UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

MARTHA LOU BRAUN, 

 Plaintiff-Appellant, 

v. 

ST. PIUS X PARISH, an ecclesiastical 

organization; ST. PIUS X, a not for profit 

organization, d/b/a St. Pius School; 

MATTHEW VEREECKE, in his official 

capacity, 

 Defendants-Appellees. 

No. 11-5157 

(D.C. No. 4:09-CV-00779-GKF-TLW) 

(N.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before KELLY, O’BRIEN, and MATHESON, Circuit Judges. 

 

 Martha Lou Braun appeals from the entry of summary judgment in favor of 

defendants on her claim of age discrimination.1

 But the defendants offered 

 

*

 After examining the briefs and appellate record, this panel 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 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. 

1

 Our jurisdiction derives from 28 U.S.C. § 1291, 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 4, 2013

Elisabeth A. Shumaker 

Clerk of Court
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compelling evidence of a nondiscriminatory reason for her termination, which she 

failed to discredit by evidence establishing pretext. We affirm. 

I. BACKGROUND

 Braun was a fifth grade teacher at St. Pius X School (St. Pius). St. Pius is a 

Catholic school operated by defendant St. Pius X, a Catholic church within defendant 

St. Pius X Parish of the Roman Catholic Diocese of Tulsa, Oklahoma. Braun is 

Episcopalian, and she had taught at St. Pius since 1988 under a series of one-year 

contracts.2

Defendant Matthew Vereecke was the principal of St. Pius from approximately 

July 1, 2007, until June 30, 2010. He was 23 years old when hired. In April of each 

year, the principal of St. Pius makes a recommendation to the pastor about the 

renewal of teacher contracts. The pastor then approves or rejects the 

recommendation. In April 2008, Vereecke recommended to the pastor, Father 

Michael Knipe, that Braun’s contract not be renewed. Knipe approved the 

recommendation. On April 25, Vereecke informed Braun her contract would not be 

renewed. According to Braun’s testimony, Vereecke told her the school was “going 

in a new direction” and it was “not about [her.]” Aplt. App., Vol. I at 62. Braun was 

64 years old at the time. Her replacement for the 2008-09 school year, Katie 

Roberson, was in her twenties, Catholic, and a member of the Parish. Roberson had 

 

2

 Braun’s 2007-08 contract reads “[t]his contract shall be renewed only upon the 

written agreement of the parties.” Aplt. App., Vol. I at 375. 
- 3 - 

been teaching middle-school grades (sixth through eighth) at St. Pius. Additionally, 

Braun was not interviewed or hired for an open position teaching middle-school 

science at St. Pius for the 2008-09 school year. The school hired Katie Blum for that 

position. Like Roberson, Blum was in her twenties, Catholic, and a parishioner. 

After filing a charge with the Equal Employment Opportunity Commission 

(EEOC) and receiving a right-to-sue letter, Braun brought this action. She claimed 

the nonrenewal of her contract and the failure to interview or hire her for the 

middle-school science-teacher position violated the Age Discrimination in 

Employment Act, 29 U.S.C. §§ 621-634 (ADEA). She also claimed age 

discrimination in violation of Oklahoma public policy, commonly known as a Burk

tort claim,3

see Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989), and a claim of 

religious discrimination. The latter claims are not before us.4

The parties filed cross motions for summary judgment. Because Braun lacked 

direct evidence of age discrimination, the district court analyzed the ADEA claim 

under the familiar burden-shifting framework outlined in McDonnell Douglas Corp. 

 

3

 In Burk, the Oklahoma Supreme Court recognized a tort claim for at-will 

employees terminated in violation of public policy. 770 P.2d at 29. 

4

 Braun’s opening brief contains only one reference to her Burk claim, see Aplt. 

Opening Br. at 4, and no argument as to the impropriety of summary judgment with 

respect to it. She has forfeited our consideration of the Burk claim. Bronson v. 

