F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 6 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RETTA SEABOLT,
Plaintiff-Appellant,
v. No. 97-6180
(D.C. No. 95-CV-2042)
HOUSING AUTHORITY OF THE (W.D. Okla.)
CITY OF LAWTON, OKLAHOMA;
CITY OF LAWTON, OKLAHOMA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 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 Retta Seabolt appeals the district court’s order granting summary
judgment to defendants on her state claims of defamation and retaliatory
discharge. In the 42 U.S.C. § 1983 action filed in the district court, she also
alleged violation of her right to due process and equal protection. On appeal,
she has abandoned her federal constitutional claims. Therefore, we review the
Oklahoma state law claims and affirm.
Plaintiff was the Executive Director of the Lawton, Oklahoma Housing
Authority until she was discharged on February 3, 1995, by the Housing Authority
Board (the Board). Prior to her termination, plaintiff filed a worker’s
compensation claim for work-related injuries. She claims she was retaliatorily
discharged in violation of Okla. Stat. tit. 85, § 5, for filing the worker’s
compensation claim. As regards her defamation claim, she alleges that Board
members falsely accused her of embezzling public funds.
We review the grant of summary judgment de novo, applying the same
standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated
Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is
appropriate when there is no genuine dispute over a material fact and the moving
party is entitled to judgment as a matter of law.” Russillo v. Scarborough,
935 F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most
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favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski
Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
On appeal, plaintiff asserts that summary judgment was inappropriate
because the following material facts were in dispute: (1) whether plaintiff was
an at-will employee, (2) whether defendants had a retaliatory motive in
discharging plaintiff, and (3) generally, defendants’ reasons and motives in
discharging plaintiff. She also claims that the district court’s finding that she had
proved a prima facie case in her workers’ compensation retaliatory discharge
claim required a jury determination of the ultimate issues, and the district court
failed to consider statements made about plaintiff after her termination before
granting summary judgment on her defamation claim. She asserts that the
government defendants are liable for the acts and statements of their members
and employees. The issue of whether plaintiff was an at-will employee was
pertinent only to her procedural due process claim which she does not raise on
appeal. Therefore, the issue is deemed waived. See State Farm Fire & Cas. Co.
v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
Plaintiff’s argument that proof only of a prima facie case of retaliatory
discharge will defeat summary judgment ignores the rest of the burden-shifting
scheme employed to determine whether a case should be submitted to a jury.
In Buckner v. General Motors Corp., 760 P.2d 803 (Okla. 1988), the Oklahoma
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Supreme Court explained the proper series of proofs. The employee must first
establish a prima facie case. See id. at 806. Then the burden of production
“shifts to the employer to rebut the inference that its motives were retaliatory
by articulating that the discharge was for a legitimate non-retaliatory reason.”
Id. at 806, 807. If the employer carries this burden, the ultimate burden of
persuasion rests with the employee to establish that his or her “discharge was
significantly motivated by retaliation for [the] exercise of statutory rights,”
or that the employer’s proffered non-retaliatory explanation is “unworthy of
credence.” Id. at 807.
Here, the district court held that although plaintiff had established a prima
facie case, she had failed to adduce evidence to rebut defendants’ non-retaliatory
reason for discharging plaintiff -- her failure to perform the duties of her position.
On appeal, she points to no evidence to contradict the district court’s conclusion,
other than to state that defendants did not present evidence of a non-retaliatory
reason for discharging her, see Reply Br. at 3, a statement not supported by the
record. Similarly, she claims that material facts were in dispute regarding
defendants’ motives and reasons for discharging her, but she points to no
evidence to support her argument. We decline to provide an argument for
plaintiff on appeal. See National Commodity & Barter Ass’n, Nat’l Commodity
Exch. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989). Therefore, we hold that
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plaintiff’s proof of a prima facie case was insufficient to defeat summary
judgment.
We next address plaintiff’s defamation claim. On appeal, she does not
challenge the district court’s findings that the statements made during the Board
meetings were absolutely privileged, see Okla. Stat. tit. 12, § 1443.1, or that her
stipulation that she was a public figure invoked the “actual malice” requirement
of New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Rather, she alleges
that defamatory statements about her were made after she was discharged.
According to plaintiff, those statements need not have been made with “actual
malice.”
We do not decide whether the “actual malice” requirement expired upon
plaintiff’s discharge because she identifies no statement made after that time.
Plaintiff’s only reference to the record to support this claim is to her own
deposition in which she described statements made during a Board meeting,
that the district court found to be absolutely privileged. Moreover, the record
indicates that the Board meeting occurred before plaintiff’s termination. Plaintiff,
as appellant, must provide essential references to the record to carry her burden
of proving error. See S.E.C. v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992).
Although it is not the court’s duty to “sift through” the record to find support for
plaintiff’s arguments, see id., we have reviewed the materials submitted and have
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found no reference to any defamatory statement made about plaintiff after she was
discharged. Accordingly, plaintiff has not demonstrated that the district court
erred in entering summary judgment on her defamation claim.
Because we conclude that the district court correctly granted summary
judgment to defendants, we need not address plaintiff’s governmental immunity
argument.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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