Kosan v. Utah Department of Corrections

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS August 21, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT
Clerk of Court

VIVIAN KOSAN,

Plaintiff-Appellant,

v. No. 07-4261
(D.C. No. 2:06-CV-00592-PGC)
UTAH DEPARTMENT OF (D. Utah)
CORRECTIONS; MIKE CHABRIES;
SCOTT CARVER; BRANDON
BURR; ANNABELLE BROUGH;
DALE SCHIPANNBOORD,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.

Vivian Kosan was employed by the Utah Department of Corrections

(UDOC). She sued UDOC, four of its directors, and her former supervisor for

violating Title VII’s anti-retaliation provision and the First Amendment’s

*
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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
free-exercise and free-speech clauses. The district court granted the defendants’

summary judgment motion, prompting the instant appeal. We affirm, concluding

that (1) Kosan’s Title VII claim fails because the defendants’ termination reason

was not a pretext for retaliation; (2) her free-exercise claim fails because any

burden on her religion was the result of neutral, generally applicable UDOC

policies; and (3) her free speech claim fails because her speech was not a matter

of public concern.

B ACKGROUND

Kosan began working for UDOC in November 2001 as a counselor at the

Central Utah Correctional Facility (CUCF). In August 2003, UDOC allowed her

to transfer to another position in order to distance herself from her supervisor,

Brandon Burr, whom Kosan had reported for sexual harassment. Four months

later, in December 2003, UDOC’s Program Services Director, Dale

Schipannboord, gave Kosan a “Letter of Warning” for “telling Brandon Burr’s

LDS Stake President . . . about unsubstantiated allegations of misconduct by Mr.

Burr.” Aplt. App., Vol. 2 at 392. The letter notified Kosan that “harsher

disciplinary sanctions” would be considered if she repeated “this type of

misconduct.” Id. at 393. And in August 2004, UDOC’s Director of Institutional

Operations, Belle Brough, ordered Kosan, under threat of disciplinary action, not

to “speak or bring up past issues regarding Mr. Burr with anyone.” Id. at 400.

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 In September 2004, Kosan filed charges with the Equal Employment

Opportunity Commission (EEOC) and the Utah Antidiscrimination and Labor

Division (UALD), claiming that she had suffered (1) discrimination based on

national origin, and (2) retaliation for complaining of Burr’s harassment. In

January 2005, Kosan agreed to dismiss the charges and to forego any Title VII

claim based on those charges in exchange for UDOC’s promises to keep Burr out

of her chain of command, to refrain from further retaliation, and to audit her

position to determine whether she was entitled to a reclassification.

In March 2005, after the parties had settled Kosan’s discrimination charges,

UDOC suspended her employment for several days because she had reported

outside her chain of command that a coworker was sleeping on duty, had referred

to him as a “joke,” had failed to comply with an instruction to report the incident

to an officer in the coworker’s chain of command, and was untruthful during the

subsequent investigation. Aplt. App., Vol. 3 at 421.

In May 2005, while auditing Kosan’s position, UDOC began to suspect that

Kosan had misrepresented her education credentials on several documents. In the

position-analysis form she submitted in conjunction with her desk audit, she

wrote in the form’s education section, “I have been awarded and brought with me

my BA and DMA in dance/history and technique in French, Russian and Latin.”

Id. at 491. Kosan had also claimed one or more bachelor’s degrees on the resume

that accompanied her initial job application:

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 BA Bachelor of Arts, Brigham Young University (May ‘78)
Snow College (Sept ‘91) Equivalency given for my
dance certification and education upon invitation to join
both faculties as an instructor and lecturer.

Id. Finally, in her August 2000 application for Utah’s Peace Officer Standards

and Training (POST) program, in response to a prompt for “all colleges,

universities and trade schools . . . attended,” Kosan wrote, “BA equivalency given

by Snow College to teach.” Id. (underline omitted).

To investigate the matter, UDOC’s human-resources manager asked Kosan

for transcripts substantiating the claimed degrees. Kosan then admitted that she

“did not have a liberal college degree but had been given a BA equivalency when

[she] was invited as a faculty member for both [Brigham Young University] and

Snow College.” Id. at 456. On May 24, 2005, Kosan was removed from CUCF

and notified by administrative complaint that UDOC intended to terminate her

employment for falsely claiming a bachelor’s degree.

Utah’s Department of Public Safety investigated whether Kosan had

“entered false information on [her] POST application,” and it concluded in June

2005 that she did not. Id. at 478. The Department did, however, voice a “concern

that the information [Kosan] provided inadvertently misled reviewers at a later

date.” Id.