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). She also brought a claim of 

religious discrimination. The district court decided religious institutions, such as 

these, are permitted to consider religion in employment decisions. See Aplt. Opening 

Br. at 4, n.1. Braun has not appealed from that ruling. 
- 4 - 

v. Green, 411 U.S. 792, 802-04 (1973). It decided Braun had established a prima 

facie case of discrimination, but defendants had proffered a legitimate, 

nondiscriminatory reason for not renewing her contract, namely, parental complaints. 

Turning to whether Braun could show that reason was pretextual, the court 

first concluded Knipe, not Vereecke, was the sole decision maker. Because Knipe 

had approved Braun’s two prior contract renewals, the court afforded defendants a 

strong inference against pretext under the “same actor” theory. See Antonio v. Sygma 

Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (permitting such an inference 

where an employee is “hired and fired by the same person within a relatively short 

time span” (internal quotation mark omitted)). It then concluded Braun had 

presented no evidence of age discrimination by Knipe or established Knipe to be the 

“cat’s paw” for Vereecke’s allegedly discriminatory acts sufficient to establish a 

subordinate-bias claim. See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 

484 (10th Cir. 2006) (describing the “cat’s paw” theory of discrimination as “a 

situation in which a biased subordinate, who lacks decisionmaking power, uses the 

formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory 

employment action”). 

In the alternative, the court determined Braun had not shown pretext even if 

Knipe was not the sole decision maker. It rejected Braun’s argument that Vereecke’s 

handling of parental complaints about her deviated from both the school’s written 

procedures and his own unwritten policy for handling parental complaints. Finally, it 
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determined Braun’s claim of differential treatment with respect to three younger 

teachers failed because those teachers were not valid comparators. Accordingly, it 

entered summary judgment for the defendants and denied Braun’s motion for 

summary judgment. This appeal followed. 

II. DISCUSSION 

“We review a district court’s grant of summary judgment de novo, applying 

the same legal standard used by the lower court.” Jones v. Okla. City Pub. Sch., 

617 F.3d 1273, 1277 (10th Cir. 2010). Summary judgment is proper “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). “We examine the 

factual record and reasonable inferences therefrom in the light most favorable to 

[Braun].” Jones, 617 F.3d at 1277 (internal quotation marks omitted). 

Our review is limited to Braun’s ADEA claim. See supra at 3 n.4. The ADEA 

prohibits employers from “discriminat[ing] against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such 

individual’s age.” 29 U.S.C. § 623(a)(1). “[T]o succeed on a claim of age 

discrimination, a plaintiff must prove by a preponderance of the evidence that her 

employer would not have taken the challenged action but for the plaintiff’s age.” 

Jones, 617 F.3d at 1277. 
- 6 - 

The district court was correct. Braun failed to establish pretext. That is true 

whether or not we apply the “same actor” inference and/or credit her “cat’s paw” 

argument. 

In arguing pretext Braun claims she was “treated differently from other 

similarly situated employees who violated work rules of comparable seriousness.” 

Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997). She has the burden 

to show other employees were similarly situated. Riggs v. AirTran Airways, Inc., 

497 F.3d 1108, 1121 n.4 (10th Cir. 2007). In arguing she met her burden, Braun 

points to Vereecke’s treatment of Roberson and Blum, both of whom were in their 

twenties at the time, and a third teacher, Chrissy Donatucci, who was 39. All three 

were the subjects of parental complaints but all three were allowed to continue 

teaching. However, as the district court pointed out, Vereecke received two parental 

complaints about Braun in April 2008 that “were unique in scope and consequence.” 

Braun v. St. Pius X Parish, 827 F. Supp. 2d 1312, 1325 (N.D. Okla. 2011). One 

parent told Vereecke her oldest child had a negative experience with Braun sufficient 

for her to allow one of her younger children to decide whether to transfer to another 

school for fifth grade in the 2007-08 school year. That child chose to transfer. The 

parents of another child, who had also been Braun’s pupil, told Vereecke they were 

considering moving their second child to another school for the 2008-09 school year. 

