F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 23, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
G A BRIELLE SM ITH ,
Plaintiff-Appellant, No. 05-5116
v. (N. D. Oklahoma) STATE OF OKLA HO M A EX REL. (D.C. No. 03-CV-777-EA(C)) TULSA COUN TY DISTRICT A TTO RN EY ,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, Circuit Judges, and R OBIN SO N, District Judge. **
Gabrielle Smith worked as an investigator with the Tulsa County District
Attorney’s Office from 1997 until November 8, 2002, when she was discharged
by District Attorney Tim Harris. As grounds for his decision, M r. Harris
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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.
** The Honorable Julie Robinson, United States District Judge for the District of Kansas, sitting by designation. explained that his office had suffered budget cuts and that, as a result, he was
forced to discharge several employees w hose performance was deficient,
including M s. Smith.
Following her discharge, M s. Smith filed this wrongful termination action
against the Tulsa County District Attorney’s Office, alleging gender
discrimination claims under (1) Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e to 2000e-17, and (2) Oklahoma law. The district
court granted summary judgment to the District Attorney’s Office on both claims.
M s. Smith now contends that she was performing her job adequately and
that the reasons offered by M r. Harris for her discharge were pretexts for gender
discrimination. As to her Oklahoma w rongful discharge claim, she contends that
she should be allowed to proceed to trial because Title VII is not an adequate
remedy. For the reasons set forth below , we are not persuaded by M s. Smith’s
arguments, and we therefore affirm the district court’s decision.
I. BACKGROUND
M s. Smith began her employment with the Tulsa County District Attorney’s
Office in 1996, when she was hired as a secretary. In September 1997, District
Attorney Bill LaFortune promoted her to a position as an investigator in the
Juvenile D ivision. After M r. Harris became the District Attorney in January
1999, he assigned M s. Smith to the Special Investigation Division of the Tulsa
-2- Police Department. There, M s. Smith worked with the juvenile gun court and the
gangs unit. Finally, in mid-2000, M r. Harris reassigned M s. Smith to the Felony
Investigation Unit in the downtown office, where M s. Smith was supervised by
his chief investigator, Don Bell.
M r. H arris terminated M s. Smith’s employment on November 8, 2002. O n
that day, First Assistant District Attorney James Brandon and Chief Investigator
Bell met with M s. Smith. M r. Brandon told her that “her services were no longer
required in the district attorney’s office” and that he was not authorized to give
her any further explanation. Aplt’s App. vol. II, at 587. On November 20, 2002,
M r. Harris wrote M s. Smith a letter stating that “[o]ften times I am placed in the
position of making business decisions [o]n behalf of this office, especially during
extremely difficult financial times” and that “[d]ue to these financial conditions
and continued state budget cuts, it was necessary to evaluate a number of
different positions in the office.” Id. at 751.
Subsequently, M r. Harris offered a more detailed explanation of his reasons
for terminating M s. Smith’s employment. He stated in deposition testimony that,
in November 2002, his office’s budget was being cut and he “was looking at
personnel that [were] not moving the district attorney’s office forward.” Id. vol.
I, at 88. After meeting with the First Assistant District Attorney and the Chief
Investigator, M r. Harris concluded that “M s. Smith did not have the skills to be
able to perform her investigative functions,” and that “her attitude towards other
-3- employees and other people in the office w as rude and condescending and curt
and arrogant.” Id. at 87-88. M r. Harris further explained that M s. Smith had
refused to file charging papers on behalf of the District Attorney’s Office and had
been disciplined by the Chief Investigator at least three times for that refusal.
M oreover, in M r. Harris’s view, M s. Smith was not a team player and was “not
the kind of face that [he] wanted to have in the community” (i.e. “somebody who,
with their tone of voice, their speech, was arrogant and condescending, extremely
demanding”). Id. at 88. Finally, M r. Harris added, many of his other employees
did not w ant M s. Smith to be placed in their divisions.
Following her discharge, M s. Smith filed a charge of gender discrimination
with the Equal Employment Opportunity Commission (EEOC). During the
EEOC’s investigation, M r. Harris provided specific examples of M s. Smith’s
work performance that he deemed deficient.
