Officer v. Sedgwick County Kansas, (10th Cir. 2007)

Text

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

SHEILA OFFICER,

Plaintiff-Appellant,

v.



SEDGWICK COUNTY, KANSAS;

and SEDGWICK COUNTY

DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

No. 05-3404

(D.C. No. 04-CV-2418-KHV)

(D. Kansas)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before KELLY, EBEL
name="9">, and GORSUCH, Circuit

Judges.

Sheila Officer seeks damages from her former employer, Sedgwick County,

Kansas (the "County"), for its termination of her employment allegedly in

violation of Title VII. The district court granted summary judgment in favor of

the County after finding that Ms. Officer failed to identify a material factual

dispute suggesting that she suffered an adverse employment action as a result of

her race. Our review confirms that, on the limited factual record developed

solely by the County, entry of summary judgment was appropriate.
name="txt1a">(1)

I

A

From October 1991 through August 30, 2002, Ms. Officer, an African-American, was

employed by the County as an Intensive Supervision Officer

("ISO I") in the County's Department of Corrections community corrections

program (the "Corrections Department"). As an ISO I in the adult corrections

services department, Ms. Officer was tasked with monitoring adult felons on

probation and ensuring that they complied with court-ordered conditions of

probation. See Aple. App. at 168; see also id. at 130, 141. Her job

responsibilities included gathering and verifying client intake information;

developing a supervision plan; creating and maintaining files tracking client

compliance and progress; and generally liaising between the client, courts and

law enforcement. Id. at 168-69.

Beginning in approximately 1998, Ms. Officer's job performance audits

(including formal and informal evaluations), while positive in many respects,

critiqued her repeated failures to report and take seriously her probationers'

deviations from probation conditions.(2)

Although Ms. Officer received repeated

warnings, she apparently did not alter her behavior and people outside the

Corrections Department began to take note. On July 22, 2002, Judge David

Kennedy, a Sedgwick County district judge, contacted Ms. Officer's superior,

Annie Nash, to express his concern that Ms. Officer was "running interference,"

or protecting her probationers from him. Ms. Nash directed Greg Friedman, an

ISO II, to speak with Judge Kennedy regarding this issue; during this meeting,

Mr. Friedman noted Judge Kennedy's statement that he "does not send his

defendants to Sedgwick County Department of Corrections to be 'loved' and that

if Sheila was going to love them instead of supervise them he did not want her to

supervise his defendants." Id. at 290. At the conclusion of this meeting, Judge

Kennedy requested the Corrections Department to review Ms. Officer's case files

involving a host of probationers subject to her supervision. See id. at 288-90.

Ms. Officer's job performance evaluations from as early as March 1999

also revealed chronic problems complying with department policy to maintain

client files accurately and consistently.(3)

On February 22, 2000, Ms. Officer

received a "memorandum of concern" from Ms. Nash regarding Ms. Officer's

"ongoing difficulty . . . in maintaining [her] clients [sic] files according to . . .

program[] policies and procedures." Id. at 252. Her May 2000 evaluation

showed no sign of improvement in this regard: it observed that Ms. Officer "is

willing to follow policies that are in agreement with her values and opinion" and

that she consistently failed to provide adequate documentation of client

communications and progress. Id. at 258.

B

Ms. Officer's job troubles came to a head in a case involving Ronda Felix,

a probationer convicted of multiple counts of theft and fraud. Ms. Felix was

charged to Ms. Officer's care upon her sentencing in February of 2001. Aple.

App. at 306. Ms. Felix was temporarily also under the watch of Cinda Hahn, a

Shawnee County caseworker, from March 20, to November 14, 2001. Ms. Felix

was thereafter transferred back to Ms. Officer's sole care. Id. at 309.

On March 15, 2001, Ms. Officer received a phone call from Ms. Felix's

roommate, LaJune Carson, claiming that Ms. Felix had stolen some of her

clothing and forged her checks. Id. at 160. Ms. Officer took no action in

response to this allegation; she did not obtain the police report Ms. Carson had

filed, or inquire further; nor did she supply any plausible reason for inaction. Id.

at 160. Ms. Officer similarly dismissed allegations by a furniture rental company

on March 22, 2001, that Ms. Felix had left town with its property. Id. at 160.

Ms. Officer claims no action was necessary because "[Ms. Officer] put Ronda

Felix on a bus personally. She could not have left with their property." Id. at

160.

On June 19, 2001, Ms. Officer received a call from Ms. Hahn, the Shawnee

County ISO, notifying her that Ms. Felix's employer claimed that she forged

checks from his business account. Id. at 160-61. Ms. Officer admits she did not

conduct any follow up on this allegation either; in her view, "should an

investigation occur, it would have been the responsibility of the ISO in Topeka[,

Ms. Hahn]." Id. at 161. Ms. Officer subsequently received more phone calls

from Ms. Hahn, this time in October and November of 2001, regarding Ms.

