F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 8 1997 TENTH CIRCUIT PATRICK FISHER Clerk
JEANNE ROBERTS,
Plaintiff-Appellant,
v. No. 95-6235 THE STATE OF OKLAHOMA, on (W. Dist. of Oklahoma) behalf of the Board of Regents of (D.C. No. CIV-94-922-M) Oklahoma Colleges, a body corporate; UNIVERSITY OF CENTRAL OKLAHOMA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.
Jeanne C. Roberts appeals the district court’s grant of summary judgment in
favor of the appellees on her Title VII gender discrimination claim as well as its
dismissal of her Oklahoma public policy tort claim. In her complaint, Roberts
alleged that the University of Central Oklahoma passed her over for a faculty
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. position and that the failure to hire her was impermissibly gender-based. With
regard to Roberts’ Title VII claim, the district court ruled that Roberts failed to
state a prima facie case of discrimination because she could not demonstrate that
she was qualified for the position. It further concluded that the appellees had
stated a legitimate, nondiscriminatory reason for not hiring Roberts and that
Roberts failed to create a genuine issue of material fact as to discrimination. The
district court also dismissed Roberts’ state tort claim, finding that Oklahoma
would not recognize a public policy cause of action for wrongful failure to hire.
This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
I. BACKGROUND
From January 1991 to May 1993, Roberts was employed by the University
of Central Oklahoma (the “University”) as a nontenure-track lecturer in the
Department of Funeral Service Education (the “Department”). The University is a
state institution of higher education governed by the Board of Regents of
Oklahoma Colleges. Both the Board of Regents and the State of Oklahoma are
co-appellees with the University (all appellees are collectively referred to as the
“University”). Roberts’ claim arises out of the University’s failure to hire her as
a full-time instructor in the Department, a unit of the College of Mathematics and
-2- Sciences (the “College”). She has no complaint about the terms and conditions of
her employment or her treatment as an employee.
In the late fall of 1992, the University began recruiting for a faculty
position in the Department for the 1993-94 academic year. The University posted
an announcement soliciting applications for a full-time instructor of Funeral
Service. The announcement indicated that applicants must have a “funeral
director/embalmer” license, a master’s degree in a related area, and a minimum of
three years as a practicing “funeral director/ embalmer.” Previous teaching
experience was preferred.
Roberts applied for the position in January 1993. A three-person faculty
selection committee, composed of Dr. Kenneth Curl, Chairperson of the
Department, Dr. Gary Sokoll, and Dr. Thomas Grzybowski, both on the University
faculty, screened the four applications received, including Roberts’, and selected
finalists for interviews. The committee then conducted interviews and made
recommendations for employment to G. Kay Powers, the Dean of the College.
The committee did not interview Roberts. Chris H. Burkey was recommended to
fill the position; Roberts was not.
When she was not offered the job, Roberts complained to Powers about the
fairness of the screening process. In order to assuage Roberts’ concerns and to
generate a larger applicant pool, the University posted a second announcement for
-3- the position. This second announcement generally reiterated the information and
requirements from the first. Roberts reapplied for the position in May 1993.
Again, a three-person committee screened the applications and selected
finalists for interviews. This second committee consisted of Dr. Sokoll, Dr.
Grzybowski, and Ronnie Redinger of the Redinger Funeral Home. All four of the
previous applicants reapplied; of the eight applications received this second time,
seven were from men. The committee screened the eight applications and
interviewed three candidates. The committee recommended to Dr. Curl the
interviewees in order of preference as follows: (1) Chris H. Burkey; (2) Thomas
Shaw; and (3) David Hess. Neither Shaw nor Hess had been in the first applicant
pool. Again, Roberts was not recommended. Moreover, the second committee
did not interview the other two repeat applicants from the first round, Gus Embry,
Jr., and Larry Wilmeth. Dr. Curl agreed with the second committee’s
recommendations and forwarded the list to Powers. The University eventually
appointed Burkey to the instructor position.
