working relationship with Wear and that Wear had given her good performance

reviews. In light of Wear’s prior behavior toward Ms. Maston, we do not believe

that a reasonable jury could infer that Wear’s (and hence St. John’s) explanation

of Ms. Maston’s termination was unworthy of belief.


2
        St. John contends that this testimony is inadmissible hearsay. We do not
agree. The statement is a nonhearsay admission by a party opponent. See
Thomas v. Int’l Bus. Mach., 48 F.3d 478, 485 (10th Cir. 1995) (“If [Ms. Maston]
is testifying to what an authorized agent for [St. John] told her, the statements
would constitute an admission by a party-opponent and therefore be admissible
under Fed. R. Evid. 801(d)(2)”).

                                        -11-
      2. Did RML Treat “Similarly Situated” Employees Differently?

      In her other pretext argument, Ms. Maston contends that she was similarly

situated to white RML employees in her department, who were rehired, while she

was not. “[A] plaintiff may show pretext by providing evidence that [s]he was

treated differently from other similarly situated, nonprotected employees who

violated work rules of comparable seriousness.” Green v. New Mexico, 420 F.3d

1189, 1194 (10th Cir. 2005) (internal quotation marks omitted). RML concedes

that Ms. Maston was similarly situated to Taylor and Welker. The remaining

issue is whether she demonstrated a genuine factual dispute concerning her

violation of a work rule of comparable seriousness.

      Ms. Maston contends that the offenses committed by Taylor and Welker

were of comparable seriousness to hers because the employee handbook identifies

the following offense that could result in immediate termination: “falsification of

records or reports dealing with St. John business.” Aplt. App. at 132. She argues

that because she was also fired for grounds contained in the handbook, the firings

were for offenses of comparable seriousness. But as RML points out, nowhere in

the termination statements for Taylor and Welker is this ground mentioned as the

reason for discharging them. Nor is it clear that Ms. Maston was discharged

based on a comparable offense listed in the handbook. Moreover, the handbook

does not specify the conditions under which employees may be reinstated after

termination.

                                       -12-
          The evidence shows that Taylor and Welker cooperated in the investigation,

admitting their participation in the ABC scheme. An employer is entitled to

consider a candid admission of guilt when weighing how severely to discipline

an employee. There is no evidence that Ms. Maston attempted to apologize for

her conduct.

          Ms. Maston also argues that Georgia Bevenue, the other employee fired but

not rehired, was not similarly situated to herself. Even if this is true, it has little

relevance to the pretext question. Although a showing that RML retained a

similarly situated white employee who committed the same misconduct might

tend to establish pretext, it is of much less relevance that RML happened to fire a

white employee. That the fired white employee’s misconduct was worse than

Ms. Maston’s would hardly show that Ms. Maston’s misconduct did not justify

firing.

          In sum, Ms. Maston has failed to show a genuine factual issue regarding

whether Welker or Taylor violated work rules of comparable seriousness. For

this reason, the district court properly concluded that she failed to show pretext

by demonstrating that a similarly situated white employee was treated differently

than she was.

                                    CONCLUSION

          Ms. Maston failed to create a genuine issue of material fact concerning

whether St. John’s reasons for firing (and not rehiring) her were pretextual. We

                                           -13-
therefore AFFIRM the judgment of the district court granting summary judgment

in favor of St. John.


                                    Entered for the Court



                                    Harris L Hartz
                                    Circuit Judge




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