Felix's recurring violations of her probation conditions. In response to these

complaints, Ms. Hahn submitted to Ms. Officer an affidavit identifying Ms.

Felix's violations of her probation and Ms. Officer, in response, filed a warrant

for Ms. Felix's arrest; Ms. Felix was subsequently brought back to Sedgwick

County on this warrant. Id. at 161.

At a court hearing in February of 2002 in Sedgwick County, Ms. Felix's

probation was reinstated subject to certain modifications ­ namely, Ms. Felix

was, among other things, to obey all laws, obey all of Ms. Officer's instructions,

maintain full-time employment except during inpatient treatment and while

enrolled in school on a full-time basis, and reside and work in Sedgwick County.

See id. at 313, 306-07. At this hearing, Ms. Officer observed that Ms.

Felix

appeared to be pregnant. Id. at 149.

On April 4, 2002, Ms. Officer sent Judge Karl Friedel, the Sedgwick

County district judge who ordered Ms. Felix's probation, an email representing

that Ms. Felix was pregnant but that she was employed and was complying with

the terms of her probation. Id. at 323. On June 21, 2002, Ms. Officer sent Judge

Friedel another email, this time representing that Ms. Felix was "two days short

of having her baby" and that she gave Ms. Felix a "three week grace period

providing she delivers within the next few days" within which to complete her

community service work. Id. at 325. On Friday afternoon, July 5, 2002, Ms.

Felix contacted Ms. Officer and told her that someone had stolen her baby at the

hospital shortly after giving birth. Id. at 157-58. Although Ms. Officer does not

recall being directed to contact the hospital to verify Ms. Felix's delivery of a

baby and the police to see if anyone reported an abduction, Ms. Officer does not

controvert the accuracy of electronic records showing that she contacted the

hospital on July 5, 2002, to see if it had a record of Ms. Felix giving birth, which

it did not, and the police department to see if it received a report of an abducted

baby, which it had not. Id. at 348. Thus, Ms. Officer's own contemporaneous

records suggest she was aware both that Ms. Felix had not given birth and that

she had reported no abduction.

Over that weekend, a Wichita newspaper reported a "suspicious woman"

dressed in hospital scrubs and a lab coat who was visiting hospitals in the area

and probing staff as to where newborns were kept. Id. at 148. Ms. Officer

brought the article to Ms. Nash's attention the following Monday morning. Id.

Ms. Nash suspected that Ms. Felix was the "suspicious woman" and instructed

Ms. Officer to contact Ms. Felix's physician for information on when and where

the baby was delivered. Id. at 150. Ms. Felix's physician, Dr. Debra Messamore,

told Ms. Officer that Ms. Felix had a prior hysterectomy and thus could not

possibly have been pregnant. Id. at 151.

On July 10, 2002, Ms. Nash conducted an audit of Ms. Officer's case file

on Ronda Felix. Id. at 369-74. She found numerous errors primarily stemming

from Ms. Officer's failure to follow department policy regarding proper

documentation of client files. She also noted Ms. Officer's failure to take

seriously allegations of Ms. Felix's probation violations and questioned Ms.

Officer's judgment in "so willingly believ[ing] the client but . . . [having]

difficulty believing administration." Id. at 225. Ms. Felix was subsequently

arrested and pled guilty to impersonating a doctor. Appellant's Br. 18.

C

On July 19, 2002, Kerri Platt, Ms. Nash's supervisor, met with Ms. Officer

in Ms. Nash's presence and queried Ms. Officer's handling of Ms. Felix's case;

specifically, she focused her concern on why Ms. Officer did not seek

confirmation of Ms. Felix's pregnancy when Ms. Felix sought to miss work (and

thus violate a condition of her probation) due to this medical condition.

Appellant's Br. 22. Ms. Officer's response was that she did not think it

necessary because at the court hearing in February 2002, Ms. Officer alleges that

Judge Friedel "acknowledged [Ms. Felix's] pregnancy in the courtroom" and

stated that Ms. Felix would not need to work for a limited time before and after

the delivery. Aple. App. at 163.

On August 13, 2002, Ms. Platt issued a pre-termination memorandum to

Ms. Officer. This memorandum, prepared by Ms. Platt for Mark Masterson, the

Corrections Department Director (the "Platt Memorandum"), sought to justify

Ms. Officer's termination primarily on the basis of Ms. Officer's handling of Ms.

Felix's case, though it also cited overall inadequate work performance. See Aple.

App. 379-84. Ms. Officer was invited to respond to this memorandum at a pre-termination

hearing before Mr. Masterson. Id. at 379. On August 29, 2002, Ms.

Officer and her attorney attended the hearing and presented evidence and

arguments urging Mr. Masterson not to terminate her. Appellant's Br. 36-37.

