Pendergraft v. Board of Regents of Oklahoma Colleges ( 2023 )

Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
MARK A. PENDERGRAFT,
Plaintiff - Appellant,
v. No. 22-6045
(D.C. No. 5:18-CV-00793-D)
BOARD OF REGENTS OF OKLAHOMA (W.D. Okla.)
COLLEGES; DAVID MISAK, in his
individual and official capacities; TODD
THURMAN, in his individual and official
capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.
_________________________________
Mark Pendergraft filed a pro se lawsuit against the Board of Regents of
Oklahoma Colleges (BROC), David Misak, and Todd Thurman. The suit arose out of
an employment dispute involving a graduate assistant position with the softball
program at Southwestern Oklahoma State University (SWOSU). He brought federal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 2
claims under the Equal Pay Act (EPA), Title VII, and 42 U.S.C. § 1983, as well as
state claims for tortious interference with business relations, breach of contract, and
tortious interference with prospective economic advantage. The district court granted
defendants’ Fed. R. Civ. P 12(b)(6) motions to dismiss the Title VII and § 1983
claims for failure to state a claim for relief. Defendants then moved for summary
judgment on the remaining claims. The district court granted summary judgment in
favor of BROC (the only applicable defendant) on the EPA claim. It then declined to
exercise supplemental jurisdiction over the state claims and dismissed those claims
without prejudice. Mr. Pendergraft now appeals.1 Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. Background
A. Factual Background
SWOSU is a public university that is governed by the BROC. In June 2016,
SWOSU hired Kim Maher as its new head softball coach. SWOSU then posted two
openings for graduate assistant positions with the softball program. Each position
had the same salary, and each position also offered a tuition waiver.
1
On appeal, Mr. Pendergraft does not challenge the district court’s dismissal
of his Title VII and § 1983 claims, nor does he challenge the district court’s dismissal
of the EPA claim against the individual defendants or the dismissal of the state
claims against the individual defendants in their official capacities. Accordingly, he
has waived any challenge to the dismissal of those claims. See Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1140 (10th Cir. 2003) (holding that issues
not raised on appeal are deemed waived).
2
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 3
Marsha Cusack, a high school softball coach, applied for one of the positions.
Coach Maher wanted SWOSU to hire Ms. Cusack because Coach Maher had known
Ms. Cusack for years and thought Ms. Cusack could bring experience and knowledge
to SWOSU’s softball program.
Coach Maher testified in her deposition that to get a more qualified coach, she
needed to increase the pay. So she asked Defendant Todd Thurman, SWOSU
Athletic Director, if the salaries allotted to the two graduate assistant positions could
be combined for Ms. Cusack, leaving only a tuition waiver for the other graduate
assistant position. Mr. Thurman submitted the proposal to the appropriate
administrators, including Defendant David Misak, SWOSU Human Resources (HR)
Director. SWOSU later hired Ms. Cusack at a salary equal to the combined amount
of the salaries of the two previously posted graduate assistant positions.
Mr. Pendergraft also applied for the graduate assistant position. He had never
coached softball at the college or high school level, but he had helped coach his
daughter’s youth travel softball team. Coach Maher recommended he be hired for the
second position, but the parties dispute what happened next. In particular, the parties
dispute whether Mr. Pendergraft was aware that the second position was an unpaid
position, and they also dispute whether SWOSU ever officially hired
Mr. Pendergraft.
Mr. Pendergraft asserts he was hired for a paid position, and he signed a pay
action form on August 17, 2016, which is a document SWOSU uses to formalize
employment agreements. After signing the pay action form, he contends that he
3
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 4
assisted Coach Maher that same day with unofficial visits for two high school
softball recruits. But the next day when he was in the HR office, Mr. Pendergraft
testified he was told by an HR employee that Mr. Thurman wanted to turn his paid
position into a volunteer position. Mr. Pendergraft did not agree to that change, and
he alleges Mr. Thurman fired him on August 19, 2016.
