* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### APR 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEANNE ROBERTS,

Plaintiff-Appellant,

v. THE STATE OF OKLAHOMA, on behalf of the Board of Regents of Oklahoma Colleges, a body corporate; UNIVERSITY OF CENTRAL OKLAHOMA,

Defendants-Appellees. No. 95-6235 (W. Dist. of Oklahoma) (D.C. No. CIV-94-922-M)

ORDER AND JUDGMENT *

Before BRISCOE , HOLLOWAY, and MURPHY , Circuit Judges.

Jeanne C. Roberts appeals the district court’s grant of summary judgment in favor of the appellees on her Title VII gender disc rimination claim as well as its dismissal of her Oklahoma public policy tort claim. In her complaint, Roberts alleged that the University of Central Oklahoma pas sed her over for a faculty-2-

position and that the failure to hire her was imper missibly gender-based. With regard to Roberts’ Title VII claim, the district co urt ruled that Roberts failed to

state a prima facie case of discrimination because she could not demon strate that she was qualified for the position. It further con cluded that the appellees had stated a legitimate, nondiscriminatory reason for n ot hiring Roberts and that Roberts failed to create a genuine issue of materia l fact as to discrimination. The district court also dismissed Roberts’ state tort c laim, finding that Oklahoma would not recognize a public policy cause of action for wrongful failure to hire. This court exercises jurisdiction pursuant to 28 U. S.C. § 1291 and affirms.

I. BACKGROUND From January 1991 to May 1993, Roberts was employedby the University of Central Oklahoma (the “University”) as a nontenu re-track lecturer in the Department of Funeral Service Education (the “Department”). The University is a state institution of higher education governed by t he Board of Regents of Oklahoma Colleges. Both the Board of Regents and t he State of Oklahoma are co-appellees with the University (all appellees are collectively referred to as the “University”). Roberts’ claim arises out of the Un iversity’s failure to hire her as a full-time instructor in the Department, a unit of the College of Mathematics and-3-

Sciences (the “College”). She has no complaint abo ut the terms and conditions of her employment or her treatment as an employee. In the late fall of 1992, the University began recr uiting for a faculty position in the Department for the 1993-94 academic year. The University posted an announcement soliciting applications for a full- time instructor of Funeral Service. The announcement indicated that applicant s must have a “funeral director/embalmer” license, a master’s degree in a related area, and a minimum of three years as a practicing “funeral director/ emba lmer.” Previous teaching experience was preferred. Roberts applied for the position in January 1993. A three-person faculty selection committee, composed of Dr. Kenneth Curl, Chairperson of the Department, Dr. Gary Sokoll, and Dr. Thomas Grzybow ski, both on the University faculty, screened the four applications received, i ncluding Roberts’, and selected finalists for interviews. The committee then condu cted interviews and made recommendations for employment to G. Kay Powers, th e Dean of the College. The committee did not interview Roberts. Chris H. Burkey was recommended to fill the position; Roberts was not. When she was not offered the job, Roberts complaine d to Powers about the fairness of the screening process. In order to ass uage Roberts’ concerns and to generate a larger applicant pool, the University po sted a second announcement for-4-

the position. This second announcement generally r eiterated the information and requirements from the first. Roberts reapplied forthe position in May 1993. Again, a three-person committee screened the applic ations and selected finalists for interviews. This second committee co nsisted of Dr. Sokoll, Dr. Grzybowski, and Ronnie Redinger of the Redinger Fun eral Home. All four of the previous applicants reapplied; of the eight applications received this second time, seven were from men. The committee screened the ei ght applications and interviewed three candidates. The committee recomm ended to Dr. Curl the interviewees in order of preference as follows: (1 ) Chris H. Burkey; (2) Thomas Shaw; and (3) David Hess. Neither Shaw nor Hess ha d been in the first applicant pool. Again, Roberts was not recommended. Moreove r, the second committee did not interview the other two repeat applicants f rom the first round, Gus Embry, Jr., and Larry Wilmeth. Dr. Curl agreed with the s econd committee’s recommendations and forwarded the list to Powers. The University eventually appointed Burkey to the instructor position. Roberts brought suit in Oklahoma state court allegi ng that the University failed to hire her for the position of instructor o n the basis of her gender. Roberts alleged that the failure to hire her violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and Oklahoma public policy. The University removed the suit to federal court pursuant to 28 U.S.C. § 1441(b). The1 On her submitted résumé, Roberts stated she had “ov er 10 years of

