Loudon v. HealthSouth Corporation et al

Filing 49

MEMORANDUM AND ORDER granting 40 Defendant's Motion for Summary Judgment. The Court GRANTS summary judgment in favor of Defendant on Plaintiff's claims for retaliation under Title VII and 42 U.S.C. § 1981. Signed by District Judge Holly L. Teeter on 09/20/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CATHERINE J. LOUDON,
Plaintiff,
v.

Case No. 2:16-cv-02713-HLT

K.C. REHABILITATION HOSPITAL,
INC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Catherine Loudon alleges claims for retaliation against her former employer,
Defendant K.C. Rehabilitation Hospital, Inc., pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981 (“Section 1981”). Defendant
moves for summary judgment on both claims. Doc. 40. Because Plaintiff cannot show that she
engaged in the requisite “protected activity” to support her claims for retaliation, the Court grants
summary judgment in favor of Defendant on Plaintiff’s claims.
I.

BACKGROUND
A. Plaintiff’s Employment
The following facts are uncontroverted or related in the light most favorable to Plaintiff as

the nonmoving party. Defendant operates MidAmerica Rehabilitation Hospital (“MARH”) in
Overland Park, Kansas, which provides specialized inpatient and outpatient care for patients
recovering from a variety of conditions and injuries. Doc. 41 ¶¶ 1-2. Defendant hired Plaintiff as
MARH’s Human Resources Director (“HRD”) on December 2, 2013, and Plaintiff served as HRD
until her termination. Id. ¶¶ 4, 9. As HRD, Plaintiff oversaw all Human Resources office operations
at MARH, and her job responsibilities included “plan[ning], organiz[ing] and direct[ing] all

aspects of Human Resources Management,” ensuring compliance with company policies and legal
aspects of the employee-employer relationship, and “report[ing] questionable situations, concerns,
complaints or harassment.” Id. ¶¶ 11-12. Throughout the course of her employment, Plaintiff
reported to Troy DeDecker, MARH’s Chief Executive Officer. Id. ¶¶ 3, 10.
B. Salary Equity
During Plaintiff’s first two weeks of employment, Plaintiff and DeDecker discussed the
issue of pay equity at MARH. Id. ¶ 15. DeDecker terminated Plaintiff’s predecessor as HRD for
creating—and failing to remedy—salary inequity issues among MARH staff. Id. ¶¶ 13-14.
DeDecker therefore instructed Plaintiff to review employee compensation to identify any
inequities. Id. ¶ 16.
In the course of her review, Plaintiff discovered instances where non-diverse employees
were paid at a higher rate than their diverse colleagues. Id. ¶ 20. Plaintiff reported her findings to
DeDecker and made recommendations to remedy the inequities. Id. ¶¶ 22, 24-26. DeDecker told
Plaintiff on various occasions that he “agree[d]” with her findings and “would consider” her
proposal. Id. ¶¶ 23, 32. Plaintiff brought up the pay equity project with DeDecker four to five
additional times over the summer of 2014. Id. ¶ 33. Plaintiff felt DeDecker was “annoyed” when
she continued to bring up the project, and, during one meeting in October 2014, DeDecker became
verbally loud and confrontational. Id. ¶¶ 34, 45-46.
In November and December 2014, Plaintiff sent DeDecker the names and proposed salary
adjustments for eight employees. Id. ¶¶ 47, 49. DeDecker promptly emailed Plaintiff’s proposal to
his supervisor, recommending his supervisor approve the increases. Id. ¶¶ 51-52. DeDecker then
forwarded this email to Plaintiff, commenting, “I am hopeful we can get this done. Thank you for