In contrast, defendants contend that Mr. Pendergraft knew the position was a
volunteer position and that he had agreed to be a volunteer because he wanted to get
some collegiate coaching experience. They also assert he was never a SWOSU
employee because his conduct in the application process caused them to reconsider
hiring him, he never signed a pay action form, and they withdrew the job posting for
the second graduate assistant position. Regardless of whether Mr. Pendergraft was
an employee or merely a candidate for an open position, the parties agree that his
relationship with SWOSU ended on August 19, 2016.
B. Procedural Background
After defendants moved to dismiss his initial complaint, Mr. Pendergraft filed
an amended complaint alleging that defendants: violated the EPA by employing a
female coach and paying her twice what they agreed to pay him (Count I); unlawfully
discriminated against him based on sex in violation of Title VII by terminating him
because he is not a woman (Count II); tortiously interfered with his business right by
terminating his employment agreement in bad faith (Count III); breached his contract
with SWOSU by terminating his employment without just cause (Count IV);
tortiously interfered with his prospective economic advantage by terminating his
4
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 5
employment agreement in bad faith (Count V); and conspiring against him to
wrongfully terminate his employment agreement (Count VI).
Defendants filed a partial motion to dismiss, seeking dismissal of Count I
against the individual defendants, and dismissal of Counts II, III, V, and VI against
all defendants. The district court granted the motion to dismiss in part. It dismissed
Count I against the individual defendants, Count II against all defendants, and
Counts III, V, and VI against the individual defendants in their official capacities.
The court dismissed Count VI without prejudice and gave Mr. Pendergraft the
opportunity to amend his complaint to address the pleading deficiencies the court
identified.
Mr. Pendergraft then filed what he called his Fourth Amended Complaint
(although the district court noted it was only his third amended complaint). In it, he
presented a revised Count VI, in which he alleged defendants violated § 1983 by
acting under color of state law and conspiring to violate his constitutional rights.
Defendants filed a partial motion to dismiss Count VI, which the district court
granted.
Defendants next moved for summary judgment on all remaining claims: the
EPA claim (Count I) against BROC, and the state claims (Counts III, IV, and V)
against the individual defendants. The district court granted summary judgment in
favor of BROC on Count I, and then declined to exercise supplemental jurisdiction
over the remaining state claims against the individual defendants. The court
5
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 6
dismissed those claims without prejudice to Mr. Pendergraft refiling them in state
court.
Mr. Pendergraft now appeals from the district court’s summary-judgment
decision.
II. Discussion
A. EPA claim
We review de novo the district court’s grant of summary judgment in favor of
defendants. Riser v. QEP Energy, 776 F.3d 1191, 1195 (10th Cir. 2015). Summary
judgment is appropriate “if the movant shows that 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). “[W]e view all evidence and any reasonable inferences that might be
drawn therefrom in the light most favorable to the non-moving party.” Riser,
776 F.3d at 1195 (brackets and internal quotation marks omitted).
“The EPA prohibits wage discrimination ‘between employees on the basis of
sex . . . for equal work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working conditions.’” Id.(quoting 29 U.S.C. § 206(d)(1)). The court’s consideration of an EPA claim
proceeds in two steps. See Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1311
(10th Cir. 2006). “First, the plaintiff must establish a prima facie case of
discrimination by demonstrating that employees of the opposite sex were paid
differently for performing substantially equal work.” Id. If the plaintiff does so, “the
6
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 7
burden of persuasion then shifts to the defendant to prove that the wage disparity was
justified by one of four permissible reasons.” Id. (emphasis omitted).
For Mr. Pendergraft to establish a prima facie case of pay discrimination under
the EPA, he must demonstrate that: “(1) []he was performing work which was
substantially equal to that of the [fe]male employee[] considering the skills, duties,
supervision, effort and responsibilities of the jobs; (2) the conditions where the work
was performed were basically the same; [and] (3) the [fe]male employee[] w[as] paid
more under such circumstances.” Riser, 776 F3d at 1196 (internal quotation marks
omitted). The district court assumed Mr. Pendergraft was an employee of SWOSU
for purposes of summary judgment, after determining there were material facts in
dispute on that issue. The court concluded, however, that Mr. Pendergraft failed to
establish a prima facie case of pay discrimination under the EPA because he could
not show he performed substantially equal work to that of Ms. Cusack.
