Baker v. Blue Cross-Blue Shield of Kansas, Inc. , 128 F. App'x 701 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 14 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
KATHERLINE BAKER,
Plaintiff-Appellant,
No. 02-3310
v.
(D.C. No. 99-4134-JAR)
(D. Kansas)
BLUE CROSS-BLUE SHIELD OF
KANSAS, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before MURPHY, HOLLOWAY and McCONNELL, Circuit Judges.
Plaintiff-appellant Katherline Baker sued her former employer, defendant-appellee
Blue Cross and Blue Shield of Kansas, under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e(16), alleging racial discrimination in the terms and conditions of her
employment, unlawful termination and retaliation.1 The district court granted the defendant’s
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
1
Plaintiff also invoked state law in her complaint. The district judge observed that
“[a]lthough not controlling, federal decisions applying Title VII are persuasive authority
in construing [the Kansas Act Against Discrimination] claims because the statutory
schemes are analogous. Hence, the Court will apply Title VII standards to the KAAD
claims.” Memorandum and Order at 5, Aplt. App. 183 & n.12 (citing Best v. State Farm
Mut. Auto. Ins. Co., 953 F.2d 1477, 1479 (10th Cir. 1991)). Because neither party
motion for summary judgment and plaintiff brings this appeal. We have jurisdiction under
28 U.S.C. § 1291.
I
Plaintiff is African-American. She was hired by defendant in 1997 as a Medicaid
customer service representative. Her duties included receiving telephone, written and in-
person inquiries from beneficiaries, medical service providers, and other staff members.
During Ms. Baker’s employment, the defendant adopted performance standards for her
position. The employer also provided that an employee who failed to meet the performance
standards would be subject to a corrective action plan, and that failure to achieve compliance
by following the corrective action plan could lead to further discipline, including termination
of employment.
On September 2, 1999, plaintiff was issued a notice of unsatisfactory performance,
ostensibly because she had failed to meet the standards for accuracy that the employer had
adopted. As discussed infra, plaintiff contends that accuracy standards were not actually put
into effect until January 2000. In any event, on October 6, 1999, plaintiff was given a second
notice of unsatisfactory performance for the same alleged shortcoming. Then, on November
3, 1999, she was terminated for still having failed to achieve satisfactory performance on the
accuracy standards.
contends that application of state law, instead of federal law, would lead to a different
resolution of any issue on appeal, we discuss only federal law in this order and judgment.
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II
Plaintiff brought this suit alleging racial discrimination in violation of state and
federal law. Plaintiff originally claimed that she had been subjected to disparate treatment
apart from the evaluations of her performance which eventually led to her termination and
that she had been subjected to retaliation for having previously filed an administrative
discrimination claim. She appeals, however, only on the claim that her termination was an
act of racial discrimination, and contentions not related to that claim need not concern us
here. Defendant moved for summary judgment prior to trial, contending alternatively that
plaintiff could not show a prima facie case of discrimination and that, assuming a prima facie
case had been made out, defendant had acted for legitimate, non-discriminatory reasons
which plaintiff could not show were mere pretext for unlawful discrimination.
The district court granted the defendant’s motion. The district judge found that
plaintiff had failed to establish a prima facie case because she had not shown that any
similarly situated non-minority employee had been treated more favorably than plaintiff with
respect to the performance standards.
III
Because the district court granted summary judgment, our review is de novo. We
must view the evidence in the light most favorable to the plaintiff, as the party opposing
summary judgment, and draw all reasonable inferences from the evidence in her favor.
Plaintiff concedes that she did not offer direct evidence of discrimination. To show
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discrimination indirectly, she relies on the familiar McDonnell Douglas framework.2 In the
first stage of this framework, the burden is on plaintiff to establish a prima facie case of
discrimination, which she may accomplish by showing (1) that she is a member of a racial
minority, (2) that she was subject to an adverse employment action, and (3) that similarly
situated employees who are not members of the minority class were treated more favorably.
See Trujillo v. University of Colorado Health Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir.
1998).3 The first two parts of the prima facie case are not at issue here.
We conclude that the district court was correct in determining that plaintiff failed to
make out a prima facie case because she failed to produce evidence to support a finding in
her favor on the third element as set out in Trujillo: plaintiff has not identified any similarly
situated employee who was treated more favorably than she was. There is no evidence that
any other employee, whether or not a member of a minority race, was retained in spite of
repeated failure to meet the employer’s standard for accuracy. As the district judge noted,
plaintiff does not contend that she met the standard. Instead, plaintiff contends that the
accuracy standard had not gone into effect at the time of her termination.
We have grave doubts whether plaintiff’s evidence was sufficient to raise a genuine
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
3
We have acknowledged that the framework is flexible and that a comparison to
similarly situated co-workers need not be made in every case. See E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 & nn. 6 & 7 (10th Cir. 2000). In
the instant case, however, plaintiff has not suggested any alternative formulation of the
elements of the prima facie case. We address only the arguments that she advances here.
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issue of fact on this point. The only support plaintiff musters for her contention is in the
form of ambiguous testimony from other employees, none of whom positively stated that the
accuracy standard did not go into effect until later.4 On the other hand, the defendant showed
that the document setting out the accuracy standard prominently states that it was to be
effective May 1, 1999. Plaintiff makes no contention that this document is not authentic.
If it were the case that the deposition testimony of other employees actually said otherwise,
then an issue would exist as to whether the policy had indeed been made effective as
apparently intended. But because the record suggests that the testimony on which plaintiff
relies was actually addressing standards other than the accuracy standard, there likely is no
genuine issue of material fact on making the policy effective.
Of course it is not enough that the plaintiff’s evidence seems weak. In reviewing a
grant of summary judgment, we are obliged to view the record in the light most favorable to
the non-movant, which in this case is the plaintiff. We will assume, then, that plaintiff’s
evidence was just enough to raise a genuine issue as to whether she alone was held to
accuracy standards before their actual effective date. We must next determine whether the
issue of fact is material.
Plaintiff contends that she alone was held to the standard at the time of her termination
4
Much confusion appears to have been created by the fact that other standards,
including a standard for the number of calls to be handled by those working in plaintiff’s
position, had a different effective date than the standard for accuracy that is at the heart of
this case.
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and that other employees did not have to meet the standard until January 2000, two months
after her termination.5 Since other African-American employees were performing the same
job as plaintiff,6 this evidence does not support an inference that the disparate treatment was
based on discrimination against plaintiff as an African-American. “[T]he prima facie case
requires ‘evidence adequate to create an inference that an employment decision was based
on a[n] [illegal] discriminatory criterion . . . .’” O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996)(emphasis in original) (quoting Teamsters v. United States,
431 U.S. 324, 358 (1977)). Plaintiff’s evidence does not meet this requirement.
The judgment of the district court is
AFFIRMED.
ENTERED FOR THE COURT
William J. Holloway, Jr.
Circuit Judge
5
It is interesting to note, although it does not factor into our analysis, that there is
no evidence in the record that plaintiff objected on this basis to being put on the
corrective action plan two months before her termination.
6
Plaintiff relies in part on the deposition testimony of Lesa Moore. As the district
court pointed out, there is no evidence that Ms. Moore failed to achieve compliance with
the accuracy standards. More importantly for the present issue, Ms. Moore is African-
American, like plaintiff. Also, plaintiff elsewhere refers to her deposition testimony that
a supervisor had reported that upper management had objected to the hiring of a number
of African-Americans. App. 152-53.
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