Officer v. Sedgwick County

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SHEILA OFFICER,

Plaintiff-Appellant,
v.
No. 05-3404
(D.C. No. 04-CV-2418-KHV)
SED GW ICK CO UNTY , KANSAS;
(D. Kansas)
and SEDGW ICK CO UN TY
DEPARTM ENT OF CORRECTIO NS,

Defendants-Appellees.

OR DER AND JUDGM ENT *

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

Sheila Officer seeks damages from her former employer, Sedgwick County,

Kansas (the “County”), for its termination of her employment allegedly in

violation of Title VII. The district court granted summary judgment in favor of

the County after finding that M s. Officer failed to identify a material factual

dispute suggesting that she suffered an adverse employment action as a result of

*
This order and judgment is not binding precedent except under the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.
her race. Our review confirms that, on the limited factual record developed solely

by the County, entry of summary judgment was appropriate. 1

I

A

From October 1991 through August 30, 2002, M s. Officer, an African-

American, was employed by the County as an Intensive Supervision Officer (“ISO

I”) in the County’s Department of Corrections comm unity corrections program

(the “Corrections Department”). As an ISO I in the adult corrections services

department, M s. Officer was tasked with monitoring adult felons on probation and

ensuring that they complied with court-ordered conditions of probation. See

Aple. A pp. at 168; see also id. at 130, 141. Her job responsibilities included

gathering and verifying client intake information; developing a supervision plan;

creating and maintaining files tracking client compliance and progress; and

generally liaising between the client, courts and law enforcement. Id. at 168-69.

Beginning in approximately 1998, M s. Officer’s job performance audits

(including formal and informal evaluations), while positive in many respects,

critiqued her repeated failures to report and take seriously her probationers’

1
Cited below are only those facts essential to the resolution of the matters
appealed to us. For a more detailed chronology of the events giving rise to this
litigation, see the district court’s comprehensive memorandum and order granting
summary judgment to the County. Aple. App. at 600-634.

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deviations from probation conditions. 2 Although M s. Officer received repeated

warnings, she apparently did not alter her behavior and people outside the

Corrections D epartment began to take note. O n July 22, 2002, Judge David

Kennedy, a Sedgwick C ounty district judge, contacted M s. Officer’s superior,

Annie Nash, to express his concern that M s. Officer w as “running interference,”

or protecting her probationers from him. M s. Nash directed Greg Friedman, an

ISO II, to speak with Judge Kennedy regarding this issue; during this meeting,

M r. Friedman noted Judge Kennedy’s statement that he “does not send his

defendants to Sedgwick County Department of Corrections to be ‘loved’ and that

if Sheila w as going to love them instead of supervise them he did not want her to

supervise his defendants.” Id. at 290. At the conclusion of this meeting, Judge

Kennedy requested the Corrections Department to review M s. Officer’s case files

involving a host of probationers subject to her supervision. See id. at 288-90.

2
See Aple. App. at 228 (November 30, 1998 Interim Review) (“In her
zealous efforts to assist her clients, she frequently fails to integrate [the]
program’s policies and procedures into her decision making.”); id. at 245
(October 29, 1999 Performance Review) (“In her desire to help her clients, she
sometimes loses focus of the bigger picture. She has difficulty detaching from
her clients . . . .”); id. at 263 (November 2001 Interim Review ) (“Sheila
sometimes makes recommendations to the court which do not reflect the
seriousness of the client’s violations.”); id. at 268 (M emo from Supervisor A nnie
Nash dated M arch 12, 2002 regarding M s. Officer’s job performance) (“You are
to fully disclose client violations to the judge. File audits have shown occasions
in which only partial disclosure has occurred.”).

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 M s. Officer’s job performance evaluations from as early as M arch 1999

also revealed chronic problems complying with department policy to maintain

client files accurately and consistently. 3 On February 22, 2000, M s. Officer

received a “memorandum of concern” from M s. Nash regarding M s. Officer’s

“ongoing difficulty . . . in maintaining [her] clients [sic] files according to . . .

program[] policies and procedures.” Id. at 252. Her M ay 2000 evaluation

showed no sign of improvement in this regard: it observed that M s. Officer “is

willing to follow policies that are in agreement with her values and opinion” and

that she consistently failed to provide adequate documentation of client

communications and progress. Id. at 258.

B

M s. Officer’s job troubles came to a head in a case involving Ronda Felix,

a probationer convicted of multiple counts of theft and fraud. M s. Felix was

charged to M s. Officer’s care upon her sentencing in February of 2001. Aple.