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putting the spreadsheet together.” Id. ¶ 54. The salary increases were ultimately implemented.
Id. ¶ 55.
C. Sexual Harassment Investigation
Approximately two months later, on February 2, 2015, a female MARH employee—
referred to in the parties’ briefing as “LO”—complained to Plaintiff that a male coworker—
referred to as “JK”—sexually harassed her. Id. ¶ 58. Plaintiff met with DeDecker on the same day
to inform him of the complaint and told DeDecker she would investigate the allegations. Id. ¶ 59.
During their meeting, Plaintiff and DeDecker discussed what corrective action, if any,
needed to be taken. DeDecker asked Plaintiff if MARH could terminate LO’s employment.
Id. ¶ 64. Plaintiff responded that MARH could not terminate LO for filing a complaint and would
need to investigate before determining how to proceed. Id. ¶ 65. Plaintiff recommended suspending
both JK and LO during the pendency of the investigation for a “clean case.” Id. ¶ 68. DeDecker
asked if they could suspend LO but not JK, and Plaintiff advised that hospital policy dictated they
suspend the alleged harasser and that suspending only LO could expose MARH to legal action.
Id. ¶¶ 70-72; Doc. 44 ¶ 170. Plaintiff felt DeDecker was “angry” and “unhappy” with her
recommendation. Doc. 41 ¶¶ 73-75. DeDecker directed Plaintiff not to suspend JK. Id. ¶ 77.
DeDecker also instructed Plaintiff not to contact corporate Human Resources (“Corporate HR”)
about LO’s complaint. Id. ¶ 66.
Following her investigation, on February 12, 2015, Plaintiff met with DeDecker to inform
him that the investigation was inconclusive. Id. ¶ 78. DeDecker asked Plaintiff if MARH could
terminate LO’s employment for filing a false complaint. Id. ¶ 79. When Plaintiff responded that
she would not recommend terminating LO—again, due to potential legal ramifications—
DeDecker yelled at Plaintiff, stating “this was not the outcome he wanted.” Id. ¶¶ 80-81. LO was

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not terminated and remained employed with MARH for the duration of DeDecker’s employment.
Id. ¶ 82.
Plaintiff also told DeDecker that—because LO might call either the “ethics hotline” or
“corporate”—Plaintiff needed to contact Corporate HR to apprise them of the investigation.
Id. ¶ 87. Although Plaintiff has testified that she was concerned DeDecker would fire her for
contacting Corporate HR, in response DeDecker simply told Plaintiff to “be careful.” Id. ¶ 88;
Doc. 44 ¶ 182. Plaintiff subsequently contacted Corporate HR, and Corporate HR asked Plaintiff
to send documentation related to her investigation. Doc. 41 ¶¶ 89, 92.
D. Plaintiff’s Termination
Six days after meeting with DeDecker, on February 18, 2015, Plaintiff provided her written
investigation report to DeDecker and Corporate HR. Id. ¶ 118. Upon reviewing Plaintiff’s report,
DeDecker became concerned with the content of the report and inaccuracies in the timeline.
Id. ¶¶ 119-121. The inaccuracies are summarized as follows:1
Contents of Plaintiff’s Investigative Report Findings of Review
LO made her sexual harassment complaint to LO was not scheduled to work on February 4,
Plaintiff on February 4, 2015.
2015 and did not clock in, did not use her ID
badge to enter MARH, and did not go to the
HR office. It appears LO made the initial
complaint to Plaintiff on February 2, 2015.
LO put a note under Plaintiff’s door on LO was not scheduled to work on February 5,
February 5, 2015.
2015, and did not clock in, did not use her ID
badge to enter MARH, and did not go to the
HR office.
JK’s brother met with HR on February 10, Plaintiff was not in the building on February
2015, at 7:00 a.m.
10, 2015, so it appears JK’s brother met with
Plaintiff’s assistant, not Plaintiff.
Plaintiff met with LO on February 10, 2015, to LO was not scheduled to work on February 10,
discuss the status of the investigation.
2015, and did not clock in. It appears Plaintiff
and LO met on February 11, 2015.
1

With the exception of minor changes, this chart is identical to the chart set forth in Fact No. 125 of Defendant’s
Statement of Uncontroverted Material Facts, provided in connection with its Memorandum in Support of its
Motion for Summary Judgment (Doc. 41), which was uncontroverted by Plaintiff.

