Dixon v. Oklahoma County Board of County Commissioners et al

Filing 78

ORDER granting 60 Motion for Summary Judgment; granting 77 Motion for Default Judgment. Accordingly, and for the reasons set forth above, Defendants Motion for Summary Judgment (Doc. No. 60) is hereby GRANTED. Defendants Motion for Default Judgment (Doc. No. 77), which seeks summary judgment on the basis that their motion for summary judgment was not subjected to a response is granted to the extent it is consistent with the above. as more fully set out. Signed by Honorable David L. Russell on 11/17/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DEANNA DIXON,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS
OF OKLAHOMA COUNTY, et al.,
Defendants.

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CIV-15-196-R

ORDER
Defendants filed a Motion for Summary Judgment (Doc. No. 60). In lieu of a
response to the motion, three days before such response was due, Plaintiff filed a Rule
56(d) Motion, which the Court has denied. (Doc. No. 75). As a result, the Court is without
the benefit of a response from the Plaintiff. Even without a response from Plaintiff, the
Court still must determine whether judgment for the moving party is appropriate under
Federal Rule of Civil Procedure 56. See Reed v. Bennett, 312 F.3d 1190, 1194–95 (10th
Cir.2002).
[A] party's failure to file a response to a summary judgment motion is not,
by itself, a sufficient basis on which to enter judgment against the party. The
district court must make the additional determination that judgment for the
moving party is “appropriate” under Rule 56. Summary judgment is
appropriate only if the moving party demonstrates that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of law. By
failing to file a response within the time specified by the local rule, the
nonmoving party waives the right to respond or to controvert the facts
asserted in the summary judgment motion. The court should accept as true
all material facts asserted and properly supported in the summary judgment
motion. But only if those facts entitle the moving party to judgment as a
matter of law should the court grant summary judgment.

Id. at 1195. In other words, although certain facts are deemed admitted, Defendants' Motion
is not confessed: the undersigned still must decide whether Defendants are entitled to
judgment as a matter of law based upon the material facts asserted and properly supported
in the Motions and applicable law. See Fed.R.Civ.P. 56(a), (c), (e)(3); Reed, 312 F.3d at
1195–96.).
Plaintiff, an African American woman, was employed as a supervisor with the
Oklahoma County Juvenile Board until her termination in 2013. She was first hired in
September 2001, and was promoted to the position of supervisor in 2006. James Saffle,
Director of the OCJB, contends via affidavit that in August 2013 he was informed by two
vendors that worked with the Bureau of their belief that Dixon was soliciting kickbacks
and/or favors in exchange for vendor selection in the Court Services division. As a result,
Director Saffle ordered an Internal Affairs investigation into the allegations. Daniel
Hansen, the Bureau employee who investigates personnel and Bureau incidents, was
designated to complete the investigation.
During the course of Hansen’s investigation Saffle received information from an
employee of the Oklahoma City Public Schools, Tracy Alvarez, that Plaintiff was using
her Bureau email address to communicate with the school about a student she mentored for
her second job at Advanced Counseling.1 Hansen was informed by a Bureau supervisor

  Plaintiff had received permission in March 2013 for secondary employment as required by Bureau policy.
Unbeknownst to Director Saffle, however, Plaintiff had obtained the secondary employment in March, 2012. She
indicated on her request that she would work approximately ten hours per week on Tuesdays, Thursdays and
Saturdays. According to OCJB Policy the request was to be submitted to the employee’s immediate supervisor and
required approval of the Director, in this case, Defendant Saffle.

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Plaintiff might be working her Advanced Counseling job while being paid by the Bureau
and on August 27, 2013, was authorized by Defendant Saffle to include these allegations
in his investigation.
As part of the investigation Defendant Hansen visited Advanced Counseling on
August 27, 2013. They provided him with timesheets for Plaintiff’s work with Advanced
Counseling. Mr. Hansen noticed that Plaintiff’s work had started in March 2012, despite
the fact that her request for secondary employment had not been submitted until one year
later. Frances Carillo of Advanced Counseling told Hansen that she was concerned about
the claim that Dixon was misstating her time because the billing was submitted to Medicare
and accurate time needed to be reflected. Hansen compared the records from OCJB and
Advanced Counseling and discovered that on 57 days Dixon billed hours on Advanced
Counseling clients during her regular hours with the Bureau and on thirteen days when she
was off “sick” from her job at OCJB she billed with Advanced Counseling, totaling 131.75
hours.2
The next day Hansen shared his findings with Defendant Saffle who told him to
consult with Plaintiff’s supervisor, Christe Sweat. Plaintiff was placed on administrative
leave by Christe Sweat that same day. Hansen continued his investigation by interviewing
Vicki Cargill, a probation officer. Cargill allegedly stated that although she did not know
exactly when Dixon was gone from her office, she was aware that there were days when

