Pendergraft v. Board of Regents of Oklahoma Colleges

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 25, 2023
• Docket: 22-6045
• Status: Unpublished

Opinion

Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 25, 2023 _________________________________ Christopher M. Wolpert Clerk of Court MARK A. PENDERGRAFT,

Plaintiff - Appellant,

v. No. 22-6045 (D.C. No. 5:18-CV-00793-D) BOARD OF REGENTS OF OKLAHOMA (W.D. Okla.) COLLEGES; DAVID MISAK, in his individual and official capacities; TODD THURMAN, in his individual and official capacities,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges. _________________________________

Mark Pendergraft filed a pro se lawsuit against the Board of Regents of

Oklahoma Colleges (BROC), David Misak, and Todd Thurman. The suit arose out of

an employment dispute involving a graduate assistant position with the softball

program at Southwestern Oklahoma State University (SWOSU). He brought federal

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 2

claims under the Equal Pay Act (EPA), Title VII, and 42 U.S.C. § 1983, as well as

state claims for tortious interference with business relations, breach of contract, and

tortious interference with prospective economic advantage. The district court granted

defendants’ Fed. R. Civ. P 12(b)(6) motions to dismiss the Title VII and § 1983

claims for failure to state a claim for relief. Defendants then moved for summary

judgment on the remaining claims. The district court granted summary judgment in

favor of BROC (the only applicable defendant) on the EPA claim. It then declined to

exercise supplemental jurisdiction over the state claims and dismissed those claims

without prejudice. Mr. Pendergraft now appeals.1 Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

I. Background

A. Factual Background

SWOSU is a public university that is governed by the BROC. In June 2016,

SWOSU hired Kim Maher as its new head softball coach. SWOSU then posted two

openings for graduate assistant positions with the softball program. Each position

had the same salary, and each position also offered a tuition waiver.

1 On appeal, Mr. Pendergraft does not challenge the district court’s dismissal of his Title VII and § 1983 claims, nor does he challenge the district court’s dismissal of the EPA claim against the individual defendants or the dismissal of the state claims against the individual defendants in their official capacities. Accordingly, he has waived any challenge to the dismissal of those claims. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1140 (10th Cir. 2003) (holding that issues not raised on appeal are deemed waived).

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Marsha Cusack, a high school softball coach, applied for one of the positions.

Coach Maher wanted SWOSU to hire Ms. Cusack because Coach Maher had known

Ms. Cusack for years and thought Ms. Cusack could bring experience and knowledge

to SWOSU’s softball program.

Coach Maher testified in her deposition that to get a more qualified coach, she

needed to increase the pay. So she asked Defendant Todd Thurman, SWOSU

Athletic Director, if the salaries allotted to the two graduate assistant positions could

be combined for Ms. Cusack, leaving only a tuition waiver for the other graduate

assistant position. Mr. Thurman submitted the proposal to the appropriate

administrators, including Defendant David Misak, SWOSU Human Resources (HR)

Director. SWOSU later hired Ms. Cusack at a salary equal to the combined amount

of the salaries of the two previously posted graduate assistant positions.

Mr. Pendergraft also applied for the graduate assistant position. He had never

coached softball at the college or high school level, but he had helped coach his

daughter’s youth travel softball team. Coach Maher recommended he be hired for the

second position, but the parties dispute what happened next. In particular, the parties

dispute whether Mr. Pendergraft was aware that the second position was an unpaid

position, and they also dispute whether SWOSU ever officially hired

Mr. Pendergraft.

Mr. Pendergraft asserts he was hired for a paid position, and he signed a pay

action form on August 17, 2016, which is a document SWOSU uses to formalize

employment agreements. After signing the pay action form, he contends that he

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assisted Coach Maher that same day with unofficial visits for two high school

softball recruits. But the next day when he was in the HR office, Mr. Pendergraft

testified he was told by an HR employee that Mr. Thurman wanted to turn his paid

position into a volunteer position. Mr. Pendergraft did not agree to that change, and

he alleges Mr. Thurman fired him on August 19, 2016.

