UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ELIZABETH STEWART, Plaintiff - Appellant,

v. STATE OF OKLAHOMA ex rel. OKLAHOMA OFFICE OF JUVENILE AFFAIRS; GENE CHRISTIAN, individually as former Executive Director of the Oklahoma Office of Juvenile Affairs, Defendants - Appellees. No. 14-6010 (D.C. No. 5:12-CV-01297-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , PORFILIO , and MATHESON , Circuit Judges.
Elizabeth Stewart appeals from the district court’s en try of summary judgment in defendants’ favor on clai ms relating to the termina tion of her employment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 25, 2014 Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Stewart is African American. In 20 04, she began working as the Division Administrator for the Institu tional Services Division of the Oklahoma Office of Juvenile Affairs (OJA). She was respons ible for overseeing se veral youth detention facilities, and she r eceived positive perform ance reviews. Over a two-month span in 2011, an assault resulting in a brain injury, a mini riot, a nd an escape occurred at one of those facilities, the medi um-security Central Oklahoma Juvenile Center (COJC). Mike Moriarty, who is Caucasian, was CO JC’s Superintendent. One day after the last of those three events, defendant Ge ne Christian, a Cau casian who was then OJA’s Executive Director, reliev ed Stewart and Moriarty of their duties. Christian informed Stewart that she could resign or be fired, and a few weeks later told Moriarty that he could resign, retire, or be fired. Ms. Stewart decided to resign to avoid the stigma of being fired. Moriarty chose to retire. Stewart then sued OJA and Christian, al leging that they discriminated against her on the basis of race and sex when Christian ended her employment and that Christian retaliated agai nst her for complaining more than a year earlier about a racial comment his assistant made. She also asserted a procedural due process claim against Christian regarding his failure to provide her with a reason for relieving her of her duties. 1

1 Stewart raised her race and sex disc rimination claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981 and 1983 (the latter invoking the (continued)- 3 - Defendants moved for summary judgment on all claims, which the district court granted. Applying the fam iliar burden-shifting paradigm of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973), the court assumed Stewart’s resignation amounted to a discharge and held that she established a prima facie case of discrimination. 2 The court then determined that defendants had provided legitimate, nondiscriminatory reasons for discharging her. Christian felt immediate changes needed to be made in view of the three incidents at COJC over the two-month period and the associated bad press OJA was getti ng. He was also motivated by the fact that th e incidents occurred at a ti me when OJA was trying to end involvement by the United States Depa rtment of Justice (DOJ), which had obtained a three-year consent decree in federal court in 2008 concerning conditions of confinement at another OJA facility, the maximum-security L.E. Rader Center (Rader). Rader effectively cl osed shortly before the firs t of the three incidents at COJC. The court next concluded that Stewart fa iled to demonstrate that defendants’ reasons were a pretext for discriminatory intent. Stewart argued she was treated Equal Protection Clause of the 14th Amendmen t to the United States Constitution). She raised her retaliation claim against Christian under § 1981 and her due process claim under § 1983. Stewart also asserted other claims, but in this appeal, she has not taken issue with the dist rict court’s disposition of them. We therefore do not discuss them.
2 The same elements apply to disparate treatment claims under Title VII, § 1981, and § 1983, all of which are subject to the McDonnell Douglas analysis. Drake v. City of Fort Collins , 927 F.2d 1156, 1162 (10th Cir. 1991).- 4 - differently than Christian and his Chief of Staff, Gary Bo lin, but the court determined Christian and Bolin were not similarly situat ed to her because th ey had larger roles within OJA than overseeing ju venile facilities. The cour t reasoned that Moriarty was most similarly situated to Stewart, and Christian treated him the same as he had treated Stewart. The court further disti nguished former Rader superintendents, none of whom were ever relieved of their du ties despite significan t issues there and allegedly constant bad press, because Stewart had not shown similar incidents occurred there within a two-month span and at a time when OJA was trying to conclude the consent decree. The court next addressed Stewart’s argum ent that Christian should have been fired instead of her or Mori arty because, by closing Rader, he created the conditions at COJC that led to the three incidents. The court concluded this was immaterial because “[t]he relevant inqui ry is not whether the employe r’s proffered reasons were wise, fair or correct, but whether it hones tly believed those reas ons and acted in good faith upon those beliefs.” Rivera v. City & Cnty. of Denver , 365 F.3d 9 12, 924-25 (10th Cir. 2004) (brackets and internal quotation marks omitted). As Stewart had conceded, at the time Chris tian relieved her of her duties, she thought it was because of the bad press and was “a way for him to ta ke care of it and show that he was doing something,” Aplt. App. at 275, simi lar to the reasons Christian gave.- 5 - The court also determined that no reas onable inference of discrimination by Christian could be drawn from the raci al comment his assistant had made, 3 noting that Christian was not present at the ti me it was made and that, after Stewart informed him of the comment, he promptly instructed his assistant to apologize. Finally, the court addressed Stewart’s re liance on another employee’s claims of gender discrimination against Christian and OJA. The c ourt observed that Christian had apologized for a flippant comment he had made to the employee, Laura Broyles, 4 and that Broyles’s equal-pa y claim had been resolved in her favor. The court concluded this evidence was insu fficient to create a genuine issue of fact with regard to pretext. The district court next considered Stewar t’s retaliation claim against Christian. It granted summary judgment on that clai m because her complaint about the racial comment Christian’s assistant had made occurred more than a year before Christian relieved Stewart of her duties, and ther e was no additional ev idence to establish causation. 5

3 At an OJA Board of Directors retreat , Christian’s assistan t told a story in Stewart’s presence that when the assistant was a teenag er, she and some friends dressed up as Ku Klux Klan members for Halloween, with one person painting his face black and wearing a noose around his neck.