In July 2005, UDOC finalized her termination. Kosan then filed a second

charge of discrimination with the EEOC and the UALD. She also contested her

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termination before the Utah Career Service Review Board (CSRB). The

termination was initially upheld by a CSRB hearing officer, id., Vol. 4 at 751, but

later overturned by a panel of CSRB members, who concluded that Kosan’s

“equivalency statements were [not] intentionally misleading or otherwise a

violation of Department policy,” id., Vol. 3 at 498. In its written decision, the

CSRB panel indicated that “equivalency” referred to Brigham Young University

and Snow College’s ability to hire Kosan as an instructor, even though she lacked

the required college degree, by substituting Kosan’s practical experience for the

degree. Id. at 492. UDOC appealed to the Utah Court of Appeals, but later

dismissed the appeal after Kosan agreed to waive her right of reinstatement in

exchange for UDOC paying the “full measure of her backpay” and notifying her

husband of certain jobs within UDOC. Id., Vol. 4 at 693.

After receiving a right to sue letter from the EEOC on her second charge of

discrimination, Kosan commenced the instant litigation, claiming violations of her

rights under Title VII (hostile work environment, sex discrimination, and

retaliation), the Racketeer Influenced Corrupt Organizations Act (RICO), and

federal and state constitutional guarantees of freedom of religion and speech. The

district court entered summary judgment against Kosan on her federal claims, and

dismissed her state-law claims without prejudice. Kosan now appeals the

summary judgment as it relates to her Title VII retaliation claim and her federal

constitutional claims.

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 D ISCUSSION

I. Standards of Review

We review a district court’s grant of summary judgment de novo, applying

the same legal standard as the district court. Byers v. City of Albuquerque,

150 F.3d 1271, 1274 (10th Cir. 1998). 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 judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying

this standard, we view the evidence and draw reasonable inferences in the light

most favorable to the nonmoving party. Byers, 150 F.3d at 1274.

II. Title VII Retaliation

Title VII makes it unlawful for an employer to discriminate against an

employee for “oppos[ing] any practice made an unlawful employment practice by

[Title VII].” 42 U.S.C. § 2000e-3(a). To successfully invoke this anti-retaliatory

provision, an employee “must establish that retaliation played a part in the

employment decision.” Fye v. Okla. Corp. Com’n, 516 F.3d 1217, 1224

(10th Cir. 2008). This may be accomplished by “directly show[ing] that

retaliatory animus played a motivating part in the employment decision” or, if

there is no direct evidence of the employer’s motive, by relying “on the familiar

three-part McDonnell Douglas framework to prove that the employer’s proffered

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reason for its decision is a pretext for retaliation.” Id. at 1225 (quotation omitted).

Kosan relies on McDonnell Douglas, which first requires the employee to

“establish a prima facie case of retaliation by showing (1) she engaged in

protected opposition to Title VII discrimination; (2) she suffered an adverse

employment action; and (3) there is a causal connection between the protected

activity and the adverse employment action. Fye, 516 F.3d at 1227 (quotation

omitted). Once the employee establishes a prima facie case, the burden shifts to

the employer to produce evidence of a non-discriminatory reason for the conduct,

and then the employee has the burden of demonstrating pretext. Fischer v.

Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir. 2008).

The district court accepted Kosan’s argument that she had engaged in

protected opposition to discrimination. The district court also accepted Kosan’s

assertion that her suspension and termination were adverse employment actions

causally connected to protected activities. 1 Kosan did not, however, challenge

whether UDOC had articulated legitimate, nondiscriminatory reasons for the

suspension and termination. Nor did she argue that UDOC’s reasons for the

1
On appeal, Kosan adds to the list of adverse actions that her work station
was moved to a closet, she was given no assistance in completing her
position-analysis form, and her husband, who also worked for UDOC, received a
letter of reprimand. Aplt. Br. at 15. But she did not raise these actions below
when discussing adverse employment actions, see Aplt. App., Vol. 1 at 266, and
we decline to consider them for the first time on appeal, see Utah Lighthouse
Ministry v. Found. for Apologetic Information & Research, 527 F.3d 1045, 1051
(10th Cir. 2008).

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suspension were pretextual. Consequently, the district court focused on Kosan’s

only remaining argument: that UDOC’s reason for terminating her—falsely

claiming a bachelor’s degree—was a pretext for retaliation. We likewise limit

our focus to determining whether UDOC’s termination reason was pretextual, and

we consider only those theories of pretext advanced in the district court. Cf.

Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 684 (10th Cir. 2007) (considering on

appeal only those arguments presented to the district court regarding the existence

of an implied-in-fact employment contract).

To show pretext, Kosan “must produce evidence of such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in [UDOC’s]

proffered legitimate reason[ ] for its action that a reasonable factfinder could

rationally find [the reason] unworthy of credence and hence infer that [UDOC]

did not act for the asserted non-discriminatory reason[ ].” Fye, 516 F.3d at 1228

(quotation omitted). Kosan argues that pretext is demonstrated by four points:

(1) the CSRB’s reversal of her termination; (2) the Utah Department of Public

Safety’s finding that she did not enter false information on her POST application;

(3) the fact that UDOC issued its administrative complaint threatening to

terminate Kosan before the deadline it had imposed for Kosan to provide

transcripts supporting her degrees; and (4) her alleged misrepresentations were

not materially significant.

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 First, in regard to the CSRB’s reversal of Kosan’s termination, “[t]he

pertinent question in determining pretext is not whether [UDOC] was right to

think [Kosan] engaged in misconduct, but whether [UDOC’s] belief was genuine

or pretextual.” Tran v. Trustees of State Colleges in Colo., 355 F.3d 1263, 1270

(10th Cir. 2004) (quotation omitted). The CSRB determined only that Kosan had

not intentionally misled UDOC, and therefore did not violate UDOC’s policy

regarding falsifying records. The CSRB did not determine, as we must, whether

UDOC could have genuinely believed that Kosan falsely claimed to have a

bachelor’s degree. We conclude that no reasonable jury could dispute the

genuineness of UDOC’s belief. Specifically, Kosan’s assertion on the position-

analysis form that she had “been awarded and brought with me my BA” suggests

only one thing—that she indeed possessed a bachelor’s degree. Kosan’s resume

also portrays her as possessing a bachelor’s degree from at least Brigham Young

University, given the language, “Bachelor of Arts, Brigham Young University

(May ‘78).” Aplt. App., Vol. 3 at 491. While Kosan attempted to explain to

UDOC that she had “BA equivalency,” and had even mentioned “[e]quivalency”

on her resume, id., we are not persuaded that her use of that term would have

dispelled the reasonable belief that she had falsely claimed a bachelor’s degree.

As used in this case, “equivalency” simply refers to Brigham Young University

and Snow College overlooking her lack of a bachelor’s degree and employing her

based on experience. The fact that those institutions substituted experience for

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education in no way means that Kosan was “awarded” or otherwise in possession

of a bachelor’s degree.

Second, regarding the Utah Department of Public Safety’s finding that

Kosan did not enter false information on her POST application, it likewise does

not undercut the genuineness of UDOC’s termination reason. As far as we can

tell, the Department’s investigation was limited to Kosan claiming a bachelor’s

degree from Snow College. Consequently, the results of the investigation would

have no bearing on Kosan’s claim to a degree from Brigham Young University.

But more importantly, the Department recognized that the information Kosan

provided on her POST application was potentially misleading. Thus, UDOC’s

reliance on the application to terminate Kosan does not establish pretext.

Third, as for the timing of UDOC’s administrative complaint threatening

termination, there is no hint of pretext. The complaint was apparently issued

several hours before the 5:00 p.m. deadline on May 24 for Kosan to produce

transcripts showing a bachelor’s degree. But there was no reason for UDOC to

wait until 5:00 p.m., as Kosan had stated five days earlier that she did not have a

degree.

Kosan’s fourth and final pretext argument is that her misrepresentations

“were not materially significant.” Aplt. Br. at 20. She claims that after

submitting her position-analysis form, she “attempted to correct [it]” but was told

by her supervisor, Wayne Larson, and the human resources officer assigned to her

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desk audit, Mike Tribe, that “her corrections did not matter.” Id. 2 Our review of

the record, however, reveals that only Tribe made such a statement. See Aplt.

App., Vol. 2 at 310-12, 315. And even then, he simply told Kosan that his focus

in evaluating the desk audit was on what she had accomplished after becoming

employed at UDOC. Id. at 310. Nothing he said indicates that the

misrepresentation of a bachelor’s degree is not a terminable offense. Indeed, the

undisputed evidence shows that UDOC has terminated at least fifteen employees

since 1997 for “falsifying some type of record.” Id., Vol. 1 at 189. Further, when

a UDOC employment application has been falsified, Utah Administrative Code

§ R251-105-4(3) authorizes termination without regard to the significance of the

falsification.

We conclude that there is no genuine issue of material fact in regard to

pretext and that the district court properly granted summary judgment against

Kosan on her Title VII retaliation claim. 3

2
While the district court stated that it would not consider Kosan’s
materiality argument because she failed to provide record support, see Aplt. App.,
Vol. 4 at 776 n.103, it appears that the district court did in fact consider the
argument, see id. at 779-780. In any event, we conclude that Kosan sufficiently
briefed the argument below to perfect it for this appeal. See id., Vol. 2 at 252-53,
269.
3
Because Kosan has not shown a triable issue of retaliation, her argument
concerning “the appropriate remedy for a breach of a Title VII settlement
agreement” is moot. Aplt. Br. at 22. Moreover, we note that Kosan did not
include in her complaint a claim for breach of that agreement.