Roberts brought suit in Oklahoma state court alleging that the University
failed to hire her for the position of instructor on the basis of her gender. Roberts
alleged that the failure to hire her violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17, and Oklahoma public policy. The
University removed the suit to federal court pursuant to 28 U.S.C. § 1441(b). The
-4- United States District Court for the Western District of Oklahoma exercised
jurisdiction over the Title VII claim pursuant to 42 U.S.C. § 2000e-5(f)(1) and 28
U.S.C. § 1331 and the state-law claim pursuant to 28 U.S.C. § 1367.
The district court granted summary judgment against Roberts on her Title
VII claim, holding that she failed to establish a prima facie case of
discrimination. Specifically, the district court held that Roberts failed to establish
she was qualified for the instructor position because her own deposition testimony
indicated that she lacked the posted work experience requirements. The
announcements for the instructor position specified the requirement of at least
three years’ experience as a “funeral director/embalmer.” Although Roberts’
résumé stated that she had over ten years’ experience in this capacity, her
deposition testimony indicated she had far less than her résumé indicated. 1
1 On her submitted résumé, Roberts stated she had “over 10 years of professional experience in funeral service [and other] capacities.” In addition to her related experience as an adjunct lecturer at the University since 1991, Roberts recounted in her résumé experience in funeral services and embalming from two other sources: (1) Guardian Funeral Homes (the “Loewen Group”) from 1990-92; and (2) Wilson Funeral Service (“Wilson”) from 1982-85. Furthermore, a letter of recommendation from Frank Bernard, the former manager of Wilson, which was submitted with Roberts’s application materials, stated that Roberts “directed hundreds of funerals and embalmed hundreds of bodies.” Roberts’ deposition testimony, however, provided a different account of her own work experience. She admitted that her résumé generally overstated her work experience and that she could not have worked at Wilson after the date it burned down. Fire Department records indicate that Wilson burned down on March 11, 1983. Furthermore, in opposing summary judgment, Roberts attempted to establish her work experience by affidavit. She averred additional work
-5- In the alternative, the district court held that even if Roberts had been
qualified for the position, the University had advanced legitimate,
nondiscriminatory reasons for hiring Burkey instead of Roberts. The district
court found that Burkey was at least as qualified as, if not more qualified than,
Roberts. Because Roberts could not produce sufficient evidence that the
University chose Burkey on a basis other than his qualifications, the district court
reasoned that Roberts did not meet her burden of demonstrating the existence of a
genuine issue of material fact regarding discrimination. Finally, as to Roberts’
state-law claim, the district court held that Oklahoma does not recognize a public
policy tort in the failure-to-hire context. As a result, it dismissed this claim.
Roberts appeals.
On appeal, Roberts asserts the district court erred as follows: (1) granting
summary judgment when there existed genuine issues of material fact; (2)
disregarding her affidavit; (3) considering after-acquired evidence to conclude
experience not evident from her résumé and application. She further attempted to explain her confusion at the deposition to account for disparities between her deposition testimony and her affidavit. The district court, however, noted that Roberts’ affidavit was in conflict with both her deposition testimony and her résumé. The court further noted that while she attempted to explain the differences between her deposition and affidavit, she made no attempt to rectify the inconsistencies between her affidavit and résumé. It then concluded this was an attempt to create a sham material issue of fact and disregarded the portions of the affidavit relating to her work experience. As a result, the district court concluded that Roberts could not establish the qualifications element of her gender discrimination claim.
-6- Roberts was not qualified; (4) considering facts not specified in the statement of
uncontroverted facts; (5) applying the wrong standard regarding pretext; (6)
failing to allow full and complete discovery; and (7) dismissing the state-law
claim rather than remanding it to state court.
II. ANALYSIS
A. Title VII Claim
1. Standards
We review the grant of summary judgment de novo and apply the same
legal standard used by the district court under Fed. R. C. P. 56(c). Applied
Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). “Summary judgment is appropriate when there is no genuine dispute over
a material fact and the moving party is entitled to judgment as a matter of law.”
Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). But “summary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Therefore, “[w]e must view the evidence and any possible inferences most
favorably to the nonmoving party to ascertain whether a genuine issue of fact
exists.” MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1115, 1117
-7- (10th Cir. 1991). To survive summary judgment, however, the nonmoving party
cannot rest on its pleadings and must “make a showing sufficient to establish the
existence of an element essential to that party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We then review any legal questions de novo.
MacDonald, 941 F.2d at 1118.
Title VII of the Civil Rights Act of 1964 prohibits the failure or refusal to
hire any individual on the basis of race, color, religion, gender, or national origin.
42 U.S.C. § 2000e-2(a)(1). “The ‘factual inquiry’ in a Title VII case is
‘[whether] the defendant intentionally discriminated against the plaintiff.’”
United States Postal Serv. v. Aikens, 460 U.S. 711, 715 (1983) (quoting Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). A plaintiff
may prove intentional discrimination “either directly by persuading the court that
a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.”
Burdine, 450 U.S. at 256.
2. Direct Evidence
Direct evidence of discrimination is evidence of “an existing policy which
itself constitutes discrimination.” Ramsay v. City & County of Denver, 907 F.2d
1004, 1008 (10th Cir. 1990), cert. denied, 506 U.S. 907 (1992); see also Price
Waterhouse v. Hopkins, 490 U.S. 228, 256 (1989) (plurality opinion) (holding that
-8- plaintiff had provided direct evidence through firm’s solicited evaluations
containing stereotyping comments relied upon in making employment decisions);
EEOC v. Wyoming Retirement Sys., 771 F.2d 1425, 1430 (10th Cir. 1985)
(holding that statute creating age-based employment distinction was direct
evidence). When a plaintiff advances direct evidence of discriminatory intent, the
burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), is unnecessary. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985); Heim v. Utah, 8 F.3d 1541, 1546 (10th Cir. 1993).
Statements which are merely expressions of personal opinion or bias,
however, do not constitute direct evidence of discrimination. See EEOC v.
WilTel, Inc., 81 F.3d 1508, 1514 (10th Cir. 1996) (listing examples of personal
opinion or bias). The court in WilTel held that because such statements required
the factfinder to infer that discrimination was a motivating cause of an
employment decision, they are only circumstantial evidence of discriminatory
intent. Id. It is in this context we consider what Roberts characterizes as direct
evidence of discrimination.
Roberts asserts that the Chairperson of the Department, Dr. Curl, said he
had not advised her of the job opening because he assumed as a newlywed she
would want to stay at home. Roberts further alleges that Dr. Curl ignored reports
of gender discrimination. She claims Dr. Curl improperly formed and served on
-9- the first screening panel and that the make-up of this panel violated University
regulations because it did not include a female representative. Roberts also
contends that as a result of her complaint about the first screening panel, Dr. Curl
actively solicited complaints about Roberts’ teaching performance. Even
assuming Dr. Curl did not have final decisionmaking authority, she concludes he
played a substantial role in the selection process. Roberts finally contends that
Dr. Curl’s involvement with the selection of the instructor, in conjunction with
the evidence of his biases, constitutes direct evidence of discrimination.
These assertions by Roberts, however, only constitute circumstantial or
indirect evidence of discrimination. The statements and attitudes Roberts
attributes to Dr. Curl may indicate personal bias against Roberts and perhaps
against women in general. Nevertheless, Roberts did not demonstrate, as she
must, that Dr. Curl acted on his allegedly discriminatory beliefs. See Ramsey, 907
F.2d at 1008. Direct evidence of discrimination does not necessarily exist where
there is only direct evidence of personal bias. Id. Although “stereotyped remarks
can certainly be evidence that gender played a part” in the employment decision,
such remarks do not “inevitably” prove that part. Price Waterhouse, 490 U.S. at
251 (plurality opinion) (emphasis in original). Roberts’ evidence requires the
factfinder to infer the University’s discriminatory animus in the employment
decision; it is not direct evidence of discriminatory intent. Furr v. AT&T
-10- Technologies, Inc., 824 F.2d 1537, 1549 (10th Cir. 1987) (holding that evidence
of discriminatory statements from which determining cause of employment
decision might be inferred is not direct evidence of causation). The district court
was thus correct to conclude that Roberts had not submitted direct evidence of
discrimination.