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Contents of Plaintiff’s Investigative Report Findings of Review
Plaintiff met with JK on February 11, 2015, at Plaintiff did not arrive to work on February 11,
7:30 a.m.
2015, until well after 7:30 a.m. MARH video
showed Plaintiff and JK walking into the HR
office at 7:56 a.m. on February 12, 2015. It
appears Plaintiff and JK met on February 12,
2015, at 7:56 a.m.
Plaintiff met with LO on February 11, 2015, LO stated she met with Plaintiff on February
regarding the results of the investigation.
12, 2015, regarding the results of the
investigation, which is consistent with MARH
video. It appears Plaintiff and LO met on
February 12, 2015, regarding the results of the
investigation.
Id. ¶ 125. Confronted with questions regarding her investigation, Plaintiff admitted the
investigative report contained inaccuracies. Id. ¶¶ 134-144. Defendant subsequently terminated
Plaintiff’s employment effective February 25, 2015. Id. ¶ 147.
Following her termination, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on December 16, 2015, claiming gender- and
race-based discrimination and retaliation. Doc. 1-1. On July 20, 2016, the EEOC issued Plaintiff a
Notice of Right to Sue letter. Doc. 1-2. Plaintiff filed her Complaint with this Court on
October 18, 2016, alleging retaliation in violation of Title VII and Section 1981. Doc. 1. Defendant
moves for summary judgment on both claims. Doc. 40.
II.

STANDARD
Summary judgment is appropriate where “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). In applying
this standard, courts must view “all facts and any reasonable inferences that might be drawn from
them in the light most favorable to the nonmoving party.” Henderson v. Inter-Chem Coal Co., 41
F.3d 567, 569 (10th Cir. 1994). “There is no genuine issue of material fact unless the evidence,
construed in the light most favorable to the non-moving party, is such that a reasonable jury could

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return a verdict for the non-moving party.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
III.

ANALYSIS
Plaintiff argues her employment was terminated in retaliation for: (1) recommending the

suspension of JK following allegations of sexual harassment; (2) refusing to terminate LO
following her sexual harassment complaint; (3) refusing DeDecker’s directive not to involve
Corporate HR in the sexual harassment investigation; and (4) reporting concerns to DeDecker
regarding gender- and race-based salary inequities. Doc. 37 at 10. In its motion for summary
judgment, Defendant contends none of these actions constitute protected activity sufficient to
support Plaintiff’s claims. Doc. 41. Defendant further contends that, even if the Court were to find
that Plaintiff engaged in the requisite protected activity, these actions were not the reason for her
termination, and, rather, Plaintiff was terminated due to her mishandling of, and dishonesty during,
the investigation of LO’s sexual harassment complaint. Id.
Unless a plaintiff supplies direct evidence of retaliation, a court must analyze the plaintiff’s
claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).2 First, the plaintiff must establish a prima facie case of retaliation. Tabor v. Hilti,
Inc., 703 F.3d 1206, 1216 (10th Cir. 2013). “The burden at this stage is ‘not onerous.’” Id. (quoting
Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005)). To prove a prima facie claim
for retaliation under both Title VII and Section 1981, the plaintiff must show: (1) she engaged in
protected activity, (2) she suffered a materially adverse employment action, and (3) a causal
connection exists between the protected activity and the adverse action. Thomas v. Berry Plastics
Corp., 803 F.3d 510, 514 (10th Cir. 2015); Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998

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Neither party disputes that the McDonnell Douglas framework applies here.

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(10th Cir. 2011) (finding showing required to establish retaliation is identical under Title VII and
Section 1981).
Second, if the plaintiff makes a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse action. Tabor, 703 F.3d at 121617. Third, provided the defendant satisfies this second step, the plaintiff will avoid summary
judgment only if she can show that the defendant’s explanation is mere pretext—that is, that the
defendant’s asserted reason was not the “true reason” for her termination. Id. at 1217-18. The
plaintiff can meet this burden by showing: (1) that the defendant’s proffered reason is factually
false; or (2) that retaliation was a primary factor in the decision, which can be established by
showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the
defendant’s reason, such that “a reasonable fact finder could deem [the defendant’s] reason
unworthy of credence.” Id. at 1218 (internal quotations omitted). Speculation that an explanation
is pretext is insufficient, as is evidence that the employer was mistaken or used poor business
judgment—it does not matter whether the proffered reason was “wise, fair or correct.” Anderson
v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999); Swackhammer v. Sprint/United
Mgmt. Co., 493 F.3d 1160, 1169-70 (10th Cir. 2007). Rather, the relevant inquiry is whether the
employer honestly believed those reasons and acted in good faith upon its beliefs. Swackhammer,
493 F.3d at 1170.
A. Retaliation Under Title VII
1. Prima Facie Case
The parties do not dispute that Plaintiff’s termination constitutes a material adverse
employment action, satisfying the second element of her prima facie case. The parties do dispute
whether Plaintiff engaged in protected activity sufficient to satisfy the first element of her claims,

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and, if so, whether there was a causal connection between the protected activity and Plaintiff’s
termination sufficient to satisfy the third element.
Protected activities fall into two categories: participation and opposition. Vaughn v.
Epworth Villa, 537 F.3d 1147, 1151 (10th Cir. 2008). Plaintiff brings her claim under Title VII’s
opposition clause, which prohibits an employer from retaliating against an employee who
communicates a belief that the employer engaged in unlawful employment practices. Furr v.
Ridgewood Surgery & Endoscopy Ctr., LLC, 192 F. Supp. 3d 1230, 1247 (D. Kan. 2016). Under
the “manager rule,” employees required as part of their job duties to report or investigate
complaints of discrimination cannot claim that such reporting or investigating itself is a protected
activity under the opposition clause because conveying another’s discrimination complaint is not
the same as opposing unlawful practices. Id. at 1248. Put simply, an employee cannot use the
performance of her job duties as a basis for protected activity. Robinson v. Wichita State Univ.,
2018 WL 836294, at *3 (D. Kan. 2018). In her capacity as HRD, therefore, for Plaintiff to have
engaged in protected activity, she must have “stepped outside” her role of representing Defendant
and either filed—or threatened to file—an action adverse to Defendant, actively assisted other
employees in asserting their Title VII rights, or otherwise engaged in “activities that reasonably
could be perceived as directed towards the assertion of rights protected by [Title VII].” McKenzie
v. Renberg’s Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996).3

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The parties disagree regarding the impact of the Supreme Court’s holding in Crawford v. Metropolitan Government
of Nashville & Davidson County, Tennessee, 555 U.S. 271 (2009), on the manager rule in this Circuit. In Crawford,
the Supreme Court suggests that to oppose an unlawful employment action under Title VII broadly means “[t]o
resist or antagonize . . . ; to contend against; to confront; resist; withstand.” 555 U.S. at 276. Circuits are divided
regarding Crawford’s effect, if any, on the application of the manager rule. Loudon v. HealthSouth Corp., 2017
WL 2440276, at *3 (D. Kan. 2017). Post-Crawford, the Tenth Circuit declined to address Crawford’s impact.
Weeks v. Kansas, 503 F. App’x 640, 643 (10th Cir. 2012) (“Whether and how [the standard enunciated by
Crawford] meshes with McKenzie’s preexisting and more particular rule for retaliation claims . . . is not clear.”).
However, the Tenth Circuit reiterated that “[t]o engage in protected opposition [an employee] must . . . ‘step
outside . . . her role of representing the company and either file (or threaten to file) an action adverse to the
employer, actively assist other employees in asserting [Title VII] rights, or otherwise engage in activities that

