Robinson v. St. John Medical Center, Inc. , 645 F. App'x 644 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 13, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TAMMIE ROBINSON,
Plaintiff - Appellant,
v. No. 15-5039
(D.C. No. 4:12-CV-00109-JED-FHM)
ST. JOHN MEDICAL CENTER, INC.; (N.D. Okla.)
ST. JOHN HEALTH SYSTEM, INC.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Tammie Robinson appeals the district court’s grant of summary judgment in
favor of her former employer, St. John Medical Center, Inc., and St. John Health
System, Inc. (collectively, “SJMC”), on her claims alleging race discrimination,
retaliation, and wrongful termination in violation of public policy. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
Robinson is an African American woman and a registered nurse. She worked
for SJMC, a hospital in Tulsa, Oklahoma, at different times during her nursing
career, most recently from December 2008 through March 15, 2011. In 2010,
Robinson applied for the position of registered nurse case manager, a job that didn’t
involve providing primary nursing care to patients. The director of case
management, Sammye Valenzuela, interviewed and hired Robinson for this position.
In March 2011, SJMC admitted a patient with sickle cell anemia (“the
patient”). The patient’s treatment team included the attending physician,
Dr. Ali Mohammad, and several resident physicians. Dr. Mohammad asked the
palliative care team—consisting of a physician, a registered nurse, and a social
worker—to consult with the patient after she complained of pain and asked for
intravenous (“IV”) pain medication. Due to concerns about the patient’s potential
opioid abuse and a need for better pain management, the palliative care team
recommended the patient transition to oral medication. After several meetings with
the palliative care team, the patient indicated she wanted to discontinue receiving
treatment from that team.
Robinson, a case manager in the unit where the patient was being treated,
became concerned that the patient’s physicians and palliative care team weren’t
adequately treating the patient’s pain, and she took several actions regarding the
patient’s treatment without first obtaining physician approval. Six physicians and
one nurse ultimately complained about Robinson’s conduct.
2
On Friday, March 11, 2011, Dr. Mohammad requested a meeting with
Valenzuela and Robinson concerning Robinson’s involvement in the patient’s
treatment. During that meeting, which two resident physicians also attended,
Dr. Mohammad complained that Robinson had repeatedly questioned the resident
physicians as to why the patient wasn’t on antibiotics, why she didn’t have an IV
pain pump, and why a hematologist hadn’t been consulted. Dr. Mohammad also
indicated his awareness that, without any direction from a physician, Robinson had
contacted a sickle cell treatment facility in Texas and obtained information about a
physician at that facility. Robinson responded that she also had asked an SJMC
infectious disease specialist, who was not on the patient’s treatment team, whether
the patient needed IV antibiotics. Dr. Mohammad replied that it was his decision, not
Robinson’s, whether to consult other physicians. After Robinson volunteered that
she had asked the patient whether she was willing to have an IV pain pump,
Dr. Mohammad reacted angrily, characterizing Robinson’s behavior as unacceptable
and stating that her actions had undermined his role as a physician.
After Dr. Mohammad left the meeting, Valenzuela advised Robinson of the
seriousness of the situation and indicated she would follow up with Dr. Mohammad
and the human resource department (“HR”), and speak to Robinson again the
following Monday. That same day, Valenzuela spoke to an HR representative about
Robinson’s conduct with respect to the patient. The HR representative responded
3
that SJMC’s progressive disciplinary policy permitted Valenzuela to either apply the
last step before termination1 or terminate Robinson’s employment.
Valenzuela spoke to Dr. Mohammad again on Monday, March 14.
Dr. Mohammad reiterated that Robinson had worked against the patient’s treatment
plan and he also reported that the patient was refusing to take medication she didn’t
want and had asked why she wasn’t receiving IV medication. Dr. Mohammad
indicated that Robinson’s actions had placed a wedge between the patient and the
hospital.