3. McDonnell Douglas Burden Shifting
A plaintiff may establish a claim of discrimination indirectly through the
use of circumstantial evidence, based upon the burden-shifting format first
delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order
to establish a violation of Title VII for failure to hire, a plaintiff is required to
prove the following elements: (1) she was a member of a protected class; (2) she
applied for and was qualified for an available position; (3) she was rejected
despite those specific qualifications; and (4) the defendant hired other persons
possessing Roberts’s qualifications who were not members of her protected class.
Id. at 802; Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Establishment of the prima facie case creates a presumption that the
defendant unlawfully discriminated against the plaintiff. Burdine, 450 U.S. at
254. Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to articulate “some legitimate, nondiscriminatory reason for the
employee’s rejection.” McDonnell Douglas, 411 U.S. at 802; EEOC v. Flasher
-11- Co., 986 F.2d 1312, 1316 (10th Cir. 1992). If the defendant meets its burden of
producing a facially nondiscriminatory reason for its failure to hire the plaintiff,
the presumption of discrimination established in the prima facie case evaporates.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). The plaintiff then has
the burden of persuasion to show the defendant discriminated against her in its
employment decision on the impermissible basis of her gender. Id. at 507-08.
The plaintiff may do so either by showing that the proffered reason is a pretext
for illegal discrimination or by providing direct evidence of discrimination. If a
plaintiff produces evidence establishing the prima facie case and evidence upon
which the factfinder could conclude that the defendant’s proffered
nondiscriminatory reasons for the employment decision are pretextual, summary
judgment must be denied. Durham v. Xerox Corp., 18 F.3d 836, 839-40 (10th
Cir.), cert. denied, 115 S. Ct. 80 (1994).
As noted above, the district court held Roberts did not establish a prima
facie case because she could not demonstrate that she was qualified for the
position at issue. In reaching this conclusion, the district court relied on evidence
developed during discovery which demonstrated that Roberts had falsified her
credentials. On appeal, the parties vigorously contest the propriety of using after-
acquired evidence of Roberts’ qualifications. Roberts contends the recent
decision in McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995),
-12- categorically prohibits the use of after-acquired evidence during the liability
phase of an employment discrimination case. The University, on the other hand,
contends that McKennon does not operate to relieve Roberts of the burden of
establishing her qualifications as part of her prima facie case. We conclude that
it is unnecessary to resolve this difficult issue 2 because regardless of whether
Roberts has established a prima facie case, the University has advanced a
legitimate, non-discriminatory reason for not hiring Roberts and she is unable to
demonstrate the existence of a genuine issue of material fact regarding pretext. 3
As an alternate ground for granting the University summary judgment, the
district court held that “Ms. Roberts has failed to present sufficient evidence to
2 We note the two courts that have considered this issue (albeit with little analysis) have split on the applicability of McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995), to failure-to-hire cases. Compare Egbuna v. Time-Life Libraries, Inc., 95 F.3d 353, 357 (4th Cir. 1996) (applying McKennon at prima facie stage in failure-to-rehire case), opinion vacated & reh’g en banc granted (Dec. 17, 1996) with McNemar v. Disney Store, Inc., 91 F.3d 610, 621 (3d Cir. 1996) (holding that McKennon does not apply at prima facie stage of failure-to-hire case), cert. denied, 65 U.S.L.W. 3561 & 3568 (U.S. Feb. 18, 1997) (No. 96-966). Furthermore, at least three other courts have indicated in dicta, with no analysis, that the rule of law set out in McKennon might not apply in failure-to-hire cases. Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1108 (5th Cir. 1995); Russell v. Microdyne Corp., 65 F.3d 1229, 1240 (4th Cir. 1995); Wallace v. Dunn Constr. Co., 62 F.3d 374, 379 n.8 (11th Cir. 1995). 3 Because we choose to assume that Roberts was qualified for the position and therefore established a prima facie case, we need not address her claim that the district court erred in considering after-acquired evidence, in disregarding the qualifications set out in her affidavit, and in failing to enforce local rules regarding summary judgment.