They were motivated by a desire to avoid having Braun as his fifth-grade teacher. 
- 7 - 

Significantly, none of the three offered comparators received such serious complaints 

and, a fortiori, were not similarly situated. 

The only written documentation of these complaints are affidavits prepared in 

support of defendants’ summary judgment motion. Braun complains about them, 

implying the complaints were not actually made as claimed, or at least when claimed. 

That is because, according to Vereecke’s testimony, any meeting he had with parents 

would be listed on his planning calendar, but his calendar failed to mention either of 

these complaining parents. However, evidence of pretext “defeats summary 

judgment only if it could reasonably lead the trier of fact to infer a discriminatory 

motive.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th Cir. 

2007). In essence, we are asked to assume the defendants procured a perjured 

nonparty affidavit5

 and Vereecke’s testimony is unworthy of belief. But Braun has 

not pointed to any policy, written or otherwise, requiring contemporaneous written 

documentation of parental complaints. Nor can we view Vereecke’s mere failure to 

record a meeting on his calendar as giving rise to a reasonable inference of 

discrimination; there is no evidence from which a reasonable juror could conclude 

that these parents did not inform Vereecke of their concerns about Braun. She did 

not provide deposition testimony from the complaining parents, which might have 

put flesh on her bare-bones accusations. 

 

5

 Our review of the record reveals an affidavit from the parent who actually took 

her child out of St. Pius but no affidavit from the parents who threatened to do so. 
- 8 - 

Braun’s claim of differential treatment by Vereecke lacks record support. He 

recommended nonrenewal of Roberson’s contract for the 2008-09 school year 

because she was not certified to teach the middle-school literature class she had been 

teaching. Knipe vetoed that recommendation; he and Vereecke then decided to move 

Roberson into Braun’s vacated fifth-grade slot for that school year, a position for 

which she was certified. Vereecke also recommended nonrenewal of Donatucci’s 

contract, but after discussing it with Knipe, they decided to renew her contract. Blum 

did not start teaching at St. Pius until the 2008-09 school year. According to 

Vereecke’s testimony, he wanted to immediately terminate her employment 

following an incident of improper text messaging and telephone contact with male 

students in September 2008. Knipe decided she should be disciplined instead. 

Ultimately, eight months later, her contract was renewed for the following year. 

Because Vereecke recommended nonrenewal or immediate termination of each of the 

putative comparators, Braun has not shown disparate age treatment at Vereecke’s 

hands. Importantly, Braun has not suggested Knipe’s decision to overrule 

Vereecke’s recommendations as to Roberson, Donatucci, and Blum shows a bias 

toward younger teachers. To the contrary, she “has always maintained that Vereecke 

was the decision-maker with respect to the non-renewal of Ms. Braun’s teaching 

contract based upon her age.”6

 Aplt. Reply Br. at 5. 

 

6

 Roberson, Donatucci, and Blum were all Catholic and members of the St. Pius 

X Parish, but Braun was Episcopalian and not a parishioner. Knipe’s testimony was 

(continued) 
- 9 - 

Braun claims pretext can be inferred from Vereecke’s inconsistent reasons for 

not renewing her contract. When he told Braun her contract would not be renewed, 

he allegedly said it had nothing to do with her but was because the school was going 

in a different direction. But after Braun filed her EEOC discrimination charge, 

Vereecke said the reason for non-renewal was due to parental complaints—the two 

discussed above and three others. One of the other parental complaints related to 

Braun having asked a parent if her child had been tested for a developmental 

disorder. Another parent complained of Braun’s failure to comply with a plan 

developed to assist his son with difficulties in spelling and vocabulary. According to 

that complaint, on one occasion she did not give his son a list of vocabulary words 

ahead of the weekly test. The third complaint was about Braun’s alleged failure to 

sufficiently require students to use a daily planner and her unresponsiveness to the 

parents’ attempts to communicate their dissatisfaction to her. 

