UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

WILLANA GENEVA TURNER, Plaintiff-Appellant,

v. THE CITY OF TULSA, Defendant-Appellee. No. 12-5133 (D.C. No. 4:11-CV-00606-CVE-FHM) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and O’BRIEN , Circuit Judges.

In this employment discrimination case, Dr. Willana Geneva Turner appeals from a district court order that entered judgm ent on the pleadings in favor of the City of Tulsa, Oklahoma. We ha ve jurisdiction under 28 U.S. C. § 1291, and affirm for substantially the same reasons id entified by the district court.

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### May 21, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - B ACKGROUND Dr. Turner, an African-American fema le, was the director of the City of Tulsa’s human-rights department . In 2010, Ms. Turner wa s responsible for preparing “a HUD 5-year action plan.” Aplt. App. at 8. On the dead line for the plan’s submission, it was “was in complete, but reparable.” Id. During a meeting with her supervisor, Jim Twombly, “regarding the plan’s shortcomings,” Dr. Turner “felt she was be ing discriminated agai nst due to her sex and race.” Id. at 9. Consequently, she filed a grievance with the human resources department, claiming that Mr. Twombly had “created a hostile work environment as a result of his racial and sexua l discrimination towards her.” Id. An investigation into the matter revealed no evid ence of discrimination. Soon thereafter, Mr. Twombly recommended that she be disciplined fo r her preparation of the incomplete HUD plan, and she was ultimately suspended by the City without pay for five days. Dr. Turner sued the City under 42 U.S. C. §§ 1981, 1981(a), and 1983, alleging that it “has allowed a policy wrongfu lly retaliating agains t city employees,” id. at 13, and that “Jim Twombly was acting as a policy-maker for the City of Tulsa,” id . at 7. The City filed an answer and later moved to dismiss the complaint for failure to state a claim for relief, arguing, among other th ings, that Mr. Twombly lacked final policymaking authority under the 1989 Ame nded Charter of the City of Tulsa. Attached as an exhibit to the motion was a copy of the ch arter, which establishes a civil service commission to promulgate rules and regulations governing employee- 3 - discipline. Those rules and regulations must then be a pproved by the city council. Further, the charter specifi es that any decisions rega rding employee discipline are reviewable by the commission. Dr. Turn er filed an opposition to the motion to dismiss, but did not address the City’s ar guments concerning the charter, and instead clarified that she was not pursuing a Title VII claim. The district court construed the C ity’s motion as seeking judgment on the pleadings, given that an answ er had already been filed, see Fed. R. Civ. P. 12(b) & (c), and it granted the motion, concluding that Dr. Turner had failed to adequately plead that “the alleged c onstitutional deprivation occurre d pursuant to an official policy or custom, or was the result of ac tions taken by an o fficial with final policymaking authority.” Aplt. App. at 12 8. In doing so, the district court took judicial notice of the City’s charter and pointed out that Dr. Turner had neither (1) “identified a specific offi cial policy, adopted and pr omulgated by the City, that allowed for the alleged c onstitutional violations,” id. at 123; nor (2) responded to the City’s argument “that the City Charter unambiguously shows that [Mr.] Twombly was not the final policymaker rega rding discipline of employees,” id. at 125.
D ISCUSSION “We review a district court’s grant of a motion for judgment on the pleadings de novo , using the same standard that a pplies to a Rule 12(b)(6) motion.” Park Univ.
Enters. v. Am. Cas. Co. , 442 F.3d 1239, 1244 (10th Cir. 2006). “[W]e accept all facts pleaded by the non-moving party as true a nd grant all reasonable inferences from the- 4 - pleadings in favor of the same.” Id. A motion for judgment on the pleadings “should not be granted unless the movi ng party has clearly establis hed that no material issue of fact remains to be resolv ed and the party is entitled to judgment as a matter of law.” Id. (quotation omitted). “[I]n order for municipal liability to ar ise under section 1981, [the plaintiff] must demonstrate that the City ’s officials retaliated agai nst her pursuant to a custom or policy of retaliation.” Carney v. City & Cnty. of Denver , 534 F.3d 1269, 1276 (10th Cir. 2008) (quotation omitted). Section 1983 pr ovides the vehicle to pursue such claims. See Bolden v. City of Topeka , 441 F.3d 1129, 1134 (10th Cir. 2006). A municipal policy or custom may take the form of (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the d ecisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers review and approval; or (5 ) the failure to adequately train or supervise employees, so long as th at failure results from deliberate indifference to the injuri es that may be caused. Bryson v. City of Okla. City , 627 F.3d 784, 788 (10th Ci r. 2010) (brackets and quotations omitted). Dr. Turner does not address the distri ct court’s determin ations concerning municipal liability. Any cha llenge to those determinations is, therefore, waived.
See Therrien v. Target Corp. , 617 F.3d 1242, 1253 (10th Cir. 2010) (“[F]ailure to raise an argument sufficien tly in the opening brief wa ives that argument.”).- 5 - Rather, Dr. Turner argues that the distri ct court erred in considering the City’s charter without giving her notice and conv erting the motion to dismiss into one for summary judgment. But, as the district court recognized, a cour t may take judicial notice of a city charter, see Melton v. City of Okla. City , 879 F.2d 706, 724 (10th Cir. 1989), “without converting a motion to dismiss into a motion for summary judgment,” Grynberg v. Koch Gateway Pipeline Co. , 390 F.3d 1276, 1278 n.1 (10th Cir. 2004). Moreover, Dr. Turner had notice that the City was relying on its charter, yet she did not object or request th at the motion to dismis s be converted into one for summary judgment. Accordingly, we AFFIRM for substa ntially the same r easons given by the district court in its June 15, 2012 Opinion and Order granting judgment on the pleadings to the City. Entered for the Court
Mary Beck Briscoe Chief Judge