Poff v. Oklahoma Department of Mental Health and Substance Abuse Services et al

Filing 86

ORDER granting 59 MOTION for Summary Judgment and Brief in Support by Oklahoma Department of Mental Health & Substance Abuse Services, Oklahoma Department of Mental Health and Substance Abuse Services Board of Directors. Signed by Honorable Robin J. Cauthron on 4/28/16. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

KIMBERLY POFF,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF OKLAHOMA ex rel. THE
)
OKLAHOMA DEPARTMENT OF
)
MENTAL HEALTH AND
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SUBSTANCE ABUSE SERVICES, et al., )
)
Defendants.
)

Case No. CIV-14-1438-C

MEMORANDUM OPINION AND ORDER
Plaintiff was employed by Defendant Department of Mental Health and Substance
Abuse Services as an inspector general. Following her termination by Defendants, she filed
the present action raising a number of claims under the United States and Oklahoma
Constitutions, as well as claims for violation of federal employment laws and state tort lawbased claims. Defendants filed Motions to Dismiss and Plaintiff responded by filing an
Amended Complaint. Finding several defects in the Amended Complaint, Defendants
renewed their Motions to Dismiss. The Court dismissed several of Plaintiff’s claims, leaving
only a claim for gender discrimination in violation of 42 U.S.C. §§2000e et seq., (“Title
VII”). See Dkt. Nos. 31 & 32. Asserting the undisputed facts warrant judgment, Defendants
have filed a Motion for Summary Judgment.

STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). “[A] motion for summary judgment should be granted
only when the moving party has established the absence of any genuine issue as to a material
fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204 (10th Cir.
1977). The movant bears the initial burden of demonstrating the absence of material fact
requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper disposition of the claim. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries this initial burden,
the nonmovant must then set forth “specific facts” outside the pleadings and admissible into
evidence which would convince a rational trier of fact to find for the nonmovant.
Fed. R. Civ. P. 56(e). These specific facts may be shown “by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex, 477 U.S. at
324. Such evidentiary materials include affidavits, deposition transcripts, or specific
exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992).
“The burden is not an onerous one for the nonmoving party in each case, but does not at any
point shift from the nonmovant to the district court.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998). All facts and reasonable inferences therefrom are construed
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
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DISCUSSION
Because Plaintiff offers no direct evidence of discrimination, her claims must be
analyzed under the familiar burden-shifting framework outlined in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). To establish a prima facie case of gender discrimination,
Plaintiff must first demonstrate that (1) she is a member of a protected class,; (2) she was
qualified for the position she held; (3) she suffered an adverse employment action; and
(4) the adverse action occurred in circumstances giving rise to an inference of discrimination.
Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142-43 (2000). Defendants
concede that Plaintiff has established a prima facie case. Thus, the burden now shifts to
Defendants to articulate a legitimate, nondiscriminatory explanation for the termination
decision. Rivera v. City and Cnty of Denver, 365 F.3d 912, 920 (10th Cir. 2004). Contrary
to Plaintiff’s argument, Defendants do not face a heavy burden at this stage.

Indeed,

Defendants’ “burden is one of production, not persuasion; it can involve no credibility
assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal
quotation marks omitted). The Tenth Circuit has characterized Defendants’ burden as
“exceedingly light.” See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1043 (10th Cir.
2011)(citation omitted). Defendants have met their obligation, stating that Plaintiff was
terminated because she violated internal policy by failing to maintain confidentiality with
respect to investigations within the Department; she encouraged – or at least condoned –
Delong’s inappropriate investigative techniques; and she was untruthful about her actions