professional experience in funeral service [and oth er] capacities.” In addition to her related experience as an adjunct lecturer at th e University since 1991, Roberts recounted in her résumé experience in funeral servi ces and embalming from two other sources: (1) Guardian Funeral Homes (the “Lo ewen Group”) from 1990-92; and (2) Wilson Funeral Service (“Wilson”) from 1982 -85. Furthermore, a letter of recommendation from Frank Bernard, the former manager of Wilson, which was submitted with Roberts’s application materials, stated that Roberts “directed hundreds of funerals and embalmed hundreds of bodie s.” Roberts’ deposition testimony, however, provided a different account of her own work experience. She admitted that her résumé generally overstated her work experience and that she could not have worked at Wilson after the date it burned down. Fire Department records indicate thatWilson burned down on March 11, 1983. Furthermore, in opposing summary ju dgment, Roberts attempted to establish her work experience by affidavit. She averred additional work -5- United States District Court for the Western Distri ct of Oklahoma exercised jurisdiction over the Title VII claim pursuant to 4 2 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1331 and the state-law claim pursuant to 2 8 U.S.C. § 1367. The district court granted summary judgment againstRoberts on her Title VII claim, holding that she failed to establish a prima facie case of discrimination. Specifically, the district court h eld that Roberts failed to establish she was qualified for the instructor position becau se her own deposition testimony indicated that she lacked the posted work experienc e requirements. The announcements for the instructor position specifiedthe requirement of at least three years’ experience as a “funeral director/emba lmer.” Although Roberts’ résumé stated that she had over ten years’ experien ce in this capacity, her deposition testimony indicated she had far less tha n her résumé indicated. 1experience not evident from her résumé and applicat ion. She further attempted to

explain her confusion at the deposition to account for disparities between her deposition testimony and her affidavit. The district court, however, noted that Roberts’ af fidavit was in conflict with both her deposition testimony and her résumé. The court further noted that while she attempted to explain the differences betw een her deposition and affidavit, she made no attempt to rectify the incon sistencies between her affidavit and résumé. It then concluded this was an attempt to create a sham material issue of fact and disregarded the portions of the affidav it relating to her work experience. As a result, the district court conclu ded that Roberts could not establish the qualifications element of her gender discrimination claim. -6- In the alternative, the district court held that ev en if Roberts had been qualified for the position, the University had adva nced legitimate, nondiscriminatory reasons for hiring Burkey insteadof Roberts. The district court found that Burkey was at least as qualified a s, if not more qualified than, Roberts. Because Roberts could not produce suffici ent evidence that the University chose Burkey on a basis other than his q ualifications, the district court reasoned that Roberts did not meet her burden of de monstrating the existence of a genuine issue of material fact regarding discrimination. Finally, as to Roberts’ state-law claim, the district court held that Oklah oma does not recognize a public policy tort in the failure-to-hire context. As a r esult, it dismissed this claim. Roberts appeals. On appeal, Roberts asserts the district court erredas follows: (1) granting summary judgment when there existed genuine issues of material fact; (2) disregarding her affidavit; (3) considering after-a cquired evidence to conclude-7-

Roberts was not qualified; (4) considering facts no t specified in the statement of uncontroverted facts; (5) applying the wrong standard regarding pretext; (6) failing to allow full and complete discovery; and ( 7) dismissing the state-law claim rather than remanding it to state court.

II. ANALYSIS A. Title VII Claim 1. Standards We review the grant of summary judgment de novo and apply the same legal standard used by the district court under Fed . R. C. P. 56(c). Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough , 935 F.2d 1167, 1170 (10th Cir. 1991). But “summary judgment will not lie if the dispute about a materi al fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could r eturn a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Therefore, “[w]e must view the evidence and any pos sible inferences most favorably to the nonmoving party to ascertain wheth er a genuine issue of fact exists.” MacDonald v. Eastern Wyo. Mental Health Ctr. , 941 F.2d 1115, 1117-8-