-13- raise a genuine issue that [the University] selected Mr. Burkey over Ms. Roberts
with the intent to discriminate against Ms. Roberts because of her sex.” In
reaching this conclusion, the district court held that even considering the
qualifications set out in Roberts’ affidavit, she was at best equally qualified for
the job. According to the district court, Roberts’ relative qualifications did not
support her claim of pretext. Furthermore, the district court held that the
University’s claim that Burkey was better qualified was a credible, legitimate,
non-discriminatory, business reason and was therefore subject to deference.
Finally, the district court concluded that evidence presented by Roberts
concerning procedural irregularities in the hiring process did not “raise a genuine
issue that [the University] intentionally discriminated against Ms. Roberts on the
basis of her sex.” Instead, according to the district court, that evidence raised
issues of favoritism, revenge, personality conflicts or bad judgment.”
On appeal, Roberts contends that the district court utilized an improper
standard to determine whether Roberts created a genuine issue of material fact
regarding pretext. We agree. A close reading of the district court opinion reveals
that it granted summary judgment because Roberts “failed to raise a genuine issue
that [defendants] intentionally discriminated against [her] on the basis of her
sex.” This language, coupled with the district court’s citation to the Fifth Circuit
panel decision in Rhodes v. Guiberson Oil Tools, 39 F.3d 537, 541-42 (1994),
-14- rev’d on reh’g en banc, 75 F.3d 989 (5th Cir. 1996), leads to the inevitable
conclusion that the district court here applied a pretext-plus standard for
overcoming the summary judgment motion.
In Rhodes, a panel of the Fifth Circuit held that the term pretext means
pretext for discrimination. Under the approach taken by the panel in Rhodes, to
establish that a proffered reason for an action taken by an employer was pretext
for discrimination, the plaintiff must show both that the employer’s proffered
reason was false and that discrimination was the real reason. Id. 4 This so-called
4 On rehearing en banc, the Fifth Circuit appears to have retreated from the panel’s holding that evidence an employer’s articulated reason is false, standing alone, is never sufficient to support a finding of discrimination. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc) (“In tandem with a prima facie case, the evidence allowing rejection of the employer’s proffered reason will often, perhaps usually, permit a finding of discrimination without additional evidence.”). It is not clear, however, that the Fifth Circuit has abandoned the pretext-plus standard altogether. See id. at 994 (holding that a plaintiff can avoid summary judgment only if she “(1) creates a fact issue as to whether each of the employer’s stated reasons was what actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains.” (emphasis added)); see also id. at 997-99 (Garza, J., specially concurring) (asserting that prima facie case coupled with evidence of pretext is always sufficient to send case to jury and prima facie case coupled with jury finding of pretext is always sufficient to support jury verdict in favor of plaintiff); id. at 999-1000 (DeMoss, J., concurring and dissenting) (concurring with majority that “evidence will be sufficient to support a jury finding of [] discrimination only when a rational fact-finder could reasonably infer that age was a determinative reason for the employment decision”); id. at 999 n.1 (DeMoss, J., concurring and dissenting) (asserting that Garza, J., concurring specially, was really dissenting from “the majority’s holding that evidence that an employer’s articulated reason is false does not independently support a jury finding of discrimination”).
-15- pretext plus standard has been specifically rejected in the Tenth Circuit. Randle
v. City of Aurora, 69 F.3d 441, 452 n.17 (10th Cir. 1995). In a Randle footnote,
the en banc court held that a “civil rights plaintiff may withstand a motion for
summary judgment and is entitled to present his claim to the fact finder if the
plaintiff establishes a prima facie case and presents evidence that the defendant’s
proffered nondiscriminatory reason was pretextual-- i.e., unworthy of belief.” Id.