After the EEOC issued a Dismissal and Notice of Rights, M s. Smith filed
this action in the federal district court against the District Attorney’s Office. She
asserted that her discharge violated the gender discrimination provisions of Title
VII, as well as Oklahoma public policy.
According to M s. Smith, the explanations offered by M r. Harris for her
discharge were pretexts for gender discrimination. In support of that theory, she
contested his assertions that her performance as an investigator w as deficient.
She also alleged that she had been treated less favorably than male
-4- employees of the District Attorney’s Office, who received counseling and
opportunities to improve their work performance before being subjected to
adverse employment actions. Additionally, M s. Smith pointed to the evolving
explanations of her discharge, arguing that these explanations indicated that the
initial reasons offered by M r. H arris were pretextual.
The district court granted summary judgment to the D istrict Attorney’s
Office on both of M s. Smith’s claims. As to her Title VII claim, it concluded that
M s. Smith had failed to establish a prima facie case of gender discrimination and
had failed to offer colorable evidence of pretext. On her state law claim, the
court applied an Oklahoma decision holding that an at-will employee may not
assert such a claim if she “‘has an adequate federal statutory remedy for the
wrongful discharge.’” A plt’s App. vol. III, at 1218 (Dist. Ct. Order, filed April
15, 2005) (quoting Clinton v. State ex rel. Logan County Election Bd., 29 P.3d
543, 546 (O kla. 2001)).
II. D ISC USSIO N
On appeal, M s. Smith argues that the district court erred in granting
summary judgment to the District Attorney’s Office on both her Title VII and
state law claims. W e review the district court’s decision de novo, applying the
sam e standards as the district court under Fed. R. Civ. P. 56. Orr v. City Of
Albuquerque, 417 F.3d 1144, 1148 (10th Cir. 2005). Summary judgment is
-5- warranted only “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). W e view the evidence and
the reasonable inferences drawn from it in the light most favorable to the
nonmoving party. M ickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310
(10th Cir. 2006). Nevertheless, the party opposing summary judgment “must still
identify sufficient evidence requiring submission to the jury to survive summary
judgment.” Piercy v. M aketa, 480 F.3d 1192, 1197 (10th Cir. 2007).
A. Title VII Claim
Title VII bars gender discrimination with respect to “compensation, terms,
conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). W hen, as
here, a plaintiff employee relies on circumstantial evidence to prove her claim, w e
apply the familiar framework set forth by the Supreme Court in M cDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800-07 (1973). See, e.g, Timmerman v.
U.S. Bank, N.A.,483 F.3d 1106, 1113 (10th Cir. 2007) (applying M cDonnell
Douglas).
Under that framework, the plaintiff-employee must first establish a prima
facie case of discrimination. M cDonnell Douglas, 411 U. S. at 802. If she makes
that showing, the burden shifts to the defendant-employer to state a legitimate,
-6- nondiscriminatory reason for the challenged employment action. Plotke v. W hite,
405 F.3d 1092, 1099 (10th Cir. 2005). Finally, in order to avoid summary
judgment, the employee must then offer evidence that the employer’s proffered
reason was a pretext for discrimination. Id.
Here, M s. Smith challenges the district court’s conclusions that she failed
to establish a prima facie case and failed to offer colorable evidence of pretext.
W e consider each argument in turn.
1. Prima facie case
“The Supreme Court recognized in M cDonnell Douglas that the articulation
of a plaintiff’s prima facie case may well vary, depending on the context of the
claim and the nature of the adverse employment action alleged.” Id. at 1099. As
a result, this court has set forth varying standards for a prima facie case of
discriminatory discharge under Title VII. See Aplt’s App. vol. III, at 1202-03
(discussing varying standards); see also Sorbo v. United Parcel Service, 432 F.3d
1169, 1173-74 (10th Cir. 2005) (same); Jaramillo v. Colorado Judicial Dep’t, 427
F.3d 1303, 1307 n.1 (10th Cir. 2005) (same). “The critical prima facie inquiry in
all cases is whether the plaintiff has demonstrated that the adverse employment
action occurred under circumstances which give rise to an inference of unlawful
discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227
(10th Cir. 2000) (internal quotation marks omitted).
-7- Here, the district court said, “the most appropriate test is [either] the three-
part test of M artin [v. Nanny & The N ew borns, 3 F.3d 1410 (10th Cir. 1993)] or a
four-part test as set forth in Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990).”