 Bureau policy permits the use of sick leave only for illness. Four of the thirteen days Plaintiff did not report to
work at the Bureau at all.  
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Dixon left for lunch and did not return at all or until much later, and that she was aware of
Dixon’s second job and suspicious that she was working that job on OCJB time.
Hansen reported that on September 5, 2013, he went to Plaintiff’s home to interview
her. He took J-me Overstreet with him as a witness. Dixon explained her position on the
overlap of the billing, telling Hansen that she worked for Advanced Counseling after hours,
but Advanced Counseling had trained her to bill her time to Medicaid to reflect that she
had not offered services on its behalf after 8:00 p.m.
After speaking with Ms. Dixon, Mr. Hansen and Ms. Overstreet spoke with an
employee of Advanced Counseling who denied that Plaintiff was trained to enter her time
in the manner Plaintiff described. The employee, Francis Carrillo, was allegedly
flabbergasted at the suggestion that Advanced Counseling instructed its employees to
falsify the time of their work on their billing.
Hansen also conducted a review of Plaintiff’s Bureau computer and concluded she
had used the computer with regard to her Advanced Counseling position. He found the
email to the Oklahoma City Public Schools from her county e-mail address, but Plaintiff
had changed the signature block to include her Advanced Counseling title and contract
information. He also located emails from her county email address to other employees of
Advanced Counseling about Advanced Counseling business and to the YMCA whereby
Plaintiff sought to gain membership for her Advanced Counseling clients.
Hansen prepared a report for Director Saffle, which he delivered on October 1, 2013.
The report detailed at least 18 violations of Bureau policies. Hansen submitted a
supplemental report on October 2, 2013, after interviewing Tracy Alvarez of the Oklahoma
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City Public Schools. According to this report, Ms. Alvarez indicated that she had concerns
about Ms. Dixon because Ms. Dixon was asking to see her Advanced Counseling clients
during the school day, when Ms. Alvarez knew she was also employed by OCJB. Ms.
Dixon apparently first reached out to Ms. Alvarez in February 2012, seeking to be added
to a list of approved school based counseling providers.
After receiving the reports Director Saffle made the determination to terminate
Plaintiff’s employment for miscondut, which he did on October 6, 2013. His affidavit avers
that the decision was based on numerous factors including: Plaintiff accepted employment
with Advanced Counseling a year before she submitted a Second Job Request, which was
required to be approved before a second job was obtained; Plaintiff had used her work
email and computer to assist in her second job with Advanced Counseling; Dixon had
changed the signature block on her Bureau email account to include her title and contact
information for Advanced Counseling, and had attempted to gain access to students in the
Oklahoma City Public Schools who were not on OCJB probation in conjunction with her
job at Advanced Counseling; and, she had inappropriate images saved on her work
computer. Following her termination Plaintiff filed this action alleging discrimination on
the basis of race in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1983.
Under Title VII, it is unlawful “to discharge any individual, or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove a Title VII violation through
either direct or circumstantial evidence. See Furr v. AT&T Techs., Inc., 824 F.2d 1537,
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1548-49 (10th Cir. 1987). Direct evidence includes “oral or written statements on the part
of a defendant showing a discriminatory motivation. Kendrick v. Penske Transp. Servs.,
Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). There is no direct evidence of a Title VII
violation in the record, and therefore, the Court evaluates Plaintiff's Title VII claims
according to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973). See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d
1136, 1145 (10th Cir. 2008). Under the McDonnell Douglas framework, Plaintiff bears the
initial burden of establishing a prima facie case of [discrimination or retaliation]. Once the
plaintiff has established a prima facie case, the burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its employment action. If Defendant
makes this showing, Plaintiff must then show that Defendant's justification is pretextual.
Kendrick, 220 F.3d at 1226.
“[T]he articulation of a plaintiff's prima facie case may well vary, depending on the
context of the claim and the nature of the adverse employment action alleged.” Id. But a
common element critical to all prima facie cases is that the plaintiff must demonstrate that
“the adverse employment action occurred ‘under circumstances which give rise to an
inference of unlawful discrimination.’” Plotke v. White, 405 F.3d 1092, 1100 (10th Cir.
2005)(quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir.
2000)). Plaintiff is an African American woman who was terminated by Defendant,
however, the evidence fails to establish that her termination took place under circumstances
giving rise to an inference of discrimination. Because the burden of establishing a prima