(10th Cir. 1991). To survive summary judgment, how ever, the nonmoving party cannot rest on its pleadings and must “make a showi ng sufficient to establish the existence of an element essential to that party’s c ase.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). We then review any legal questions de novo

. MacDonald, 941 F.2d at 1118. Title VII of the Civil Rights Act of 1964 prohibits the failure or refusal to hire any individual on the basis of race, color, re ligion, gender, or national origin. 42 U.S.C. § 2000e-2(a)(1). “The ‘factual inquiry’ in a Title VII case is ‘[whether] the defendant intentionally discriminate d against the plaintiff.’” United States Postal Serv. v. Aikens , 460 U.S. 711, 715 (1983) (quoting Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981)). A plaintiff may prove intentional discrimination “either direct ly by persuading the court that a discriminatory reason more likely motivated the e mployer or indirectly by showing that the employer’s proffered explanation i s unworthy of credence.” Burdine , 450 U.S. at 256. 2. Direct Evidence Direct evidence of discrimination is evidence of “a n existing policy which itself constitutes discrimination.” Ramsay v. City & County of Denver , 907 F.2d 1004, 1008 (10th Cir. 1990), cert. denied, 506 U.S. 907 (1992); see also Price Waterhouse v. Hopkins , 490 U.S. 228, 256 (1989) (plurality opinion) (hol ding that-9-

plaintiff had provided direct evidence through firm ’s solicited evaluations containing stereotyping comments relied upon in mak ing employment decisions); EEOC v. Wyoming Retirement Sys. , 771 F.2d 1425, 1430 (10th Cir. 1985) (holding that statute creating age-based employmentdistinction was direct evidence). When a plaintiff advances direct eviden ce of discriminatory intent, the burden-shifting analysis of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), is unnecessary. Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121 (1985); Heim v. Utah , 8 F.3d 1541, 1546 (10th Cir. 1993). Statements which are merely expressions of personal opinion or bias, however, do not constitute direct evidence of discr imination. See EEOC v. WilTel, Inc. , 81 F.3d 1508, 1514 (10th Cir. 1996) (listing examples of personal opinion or bias). The court in WilTelheld that because such statements required the factfinder to infer that discrimination was a m otivating cause of an employment decision, they are only circumstantial e vidence of discriminatory intent. Id. It is in this context we consider what Roberts ch aracterizes as direct evidence of discrimination. Roberts asserts that the Chairperson of the Departm ent, Dr. Curl, said he had not advised her of the job opening because he a ssumed as a newlywed she would want to stay at home. Roberts further allege s that Dr. Curl ignored reports of gender discrimination. She claims Dr. Curl impr operly formed and served on-10-

the first screening panel and that the make-up of t his panel violated University regulations because it did not include a female rep resentative. Roberts also contends that as a result of her complaint about th e first screening panel, Dr. Curl actively solicited complaints about Roberts’ teachi ng performance. Even assuming Dr. Curl did not have final decisionmaking authority, she concludes he played a substantial role in the selection process. Roberts finally contends that Dr. Curl’s involvement with the selection of the in structor, in conjunction with the evidence of his biases, constitutes direct evid ence of discrimination. These assertions by Roberts, however, only constitute circumstantial or indirect evidence of discrimination. The statement s and attitudes Roberts attributes to Dr. Curl may indicate personal bias a gainst Roberts and perhaps against women in general. Nevertheless, Roberts di d not demonstrate, as she must, that Dr. Curl acted on his allegedly discrimi natory beliefs. See Ramsey , 907 F.2d at 1008. Direct evidence of discrimination do es not necessarily exist where there is only direct evidence of personal bias. Id. Although “stereotyped remarks can certainly be evidence that gender played a part” in the employment decis ion, such remarks do not “inevitably” prove that part. Price Waterhouse , 490 U.S. at 251 (plurality opinion) (emphasis in original). Ro berts’ evidence requires the factfinder to infer the University’s discriminatoryanimus in the employment decision; it is not direct evidence of discriminato ry intent. Furr v. AT&T-11-