The claimed inconsistencies in Vereecke’s explanations are not of the sort 

giving rise to an inference of discrimination. “A plaintiff shows pretext by 

demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer’s proffered legitimate reasons for its action that a 

reasonable factfinder could rationally find them unworthy of credence and hence 

 

clear: whether a teacher was Catholic and a parishioner was a factor in his 

decision-making. Those ecumenical concerns further call into question whether 

those individuals are valid age discrimination comparators at least with respect to his 

decision-making (which was final and is not directly challenged). 
- 10 - 

infer that the employer did not act for the asserted non-discriminatory reasons.” 

Swackhammer, 493 F.3d at 1167 (internal quotation marks omitted). But a change in 

an employer’s asserted reason for an employment action does not give rise to an 

inference of discrimination where the new reason is supported by the evidence. 

Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1311 (10th Cir. 2005). Here, 

Vereecke’s claimed basis for his termination recommendation—parental 

complaints—has record support. Moreover, Vereecke testified to not having given 

Braun a reason when he said her contract would not be renewed. That is because she 

was “very angry.” Aplt. App., Vol. I at 130. At most, Braun has “‘created only a 

weak issue of fact as to whether the employer’s reason was untrue and there [is] 

abundant and uncontroverted independent evidence that no discrimination had 

occurred.’” Swackhammer, 493 F.3d at 1168 (quoting Reeves v. Sanderson Plumbing 

Prods., Inc., 530 U.S. 133, 148 (2000)). In such a situation, it is not “permissible for 

the factfinder to infer discrimination from evidence that the employer’s explanation 

is unworthy of belief.” Id.

Finally, Braun points to Vereecke’s failure to follow his own unwritten policy 

in Braun’s case, namely, informing teachers of parental complaints and giving them a 

chance to improve.7

 Defendants claim Vereecke discussed or Braun had an 

 

7

 On appeal, Braun summarily claims Vereecke did not follow the school’s 

written grievance procedure, but she has not sufficiently developed an argument on 

the point. Accordingly, she has forfeited our consideration of the issue. See 

Bronson, 500 F.3d at 1104. 
- 11 - 

awareness of the three complaints made by parents of children in Braun’s 2007-08 

class, and Braun had at least an implicit chance to improve. We need not sort out this 

dispute because, even assuming Vereecke failed to follow his own policy, that is 

insufficient, in these circumstances, for a reasonable juror to infer age discrimination 

was the but-for motive behind his recommendation not to renew Braun’s contract.8

 

Instead, despite his alleged mishandling of these parental complaints, Vereecke’s 

consideration of them in making his recommendation falls into a category of 

employment decisions this court will not second-guess “even if it seems in hindsight 

that the action taken constituted poor business judgment.” Riggs, 497 F.3d at 1119 

(internal quotation mark omitted). “[O]ur role is to prevent intentional 

discriminatory hiring practices, not to act as a ‘super personnel department.’” Id.

(internal quotation mark omitted). The evidence of Vereecke’s failure to follow his 

own policy is insufficient for a reasonable factfinder to conclude, based on a 

preponderance of the evidence, that age was the “but for” cause of the decision to not 

renew her contract. See Jones, 617 F.3d at 1277 (explaining that “to succeed on a 

claim of age discrimination, a plaintiff must prove by a preponderance of the 

 

8

 Contrary to Braun’s argument, whether Vereecke treated the other teachers 

differently with regard to parental complaints (by informing them of the complaints 

and giving them a chance to improve) simply cannot, in the context of this case, rise 

to a reasonable inference of age discrimination. That factor, even in combination 

with the other alleged similarities among them and Braun, is insufficient to meet her 

burden of showing the comparators were similarly situated. 
- 12 - 

evidence that her employer would not have taken the challenged action but for the 

plaintiff’s age”). 

III. CONCLUSION 

The judgment of the district court is affirmed. The parties’ joint motion to seal 

the appellate briefs, provisionally granted by the Clerk’s office, will be vacated 

unless, within twenty days, the parties specifically identify those parts of the briefs 

they want sealed and explain why sealing is appropriate in light of the published 

district court opinion.

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge