Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 28, 2025 _________________________________ Christopher M. Wolpert Clerk of Court REUBIN E. LACAZE, JR.,
Plaintiff - Appellee,
v. No. 24-6075 (D.C. No. 5:20-CV-01281-G) WADE GOURLEY, (W.D. Okla.)
Defendant - Appellant,
and
THE CITY OF OKLAHOMA CITY; BILL WEAVER; VANCE ALLEN; DOUG KIMBERLIN,
Defendants. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, EID, and FEDERICO, Circuit Judges. _________________________________
Wade Gourley appeals the district court’s order denying his motion for
summary judgment asserting qualified immunity. To the extent he presents
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 2
arguments properly raised in an interlocutory appeal of the denial of qualified
immunity, we exercise jurisdiction under 28 U.S.C. § 1291, reject those arguments,
and affirm the district court’s order.1
I. Background
Plaintiff Reubin Lacaze is an African-American who has been an officer in the
Oklahoma City Police Department (“OCPD”) since 1993. In 2019, OCPD’s Chief of
Police, Wade Gourley, terminated Lacaze’s employment for falsifying a police report
and misleading supervisors regarding the alleged loss of a small quantity of an
unknown substance confiscated during an arrest that was thought to be
methamphetamine. Lacaze successfully arbitrated his termination and was reinstated.
He then sued Gourley, three other officers, and Oklahoma City, alleging they had
discriminated against him in violation of Title VII and 42 U.S.C. § 1981.
The district court granted summary judgment on all claims except Lacaze’s
§ 1981 claim of racial discrimination against Gourley.2 As to that claim, the court
denied Gourley’s request for qualified immunity. The court concluded there was a
disputed issue of material fact at the pretext stage of the McDonnell Douglas
1 Plaintiff’s counsel passed away shortly after this appeal was docketed. Although plaintiff never retained new counsel for this appeal, appeared pro se, or filed a brief, that does not prevent us from considering the merits of Gourley’s appeal. See Fed. R. App. P. 31(c) (listing, as the only consequence of an appellee’s failure to file a brief, that the appellee “will not be heard at oral argument unless the court grants permission”). 2 Section 1981(a) provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 2 Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 3
analysis3—whether two proposed comparators were similarly situated to Lacaze but
received lesser punishment because they were white—and therefore a disputed fact
question whether Gourley’s termination of Lacaze violated a constitutional right.
The court also concluded that “[i]t is clearly established that employment
discrimination on the basis of race is forbidden by § 1981.” App. vol. II at 1494
(internal quotation marks omitted). Gourley has taken this interlocutory appeal.
II. Discussion
A. Interlocutory appellate jurisdiction
We have appellate jurisdiction to review “all final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. “Orders denying summary judgment
are ordinarily not appealable final decisions for purposes of § 1291.” Simpson v.
Little, 16 F.4th 1353, 1359 (10th Cir. 2021) (brackets, ellipsis, and internal quotation
marks omitted). “But under the collateral order doctrine, final (and therefore
appealable) decisions include decisions that are conclusive on the question decided,
3 In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court created a three-step framework for analyzing whether circumstantial evidence is sufficient to allow a plaintiff to show an employer acted with a discriminatory motive. First, a plaintiff must “establish[] a prima facie case of racial discrimination.” Id. at 802. If the plaintiff establishes a prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the [employment action].” Id. If the defendant carries that burden, then the plaintiff must have an “opportunity to show that [the employer’s] stated reason for [the employment action] was in fact pretext [for unlawful discrimination].” Id. at 804. A § 1981 plaintiff may rely on the McDonnell Douglas framework. Parker Excavating, Inc. v. LaFarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017). 4 We cite to the pdf page numbers of Gourley’s appendix because he did not use consecutive page numbering. 3 Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 4
resolve important questions separate from the merits, and are effectively
unreviewable if not addressed through an interlocutory appeal.” Id. (ellipsis and
internal quotation marks omitted). “The denial of qualified immunity to a public
official is therefore immediately appealable under the collateral order doctrine to the
extent it involves abstract issues of law.” Id. (internal quotation marks omitted).