Technologies, Inc. , 824 F.2d 1537, 1549 (10th Cir. 1987) (holding that evidence of discriminatory statements from which determining cause of employment decision mightbe inferred is not direct evidence of causation). The district court was thus correct to conclude that Roberts had not s ubmitted direct evidence of discrimination.
3. McDonnell Douglas Burden Shifting A plaintiff may establish a claim of discrimination indirectly through the use of circumstantial evidence, based upon the burd en-shifting format first delineated in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). In order to establish a violation of Title VII for failure t o hire, a plaintiff is required to prove the following elements: (1) she was a memberof a protected class; (2) she applied for and was qualified for an available posi tion; (3) she was rejected despite those specific qualifications; and (4) the defendant hired other persons possessing Roberts’s qualifications who were not me mbers of her protected class. Id. at 802; Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991). Establishment of the prima facie case creates a presumption that the defendant unlawfully discriminated against the plai ntiff. Burdine , 450 U.S. at 254. Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate “some legitimate, nondiscri minatory reason for the employee’s rejection.” McDonnell Douglas , 411 U.S. at 802; EEOC v. Flasher-12-

Co. , 986 F.2d 1312, 1316 (10th Cir. 1992). If the def endant meets its burden of producing a facially nondiscriminatory reason for i ts failure to hire the plaintiff, the presumption of discrimination established in th e prima facie case evaporates. St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993). The plaintiff then has the burden of persuasion to show the defendant disc riminated against her in its employment decision on the impermissible basis of h er gender. Id. at 507-08. The plaintiff may do so either by showing that the proffered reason is a pretext for illegal discrimination or by providing direct e vidence of discrimination. If a plaintiff produces evidence establishing the prima facie case and evidence upon which the factfinder could conclude that the defend ant’s proffered nondiscriminatory reasons for the employment decisi on are pretextual, summary judgment must be denied. Durham v. Xerox Corp. , 18 F.3d 836, 839-40 (10th Cir.), cert. denied, 115 S. Ct. 80 (1994). As noted above, the district court held Roberts didnot establish a prima facie case because she could not demonstrate that she wa s qualified for the position at issue. In reaching this conclusion, th e district court relied on evidence developed during discovery which demonstrated that Roberts had falsified her credentials. On appeal, the parties vigorously con test the propriety of using afteracquired evidence of Roberts’ qualifications. Robe rts contends the recent decision in McKennon v. Nashville Banner Publishing Co. , 115 S. Ct. 879 (1995),2 We note the two courts that have considered this is sue (albeit with little

analysis) have split on the applicability of McKennon v. Nashville Banner Publishing Co. , 115 S. Ct. 879 (1995), to failure-to-hire cases. Compare Egbuna v. Time-Life Libraries, Inc. , 95 F.3d 353, 357 (4th Cir. 1996) (applying McKennon at prima facie stage in failure-to-rehire case), opinion vacated & reh’g en banc granted

(Dec. 17, 1996) with McNemar v. Disney Store, Inc. , 91 F.3d 610, 621 (3d Cir. 1996) (holding that McKennon does not apply at prima facie stage of failure-to-hire case), cert. denied, 65 U.S.L.W. 3561 & 3568 (U.S. Feb. 18, 1997) (No. 96-966). Furthermore, at least thre e other courts have indicated in dicta, with no analysis, that the rule of law set o ut in McKennon might not apply in failure-to-hire cases. Shattuck v. Kinetic Concepts, Inc. , 49 F.3d 1106, 1108 (5th Cir. 1995); Russell v. Microdyne Corp. , 65 F.3d 1229, 1240 (4th Cir. 1995); Wallace v. Dunn Constr. Co. , 62 F.3d 374, 379 n.8 (11th Cir. 1995).

3 Because we choose to assume that Roberts was qualif ied for the position and therefore established a prima facie case, we need not address her claim that the district court erred in considering after-acqui red evidence, in disregarding the qualifications set out in her affidavit, and in fai ling to enforce local rules regarding summary judgment. -13- categorically prohibits the use of after-acquired e vidence during the liability phase of an employment discrimination case. The Un iversity, on the other hand, contends that McKennon does not operate to relieve Roberts of the burden of establishing her qualifications as part of her prima facie case. We conclude that it is unnecessary to resolve this difficult issue 2 because regardless of whether Roberts has established a prima facie case, the University has advanced a legitimate, non-discriminatory reason for not hirin g Roberts and she is unable to demonstrate the existence of a genuine issue of mat erial fact regarding pretext. 3 As an alternate ground for granting the University summary judgment, the district court held that “Ms. Roberts has failed to present sufficient evidence to-14-

raise a genuine issue that [the University] selecte d Mr. Burkey over Ms. Roberts with the intent to discriminate against Ms. Roberts because of her sex.” In reaching this conclusion, the district court held t hat even considering the qualifications set out in Roberts’ affidavit, she w as at best equally qualified for the job. According to the district court, Roberts’ relative qualifications did not support her claim of pretext. Furthermore, the dis trict court held that the University’s claim that Burkey was better qualified was a credible, legitimate, non-discriminatory, business reason and was therefo re subject to deference. Finally, the district court concluded that evidence presented by Roberts concerning procedural irregularities in the hiring process did not “raise a genuine issue that [the University] intentionally discrimin ated against Ms. Roberts on the basis of her sex.” Instead, according to the distr ict court, that evidence raised issues of favoritism, revenge, personality conflict s or bad judgment.” On appeal, Roberts contends that the district courtutilized an improper standard to determine whether Roberts created a gen uine issue of material fact regarding pretext. We agree. A close reading of t he district court opinion reveals that it granted summary judgment because Roberts “f ailed to raise a genuine issue that [defendants] intentionally discriminated again st [her] on the basis of her sex.” This language, coupled with the district cou rt’s citation to the Fifth Circuit panel decision in Rhodes v. Guiberson Oil Tools , 39 F.3d 537, 541-42 (1994),4 On rehearing en banc , the Fifth Circuit appears to have retreated from the

panel’s holding that evidence an employer’s articul ated reason is false, standing alone, is neversufficient to support a finding of discrimination. Rhodes v. Guiberson Oil Tools , 75 F.3d 989, 994 (5th Cir. 1996) ( en banc ) (“In tandem with a prima facie case, the evidence allowing rejection of the employer’s proffered reason will often, perhaps usually, permit a findin g of discrimination without additional evidence.”). It is not clear, however, that the Fifth Circuit has abandoned the pretext-plus standard altogether. See id. at 994 (holding that a plaintiff can avoid summary judgment only if she “( 1) creates a fact issue as to whether each of the employer’s stated reasons was w hat actually motivated the employer and (2) creates a reasonable inference that age was a determinative factor in the actions of which plaintiff complains. ” (emphasis added)); see also id. at 997-99 (Garza, J., specially concurring) (assert ing that prima facie case coupled with evidence of pretext is always sufficie nt to send case to jury and prima facie case coupled with jury finding of prete xt is always sufficient to support jury verdict in favor of plaintiff); id. at 999-1000 (DeMoss, J., concurring and dissenting) (concurring with majority that “evi dence will be sufficient to support a jury finding of [] discrimination onlywhen a rational fact-finder could reasonably infer that age was a determinative reaso n for the employment decision”); id. at 999 n.1 (DeMoss, J., concurring and dissenting) (asserting that Garza, J., concurring specially, was really dissent ing from “the majority’s holding that evidence that an employer’s articulated reason is false does not independently support a jury finding of discrimination”). -15- rev’d on reh’g en banc , 75 F.3d 989 (5th Cir. 1996), leads to the inevita ble conclusion that the district court here applied a p retext-plus standard for overcoming the summary judgment motion.
In Rhodes , a panel of the Fifth Circuit held that the term p retext means pretext for discrimination. Under the approach tak en by the panel in Rhodes , to establish that a proffered reason for an action tak en by an employer was pretext for discrimination, the plaintiff must show both that the employer’s proffered reason was false and

that discrimination was the real reason. Id. 4 This so-called5 This court can “affirm the district court’s decisio n to grant summary

judgment if the record contains any basis to do so. ” Jones v. Unisys Corp. , 54 F.3d 624, 628 (10th Cir. 1995). -16- pretext plus standard has been specifically rejecte d in the Tenth Circuit. Randle v. City of Aurora , 69 F.3d 441, 452 n.17 (10th Cir. 1995). In a Randle footnote, the en banc court held that a “civil rights plaintiff may with stand a motion for summary judgment and is entitled to present his cla im to the fact finder if the plaintiff establishes a prima facie case and presen ts evidence that the defendant’s proffered nondiscriminatory reason was pretextual-- i.e., unworthy of belief.” Id. Under the pretext-plus standard, the district courtexpected Roberts to demonstrate the existence of a genuine issue of fac t regarding pretext and, in addition, to advance some evidence of discriminatory intent. Accordingly, the district court never specifically addressed the pre text issue but, instead, focused on whether Roberts created a genuine issue of mater ial fact regarding discrimination. Under Randle , however, Roberts is entitled to take her case to the jury upon a simple showing of pretext. Thus, the d istrict court never answered the key question: whether Roberts presented evidenc e which, if believed by a jury, would demonstrate that the University’s claimthat it hired the most qualified person is unworthy of belief. Id. We therefore turn our attention to that question. 5-17-

Roberts asserts that she has adduced evidence of pr etext by demonstrating that the University has changed its justification f or the hiring decision. See Washington v. Garrett , 10 F.3d 1421, 1434 (9th Cir. 1993) (holding that “fundamentally different justifications for an empl oyer’s action would give rise to a genuine issue of fact with respect to pretext sin ce they suggest the possibility that neither of the official reasons was the true r eason”). Her assertion is incorrect. In its summary judgment motion, the Uni versity averred that Roberts did not state a prima facie case (i.e., she was not qualified for the job) bec ause she did not have the three years of experience as afuneral director. Roberts claims this legal assertion is a change in justific ation from the explanation that the University hired Burkey because he was the mostqualified applicant. The University’s contention that Roberts has not stateda prima facie case is not, however, inconsistent with its claim that it hired Burkey because he was the most qualified applicant. The first is a legal assertio n that Roberts cannot prove a necessary element of her cause of action; the secon d is an assertion of fact as to the University’s proferred reason for the hiring de cision. Accordingly, the University has never asserted Roberts’ lack of expe rience as the reason she was not hired and has, therefore, never changed its jus tification for the hiring decision.-18-

Roberts also contends that she established pretext by presenting evidence from which a jury could conclude that she was bette r qualified than Burkey because of greater teaching experience, more recentexperience in the industry, and progress toward a doctorate. See Rea v. Martin Marietta Corp. , 29 F.3d 1450, 1457 (10th Cir. 1994) (“Pretext can be inferr ed . . . from evidence that a plaintiff that was not promoted was more qualified than those employees who were promoted.”); Durham v. Xerox Corp ., 18 F.3d 836, 839 (10th Cir. 1994) (“Proof that [plaintiff] was more qualified would d isprove [the employer’s] only explanation for its actions, that [plaintiff] was l ess qualified than the successful candidates.”). Although we agree that the relative qualifications of Roberts and Burkey are relevant to the issue of pretext, we are mindful that courts “are not in the position of determining whether a business deci sion was good or bad. Title VII is not violated by the exercise of erroneous oreven illogical business judgment.” Sanchez v. Philip Morris, Inc. , 992 F.2d 244, 247 (10th Cir. 1993) (citation omitted). With these precepts in mind, we have compared, in alight most favorable to Roberts, the qualifications advanced by Roberts with those set out in the record for Burkey. That review leads this court to the sa me conclusion reached by the district court: Roberts was, at best, as qualified as Burkey for the job. Although Roberts’ evidence indicates she had teaching experi ence and more recent-19-

experience in the field of funeral service, that sa me evidence also indicates Burkey had a degree in the field of funeral science , had academic credentials clearly superior to Roberts’, and also had teaching experience as an adjunct professor at the University. In light of the relat ive parity of Burkey and Roberts’ qualifications, we conclude that no reasonable jurycould find pretext based upon a comparison of qualifications. Liberty Lobby , 477 U.S. 242 at 248. Finally, Roberts claims she created a genuine issue of material fact regarding pretext by producing evidence of procedur al irregularities in the screening process. Roberts notes that Dr. Curl saton the first screening committee even though University policies prohibit the department chair from sitting on such committees. Furthermore, neither c ommittee included a woman or minority, despite a University policy which provide d that a woman and minority should sit on the committee. Finally, Curl activel y solicited student complaints against Roberts while the screening process proceed ed. This court has reviewed the record de novo and in a light most favorable to Roberts and concl udes that none of the evidence of procedural irregularities a dduced by Roberts creates a genuine issue of material fact as to pretext concer ning the University’s claim that it hired the most qualified candidate. Roberts produced evidence demonstrating that Curl’s service on the first screening committee was contrary to the following U niversity policy: “The Dean-20-