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with respect to each. The burden now shifts to Plaintiff to demonstrate questions of fact exist
as to whether these reasons were a mere pretext.
At the outset the Court notes Plaintiff faces a steep climb in establishing pretext. It
is undisputed that Plaintiff was hired and fired by the same person.1 When an “‘employee
was hired and fired by the same person within a relatively short time there is a strong
inference that the employer’s stated reason for acting against the employee is not
pretextual.’” Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10th Cir. 2006)(quoting
Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991)). With this inference in mind the Court
will consider Plaintiff’s arguments regarding pretext.
In finding Plaintiff had failed to maintain confidentiality about investigations,
Defendant relied upon the investigation of Mr. Milnes. Mr. Milnes was an independent
investigator hired by Defendants. As part of his investigation, Mr. Milnes interviewed an
employee regarding the employee’s conversations with Plaintiff. Mr. Milnes determined that
Plaintiff had improperly discussed facts about an ongoing investigation with the employee.
Plaintiff argues that the Court cannot rely on Mr. Milnes’ affidavit because it does not pass
muster under Fed. R. Civ. P. 56(c)(4). According to Plaintiff, Mr. Milnes’ affidavit contains
hearsay and offers conclusions that are not based on personal knowledge. However, Mr.
Milnes’ affidavit plays no role in the Court’s decision. It does not provide proof of
Defendants’ nondiscriminatory basis but sets forth the information provided to Defendants

1

Although Plaintiff “disputes” Defendants’ fact on this issue, her dispute is not with who
fired her but with the process by which she was fired.
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that led to the termination decision. Thus, it is not necessary that the Court find the affidavit
admissible, only that Mr. Milnes’ investigation provided nondiscriminatory grounds for
Defendants’ decision to terminate Plaintiff. As the Tenth Circuit has explained:
In determining whether the proffered reason for a decision was pretextual, we
examine the facts as they appear to the person making the decision, Zamora [v.
Elite Logistics, Inc.], 478 F.3d [1160] at 1166 [(10th Cir. 2007)](quoting Watts
v. City of Norman, 270 F.3d 1288, 1295 (10th Cir.2001)); we do not look to
the plaintiff’s subjective evaluation of the situation, see McKnight v. Kimberly
Clark Corp., 149 F.3d 1125, 1130 (10th Cir.1998).
E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1044 (10th Cir. 2011).

The issue

surrounding Mr. Milnes’ investigation is not whether the facts contained therein are true but
whether Defendants believed those facts to be true when they decided to terminate Plaintiff.
See Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir.2005) (the relevant inquiry
concerns the belief of the employer that the employee engaged in misconduct, not whether
the actual facts, as shown by evidence extrinsic to the employer's assessment, may have been
otherwise.) “[A]n employer’s exercise of erroneous or even illogical business judgment does
not constitute pretext.” Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995).
Plaintiff offers no evidence demonstrating Defendants did not believe the facts found by Mr.
Milnes in his investigation to be true and to provide grounds for her termination. Thus,
Plaintiff has failed to show that Defendants’ reliance on Mr. Milnes’ investigation was
pretextual.
Alternatively, Plaintiff argues that other similarly situated male employees were
treated differently that her. However, as Defendants set forth in their brief, each of the

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purportedly similarly situated employees reported to a different supervisor. The Tenth
Circuit has defined who are similarly situated employees: “‘Similarly situated employees are
those who deal with the same supervisor and are subject to the same standards governing
performance evaluation and discipline.’” Aramburu v. Boeing Co., 112 F.3d 1398, 1404
(10th Cir. 1997)(quoting Wilson v. Utica Park Clinic, Inc., No. 95-5060, 76 F.3d 394, 1996
WL 50462 (10th Cir. Feb.7, 1996)). Thus, Plaintiff has failed to demonstrate that the other
employees were similarly situated. Even if she had, her claim of disparate treatment would
fail as she has not shown that Defendants considered the actions of the alleged similarly
situated employees as comparable to Plaintiffs’ conduct. See Riggs v. AirTran Airways, Inc.,
497 F.3d 1108, 1121 (10th Cir.2007)(rejecting plaintiff’s contention that other employees’
infractions were “egregious and immediately terminable” where there was no evidence the
employer considered them as egregious as plaintiff’s conduct involving customer
mistreatment). Defendant has demonstrated that each of the other employees who engaged
in conduct deemed as serious as Plaintiff were also terminated. Plaintiff has failed to
demonstrate disparate treatment. Because Plaintiff has failed to demonstrate Defendants’
reasons for terminating her were pretextual, her claim must fail.

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CONCLUSION
For the reasons set forth herein, the Motion for Summary Judgment by Defendants
State of Oklahoma Ex Rel. The Oklahoma Department of Mental Health and Substance
Abuse Services And the Board of Directors for the Oklahoma Department of Mental Health
and Substance Abuse Services (Dkt. No. 59) is GRANTED. A separate judgment will issue.
IT IS SO ORDERED this 28th day of April, 2016.

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