When a defendant raises a qualified immunity defense at summary judgment,
“the plaintiff must (1) raise a genuine issue of material fact that the defendant
violated a federal constitutional or statutory right, and (2) show the right was clearly
established at the time of the defendant’s violative conduct.” Id. (internal quotation
marks omitted). “[W]hether the law was clearly established at the time of the alleged
violation” is an abstract issue of law we have jurisdiction to review in an
interlocutory appeal. Id. at 1359–60. But in an interlocutory appeal from the denial
of qualified immunity, we generally “lack jurisdiction . . . to review a district court’s
factual conclusions, such as the existence of a genuine issue of material fact for a
jury to decide, or that a plaintiff’s evidence is sufficient to support a particular
factual inference.” Id. at 1360 (brackets and internal quotation marks omitted).
Thus, “[t]he district court’s factual findings and reasonable assumptions comprise the
universe of facts upon which we base our legal review of whether defendants are
entitled to qualified immunity.” Id. (internal quotation marks omitted). As Gourley
notes, however, we may review the record de novo when (1) “the version of events
the district court holds a reasonable jury could credit is blatantly contradicted by the
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record” or (2) “the district court commits legal error en route to a factual
determination.” Id. (emphasis and internal quotation marks omitted).
B. Standard of review
“Within this court’s limited jurisdiction, we review the district court’s denial
of a summary judgment motion asserting qualified immunity de novo.” Id. (internal
quotation marks omitted). In doing so, we apply the same standard that governed the
district court. Id. Summary judgment is proper if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). We view “the evidence and the reasonable inferences to be drawn from
the evidence in the light most favorable to the nonmoving party.” Simpson, 16 F.4th
at 1360 (internal quotation marks omitted).
C. Gourley’s arguments
One of the comparators in this case is Officer Brewer. The district court
concluded a reasonable factfinder could infer the department’s given reasons for
terminating Lacaze were pretextual from evidence showing Brewer (who is white)
was disciplined less severely for analogous misconduct. Gourley argues that Brewer
was not a similarly situated comparator because Gourley never supervised Lacaze or
Brewer, and that he was not Chief when the investigations into Lacaze or Brewer
began. From this he concludes that the district “court apparently concluded that
because both decisions were made by Gourley, in his first year as Chief of Police,”
he must have discriminated based on race. Br. at 21. This argument might be
construed as an assertion that the district court employed an incorrect standard when
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it determined that both Lacaze and Brewer “shared the same decisionmaker,” App.
vol. II at 147, and thus committed a “legal error en route to a factual determination,”
Simpson, 16 F.4th at 1360 (emphasis and internal quotation marks omitted). But a
shared supervisor is not a comparator requirement; it is sufficient if the plaintiff and
the comparator shared the same decision-maker. See Ibrahim v. All. For Sustainable
Energy, LLC, 994 F.3d 1193, 1196 (10th Cir. 2021) (“Employees are similarly
situated when they share a supervisor or decision-maker, must follow the same
standards, and engage in comparable conduct.” (emphasis added)). And it is
undisputed that after he became Chief, Gourley made the final decisions to discipline
Brewer and to terminate Lacaze. Thus, contrary to Gourley’s argument, the district
court did not employ an incorrect legal standard.
Gourley also draws a factual distinction between Lacaze’s alleged misconduct
and Brewer’s misconduct, asserting he believed that Lacaze’s was more serious, and
therefore it was “presumptuous at best” for the district court “to conclude that he
acted because of racial bias.” Br. at 22. This argument, however, rests on Gourley’s
view of the facts, not on accepting as true the district court’s universe of facts and its
conclusion that when viewed in Lacaze’s favor, the evidence was sufficient for a
reasonable jury to find that Brewer and Lacaze were similarly situated. See Riggs v.
AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007) (“[W]hether two
employees are similarly situated ordinarily presents a question of fact for the jury.”
(internal quotation marks omitted)). Nor can his argument show that “the version of
events the district court [held] a reasonable jury could credit is blatantly contradicted
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by the record.” Simpson, 16 F.4th at 1360 (internal quotation marks omitted). The
“blatant contradiction” exception, which derives from Scott v. Harris, 550 U.S. 372,
380–81 (2007), is narrow, typically limited “to cases involving objective
documentary evidence, such as video recordings or photographs.” Vette v. K–9 Unit
Deputy Sanders, 989 F.3d 1154, 1164 (10th Cir. 2021). The exception does not
apply in cases like this one, “where the source of the contradictory testimony is the
defendant himself.” Id. at 1165.