and Chairperson are not allowed to serve as committ ee members for positions within their own respective Department or College.” The uncontradicted evidence also demonstrates, however, that when Robe rts complained about the fairness of the first screening committee, Powers, the Dean of the College, ordered the position readvertized. A second screen ing committee was then seated and Roberts reapplied for the position. It is undi sputed that Curl did not sit on the second screening committee. Although she conte nds Curl’s service on the first screening committee and his position as chairof the Department allowed him to actually exercise influence over the second scre ening committee, Roberts did not produce a single piece of evidence to that effe ct. Branson v. Price River Coal
Co. , 853 F.2d 768, 772 (10th Cir. 1988) (“[M]ere conje cture that [the] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.”). The undisputed factthat Curl served on the first screening committee, without evidence of more, does not create a genuine issue of material fact as to the University’s claim that it hired the most qualified candidate. Roberts also contends that Curl’s solicitation of s tudent complaints about Roberts during the screening process demonstrates m endacity on the part of the University. The problem with Roberts’ argument is that she has utterly failed to adduce any proof connecting Curl’s actions with the decision to hire Burkey.-21-

Roberts did not, for instance, present any evidence demonstrating that the second screening committee considered complaints generatedby Curl or that Curl presented the complaints to the Dean, the Vice Pres ident of Academic Affairs, the President of the University, or the Board of Regent s. In the absence of actual evidence, rather than speculation, of a connection between Curl’s activities and the ultimate hiring decision, his conduct has no be aring on the veracity of the University’s claim that it hired Burkey because he was the most qualified candidate. See Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 530 (10th Cir. 1994) (holding that even though all doubts con cerning pretext must be resolved in plaintiff’s favor, a plaintiff’s allegations alone will not defeat summary judgment). Finally, Roberts contends that the University’s fai lure to place a woman on the screening committee in violation of its own pol icy creates a genuine issue of material fact regarding pretext. We disagree. Unf ortunately, Roberts has failed to understand the critical distinction between a ma ndatory and hortatory policy statement. The policy at issue reads as follows: “ The screening committee should consist of at least three (3) faculty members knowl edgeable of the open position. The committee should

be composed of at least one male, one female, and one minority. The Dean and Chairperson are not allowed to serve as committee members for positions within their own respective D epartment or College.” In6 This court has considered each of the numerous addi tional alleged

procedural anomalies identified by Roberts and, upo n de novo review, concludes that none of the evidence adduced by Roberts casts doubt on the University’s facially nondiscriminatory explanation for its acti ons. -22- light of the hortatory nature of the pertinent port ions of this policy, absent evidence regarding the regularity with which the Un iversity complies with this guideline, it is impossible to tell whether the fai lure to include a woman on the second screening committee is a “disturbing procedu ral irregularit[y]” of the type necessary to support a finding of pretext. Colon-Sanchez v. Marsh , 733 F.2d 78, 81 (10th Cir.), cert. denied, 469 U.S. 855 (1984). Although Roberts adduced deposition testimony of Terry L. May indicating that the purpose behind the policy was to further the University’s affirmative action goals and to prevent discrimination against women and minority applicant s, Roberts has not pointed to any evidence in the record indicating that Universi ty screening committees regularly contain both a woman and a minority. Abs ent such evidence, it is unclear whether the failure to do so here is irregu lar. 6 On the record before this court, we conclude Robert s has not met her burden of demonstrating that a genuine issue of mat erial fact exists regarding pretext. The district court did not, therefore, er r in granting the University summary judgment. See Reynolds v. School Dist. No. 1 , 69 F.3d 1523, 1536 (10th Cir. 1995).-23-

B. Oklahoma Public Policy Tort Claim Roberts maintains the district court abused its dis cretion when it dismissed her claim that the University’s failure to hire herviolated Oklahoma public policy. She contends that Oklahoma recognizes a pu blic policy exception to its employment-at-will doctrine to provide plaintiffs w ith a state tort claim in the refusal-to-hire context. She argues the district c ourt should have allowed her to proceed on this claim in state court, where her law suit began prior to removal. This court faced a similar argument in Sanchez v. Philip Morris, Inc. , 992 F.2d 244 (10th Cir. 1993). The plaintiff in Sanchezargued that Oklahoma precedent which created an exception to employment- at-will for terminations motivated by race or retaliation applied to create a cause of action for wrongful failure-to-hire claims. Id. at 249. This court rejected the claim, holding th at Oklahoma cases were limited and nothing in those ca ses supported expanding the narrow exceptions. Id. On the basis of Sanchez , we conclude that the district court did not abuse its discretion when it dismisse d Roberts’ state tort claim rather than remanding it to state court for furtherproceedings. See Sanchez , 992 F.2d at 249. C. District Court’s Failure to Allow Additional Discovery Roberts contends the district court abused its disc retion when it refused to allow her to depose Curl, Sokoll, and Grzybowski a second time. Although it is7 Unfortunately, Roberts never included in the recordon appeal a copy of

the magistrate judge’s oral order denying her leave to redepose several witnesses. Instead, this court is limited to Roberts’ interpre tation of why the magistrate judge denied the motion. Nevertheless, as discusse d below, the record is sufficient to conclude that the magistrate judge di d not abuse his discretion. -24- doubtful the record on appeal is sufficient for thi s court to determine whether the district court abused its discretion, we neverthele ss reach the merits and affirm. 7 Roberts alleges that despite a request for all docu ments related to the screening process, the University failed to inform her that Curl served on the first screening committee until after she had deposed Cur l, Sokoll, and Grzybowski. After that disclosure, Roberts filed a motion befor e the magistrate judge seeking to depose Curl, Sokoll, and Grzybowski a second tim e. Although the magistrate ordered the University to turn over any additional documents related to the screening process, the magistrate refused to allow the additional depositions. The district court affirmed on appeal. Fed. R. Civ. P. 30(a)(2)(B) provides as follows: “Aparty must obtain leave of court, which shall be granted to the extent cons istent with the principles stated in Rule 26(b)(2), if . . . the person to be examine d already has been deposed in the case.” This court reviews the denial of leave to c onduct a second deposition under Rule 30(a)(2)(B) for an abuse of discretion. See Building & Constr. Dep’t v. Rockwell Int’l Corp. , 7 F.3d 1487, 1496 (10th Cir. 1993) (reviewing dis trict court’s refusal to grant a Fed. R. Civ. P. 56(f) mo tion for abuse of discretion).-25-

This Circuit has defined abuse of discretion as “‘a n arbitrary, capricious, whimsical, or manifestly unreasonable judgment.’” United States v. HernandezHerrera , 952 F.2d 342, 343 (10th Cir. 1991) (quoting United States v. Cardenas , 864 F.2d 1528, 1530 (10th Cir. 1989)) (further quot ations omitted). Although Roberts has failed to include a transcriptof the magistrate judge’s oral denial of her motion for additional deposition s, it is still clear on the record before us that the denial was not unreasonable beca use Roberts had “ample opportunity by discovery in the action to obtain th e information sought.” Fed. R. Civ. P. 26(b)(2)(ii). The record clearly demonstrates that at the time she first deposed Curl, Sokoll, and Grzybowski, Roberts was f ully aware of the existence of the first screening committee; knew that Curl mu st have selected the members of the first screening committee; had serious reservations about the fairness of the procedures used by the first screening committee; and believed that Curl was the person responsible for the University’s failure to hire her. Furthermore, it is clear that in wide-ranging depositions of Dean Powers, Cu rl, Sokoll, and Redinger, Roberts’ counsel touched on the subject of the firs t screening committee. He failed, however, to ask the key question: What was the composition of the first screening committee? In light of Roberts’ theory o f the case, it was not unreasonable for the magistrate judge to conclude t hat Roberts had ample opportunity to question Curl, Sokoll, and Grzybows ki about the first screening-26-

committee during the original depositions of those individuals. Therefore, the district court’s refusal to allow additional deposi tions was not an abuse of discretion.

IV. CONCLUSION The district court’s grant of summary judgment to the University on Roberts’s Title VII claim and its dismissal of Robe rts’s state tort claim is hereby
AFFIRMED

. ENTERED FOR THE COURT,

Michael R. Murphy Circuit Judge