* This order and judgment is not binding precedent, e xcept under the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 29 1999 

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

HELEN J. RYAN,

Plaintiff-Appellant,

v. WILLIAM S. COHEN, Secretary of Defense, Defendant-Appellee. No. 98-6183 (D.C. No. 96-CV-1830) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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.1 As related in this order and judgment, the backgrou nd facts are gathered

primarily from testimony taken during proceedings b efore the administrative judge assigned by the Equal Employment Opportunity to conduct a hearing on Ms. Ryan’s administrative complaint of discrimination. See Appellant’s App. at 47- 255. The transcript of proceedings was submitted a s an exhibit to defendant’s motion for summary judgment and supporting brief. -2- Plaintiff-appellant Helen J. Ryan, an employee of the Army and Air Force Exchange Service until July 31, 1995, appeals the d istrict court’s entry of summary judgment on her claims of racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1 964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

BACKGROUND 1 Ms. Ryan, who is African-American, was employed at the Tinker Air Force Base Exchange. Over the course of her employ ment, she submitted and settled several EEO (equal employment opportunity) charges. Most of these charges were resolved before Mr. Billy McKinnon, th e manager who discharged Ms. Ryan, was appointed to his position. In June 1995, the FBI and the Air Force Office of S pecial Investigations conducted an investigation into allegations of a fr audulent scheme in the exchange’s customer service department. The scheme involved the misuse of refund vouchers, potentially resulting in substanti al losses. Ms. Ryan, a sales associate at the jewelry counter, was not a target of the investigation.-3-

Investigators interviewed her early in the investig ation, however, for background information concerning jewelry department returns. She was told not to discuss the interview with certain other employees, includi ng an individual who was the principal subject of the investigation. The interview stage of the investigation was brought to a premature end on the evening of Ms. Ryan’s interview, when the inves tigators and Mr. McKinnon received information that Ms. Ryan had compromised the investigation by discussing the matter with the principal target. T o eliminate the possibility of the subject’s altering or destroying the documents, inv estigators decided to seize customer service records the next day. Before theyarrived at the exchange, the target had left, and never returned to work or cons ented to be interviewed about the investigation. The investigators issued a misd emeanor citation charging Ms. Ryan as an accessory after the fact. There is a factual dispute as to whether Ms. Ryan a ctually did talk to the target about the investigation. Ms. Ryan denied do ing so. Mr. McKinnon related that he overheard what he understood as her admissi on that she had been in contact with the target. He placed her on paid leave, citing the fact that she had received the misdemeanor citation. See Appellant’s App. at 38. At Ms. Ryan’s court appearance, the government move d to dismiss the charge with prejudice. Ms. Ryan notified Mr. McKin non that the charge against-4-

her had been dismissed and sought reinstatement. M r. McKinnon declined to reinstate her and later discharged her, for the stated reason that she had disregarded the investigators’ instructions and “di scussed matters relating to the investigation with an individual involved in it.” Id. at 39. In the interim between her suspension and discharge, Ms. Ryan consulted wi th an EEO counselor about issues unrelated to the investigation. Ms. Ryan submitted a formal EEO complaint charging that, in placing her on leave and in terminating her employment, def endant discriminated against her because of her race and also subjected her to r etaliation for her pursuit of other EEO claims. After exhausting her administrat ive remedies, she filed a complaint in federal district court. That court gr anted defendant’s motion for summary judgment and this appeal followed.

STANDARD OF REVIEW We review a district court’s decision to grant summ ary judgment de novo, using the same legal standard applicable in the district court. See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary ju dgment is proper only in cases where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a ju dgment as a matter of law.” Fed. R. Civ. P. 56(c).2 A prima facie case of racial discrimination require s a showing “(1) that [the

plaintiff] is a member of a racial minority, (2) th at [she] suffered an adverse employment action, and (3) that similarly situated employees were treated differently.” Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1215 (10th Cir. 1998). A prima facie case of retal iation is established with a showing of: “(1) protected opposition to discrimin ation or participation in a (continued...) -5- DISCUSSION Because Ms. Ryan lacks direct evidence on her claim s of discrimination and retaliation, the three-pronged burden-shifting analysis set forth in McDonnell-Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973) applies to her case. See Anaeme v. Diagnostek, Inc. , No. 97-2102, 1999 WL 3364, *2 (10th Cir. Jan. 6, 1999) (racial discrimination); Medlock v. Ortho Biotech, Inc. , No. 97-3037, 1999 WL 2474, *2 (10th Cir. Jan. 5, 19 99) (retaliation). Pursuant to this analysis, a plaintiff must initially establ ish a prima facie case of discrimination or retaliation by a preponderance of the evidence. The burden of production then shifts to the employer to offer a l egitimate reason for the plaintiff’s termination. If the employer offers su ch a reason, the plaintiff may survive summary judgment by showing that there is agenuine dispute of material fact as to whether the proffered reason for the cha llenged action is pretextual.
See Richmond v. ONEOK, Inc. , 120 F.3d 205, 208 (10th Cir. 1997). In ruling on the summary judgment motion, the distr ict court assumed that Ms. Ryan could establish a prima facie case of discrimination or retaliation. 22 (...continued)

proceeding arising out of discrimination; (2) adver se action by the employer; and (3) a causal connection between the protected activ ity and the adverse action.” Sauers v. Salt Lake County , 1 F.3d 1122, 1128 (10th Cir. 1993). -6- It also determined that Mr. McKinnon’s “understandi ng and belief that plaintiff had compromised a criminal investigation” was “a fa cially nondiscriminatory reason for [the] decision to discipline and terminate [her].” Appellant’s App. at 13. The court concluded that Ms. Ryan had faile d to present evidence tending to show that this reason was pretextual, and theref ore entered summary judgment in favor of defendant. On appeal, Ms. Ryan argues that the order of summary judgment should be set aside because the district court failed to reco gnize evidence of pretext. Specifically, she contends that the court made erro neous findings on disputed issues of fact relating to the continuation of leav e after dismissal of the criminal charge and the subsequent discharge. After a revie w of the record, we disagree. Mr. McKinnon was consistent in stating that he susp ended Ms. Ryan, continued the suspension, and discharged her becaus e he believed that she had jeopardized the investigation by discussing it witha targeted employee. The district court was not required to resolve whether or not Mr. McKinnon’s belief was correct. “An articulated motivating reason is not converted into pretext merely because, with the benefit of hindsight, it turned out to be poor business-7-

judgment. The test is good faith belief.” McKnight , 149 F.3d at 1129 (citation omitted) (holding that if employer actually believe d plaintiff committed claimed sexual assault, its proffered reason for terminatio n was not pretextual, even if later shown to be erroneous). Ms. Ryan has not shown the existence of any dispute or a genuine issue concerning Mr. McKinnon’s actual beliefs. His sinc erity is not undermined by her own contention that she did not talk to the tar get. Moreover, no inference of pretext arises from Mr. McKinnon’s expressing the s ame thought in varying ways at different times. Finally, the record does not s how a nexus between the adverse employment actions at issue and Ms. Ryan’s other EE O claims. In sum, the totality of Ms. Ryan’s proffered evidence is insuff icient to raise a genuine doubt about defendant’s motivation.-8- CONCLUSION For the reasons stated above, we conclude that the district court properly entered summary judgment in favor of defen dant and AFFIRM.

Entered for the Court

Stephen H. Anderson Circuit Judge