Under the pretext-plus standard, the district court expected Roberts to
demonstrate the existence of a genuine issue of fact regarding pretext and, in
addition, to advance some evidence of discriminatory intent. Accordingly, the
district court never specifically addressed the pretext issue but, instead, focused
on whether Roberts created a genuine issue of material fact regarding
discrimination. Under Randle, however, Roberts is entitled to take her case to the
jury upon a simple showing of pretext. Thus, the district court never answered
the key question: whether Roberts presented evidence which, if believed by a
jury, would demonstrate that the University’s claim that it hired the most
qualified person is unworthy of belief. Id. We therefore turn our attention to that
question. 5
This court can “affirm the district court’s decision to grant summary 5
judgment if the record contains any basis to do so.” Jones v. Unisys Corp., 54 F.3d 624, 628 (10th Cir. 1995).
-16- Roberts asserts that she has adduced evidence of pretext by demonstrating
that the University has changed its justification for the hiring decision. See
Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993) (holding that
“fundamentally different justifications for an employer’s action would give rise to
a genuine issue of fact with respect to pretext since they suggest the possibility
that neither of the official reasons was the true reason”). Her assertion is
incorrect. In its summary judgment motion, the University averred that Roberts
did not state a prima facie case (i.e., she was not qualified for the job) because
she did not have the three years of experience as a funeral director. Roberts
claims this legal assertion is a change in justification from the explanation that
the University hired Burkey because he was the most qualified applicant. The
University’s contention that Roberts has not stated a prima facie case is not,
however, inconsistent with its claim that it hired Burkey because he was the most
qualified applicant. The first is a legal assertion that Roberts cannot prove a
necessary element of her cause of action; the second is an assertion of fact as to
the University’s proferred reason for the hiring decision. Accordingly, the
University has never asserted Roberts’ lack of experience as the reason she was
not hired and has, therefore, never changed its justification for the hiring
decision.
-17- Roberts also contends that she established pretext by presenting evidence
from which a jury could conclude that she was better qualified than Burkey
because of greater teaching experience, more recent experience in the industry,
and progress toward a doctorate. See Rea v. Martin Marietta Corp., 29 F.3d
1450, 1457 (10th Cir. 1994) (“Pretext can be inferred . . . from evidence that a
plaintiff that was not promoted was more qualified than those employees who
were promoted.”); Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994)
(“Proof that [plaintiff] was more qualified would disprove [the employer’s] only
explanation for its actions, that [plaintiff] was less qualified than the successful
candidates.”). Although we agree that the relative qualifications of Roberts and
Burkey are relevant to the issue of pretext, we are mindful that courts “are not in
the position of determining whether a business decision was good or bad. Title
VII is not violated by the exercise of erroneous or even illogical business
judgment.” Sanchez v. Philip Morris, Inc., 992 F.2d 244, 247 (10th Cir. 1993)
(citation omitted).
With these precepts in mind, we have compared, in a light most favorable
to Roberts, the qualifications advanced by Roberts with those set out in the record
for Burkey. That review leads this court to the same conclusion reached by the
district court: Roberts was, at best, as qualified as Burkey for the job. Although
Roberts’ evidence indicates she had teaching experience and more recent
-18- experience in the field of funeral service, that same evidence also indicates
Burkey had a degree in the field of funeral science, had academic credentials
clearly superior to Roberts’, and also had teaching experience as an adjunct
professor at the University. In light of the relative parity of Burkey and Roberts’
qualifications, we conclude that no reasonable jury could find pretext based upon
a comparison of qualifications. Liberty Lobby, 477 U.S. 242 at 248.
Finally, Roberts claims she created a genuine issue of material fact
regarding pretext by producing evidence of procedural irregularities in the
screening process. Roberts notes that Dr. Curl sat on the first screening
committee even though University policies prohibit the department chair from
sitting on such committees. Furthermore, neither committee included a woman or
minority, despite a University policy which provided that a woman and minority
should sit on the committee. Finally, Curl actively solicited student complaints
against Roberts while the screening process proceeded. This court has reviewed
the record de novo and in a light most favorable to Roberts and concludes that
none of the evidence of procedural irregularities adduced by Roberts creates a
genuine issue of material fact as to pretext concerning the University’s claim that
it hired the most qualified candidate.