3
See Aple. App. at 233 (M emorandum from M s. Nash to M s. Officer dated
M arch 11, 1999) (two client files were missing probation violation letters in their
files and M s. Officer was ordered to file all such documents in the future); id. at
250 (M emorandum from M s. Nash to M s. Officer dated Jan. 27, 2000) (M s. Nash
documented deficiencies in M s. Officer’s client files and observed that “some
offenders [of] especially high risk requires [sic] a more strict adherence to
policies . . . [an audit of M s. Officer’s files] revealed that [a sex offender whom
M s. Officer was supervising] is not being supervised . . . according to program’
[sic] guidelines and . . . contact standards. High risk offenders must be
supervised according to programs’s guidelines . . . Few clients have the correct
employment information and you are not entering the intervention information
. . .” (emphasis in original)).

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App. at 306. M s. Felix was temporarily also under the watch of Cinda Hahn, a

Shawnee County caseworker, from M arch 20, to N ovember 14, 2001. M s. Felix

was thereafter transferred back to M s. Officer’s sole care. Id. at 309.

On M arch 15, 2001, M s. Officer received a phone call from M s. Felix’s

roommate, LaJune Carson, claiming that M s. Felix had stolen some of her

clothing and forged her checks. Id. at 160. M s. Officer took no action in

response to this allegation; she did not obtain the police report M s. Carson had

filed, or inquire further; nor did she supply any plausible reason for inaction. Id.

at 160. M s. Officer similarly dismissed allegations by a furniture rental company

on M arch 22, 2001, that M s. Felix had left town with its property. Id. at 160.

M s. Officer claims no action was necessary because “[M s. Officer] put Ronda

Felix on a bus personally. She could not have left with their property.” Id. at

160.

On June 19, 2001, M s. Officer received a call from M s. Hahn, the Shawnee

County ISO , notifying her that M s. Felix’s employer claimed that she forged

checks from his business account. Id. at 160-61. M s. Officer admits she did not

conduct any follow up on this allegation either; in her view, “should an

investigation occur, it would have been the responsibility of the ISO in Topeka[,

M s. Hahn].” Id. at 161. M s. Officer subsequently received more phone calls

from M s. Hahn, this time in O ctober and N ovember of 2001, regarding M s.

Felix’s recurring violations of her probation conditions. In response to these

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complaints, M s. Hahn submitted to M s. Officer an affidavit identifying M s.

Felix’s violations of her probation and M s. Officer, in response, filed a warrant

for M s. Felix’s arrest; M s. Felix was subsequently brought back to Sedgwick

County on this warrant. Id. at 161.

At a court hearing in February of 2002 in Sedgwick C ounty, M s. Felix’s

probation was reinstated subject to certain modifications – namely, M s. Felix w as,

among other things, to obey all laws, obey all of M s. Officer’s instructions,

maintain full-time employment except during inpatient treatment and while

enrolled in school on a full-time basis, and reside and work in Sedgwick County.

See id. at 313, 306-07. At this hearing, M s. Officer observed that M s. Felix

appeared to be pregnant. Id. at 149.

On April 4, 2002, M s. Officer sent Judge Karl Friedel, the Sedgwick

County district judge who ordered M s. Felix’s probation, an email representing

that M s. Felix was pregnant but that she was employed and was complying with

the terms of her probation. Id. at 323. On June 21, 2002, M s. Officer sent Judge

Friedel another email, this time representing that M s. Felix was “two days short

of having her baby” and that she gave M s. Felix a “three week grace period

providing she delivers within the next few days” within which to complete her

community service work. Id. at 325. On Friday afternoon, July 5, 2002, M s.

Felix contacted M s. Officer and told her that someone had stolen her baby at the

hospital shortly after giving birth. Id. at 157-58. Although M s. Officer does not

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recall being directed to contact the hospital to verify M s. Felix’s delivery of a

baby and the police to see if anyone reported an abduction, M s. Officer does not

controvert the accuracy of electronic records showing that she contacted the

hospital on July 5, 2002, to see if it had a record of M s. Felix giving birth, which

it did not, and the police department to see if it received a report of an abducted

baby, which it had not. Id. at 348. Thus, M s. Officer’s own contemporaneous

records suggest she was aware both that M s. Felix had not given birth and that

she had reported no abduction.

Over that weekend, a W ichita newspaper reported a “suspicious woman”

dressed in hospital scrubs and a lab coat who was visiting hospitals in the area

and probing staff as to where newborns were kept. Id. at 148. M s. Officer

brought the article to M s. Nash’s attention the following M onday morning. Id.

M s. Nash suspected that M s. Felix was the “suspicious woman” and instructed

M s. Officer to contact M s. Felix’s physician for information on when and where

the baby was delivered. Id. at 150. M s. Felix’s physician, Dr. Debra M essamore,

told M s. Officer that M s. Felix had a prior hysterectomy and thus could not

possibly have been pregnant. Id. at 151.

On July 10, 2002, M s. Nash conducted an audit of M s. Officer’s case file

on Ronda Felix. Id. at 369-74. She found numerous errors primarily stemming

from M s. Officer’s failure to follow department policy regarding proper

documentation of client files. She also noted M s. Officer’s failure to take

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seriously allegations of M s. Felix’s probation violations and questioned M s.

