* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 20 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

SHARON H. COOK,

Plaintiff-Appellant,

v. CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah corporation sole, GORDON B. HINCKLEY, President of the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints; HERBERT T. GOLDHARDT, also known as Herbert K. Goldhardt, agent for the corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Defendants-Appellees. No. 03-4287 (D.C. No. 2:02-CV-1368-TC)

(D. Utah)

ORDER AND JUDGMENT *

Before KELLY , HARTZ , and TYMKOVICH , Circuit Judges.1 In her filings, plaintiff spells her name in all up per-case letters, followed by

the trademark symbol. Because plaintiff does not p rovide a reason for this practice, this court declines to follow suit. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Sharon H. Cook, proceeding pro se, appeal s the district court’s grant of summary judgment in favor of her former employer, Corporation of the President of The Church of Jesus Christ of Latter-D ay Saints (COP), on her claims of religious and gender discrimination underTitle VII of the Civil Rights Act and age discrimination under the Age Discrimination in Employment Act (ADEA). She also seeks review of the district court’s denial of her motions for relief from judgment filed under Fed. R. Civ. P. 60 (b) and her motion to amend her complaint. We affirm the judgment of the dist rict court. 1 I. Background For eighteen years, Ms. Cook worked for COP, a not- for-profit corporation organized to manage property and assets of The Chur ch of Jesus Christ of LatterDay Saints (LDS Church) for the benefit of its reli gion, charitable works, and public worship. COP requires each employee to main tain a temple recommend, which is an LDS leader’s written certification evid encing the individual’s-3-

qualification for temple worthiness. A temple reco mmend is based on a number of factors, specifically including whether the indi vidual is a faithful adherent to the teachings of the Church, and does not support o r sympathize with apostate groups or individuals whose beliefs or teachings ar e contrary to the Church. The lack of a temple recommend can lead to employee dis cipline, ranging from probation to termination of employment. Ms. Cook worked as a graphic designer for COP’s rel igious publications for eighteen years. In late 2001, church security officers received information that Steven C. Davis knew of a bombing threat to ch urch temples. Mr. Davis had been expelled from the LDS Church and was viewed bythe church as an excommunicant and apostate. The informant also tol d the security officers that Davis had used the church’s in-house mail system to distribute materials and that Ms. Cook may have given Davis access to that system . Accordingly, in November 2001 the security officers interviewed Ms. Cook. The officers felt that statements by Ms. Cook durin g the interview suggested that she both supported Mr. Davis and hel d what they viewed to be “strange and unorthodox religious beliefs” that wer e inconsistent with LDS Church teachings. (Order at 4) The officers report ed their impressions to the COP human resources department, which in turn consulted with Ms. Cook’s ecclesiastical leaders. These leaders advised COP that Ms. Cook had a current-4-

temple recommend, but that they were concerned abou t her nonconforming beliefs and affiliation with Mr. Davis. Approximately one month after the security intervie w, Ms. Cook reaffirmed her belief in the teachings of the LDS Church to in dividuals in the COP human resources department. She also agreed to discontin ue her association with Mr. Davis. COP undertook no disciplinary action at the time. But in February 2002, COP suspended Ms. Cook with pay, pending completionof another templeworthiness check, based on information that Mr. Dav is and his wife were living in Ms. Cook’s residence. COP later permitted her to r eturn to work on probationary status, conditioned on her agreement to refrain fro m communicating with Mr. Davis (except to the extent necessary as his landlo rd) or advancing his views. In August 2002 Ms. Cook filed with the EEOC a charg e of discrimination, alleging age, gender, and religious discrimination. She then filed this pro se federal action in December 2002. Litigation did no t proceed smoothly. Ms. Cook filed numerous motions, accompanied by voluminous, but largely irrelevant, exhibits. Ms. Cook also sought a writ of mandamus seeking recusal of the magistrate judge. Defendants countered with motion s of their own, including a summary judgment motion. From Ms. Cook’s case filings and from proceedings i n a separate lawsuit brought by Mr. Davis against COP, COP decided that Ms. Cook was using her-5-

litigation to advance Mr. Davis’s agenda against th e LDS Church and the individual defendants. In May 2003, COP terminated Ms. Cook’s employment, stating, among other things, that she was discharge d for “engaging in a series of actions demonstrating a lack of fidelity to [her] e mployer and to the President of the Church” and for “us[ing] the processes of the c ourts to make allegations and demand discovery from COP on behalf of a third pers on, Mr. Steve Davis, having nothing to do with [her] own employment relationshi p or claim.” R., Vol. V, doc. 92, ex. L. Ms. Cook then attempted to amend her complaint to a dd a retaliation claim. The district court dismissed the individual defenda nts since they were not employers under Title VII or the ADEA and granted s ummary judgment in favor of COP. The court denied Ms. Cook’s motion to amen d and also her subsequent motions under Fed. R. Civ. P. 60(b) for relief from judgment based on newly discovered evidence and fraud on the court. This appeal followed. In this court Ms. Cook provides a great deal of ext raneous argument concerning LDS Church leaders’ alleged collusion to cast her and Mr. Davis in a bad light. Although Ms. Cook does not clearly stat e her appellate issues, she appears to claim error in the (1) grant of summary judgment on her age, gender, and religious discrimination claims, (2) denial of her motion to amend the2 We note that Ms. Cook does not specifically appeal the dismissal of her

