* This order and judgment is not binding precedent, except under the doctrines of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.

**Honorable Nathaniel R. Jones, Senior Circuit Judge of the United States Court of

Appeals for the Sixth Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 2/16/96

TENTH CIRCUIT

VICKY GOOCH, 

Plaintiff - Appellant, No. 95-3075

v. (D.C. No. 93-CV-1388)

MEADOWBROOK HEALTHCARE

SERVICES OF FLORIDA, INC.;

MEADOWBROOK MANAGEMENT

COMPANY, INC.; and DIANE

LANDRATH-SCHMIDT, 

(District of Kansas)

Defendants - Appellees.

 

ORDER AND JUDGMENT*

Before ANDERSON, McKAY and JONES,** Circuit Judges.

Plaintiff Vicky Gooch was employed by the Defendants Meadowbrook Healthcare

Services of Florida, Inc., and Meadowbrook Management Company, Inc., as the facility

administrator for their Sedgwick Convalescent Center. Defendant Diane Landrath-
2

Schmidt, a regional vice president, was Plaintiff’s supervisor during the time Plaintiff

worked for the Meadowbrook Defendants. Plaintiff was terminated by Defendants while

on maternity leave. Plaintiff filed suit alleging that the Defendants discriminated against

her on the basis of her gender and pregnancy in terminating her employment and that

Defendants breached an alleged employment contract. The district court granted the

Defendants summary judgment as to all of Plaintiff’s claims. 

Plaintiff raises three issues on appeal: (1) whether the Plaintiff presented a prima

facie case of gender or maternity discrimination and whether the Defendants’ reasons for

termination were pretextual; (2) whether the trial court improperly decided disputed facts

in favor of the moving party in granting summary judgment to the Defendants; and, (3)

whether Plaintiff had a contract with the Defendants.

Our review of summary judgment is de novo. Jensen v. Redevelopment Agency of

Sandy City, 998 F.2d 1550, 1555 (10th Cir. 1993). In our review, we “must view the

evidence presented through the prism of the substantive evidentiary burden.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Summary judgment is appropriate “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). 
3

The party opposing summary judgment must identify sufficient evidence that would

require submission of the case to a jury. Anderson, 477 U.S. at 249-50. An issue of fact

is “genuine” if the evidence is significantly probative; an issue of fact is “material” if

proof of it might affect the outcome of the lawsuit. Id. at 248-49. The findings of the

trial judge in a Title VII case, however, are judged under a clearly erroneous standard. 

Long v. Laramie County Community College Dist., 840 F.2d 743, 749 (10th Cir. 1988)

(citing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).

Plaintiff’s Discrimination Claims

A plaintiff may prove disparate treatment by using either direct or indirect

evidence. If indirect evidence is used, then we apply the burden-shifting analysis set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). The

plaintiff bears the initial burden of establishing a prima facie case of discrimination in

Title VII actions. Green, 411 U.S. at 802. A presumption of discrimination arises once

the plaintiff establishes a prima facie case, but the defendant can rebut the presumption by

producing some evidence that it had legitimate, nondiscriminatory reasons for its action. 

Id.; Sorensen v. City of Aurora, 984 F.2d 349, 352 (10th Cir. 1993). “At the summary

judgment stage, it then becomes the plaintiff’s burden to show that there is a genuine

dispute of material fact as to whether the employer’s proffered reason for the challenged
4

action is pretextual--i.e. unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441, 451

(10th Cir. 1995). “[T]he Title VII plaintiff at all times bears the ‘ultimate burden of

persuasion.’” St. Mary’s Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2749 (1993).

In establishing a prima facie case of disparate treatment gender discrimination, Ms.

Gooch must show: (1) she belonged to the protected class; (2) she was adversely affected

by the employer’s action; (3) she was qualified for the position; and, (4) she was treated

less favorably than her male counterparts. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373,

1380 (10th Cir. 1994). The district court found that Ms. Gooch failed to establish a prima

facie case of gender discrimination. We disagree. Ms. Gooch belongs to a protected

class by being female, and she was obviously adversely affected by being terminated. 

She has provided sufficient evidence of her qualifications: she was licensed and she had

a favorable prior work history in the same position at another institution. To show

disparate treatment, Plaintiff points to the fact that she was replaced by a male. The

Supreme Court explained in Burdine, “The burden of establishing a prima facie case of

disparate treatment is not onerous.” 450 U.S. at 253. The district court was clearly

erroneous in failing to find that Plaintiff established a prima facie case of disparate

treatment gender discrimination. 