The next day, Mr. Masterson issued a Notice of Termination to Ms. Officer

which listed seven specific findings seeking to justify Ms. Officer's termination

(the "Masterson Memorandum"). Among other things, Mr. Masterson found that:

(1) Ms. Officer failed to correct inadequate work performance after being advised

of specific areas of needed improvement; (2) her violations of department policy

in Ms. Felix's case were not unique "but represented a pattern of deficiencies in

job performance detailed in the personnel file"; (3) her "failure to act in verifying

information on several reports of possible new criminal activity consistent with

Rhonda Felix's history not only harmed the client but jeopardized public safety";

and (4) each of the violations contained in the Platt Memorandum was supported

by the evidence. Aple. App. at 390-91.

Following her termination, Ms. Officer brought this action claiming that

she was fired because of her race and in retaliation for expressing concern five

years earlier that the County had a disproportionately small number of African-American ISOs in

light of the significant number of African-American

probationers. After the County moved for summary judgment on both claims, the

district court issued a memorandum and order granting the County's motion. The

district court held that the discriminatory discharge claim must be dismissed

because Ms. Officer failed to show that the County's race-neutral reasons for her

discharge were pretextual, and that her retaliatory discharge claim also failed

because she did not establish a prima facie case. See id. at 625-34.

II

We review the district court's grant of summary judgment de novo.

Young

v. Dillon Co., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment is

proper where "the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c). In adjudicating such a

motion, we are obliged to view the record evidence in the light most favorable to

the nonmovant and draw all reasonable inferences therefrom in favor of the

nonmovant. Young, 468 F.3d at 1249.
name="txt4a">(4) Notwithstanding the foregoing, the

nonmovant cannot rely on "ignorance of facts, on speculation, or on suspicion

and may not escape summary judgment in the mere hope that something will turn

up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

Title VII provides a cause of action to employees who suffer an adverse

employment action because of their race, color, religion, sex, or national origin.

See 42 U.S.C. § 2000e-2(a)(1). Because Ms. Officer seeks to prove her Title

VII

claims solely through indirect or circumstantial evidence of racial animus, we

examine her claim under the burden-shifting framework established by

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under

McDonnell Douglas, the plaintiff must first establish a prima facie case of

discrimination. See Young, 468 F.3d at 1249. Upon the plaintiff's

establishment

of a prima facie case, the burden shifts to the employer to articulate a legitimate,

non-discriminatory reason for the adverse employment action. Id. If the

employer is able to do so, the burden reverts back to the plaintiff to show that the

justification offered by the employer was simply pretext: an attempt to obscure

racial discrimination. Id.

A

The parties agree that the plaintiff met her initial burden of proving a

prima facie case with respect to her discharge and that the defendants articulated

non-discriminatory reasons for her termination; thus, the viability of Ms.

Officer's claim of illegal discharge is dependent upon resolution of the third step

of McDonnell Douglas. See Appellant's Br. 50; Appellees's Br. 49-50.

We have

previously noted that a plaintiff may prove that a defendant's stated reasons are

pretextual in a variety of ways; a plaintiff is not "forced to pursue any particular

means of demonstrating that a defendant's stated reasons are pretextual."

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)

(quoting Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989)

(alterations omitted)).(5) Here, plaintiff

alleges that there are four distinct reasons

evidencing that the defendants' reasons for terminating her were pretextual:

(1) only four of the Corrections Department violations contained in the Platt

Memorandum had merit (leaving eight meritless violations); (2) those four

violations were not significant enough to "warrant immediate termination rather

than the progressive disciplines of reprimand, probation, or demotion which is

County disciplinary policy"; (3) Ms. Platt's and Mr. Masterson's racial animus

can be inferred through the racial composition of the employees recommended

for termination and terminated, respectively; and (4) Ms. Officer received

disparate treatment from a similarly situated Caucasian employee. Appellant's

Br. 50-52.

1. Falsity of Violations. The Supreme Court has observed that "a

plaintiff's prima facie case, combined with sufficient evidence to find that the

employer's asserted justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000). However, such a showing will not

"always be adequate" and "[c]ertainly there will be instances where, although the

plaintiff has established a prima facie case and set forth sufficient evidence to

reject the defendant's explanation, no rational factfinder could conclude that the

action was discriminatory." Id. Our precedent further instructs that, in order for

a plaintiff to show pretext, he or she must demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them

unworthy of credence and hence infer that the employer did not act

for the asserted non-discriminatory reasons. Mere conjecture that

the employer's explanation is pretext is insufficient to defeat

summary judgment.

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (quotation

omitted). We have further clarified that "the relevant falsity inquiry is whether

the employer's stated reasons were held in good faith at the time of the discharge,

even if they later prove to be untrue . . . [and that t]he reason for this rule is

plain: our role is to prevent intentional discriminatory hiring practices, not to act

as a super personnel department, second guessing employers' honestly held (even

if erroneous) business judgments." Young, 468 F.3d at 1250 (quotations and

citations omitted).