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facie case of discrimination is not onerous, the Court will assume for purposes of summary
judgment that there is sufficient evidence to support a prima facie case.
The burden therefore shifts to Defendant to articulate a legitimate,
nondiscriminatory reason for Plaintiff’s termination. Jaramillo v. Colo. Judicial Dep't, 427
F.3d 1303, 1308 (10th Cir. 2005). Defendant has carried its burden by asserting that
Plaintiff was terminated because Director Saffle, based on the investigation conducted by
Defendant Hansen, determined that Plaintiff was using time during which she was being
paid to perform services in her capacity as an employee of the OCJB to perform work for
Advanced Counseling. He also determined that contrary to policy that she had not obtained
permission for the second job until one year after she started working said job. He also
concluded that Plaintiff’s Medicaid billing for her Advanced Counseling work was
fraudulent, not that she had not performed the work for which she was submitting bills for
payment, but rather that the billing submitted did not accurately reflect when she was
performing the services for which she was seeking compensation. He also concluded that
Plaintiff had used her position at OCJB, via her county email account, to request access to
students of the Oklahoma City Public Schools that she was mentoring via her job with
Advanced Counseling, which was inappropriate. Accordingly, Defendant has articulated a
legitimate non-discriminatory reason for terminating Plaintiff.
As a result, the burden thus shifts back to Plaintiff to establish a genuine issue of
material fact that these reasons were pretextual. In so doing, Plaintiff must show that her
employer’s “proffered non-discriminatory explanations for its actions are so incoherent,
weak, inconsistent, or contradictory that a rational factfinder could conclude [they are]
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unworthy of belief.” Conroy v. Vilsack, 707 F.3d 1163, 1172 (10th Cir. 2013) (alteration
in original) (internal quotation marks omitted). But in assessing the explanation for the
termination, the Court examines “the facts as they appear to the person making the
decision.” Id. at 1174 (emphasis in original) (internal quotation marks omitted). The Court
does not “ask whether the employer's proffered reasons were wise, fair or correct; we ask
only whether [the employer] honestly believed those reasons and acted in good faith upon
those beliefs.” Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 655 (10th Cir.
2013) (second alteration in original) (internal quotation marks omitted).
Here, there is simply no evidence that Defendant’s proffered reason for Plaintiff’s
termination was a pretext for race discrimination. Plaintiff admitted certain facts in her
deposition that support Defendant’s termination decision. Specifically, Ms. Dixon admitted
that she used her county email address to send an email to the Oklahoma City Public
Schools to gain access to students she mentored for her second job at Advanced
Counseling. Although she offered a potentially exculpatory explanation for why she
documented her hours for Advanced Counseling in a manner that indicated she was
working for Advanced Counseling while on the clock for the Bureau, her explanation was
not supported by management at Advanced Counseling. Plaintiff contends, with regard to
the alleged improper use of her work email to sell purses, that other employees who
committed similar infractions were not terminated. The record, however, does not identify
any such person by name, nor does the record indicate if use of office email in an attempt
to sell goods was the only transgression alleged against any of the unidentified persons.
Additionally, there is no explanation provided for Plaintiff’s use of sick leave for her job
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with the OCJB on days when she billed on behalf of Advanced Counseling nor is there any
dispute that contrary to OCJB policy, Plaintiff did not obtain authorization from Defendant
Saffle for her secondary employment until one year after she obtained the job. Furthermore,
Plaintiff was either billing on behalf of Advanced Counseling during hours she was being
paid by the OCJB for her work on its behalf or she was submitting fraudulent billing records
on behalf of Advanced Counseling for reimbursement by Medicaid because she did not
accurately report the time she spent with her clients. Regardless of which version is
accurate, Director Saffle’s decision to rely on the inaccuracies as a basis for termination
does not support a finding of pretext. In short, there is no evidence to support Plaintiff’s
contention that her termination from employment at the Oklahoma County Juvenile Board
was based on her race in violation of Title VII.
With regard to Plaintiff’s claim of racial discrimination in employment under 42
U.S.C. § 1983, the same underlying analysis applies in the Court’s determination of
whether Plaintiff can avoid summary judgment. “In racial discrimination suits, the
elements of a plaintiff's case are the same whether that case is brought under ... § 1983 or
Title VII.” Carney v. City & Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting
Baca v. Sklar, 398 F.3d 1210, 1218 n.3 (10th Cir. 2005)). Because the Court has determined
that there are no genuine disputes of material fact and Plaintiff has not established race
discrimination under Title VII, her similar claims must fail under § 1983. Plaintiff has not
provided evidence of race discrimination with regard to her termination so as to establish
a violation of her Equal Protection rights and as a result, Defendants are entitled to
summary judgment on Plaintiff’s 42 U.S.C. § 1983 claim.
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This conclusion extends to the individually named Defendants, because there is
simply no evidence of differential treatment of Plaintiff based on her race.3 As noted above,
Director Saffle, who made the termination decision, avers that he terminated Plaintiff based
on the numerous policy violations unearthed by Defendant Hansen. There is no evidence
that Defendant Hansen conducted his investigation in such a manner that gives rise to an
inference of discrimination on his part with regard to the process of the investigation or its
outcome. Defendant Meadows’ sole participation in the events related to the investigation
and termination of the Plaintiff was that she relayed the concern of Ms. Cargill, Plaintiff’s
co-worker, to Mr. Hansen. There is nothing in her limited involvement that indicates her
decision to relay this information was premised on Plaintiff’s race. Defendant Vicki Cargill
initially raised a complaint that Plaintiff was performing non-Bureau work while on Bureau
time. Nothing in her complaint, which is supported by the time sheets obtained by the
Bureau from Advanced Counseling, is tied by any evidence to an alleged discriminatory
motive. Defendant J-Me Overstreet was acting Personnel Manager for the Bureau and her
only role prior to Plaintiff’s termination was her presence during the interview of Plaintiff
by Investigator Hansen regarding the overlap of her Advanced Counseling billing with her
OCJB work hours. Ms. Overstreet also added an employment evaluation form to Plaintiff’s
file after her termination to reflect the findings of the investigation. The form was a post-