Officer’s judgment in “so willingly believ[ing] the client but . . . [having]

difficulty believing administration.” Id. at 225. M s. Felix was subsequently

arrested and pled guilty to impersonating a doctor. A ppellant’s Br. 18.

C

On July 19, 2002, Kerri Platt, M s. Nash’s supervisor, met with M s. Officer

in M s. Nash’s presence and queried M s. Officer’s handling of M s. Felix’s case;

specifically, she focused her concern on why M s. Officer did not seek

confirmation of M s. Felix’s pregnancy when M s. Felix sought to miss work (and

thus violate a condition of her probation) due to this medical condition.

Appellant’s Br. 22. M s. Officer’s response w as that she did not think it necessary

because at the court hearing in February 2002, M s. Officer alleges that Judge

Friedel “acknowledged [M s. Felix’s] pregnancy in the courtroom” and stated that

M s. Felix would not need to work for a limited time before and after the delivery.

Aple. App. at 163.

On August 13, 2002, M s. Platt issued a pre-termination memorandum to

M s. Officer. This memorandum, prepared by M s. Platt for M ark M asterson, the

Corrections Department Director (the “Platt M emorandum”), sought to justify M s.

Officer’s termination primarily on the basis of M s. Officer’s handling of M s.

Felix’s case, though it also cited overall inadequate work performance. See Aple.

App. 379-84. M s. Officer was invited to respond to this memorandum at a pre-

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termination hearing before M r. M asterson. Id. at 379. On A ugust 29, 2002, M s.

Officer and her attorney attended the hearing and presented evidence and

arguments urging M r. M asterson not to terminate her. A ppellant’s Br. 36-37.

The next day, M r. M asterson issued a Notice of Termination to M s. Officer which

listed seven specific findings seeking to justify M s. Officer’s termination (the

“M asterson M emorandum”). Among other things, M r. M asterson found that:

(1) M s. Officer failed to correct inadequate work performance after being advised

of specific areas of needed improvement; (2) her violations of department policy

in M s. Felix’s case were not unique “but represented a pattern of deficiencies in

job performance detailed in the personnel file”; (3) her “failure to act in verifying

information on several reports of possible new criminal activity consistent with

Rhonda Felix’s history not only harmed the client but jeopardized public safety”;

and (4) each of the violations contained in the Platt M emorandum was supported

by the evidence. Aple. App. at 390-91.

Following her termination, M s. Officer brought this action claiming that

she was fired because of her race and in retaliation for expressing concern five

years earlier that the County had a disproportionately small number of African-

American ISO s in light of the significant number of African-American

probationers. After the County moved for summary judgment on both claims, the

district court issued a memorandum and order granting the County’s motion. The

district court held that the discriminatory discharge claim must be dismissed

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because M s. Officer failed to show that the County’s race-neutral reasons for her

discharge were pretextual, and that her retaliatory discharge claim also failed

because she did not establish a prima facie case. See id. at 625-34.

II

W e review the district court’s grant of summary judgment de novo. Young

v. Dillon Co., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment is

proper 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.” Fed. R. Civ. P. 56(c). In adjudicating such a

motion, we are obliged to view the record evidence in the light most favorable to

the nonmovant and draw all reasonable inferences therefrom in favor of the

nonmovant. Young, 468 F.3d at 1249. 4 Notwithstanding the foregoing, the

4
Because the record on appeal filed by M s. Officer contains evidence not
presented to the district court in its adjudication of the summary judgment
motion, and M s. Officer did not file a motion to supplement the district court’s
record with this material, we will not consider it. W e are bound to consider only
those materials before the district court or otherw ise properly a part of the record
on appeal. See Fed. R. App. P. 10(a) (the record on appeal consists of the papers
and exhibits filed in the district court; transcript of proceedings, if any; and a
certified copy of the docket entries prepared by the district court); see also APG ,
Inc. v. M CI Telecomm. Corp., 436 F.3d 294, 297 n.1 (1st Cir. 2006) (appellate
court review of “summary judgment rulings is limited to the record as it stood at
the time of the district court’s decision”). Accordingly, all cites to the record are
to the record prepared by the Appellees which is compliant with Rule 10(a) of the
Federal Rules of Appellate Procedure.

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nonmovant cannot rely on “ignorance of facts, on speculation, or on suspicion and

may not escape summary judgment in the mere hope that something will turn up

at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

Title VII provides a cause of action to employees who suffer an adverse

employment action because of their race, color, religion, sex, or national origin.

See 42 U.S.C. § 2000e-2(a)(1). Because M s. Officer seeks to prove her Title VII

claim s solely through indirect or circumstantial evidence of racial animus, we

examine her claim under the burden-shifting framework established by M cDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under M cDonnell

Douglas, the plaintiff must first establish a prima facie case of discrimination.