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Plaintiff identifies four separate acts that she argues constitute protected activity under Title
VII: (1) recommending the suspension of JK following allegations of sexual harassment;
(2) refusing to terminate LO following her sexual harassment complaint; (3) refusing DeDecker’s
directive not to involve Corporate HR in the sexual harassment investigation; and (4) reporting
concerns to DeDecker regarding gender- and race-based salary inequities. The Court addresses
each of these actions in turn.
a. Recommending suspension of JK
First, Plaintiff claims that she engaged in protected activity under Title VII by
recommending the suspension of JK to her supervisor, DeDecker. The undisputed evidence,
however, shows that, in recommending the suspension of JK, Plaintiff was merely discharging her
duties as HRD and never “stepped outside” her role so as to engage in protected activity. As HRD,
Plaintiff’s responsibilities included planning, organizing, and directing all aspects of Human
Resources Management, ensuring compliance with company policies and legal aspects of the
employee-employer relationship, and reporting questionable situations, concerns, complaints, or
harassment. Doc. 41 ¶¶ 11-12.
As part of her job, Plaintiff reported LO’s complaint to DeDecker. Id. ¶ 59. Plaintiff and
DeDecker proceeded to discuss what, if any, corrective action needed to be taken in the wake of
LO’s complaint. Plaintiff recommended suspending both JK and LO during the investigation for
a “clean case.” Id. ¶ 68. DeDecker asked if they could suspend LO but not JK, and Plaintiff advised
that hospital policy dictated they suspend the alleged harasser and that suspending only LO could
expose MARH to legal action. Id. ¶¶ 70-72; Doc. 44 ¶ 170. DeDecker then directed Plaintiff not

reasonably could be perceived as directed towards the assertion of rights protected by [Title VII].’” Id. at 642
(citing McKenzie, 94 F.3d at 1486-87). In the absence of any holding to the contrary, the Court finds that the
manager rule, as described in McKenzie and Weeks, remains the law in this Circuit.

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to suspend JK. Doc. 41 ¶ 77. Plaintiff has not alleged that she suspended JK or otherwise defied
DeDecker’s directive.
In recommending the suspension of JK, Plaintiff did not assert any rights under Title VII
and was merely discharging her everyday duties as HRD by reporting LO’s complaint and advising
DeDecker on compliance with hospital policy. Plaintiff never crossed the line from performing
her job as HRD to asserting a right adverse to Defendant. Precedent dictates that, for a human
resources manager to engage in protected activity, she must do more than simply perform her job
responsibilities. Plaintiff has not shown that she engaged in protected activity by recommending
JK’s suspension.
b. Refusing to terminate LO
Second, Plaintiff argues that her refusal to terminate LO following LO’s sexual harassment
complaint constituted protected activity. The undisputed facts show that, after Plaintiff reported
LO’s complaint to DeDecker, DeDecker asked Plaintiff if MARH could terminate LO’s
employment. Id. ¶ 64. Plaintiff advised DeDecker that MARH could not terminate Plaintiff for
filing a complaint, and that she would need to investigate before determining how to proceed.
Id. ¶ 65. Plaintiff’s investigation was ultimately inconclusive, and DeDecker again asked Plaintiff
if MARH could terminate LO’s employment. Id. ¶¶ 78-79. Plaintiff responded that she would not
recommend terminating LO, due to potential legal ramifications. Id. ¶¶ 80-81. LO was not
terminated and remained employed with MARH for the duration of DeDecker’s employment.
Id. ¶ 82.
Again, in advising DeDecker on his termination question, Plaintiff was simply performing
her duties as HRD. Moreover, the undisputed factual record shows that DeDecker merely asked if
MARH could terminate LO. And, when Plaintiff advised that she would not recommend

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terminating LO, DeDecker apparently heeded her advice—LO was not terminated and, indeed,
remained employed by MARH throughout the rest of DeDecker’s employment. DeDecker never
gave Plaintiff a directive to terminate LO. Likewise, Plaintiff never filed (or threatened to file) an
action adverse to Defendant, actively assisted LO in asserting her Title VII rights, or otherwise
engaged in activities that reasonably could be perceived as directed towards the assertion of
protected rights. Plaintiff has not shown that she engaged in protected activity in advising against
the termination of LO.
c. Refusing directive not to involve Corporate HR
Third, Plaintiff alleges she engaged in protected activity by refusing a directive from
DeDecker not to involve Corporate HR in the sexual harassment investigation. After Plaintiff
informed DeDecker that she would need to investigate LO’s complaint, DeDecker instructed
Plaintiff not to contact Corporate HR. Id. ¶ 66. At the conclusion of her investigation, Plaintiff told
DeDecker that she needed to contact Corporate HR to apprise them of the investigation because
LO might call either the “ethics hotline” or “corporate.” Id. ¶ 87. In response, DeDecker told
Plaintiff to “be careful”—there is no evidence that DeDecker told Plaintiff not to call at this point.
Id. ¶ 88. Plaintiff subsequently contacted Corporate HR. Id. ¶¶ 89, 92.
Plaintiff did not engage in any protected activity by contacting Corporate HR regarding the
investigation because Plaintiff did not contact Corporate HR in an effort to oppose discrimination.
Plaintiff contacted Corporate HR only because she expected LO to contact Corporate HR, and
Plaintiff wanted Corporate HR to be aware of the investigation. And, in contacting Corporate HR,
Plaintiff was simply discharging her duties as HRD by informing Corporate HR of LO’s complaint
and the ensuing investigation. She never crossed the line from performing her job to asserting a