In contrast, defendants contend that Mr. Pendergraft knew the position was a

volunteer position and that he had agreed to be a volunteer because he wanted to get

some collegiate coaching experience. They also assert he was never a SWOSU

employee because his conduct in the application process caused them to reconsider

hiring him, he never signed a pay action form, and they withdrew the job posting for

the second graduate assistant position. Regardless of whether Mr. Pendergraft was

an employee or merely a candidate for an open position, the parties agree that his

relationship with SWOSU ended on August 19, 2016.

B. Procedural Background

After defendants moved to dismiss his initial complaint, Mr. Pendergraft filed

an amended complaint alleging that defendants: violated the EPA by employing a

female coach and paying her twice what they agreed to pay him (Count I); unlawfully

discriminated against him based on sex in violation of Title VII by terminating him

because he is not a woman (Count II); tortiously interfered with his business right by

terminating his employment agreement in bad faith (Count III); breached his contract

with SWOSU by terminating his employment without just cause (Count IV);

tortiously interfered with his prospective economic advantage by terminating his

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employment agreement in bad faith (Count V); and conspiring against him to

wrongfully terminate his employment agreement (Count VI).

Defendants filed a partial motion to dismiss, seeking dismissal of Count I

against the individual defendants, and dismissal of Counts II, III, V, and VI against

all defendants. The district court granted the motion to dismiss in part. It dismissed

Count I against the individual defendants, Count II against all defendants, and

Counts III, V, and VI against the individual defendants in their official capacities.

The court dismissed Count VI without prejudice and gave Mr. Pendergraft the

opportunity to amend his complaint to address the pleading deficiencies the court

identified.

Mr. Pendergraft then filed what he called his Fourth Amended Complaint

(although the district court noted it was only his third amended complaint). In it, he

presented a revised Count VI, in which he alleged defendants violated § 1983 by

acting under color of state law and conspiring to violate his constitutional rights.

Defendants filed a partial motion to dismiss Count VI, which the district court

granted.

Defendants next moved for summary judgment on all remaining claims: the

EPA claim (Count I) against BROC, and the state claims (Counts III, IV, and V)

against the individual defendants. The district court granted summary judgment in

favor of BROC on Count I, and then declined to exercise supplemental jurisdiction

over the remaining state claims against the individual defendants. The court

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dismissed those claims without prejudice to Mr. Pendergraft refiling them in state

court.

Mr. Pendergraft now appeals from the district court’s summary-judgment

decision.

II. Discussion

A. EPA claim

We review de novo the district court’s grant of summary judgment in favor of

defendants. Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015). Summary

judgment is appropriate “if the movant shows that 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). “[W]e view all evidence and any reasonable inferences that might be

drawn therefrom in the light most favorable to the non-moving party.” Riser,

776 F.3d at 1195 (brackets and internal quotation marks omitted).

“The EPA prohibits wage discrimination ‘between employees on the basis of

sex . . . for equal work on jobs the performance of which requires equal skill, effort,

and responsibility, and which are performed under similar working conditions.’” Id.

(quoting 29 U.S.C. § 206(d)(1)). The court’s consideration of an EPA claim

proceeds in two steps. See Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1311

(10th Cir. 2006). “First, the plaintiff must establish a prima facie case of

discrimination by demonstrating that employees of the opposite sex were paid

differently for performing substantially equal work.” Id. If the plaintiff does so, “the

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burden of persuasion then shifts to the defendant to prove that the wage disparity was

justified by one of four permissible reasons.” Id. (emphasis omitted).

For Mr. Pendergraft to establish a prima facie case of pay discrimination under

the EPA, he must demonstrate that: “(1) []he was performing work which was

substantially equal to that of the [fe]male employee[] considering the skills, duties,

supervision, effort and responsibilities of the jobs; (2) the conditions where the work

was performed were basically the same; [and] (3) the [fe]male employee[] w[as] paid

more under such circumstances.” Riser, 776 F3d at 1196 (internal quotation marks

omitted). The district court assumed Mr. Pendergraft was an employee of SWOSU

for purposes of summary judgment, after determining there were material facts in

dispute on that issue. The court concluded, however, that Mr. Pendergraft failed to

establish a prima facie case of pay discrimination under the EPA because he could

not show he performed substantially equal work to that of Ms. Cusack.