The other comparator is Detective Carter. Oklahoma County District Attorney
David Prater publicly accused Carter of perjury in a sworn probable-cause affidavit
that resulted in the filing of criminal charges. Gourley directed the OCPD’s Internal
Affairs unit to investigate the accusation. Gourley contends that Carter and Lacaze
are not similarly situated because (1) the Internal Affairs unit concluded that the
charge against Carter was unsubstantiated, and there is no evidence that Gourley
controlled that conclusion; and (2) the Oklahoma Attorney General and the
Oklahoma State Bureau of Investigation are still investigating Carter’s conduct.
These arguments contest the district court’s conclusion that there is a genuine
issue of material fact whether Carter was similarly situated to Lacaze but not
disciplined because Carter is white. The district court’s conclusion apparently rests
on an email Prater sent to Gourley after Carter was cleared, inquiring “how the
matter was investigated without contacting me[?]” App. vol. II at 96. Lacaze relied
on that email in his response to Gourley’s motion for summary judgment, arguing
that the investigation was unfair and “bogus” because no one interviewed Prater or
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anyone from his office, and the investigation was completed in just 90 days.
Id. at 45–46; see also id. at 54 (arguing that “[t]he jury can find that this type of sham
investigation shows . . . preferential treatment to white officers accused of
untruthfulness”). Because Gourley’s arguments target the district court’s factual
conclusion that Lacaze had provided sufficient evidence for a reasonable jury to find
that he and Carter were similarly situated, we lack jurisdiction to review those
arguments.
Gourley faults the district court’s reliance on Ibrahim and Kendrick v. Penske
Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 2000). These arguments
might appear to implicate the “legal error en route to a factual determination”
exception that allows us to review the record de novo. But a closer look reveals that
the arguments raise challenges to the district court’s factual conclusion that there is a
dispute of material fact regarding whether the comparators are similarly situated to
Lacaze.
Gourley first attempts to factually distinguish Ibrahim from this case. The
district court, however, relied on Ibrahim only for general statements of the law, not
as a factually analogous case supporting the denial of qualified immunity. See App.
vol. II at 142–43, 147, 149. Thus, any factual distinctions between Ibrahim and this
case are irrelevant. But even if the factual distinctions were relevant, this court
would lack interlocutory jurisdiction to review Gourley’s argument that, based on
Ibrahim, the district court erred in concluding there is a disputed issue of material
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fact that Brewer and Carter were situated similarly to Lacaze. See Simpson, 16 F.4th
at 1360.
Gourley next accuses the district court of failing to apply two principles stated
in Kendrick. The first principle is: “Differences in treatment that are trivial or
accidental or explained by a nondiscriminatory motive will not sustain a claim of
pretext.” 220 F.3d at 1232. The second principle is: “[A] challenge of pretext
requires us to look at the facts as they appear to the person making the decision to
terminate [the] plaintiff,” and “it is the manager’s perception of the employee’s
performance, and not the employee’s subjective evaluation of her performance, that
is relevant in determining pretext.” Id. at 1231. Gourley theorizes that if the district
court had applied these principles, “there would be no triable question of fact arising
from a ‘pretext’ determination.” Br. at 25. He adds that in McKnight v. Kimberly
Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998), “the court determined [there is]
no question of pretext where the employer believes the allegations of . . . misconduct
to be true.” Br. at 25.
Gourley’s point seems to be that because (1) he claims it appeared to him that
Lacaze’s alleged misconduct warranted a more severe sanction than Brewer’s alleged
misconduct, and (2) Carter was cleared by the Internal Affairs unit, then (3) there can
be no disputed issue of material fact that either one is a valid comparator. This again
disputes the district court’s conclusion that the evidence raises a genuine factual
dispute that a jury must decide. Moreover, in assessing evidence of pretext at the
summary judgment stage, application of either Kendrick principle does not mean the
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court must assume the credibility or good faith of the decision-maker’s asserted
legitimate, nondiscriminatory reason for the adverse employment decision. See
Officer v. Sedgwick Cnty., 226 F. App’x 783, 795 (10th Cir. 2007) (explaining that, at
the pretext step, and with respect to an evaluation of comparators, “so long as it is
not tainted by impermissible animus, ‘it is the manager’s perception of the
employee’s performance that is relevant, not plaintiff’s subjective evaluation of her
own relative performance’” (emphasis added) (brackets omitted) (quoting Furr v.
Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996)).5 The district court here
found the comparator evidence sufficient to present a genuine dispute as to whether
Gourley’s stated explanations might be pretextual—i.e., that it might lead a
reasonable jury to disbelieve his stated explanations and find they were a pretext for
discrimination. Whether or not we would agree with the district court’s factual
assessment of the evidence, we lack jurisdiction to review its ruling in this
interlocutory appeal.
The other case Gourley cites, McKnight, supports this understanding of the
Penske principles. Gourley asserts that McKnight determined there was no disputed
issue regarding pretext simply because “the employer believe[d] the allegations of
[the plaintiff’s] . . . misconduct to be true.” Br. at 25. We disagree with this
characterization of McKnight. McKnight concluded that the plaintiff had “not shown
at the time of his termination there was any dispute or a genuine issue concerning the
5 We cite Officer only for its persuasive value See 10th Cir. R. 32.1. 10 Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 11
sincerity of defendants’ proffered reason for his termination.” 149 F.3d at 1129. The
district court here determined that unlike the evidence in McKnight, Lacaze had
raised a genuine issue for trial concerning the sincerity of Gourley’s motives.
Specifically, it determined that a reasonable jury could find he was similarly situated
to the better-treated white comparators. And that determination puts at issue the
credibility of Gourley’s proffered legitimate, nondiscriminatory reason for
terminating Lacaze’s employment. We lack jurisdiction to review that determination
in this interlocutory appeal.
Gourley cites another case, Comcast Corp. v. National Association of African
American-Owned Media, 589 U.S. 327 (2020), which held that the tort principle
requiring a plaintiff to “first plead and then prove that its injury would not have
occurred ‘but for’ the defendant’s unlawful conduct” applies to § 1981 claims, id.
at 329. Gourley argues that “in light of” Comcast Corp., “Lacaze has presented
insufficient evidence to show a question of fact as to whether his race was the cause
of his termination.” Br. at 26. The district court, however, concluded that Lacaze
had provided sufficient evidence for a jury to find that Gourley fired Lacaze due to
racial animus, and we lack jurisdiction to review that conclusion in this interlocutory
appeal.
Finally, Gourley summarily claims there is no “relevant law [that] was clearly
established at the time of the subject event.” Br. at 12. But he develops no challenge
to the district court’s conclusion that “‘[i]t is clearly established that “employment
discrimination on the basis of race” is forbidden by § 1981,’” App. vol. II at 149
11 Appellate Case: 24-6075 Document: 43-1 Date Filed: 04/28/2025 Page: 12
(quoting Hannah v. Cowlishaw, 628 F. App’x 629, 633 (10th Cir. 2016), quoting
Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1244 (10th Cir. 2000)). He has therefore
waived appellate review of that conclusion. See Becker v. Kroll, 494 F.3d 904,
913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the opening
brief is deemed waived.”). In any event, we see no error in the district court’s
conclusion. “A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.”
Simpson, 16 F.4th at 1367 (internal quotation marks omitted). “General statements of
the law are not inherently incapable of giving fair and clear warning to officers”
provided that “in the light of pre-existing law the unlawfulness must be apparent.”
Sanchez v. Guzman, 105 F.4th 1285, 1293 (10th Cir. 2024) (brackets, emphasis, and
internal quotation marks omitted), cert. denied, ___ S. Ct. ___, No. 24-463,
2025 WL 76459 (U.S. Jan. 13, 2025). The case law the district court relied on is
sufficiently clear for Gourley to have understood that discriminating against Lacaze
on the basis of race was unlawful.
III. Conclusion
We lack interlocutory jurisdiction to consider most of Gourley’s arguments,
reject those over which we have such jurisdiction, and affirm the district court’s
order denying his motion for summary judgment.
Entered for the Court
Allison H. Eid Circuit Judge