Ms. Officer claims that pretext can be established in this case because

many of the policy violations identified in the Platt Memorandum "are just false."

See Appellant's Br. 50, 58. Of course, Ms. Officer was fired not by Ms. Platt;

neither was the Platt Memorandum the operative document discharging her;

rather, Mr. Masterson discharged her and the reasons for her termination were

those listed in the Masterson Memorandum. Aple. App. 390-91. However,

because Mr. Masterson found that the policy and procedure violations contained

in the Platt Memorandum were "supported by the evidence and found to be true,"

if the violations were indeed false, and if Ms. Officer were successful in proving

that the remaining reasons identified by Mr. Masterson for her discharge were

also false, we assume for purposes of our analysis that a factfinder could

determine that the discharge was discriminatory.

Ms. Officer, however, effectively admits to five of the twelve policy

violations identified in the Platt Memorandum ­ two are failures to maintain

records,(6) two are failures to investigate

allegations of non-compliance with

probation conditions, and the last is a failure to assess accurately Ms. Felix's risk

which resulted in her being supervised at a level less intensive than it should

have been. See Appellant's Br. 58.

Even viewing all the evidence in the light most favorable to Ms. Officer

and drawing reasonable inferences in her favor, her commission of six of the

remaining seven policy violations is beyond dispute. Three of these violations

involved a failure to investigate allegations of renewed criminal activity by Ms.

Felix: (1) the allegation by Ms. Carson, Ms. Felix's roommate, that Ms. Felix

had stolen her clothing and forged her checks; (2) the allegation by Rentaway

Rent A Center that Ms. Felix left with its property; and (3) the allegation by Ms.

Felix's employer that she had forged checks relayed to Ms. Officer by Ms. Hahn.

See supra at 5. Ms. Officer claims that these three failure to investigate

violations are "false" because Ms. Officer subjectively believed that it was

impossible for Ms. Felix to have committed the crimes alleged. However, Ms.

Officer's subjective beliefs were immaterial; Ms. Officer was charged with

failing to fulfill her duty under Corrections Department policy to investigate the

allegations and this she admittedly failed to do.

The following three policy violations can be grouped together because they

involved in one way or another the phantom pregnancy: (1) Ms. Officer failed to

follow up on the fact that a different employer in May and June of 2002

contacted Ms. Officer regarding Ms. Felix's poor work attendance, possible theft,

and the employer's suspicion that Ms. Felix was not in fact pregnant; (2) Ms.

Officer failed to obtain, as required by Corrections Department policy,

documentation of Ms. Felix's medical restriction (i.e., her pregnancy); and (3)

Ms. Officer failed to document again Ms. Felix's medical restriction in order to

permissibly absolve Ms. Felix of her responsibility to engage in community

service work. In response to these violations, Ms. Officer repeatedly asserts that

"Ronda really did not have to work according to Judge Friedel's instructions."

Appellant's Br. 32, Aple. App. 162. But Ms. Officer cites nothing but her own

deposition testimony to support this claim about the content of Judge Friedel's

instructions. In any event, the relevant Corrections Department policy does not

provide that compliance with a documentation requirement is excused if a judge

recognizes a medical condition. See Aple. App. at 382. Indeed, even if the judge

remarked on Ms. Felix's putative pregnancy as Ms. Officer testified, we have no

reason to believe the judge did not rely, after the hearing during which Ms. Felix

appeared to be pregnant, on the representations of Ms. Officer herself that Ms.

Felix was indeed pregnant. See supra at 8; see also Aple. App. at 163

(Ms.

Officer admits that Judge Friedel relied on information she provided to him after

the court hearing regarding Ms. Felix's pregnancy). The judge had, after all, no

independent means for assessing whether or not Ms. Felix was pregnant; that

duty belonged to probation staff ­ not the court.

Ms. Officer claims that the remaining policy violation in the Platt

Memorandum is explained by a typographical error. Ms. Officer was required to

seek permission from Judge Friedel, the sentencing judge, prior to temporarily

transferring Ms. Felix to Topeka, Kansas, where Ms. Felix desired to live for a

period of time. The electronic records that Ms. Officer entered stated that she

sought permission from Judge Waller, not Judge Friedel. Aple. App. at 160, 198.

Ms. Officer claims she did not violate the policy because she in fact asked Judge

Friedel for permission, not Judge Waller. In this instance, we bear in mind that

we must look at the facts as they appear to the person making the decision to

terminate plaintiff. Young, 468 F.3d at 1250.
name="txt7a">(7) On the record before him, Mr.

