                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           AUG 7 2000
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    THERESA JOHNSON,

                 Plaintiff-Appellant,

    v.                                               Nos. 99-6322, 99-6427
                                                    (D.C. No. 98-CV-123-T)
    THE STATE OF OKLAHOMA,                                (W.D. Okla.)
    ex rel., UNIVERSITY OF
    OKLAHOMA BOARD OF REGENTS,
    a constitutional agency; DANIEL L.
    MCNEILL, in his individual capacity,

                 Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

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      This order and judgment is not binding precedent, except under the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 Theresa Johnson appeals from two orders of the district court,

one granting summary judgment to defendants and the other awarding costs to

defendants. We affirm.

       Ms. Johnson commenced this action in district court pursuant to Title II

of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(a), alleging

retaliation.    1
                    Ms. Johnson, who has multiple sclerosis,   2
                                                                   was a student in

the University of Oklahoma’s Physician Associate Program. She filed

a discrimination complaint after she was denied an emergency medicine clinical

rotation.   3
                She later filed this action in district court alleging retaliation for

1
       Ms. Johnson sued both the State of Oklahoma and the University of
Oklahoma Board of Regents, an arm of the state.    See Hensel v. Office of Chief
Admin. Hearing Officer , 38 F.3d 505, 508 (10th Cir. 1994). We have previously
held that the ADA is a valid abrogation of the States’ Eleventh Amendment
immunity, see Martin v. Kansas , 190 F.3d 1120, 1125-28 (10th Cir. 1999).
However, since the Supreme Court decided      Kimel v. Florida Board of Regents ,
120 S. Ct. 631, 649-50 (2000), courts have split on the issue of whether Congress
validly abrogated the States’ immunity from suit under the ADA. The Supreme
Court has accepted certiorari on this issue.  See University of Ala. at Birmingham
Bd. of Trustees v. Garrett , 120 S. Ct. 1669 (U.S. Apr. 17, 2000) (No. 99-1240).
Because we determine that Ms. Johnson cannot establish a valid claim under the
ADA, we need neither address this issue nor abate this case pending the Supreme
Court’s determination.
2
      Multiple sclerosis does not automatically qualify as a disability under
the ADA. See Sorensen v. University of Utah Hosp. , 194 F.3d 1084, 1086-88
(10th Cir. 1999). However, the parties and the district court agreed that
Ms. Johnson was disabled within the terms of the ADA. We accept that
characterization.
3
       The rotation was scheduled in the University’s emergency room. The
                                                                   (continued...)

                                               -2-
filing that compliant citing nine specific incidents of retaliation,   see App. Vol. I

at 13-14, including receiving “F”’s in various rotations, being charged with

academic misconduct, and being discharged from the program.

       The district court, presuming that Ms. Johnson had established a prima

facie case, held that she had not sufficiently rebutted defendants’ stated

legitimate non-discriminatory reasons for their actions. The court therefore

granted defendants ’ motion for summary judgment and awarded costs to

defendants .


No. 99-6322

       In this appeal, Ms. Johnson argues that the issue of retaliatory intent is one

for a jury and that the district court misapplied the substantive law. Ms. Johnson

contends that the district court erroneously applied the “pretext-plus rule” which

this court rejected in Randle v. City of Aurora , 69 F.3d 441, 451-53 & 452 n.16

(10th Cir. 19 95). She maintains that     she presented sufficient facts to show that

defendants’ stated reasons for their actions were pretextual.

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

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


3
 (...continued)
supervising physicians felt that rotation would be too strenuous for her and told
her she could take the emergency medicine rotation later in a less stressful and
busy emergency room.

                                              -3-
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. To avoid summary judgment, the nonmovant must establish, at

a minimum, an inference of the presence of each element essential to the case.

See id.

       For purposes of this appeal, we accept that Ms. Johnson has established

a prima facie case of ADA retaliation.         See Morgan v. Hilti, Inc. , 108 F.3d 1319,

1324 (10th Cir. 1997) (setting forth required elements). Having established

a prima facie case, defendants had to come forward with a legitimate

non-discriminatory reason for their actions.          See Pastran v. K-Mart Corp. ,

210 F.3d 1201, 1206 (10th Cir. 2000). Ms. Johnson then bore the burden of

showing that the defendants’ proffered reason was pretextual.           See id.

Ms. Johnson could “demonstrate pretext by showing such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in [defendants’]

proffered legitimate reasons for [their] action that a reasonable factfinder could

rationally find them unworthy of credence.”           Id. (quotation omitted). While

close temporal proximity between Ms. Johnson’s filing of her complaint and

defendants’ adverse action is a factor in determining pretext, that alone is not

sufficient to raise a triable issue of fact.    See id.




                                                -4-
       Ms. Johnson points out that the first alleged retaliatory act occurred

approximately two months after she filed her complaint. We have held that a one

and one-half month period between protected activity and adverse action may,

by itself, establish causation.   See Ramirez v. Oklahoma Dep’t of Mental Health       ,

41 F.3d 584, 596 (10th Cir. 1994)     . In contrast, we have held that a three-month

period, standing alone, is insufficient to establish causation.   See Richmond v.

ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir. 1997). We need not decide where the

line should be drawn, however, because Ms. Johnson cannot prove that

defendants’ proffered reasons for their actions were pretextual.

       Defendants stated that Ms. Johnson was given an “F” on one clinical

rotation because of her excessive absences. The “F” in the other rotation resulted

from her dismissal from the rotation by her preceptor based on her lack of

medical knowledge and inability to perform at an appropriate level. She was

dismissed from the program because she received a failing grade while on

probation. Defendants supported these reasons with copies of the program’s

policies. After her dismissal, defendants learned of Ms. Johnson’s participation

in a cheating scheme and filed an academic misconduct charge.

       Ms. Johnson presented no evidence to contest defendants’ proffered reasons

for their actions. She stated that she had not missed as much of the rotation as

defendants stated and that she did not participate in the cheating scheme.


                                              -5-
Ms. Johnson argued that a jury could disbelieve defendants’ proffered

explanations. Ms. Johnson’s statements are insufficient to show that a reasonable

factfinder could find defendants’ proffered reasons unworthy of credence. The

district court did not apply a “pretext-plus” standard in reaching this conclusion.


No. 99-6427

       In this appeal, Ms. Johnson argues that the district court erred in awarding

costs to defendants. She maintains that         her evidence of indigency rebutted the

presumption of awarding costs to the prevailing defendant. She appears to

suggest that public policy counsels against awarding costs to a prevailing

defendant in civil rights cases. Ms. Johnson also contends that the published

opinion of another court in the same district is binding precedent on other courts

in that district. She concludes that the district court was bound to follow           Martin

v. Frontier Federal Savings & Loan Association            , 510 F. Supp. 1062, 1069

(W.D. Okla. 1981), and not award costs.

       Federal Rule of Civil Procedure 54(d) provides that “[e]xcept when

express provision therefor is made either in a statute of the United States or in

these rules, costs other than attorneys’ fees         shall be allowed as of course   to the

prevailing party unless the court otherwise directs . . . .” (Emphasis added.) We

review the district court’s ruling on awarding costs under Rule 54(d) for abuse of

discretion. See AeroTech, Inc. v. Estes , 110 F.3d 1523, 1526 (10th Cir. 1997).

                                                -6-
       Courts have held that it was not an abuse of discretion for district courts to

award costs when the nonprevailing party was indigent.        See McGill v. Faulkner ,

18 F.3d 456, 460 (7th Cir. 1994) (district court may award costs against indigent

losing party under Rule 54);    Flint v. Haynes , 651 F.2d 970, 972-73 (4th Cir.

1981) (noting then 28 U.S.C. § 1915(e) (now § 1915(f)) language permitting

imposition of costs against indigent civil rights litigants “as in other cases”).

But see Stanley v. University of S. Cal.    , 178 F.3d 1069, 1079-80 (9th Cir.)

(district court abused discretion by awarding      especially high costs without

considering whether award would cause civil rights plaintiff to become indigent),

cert. denied , 120 S. Ct. 533 (1999).    Further, Congress has provided that an

award of costs may be entered against plaintiffs who have been permitted to

proceed in forma pauperis.      See 28 U.S.C. § 1915(f).    Certainly, considering this

factor would not be an abuse of discretion by the district court. However, we

cannot hold that it is the controlling factor.

       Ms. Johnson’s public policy argument is unpersuasive. She argues that

public policy counsels against awarding costs to a prevailing defendant in civil

rights cases because such an award would chill future plaintiffs from bringing

similar actions. We have upheld the “traditional presumption” of awarding costs

to prevailing defendants in civil rights case.     Mitchell v. City of Moore ,




                                             -7-
Nos. 98-6446, 99-6101, 99-6121, 99-6177, 2000 WL 954930, at *11 (10th Cir.

July 11, 2000). Further, relying on the

       parties’ comparative economic power . . . would almost always favor
       an individual plaintiff . . . over [the] employer defendant . . . . [T]he
       plain language of Rule 54(d) does not contemplate a court basing
       awards on a comparison of the parties’ financial strengths. To do so
       would not only undermine the presumption that Rule 54(d)(1) creates
       in prevailing parties’ favor, but it would also undermine the
       foundation of the legal system that justice is administered to all
       equally, regardless of wealth or status.

Cherry v. Champion Int’l Corp.    , 186 F.3d 442, 448 (4th Cir. 1999).

       Ms. Johnson cites no law holding that one district court is bound by the

decision of a sister district court. Further, such a holding would imply that this

court is bound by a district court’s decision. Ms. Johnson herself has disavowed

this position.   See Appellant’s Br. at 13 n.2. We further note that the district

court in Martin did not hold that costs could not be awarded when the defendant

“has significantly larger financial resources than an individual plaintiff,” but

merely decided to exercise its discretion and not award costs “in view of all other

circumstances.”    510 F. Supp. at 1069. The court set forth no rule of law.




                                           -8-
     The judgments of the United States District Court for the Western District

of Oklahoma are AFFIRMED.



                                                 Entered for the Court



                                                 Deanell Reece Tacha
                                                 Circuit Judge




                                      -9-