The district court correctly found, however, that even if Plaintiff had presented a
5

prima facie case, the Defendants in this case rebutted the presumption of discrimination

by producing some evidence that it had legitimate, nondiscriminatory business reasons for

its treatment of Plaintiff. Defendants provided an affidavit stating that the job was

offered to and turned down by a female before it was offered to a male. [Appellees’ App.

at 269]. Defendants also provided evidence that they discharged Plaintiff because of her

mismanagement of the Defendants’ facility. [Appellees’ App. at 162]. The record is

replete with evidence of mismanagement, culminating with a threat by the State of

Kansas not to relicense the Defendants’ facility because of its deficiencies. 

After the employer offers a facially nondiscriminatory reason for its employment

decision at the summary judgment stage, the burden shifts to the plaintiff to show that

there is a genuine dispute of material fact as to whether the employer’s proffered reason

was pretextual. Randle, 69 F.3d at 451. Plaintiff did not rebut Defendants’ claim that a

female turned down the job; Plaintiff only stated that she has no knowledge as to whether

a female turned down the position. Plaintiff provided evidence that the deficiencies at

Defendants’ facility were beyond her control, but she failed to go the next step by

showing that a material fact exists as to whether Defendants’ reasons were pretextual. 

While it is disputable whether the deficiencies were Plaintiff’s fault, she has not shown

that there is a genuine issue of material fact that the employer’s proffered reasons were
1

 As we noted in Randle, a plaintiff can rebut the defendant’s nondiscriminatory

reason on summary judgment by showing that the defendant’s reason is unworthy of

belief. 69 F.3d at 452 n.17.

6

pretextual.1

 Inherent in the allocation of Plaintiff’s burden is evidence demonstrating a

causal connection between the conduct for which Plaintiff seeks relief and her protected

status under Title VII. Burdine, 450 U.S. at 256. Plaintiff failed to come forward with

facts showing a genuine dispute of material fact by which a jury could find by a

preponderance of the evidence that she was treated differently because of her gender.

Plaintiff attempted to establish disparate treatment by showing how the Defendants

have treated a similarly situated male employee in another incident. Ms. Gooch has stated

in an affidavit that Iraj Alipour, a male administrator at a Meadowbrook facility in

Wichita, was not terminated in 1994 after being cited in a survey for deficiencies more

serious than those at the Sedgwick facility. [Appellant App. at 297]. Citing a hostile

work environment discrimination case, Purrington v. University of Utah, 996 F.2d 1025,

1029 (10th Cir. 1993), Plaintiff asserts that incidents involving other employees are

relevant to whether discrimination has occurred. In order to prove disparate treatment, a

plaintiff must show more than accidental or sporadic incidents of discrimination; she must

show that “discrimination was the company’s standard operating procedure--the regular

rather than the unusual practice.” International Bhd. of Teamsters v. United States, 431
7

U.S. 324, 336 & n.16 (1977). While Plaintiff is correct that other incidents of

discrimination are relevant, Plaintiff failed to show a genuine dispute of material fact

existed in regard to whether the Defendants’ regular practice was to treat women

disparately. Thus, the district court correctly granted the Defendants summary judgment.

Plaintiff claims the district court clearly erred in holding that she failed to set forth

a prima facie case for pregnancy discrimination. The Pregnancy Discrimination Act

amended Title VII to bring the condition of pregnancy within the definition of sex

discrimination. A pregnancy discrimination claim is analyzed the same as other Title VII

claims. EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 947 (10th Cir.), cert.

denied, 506 U.S. 817 (1992).

As with Plaintiff’s gender discrimination claim, Ms. Gooch can easily establish the

first three elements of a prima facie case for pregnancy discrimination: She belongs to a

protected class by being pregnant; she was obviously adversely affected by being

terminated; and, Ms. Gooch provided sufficient evidence of her qualifications. The fact

that Plaintiff was terminated while on maternity leave completed her prima facie case of

pregnancy discrimination.

As with Plaintiff’s gender discrimination claim, Defendants rebutted the
8

presumption of pregnancy discrimination by producing some evidence that they

discharged the Plaintiff because of her mismanagement. Plaintiff, who began her

maternity leave in mid-August 1992, bases her claim on the mere fact that she happened

to be on maternity leave when she was terminated. The decision to terminate Plaintiff

was the result of a meeting on September 24, 1992, between Mr. L. P. Herzog, President

and Chief Operations Officer of Meadowbrook, Mr. Jeff Pudwill, Meadowbrook director

of human resources, Ms. Maddy D’Heilly, director of professional resources, and Ms.

Landrath-Schmidt. At the meeting, they concluded that the continued employment of

Plaintiff posed an unacceptable risk to the health and safety of the residents and to the

license of the Sedgwick facility. Plaintiff was notified by letter dated September 24,

1992, of the termination of her employment. The letter stated that she was being

terminated based on “1) Condition of the facility on August 1, 1992; 2) State Survey

deficiencies of 1991; and 3) State survey results of 1992.” [Appellant’s Br. at 12]. 

Plaintiff failed to show that there is a genuine dispute of material fact that the

Defendants’ reasons were a pretext for discrimination. Plaintiff has provided no evidence

that she was treated less favorably than another, nonpregnant employee under similar

conditions.

Plaintiff argues that the trial court ignored the affidavit of the nurse at the

Sedgwick facility who alleges that she was denied a promotion because of her pregnancy. 
2

 The Pregnancy Discrimination Act “makes clear that it is discriminatory to treat

pregnancy-related conditions less favorably than other medical conditions.” Newport

News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983). Plaintiff

provided no evidence that Defendants treated her differently from employees with other

medical conditions.

9

Ms. Gooch was terminated in September 1992, while the pregnancy discrimination

alleged in the affidavit occurred in November 1994. The 1994 incident occurred so long

after Ms. Gooch’s termination that it is not relevant to the Defendants’ treatment of Ms.

Gooch. The decision to terminate Plaintiff was made by Mr. Herzog, Mr. Pudwill, Ms.

D’Heilly, and Ms. Landrath-Schmidt in 1992; whereas the 1994 incident of purported

pregnancy discrimination was at the hands of Plaintiff’s male replacement--a person who

was not employed by Defendants at the time of Plaintiff’s termination. Plaintiff did not

present evidence showing that a genuine dispute of material fact exists by which a jury

could find by a preponderance of the evidence that she was treated less favorably than a

nonpregnant employee under similar conditions.2

 

Disputed Facts Decided by the Trial Court

Plaintiff asserts that the trial court violated the standard for summary judgment by

deciding controverted facts in favor of the Defendants, instead of in favor of the party

opposing the motion. 
3

 Plaintiff testified in her deposition:

[M]y contractions were not that severe at that time. I would have stayed

10

The standard for summary judgment is whether there exists a genuine issue as to

any material fact. Fed. R. Civ. P. 56(c). Disputes over immaterial facts are insufficient to

withstand summary judgment. An issue of fact is “material” if proof of it might affect the

outcome of the lawsuit. Anderson, 477 U.S. at 248.

First, Plaintiff claims the trial court ignored Plaintiff’s affidavits while using

language found in Defendants’ documents. This general complaint fails to explain how

this amounts to the court deciding material facts in dispute against the non-moving party.

Plaintiff asserts the trial court improperly decided facts concerning a meeting

between Plaintiff and Defendant Landrath-Schmidt on August 13, 1992. The court stated,

“When they arrived, Gooch, who was pregnant, told them that she was in pain and having

frequent contractions. Landrath-Schmidt asked Gooch if she should not be at home or in

the hospital.” [Appellant’s App. at 73-74 (Dist. Ct. Op. at 3-4)]. Plaintiff disputes this

fact, claiming that Defendant Landrath-Schmidt insisted on Plaintiff staying at work to

write up the budget. [Appellant’s Br. at 26]. Not only is Plaintiff’s assertion contradicted

by her own statements in her deposition, but she has never alleged that she asked to leave

work because of her pregnancy.3

 Plaintiff has not linked her pregnancy to her claim that
home, but they were still very early, very mild, and it was very important to

me to meet my new supervisor and to find out where I stood and what to do. 

And all I could get from her [Ms. Landrath-Schmidt] in any kind of

response was you should be home, you must be exhausted.

[Appellee’s App. at 346].

11

Defendants forced her to stay at work. In short, Plaintiff does not explain how this fact is

material to her discrimination claim.

Next, Plaintiff claims the trial court accepted the Defendants’ allegations that fire

drills were not conducted, despite Plaintiff’s affidavits disputing this fact. Plaintiff has

only shown that this fact is disputed. Even if a genuine dispute exists, Plaintiff has not

explained how this fact would affect the outcome of Plaintiff’s gender or maternity

discrimination claims.

Plaintiff also claims the trial court ignored the affidavit of a nurse who was

allegedly discriminated against by Meadowbrook because of her pregnancy. In actuality,

the trial court stated that “Gooch cites the affidavit of a nurse at the Center who infers

that she was not allowed a promotion on the basis of her pregnancy. But this event

occurred several years after Gooch’s termination, and there is nothing linking it to the

action relating to Gooch.” [Appellant’s App. at 78 (Dist. Ct. Op. at 8)]. Plaintiff also

states that the trial court ignored evidence of a male administrator who was retained
12

despite being cited for deficiencies more serious than those for which the Sedgwick

facility was cited. Incidents involving other employees are relevant. However, these two

purported instances of discrimination--occurring more than two years after Plaintiff’s

termination--were not material facts establishing gender or pregnancy discrimination.

It is the Plaintiff’s burden, in responding to Defendants’ summary judgment

motion, to go beyond the allegations in her complaint and designate specific facts which

would establish a genuine issue for trial concerning her allegations of disparate treatment. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). While the district court may have

decided disputed facts against the nonmoving party, those facts were not shown to be

material to Plaintiff’s Title VII claims. 

Plaintiff’s Employment Contract Claim

Plaintiff claims she had a contract of employment with the Meadowbrook

Defendants. In support of this contract theory, she cites to a letter offering her

employment as administrator for Meadowbrook Manor of Sedgwick, to Meadowbrook’s

maternity leave policy, and to Meadowbrook’s employee termination policy.

Plaintiff’s claim is based on supplemental jurisdiction, so it is controlled by Kansas

law. The letter cited by Plaintiff contains no statements regarding duration of
13

employment or limits on termination solely for cause. [Appellant’s App. at 21-22]. Thus,

no express contract of employment existed between the parties.

Under some circumstances, implied contracts of employment are recognized in

Kansas as an exception to the employment-at-will doctrine. Brown v. United Methodist

Homes, 815 P.2d 72, 81 (Kan. 1991). In Morriss v. Coleman Co., the Kansas Supreme

Court explained:

“Where it is alleged that an employment contract is one to be based

upon the theory of ‘implied in fact,’ the understanding and intent of the

parties is to be ascertained from several factors which include written or

oral negotiations, the conduct of the parties from the commencement of the

employment relationship, the usages of the business, the situation and

objective of the parties giving rise to the relationship, the nature of the

employment, and any other circumstances surrounding the employment

relationship which would tend to explain or make clear the intention of the

parties at the time said employment commenced.”

738 P.2d 841, 848-49 (Kan. 1987) (quoting Allegri v. Providence-St. Margaret Health

Center, 684 P.2d 1031 (Kan. Ct. App. 1984) (syllabus ¶5)). In Brown, the Kansas

Supreme Court explained that Morriss “recognizes an implied obligation on the employer

to not terminate an employee arbitrarily where a policy or program of the employer, either

express or implied, restricts the employer’s right of termination at will.” 815 P.2d at 81. 

The two policies cited by Plaintiff, however, were not promulgated until after Plaintiff’s

employment with the Meadowbrook Defendants was terminated. [Appellant’s App. at

284, 285]. Therefore, these policies cannot be the basis of an implied contract between
14

the parties since they were not in effect at the time of Plaintiff’s employment with the

Defendants. Additionally, the employee termination policy merely requires notification

of the regional vice president before an employee can be terminated; here, Defendant

Landrath-Schmidt, the regional vice president was involved in the termination decision. 

Thus, even if this policy were in effect, it is readily apparent that the Defendants did not

violate the policy. Nor can it be said that the Defendants arbitrarily terminated Plaintiff’s

employment. 

Plaintiff argues that it is improper to decide on summary judgment whether an

implied employment contract existed because it is a factual issue upon which reasonable

minds could easily reach different conclusions. [Appellant’s Br. at 34]. We reject this

argument here because the facts cut so clearly against the existence of an implied

employment contract under Kansas law. Accord Farthing v. City of Shawnee, Kan., 39

F.3d 1131, 1138 (10th Cir. 1994). Plaintiff has failed to show any evidence of an implied

contract through the conduct of the parties, or any intent or understanding on behalf of 

the parties to enter into a contract of employment. Plaintiff even acknowledged that she

could have severed her employment relationship with the Meadowbrook Defendants at

any time. [Appellees’ App. at 261-64, 349]. Thus, the undisputed facts support the entry

of summary judgment as a matter of Kansas law for the Defendants in regard to

Plaintiff’s implied breach of contract claim.
15

AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge