UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SALLY LUKE, Plaintiff-Appellant,

v. HOSPITAL SHARED SERVICES, INC. Defendant-Appellee. No. 12-1219 (D.C. No. 1:10-CV-03087-WJM-BNB) (D. Colo.)

ORDER AND JUDGMENT *

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

This is a suit for discri mination and retali ation under Title VII of the Civil Rights Act of 1964 and the Colorado Anti-D iscrimination Act (CADA). Sally Luke appeals from an entry of summary judgm ent in favor of her former employer, Hospital Shared Services (HSS). We affirm. 1

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1.

1 Our jurisdiction derive s from 28 U.S.C. § 1291. FILED United States Court of Appeals Tenth Circuit 

### March 20, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background As required on summary judgment, we re late the facts in the light most favorable to Luke, the non-moving party. Medlock v. United Parcel Serv., Inc ., 608 F.3d 1185, 1189 (10th Cir. 2010). She was a secur ity guard employed by HSS, which provides security servi ces at the Denver Internationa l Airport (DIA). In early April 2010, a City of Denver manager c onducting observational testing saw Luke drinking coffee in public and stopping by secu rity posts in the DI A terminals, talking to the guards, and distributing flyers fo r a fundraising tamale sale. The Denver manager warned Luke that congregating and drinking in public view were not allowed and reported her obser vations to HSS’s Director of Security, John Costigan. 2 HSS human resource (HR) personnel met w ith Luke several ti mes in April to investigate these issues, but Luke repeated ly denied soliciting tamale sales in the terminal and demanded HSS provide proof and name the reporting witness. In her written response, Luke wrote, “Accusations of soliciting tamales at TSA security check points and on concourses. Response: Untrue -- Prove It .” Aplt. App. at 119. Luke had previously received disciplinary warnings for insubor dination and use of profane language. Costigan decided to terminate Luke on May 3. On May 4, at approximately 2:10 pm, Costigan and other HSS Security and HR managers met with Luke and terminated her employment for misconduct and unacceptabl e behavior, specifically

2 Unless otherwise noted, the recited facts are undisputed.- 3 - insubordination, not taking responsibility for her actions, and providing false information during the investigation. Luke cl aims she gave a letter to her supervisor, Frank Campbell, alleging disc rimination thirty minutes be fore she was terminated. Campbell testified he did not r ead her letter, but copied it, returned the original to Luke, put the copy in an envelope, took it to HR, and slid it under the HR manager’s door because it was after hours. According to the HR manage r, she saw this letter the morning of May 5 and then gave it to Costigan. Luke’s complaint alleged unlawfully di scharge based on 1) her Hispanic and Native American heritage and her gender a nd 2) retaliation for her letter claiming discrimination. HSS moved for summary ju dgment, arguing: Luke had not presented evidence of a prima facie case of discrimina tion; its reasons for terminating her were legitimate and non-discriminatory; and sh e presented no evidence demonstrating its reasons were a pretext for discrimination. Moreover, it argued, Luke could not establish a prima facie case of retaliation. The di strict court agreed. II. Analysis Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review the district court’s grant of summary judgment de novo, applying the same sta ndard as the district court.” Crowe v. ADT Sec. Servs.,
Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011). “A dispute is genuine if there is- 4 - sufficient evidence so that a ra tional trier of fact could reso lve the issue either way.”
Id . (quotation marks omitted). Discrimination Claim Title VII makes it unlawful “to discha rge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of em ployment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S. C. § 2000e-2(a)(1). Discrimination claims, Luke’s included, are analyzed under a th ree-step burden-shifting framework that requires her to first establish a prim a facie case of discrimination. See, e.g., Khalik v. United Air Lines , 671 F.3d 1188, 1192 (10th Cir. 2012) . “To set forth a prima facie case of discrimination, a plai ntiff must establish that (1) she is a member of a protected class, (2) she suff ered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class.” Id . “The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action.” Id

. “If the defendant does so, the bur den then shifts back to the plaintiff to show that the plaintiff’s protected status was a determinative factor in the employment decision or that the employer’s expl anation is pretext.” Id