See Young, 468 F.3d at 1249. Upon the plaintiff’s establishment of a prima facie

case, the burden shifts to the employer to articulate a legitimate, non-

discriminatory reason for the adverse employment action. Id. If the employer is

able to do so, the burden reverts back to the plaintiff to show that the justification

offered by the employer was simply pretext: an attempt to obscure racial

discrimination. Id.

A

The parties agree that the plaintiff met her initial burden of proving a prima

facie case with respect to her discharge and that the defendants articulated non-

discriminatory reasons for her termination; thus, the viability of M s. Officer’s

claim of illegal discharge is dependent upon resolution of the third step of

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M cDonnell Douglas. See Appellant’s Br. 50; Appellees’s Br. 49-50. W e have

previously noted that a plaintiff may prove that a defendant’s stated reasons are

pretextual in a variety of ways; a plaintiff is not “forced to pursue any particular

means of demonstrating that a defendant’s stated reasons are pretextual.”

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)

(quoting Patterson v. M cLean Credit Union, 491 U.S. 164, 187-88 (1989)

(alterations omitted)). 5 Here, plaintiff alleges that there are four distinct reasons

evidencing that the defendants’ reasons for terminating her w ere pretextual:

(1) only four of the Corrections D epartment violations contained in the Platt

M emorandum had merit (leaving eight meritless violations); (2) those four

violations were not significant enough to “warrant immediate termination rather

than the progressive disciplines of reprimand, probation, or demotion which is

County disciplinary policy”; (3) M s. Platt’s and M r. M asterson’s racial animus

can be inferred through the racial composition of the employees recommended for

termination and terminated, respectively; and (4) M s. Officer received disparate

treatment from a similarly situated Caucasian employee. Appellant’s Br. 50-52.

5
Although the plaintiff’s claims in Kendrick were brought under 42 U.S.C.
§ 1981 and not under Title VII, the elements of a plaintiff’s case are the same and
the analytical framework established by M cDonnell Douglas controls; thus, w e
are bound, in this Title VII context, by our 42 U.S.C. §§ 1981 and 1983 cases on
point. See Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004).

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 1. Falsity of Violations. The Supreme Court has observed that “a

plaintiff’s prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000). However, such a showing will not

“always be adequate” and “[c]ertainly there will be instances where, although the

plaintiff has established a prima facie case and set forth sufficient evidence to

reject the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory.” Id. Our precedent further instructs that, in order for

a plaintiff to show pretext, he or she must demonstrate

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. M ere conjecture that the
employer’s explanation is pretext is insufficient to defeat summary
judgment.

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (quotation

omitted). W e have further clarified that “the relevant falsity inquiry is whether

the employer’s stated reasons were held in good faith at the time of the discharge,

even if they later prove to be untrue . . . [and that t]he reason for this rule is plain:

our role is to prevent intentional discriminatory hiring practices, not to act as a

super personnel department, second guessing employers’ honestly held (even if

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erroneous) business judgments.” Young, 468 F.3d at 1250 (quotations and

citations omitted).

M s. Officer claims that pretext can be established in this case because

many of the policy violations identified in the Platt M emorandum “are just false.”

See Appellant’s Br. 50, 58. Of course, M s. Officer was fired not by M s. Platt;

neither w as the Platt M emorandum the operative document discharging her;

rather, M r. M asterson discharged her and the reasons for her termination were

those listed in the M asterson M emorandum. Aple. App. 390-91. However,

because M r. M asterson found that the policy and procedure violations contained

in the Platt M emorandum were “supported by the evidence and found to be true,”

if the violations were indeed false, and if M s. Officer were successful in proving

that the remaining reasons identified by M r. M asterson for her discharge w ere

also false, we assume for purposes of our analysis that a factfinder could

determine that the discharge was discriminatory.

M s. Officer, however, effectively admits to five of the twelve policy

violations identified in the Platt M emorandum – two are failures to maintain

records, 6 two are failures to investigate allegations of non-compliance with

6
Although M s. Officer does not expressly admit that she committed the
second policy violation identified in the Platt M emorandum, see Appellant’s Br.
58, in her brief she states in regards to this violation that “she did her job, but did
not write it down. Officer agrees that not recording is a violation, but not
sufficient to justify termination.” Id. at 24. Because the policy at issue was a
(continued...)

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probation conditions, and the last is a failure to assess accurately M s. Felix’s risk

which resulted in her being supervised at a level less intensive than it should have

been. See Appellant’s Br. 58.

Even viewing all the evidence in the light most favorable to M s. Officer

and drawing reasonable inferences in her favor, her comm ission of six of the

remaining seven policy violations is beyond dispute. Three of these violations

involved a failure to investigate allegations of renew ed criminal activity by M s.