4 Christian admitted he told Broyles th at OJA’s budget issues might be resolved if she slept with a state legislator.
5 The court also stated that Stewart fail ed to exhaust her ad ministrative remedies with respect to her retaliation claim agains t OJA under Title VII. To the extent she stated such a claim, the dist rict court lacked jurisdiction over it due to the failure to (continued)- 6 - Moving to the procedural due process clai m against Christian, the district court applied state law to determin e whether Stewart had a propert y interest in her job. See Ribeau v. Katt , 681 F.3d 1190, 1194 (10th Cir. 2012) (explaining that state law governs that inquiry). Under Okla. Stat. tit. 74, § 840-5.1A(A), an unclassified Oklahoma employee has no right or expect ation of continued employment and, consequently, no property interest in he r job. The court pointed to Stewart’s deposition testimony that she was an uncla ssified staff member and an at-will employee, and it noted that her written job offer desc ribed the position in those terms. The court also pointed out that, although Stewart’s position was not among a list of those specifically id entified by Okla. Stat. tit. 74, § 840-5.5 as unclassified, another statutory provision (O kla. Stat. tit. 74, § 840-5. 15) allows OJA to place an additional forty-one employees into unclassifie d service. Accordingly, the court held that Stewart lacked the property interest required to maintain a procedural due process claim. See Ribeau , 681 F.3d at 1194 (property in terest required for such a claim). II. Discussion “We review the district court’s summ ary judgment order de novo, and apply the same legal standards as the district court.” Doe v. City of Albuquerque , 667 F.3d exhaust. See Eisenhour v. Weber Cnty. , 744 F.3d 1220, 1226 (10th Cir. 2014). But we fail to see such a cl aim in the controlling amende d complaint, where the only retaliation claim was against Christian and asserted un der 42 U.S.C. § 1981, not Title VII. There is no exhausti on requirement for § 1981 claims. Aramburu v. Boeing Co. , 112 F.3d 1398, 1410 n.9 (10th Cir. 1997).- 7 - 1111, 1122 (10th Cir. 2012). “The court shall grant summary judgment 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). “When applying this standard, we view the eviden ce and draw reasonable inferen ces therefrom in the light most favorable to th e nonmoving party.” Doe , 667 F.3d at 1122 (internal quotation marks omitted). Applying these standards, we agree in full with the district court’s analysis and affirm its decision for substantially the re asons the court gave. This is not an instance where “a claimed bus iness judgment is so idiosync ratic or questionable that a factfinder could reasonably fi nd that it is a pretext fo r illegal discrimination.” Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1169 (10th Cir. 1998); see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000). (“[A]n employer [is] entitled to judgment as a matter of law if the record conclusi vely revealed some other, nondiscriminatory reason for the employe r’s decision, 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 uncontrove rted independent evidence that no discrimination had occurred.”). We will, however, briefly di scuss a few specific points Stewart makes about evidence the district court addressed, and we will discuss evidence the district court did not address in its decision, th e omission of which we deem harmless. Stewart contends Christian fired Moriarty in order to cloak his true objective— ridding himself of Stewart, whom he had inherited when he was appointed Executive- 8 - Director of OJA in 2006. In support, she points to Moriarty’s testimony that on the day after the third incident, Christian first asked Moriarty what a ssistance he needed at COJC. Later that day, Ch ristian told Moriarty it look ed like he would be getting a new division administrator, t hus indicating Stewart was going to be fired. Moriarty offered to resign, but Chris tian did not respond. Still later that day, Christian relieved Moriarty of his duties and, seve ral weeks later, offe red him the choice to resign, retire, or be fired. Stewart claims an inference of discrimination can be drawn from this sequence. But any such inference is sp eculative, not reasonable. Stewart also claims the di strict court erred in cred iting Christian’s view that the three incidents at COJC complicated OJA’s e fforts to conclude the Rader consent decree because two of the inci dents occurred after the fede ral district court declined the DOJ’s request to exte nd the decree to COJC afte r the Rader youths were transferred there. But th is argument is faulty becau se it rests on a slight mischaracterization of Christian’s affidavit, where he expressed his concern that the three incidents “would extend the DOJ involveme nt at a time when we were trying to conclude it.” Aplt. App. at 421. It is evident that Christian’s concern was DOJ involvement in any respect, not just under th e consent decree. Mo reover, the federal case was not formally closed until more than a month af ter the third incident took place. Hence, Christian’s c oncern was not inconsistent with the facts to the point where a reasonable inference of disc rimination could be drawn from it.- 9 - Stewart notes that, several weeks after the first of the three incidents and before the other two, Chri stian signed her performance review. The review, which did not mention the incident, indicated she was meeting standards. She also points out that, after the second ev ent, Christian did not discu ss them with her. We see nothing of pretext in this since the proffe red reason for relieving Stewart of her duties was the cumulative effect of the three incidents. Stewart complains the distri ct court failed to addre ss evidence that Christian engaged in a pattern of pers onnel decisions that resulted in white males occupying a number of positions, including Stewart’s; th at he fired an upper-level female employee early in his tenure as OJA’s Executive Director; and that since Stewart’s firing, there are no black executive staff in the OJA. But this evidence exists in a vacuum. There is no indication whether a ny black or female can didates applied for the positions and there is no detail as to w hy Christian fired the upper-level female employee. Hence, no reas onable inference of pretex t can be drawn from this evidence. The district court also failed to discus s evidence that, someti me during his first year as OJA’s Executive Director, Christia n was present when OJA showed a video depicting women sitting at a ba r and appearing to wear eith er no pants or a thong, but he did nothing. However, there is no evid ence Christian had any role in the decision to show this video, no further detail on his reaction to it, and no allegation that there was any complaint about it such that he might have addressed it. Moreover, the- 10 - incident occurred some four years before he relieved Stewart of her duties. Therefore, it would be unreasonable to draw an inference that he was biased from his mere presence and inaction. The same can be said of a skit OJA employees put on, during the same time frame, in which they allegedly mo cked someone with a thick Indian accent. Stewart further points to th e fact that when Chris tian was a state district attorney (apparently many years before his decision to end Stewart’s OJA employment), he told a black female assistan t district attorney “that she needed to seek other employment, that being a prosecu tor, being in the courtroom was probably not her forte.” Aplt. App. at 615. Alt hough that person is now a special district judge in Oklahoma County, we fail to see how a reasonable inference of discrimination can be drawn from Christian’ s opinion that she may not have been a good prosecutor. Stewart points out an inc onsistency between Christian’s sworn statement that he told Chief of Staff Bolin he had disc ussed firing Stewart wi th OJA’s Board of Directors and other testimony that he had not discussed it with the Bo ard. We fail to see how this inconsistency cr eates a reasonable inference of discriminatory animus. Stewart also claims she wa s paid less than the stat e average for her level and only slightly more than Mo riarty despite having signifi cantly more responsibilities than him. But there is insufficient factual deve lopment to rule out any nondiscriminatory basis for the pay diffe rential, so no reas onable inference of- 11 - discrimination can be drawn from the naked facts. Likewise, se veral other claims Stewart makes are in sufficiently developed to reas onably infer pretext: after complaining about discrimination, she a nd Broyles were excluded from decisions they should have been involved in; both Stewart and Broyles were “aware of Christian’s lack of respect and value of women in the workplace, ” Aplt. Opening Br. at 40; and that Broyles thought Christian was unconcer ned about racially equal treatment of youth offenders held in OJA facilities. III. Conclusion The judgment of the dist rict court is affirmed.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge