Murdock v. City of Wichita , 525 F. App'x 820 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 23, 2013
Elisabeth A. Shumaker
Clerk of Court
LUCINDA B. MURDOCK,
Plaintiff-Appellant,
v. No. 12-3279
(D.C. No. 2:09-CV-02103-EFM)
CITY OF WICHITA, KANSAS, (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.
Lucinda B. Murdock, proceeding pro se, appeals from the district court’s
dismissal of her claims against her employer, the City of Wichita, Kansas (City), for
employment discrimination and retaliation. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
The district court’s dispositive orders fully and accurately recount the factual
and procedural background of this case, and we briefly summarize only the most
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
salient facts relevant to the claims Ms. Murdock raises on appeal. Ms. Murdock,
a City bus driver for the disabled, was terminated in 2007 for telling a dispatcher
several times, in reference to a blind, elderly woman passenger, that she was “about
to knock her out,” and to put the woman “on another route or there’s going to be
some mess.” Aplt. App. Vol. II, at 204-05. After non-binding arbitration, she was
reinstated in 2009.
Ms. Murdock’s complaint alleged, in relevant part, that one of her supervisors,
Brad Davis, sexually harassed her and that the City had discriminated against her in
violation of Title VII of the Civil Rights Act of 1964, because she is an over-40,
Christian, African-American woman. She also alleged that the City terminated her in
retaliation for verbally complaining that Mr. Davis was sexually harassing her.
Pursuant to Federal Rule of Civil Procedure 12(b), the district court dismissed
Ms. Murdock’s age discrimination claim for lack of jurisdiction, because she failed to
exhaust her administrative remedies, and dismissed her religious discrimination claim
for failure to state a plausible claim. The district court subsequently granted
summary judgment on her remaining claims for race and gender discrimination,
sexual harassment, and retaliation.
Ms. Murdock’s race and gender discrimination claim was based in part on two
remarks Howard Morris, another supervisor, made. First, during a dispute with her in
2000 concerning work assignments, he allegedly said to her, “do you want me to slap
the hell out of you,” and, second, during another discussion, used the phrase “you
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people.” Aplt. App. Vol. II, at 181-82. Ms. Murdock’s discrimination claims were
also based on a disparate treatment theory that, in contrast to her termination for
threatening a passenger, a similarly-situated, white, male City employee was not fired
for striking a passenger.
Ms. Murdock’s sexual harassment claim was based on two comments
Mr. Davis made about her appearance in 2000, and a similar remark in 2002. She
alleged that he wanted to terminate her because he was jealous that she was dating a
co-worker. In 2006, Ms. Murdock verbally complained to the City’s equal
employment opportunity officer that Mr. Davis was sexually harassing her. She
claims the City terminated her in retaliation for that complaint.
The district court ruled that Ms. Murdock failed to establish a prima facie case
of race or gender discrimination based on Mr. Morris’s comments, which had nothing
to do with race or gender and were insufficient to give rise to an inference of
discrimination. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136,
1151 (10th Cir. 2008) (“The critical prima facie inquiry in all cases is whether the
plaintiff has demonstrated that the adverse employment action occurred under
circumstances which give rise to an inference of unlawful discrimination.” (internal
quotation marks omitted)). It also ruled that Ms. Murdock’s theory of disparate
treatment did not demonstrate that the City’s reason for terminating her was pretext
for discrimination because she failed to show the white male employee engaged in
conduct of comparable seriousness as hers. See McGowan v. City of Eufala, 472 F.3d
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736, 745 (10th Cir. 2006) (employees must have been subject to discipline for
“conduct of comparable seriousness in order for their disparate treatment to be
relevant.” (internal quotation marks omitted)). The undisputed evidence showed that
the white male employee struck a passenger in self-defense only after a large,
able-bodied male passenger first assaulted him, whereas Ms. Murdock was
terminated for making violent threats against a blind, frail, 94-year old woman
passenger who had only pushed Ms. Murdock’s shoulder in a non-aggressive manner
when Ms. Murdock refused to drop her off in her driveway rather than at the
sidewalk. And the court dismissed Ms. Murdock’s wrongful termination claim
because it was based only on her Title VII discrimination and retaliation claims.
The district court ruled that Ms. Murdock’s sexual harassment claim was
untimely because none of the comments Mr. Davis made in 2000 and 2002 occurred
within the 300 days before she filed her complaint with the Equal Employment
Opportunity Commission. See Duncan v. Manager, Dep’t of Safety, City & Cnty. of
Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (“Title VII requires a litigant to file a
claim within 300 days of the alleged discriminatory conduct. . . . Title VII is not
intended to allow employees to dredge up old grievances; they must promptly report
and take action on discriminatory acts when they occur.”). It further ruled that
Ms. Murdock failed to establish a prima facie case of retaliation because her 2006
verbal complaint about Mr. Davis was more than a year before her termination and
she offered no other evidence of causation. See Anderson v. Coors Brewing Co.,
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181 F.3d 1171, 1179 (10th Cir. 1999) (holding that gap of more than three months
between the protected activity and the adverse action is too long a period, absent
other evidence, to demonstrate the causal connection required to establish a prima
facie case of retaliation).
Summary judgment is appropriate if “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). “We review the district court’s grant of summary judgment . . .
de novo, applying the same legal standard as the district court.” Shero v. City of
Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Because Ms. Murdock is pro se, we
also construe her filings liberally, but we do not act as her advocate. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Ms. Murdock contends on appeal that the district court erred in granting
summary judgment to the City on her sexual harassment and race and gender
discrimination claims and her retaliation claims.1 She does not, however, articulate
any factual or legal basis for alleging error by the district court. After a thorough
1
For the first time on appeal, Ms. Murdock argues that the City breached an
arbitration contract when it reinstated her without back pay, because the arbitrator
had recommended she be reinstated with back pay. “Absent extraordinary
circumstances not present here, we do not address arguments raised for the first time
on appeal.” Chavez v. City of Albuquerque, 402 F.3d 1039, 1047 (10th Cir. 2005)
(citation omitted). We note, however, that under the Memorandum of Agreement
between the City and Ms. Murdock’s union, the arbitrator could only make
recommendations to the City Manager, whose decision was final and binding.
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review, nothing in the parties’ briefs or the appellate record persuades us that there
was any error in the district court’s analysis of Ms. Murdock’s claims or in its orders.
Therefore, we affirm for substantially the reasons stated by the district court in
its order dated March 30, 2011, dismissing some of Ms. Murdock’s claims under
Rule 12(b), see Aplt. App. Vol. II, at 16-26, and its order dated September 18, 2012,
dismissing the remainder of her claims under Rule 56(a), see id. at 371-92.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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