Aplt’s App. vol. III, at 1203. M s. Smith does not argue for a particular standard,
while the District Attorney’s Office contends that the M artin three-part standard
should be applied. See Aple’s Br. at 37-38.
W e have applied the three-part M artin standard in Title VII cases in which,
plaintiffs, like M s. Smith, argue that they have been treated less favorably than
similarly situated co-workers, see, e.g., E.E.O.C. v. PV NF, 487 F.3d 790, 800
(10th Cir. 2007), and we therefore agree with the District Attorney’s Office that
the M artin three-part standard is appropriate. U nder that standard, in order to
establish a prima facie case of discrimination, M s. Smith must demonstrate that
she (1) belongs to a class of employees protected by Title VII; (2) was qualified
for her job; and (3) was terminated under circumstances giving rise to an
inference of discrimination. M artin, 3 F.3d at 1417; see also Haynes v. Level 3
Commc’ns, LLC, 456 F.3d 1215, 1225 n.11 (10th Cir. 2006) (applying the same
standard); Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004)
(same); see generally Sorbo, 432 F.3d at 1173 (stating that “several cases
involving adverse action prompted by unsatisfactory performance or misconduct
have framed the [third] element . . . broadly, as requiring a showing of
-8- circumstances giving rise to an inference of discrimination”) (internal quotation
marks omitted).
Applying this standard, the district court concluded that M s. Smith had
failed to establish a prima facie case. The court addressed the second and third
M artin prongs.
As to the second prong, whether M s. Smith was qualified, the court said
that M s. Smith had failed to establish that she was performing her job
satisfactorily. M s. Smith’s evidence of satisfactory performance— evaluations by
two of her supervisors and a co-worker— did not involve the same time period
during which the majority of asserted performance deficiencies occurred.
As to the third prong, the court stated that M s. Smith had failed to offer
evidence that she was treated less favorably than similarly-situated male
employees. The court acknowledged that M s. Smith had offered evidence that, in
contrast to the manner in which she was treated, some male employees received
counseling before they were subjected to adverse action. However, the court
reasoned, these male employees were not similarly situated: unlike M s. Smith,
they were not terminated in response to budget cuts and some of them had not
committed multiple infractions, as M s. Smith had done.
On appeal, M s. Smith challenges both of the district court’s conclusions
regarding her prima facie case. As to her work performance, she invokes her ow n
testimony that she was performing her job satisfactorily, as well as our decision
-9- in M acDonald v. E. W y. M ental Health Ctr., 941 F.2d 1115 (10th Cir. 1991).
There, we stated that “a plaintiff may make out a prima facie case of
discrimination . . . by credible evidence that she continued to possess the
objective qualifications she held when she was hired or by her own testimony that
her work was satisfactory, even when disputed by her employer, or by evidence
that she held her position for a significant period of time.” Id. at 1121 (internal
citations omitted). As to the allegedly more favorable treatment received by male
employees, M s. Smith contends that the record contains evidence from which a
reasonable juror could conclude that male employees accused of deficient
performance received opportunities to improve that she did not.
M indful that the plaintiff’s burden at this first stage is “not onerous,”
Plotke, 405 F.3d at 1099 (internal quotation marks omitted), we conclude that M s.
Smith has established a prima facie case. As a woman, she falls within a class
protected by Title VII. M oreover, viewed in the light most favorable to M s.
Smith, her five-year tenure as an investigator, her own assessment of her
performance, and the fact that the District Attorney’s O ffice did not formally
reprimand, suspend, or discharge her for the alleged performance deficiencies
until budget concerns arose in late 2002 could all support her contention that she
was performing her job adequately.
Finally, as to the third element of the prima facie case— whether she was
terminated under circumstances giving rise to an inference of discrimination—
-10- M s. Smith’s testimony that she did not receive the counseling given to others
supports her contention that she w as treated differently than male investigators.
Although the district court concluded that these male employees were not
similarly situated, its analysis turned on an assessment of the reasons offered by
the District Attorney for M s. Smith’s termination (i.e., that budget cuts justified
the discharge of a deficient employee). However, at the prima facie stage, “a
plaintiff is only required to raise an inference of discrimination, not dispel the
non-discriminatory reasons subsequently proffered by the defendant.” E.E.O.C.
v. Horizon/CM S Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000); see also
Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1469-70 (10th Cir. 1992) (stating that
“the employer’s reasons for the adverse action are not appropriately brought as a
challenge to the sufficiency of the plaintiff’s prima facie case”) (alteration and
internal quotation marks omitted).
