UNITED STATES COURT 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 discrimination and retaliation under Title VII of the Civil 

Rights Act of 1964 and the Colorado Anti-Discrimination Act (CADA). Sally Luke 

appeals from an entry of summary judgment in favor of her former employer, 

Hospital Shared Services (HSS). We affirm.1

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Our jurisdiction derives from 28 U.S.C. § 1291. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 20, 2013

Elisabeth A. Shumaker 

Clerk of Court
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I. Background

As required on summary judgment, we relate 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 security guard employed by HSS, 

which provides security services at the Denver International Airport (DIA). In early 

April 2010, a City of Denver manager conducting observational testing saw Luke 

drinking coffee in public and stopping by security posts in the DIA terminals, talking 

to the guards, and distributing flyers for a fundraising tamale sale. The Denver 

manager warned Luke that congregating and drinking in public view were not 

allowed and reported her observations to HSS’s Director of Security, John Costigan.2

HSS human resource (HR) personnel met with Luke several times in April to 

investigate these issues, but Luke repeatedly 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 insubordination 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 unacceptable behavior, specifically 

 

2

 Unless otherwise noted, the recited facts are undisputed. 
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insubordination, not taking responsibility for her actions, and providing false 

information during the investigation. Luke claims she gave a letter to her supervisor, 

Frank Campbell, alleging discrimination thirty minutes before she was terminated. 

Campbell testified he did not read 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 manager, she saw this letter the 

morning of May 5 and then gave it to Costigan. 

Luke’s complaint alleged unlawfully discharge based on 1) her Hispanic and 

Native American heritage and her gender and 2) retaliation for her letter claiming 

discrimination. HSS moved for summary judgment, arguing: Luke had not presented 

evidence of a prima facie case of discrimination; its reasons for terminating her were 

legitimate and non-discriminatory; and she 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 district court agreed. 

II. Analysis

Summary judgment is appropriate if “there is no genuine dispute as to 

any material fact and the movant is entitled 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 standard 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 
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sufficient evidence so that a rational trier of fact could resolve the issue either way.” 

Id. (quotation marks omitted). 

Discrimination Claim 

Title VII makes it unlawful “to discharge any individual, or otherwise to 

discriminate against any individual with respect to [her] compensation, terms, 

conditions, or privileges of employment, 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 three-step burden-shifting framework that 

requires her to first establish a prima 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 plaintiff must establish that (1) she is a member of a 

protected class, (2) she suffered 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 burden 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 explanation is pretext.” Id. 

As the district court saw it, Luke failed 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 
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discrimination. Luke first contends she demonstrated her objective qualifications for 

the position she held and nothing more is required to make a prima facie showing of 

discrimination. She is mistaken. As the district court correctly 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 favorable treatment of similarly-situated 

employees who are not members of a protected class can provide an inference of 

discrimination. Luster v. Vilsack, 667 F.3d 1089, 1095 (10th Cir. 2011). Luke 

claims several white, male HSS employees worked on the tamale fundraiser and were 

not disciplined, thus providing an inference of discrimination. But that fact is 

insufficient to permit the inference because no evidence demonstrates the white 

males’ situation is similar to hers or they 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) (“Similarly situated employees are those who deal with the same 

supervisor and are subject to the same standards governing performance evaluation 

and discipline.”) (quotation marks omitted)). Of the four employees cited by Luke, 

three are not similarly situated because they did not have the same supervisor as 

Luke. Generally, to be similarly situated, employees must “deal with the same 

supervisor,” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006), because 

“[d]ifferent supervisors will inevitably react differently” to employee misconduct. 

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). 
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Moreover, she presented no evidence of these 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 other employees were 

argumentative with, and made false statements to, supervisors during an employment 

investigation. 

According to Luke, her evidence of pretext is sufficient to establish an 

inference of discrimination. Some of our cases treat circumstances suggestive of 

discrimination as an element of a prima facie case; other cases treat these 

circumstances as part of the subsequent inquiry into pretext. See Sorbo v. United 

Parcel Serv., 432 F.3d 1169, 1173 n.5 (10th Cir. 2005) (noting this 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 case or the pretext 

inquiry. 

As evidence of pretext, Luke asserts: the HSS’s policy against congregating is 

a vague, subjective term; she had permission to sell tamales; she had good 

performance evaluations; and she was only defending herself against spurious 

accusations during the investigation. Those reasons, as we understand her argument, 

are sufficient reason not to credit HSS’s reasons. We are not persuaded. 

Luke’s evidence and arguments are insufficient to suggest HSS’s stated reasons for 

her dismissal are “so incoherent, weak, inconsistent or contradictory that a rational 

factfinder could conclude the reasons were unworthy of belief.” Young v. Dillon 
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Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (quotation marks omitted). She 

repeatedly argues that HSS’s reasons were false because it approved the tamale 

fundraiser, but she conveniently ignores the undisputed evidence relating to the scope 

of the approval; HSS only permitted sales in a trailer outside the DIA premises 

during non-work hours. She was soliciting sales 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 proffered reasons were wise, fair or correct, but whether it 

honestly believed those reasons and acted in good faith 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 must show “(1) that [s]he engaged 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 materially adverse action.” Khalik, 671 F.3d at 1193 

(quotation marks omitted). 
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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) (quotation 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 managers at her termination meeting had any 

knowledge of the letter she had given to Campbell just before the meeting and, thus, 

she failed to establish a prima 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 manager’s door at the end of the day. 

Luke tells us there is “no doubt,” and it is a “certainty” that Campbell read her 

letter and told Costigan about it before the termination meeting. Opening Br. at 28. 

She claims this “surely” must have happened simply because she was 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 between a [protected] activity and the alleged 
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retaliatory act is meaningless unless those who caused the alleged retaliatory act to 

occur are shown to have been aware 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 issue 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 claim. As noted above, we also affirm the 

summary judgment as to all of Luke’s discrimination 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