Masterson had every reason to believe, by Ms. Officer's own hand, that she

contacted Judge Waller, and not Judge Friedel as required; further, Ms. Officer

provides no evidence that she came forward with her claim of typographical error

any time prior to her termination.

Ms. Officer claims that the third specific finding cited by the Masterson

Memorandum ­ that she had a pattern of deficient job performance ­ was also

false, this time by virtue of her ten years of service without disciplinary action

and satisfactory performance evaluations. We have previously found pretext on

the basis of past performance evaluations when there is a "glaring contradiction"

between the plaintiff's performance evaluations and the employer's stated

reasons for the termination. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1380

(10th Cir. 1994). But we, like the district court, are unable to see how Ms.

Officer might meet this standard. While Ms. Officer may not have been subject

to disciplinary action such as demotion or suspension, she did receive a

memorandum of concern and her job evaluations repeatedly identified significant

shortcomings in her performance, particularly regarding her inability to

emotionally detach from her probationers and view their indiscretions seriously

and her failure to follow Corrections Department policy ­ shortfalls that became

particularly acute in the Felix episode. See supra at 2 n.2, 4 n.3. Simply put, we

see no glaring contradictions between the stated reasons for her discharge and her

periodic employment reviews.

Having concluded that every single violation identified in the Platt

Memorandum was true or, at the very least, was reasonably believed to be true by

the decision-maker, and given the lengthy record of Ms. Officer's failure to abide

Corrections Department policies, we are constrained to affirm the district court's

holding that Ms. Officer cannot on this record prove pretext by suggesting that

the County's proffered race-neutral reasons were false.

2. Progressive Discipline Policy. Ms. Officer argues that pretext can

be inferred because Mr. Masterson violated the County's progressive discipline

policy by terminating her even though she "had no prior disciplinary actions

against her," and the four violations identified in the Platt Memorandum which

she admits to were "not of such significance or public danger to warrant

immediate termination." Appellant's Br. 51-52. But, the discipline policy in

effect when Ms. Officer was terminated bestowed Mr. Masterson with discretion

to impose any of the following forms of discipline ­ verbal counseling, written

reprimand, suspension without pay, demotion and termination, Aple. App. at 172,

583; that is, County policy did not require Mr. Masterson to dispense a less

severe form of punishment, id. at 172. Mr. Masterson concluded, moreover,

that

the most severe form of discipline was appropriate in this case because, in his

view, Ms. Officer's mishandling of Ms. Felix's case "not only harmed the client

but jeopardized public safety" and "represente[ed] a pattern of deficiencies in job

performance detailed in the personnel file." Id. at 391. Whether or not we agree

with that conclusion, we are not entitled to act as a "super personnel department

that second guesses employers' business judgments." Simms v. Oklahoma ex rel.

Dept. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th

Cir. 1999) (quotation omitted). It is dispositive for our purposes as a reviewing

court that Mr. Masterson's decision to terminate Ms. Officer was within the

discretion afforded to him by the relevant discipline policy and not, as we have

previously held, pretext for discrimination.
name="txt8a">(8)

3. Statistical Evidence of Racial Animus. The Supreme Court in

McDonnell Douglas noted that use of statistics "may be helpful" to determine

whether the employer had a "general policy and practice" of racial

discrimination. 411 U.S. at 804-05. However, the Court cautioned that "such

general determinations, while helpful, may not be in and of themselves

controlling as to an individualized hiring decision, particularly in the presence of

an otherwise justifiable reason for refusing to rehire." Id. at 805 n.19.

Ms. Officer claims that Ms. Platt recommended, and Mr. Masterson fired, a

disproportionately large number of minorities and that this is evidence of their

racial animus. Appellant's Br. 51. Ms. Officer alleges that over the course of

approximately five years, Ms. Platt had only recommended for termination two

African-Americans and one Native-American ­ and that Mr. Masterson

terminated two of these individuals, with the third resigning after his pre-termination hearing.
href="#N_9_a" name="txt9a">(9) Ms. Officer fails to explain how such a

small sample ­

three persons over five years ­ can permit the generation of statistically

significant data suggestive of discrimination, especially in light of the County's

uncontroverted evidence in the record of poor job performance by these

individuals. See, e.g., Mayor of City of Philadelphia v. Educ. Equal. League,

415 U.S. 605, 620-21 (1974) (simplistic percentages highlighting unbalanced

racial composition were held to be meaningless where the composition was

explained by other factors (i.e., qualifications unrelated to race) and the sample

size was too small to be significant).

4. Disparate Treatment. Of course, Congress did not leave without

recourse plaintiffs who are unable to generate statistically significant data but

wish to prove their Title VII claims by reference to the treatment of fellow

employees; in such cases, a Title VII plaintiff may prove discrimination by

showing disparate treatment between herself and similarly situated nonprotected

employees. Ms. Officer alleges this as well, contending that Mr. Masterson

violated an unwritten policy by treating a similarly situated, nonprotected

employee who violated a work rule of comparable seriousness, differently. See

Green v. New Mexico, 420 F.3d 1189, 1194 (10th Cir. 2005). Specifically,

Ms.