Roberts produced evidence demonstrating that Curl’s service on the first
screening committee was contrary to the following University policy: “The Dean
-19- and Chairperson are not allowed to serve as committee members for positions
within their own respective Department or College.” The uncontradicted
evidence also demonstrates, however, that when Roberts complained about the
fairness of the first screening committee, Powers, the Dean of the College,
ordered the position readvertized. A second screening committee was then seated
and Roberts reapplied for the position. It is undisputed that Curl did not sit on
the second screening committee. Although she contends Curl’s service on the
first screening committee and his position as chair of the Department allowed him
to actually exercise influence over the second screening committee, Roberts did
not produce a single piece of evidence to that effect. Branson v. Price River Coal
Co., 853 F.2d 768, 772 (10th Cir. 1988) (“[M]ere conjecture that [the] employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for
denial of summary judgment.”). The undisputed fact that Curl served on the first
screening committee, without evidence of more, does not create a genuine issue of
material fact as to the University’s claim that it hired the most qualified
candidate.
Roberts also contends that Curl’s solicitation of student complaints about
Roberts during the screening process demonstrates mendacity on the part of the
University. The problem with Roberts’ argument is that she has utterly failed to
adduce any proof connecting Curl’s actions with the decision to hire Burkey.
-20- Roberts did not, for instance, present any evidence demonstrating that the second
screening committee considered complaints generated by Curl or that Curl
presented the complaints to the Dean, the Vice President of Academic Affairs, the
President of the University, or the Board of Regents. In the absence of actual
evidence, rather than speculation, of a connection between Curl’s activities and
the ultimate hiring decision, his conduct has no bearing on the veracity of the
University’s claim that it hired Burkey because he was the most qualified
candidate. See Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 530 (10th
Cir. 1994) (holding that even though all doubts concerning pretext must be
resolved in plaintiff’s favor, a plaintiff’s allegations alone will not defeat
summary judgment).
Finally, Roberts contends that the University’s failure to place a woman on
the screening committee in violation of its own policy creates a genuine issue of
material fact regarding pretext. We disagree. Unfortunately, Roberts has failed
to understand the critical distinction between a mandatory and hortatory policy
statement. The policy at issue reads as follows: “The screening committee should
consist of at least three (3) faculty members knowledgeable of the open position.
The committee should be composed of at least one male, one female, and one
minority. The Dean and Chairperson are not allowed to serve as committee
members for positions within their own respective Department or College.” In
-21- light of the hortatory nature of the pertinent portions of this policy, absent
evidence regarding the regularity with which the University complies with this
guideline, it is impossible to tell whether the failure to include a woman on the
second screening committee is a “disturbing procedural irregularit[y]” of the type
necessary to support a finding of pretext. Colon-Sanchez v. Marsh, 733 F.2d 78,
81 (10th Cir.), cert. denied, 469 U.S. 855 (1984). Although Roberts adduced
deposition testimony of Terry L. May indicating that the purpose behind the
policy was to further the University’s affirmative action goals and to prevent
discrimination against women and minority applicants, Roberts has not pointed to
any evidence in the record indicating that University screening committees
regularly contain both a woman and a minority. Absent such evidence, it is
unclear whether the failure to do so here is irregular. 6
On the record before this court, we conclude Roberts has not met her
burden of demonstrating that a genuine issue of material fact exists regarding
pretext. The district court did not, therefore, err in granting the University
summary judgment. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1536 (10th
Cir. 1995).
6 This court has considered each of the numerous additional alleged procedural anomalies identified by Roberts and, upon de novo review, concludes that none of the evidence adduced by Roberts casts doubt on the University’s facially nondiscriminatory explanation for its actions.
-22- B. Oklahoma Public Policy Tort Claim
Roberts maintains the district court abused its discretion when it dismissed
her claim that the University’s failure to hire her violated Oklahoma public
policy. She contends that Oklahoma recognizes a public policy exception to its
employment-at-will doctrine to provide plaintiffs with a state tort claim in the
refusal-to-hire context. She argues the district court should have allowed her to
proceed on this claim in state court, where her lawsuit began prior to removal.
This court faced a similar argument in Sanchez v. Philip Morris, Inc., 992
F.2d 244 (10th Cir. 1993). The plaintiff in Sanchez argued that Oklahoma
precedent which created an exception to employment-at-will for terminations
motivated by race or retaliation applied to create a cause of action for wrongful
failure-to-hire claims. Id. at 249. This court rejected the claim, holding that
Oklahoma cases were limited and nothing in those cases supported expanding the
narrow exceptions. Id. On the basis of Sanchez, we conclude that the district
court did not abuse its discretion when it dismissed Roberts’ state tort claim
rather than remanding it to state court for further proceedings. See Sanchez, 992
F.2d at 249.
C. District Court’s Failure to Allow Additional Discovery
Roberts contends the district court abused its discretion when it refused to
allow her to depose Curl, Sokoll, and Grzybowski a second time. Although it is
-23- doubtful the record on appeal is sufficient for this court to determine whether the
district court abused its discretion, we nevertheless reach the merits and affirm. 7
Roberts alleges that despite a request for all documents related to the
screening process, the University failed to inform her that Curl served on the first
screening committee until after she had deposed Curl, Sokoll, and Grzybowski.
After that disclosure, Roberts filed a motion before the magistrate judge seeking
to depose Curl, Sokoll, and Grzybowski a second time. Although the magistrate
ordered the University to turn over any additional documents related to the
screening process, the magistrate refused to allow the additional depositions. The
district court affirmed on appeal.
Fed. R. Civ. P. 30(a)(2)(B) provides as follows: “A party must obtain leave
of court, which shall be granted to the extent consistent with the principles stated
in Rule 26(b)(2), if . . . the person to be examined already has been deposed in the
case.” This court reviews the denial of leave to conduct a second deposition
under Rule 30(a)(2)(B) for an abuse of discretion. See Building & Constr. Dep’t
v. Rockwell Int’l Corp., 7 F.3d 1487, 1496 (10th Cir. 1993) (reviewing district
court’s refusal to grant a Fed. R. Civ. P. 56(f) motion for abuse of discretion).
7 Unfortunately, Roberts never included in the record on appeal a copy of the magistrate judge’s oral order denying her leave to redepose several witnesses. Instead, this court is limited to Roberts’ interpretation of why the magistrate judge denied the motion. Nevertheless, as discussed below, the record is sufficient to conclude that the magistrate judge did not abuse his discretion.
-24- This Circuit has defined abuse of discretion as “‘an arbitrary, capricious,
whimsical, or manifestly unreasonable judgment.’” United States v. Hernandez-
Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (quoting United States v. Cardenas,
864 F.2d 1528, 1530 (10th Cir. 1989)) (further quotations omitted).
Although Roberts has failed to include a transcript of the magistrate judge’s
oral denial of her motion for additional depositions, it is still clear on the record
before us that the denial was not unreasonable because Roberts had “ample
opportunity by discovery in the action to obtain the information sought.” Fed. R.
Civ. P. 26(b)(2)(ii). The record clearly demonstrates that at the time she first
deposed Curl, Sokoll, and Grzybowski, Roberts was fully aware of the existence
of the first screening committee; knew that Curl must have selected the members
of the first screening committee; had serious reservations about the fairness of the
procedures used by the first screening committee; and believed that Curl was the
person responsible for the University’s failure to hire her. Furthermore, it is clear
that in wide-ranging depositions of Dean Powers, Curl, Sokoll, and Redinger,
Roberts’ counsel touched on the subject of the first screening committee. He
failed, however, to ask the key question: What was the composition of the first
screening committee? In light of Roberts’ theory of the case, it was not
unreasonable for the magistrate judge to conclude that Roberts had ample
opportunity to question Curl, Sokoll, and Grzybowski about the first screening
-25- committee during the original depositions of those individuals. Therefore, the
district court’s refusal to allow additional depositions was not an abuse of
discretion.
IV. CONCLUSION
The district court’s grant of summary judgment to the University on
Roberts’s Title VII claim and its dismissal of Roberts’s state tort claim is hereby
AFFIRMED.
ENTERED FOR THE COURT,
Michael R. Murphy Circuit Judge
-26-