Later that day, Valenzuela met with a physician and nurse from the palliative
care team. They reported that without a request from any SJMC physician, Robinson
had looked into obtaining a hematologist for the patient in Oklahoma City and asked
a social worker to determine whether transportation to Oklahoma City could be
arranged for the patient. The team felt that Robinson’s actions had given the patient
conflicting options and disrupted the patient’s care. Valenzuela also met with
SJMC’s medicine section chair and director of inpatient services, who agreed that
Robinson’s actions had been disruptive and interfered with the patient’s care. At
some point on March 14, Valenzuela conferred again with the HR representative
regarding Robinson’s actions. The next day, Valenzuela spoke to an additional
resident physician who hadn’t attended the March 11 meeting. The resident repeated
some of the previous complaints regarding Robinson’s conduct.
1
The record indicates the last step before termination is a “Decision-Making
Leave.” At that step, “[t]he employee is instructed to take the day off with pay to
make a decision about his/her commitment to his/her job.” Aplt. App., Vol. II at 400.
4
In a meeting with Robinson on March 15, Valenzuela terminated Robinson’s
employment. SJMC’s standard progressive disciplinary action form, completed by
Valenzuela, indicated Robinson had acted outside the scope of her position by taking
the following actions without first discussing them with a physician and without a
physician’s order: 1) asking the patient if she was willing to have an IV pain pump;
(2) arranging for the patient to consult with a Texas physician; (3) seeking a
hematologist for the patient in Oklahoma City and asking a social worker to look into
transportation; and (4) asking an infectious disease physician at SJMC whether the
patient needed IV antibiotics. The disciplinary action form also identified several
business reasons for terminating Robinson, including the need to (1) maintain
appropriate physician-patient relationships, (2) avoid disruptions in the patient’s care
and treatment plan, (3) avoid extending the patient’s stay; and (4) promote positive
patient outcomes and satisfaction. Id.
Robinson filed this action asserting claims under Title VII, 42 U.S.C.
§§ 2000e-2(a)(1) & 2000e-3(a), 42 U.S.C. § 1981, and state law, claiming that SJMC
terminated her based on her race, in retaliation for her complaining about race
discrimination, and in violation of Oklahoma public policy. The district court
granted summary judgment in favor of SJMC on all claims. Robinson appeals.
II. Discussion
A. Standard of Review
“We review the district court’s grant of summary judgment de novo, applying
the same standard used by the district court.” Riggs v. AirTran Airways, Inc.,
5
497 F.3d 1108, 1114 (10th Cir. 2007). Summary judgment is appropriate only “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). “In making this
determination, we view the evidence in the light most favorable to [Robinson], the
non-moving party, and draw all reasonable inferences in her favor.” Riggs, 497 F.3d
at 1114.
B. Race Discrimination and Retaliation Claims
Robinson alleges SJMC terminated her employment because of her race and in
retaliation for her report of race discrimination. Specifically, in support of her
retaliation claim, Robinson asserts that approximately five weeks before her
termination, another nurse said to her “you could never be a dumb blond, play the
dumb blond” and also asked “isn’t there another black case manager who’s loud and
assertive?”2 Id. at 304. Robinson asserts that she reported these comments to
Valenzuela and that Valenzuela reacted negatively to her report. Valenzuela denies
that Robinson ever complained about race discrimination.
The district court concluded that Robinson and SJMC met their respective
burdens of establishing a prima facie case and articulating a legitimate,
nondiscriminatory reason for the termination. See Lobato v. N.M. Env’t Dep’t,
733 F.3d 1283, 1288-89 (10th Cir. 2013). But the court granted SJMC summary
judgment after finding Robinson failed to show a genuine issue of material fact as to
2
Robinson doesn’t describe the context in which these statements were made.
6
whether SJMC’s proffered reasons for terminating her employment were pretext for
discrimination or retaliation.
“Pretext can be shown by such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Id. at 1289 (internal quotation marks omitted). “[W]e examine the facts as
they appear to the person making the decision, not the plaintiff’s subjective
evaluation of the situation.” Id. (internal quotation marks and brackets omitted).
“Thus, the relevant inquiry is not whether the employer’s proffered reasons were
wise, fair or correct, but whether it honestly believed those reasons and acted in good
faith upon those beliefs.” Id. (internal quotation marks and brackets omitted).
Moreover, a plaintiff generally “must proffer evidence that shows each of the
employer’s justifications are pretextual.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d
1303, 1309 (10th Cir. 2005) (internal quotation marks omitted).
Robinson contends that the district court didn’t address some of her pretext
evidence, erred in assessing other evidence, and failed to consider her evidence as a
whole. We address each of her assertions of error below.
1. Evidence that Robinson’s Conduct was Consistent with her
Job Description
Robinson contends that a jury could conclude, based on the terms of her job
description, that she never acted outside the scope of her case manager position;
7
therefore, SJMC’s reasons for terminating her were false. See Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir 2000) (noting a plaintiff can
show pretext “with evidence that the defendant’s stated reason for the adverse
employment action was false”). But Robinson fails to point to any evidence
suggesting SJMC didn’t honestly believe she acted outside the scope of her position.
Moreover, the record amply demonstrates otherwise. Dr. Mohammad
complained to Valenzuela that Robinson’s actions undermined the physician’s role,
interfered with the physicians’ treatment plan, and drove a wedge between the patient
and the hospital. The medical director of the palliative care team complained to
Valenzuela that Robinson had given the patient conflicting options and disrupted the
patient’s care. Yet another physician advised Valenzuela that Robinson’s conduct
disrupted and interfered with the patient’s care. Further, Valenzuela testified that
Robinson’s conduct fell outside her scope of practice because, according to “[t]he
fundamentals of nursing,” a nurse works under a physician’s direction. Id., Vol. III
at 491. While Robinson characterized her job description differently, Valenzuela
disagreed with that description. More importantly, Robinson’s contrary interpretation
fails to demonstrate that SJMC did not sincerely believe that she acted outside the
scope of her position.
2. SJMC’s Failure to Cite Any Written Rules Violated by
Robinson
Robinson next argues that SJMC’s failure to suggest that her conduct violated
any written rule or policy demonstrates that its proffered reasons for terminating her
8
were pretextual. We are not persuaded. Although SJMC admitted it cited no written
rule precluding Robinson’s specific conduct here, we have rejected the premise upon
which Robinson bases her argument—i.e., “that an otherwise reasonable justification
for a business decision somehow loses its legitimacy simply because it reflects an
exercise of managerial judgment rather than a ministerial execution of written
policy.” Medlock v. United Parcel Serv., Inc., 608 F.3d 1185, 1192 (10th Cir. 2010)
(questioning the plaintiff’s assertion that an employer cannot legitimately fire an
employee for misconduct “absent a formal company policy specifically addressing
such misconduct,” id. at 1193.). As we explained in Medlock, “this facially
untenable idea . . . is belied by countless employment discrimination cases decided
on the basis of legitimate business justifications without any reference to formal
policies necessarily legitimizing those justifications.” Id.
3. Evidence that SJMC Failed to Follow its Progressive Disciplinary
Policy
Robinson additionally contends that SJMC’s failure to follow its progressive
disciplinary policy, which she claims forbids immediate termination, is evidence of
pretext. See Kendrick, 220 F.3d at 1230 (noting a plaintiff can show pretext “with
evidence that the defendant acted contrary to a written company policy prescribing
the action to be taken by the defendant under the circumstances”). But SJMC’s
policy explicitly allows for termination without prior discipline in cases involving
“[a]ctions or displayed conduct detrimental to job performance or patient care.”
Aplt. App., Vol. II at 408. Although Robinson now maintains that SJMC never relied
9
on this provision to justify her termination, she ignores Valenzuela’s testimony
establishing otherwise. See id., Vol. III at 489-90 (citing this provision of the
progressive disciplinary policy).
Robinson also contends that SJMC’s progressive disciplinary policy required
Valenzuela, during the termination meeting, to provide her with a written statement
of the reasons for her termination and an opportunity to comment. She claims that
Valenzuela did neither and that, given the opportunity, she would have denied the
allegations. She reasons that SJMC’s failure to allow her to respond resulted in an
incomplete investigation, which she argues is evidence of pretext.
But the record shows that the physicians directly confronted Robinson in the
March 11 meeting with most of the allegations supporting her termination. See id. at
423-25. She argues she had no opportunity to respond at that time because Dr.
Mohammad dictated the order of who would speak and then walked out before she
could speak. Yet Robinson’s notes regarding the meeting show that she not only
spoke during the meeting but that she had an opportunity to address the allegations
with Valenzuela even after Dr. Mohammad left. See id., Vol. I at 225-26. Moreover,
although Robinson claims she would have denied the allegations, she doesn’t dispute
that she engaged in the conduct that led to the physicians’ complaints. Instead, she
disagrees only with SJMC’s business judgment that her actions were outside the
scope of her position. Thus, she fails to demonstrate that SJMC’s investigation was
so inadequate as to support an inference of pretext. Compare Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 543 (10th Cir. 2014) (holding employer’s failure to
10
obtain the plaintiff’s account of “what transpired” during a quarrel with a
co-employee, resulting in an inadequate investigation of the reason for his
termination, could permit a jury to infer pretext when combined with evidence of
disparate treatment of a similarly situated employee), with Riggs, 497 F.3d at 1119
(holding employer’s failure to allow plaintiff to respond regarding a customer
complaint was not a “disturbing procedural irregularity” tending to show pretext
where employer had previously addressed the customer incident with the plaintiff and
she was the only employee fitting the customer’s description).
4. Evidence that SJMC Treated Robinson Differently than
Similarly Situated Employees
Robinson next argues the district court improperly resolved factual issues in
concluding that her evidence of disparate treatment didn’t support a finding that other
employees’ situations were sufficiently similar or that they had “violated work rules
of comparable seriousness.” Kendrick, 220 F.3d at 1232.
Robinson points to evidence that she says establishes that five other caucasian
employees supervised by Valenzuela each committed offenses similar to hers but
were not treated similarly. Two of those individuals were disciplined for alleged
HIPAA3 violations (J.M. and P.E.) and three were disciplined for
performance-related actions (J.H., J.E., and again, P.E.). Robinson also points to a
fifth individual, R.M., who although she was terminated for performance-related
issues, was first disciplined.
3
Health Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, 110 Stat. 1936.
11
Regarding J.M. and P.E., Robinson suggests that their actions in disobeying a
federal law were more serious than any of her conduct. Thus, she argues the district
court erred in concluding her allegations would not permit an inference of pretext.
But Robinson misplaces the focus of her argument on her own evaluation of the
seriousness of other employees’ conduct.
While a plaintiff may show pretext on a theory of disparate treatment, id., the
ultimate question is whether SJMC considered the other employees’ offenses to be
comparable to Robinson’s conduct, see Riggs, 497 F.3d at 1121 (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). “A company must be
allowed to exercise its judgment in determining how severely it will discipline an
employee for different types of conduct. Our role is to prevent unlawful hiring
practices, not to act as a super personnel department that second guesses employers’
business judgments.” Kendrick, 220 F.3d at 1233 (internal quotation marks omitted).
Moreover, SJMC’s progressive disciplinary policy provides that coaching is an
appropriate level of discipline for some HIPAA violations. See Aplt. App., Vol. II at
409.
12
Robinson has failed to present evidence that Valenzuela considered the other
case managers’ HIPAA violations to be similar to or as serious as her conduct and
this argument also fails.4
Robinson also maintains that several case managers (P.E., J.H. and J.E.) acted
similarly to her but they were not immediately terminated. But Robinson fails to
acknowledge the significant factual distinctions between the other employees’
circumstances and her own. See Kendrick, 220 F.3d at 1232-34 (noting substantial
differences in the plaintiff’s and another employee’s circumstances, although both
violated arguably comparably serious work rules). For instance, while Robinson
points out that Valenzuela disciplined J.E. for failing to carry out a physician’s order,
she fails to point out that J.E. disputed receiving that order. And she doesn’t develop
an argument as to the similarity, if any, between her circumstances and those of P.E.
and J.H. It is not sufficient for Robinson to simply assert that other employees had
performance issues but weren’t terminated. See id. at 1234 (holding that substantial
differences between plaintiff’s and other employee’s circumstances precluded a
finding there was sufficient evidence to create a genuine issue of material fact
concerning pretext).
4
Robinson points out that witness Mary Martin testified that she views
misconduct violating federal law as more serious than other misconduct. See Aplt.
App., Vol. II at 360-61. Robinson doesn’t identify Martin’s role or position, but it
appears from the cited testimony that she is a “nurse manager” at SJMC. See id. at
360. Robinson fails to suggest, however, that Valenzuela shared Martin’s opinion.
Nor does she show that any employee who reported to Martin and was treated
differently would have been similarly situated to herself. See Kendrick, 220 F.3d at
1232 (10th Cir. 2000) (stating employees are similarly situated if they “deal[] with
the same supervisor”).
13
As evidence of Valenzuela’s inconsistent actions towards her, Robinson points
out that Valenzuela terminated R.M. for altering a physician’s order, but did so only
after coaching her over two previous incidents—the first after R.M. gave prescribed
medicine valued at $350 to a patient who could not afford to pay for it without
obtaining appropriate approval, and the second when she made racial comments to a
co-worker. Importantly, Robinson ignores the considerable distinguishing
circumstances of R.M.’s previous incidents of misconduct. And Robinson fails to
point to any evidence that SJMC considered these incidents to be as serious as her
own actions, which SJMC concluded were outside the scope of her position and
detrimental to the patient’s care. More importantly, Robinson acknowledges that
Valenzuela terminated R.M. after a physician complained that R.M. had altered the
physician’s written order regarding hospice care for a patient without first obtaining
the physician’s permission. Thus, the bottom line is that Valenzuela terminated R.M.
for conduct similar to Robinson’s, and SJMC’s treatment of R.M. “is close enough to
be comparable,” id. at 1233.
Simply stated, Robinson points to no evidence that comes even close to
approaching the circumstances here—that is, a case manager who acted outside of her
position in multiple and distinct ways and in a manner that resulted in six physicians
and one nurse complaining to Valenzuela about her conduct. Under these
circumstances, the district court did not err in holding that Robinson failed to show
that similarly situated employees were treated differently.
14
5. Evidence of Inconsistencies in SJMC’s Reasons for
Terminating Robinson
Next, Robinson contends SJMC made false and inconsistent statements that
would allow a jury to infer that its reasons for terminating her were pretextual. In
support, Robinson maintains that the disciplinary action form documenting her
termination indicated she had not been coached,5 but that SJMC later falsely
asserted—in a filing with the EEOC and in Valenzuela’s deposition testimony—that
she had been coached. Robinson denies any previous coaching, and she argues that
SJMC’s changed position on this issue is evidence of pretext. See Jaramillo,
427 F.3d at 1309-10 (discussing circumstances when employer’s changed explanation
for the adverse employment action is evidence of pretext).
But the record doesn’t support Robinson’s claim that SJMC changed its
position after the fact. It is true, as Robinson points out, that the disciplinary action
form documenting Robinson’s termination indicated “None” in response to a
question asking for “[d]ates of previous discussions concerning this issue.” Aplt.
App., Vol. II at 390 (emphasis added). But the coaching Valenzuela referred to in
her deposition, using her own historical notes, didn’t concern Robinson’s
termination. Instead, it concerned Valenzuela’s conversation with Robinson
regarding Robinson’s working relationship with the nursing staff in a specific unit of
the hospital. See id., Vol. III at 485-86. SJMC attached Valenzuela’s notes
5
Coaching is an informal disciplinary action under SJMC’s progressive
disciplinary policy involving “a planned discussion between a manager and employee
about the need to correct a problem and improve performance.” Aplt. App., Vol. II at
395.
15
regarding the alleged coaching to its EEOC filing and noted that Valenzuela had
counseled Robinson not to cross boundaries and to take a team approach. Although
Robinson denies that any such coaching occurred, whether formally or informally,
the evidence she cites doesn’t show a contradiction between Valenzuela’s testimony
and notes and the disciplinary action form documenting her termination.