W e therefore proceed to the final two stages of the M cDonnell Douglas
inquiry, examining the reasons given by M r. Harris for the discharge and M s.
Smith’s contention that those reasons were pretexts for gender discrimination.
2. Evidence of Pretext
Once the plaintiff establishes a prima facie case, the burden of production
shifts to the defendant-employer to articulate some legitimate, nondiscriminatory
reason for the adverse employment action. M cDonnell D ouglas, 411 U.S. at 802.
-11- W hen the plaintiff meets this burden, the court’s “factual inquiry then proceeds to
a new level of specificity.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 255 (1981). The presumption of discrimination established by the prima
facie show ing “simply drops out of the picture,” St. M ary’s Honor Ctr. v. Hicks,
509 U.S. 502, 511 (1993), and the plaintiff must establish that her employer
discriminated on the basis of gender. Bryant v. Farmers Ins. Exch., 432 F.3d
1114, 1124 (10th Cir. 2005). The plaintiff may meet this burden by
demonstrating that the reason for the discharge proffered by the employer is a
pretext for discrimination. Horizon/CM S H ealthcare Corp., 220 F.3d at 1191.
Pretext can be shown by “such w eaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unw orthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” M organ v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997) (internal quotation marks omitted). In support of a claim of
pretext, a plaintiff may offer evidence of differential treatment, indicating that the
employer “treated [the plaintiff] differently from other similarly-situated
employees who violated work rules of comparable seriousness.” Swackhammer v.
Sprint/United M gmt Co., No. 05-3222, --- F.3d ----, 2007 W L 1969672, at * 5
(10th Cir. July 9, 2007) (quoting Kendrick, 220 F.3d at 1230). A lternatively, a
plaintiff may offer direct evidence that the employer’s stated reason for the
-12- discharge is false. “Evidence of pretext may also take a variety of other forms.”
Id.
Nevertheless, “it is not always permissible for the factfinder to infer
discrimination from evidence that the employer’s explanation is unworthy of
belief.” Id. If there is conclusive evidence of some other, nondiscriminatory
reason for the plaintiff’s discharge or “‘if the plaintiff created only a weak issue
of fact as to whether the employer’s reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had occurred,’
the fact that the employer’s explanation was unworthy of belief would no longer
be sufficient to create an inference of discrimination.” Id. (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, (2000)). Additionally, if the
plaintiff’s evidence that she was treated differently than other, similarly-situated
employees is “trivial or accidental or explained by a nondiscriminatory motive,”
this evidence does not create an inference of discrimination. Kendrick, 220 F.3d
at 1232.
In this appeal, M s. Smith invokes four categories of evidence in support of
her pretext argument. According to M s. Smith, this evidence establishes that the
district court erred in granting summary judgment against her.
a. Treatment of M ale Investigators
M s. Smith cites record evidence that three male investigators w ho were
discharged by M r. Harris were first reprimanded and then counseled about the
-13- deficiencies in their work performance. M s. Smith maintains that these
employees were thus afforded an opportunity to improve before they were
terminated. In contrast, M s. Smith testified that she “‘had not been reprimanded
about anything’” and “‘did not get that privilege to be talked to about anything if
there was a problem.’” Aplt’s Br. at 53-54 (quoting Aplt’s App. vol. II, at 506).
Viewed in the light most favorable to her, M s. Smith argues, this evidence
supports a finding that she was treated differently than similarly-situated male
employees and thus supports her claim of pretext.
W e agree with the district court that this evidence is not sufficient to
support M s. Smith’s pretext argument. As an initial matter, the record does not
suggest that the District Attorney’s Office had a progressive discipline policy
requiring all employees to be counseled and subjected to milder discipline before
discharge. To the contrary, M r. Harris testified that decisions regarding employee
discipline were made on a case-by-case basis, and M s. Smith has not rebutted that
testimony. Thus, even accepting M s. Smith’s testimony that she was never
counseled about her work performance before she was terminated, that testimony
does not establish that M r. Harris violated an office policy.
M ore importantly, M s. Smith has failed to establish that these three male
investigators were similarly situated. M r. Harris offered testimony that M s.
Smith’s termination was triggered by budget cuts, a factor not involved in the
termination of the male investigators. M r. Harris explained, “[W ]hen you are
-14- flush and you have enough money, you can carry your weaker employees along
with you. . . . But . . . once your budget [be]comes tighter and tighter and tighter
and tighter, you don’t have the luxury of kind of bringing these people along with
you in hopes that they will succeed. . . . [N]ow that I don’t have money, . . . I
have to make the tough decisions.” Aplt’s App. vol. II, at 535-36; see also
E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992) (noting that
differences in the treatment of employees may sometimes be explained by the fact
that “the events occurred at different times w hen the company’s attitudes toward
certain infractions were different”).
M oreover, M s. Smith’s testimony that she was never counseled about the
deficiencies in her work does not address the key question of whether M r. Harris
acted w ith discriminatory intent. In evaluating evidence of pretext, we do not ask
“whether the employer’s proffered reasons were wise, fair or correct, but whether
[he] honestly believed those reasons and acted in good faith upon those beliefs.”
Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)
(quotation and alterations omitted). Here, M r. Harris testified that Don Bell, his
chief investigator, told him that he had counseled M s. Smith on her performance
“numerous times[,]” Aplt’s App. vol. I, at 97, and M r. Bell himself testified that
he had counseled M s. Smith. Similarly, George Nelson, the chief of the Juvenile
Division, told M r. Harris that he had talked to M s. Smith about her “attitude
problem.” Id. at 82. Thus, M s. Smith’s testimony that she was never counseled
-15- does not undermine M r. Harris’s contention that he had an honest, good-faith
belief that such counseling had occurred. Cf. Furr v. Seagate Techn. Inc., 82 F.3d
980, 988 (10th Cir. 1996) (stating that “[i]t is the manager’s perception of the
employee’s performance that is relevant, not plaintiff’s subjective evaluation of
his own relative performance”); see also E.E.O.C. v. Total Sys. Servs, Inc., 221
F.3d 1171, 1176 (11th Cir. 2000) (observing that an employer is entitled to rely
on good-faith beliefs about employee misconduct).
b. Budget Cuts
M s. Smith also contends that two of M r. Harris’s own statements indicate
that the alleged budget cuts were pretextual.
First, she points to the following statement in the agenda for an October 4,
2002 staff meeting (roughly a month before she w as terminated):
Before I get started I wanted to take a few minutes to talk to you about our Budget. I know that you are all reading the new spaper and hearing the news on the television about all the shortage of funds and offices are being furloughed and I just w ant to tell you not to let fear get any rumors started about us being furloughed or rumors about layoffs. As of today, w e have our budget in place and in good shape through next June, 2003.
Aplt’s App. vol. I, at 377.
Second, M s. Smith relies on the following exchange in M r. Harris’s
deposition:
Q: [by M s. Smith’s counsel]: A re you testifying that in better budgetary times, there may have been alternatives to termination for these employees?
-16- A: [by M r. Harris]: It com es to a point. It’s how bad is their performance overall, are they assisting us, moving the whole team forward or are they a drag on the team ....
Q: [by M s. Smith’s counsel]: Just let m e ask the question. In better budgetary times, would M s. Sm ith have been given an opportunity to correct her performance?
A: [by M r. Harris]: No.
Id. at 77.
Finally, M s. Smith cites a November 8, 2002 memorandum from First
Assistant District Attorney James Brandon. The memorandum states that “there
have been many issues related to [M s.] Smith during my time here” and that “the
most recent that was brought to my attention was the failure to sign charges and
get them to the Court Clerk’s office in a timely fashion.” Aplt’s App. vol. II, at
863. However, M r. Brandon’s memorandum does not mention budget cuts as
grounds for her discharge.
In our view , this evidence does not support M s. Smith’s contention that M r.
Harris’s reliance on budget cuts was pretextual. M r. Harris testified that, when
his office’s budget began to get cut dramatically, he discharged some “weak
players on the team,” including M s. Smith and two male Assistant District
Attorneys. Aplt’s App. vol. II, at 535. M s. Smith has offered no evidence to
controvert the existence of these funding reductions. M r. Harris’s statements in
-17- the October 4, 2002 agenda that the budget was “in place” and “in good shape”
and that employees should not fear layoffs or furloughs were made to his staff as
a whole and demonstrate an intent to reassure the majority of them. The
statements are not inconsistent with the existence of budget cuts that triggered the
discharge of a few employees, including M s. Smith, whose performance was
deficient.
M r. Harris’s response to the hypothetical question about whether M r. Smith
would have been given an opportunity to correct her performance “in better
budgetary times” is similarly insufficient to demonstrate pretext. As noted above,
when he decided to discharge her, M r. Harris reasonably believed that M s. Smith
did receive counseling about the deficiencies in her performance. M r. Harris’s
statement that she would not have been given an opportunity to correct her
performance indicates only that, after learning more details about the deficiencies
in her w ork, M r. Harris determined that M s. Smith’s work-related problems were
“long going” and were unlikely to be corrected by counseling or other measures.
Id. at 536. His statement does not undermine his reliance on the budget cuts as a
basis for her termination.
Finally, the fact that M r. Brandon’s November 8, 2002 memorandum does
not mention the budget cuts is not significant. M r. Brandon explained in his
deposition that he did not make the decision to discharge M s. Smith. His role
“w as providing information to the decision-maker [M r. Harris],” and he therefore
-18- offered examples of her deficient performance. Aplt’s App. vol. I, at 116. Thus,
the November 8 memorandum reveals M r. Brandon’s limited role and does not
support M s. Smith’s claim of pretext.
c. Deficiencies in W ork Performance
M s. Smith further argues that a jury could conclude that M r. Harris acted
unreasonably in relying on the statements of various employees regarding the
deficiencies in her work. She maintains that M r. Harris failed to investigate the
truth or accuracy of the complaints about her and that this failure also constitutes
evidence of pretext. As an example of his alleged failure to investigate, she cites
M r. Harris’s testimony that he relied on a complaint by James M anning. She
asserts that M r. M anning testified that he did not make this complaint until after
her discharge, thus, in her view , undermining M r. Harris’s account of his
investigation of her w ork performance.
Additionally, M s. Smith contends that there are disputed facts regarding
several of the incidents invoked by M r. Harris as examples of her deficient
performance. As to several of these incidents, M s. Smith disputes that she
performed inadequately. As to others, she cites her own testimony that she never
received counseling or an opportunity to improve.
After thoroughly review ing the record, we cannot agree with M s. Smith that
there is colorable evidence of pretext. In his deposition testimony, M r. Harris
explained that after meeting with the First Assistant District Attorney and the
-19- Chief Investigator, he concluded that M s. Smith did not have the skills necessary
to perform investigative functions; that she had demonstrated a rude,
condescending, curt, and arrogant attitude toward other employees; that she had
refused to file charging papers on behalf of the District Attorney’s Office; and
that she had been disciplined by the Chief Investigator at least three times for that
refusal. M r. Harris reported that many employees had stated that, in light of these
difficulties, they did not want M s. Smith placed in their divisions.
As the district court observed, M r. Harris’s explanation is supported by the
testimony of more than twenty employees of the District Attorney’s Office. Some
of these employees cited specific examples of M s. Smith’s deficient performance;
others, including the Chief Investigator and the Chief of the Bogus Check
Division, confirmed that they had requested that M s. Smith not be assigned to
their division. Others characterized her attitude toward her fellow employees in a
manner similar to M r. Harris. This testimony demonstrates that M r. Harris’s
determination regarding the deficiencies in M s. Smith’s work performance was
reasonable.
The evidence invoked by M s. Smith does not undermine this conclusion.
For example, the dispute about whether M r. Harris relied on a complaint from M r.
M anning concerns only the chain of communication about a complaint regarding
M s. Smith: M r. Harris indicated that M r. M anning complained to him directly
while M r. M anning stated that he complained to his immediate supervisor, who
relayed the complaint up the chain of command until it reached M r. H arris.
-20- Nevertheless, no matter how the complaint reached M r. Harris, it is undisputed
that he received information from M r. M anning, and from other employees, that
M s. Smith was not performing her job adequately.
d. Changing Reasons for Termination
Finally, M s. Smith contends that, over time, M r. Harris offered different
reasons in support of his decision to discharge her and that these changing reasons
constitute evidence of pretext. As the district court explained, on the day that she
was discharged, neither M r. H arris nor his staff offered M s. Smith an explanation.
On November 20, 2002, M r. Harris sent M s. Smith a letter stating that “[d]ue to
these financial conditions and continued state budget cuts, it was necessary to
evaluate a number of different positions in the office.” Aplt’s App. vol. II, at
751. In responding to requests for information during the EEOC investigation,
M r. Harris referred to budget cuts and subsequently referred to deficiencies in
M s. Smith’s work performance. Then, during discovery in the district court
proceedings, M r. H arris provided more examples of her deficient performance.
Finally, in the summary judgment papers, M r. Harris offered more evidence about
those deficiencies.
In some circumstances, a change in an employer’s explanation of the
reasons for an adverse personnel action may constitute evidence of pretext
Jaramillo, 427 F.3d at 1311. However, “the mere fact that [an employer] has
offered different explanations for its decision does not create a genuine question
of pretext.” Id. In determining whether a changing explanation is sufficient to
-21- permit an inference of pretext, we consider (1) the timing of the change in
explanation and (2) the evidence supporting the newly-proffered explanation. Id.
Here, we agree with the district court that the explanations offered for M s.
Smith’s discharge are “not part of a long line of ‘new’ reasons but an increasingly
detailed explanation for the reasons [M r. Harris] articulated in general terms soon
after [M s. Smith] was terminated: budget cuts, combined with her attitude and
performance problems.” Aplt’s App. vol. III, at 1214. M r. Harris offered
unrebutted testimony that the budget cuts triggered both his examination of
underperforming employees and his decision to discharge M s. Smith. Before he
discharged her, he received information about M s. Smith’s deficient performance
from his staff. The fact that the District Attorney’s O ffice began to marshal
evidence about those deficiencies as it prepared for anticipated litigation does not
constitute colorable evidence of pretext.
3. Conclusion
Because M s. Smith failed to offer evidence from which a reasonable
factfinder could conclude that the reasons for her termination were a pretext for
gender discrimination, we conclude that the district court properly granted
summary judgment to the District Attorney’s Office on her Title VII claim.
B. State Law Claim
M s. Smith also asserted a claim for wrongful discharge under Oklahoma
law. Her claim is based upon Burk v. K-M art Corp., 770 P.2d 24 (Okla. 1989),
-22- which held that an at-will employee may assert a claim that she was terminated in
violation of “a clear and compelling public policy.” Id. at 29. As evidence of
Oklahoma’s public policy, M s. Smith invokes a state statue barring gender
discrimination. Okla. Stat. tit. 25, § 1302(A).
In applying Burk, the Oklahoma Supreme Court has held that a wrongful
discharge claim is precluded “[w]hen an employer discharges a terminable-at-will
employee based on the employee’s status and the reason for the discharge violates
Oklahoma’s clear and compelling public policy, but the employee has an adequate
federal statutory remedy for the wrongful discharge.” Clinton v. State ex rel.
Logan County Election Bd., 29 P.3d 543, 544 (Okla. 2001). The district court
granted summary judgment to the District Attorney’s Office on the grounds that
M s. Smith “has an adequate statutory remedy under Title VII.” Aplt’s A pp. vol.
III, at 1218.
M s. Smith now argues that her remedy under Title VII is not adequate
because that statute limits the amount of recovery of compensatory and punitive
damages. See 42 U.S.C. § 1981a(b)(3). She does not cite, nor have we found, a
body of law defining what constitutes an “adequate” remedy under Clinton.
Nevertheless, in this case, we need not decide whether Title VII is an
adequate remedy. Even assuming that, under Clinton, Title VII does not provide
an adequate remedy to M s. Smith, the District Attorney’s O ffice is still entitled to
summary judgment. As we have explained above, M s. Smith has failed to offer
colorable evidence of gender discrimination. As a result, a reasonable factfinder
-23- could not conclude that M r. Harris violated Oklahoma public policy in discharging
her.
III. C ON CLU SIO N
W e therefore AFFIRM the district court’s grant of summary judgment to the
District Attorney’s Office on M s. Smith’s Title VII and state law claims.
Entered for the Court,
Robert H. Henry United States Circuit Judge
-24-