Felix: (1) the allegation by M s. Carson, M s. Felix’s roommate, that M s. Felix had

stolen her clothing and forged her checks; (2) the allegation by Rentaw ay Rent A

Center that M s. Felix left with its property; and (3) the allegation by M s. Felix’s

employer that she had forged checks relayed to M s. Officer by M s. Hahn. See

supra at 5. M s. Officer claims that these three failure to investigate violations are

“false” because M s. Officer subjectively believed that it was impossible for M s.

Felix to have committed the crimes alleged. However, M s. Officer’s subjective

beliefs w ere immaterial; M s. Officer w as charged with failing to fulfill her duty

under Corrections Department policy to investigate the allegations and this she

admittedly failed to do.

6
(...continued)
policy requiring just such a recording, we are constrained to find these statements
permissible of no interpretation other than an admission of the violation.

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 The following three policy violations can be grouped together because they

involved in one way or another the phantom pregnancy: (1) M s. Officer failed to

follow up on the fact that a different employer in M ay and June of 2002 contacted

M s. Officer regarding M s. Felix’s poor work attendance, possible theft, and the

employer’s suspicion that M s. Felix was not in fact pregnant; (2) M s. Officer

failed to obtain, as required by Corrections Department policy, documentation of

M s. Felix’s medical restriction (i.e., her pregnancy); and (3) M s. Officer failed to

document again M s. Felix’s medical restriction in order to permissibly absolve

M s. Felix of her responsibility to engage in community service work. In response

to these violations, M s. Officer repeatedly asserts that “Ronda really did not have

to work according to Judge Friedel’s instructions.” Appellant’s Br. 32, Aple.

App. 162. But M s. Officer cites nothing but her own deposition testimony to

support this claim about the content of Judge Friedel’s instructions. In any event,

the relevant Corrections D epartment policy does not provide that compliance with

a documentation requirement is excused if a judge recognizes a medical

condition. See Aple. App. at 382. Indeed, even if the judge remarked on M s.

Felix’s putative pregnancy as M s. Officer testified, we have no reason to believe

the judge did not rely, after the hearing during which M s. Felix appeared to be

pregnant, on the representations of M s. Officer herself that M s. Felix was indeed

pregnant. See supra at 8; see also Aple. App. at 163 (M s. Officer admits that

Judge Friedel relied on information she provided to him after the court hearing

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regarding M s. Felix’s pregnancy). The judge had, after all, no independent means

for assessing whether or not M s. Felix was pregnant; that duty belonged to

probation staff – not the court.

M s. Officer claims that the remaining policy violation in the Platt

M emorandum is explained by a typographical error. M s. Officer was required to

seek permission from Judge Friedel, the sentencing judge, prior to temporarily

transferring M s. Felix to Topeka, Kansas, where M s. Felix desired to live for a

period of time. The electronic records that M s. Officer entered stated that she

sought permission from Judge W aller, not Judge Friedel. Aple. App. at 160, 198.

M s. Officer claims she did not violate the policy because she in fact asked Judge

Friedel for permission, not Judge W aller. In this instance, we bear in mind that

we must look at the facts as they appear to the person making the decision to

terminate plaintiff. Young, 468 F.3d at 1250. 7 On the record before him, M r.

M asterson had every reason to believe, by M s. Officer’s own hand, that she

contacted Judge W aller, and not Judge Friedel as required; further, M s. Officer

provides no evidence that she came forward with her claim of typographical error

any time prior to her termination.

7
That is, “the relevant inquiry is not whether the employer’s proffered
reasons were wise, fair or correct, but whether it honestly believed those reasons
and acted in good faith upon those beliefs.” Young, 468 F.3d at 1250 (quoting
Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)).

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 M s. Officer claims that the third specific finding cited by the M asterson

M emorandum – that she had a pattern of deficient job performance – was also

false, this time by virtue of her ten years of service without disciplinary action

and satisfactory performance evaluations. W e have previously found pretext on

the basis of past performance evaluations when there is a “glaring contradiction”

between the plaintiff’s performance evaluations and the employer’s stated reasons

for the termination. See Cole v. Ruidoso M un. Schs., 43 F.3d 1373, 1380 (10th

Cir. 1994). But we, like the district court, are unable to see how M s. Officer

might meet this standard. W hile M s. Officer may not have been subject to

disciplinary action such as demotion or suspension, she did receive a

memorandum of concern and her job evaluations repeatedly identified significant

shortcomings in her performance, particularly regarding her inability to

emotionally detach from her probationers and view their indiscretions seriously

and her failure to follow Corrections Department policy – shortfalls that became

particularly acute in the Felix episode. See supra at 2 n.2, 4 n.3. Simply put, we

see no glaring contradictions between the stated reasons for her discharge and her

periodic employment reviews.