Officer claims that Steve Kalocinski, a Caucasian male was similarly situated to

her but was demoted rather than terminated. Appellant's Br. 52, 60-61.

In order to prove disparate treatment, however, it is axiomatic that Ms.

Officer must prove she was "similarly situated" to Mr. Kalocinski and violated

work rules of comparable seriousness. Kendrick, 220 F.3d at 1232. Under our

precedent, an employee "is similarly situated to the plaintiff if the employee deals

with the same supervisor and is subject to the same standards governing

performance evaluation and discipline." Id. (quotation omitted). "A court should

also compare the relevant employment circumstances, such as work history and

company policies, applicable to the plaintiff and the intended comparable

employees in determining whether they are similarly situated." Aramburu, 112

F.3d at 1404. Not all differences in treatment are sufficient to establish a

discriminatory intent; we have explained that "[d]ifferences in treatment that are

trivial or accidental or explained by a nondiscriminatory motive will not sustain a

claim of pretext." Kendrick, 220 F.3d at 1232.

In 1999, after Mr. Kalocinski received a negative review, he voluntarily

requested, and was granted, a demotion from his position as an ISO III (a

supervisor like Ms. Nash) to an ISO I (Ms. Officer's position) in the Juvenile

Field Services Division. Aple. App. at 553-54. Two years later, in November of

2001, Mr. Kalocinski was placed on a 90-day disciplinary probation for

unsatisfactory work performance as an ISO I due to three incidents: (1) allowing

a juvenile client to enter a secure building even though the client did not

successfully pass through a metal detector, (2) allowing a juvenile client to walk

unescorted out of his sight in a secure building, and (3) failing to scan the parent

of a juvenile client who was unable to pass through the metal detector

successfully. Id. at 557. He was also reprimanded for keeping an aluminum bat

with the word "compliance" on it in his desk. Id. at 555-56. In March 2002,

after Mr. Kalocinski failed to complete his disciplinary probation period

successfully, Mr. Masterson demoted Mr. Kalocinski from an ISO I to a

corrections worker and resassigned him to the adult intermediate sanction and

services center. Id. at 554-55.

In this case, we are constrained to conclude that Mr. Kalocinski was not

similarly situated to Ms. Officer ­ his work history and conduct sufficiently

distinguished him from Ms. Officer. Mr. Kalocinski had previously occupied the

position of corrections worker and was successful at that position. Aple. App. at

555. At the time he was demoted to corrections worker, his prior supervisor and

the then-current corrections worker supervisor, told Mr. Masterson that she had a

vacant position "and was receptive and felt that he could be successful in it." Id.

Furthermore, Mr. Masterson felt that Mr. Kalocinski had a good working

relationship with probationers but his problems as an ISO III and I in the juvenile

services division were due to his inability to "be organized enough to do the job

at the level required." Id. By contrast, Ms. Officer had no prior work experience

as a corrections department worker, had no supervisor vouching for her

competence, and the problem work areas identified by her employer were not

confined to organizational skills.

The conduct leading to Mr. Kalocinski's demotion is also of a different

character than Ms. Officer's. Mr. Masterson had before him reports of isolated

incidents of Mr. Kalocinski failing to abide discrete building safety requirements

by permitting juvenile probationers, and in one instance parents of a client, to

enter into Corrections Department buildings without passing through a metal

detector successfully. Meanwhile, Ms. Officer was charged by the County with

repeatedly refusing to report her probationers' failure to comply with probation

conditions as required; failing to follow Corrections Department documentation

policies; and repeatedly taking her probationers' word above all others, which

almost led, in the case of Ms. Felix, to disastrous results. Mr. Masterson

articulated the reasons he did not feel it was appropriate to demote her to the

position of corrections worker as follows:

[Ms. Officer d]oesn't follow policies the way they are intended,

doesn't follow her supervisor's guidance in how she needs to

correct, doesn't follow up on reports of criminal behavior, tends to

side with clients versus gathering the information, doesn't present

the information to judges, is perceived by the people that depend on

her to do this job to not carry it out in a way that leads to trust of her

judgment. And in a residential setting, a corrections worker would

not be successful if they carried out their job in that way.

Aple. App. at 552.

Because Ms. Officer and Mr. Kalocinski's work histories and conduct are

significantly distinguishable, under our precedent the County "must be allowed to

exercise its judgment in determining how severely it will discipline an employee

for different types of conduct." Kendrick, 220 F.3d at 1233; see also

Salguero,

366 F.3d at 1177 (holding that facts identifying significant differences in conduct

among employees under investigation warranted different levels of discipline and

thus was insufficient to show disparate treatment). Ms. Officer's subjective

assessment that she would have been successful as a corrections worker is not

sufficient for us to override Mr. Masterson's beliefs because, so long as it is not

tainted by impermissible animus, "[i]t is the manager's perception of the

employee's performance that is relevant, not plaintiff's subjective evaluation of

[her] own relative performance." Furr v. Seagate Tech., Inc., 82 F.3d 980, 988

(10th Cir. 1996).B

In addition to seeking to remedy workplace discontent, Title VII proscribes

retaliation against employees who voice opposition to, or participate in an

investigation or proceeding alleging, a violation of Title VII by his or her

employer. 42 U.S.C. § 2000e-3(a); see also Burlington N. & Santa

Fe Ry. Co. v.

White, ­ U.S. ­, 126 S.Ct. 2405, 2415 (2006). In order to establish a prima

facie

case of retaliation, a plaintiff must show that: (1) he or she engaged in protected

opposition to discrimination; (2) a materially adverse action by the employer

followed; and (3) a causal connection exists between the protected activity and

the adverse action. Kendrick, 220 F.3d at 1234. A plaintiff "may establish the

causal connection by proffering evidence of circumstances that justify an

inference of retaliatory motive, such as protected conduct closely followed by

adverse action." Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir.

2004) (quotation omitted). As in the discrimination context, where there is only

indirect evidence of retaliation, the McDonnell Douglas framework governs.

See

Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004). In this case, the

district court found, and we agree, that the plaintiff failed to present a prima facie

case of retaliation.

Ms. Officer briefly argues that she was discharged in retaliation for

sending a memorandum in 1997 to Ms. Platt copying, among others, the then-current Director of

the Corrections Department, Ken Hales. Aple. App. at 127.

The memorandum expressed concern that the racial make-up of the ISOs in Ms.

Officer's department did not "mirror" that of its probationers; namely, that there

was a disproportionate number of African-American male probationers to

African-American male ISOs. Id. at 127-28. Ms. Officer also offered to recruit

on behalf of the Corrections Department if requested. Id. at 127. Ms. Officer

alleges that only Ms. Platt responded to her memorandum and that her response

was that Ms. Officer ought not to concern herself with these sorts of personnel

issues. Id. at 127.

The district court ruled, first, that Ms. Officer's memorandum did not

constitute "protected opposition" for Title VII purposes because Ms. Officer

advocated for affirmative efforts to hire more African-American ISOs and did not

allege that her employer had engaged in any discrimination against African-Americans or any

other employment practice made unlawful by Title VII. The

district court held that Ms. Officer's claim also failed because she had not

presented any evidence suggesting that her activities in 1997 had any causal

effect on her termination in 2002.

The question whether Ms. Officer's activities qualify as protected

opposition appears to be a relatively novel one and she cites to us no appellate

authority on point. We need not decide that question, however; even assuming

that Ms. Officer did engage in protected activity in 1997, we are constrained to

agree with the district court's causation analysis. The individual who was

responsible for her termination, Mr. Masterson, testified that he had not seen Ms.

Officer's 1997 memorandum until he was deposed in this case ­ well after he

terminated Ms. Officer ­ suggesting that his decision to discharge her could not

have been in retaliation for her submission of the memorandum. Aple. App. at

174. On appeal, Ms. Officer does not provide us with any evidence or argument

that might lead a juror to disbelieve this testimony (see Appellant's Br. 65-66);

though her burden was a light one ­ Ms. Officer simply had to come forward with

some direct or circumstantial evidence, or even a reasonable inference therefrom,

suggesting that Mr. Masterson had seen her 1997 recommendation ­ she simply

did not pursue the matter before us.(10) In

Williams v. Rice, 983 F.2d 177, 181

(10th Cir. 1993), we rejected a Title VII claim on this same basis, holding that a

"plaintiff must show that the individual who took adverse action against [her]

knew of the employee's protected activity." We see no basis for a different result

here.

For the foregoing reasons, we AFFIRM the district court's judgment.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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. Cited below are only those facts essential

to the resolution of the matters

appealed to us. For a more detailed chronology of the events giving rise to this

litigation, see the district court's comprehensive memorandum and order granting

summary judgment to the County. Aple. App. at 600-634.

2. See Aple. App. at 228

(November 30, 1998 Interim Review) ("In her

zealous efforts to assist her clients, she frequently fails to integrate [the]

program's policies and procedures into her decision making."); id. at 245

(October 29, 1999 Performance Review) ("In her desire to help her clients, she

sometimes loses focus of the bigger picture. She has difficulty detaching from

her clients . . . ."); id. at 263 (November 2001 Interim Review) ("Sheila

sometimes makes recommendations to the court which do not reflect the

seriousness of the client's violations."); id. at 268 (Memo from Supervisor Annie

Nash dated March 12, 2002 regarding Ms. Officer's job performance) ("You are

to fully disclose client violations to the judge. File audits have shown occasions

in which only partial disclosure has occurred.").

3. See Aple. App. at 233

(Memorandum from Ms. Nash to Ms. Officer

dated March 11, 1999) (two client files were missing probation violation letters

in their files and Ms. Officer was ordered to file all such documents in the

future); id. at 250 (Memorandum from Ms. Nash to Ms. Officer dated Jan. 27,

2000) (Ms. Nash documented deficiencies in Ms. Officer's client files and

observed that "some offenders [of] especially high risk requires [sic] a more

strict adherence to policies . . . [an audit of Ms. Officer's files] revealed that [a

sex offender whom Ms. Officer was supervising] is not being supervised . . .

according to program' [sic] guidelines and . . . contact standards. High risk

offenders must be supervised according to programs's guidelines . . .

Few clients

have the correct employment information and you are not entering the

intervention information . . ." (emphasis in original)).

4. Because the record on appeal filed by Ms.

Officer contains evidence not

presented to the district court in its adjudication of the summary judgment

motion, and Ms. Officer did not file a motion to supplement the district court's

record with this material, we will not consider it. We are bound to consider only

those materials before the district court or otherwise properly a part of the record

on appeal. See Fed. R. App. P. 10(a) (the record on appeal consists of the papers

and exhibits filed in the district court; transcript of proceedings, if any; and a

certified copy of the docket entries prepared by the district court); see also

APG,

Inc. v. MCI Telecomm. Corp., 436 F.3d 294, 297 n.1 (1st Cir. 2006) (appellate

court review of "summary judgment rulings is limited to the record as it stood at

the time of the district court's decision"). Accordingly, all cites to the record are

to the record prepared by the Appellees which is compliant with Rule 10(a) of the

Federal Rules of Appellate Procedure.

5. Although the plaintiff's

claims in Kendrick were brought under 42 U.S.C. 1981 and not under Title VII, the elements of a plaintiff's case are the

same and the analytical framework established by McDonnell Douglas controls;

thus, we are bound, in this Title VII context, by our 42 U.S.C. 1981 and 1983

cases on point. See Salguero v. City of Clovis, 366 F.3d 1168, 1175

(10th Cir.

2004).

6. Although Ms. Officer does not expressly

admit that she committed the

second policy violation identified in the Platt Memorandum, see Appellant's Br.

58, in her brief she states in regards to this violation that "she did her job, but did

not write it down. Officer agrees that not recording is a violation, but not

sufficient to justify termination." Id. at 24. Because the policy at issue was a

policy requiring just such a recording, we are constrained to find these statements

permissible of no interpretation other than an admission of the violation.

7. That is, "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." Young, 468 F.3d at 1250 (quoting

Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004)).

8. Worthy of brief comment is Ms. Officer's

assertion in her brief and at

oral argument that she was the County's "scapegoat" and was fired in order to

assuage fears that dangerous probationers like Ms. Felix were not being

supervised appropriately. We note that, so long as the employee was not chosen

as the scapegoat for discriminatory reasons, Title VII does not make it unlawful

for an employer to create scapegoats as a method for dealing with bad press;

rather, Title VII forbids only those adverse employment actions taken because of

an employee's race, color, religion, sex or national origin. See, e.g., Aramburu v.

The Boeing Co., 112 F.3d 1398, 1406 (10th Cir. 1997) ("An animus not related to

[plaintiff]'s ancestry, such as a personality conflict with [his supervisor], is not

evidence of improper discrimination."). An employee may also, under certain

circumstances, properly bring a tort claim. See, e.g., Luisi v. JWT Group, Inc.,

128 Misc. 2d 291 (N.Y. Sup. Ct. 1985) (former advertising executive

successfully pleaded libel claim where press release issued by former employer

used plaintiff as the scapegoat for accounting irregularities).

9. Ms. Officer contradicts herself as to the

number of employees terminated

by Mr. Masterson. Initially she alleges that he terminated a total of three

employees. See Appellant's Br. 41. Subsequently, she claims that he terminated

three African-Americans, see Appellant's Br. 51; however, she provides no

citation to the record nor identifies this additional African-American raising the

tally. We assume that this was a typographical error since there is no evidence in

the record before us of a third African-American employee subject to a pre-termination hearing

by Mr. Masterson.

10. For example, assuming that the

decision-maker is aware of the protected

opposition, a jury can of course infer causation from a close nexus in time

between the protected activity and the alleged retaliatory action; here, however,

five years passed between those two events and precedent precludes us from

allowing any inference of causation given the passage of so much time. See

Kendrick, 220 F.3d at 1234 (a lapse of one year between the opposition and

the

alleged retaliation is too remote to support any inference of a causal connection);

see also Stover, 382 F.3d at 1074 (collecting cases).

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