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right adverse to Defendant. Plaintiff’s third proposed basis for protected activity under Title VII
likewise fails.
d. Reporting concerns regarding salary inequities
Fourth, Plaintiff argues that she engaged in protected activity under Title VII by reporting
concerns to DeDecker regarding salary inequities based on gender and race. The uncontroverted
evidence shows that, during Plaintiff’s first two weeks of employment, DeDecker directed Plaintiff
to review employee compensation for any salary equity issues. Id. ¶¶ 15-16. During Plaintiff’s
review, she identified certain gender- and race-based inequities, promptly brought them to
DeDecker’s attention, and made recommendations to remedy the inequities. Id. ¶¶ 20, 22, 24-26.
Plaintiff followed up with DeDecker four to five additional times over the summer of 2014 and,
although Plaintiff testified she felt DeDecker was “annoyed” and angry when she continued to
bring up the project, DeDecker forwarded Plaintiff’s proposal to his supervisor, recommended his
supervisor approve the proposed salary adjustments, and thanked Plaintiff for her work. Id. ¶¶ 3334, 45-46, 51-52, 54. The salary increases were ultimately implemented. Id. ¶ 55.
Again, in investigating and reporting salary inequity issues at MARH, Plaintiff was simply
discharging a responsibility of her job—one that DeDecker himself instructed her to do. Plaintiff
never crossed the line from performing her job as HRD to asserting a right adverse to Defendant.
She never filed, or threatened to file, an action adverse to Defendant, actively assisted employees
in asserting their Title VII rights, or otherwise engaged in activities that reasonably could be
perceived as directed towards the assertion of rights protected by Title VII. Plaintiff has not shown
that she engaged in protected activity by reporting her concerns regarding salary inequities.

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2. Pretext
Because Plaintiff failed to establish a prima facie case, summary judgment is appropriate.
But, even assuming Plaintiff could establish all of the elements of her prima facie case, Plaintiff’s
claim fails for the additional reason that Defendant has proffered a legitimate, nondiscriminatory
reason for her termination, and Plaintiff has not shown that Defendant’s explanation is pretext.
Defendant contends that Plaintiff was terminated due to her mishandling of, and dishonesty during,
the sexual harassment investigation. In response, Plaintiff points to various inconsistencies that
she claims show that Defendant’s proffered reason is pretext—including DeDecker’s “changing
explanations” for his decision to terminate Plaintiff—and also takes issue with Defendant’s refusal
to consider evidence that Plaintiff was not lying in her report. Doc. 44 at 28-29.
The uncontroverted evidence supports Defendant’s proffered reason for Plaintiff’s
termination, and Plaintiff’s evidence is insufficient to create a genuine issue of material fact as to
pretext. First, Defendant is consistent in its concerns regarding Plaintiff’s investigation and the
reasons for her termination. The undisputed evidence shows that DeDecker became concerned
with the content of Plaintiff’s report immediately upon reviewing the report. Doc. 41 ¶¶ 119-121.
And when DeDecker brought the inconsistencies to Plaintiff’s attention, she admitted that the
report was inaccurate, and she was subsequently terminated. Id. ¶¶ 134-144, 147. Second,
Defendant was entitled to rely on its business judgment in making the termination decision.
Plaintiff’s argument is essentially that she disagrees that the inaccuracies in her report (which,
again, she concedes, see supra Part I.D) justified her termination. Whether Defendant’s proffered
reason was fair or correct is immaterial, however, so long as Defendant honestly believed its reason
and acted in good faith upon its beliefs. Swackhammer, 493 F.3d at 1169-70.

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The alleged inconsistencies raised by Plaintiff are simply too minor to give rise to an
inference of pretext. Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1402 (10th Cir. 1988)
(concluding instances of alleged contradictions and inconsistencies were too insubstantial to allow
a reasonable jury to infer pretext). Although inferences are to be resolved in favor of the plaintiff,
a court “is ‘not required to evaluate every conceivable inference which can be drawn from
evidentiary matter, but only reasonable ones.’” Id. at 1401 (quoting Matthews v. Allis-Chalmers,
769 F.2d 1215, 1218 (7th Cir. 1985)). Plaintiff has not shown that Defendant’s proffered reason is
factually false, nor has she shown such “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” that a reasonable fact finder could determine Defendant’s reason
lacks credibility. Tabor, 703 F.3d at 1218. For this additional reason, summary judgment is proper
on Plaintiff’s claim for retaliation in violation of Title VII.
B. Retaliation Under Section 1981
Plaintiff also asserts a claim for retaliation under Section 1981, which is subject to the same
McDonnell Douglas burden-shifting framework as her claim under Title VII. Thomas, 803 F.3d at
514 (analyzing Section 1981 retaliation claim under McDonnell Douglas framework). Section
1981 prohibits race discrimination in making and enforcing contracts, including employment
contracts. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1265 (10th Cir. 2013); CBOCS W., Inc.
v. Humphries, 553 U.S. 442, 454 (2008). In this case, Plaintiff claims she was terminated after
expressing concerns to DeDecker regarding salary inequity among employees based on race.4

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Plaintiff’s allegations are unclear regarding the exact basis for her Section 1981 retaliation claim, and—although
Plaintiff clarifies in her opposition that her Section 1981 claim relates only to her allegation that she opposed racebased salary inequities (Doc. 44 at 25)—to the extent Plaintiff relies upon allegations unrelated to race-based
discrimination as a basis for her Section 1981 claim, the claim fails as a matter of law as it pertains to those
allegations. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 n.3 (10th Cir. 1993) (dismissal of Section
1981 claims was proper because Section 1981 “does not apply to sex . . . discrimination”).

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Defendant is entitled to summary judgment on Plaintiff’s Section 1981 claim for two separate
reasons.
First, Plaintiff fails to address Defendant’s arguments in favor of summary judgment on
her Section 1981 claim. By failing to respond to Defendant’s arguments, Plaintiff has abandoned
this claim. Hinsdale v. City of Liberal, Kan., 19 F. App’x 749, 768-69 (10th Cir. 2001) (affirming
district court’s ruling that plaintiff abandoned claim by failing to address it in response to motion
for summary judgment); Maestas v. Segura, 416 F.3d 1182, 1190 n.9 (10th Cir. 2005) (finding
plaintiffs abandoned claims by failing to “seriously address them” in their appellate brief).
Summary judgment in favor of Defendant on Plaintiff’s Section 1981 claim is warranted on this
basis alone.
Second, even if Plaintiff had not abandoned this claim, the claim still fails because Plaintiff
cannot meet her initial burden to establish a prima facie case for retaliation under Section 1981.
Plaintiff’s conduct during her work on the pay equity project did not constitute protected activity.
See supra Part III.A.1.d. Because Plaintiff has not carried her burden of establishing a prima facie
case for retaliation under Section 1981, the Court need not proceed with the remainder of the
McDonnell Douglas test. However, for the reasons discussed in Part III.A.2, supra, even if Plaintiff
had established a prima facie case, she cannot rebut Defendant’s legitimate, nondiscriminatory
reason for her termination. The Court accordingly finds that summary judgment is proper on
Plaintiff’s claim for retaliation in violation of Section 1981.
IV.

CONCLUSION
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for Summary

Judgment (Doc. 40) is GRANTED. The Court GRANTS summary judgment in favor of Defendant
on Plaintiff’s claims for retaliation under Title VII and 42 U.S.C. § 1981.

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IT IS SO ORDERED.
Dated: September 20, 2018
/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE

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