Robinson also asserts that SJMC falsely stated in its EEOC filing that “the
patient ‘fired’ the palliative care team because they were not giving her the
medication recommended by” Robinson. Id., Vol. II at 439. Robinson points to
evidence that the patient dismissed the palliative care team before Robinson talked to
the patient about an IV pain pump. She contends this false statement is evidence of
pretext because a jury could see it as evidence that SJMC attempted to exaggerate
Robinson’s misconduct.
But Robinson doesn’t identify where in the record she raised this issue, as
required by our local rule. See 10th Cir. R. 28.2(C)(2) (“For each issue raised on
appeal, all briefs must cite the precise reference in the record where the issue was
raised and ruled on.”). And our review of the record indicates she didn’t raise this
particular pretext contention in the argument section of her brief in opposition to
summary judgment. Thus, Robinson didn’t sufficiently raise this issue in the district
court to preserve it for appellate review. Somerlott v. Cherokee Nation Distribs.,
Inc., 686 F.3d 1144, 1150 (10th Cir. 2012). Nor does Robinson make any effort to
show plain error as to this issue. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,
1130 (10th Cir. 2011)(noting we will reverse based on new issue raised for first time
16
on appeal only if appellant satisfies plain error standard of review). This failure
“marks the end of the road for an argument for reversal not first presented to the
district court.” Id. at 1131.6
6. Evidence that Valenzuela Denied that Robinson Complained
About Race Discrimination
Robinson claims that about five weeks before SJMC terminated her
employment, she reported to Valenzuela that another employee had said to her “you
could never be a dumb blond, play the dumb blond” and “isn’t there another black
case manager who’s loud and assertive.” Aplt. App., Vol. II at 304. Robinson
contends that when she reported these comments Valenzuela told her to “forget about
what she said.” Id. According to Robinson, Valenzuela “seemed angry with me, as
if I’d done something wrong for telling her that.” Id. Valenzuela denied that
Robinson ever reported a racial comment made by another employee. See id.,
Vol. III at 493. Robinson argues that a jury could infer pretext based upon
Valenzuela’s hostility toward her discrimination complaint and her later assertion
that Robinson had not reported any racial comments.
We are not persuaded. “To raise an inference of pretext in the face of the
employer’s legitimate, nondiscriminatory explanation, the plaintiff must undermine
6
In a related argument, Robinson argues the disciplinary action form
inaccurately stated that she clearly understood the rule or policy she violated. But
regardless of whether Robinson misunderstood the rule or policy she violated, she
fails to point to any evidence indicating that SJMC didn’t sincerely believe she
understood the most basic fundamentals of nursing—i.e., that a nurse acts under the
direction of a physician.
17
the employer’s credibility to the point that a reasonable jury could not find in its
favor.” Jaramillo, 427 F.3d at 1310. Here, SJMC’s proffered overall reason for
Robinson’s termination—that she acted outside the scope of her position on
numerous occasions, as reported by multiple physicians and one nurse—is supported
by the record. See id. at 1312. And notably, SJMC has consistently offered this
explanation. See id. at 1310-11 (noting employer had not pursued a “shotgun
approach” by proffering “a significant number of pretextual reasons”). Moreover, the
fact that Valenzuela both hired and terminated Robinson in a relatively short time
frame gives rise to “a strong inference” (but not a presumption) that SJMC’s stated
reasons for her termination are not pretextual. Antonio v. Sygma Network, Inc.,
458 F.3d 1177, 1183 (10th Cir. 2006) (internal quotation marks omitted).7 On this
record, Robinson’s attack on Valenzuela’s credibility doesn’t raise a genuine
question of pretext such that a reasonable jury could not find in SJMC’s favor. See
Jaramillo, 427 F.3d at 1310.