Having concluded that every single violation identified in the Platt

M emorandum was true or, at the very least, was reasonably believed to be true by

the decision-maker, and given the lengthy record of M s. Officer’s failure to abide

Corrections Department policies, we are constrained to affirm the district court’s

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holding that M s. Officer cannot on this record prove pretext by suggesting that

the County’s proffered race-neutral reasons were false.

2. Progressive Discipline Policy. M s. Officer argues that pretext can

be inferred because M r. M asterson violated the County’s progressive discipline

policy by terminating her even though she “had no prior disciplinary actions

against her,” and the four violations identified in the Platt M emorandum which

she admits to were “not of such significance or public danger to warrant

immediate termination.” A ppellant’s Br. 51-52. But, the discipline policy in

effect when M s. Officer was terminated bestowed M r. M asterson with discretion

to impose any of the following forms of discipline – verbal counseling, written

reprimand, suspension without pay, demotion and termination, Aple. App. at 172,

583; that is, County policy did not require M r. M asterson to dispense a less

severe form of punishment, id. at 172. M r. M asterson concluded, moreover, that

the most severe form of discipline was appropriate in this case because, in his

view, M s. Officer’s mishandling of M s. Felix’s case “not only harmed the client

but jeopardized public safety” and “represente[ed] a pattern of deficiencies in job

performance detailed in the personnel file.” Id. at 391. W hether or not we agree

with that conclusion, we are not entitled to act as a “super personnel department

that second guesses employers’ business judgments.” Simms v. Oklahoma ex rel.

Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.

1999) (quotation omitted). It is dispositive for our purposes as a reviewing court

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that M r. M asterson’s decision to terminate M s. Officer was within the discretion

afforded to him by the relevant discipline policy and not, as we have previously

held, pretext for discrimination. 8

3. Statistical Evidence of Racial Animus. The Supreme Court in

M cDonnell Douglas noted that use of statistics “may be helpful” to determine

whether the employer had a “general policy and practice” of racial discrimination.

411 U.S. at 804-05. However, the Court cautioned that “such general

determinations, while helpful, may not be in and of themselves controlling as to

an individualized hiring decision, particularly in the presence of an otherwise

justifiable reason for refusing to rehire.” Id. at 805 n.19.

M s. Officer claims that M s. Platt recommended, and M r. M asterson fired, a

disproportionately large number of minorities and that this is evidence of their

racial animus. Appellant’s Br. 51. M s. Officer alleges that over the course of

8
W orthy of brief comment is M s. Officer’s assertion in her brief and at
oral argument that she was the County’s “scapegoat” and was fired in order to
assuage fears that dangerous probationers like M s. Felix were not being
supervised appropriately. W e note that, so long as the employee was not chosen
as the scapegoat for discriminatory reasons, Title VII does not make it unlawful
for an employer to create scapegoats as a method for dealing with bad press;
rather, Title VII forbids only those adverse employment actions taken because of
an employee’s race, color, religion, sex or national origin. See, e.g., Aramburu v.
The Boeing Co., 112 F.3d 1398, 1406 (10th Cir. 1997) (“An animus not related to
[plaintiff]’s ancestry, such as a personality conflict with [his supervisor], is not
evidence of improper discrimination.”). A n employee may also, under certain
circumstances, properly bring a tort claim. See, e.g., Luisi v. JWT G roup, Inc.,
128 M isc. 2d 291 (N.Y. Sup. Ct. 1985) (former advertising executive successfully
pleaded libel claim where press release issued by former employer used plaintiff
as the scapegoat for accounting irregularities).

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approxim ately five years, M s. Platt had only recommended for termination two

African-Americans and one Native-American – and that M r. M asterson

terminated two of these individuals, with the third resigning after his pre-

termination hearing. 9 M s. Officer fails to explain how such a small sample –

three persons over five years – can permit the generation of statistically

significant data suggestive of discrimination, especially in light of the C ounty’s

uncontroverted evidence in the record of poor job performance by these

individuals. See, e.g., M ayor of City of Philadelphia v. Educ. Equal. League, 415

U.S. 605, 620-21 (1974) (simplistic percentages highlighting unbalanced racial

composition were held to be meaningless where the composition was explained by

other factors (i.e., qualifications unrelated to race) and the sample size was too

small to be significant).

4. Disparate Treatment. Of course, Congress did not leave without

recourse plaintiffs who are unable to generate statistically significant data but

wish to prove their Title VII claims by reference to the treatment of fellow

employees; in such cases, a Title VII plaintiff may prove discrimination by

showing disparate treatment between herself and similarly situated nonprotected

9
M s. Officer contradicts herself as to the number of employees terminated
by M r. M asterson. Initially she alleges that he terminated a total of three
employees. See Appellant’s Br. 41. Subsequently, she claims that he terminated
three African-A mericans, see Appellant’s Br. 51; however, she provides no
citation to the record nor identifies this additional African-American raising the
tally. W e assume that this w as a typographical error since there is no evidence in
the record before us of a third African-American employee subject to a pre-
termination hearing by M r. M asterson.