The court noted Mr. Pendergraft’s argument in response to summary judgment

that he performed substantially equal work to Ms. Cusack because he participated in

unofficial visit tours for two softball recruits and SWOSU used his name and likeness

in the visit itineraries. The court then recited the record description of Ms. Cusack’s

work, which included “complet[ing] several tasks related to recruiting (identifying

and monitoring potential recruits), practice (planning and coordinating training

sessions), team travel (organizing lodging, transportation, and meals for the team),

gameday preparation (scouting opposing teams), and field maintenance (chalking and

dragging dirt).” R., vol. 3 at 270. The court found that “Ms. Cusack performed a

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variety of functions for the softball program; Plaintiff participated in two recruitment

tours.” Id. It therefore concluded “[t]heir work was not substantially equal,” id.,

and, as a result, Mr. Pendergraft could not establish a prima facie case of pay

discrimination under the EPA.

On appeal, Mr. Pendergraft’s primary argument is that “the reason the

workload was not substantially equal is because [he] was wrongfully terminated after

(3) three days [of] employment without cause.” Aplt. Opening Br. 13. He explains

that “Coach Cusack was hired after [him] and was employed for a full year,” so “[i]t

would be impossible to compare” the work of the two jobs. Id. Mr. Pendergraft’s

claims alleging wrongful termination, however, have been dismissed. And as noted

above, he does not challenge the dismissal of his Title VII claim on appeal, which

alleged he was unlawfully terminated based on his sex. Further, for the reasons

discussed below, we uphold the district court’s decision to dismiss his state claims,

which also alleged wrongful termination. We therefore agree that Mr. Pendergraft

has not established a prima facie case of wage discrimination under the EPA, and we

affirm the district court’s grant of summary judgment in favor of BROC on that

claim.

B. State claims

Mr. Pendergraft next contends “the District Court erred by refusing to exercise

jurisdiction over [his] remaining State claims.” Id. at 14. We review for abuse of

discretion the district court’s decision not to exercise supplemental jurisdiction over

the state claims. Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir.

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2009). A court may decline to exercise supplemental jurisdiction when it “has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Here, the district court had dismissed all the federal claims and only state

claims remained. In deciding not to exercise jurisdiction over the state claims, it first

noted our guidance on the issue in Crane v. Utah Department of Corrections,

15 F.4th 1296 (10th Cir. 2021). In that case, we explained “[w]hen all federal claims

have been dismissed, the court may, and usually should, decline to exercise

jurisdiction over any remaining state claims.” Id. at 1314 (internal quotation marks

omitted). The district court also noted that “‘[t]he Supreme Court has encouraged the

practice of dismissing state claims or remanding them to state court when the federal

claims to which they are supplemental have dropped out before trial.’” R., vol. 3 at

271 (quoting Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,

956 F.3d 1228, 1238 (10th Cir. 2020)). And the district court considered our

decision in Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478

(10th Cir. 1990), in which we explained that “[n]otions of comity and federalism

demand that a state court try its own lawsuits, absent compelling reasons to the

contrary.” Id. But we also recognized in Thatcher that a district court has discretion

to exercise jurisdiction over state claims even in the absence of any triable federal

claims, if given the nature and extent of pretrial proceedings, “judicial economy,

convenience, and fairness would be served by retaining jurisdiction.” Id.

In considering whether to exercise jurisdiction over the state claims after the

dismissal of the federal claims, the district court recognized the parties had engaged

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in discovery and dispositive motions, but it noted no trial submissions had been

made, no substantial trial preparations had happened, and the case was not currently

set on any trial docket. Given these circumstances, the court found the state claims

should be dismissed without prejudice.

Mr. Pendergraft does not directly challenge the district court’s reasoning or

dispute the fact that no substantial trial preparations had happened. Instead, he

argues that the district court’s decision will delay the resolution of his state claims,

which will prejudice him. But the district court properly considered precedential

cases on the issue of supplemental jurisdiction, as well as the nature and extent of the

pre-trial proceedings in this case, and we see no abuse of discretion in its decision to

decline to exercise supplemental jurisdiction over Mr. Pendergraft’s state claims after

all federal claims were resolved.

III. Conclusion

We affirm the district court’s judgment.

Entered for the Court

Timothy M. Tymkovich Circuit Judge