To summarize, whether considered individually or as a whole, Robinson’s
pretext evidence doesn’t show “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in SJMC’s proffered legitimate reasons for her
termination. Lobato, 733 F.3d at 1289 (internal quotation marks omitted). Robinson
has failed to raise a genuine issue as to whether SJMC’s stated and consistent reasons
7
Robinson argues a court can’t draw this so-called “same actor inference” in
favor of an employer on summary judgment. Antonio, 458 F.3d at 1183 (internal
quotation marks omitted). But we have recognized this inference in a summary
judgment case and concluded that the employee’s pretext evidence didn’t dispel it.
See id., at 1183-84.
18
for her termination are “an attempt to mask an illegitimate motive.” Jaramillo,
427 F.3d at 1312. We therefore affirm the district court’s grant of summary
judgment to SJMC on Robinson’s race discrimination and retaliation claims.
C. Wrongful Termination in Violation of Oklahoma Public Policy
Finally, Robinson contends that SJMC terminated her employment in
retaliation for reporting to Valenzuela and others her concern that physicians were
withholding treatment from the patient because, as stated by one of the resident
physicians, the patient didn’t “warm their hearts.” Aplt. App., Vol. II at 314. She
argues her termination thus violated a clear mandate of public policy and constituted
an actionable state tort claim under the rationale of Burk v. K-Mart Corp., 770 P.2d
24 (Okla. 1989).
Burk recognized a “public policy exception to the at-will termination rule in a
narrow class of cases in which the discharge is contrary to a clear mandate of public
policy as articulated by constitutional, statutory or decisional law.” Id. at 28. But
Burk further recognized that “the vague meaning of the term public policy,” requires
that this exception to at-will employment “be tightly circumscribed.” Id. at 28-29;
see also Vasek v. Bd. of Cty. Comm’rs of Noble Cty., 186 P.3d 928, 932 (Okla. 2008)
(setting out elements of viable Burk claim).
The district court granted summary judgment to SJMC on this claim, holding
that Robinson failed to point to evidence that she reported a concern that physicians
were withholding care from the patient. On appeal, Robinson maintains that she told
Valenzuela that a physician was conditioning treatment on the patient’s ability to
19
warm their hearts. But as the district court noted, the testimony she relies on is
rambling and vague, and doesn’t clearly support her contention. Nor did Robinson
make any effort in the district court to clarify her statements. Instead, she filed an
affidavit opposing summary judgment that didn’t mention much less clarify her
allegation that she reported a concern that physicians were withholding treatment
from the patient.
Robinson thus failed to meet her burden to come forward with evidence that
she “refus[ed] to act in violation of an established and well-defined public policy
or . . . perform[ed] an act consistent with a clear and compelling public policy.”
Burk, 770 P.2d at 29.8 We affirm the district court’s grant of summary judgment to
SJMC on Robinson’s wrongful termination claim.
8
In any event, even if Robinson could point to evidence that she reported a
concern to Valenzuela that physicians were withholding care from the patient, she
has not identified “a specific, well-established, clear and compelling public policy”
that SJMC violated by terminating her. Barker v. State Ins. Fund, 40 P.3d 463,
468-69 (Okla. 2001). She cites two sections of the Oklahoma Nursing Practice Act
that define a nurse’s general duty of care and penalties for failure to meet that
standard. See Okla. Stat. tit. 59, §§ 567.8, 567.9. But these provisions don’t support
her Burk claim. See Barker, 40 P.3d at 470 (“Unless a statute specifically articulates
an established and well-defined Oklahoma public policy, the statute may not be relied
upon to support a common law Burk tort.”); see also Prince v. St. John Med. Ctr.,
957 P.2d 563, 566 (Okla. Civ. App. 1998) (holding decisional law that “clearly
placed a duty of care” on a hospital was nonetheless insufficient to support a Burk
tort claim because “what that duty entails in a particular circumstance is not as
clear”). In light of Burk’s explicit admonition that the public policy exception be
tightly circumscribed and reserved for violations of established and well-defined
public policy, we conclude Robinson’s reliance on the cited statutes “is far too
slender a reed upon which to base a public policy tort.” McKenzie v. Renberg’s Inc.,
94 F.3d 1478, 1488 (10th Cir. 1996) (internal quotation marks omitted).
20
The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
21