The court noted Mr. Pendergraft’s argument in response to summary judgment
that he performed substantially equal work to Ms. Cusack because he participated in
unofficial visit tours for two softball recruits and SWOSU used his name and likeness
in the visit itineraries. The court then recited the record description of Ms. Cusack’s
work, which included “complet[ing] several tasks related to recruiting (identifying
and monitoring potential recruits), practice (planning and coordinating training
sessions), team travel (organizing lodging, transportation, and meals for the team),
gameday preparation (scouting opposing teams), and field maintenance (chalking and
dragging dirt).” R., vol. 3 at 270. The court found that “Ms. Cusack performed a
7
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 8
variety of functions for the softball program; Plaintiff participated in two recruitment
tours.” Id. It therefore concluded “[t]heir work was not substantially equal,” id.,and, as a result, Mr. Pendergraft could not establish a prima facie case of pay
discrimination under the EPA.
On appeal, Mr. Pendergraft’s primary argument is that “the reason the
workload was not substantially equal is because [he] was wrongfully terminated after
(3) three days [of] employment without cause.” Aplt. Opening Br. 13. He explains
that “Coach Cusack was hired after [him] and was employed for a full year,” so “[i]t
would be impossible to compare” the work of the two jobs. Id. Mr. Pendergraft’s
claims alleging wrongful termination, however, have been dismissed. And as noted
above, he does not challenge the dismissal of his Title VII claim on appeal, which
alleged he was unlawfully terminated based on his sex. Further, for the reasons
discussed below, we uphold the district court’s decision to dismiss his state claims,
which also alleged wrongful termination. We therefore agree that Mr. Pendergraft
has not established a prima facie case of wage discrimination under the EPA, and we
affirm the district court’s grant of summary judgment in favor of BROC on that
claim.
B. State claims
Mr. Pendergraft next contends “the District Court erred by refusing to exercise
jurisdiction over [his] remaining State claims.” Id. at 14. We review for abuse of
discretion the district court’s decision not to exercise supplemental jurisdiction over
the state claims. Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir.
8
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 9
2009). A court may decline to exercise supplemental jurisdiction when it “has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Here, the district court had dismissed all the federal claims and only state
claims remained. In deciding not to exercise jurisdiction over the state claims, it first
noted our guidance on the issue in Crane v. Utah Department of Corrections,
15 F.4th 1296 (10th Cir. 2021). In that case, we explained “[w]hen all federal claims
have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.” Id. at 1314 (internal quotation marks
omitted). The district court also noted that “‘[t]he Supreme Court has encouraged the
practice of dismissing state claims or remanding them to state court when the federal
claims to which they are supplemental have dropped out before trial.’” R., vol. 3 at
271 (quoting Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.,
956 F.3d 1228, 1238 (10th Cir. 2020)). And the district court considered our
decision in Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472, 1478
(10th Cir. 1990), in which we explained that “[n]otions of comity and federalism
demand that a state court try its own lawsuits, absent compelling reasons to the
contrary.” Id. But we also recognized in Thatcher that a district court has discretion
to exercise jurisdiction over state claims even in the absence of any triable federal
claims, if given the nature and extent of pretrial proceedings, “judicial economy,
convenience, and fairness would be served by retaining jurisdiction.” Id.In considering whether to exercise jurisdiction over the state claims after the
dismissal of the federal claims, the district court recognized the parties had engaged
9
Appellate Case: 22-6045 Document: 010110803226 Date Filed: 01/25/2023 Page: 10
in discovery and dispositive motions, but it noted no trial submissions had been
made, no substantial trial preparations had happened, and the case was not currently
set on any trial docket. Given these circumstances, the court found the state claims
should be dismissed without prejudice.
Mr. Pendergraft does not directly challenge the district court’s reasoning or
dispute the fact that no substantial trial preparations had happened. Instead, he
argues that the district court’s decision will delay the resolution of his state claims,
which will prejudice him. But the district court properly considered precedential
cases on the issue of supplemental jurisdiction, as well as the nature and extent of the
pre-trial proceedings in this case, and we see no abuse of discretion in its decision to
decline to exercise supplemental jurisdiction over Mr. Pendergraft’s state claims after
all federal claims were resolved.
III. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
10