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employees. M s. Officer alleges this as well, contending that M r. M asterson

violated an unwritten policy by treating a similarly situated, nonprotected

employee who violated a work rule of comparable seriousness, differently. See

Green v. New M exico, 420 F.3d 1189, 1194 (10th Cir. 2005). Specifically, M s.

Officer claims that Steve Kalocinski, a Caucasian male w as similarly situated to

her but w as demoted rather than terminated. Appellant’s Br. 52, 60-61.

In order to prove disparate treatment, however, it is axiomatic that M s.

Officer must prove she was “similarly situated” to M r. Kalocinski and violated

work rules of comparable seriousness. Kendrick, 220 F.3d at 1232. Under our

precedent, an employee “is similarly situated to the plaintiff if the employee deals

with the same supervisor and is subject to the same standards governing

performance evaluation and discipline.” Id. (quotation omitted). “A court should

also compare the relevant employment circumstances, such as work history and

company policies, applicable to the plaintiff and the intended comparable

employees in determining whether they are similarly situated.” Aramburu, 112

F.3d at 1404. Not all differences in treatment are sufficient to establish a

discriminatory intent; we have explained that “[d]ifferences in treatment that are

trivial or accidental or explained by a nondiscriminatory motive will not sustain a

claim of pretext.” Kendrick, 220 F.3d at 1232.

In 1999, after M r. Kalocinski received a negative review , he voluntarily

requested, and was granted, a demotion from his position as an ISO III (a

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supervisor like M s. Nash) to an ISO I (M s. Officer’s position) in the Juvenile

Field Services Division. Aple. App. at 553-54. Two years later, in November of

2001, M r. Kalocinski was placed on a 90-day disciplinary probation for

unsatisfactory work performance as an ISO I due to three incidents: (1) allowing

a juvenile client to enter a secure building even though the client did not

successfully pass through a metal detector, (2) allowing a juvenile client to walk

unescorted out of his sight in a secure building, and (3) failing to scan the parent

of a juvenile client who was unable to pass through the metal detector

successfully. Id. at 557. He was also reprimanded for keeping an aluminum bat

with the word “compliance” on it in his desk. Id. at 555-56. In M arch 2002, after

M r. Kalocinski failed to complete his disciplinary probation period successfully,

M r. M asterson demoted M r. Kalocinski from an ISO I to a corrections worker and

resassigned him to the adult intermediate sanction and services center. Id. at 554-

55.

In this case, we are constrained to conclude that M r. Kalocinski was not

similarly situated to M s. Officer – his w ork history and conduct sufficiently

distinguished him from M s. Officer. M r. Kalocinski had previously occupied the

position of corrections worker and was successful at that position. Aple. App. at

555. At the time he was demoted to corrections worker, his prior supervisor and

the then-current corrections worker supervisor, told M r. M asterson that she had a

vacant position “and was receptive and felt that he could be successful in it.” Id.

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Furthermore, M r. M asterson felt that M r. Kalocinski had a good working

relationship with probationers but his problems as an ISO III and I in the juvenile

services division were due to his inability to “be organized enough to do the job

at the level required.” Id. By contrast, M s. Officer had no prior work experience

as a corrections department worker, had no supervisor vouching for her

competence, and the problem w ork areas identified by her employer were not

confined to organizational skills.

The conduct leading to M r. Kalocinski’s demotion is also of a different

character than M s. Officer’s. M r. M asterson had before him reports of isolated

incidents of M r. Kalocinski failing to abide discrete building safety requirements

by permitting juvenile probationers, and in one instance parents of a client, to

enter into Corrections Department buildings without passing through a metal

detector successfully. M eanwhile, M s. Officer was charged by the County with

repeatedly refusing to report her probationers’ failure to comply with probation

conditions as required; failing to follow Corrections Department documentation

policies; and repeatedly taking her probationers’ word above all others, which

almost led, in the case of M s. Felix, to disastrous results. M r. M asterson

articulated the reasons he did not feel it was appropriate to demote her to the

position of corrections w orker as follows:

[M s. Officer d]oesn’t follow policies the way they are intended,
doesn’t follow her supervisor’s guidance in how she needs to correct,
doesn’t follow up on reports of criminal behavior, tends to side with
clients versus gathering the information, doesn’t present the

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 information to judges, is perceived by the people that depend on her
to do this job to not carry it out in a way that leads to trust of her
judgment. And in a residential setting, a corrections w orker would
not be successful if they carried out their job in that way.

Aple. App. at 552.

Because M s. Officer and M r. Kalocinski’s work histories and conduct are

significantly distinguishable, under our precedent the County “must be allowed to

exercise its judgment in determining how severely it will discipline an employee

for different types of conduct.” Kendrick, 220 F.3d at 1233; see also Salguero,

366 F.3d at 1177 (holding that facts identifying significant differences in conduct

among employees under investigation warranted different levels of discipline and

thus was insufficient to show disparate treatment). M s. Officer’s subjective

assessment that she would have been successful as a corrections worker is not

sufficient for us to override M r. M asterson’s beliefs because, so long as it is not

tainted by impermissible animus, “[i]t is the manager’s perception of the

employee’s performance that is relevant, not plaintiff’s subjective evaluation of

[her] own relative performance.” Furr v. Seagate Tech., Inc., 82 F.3d 980, 988

(10th Cir. 1996).

B

In addition to seeking to remedy workplace discontent, Title VII proscribes

retaliation against employees who voice opposition to, or participate in an

investigation or proceeding alleging, a violation of Title VII by his or her

employer. 42 U.S.C. § 2000e-3(a); see also Burlington N. & Santa Fe Ry. Co. v.

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White, – U.S. –, 126 S.Ct. 2405, 2415 (2006). In order to establish a prima facie

case of retaliation, a plaintiff must show that: (1) he or she engaged in protected

opposition to discrimination; (2) a materially adverse action by the employer

followed; and (3) a causal connection exists between the protected activity and

the adverse action. Kendrick, 220 F.3d at 1234. A plaintiff “may establish the

causal connection by proffering evidence of circumstances that justify an

inference of retaliatory motive, such as protected conduct closely followed by

adverse action.” Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir.

2004) (quotation omitted). As in the discrimination context, where there is only

indirect evidence of retaliation, the M cDonnell Douglas framework governs. See

Stover v. M artinez, 382 F.3d 1064, 1070 (10th Cir. 2004). In this case, the

district court found, and we agree, that the plaintiff failed to present a prima facie

case of retaliation.

M s. Officer briefly argues that she was discharged in retaliation for sending

a memorandum in 1997 to M s. Platt copying, among others, the then-current

Director of the Corrections Department, Ken Hales. Aple. App. at 127. The

memorandum expressed concern that the racial make-up of the ISOs in M s.

Officer’s department did not “mirror” that of its probationers; namely, that there

was a disproportionate number of African-American male probationers to

African-A merican male ISOs. Id. at 127-28. M s. Officer also offered to recruit

on behalf of the Corrections Department if requested. Id. at 127. M s. Officer

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alleges that only M s. Platt responded to her memorandum and that her response

was that M s. Officer ought not to concern herself with these sorts of personnel

issues. Id. at 127.

The district court ruled, first, that M s. Officer’s memorandum did not

constitute “protected opposition” for Title VII purposes because M s. Officer

advocated for affirmative efforts to hire more African-American ISO s and did not

allege that her employer had engaged in any discrimination against African-

Americans or any other employment practice made unlawful by Title VII. The

district court held that M s. Officer’s claim also failed because she had not

presented any evidence suggesting that her activities in 1997 had any causal

effect on her termination in 2002.

The question whether M s. Officer’s activities qualify as protected

opposition appears to be a relatively novel one and she cites to us no appellate

authority on point. W e need not decide that question, however; even assuming

that M s. Officer did engage in protected activity in 1997, we are constrained to

agree with the district court’s causation analysis. The individual who was

responsible for her termination, M r. M asterson, testified that he had not seen M s.

Officer’s 1997 memorandum until he was deposed in this case – well after he

terminated M s. Officer – suggesting that his decision to discharge her could not

have been in retaliation for her submission of the memorandum. Aple. App. at

174. On appeal, M s. Officer does not provide us with any evidence or argument

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that might lead a juror to disbelieve this testimony (see Appellant’s Br. 65-66);

though her burden was a light one – M s. Officer simply had to come forward with

some direct or circumstantial evidence, or even a reasonable inference therefrom,

suggesting that M r. M asterson had seen her 1997 recommendation – she simply

did not pursue the matter before us. 10 In Williams v. Rice, 983 F.2d 177, 181

(10th Cir. 1993), we rejected a Title VII claim on this same basis, holding that a

“plaintiff must show that the individual who took adverse action against [her]

knew of the employee’s protected activity.” W e see no basis for a different result

here.

t t t

For the foregoing reasons, we AFFIRM the district court’s judgment.

ENTERED FOR THE COURT

Neil M . Gorsuch
Circuit Judge

10
For example, assuming that the decision-maker is aware of the protected
opposition, a jury can of course infer causation from a close nexus in time
between the protected activity and the alleged retaliatory action; here, however,
five years passed between those two events and precedent precludes us from
allowing any inference of causation given the passage of so much time. See
Kendrick, 220 F.3d at 1234 (a lapse of one year between the opposition and the
alleged retaliation is too remote to support any inference of a causal connection);
see also Stover, 382 F.3d at 1074 (collecting cases).

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