UNITED STATES CO URT 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 en try of summary judgment in favor of defendants on her claim of age discrimination. 1 But the defendants offered

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.
1 Our jurisdiction derive s from 28 U.S.C. § 1291, FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - compelling evidence of a nondiscriminatory reason for her termination, which she failed to discredit by evidence es tablishing 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 de fendant St. Pius X, a Catho lic church within defendant St. Pius X Parish of the Roman Catholic Diocese of Tulsa, Oklahoma. Braun is Episcopalian, and she had taught at St. Pi us since 1988 under a series of one-year

contracts. 2 Defendant Matthew Vereecke was the prin cipal 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, Vere ecke recommended to the pastor, Father Michael Knipe, that Braun’s contract not be renewed. Knipe approved the recommendation. On April 25, Vereecke in formed Braun her contract would not be renewed. According to Br aun’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 replaceme nt for the 2008-09 school year, Katie Roberson, was in her twenties, Catholic, a nd a member of the Parish. Roberson had

2 Braun’s 2007-08 contract reads “[t]hi s 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 th rough eighth) at St. Pius. Additionally, Braun was not interviewed or hired fo r an open position t eaching middle-school science at St. Pius for the 2008-09 school year . The school hired Katie Blum for that position. Like Roberson, Bl um was in her twenties, Ca tholic, and a parishioner. After filing a charge with the Equa l Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter, Braun brought this action. She claimed the nonrenewal of her contract and the fa ilure to interview or hire her for the middle-school science-teac her position violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-63 4 (ADEA). She also claimed age discrimination in violation of Oklahom a 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 la tter claims are not before us. 4 The parties filed cross motions for summ ary judgment. Because Braun lacked direct evidence of age discrimination, th e district court anal yzed the ADEA claim under the familiar burden-shif ting framework outlined in McDonnell Douglas Corp.

3 In Burk , the Oklahoma Supreme Court rec ognized a tort cl aim for at-will employees terminated in violation of public policy. 770 P.2d at 29.
4 Braun’s opening brief contai ns only one reference to her Burk claim, see Aplt. Opening Br

. at 4, and no argument as to the im propriety of summary judgment with respect to it. She has forfeit ed our consideration of the Burk claim. Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 200 7). She also brought a claim of religious discrimination. The district c ourt 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 de fendants had proffe red a legitimate, nondiscriminatory reason for not renewing her contract, na mely, parental complaints. Turning to whether Braun could show that reason wa s pretextual, the court first concluded Knipe, not Vereecke, was the sole decision maker. Because Knipe had approved Braun’s two prio r contract renewals, the c ourt afforded defendants a strong inference against pretext un der 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 th e same person within a relatively short time span” (internal quotation mark omit ted)). It then concluded Braun had presented no evidence of age discrimination by Knipe or es tablished Knipe to be the “cat’s paw” for Vereecke’s al legedly 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) (describ ing 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 deliber ate scheme to trigger a discriminatory employment action”). In the alternative, the c ourt determined Braun had not shown pretext even if Knipe was not the sole decision maker. It rejected Braun’s ar gument that Vereecke’s handling of parental compla ints about her deviated fr om both the school’s written procedures and his own unwritten policy for ha ndling parental compla ints. Finally, it- 5 - determined Braun’s claim of differential treatment with respect to three younger teachers failed because those te achers were not valid comparators. Accordingly, it entered summary judgment for the defe ndants and denied Braun’s motion for summary judgment. Th is appeal followed. II. DISCUSSION “We review a district court’s grant of summary judgment de novo, applying the same legal standard us ed 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. Ci v. P. 56(a). “We examine the factual record and reasonable inferences th erefrom 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 privil eges 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 challenge d action but for the plaintiff’s age.”
Jones , 617 F.3d at 1277.- 6 - The district court was correct. Braun failed to establish pretex t. 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 diff erently 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 we re similarly situated. Riggs v. AirTran Airways, Inc. , 497 F.3d 1108, 1121 n.4 (10t h Cir. 2007). In arguing sh e 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 Donatu cci, who was 39. All three were the subjects of parental complaints but all three were a llowed to continue teaching. However, as the di strict court pointed out, Vere ecke 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 ol dest child had a negative expe rience 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 y ear. 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 anot her 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 comp arators 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’ su mmary judgment motion. Br aun 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 m eeting he had with parents would be listed on his planni ng calendar, but his calendar fa iled 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 in fer a discriminatory motive.” Swackhammer v. Sprint/United Mgmt. Co. , 493 F.3d 1160, 1168 (10th Cir. 2007). In essence, we are asked to as sume the defendants procured a perjured nonparty affidavit 5 and Vereecke’s testimony is unwor thy of belief. But Braun has not pointed to any policy, written or ot herwise, requiring cont emporaneous written documentation of parental complaints. Nor can we view Vereecke’ s mere failure to record a meeting on his calendar as givi ng rise to a reasonable inference of discrimination; there is no evidence from which a reasona ble juror could conclude that these parents did not in form Vereecke of their con cerns about Braun. She did not provide deposition testimony from the co mplaining parents, which might have put flesh on her bare-bones accusations.