claims against the individual defendants. -6- complaint, and (3) denial of her motions for relief from judgment. She also asserts unfair bias in the part of the district cou rt and the magistrate judge. 2
II. Discussion A. Summary judgment standard Whether COP was entitled to summary judgment is a q uestion of law which we review de novo. Croy v. Cobe Labs., Inc ., 345 F.3d 1199, 1201 (10th Cir. 2003). Though we view all evidence and draw reaso nable inferences in the light most favorable to the nonmoving party, “the nonmova nt must establish, at a minimum, ‘an inference of the existence of each ele ment essential to [her] case.’” Id. (quoting Hulsey v. Kmart, Inc ., 43 F.3d 555, 557 (10th Cir. 1994)). B. Entry of Summary Judgment on Religious Discrim ination Claim Ms. Cook’s claim of religious discrimination is squ arely foreclosed by Supreme Court authority. In Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , the Court recognized that COP is a religious corporation exempt from Title VII’s prohibition aga inst discrimination in employment. 483 U.S. 327, 329-30 (1987); see also id. at 347 (J. O’Connor, concurring) (stating that the LDS Church “had the p ower to put [plaintiff] to a choice of qualifying for a temple recommend or losi ng his job because the-7-

Governmenthad lifted from religious organizations the genera l regulatory burden imposed by [Title VII]”). Ms. Cook attempts to escape the Amos holding by asserting that she maintained a valid temple recommend at all times, b ut that COP continually sought verification from an individual Church leade r who “had no ecclesiastical or geographical jurisdiction [or] subject matter ju risdiction” over her. Aplt. Br. at 7-8. It is well established, however, that the ci vil courts do not play a role in the adjudication of “church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Serbian E. Orthodox Diocese v. Milivojevich , 426 U.S. 696, 714 (1976) (quotation omitted). We conclude that the district court correctly grant ed COP’s motion for summary judgment on the religious discrimination cl aim. C. Entry of Summary Judgment on Gender and Age Di scrimination Claims Because Ms. Cook has no direct evidence of gender o r age discrimination, we evaluate her claims under the three-step burden- shifting framework set forth in McDonnell Douglas and its progeny. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 800-07 (1973); Garrett v. Hewlett Packard Co ., 305 F.3d 1210, 1216 (10th Cir. 2002) (McDonnell Douglas applies to ADEA and Title VII claims). The plaintiff must first establish a prima facie ca se of prohibited employment-8-

action. McCowan v. All Star Maint., Inc. , 273 F.3d 917, 922 (10th Cir. 2001). With a prima facie showing, the burden shifts to th e employer to state a legitimate, “nondiscriminatory reason” for the “adv erse employment action.” Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1212 (10th Cir. 2003). If the employer meets this burden, then summary judgment i s warranted unless the plaintiff can show that there is a genuine issue of material fact as to whether the proffered reasons are pretextual. Id. ADEA and Title VII make it unlawful for an employerto discriminate against any employee because of the employee’s prot ected status. 29 U.S.C. § 623(a); 42 U.S.C. § 2000e-2(a). A plaintiff’s pr ima facie case requires a showing that she (1) belongs to a protected class, (2) suffered an adverse employment action, (3) was qualified for her positi on, and (4) has presented some evidence indicating that the employer intended to d iscriminate against her. Sanchez v. Denver Pub. Schs ., 164 F.3d 527, 531 (10th Cir. 1998); see also Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1137 (10th Cir. 2000). The summary-judgment record is devoid of evidence s upporting any element of Ms. Cook’s prima facie case. At a heari ng, the district court carefully inquired into the basis of her discrimination claim s. When probed, she stated that it “was totally [clear] from the beginning that any body that had the slightest association or acquaintance with Steve Davis or ass isted him in any manner would-9-

be a target [of] C.O.P.” R., Vol. IX at 33-34. In sum, Ms. Cook provided no coherent evidence or argument that COP’s adverse ac tions were attributable to her gender or age rather than her relationship with Mr. Davis. As a consequence, the district court concluded thatMs. Cook failed to establish a prima facie case of illegal discriminat ion, and that even if she had done so, she did not raise evidence of pretext. On appeal, Ms. Cook has not advanced any grounds for disturbing the court’s rul ing and we decline to do so. D. Denial of Motion to Amend Complaint After her discharge, Ms. Cook sought to amend her c omplaint to add retaliation and state-law claims, and to include an other LDS Church defendant. The district court denied her motion based on futil ity, a determination which we review de novo. Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239 (10th Cir. 2001) “A proposed amendment is futile if the compl aint, as amended, would be subject to dismissal for any reason, including thatthe amendment would not survive a motion for summary judgment.” Id. at 139-40. Like her discrimination claims, Ms. Cook’s proposedretaliation claim is analyzed under a burden-shifting framework. See Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). Initially, a plaintif f must show (1) she engaged in protected opposition to discrimination, (2) the emp loyer took an adverse employment action against her, and (3) a causal con nection between the protected-10-