  In her deposition Plaintiff attempted to assert that certain of the individual employees were racist not because of
their actions, but because of the actions of other persons with whom they associated. For example, Defendant Hansen
was friends with a co-worker, Jim Smith, who sometimes referred to himself as a redneck and was friendly with some
Bureau employees who had been disciplined in the past for a racial incident. There is no evidence, however, that Mr.
Hansen or any of the individually named employee Defendants ever made racially derogatory comments or engaged
in behavior that could be categorized as racist. 

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termination evaluation and was not signed by Plaintiff nor did it replace any evaluation in
Plaintiff’s personnel file. From review of the post-termination document it is apparent that
it was intended to guide any future rehiring decisions regarding Plaintiff. There is simply
no evidence that her presence at the interview or her decision to place a post-termination
evaluation in Plaintiff’s personnel file was motivated by Plaintiff’s race.4
Accordingly, and for the reasons set forth above, Defendants’ Motion for Summary
Judgment (Doc. No. 60) is hereby GRANTED. Defendants’ Motion for Default Judgment
(Doc. No. 77), which seeks summary judgment on the basis that their motion for summary
judgment was not subjected to a response is granted to the extent it is consistent with the
above.
IT IS SO ORDERED this 17th day of November, 2016.

  Plaintiff testified in her deposition that she believed Mr. Saffle wanted to remove employees from the Bureau to
make room for white employees from the Department of Corrections where he had been employed before taking
charge of the Bureau. 
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