5 Our review of the record reveals an affidavit from the pa rent who actually took her child out of St. Pius but no affidavit from the parents who th reatened to do so.- 8 - Braun’s claim of differential treatment by Vereecke lacks reco rd support. He recommended nonrenewal of Roberson’s contract for the 2008-09 school year because she was not certified to teach the middle-school lit erature 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 th e 2008-09 school year. According to Vereecke’s testimony, he wanted to immediately termin ate her employment following an incident of im proper text messaging and telephone contact with male students in September 2008. Knipe decide d she should be disciplined instead. Ultimately, eight months la ter, her contract was rene wed 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 s uggested Knipe’s decision to overrule Vereecke’s recommendations as to Roberson , Donatucci, and Bl um 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 a nd members of the St. Pius X Parish, but Braun was Episcopalian and no t a parishioner. Knipe’s testimony was (continued)- 9 - Braun claims pretext can be inferred fro m Vereecke’s inconsistent reasons for not renewing her contract. When he told Braun her contract wo uld not be renewed, he allegedly said it had nothing to do w ith her but was because the school was going in a different direction. But after Br aun filed her EEOC discrimination charge, Vereecke said the reason for non-renewal wa s due to parental complaints—the two discussed above and three othe rs. One of the other parent al complaints related to Braun having asked a parent if her chil d had been tested for a developmental disorder. Another parent complained of Braun’s failure to comply with a plan developed to assist his son w ith difficulties in spelling a nd 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 communicat e their dissatisfaction to her. The claimed inconsistencies in Vereecke ’s explanations ar e not of the sort giving rise to an inference of discrimi nation. “A plaintiff shows pretext by demonstrating such weaknesses, implausibilities, inconsiste ncies, incoherencies, or contradictions in the employer’s proffered legitimate reasons fo r its action that a reasonable factfinder could rationally find them unworthy of credence and hence
clear: whether a teacher was Catholic and a parishio ner was a factor in his decision-making. Those ecumenical concer ns further call into question whether those individuals are valid ag e discrimination comparators at least with respect to his decision-making (which was final a nd is not direct ly challenged).- 10 - infer that the employer did not act for th e asserted non-discriminatory reasons.” Swackhammer , 493 F.3d at 1167 (interna l quotation marks omitted). But a change in an employer’s asserted reason for an empl oyment 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 (10t h Cir. 2005). Here, Vereecke’s claimed basis for his te rmination recomme ndation—parental complaints—has record suppor t. Moreover, Vereecke test ified to not having given Braun a reason when he said he r contract would not be rene wed. 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 uncontrovert ed independent evidence th at 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 Ve reecke’s failure to follo w his own unwritten policy in Braun’s case, namely, info rming teachers of parental co mplaints 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 forfeit ed our consideration of the issue. See Bronson , 500 F.3d at 1104.- 11 - awareness of the thre e 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 assumi ng Vereecke failed to follo w his own policy, that is insufficient, in these circum stances, for a reasonable juror to infer age discrimination was the but-for motive behind his recomme ndation 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 cour t will not second-guess “even if it seems in hindsight that the action taken constitute d poor business judgment.” Riggs , 497 F.3d at 1119 (internal quotation mark omitted). “[O] ur role is to pr event intentional discriminatory hiring practi ces, not to act as a ‘supe r personnel department.’” Id. (internal quotation mark omitted). The ev idence of Vereecke’s fa ilure 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 (explaini ng that “to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the

8 Contrary to Braun’s argument, whethe r Vereecke treated the other teachers differently with regard to pa rental complaints (by inform ing 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 f actor, even in combination with the other alleged simila rities among them and Braun, is insufficient to meet her burden of showing the comparat ors 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 par ties’ joint motion to seal the appellate briefs, provisionally granted by the Clerk’s office, will be vacated unless, within twenty days, the parties spec ifically identify those parts of the briefs they want sealed and explai n why sealing is appropriate in light of the published district court opinion.

Entered for the Court

Terrence L. O’Brien Circuit Judge