activity and the adverse action. Id. at 1071. A satisfactory demonstration of these three elements “shifts the burden to the empl oyer to produce a legitimate, nondiscriminatory justification for taking the disp uted employment action.” Id. at 1070-71. If the employer can show a nondiscrimi natory reason, the burden returns “to the employee to provide evidence showin g that the employer’s proffered reason is a pretext for discrimination.” Id. The question on pretext is not whether the employer was right, but whether the employer’s belief was genuine or pretextual. Hardy v. S.F. Phosphates Ltd. Co. , 185 F.3d 1076, 1080 (10th Cir. 1999). COP terminated Ms. Cook’s employment approximately five months after she filed her discrimination lawsuit. We have reco gnized that protected conduct closely followed by an adverse employment action may justify an inference of retaliatory motive. See, e.g., Marx v. Schnuck Markets, Inc. , 76 F.3d 324, 329 (10th Cir. 1996). However, there is no bright line in this regard, and we have repeatedly rejected attempts to unduly stretch the “close temporal proximity” needed to establish an inference of retaliation. Id. (citations and quotations omitted). In a similar context we have held that a“four month time lag between [plaintiff’s] participation in protected activity a nd his termination by itself would not be sufficient to justify an inference of causat ion.” Conner v. Schnuck-11-

Markets, Inc ., 121 F.3d 1390, 1395 (10th Cir.1997). Thus, we a re doubtful that the five-month delay in this case justifies an infe rence of retaliatory motive. Nevertheless, even assuming that Ms. Cook has showna causal connection between the protected activity and the adverse acti on, COP countered with the nondiscriminatory reasons of insubordination and it s belief that Ms. Cook used her lawsuit to help Mr. Davis in an attempt to atta ck the LDS Church and its leadership. These proffered reasons dovetail with Ms. Cook’s thesis that she was disciplined because of her relationship with Mr. Davis and not because of any claims of discrimination. The district court did n ot err in determining that Ms. Cook’s proposed amendment was insufficient to d emonstrate pretext and that amendment would be futile. Additionally, we find n o error in the district court’s denial of Ms. Cook’s motion to amend her complaint to add state-law claims and another defendant. E. Denial of Motions for Relief from Judgment Ms. Cook filed two motions for relief from judgmentunder Fed. R. Civ. P. 60(b). The first motion contended that the case sh ould be re-opened based on newly discovered evidence; the second asserted frau d on the part of COP. This court reviews the district court’s denial of her mo tions for abuse of discretion. Joseph v. Terminix Int’l Co ., 17 F.3d 1282, 1285 (10th Cir. 1994).3 Nor was there any error in the district court’s ref using to allow Mr. Davis to testify at the summary-judgment hearing. Ms. Co ok had no absolute right to an evidentiary hearing. A party’s right to be heard o n summary judgment “may be fulfilled by the court’s review of the briefs and s upporting affidavits and materials submitted to the court.” Geear v. Boulder Cmty. Hosp ., 844 F.2d 764, 766 (10th Cir. 1988). -12- A party seeking relief from judgment based on newly discovered evidence must show diligence in the discovery of new, materi al, and noncumulative evidence which would probably produce a different r esult in the case. Id. Here, Ms. Cook’s “newly discovered” evidence consisted entirely of an affidavit from Mr. Davis alleging his beliefs on COP’s practices w ith regard to its employees, its business conduct, and his own excommunication. “Fo r purposes of summary judgment, ‘facts’ must be established by evidence w hich would be admissible at trial.” BancOklahoma Mortgage Corp. v. Capital Title Co. , 194 F.3d 1089, 1101 (10th Cir. 1999). Our review of the proffered affi davit convinces us that it was inadmissible. Its allegations are conclusory, expr ess opinion rather than fact, and show on their face that they were not made from per sonal knowledge. The content of the affidavit could not have affected t he outcome of this case. 3 The fraud contention is similarly unavailing. Ms. Cook asserts that COP lied to the court by claiming that it was a non-dis solved corporation. This allegation, even if true, is immaterial to the reso lution of the case. The denial of the Rule 60(b) motions does not amount to an abuse of discretion.-13-

E. Remaining issues We find no merit in the remaining issues Ms. Cook r aises on appeal. Specifically, we reject her contention that “[a]ll Utah judges should have recused themselves and the case assigned to another state b ecause of bias,” Reply Br. at 24. Adverse rulings alone are insufficient ground s for disqualification of a judge. Lopez v. Behles (In re Am. Ready Mix, Inc.) , 14 F.3d 1497, 1501 (10th Cir. 1994). And the record reflects that both the magis trate judge and district judge treated Ms. Cook with patient consideration and con strued her claims, filings, and argument as liberally as possible.
III. Conclusion Having reviewed the briefs, the record, and the app licable law, we conclude that the district court correctly resolved Ms. Cook ’s claims, and we AFFIRM. The mandate shall issue forthwith.

Entered for the Court

Timothy M. Tymkovich Circuit Judge