. As the district court saw it, Luke fa iled to present evidence demonstrating either different treatment from any other similarly situated employee or how the circumstances surrounding her termination otherwise give rise to an inference of- 5 - discrimination. Luke first contends she demonstrated her object ive qualifications for the position she held and nothing more is re quired to make a prim a facie showing of discrimination. She is mistak en. As the district court co rrectly ruled, she must also demonstrate that the challenged action took place under circumstances giving rise to an inference of discrimination. See Khalik , 671 F.3d at 1192. Evidence of an employer’s more favorab le treatment of si milarly-situated employees who are not members of a protec ted class can provide an inference of discrimination. Luster v. Vilsack , 667 F.3d 1089, 1095 ( 10th Cir. 2011). Luke claims several white, male H SS employees worked on the tamale fundraiser and were not disciplined, thus providi ng an inference of discrimination. But that fact is insufficient to permit the inference because no eviden ce demonstrates the white males’ situation is similar to hers or th ey or any other HSS employee engaged in the same conduct as she. See, e.g., Aramburu v. Boeing Co ., 112 F.3d 1398, 1404 (10th Cir. 1997) (“Si milarly situated employees are those who deal with the same supervisor and are subject to the same standards govern ing performance evaluation and discipline.”) (quotation ma rks omitted)). Of the f our employees cited by Luke, three are not similarly situat ed because they did not have the same supervisor as Luke. Generally, to be similarly situat ed, employees must “d eal with the same supervisor,” McGowan v. City of Eufala , 472 F.3d 736, 745 (10th Cir. 2006), because “[d]ifferent supervisors will inevitably re act differently” to employee misconduct. Kendrick v. Penske Transp. Servs., Inc ., 220 F.3d 1220, 1230 (10th Cir. 2000).- 6 - Moreover, she presented no evidence of th ese white male employees, or any other employee, distributing flyers to security guards on duty in the DIA terminal. Also, significantly relevant was the total lack of evidence that ot her employees were argumentative with, and made false statem ents to, supervisors during an employment investigation. According to Luke, her evidence of pr etext is sufficient to establish an inference of discrimination. Some of our cases treat circumst ances suggestive of discrimination as an element of a prim a facie case; other cases treat these circumstances as part of the subs equent inquiry into pretext. See Sorbo v. United Parcel Serv. , 432 F.3d 1169, 1173 n.5 (10th Cir. 2005) (noting th is tension and collecting cases). But Luke’s “evidence of discrimination/pretext fails as a matter of law,” id . at 1174, whether analyzed by reference to the prima facie ca se or the pretext inquiry. As evidence of pretext, Luke asserts: the HSS’s policy against congregating is a vague, subjective term; she had permis sion to sell tama les; she had good performance evaluations; and she was onl y defending herself against spurious accusations during the investigation. Thos e reasons, as we unde rstand her argument, are sufficient reason not to credit HSS’ s reasons. We ar e not persuaded. Luke’s evidence and arguments are insufficient to suggest HSS’s stated reasons for her dismissal are “so incoherent, weak, inc onsistent or contradi ctory that a rational factfinder could conclude the reas ons were unworthy of belief.” Young v. Dillon- 7 - Cos ., 468 F.3d 1243, 1250 (10th Cir. 2006) (quotation marks omitted). She repeatedly argues that HSS’s reasons were false because it a pproved the tamale fundraiser, but she conveniently ignores th e undisputed evidence relating to the scope of the approval; HSS only pe rmitted sales in a trailer outside the DIA premises during non-work hours. She was soliciting sa les in the DIA terminal. But more to the point, HSS discharged her because of her unacceptable conduct during the investigation. Other than her spin on the facts

− she was just protesting her innocence

− Luke presents no evidence of pretext. “The relevant inquiry is not whether the employer’s proffere d reasons were wise, fair or correct, but whether it honestly believed those re asons and acted in good fa ith upon those beliefs.” Rivera v. City & Cnty. of Denver , 365 F.3d 912, 924- 25 (10th Cir. 2004) (quotation marks and brackets omitted). Retaliation Claim Title VII also makes it unlawful for an employer to retaliate against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). To state a prima facie Title VII retaliation claim, she mu st show “(1) that [s]he e ngaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the ma terially adverse action.” Khalik, 671 F.3d at 1193 (quotation marks omitted).- 8 - To establish the requisite causal connection between the letter Luke gave Campbell and her termination, “the individual who took adverse action against her knew of [her] protected activity.” Montes v. Vail Clinic, Inc. , 497 F.3d 1160, 1176 (10th Cir. 2007) (quot ation marks omitted); see also Hinds v. Sprint/United Mgmt.
Co ., 523 F.3d 1187, 1203 (10th Cir. 2008) (“[A plaintiff] must first come forward with evidence from which a reasonable factfinder could conclude that those who decided to fire [her] had knowledge of [her] protected activity.”). The district court reasoned as follows . Luke presented no evidence that Costigan or any of the other HSS manage rs at her terminat ion meeting had any knowledge of the letter she had given to Ca mpbell just before the meeting and, thus, she failed to establish a prim a facie retaliation claim. Luke did not controvert Campbell’s unequivocal testimony. He did not read the letter or speak with anyone about it, but only slid it under the HR mana ger’s door at the end of the day. Luke tells us there is “no doubt,” and it is a “certain ty” that Campbell read her letter and told Costigan about it before the termination mee ting. Opening Br. at 28. She claims this “surely” must have happened simply because she wa s terminated thirty minutes after giving it to Campbell. Id . at 27. But this is pure speculation. “[M]ere conjecture” is insufficient to defeat summary judgment. Etsitty v. Utah Transit Auth ., 502 F.3d 1215, 1225 (10th Cir. 2007). Her evidence of close temporal proximity is, by itself, insufficient to defeat summary judgment in a Title VII retaliation claim. “[T]he proximity betw een a [protected] activity and the alleged- 9 - retaliatory act is meaningle ss unless those who caused the alleged retaliatory act to occur are shown to have been aw are of the specific activity.” Hysten v. Burlington N. & Santa Fe Ry ., 296 F.3d 1177, 1184 (10th Cir. 2002). Because Luke failed to raise a genuine i ssue of material fact as to any causal connection between her protected activity and her termination, we affirm the summary judgment as to Luke’s retaliation cl aim. As noted above, we also affirm the summary judgment as to all of Luke’s disc rimination claims. Thus, we also affirm the summary judgment on Luke’s CADA claims , which are subject to the same legal standards as her Title VII claims. See Johnson v. Weld Cnty. , 594 F.3d 1202, 1219 n.11 (10th Cir. 2010).
AFFIRMED. Entered for the Court

Terrence L. O’Brien Circuit Judge