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 III. First Amendment Claims

Because this case also “implicates First Amendment freedoms, we perform

an independent examination of the whole record in order to ensure that the

judgment protects the rights of free expression.” Faustin v. City & County of

Denver, 423 F.3d 1192, 1196 (10th Cir. 2005). Additionally, because we

conclude in the following sections that Kosan has not shown a constitutional

violation, we need not reach the individual Defendants-Appellees’ argument that

they are entitled to qualified immunity. See Christiansen v. City of Tulsa,

332 F.3d 1270, 1278 (10th Cir. 2003).

A. Free Exercise Claim

The First Amendment’s Free Exercise Clause “requires government respect

for, and noninterference with, the religious beliefs and practices of our Nation’s

people.” Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). Kosan argues that

Schipannboord’s Letter of Warning, which admonished her for telling Burr’s

Stake President “about unsubstantiated allegations of misconduct by Mr. Burr,”

and which cautioned her against repeating that “type of misconduct,” Aplt. App.,

Vol. 2 at 392-93, intruded upon her “right to consult with her clergy,” Aplt. Br. at

24. But Burr’s Stake President was not Kosan’s Stake President. And Kosan did,

at some time, consult with her own Stake President and Bishop regarding Burr.

Aplt. App., Vol. 1 at 127.

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 Further, even if the Letter burdened Kosan’s ability to consult with her own

clergy, there is no evidence that the policies the Letter effectuated were

religiously motivated or applicable to only religious conduct. “Neutral rules of

general applicability ordinarily do not raise free exercise concerns even if they

incidentally burden a particular religious practice or belief.” Axson-Flynn v.

Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004) (footnote omitted). The Letter of

Warning indicated that Kosan’s actions violated various UDOC policies,

including prohibitions against defaming administrators or staff, revealing

confidential information, and discrediting UDOC or causing the public to lose

confidence in UDOC. And it noted that the policies applied when “discussing

Departmental business . . . with those in the community.” Aplt. App., Vol. 2 at

393. Because these policies are religiously neutral and are applicable generally,

not just in her consultations with clergy, Kosan’s free-exercise claim fails.

Free Speech Claim

“The freedom of speech guaranteed by the Constitution embraces at the

least the liberty to discuss publicly and truthfully all matters of public concern

without previous restraint or fear of subsequent punishment.” Federal Election

Com’n v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 2666 (2007) (quotation

omitted). “So long as employees are speaking as citizens about matters of public

concern, they must face only those speech restrictions that are necessary for their

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employers to operate efficiently and effectively.” Garcetti v. Ceballos, 547 U.S.

410, 419 (2006).

Kosan argues that “the policy of [UDOC] combined with the actions of

Defendant Brough and Defendant Schipannboord violated [her] free speech

rights.” Aplt. Br. at 27. Her argument appears to encompass Schipannboord’s

Letter of Warning and Brough’s instruction not to “speak or bring up past issues

regarding Mr. Burr with anyone.” Aplt. App., Vol. 2 at 400. 4 We conclude that

Kosan’s free-speech rights were not violated because she was not disciplined or

threatened with discipline for speaking on a matter of public concern.

“[P]ublic concern is something that is a subject of legitimate news interest;

that is, a subject of general interest and of value and concern to the public at the

time of publication.” City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004).

But “speech relating to internal personnel disputes and working conditions

ordinarily will not be viewed as addressing matters of public concern.” David v.

City & County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996). Kosan’s

communication with Burr’s Stake President, and the resulting limitations imposed

by Schipannboord and Brough, concerned her allegations of misconduct against

Burr—specifically, sexual harassment. Nothing in the record indicates, however,

4
While Kosan summarily asserts that her free-speech rights were violated
when UDOC suspended her for her conduct in the sleeping-coworker incident, she
made no such assertion in the district court. We decline to consider the assertion
for the first time on this appeal. See Utah Lighthouse Ministry, 527 F.3d at 1051.

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that Kosan spoke, or was prohibited from speaking about, sexual harassment “as a

widespread practice affecting [UDOC’s] performance of its public

responsibilities.” Id. at 1356 n.2. Because Kosan’s speech and the resulting

limitations related to a purely personal grievance affecting her own conditions of

employment, her free-speech claim fails.

C ONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby
Senior Circuit Judge

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