Hobart Hayes, Plaintiff-appellant, v. State of Kansas Department of Human Resources, Defendant-appellee, 76 F.3d 392 (10th Cir. 1996)

ORDER AND JUDGMENT¹ 

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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Hobart Hayes appeals from a judgment dismissing his Title VII action against defendant State of Kansas Department of Human Resources. We affirm.

The parties are familiar with the facts and we need not repeat them here. Defendant moved for summary judgment, arguing inter alia that plaintiff's claim failed on the merits. The district court agreed and granted the motion.

We review the grant of summary judgment de novo, applying the same standard as the district court. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). We examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Id. If no genuine issues of material fact are in dispute, we determine whether the district court correctly applied the substantive law. Id.

We set forth the analytical framework for deciding Title VII cases on summary judgment in Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Plaintiff argues he established pretext through evidence that two charges of discrimination he had filed against defendant were pending at the time of his discharge. The elements of a prima facie case of retaliation are that the plaintiff actively opposed Title VII discrimination, the plaintiff was subject to adverse employment action subsequent to or simultaneously with the protected activity, and a causal connection exists between the protected activity and the adverse employment action. Murray v. City of Sapulpa, 45 F.3d 1417, 1420 (10th Cir. 1995). "The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982). However, an inference of retaliatory motive can be made only if there is a close temporal proximity between the bringing of charges and the adverse action. Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1262 (10th Cir. 1994).

The two charges of discrimination to which plaintiff refers were filed in August and October 1986. He was discharged in February 1991, more than four years later. Plaintiff's filing of the charges therefore does not raise an inference of retaliation, and his retaliation claim fails at the prima facie stage of the analytical process. That those charges were pending and a probable cause finding had been made when plaintiff was discharged is not decisive.

Plaintiff next contends he met his burden of proving pretext by showing disparate treatment between himself and several non-African-American employees who were found to have engaged in sexual harassment but were not discharged. A plaintiff may establish pretext by showing similarly situated nonminority employees were treated differently than him with respect to enforcement of company rules and regulations. Murray, 45 F.3d at 1422.

Plaintiff points to defendant's failure to terminate Joseph Ybarra after Ybarra was accused of sexual harassment as evidence of disparate treatment. However, plaintiff presented no evidence that he and Ybarra were similarly situated. The undisputed facts establish they were not. The alleged incident of sexual harassment was Ybarra's first disciplinary infraction; plaintiff had other infractions. Further, a different decisionmaker was involved in Ybarra's case than in plaintiff's. The EEOC and KCCR found no probable cause to believe Ybarra had engaged in sexual harassment; in contrast, the KCSB found that plaintiff had engaged in sexual harassment, and the state district court upheld this finding.

The district court refused to consider additional evidence that three other non-African-American employees engaged in sexual harassment but were not discharged because a pretrial order barred plaintiff from offering the evidence for failing to provide court-ordered discovery. Plaintiff offered no argument challenging the pretrial order; consequently, we will not review the district court's refusal to consider the comparable evidence. See State Farm Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994) (holding failure to raise issue in opening brief waives issue). We conclude plaintiff failed to create a genuine issue of material fact as to pretext by showing disparate treatment among similarly situated employees.

Finally, plaintiff argues he showed pretext because there was no evidence his conduct constituted sexual harassment under Title VII. Plaintiff was discharged for gross misconduct or conduct grossly unbecoming a state officer/employee, as well as for sexual harassment. He has not attempted to show that his conduct did not constitute gross misconduct or conduct grossly unbecoming a state officer/employee.

In any event, the relevant inquiry is not whether plaintiff's conduct technically would support a finding of a Title VII violation, but whether the stated reason for plaintiff's discharge was a pretext for racial discrimination or retaliation. Toni Wellshear testified before the KCSB that plaintiff made the comments that were the basis for his termination. Sandi Heim testified that she overheard plaintiff make one of the comments. Plaintiff's supervisor, A.J. Kotich, testified that Wellshear reported the incidents to him. He recommended that plaintiff be dismissed on that basis, as well as because plaintiff was the EEO officer at the time of the incidents and he had had past disciplinary problems.

Michael Johnston, the Secretary of the Department of Human Resources and the person who terminated plaintiff, testified that he went over Wellshear's allegations with her and believed she was credible. He provided plaintiff an opportunity to respond to the allegations. When plaintiff denied the incidents, Johnston asked Kotich to see if he could find any corroborating evidence. Kotich found Heim's corroborating statement, and Johnston decided to terminate plaintiff. He chose termination over suspension based on the seriousness of the offense and plaintiff's prior disciplinary record.

While plaintiff denied that the incidents occurred, he presented no evidence that Wellshear did not report the incidents, as described, to Johnston. Johnston had to make a judgment call whether to believe Wellshear or plaintiff. He chose to believe Wellshear after one of her allegations was corroborated.

Defendant had a legal obligation to eradicate sexual harassment in the workplace. Even if basing the decision to terminate plaintiff on Wellshear's allegations was an erroneous business judgment (a question we need not address), this does not establish pretext. See Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995). Rather, " [p]retext requires a showing that the tendered reason for the employment decision was not the genuine motivating reason, but rather was a disingenuous or sham reason. A true motivating reason is not made pretextual merely because, from the benefit of hindsight, it turned out to be poor business judgment." Id. Plaintiff presented no evidence suggesting that defendant did not actually believe he had sexually harassed Wellshear. See id. Thus, he did not carry his burden on summary judgment.

The judgment of the United States District Court for the District of Kansas is AFFIRMED.