Williams v. McCallin , 439 F. App'x 707 ( 2011 )


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  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    September 7, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    BOBBY WILLIAMS,
    Plaintiff-Appellant,
    v.                                                    No. 10-1387
    (D.C. No. 1:08-CV-02051-RPM)
    NANCY MCCALLIN, in her                                 (D. Colo.)
    individual and official capacity;
    BARBARA MCDONNELL, in her
    individual capacity; CINDY HESSE,
    in her individual capacity; KRISTIN
    CORASH, in her individual capacity,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.
    Plaintiff Bobby Williams appeals from the order of the district court that
    granted summary judgment in favor defendants, Nancy McCallin, Barbara
    McDonnell, Cindy Hesse, and Kristin Corash on his claims for race
    *
    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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    discrimination under 42 U.S.C. § 1981, and the violation of his First Amendment
    free speech rights under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C.
    § 1291, and we affirm.
    Background
    The parties are familiar with the facts and procedural history of the case,
    and we repeat neither in detail. In February 2005, Mr. Williams, an
    African-American, was hired as Director of Applications Management, an at-will
    management position, for the Colorado Community College System (System). In
    December 2006, his employment was terminated because of the “inability to
    perform [his] duties at the level required of th[e] position.” Aplt. App. Vol. 1
    at 251.
    Mr. Williams was hired by Purdendu Sarkar, who in turn had been hired in
    January 2005, as the Chief Information Officer in charge of overseeing the
    implementation of the Enterprise Resource Planning System (ERP), which is an
    information technology configuration for the thirteen colleges that comprise the
    System. Mr. Williams’ primary responsibility was to ensure that schools’ legacy
    applications functioned during the transition to the new configuration. He
    supervised four project managers and a group of developers.
    -2-
    From the beginning, there were problems between Mr. Sarkar and the
    vendor of the software, and his employment was terminated in August 2006. 1 But
    even before Mr. Sarkar was fired, there were problems with Mr. Williams’
    performance as well, which included both technical and management deficiencies.
    In their answer brief, defendants provide a comprehensive list of Mr. Williams’
    deficiencies, all of which are supported by references to the record. Aplee. Br. at
    14-30. Suffice it to say that Mr. Williams’ failure to perform his job and lack of
    professionalism resulted in his termination. He sued the defendants, all of whom
    are governmental officials at the System.
    Analysis
    “We review the district court’s grant of summary judgment de novo,
    applying the same standard as the district court.” Crowe v. ADT Sec. Servs., Inc.,
    — F.3d —, 
    2011 WL 1532536
    at *3 (10th Cir. April 25, 2011). “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).” 
    Id. “A dispute
    is genuine if there is sufficient evidence so
    that a rational trier of fact could resolve the issue either way.” 
    Id. (quotation marks
    omitted).
    1
    In 2007, Mr. Sarkar sued for the alleged violation of his First Amendment
    rights and national origin discrimination. The district court granted summary
    judgment to the defendants, and this court affirmed on appeal. Sarkar v.
    McCallin, 
    636 F.3d 572
    (10th Cir. 2011).
    -3-
    A plaintiff may prove a § 1981 case “either by direct evidence of
    discrimination, or by adhering to the burden-shifting framework of McDonnell
    Douglas.” 
    Id. at *
    3 (citations omitted). Because there is no direct evidence of
    discrimination, Mr. Williams proceeds under the McDonnell Douglas framework,
    which requires him, in the first instance, to establish a prima facie case of
    discrimination. The defendants must then come forward with a legitimate, non-
    discriminatory reason for terminating him. Then, the burden falls to
    Mr. Williams to show that the defendants’ reason for terminating him is
    pretextual. 
    Id. at *
    4. For purposes of summary judgment, defendants assumed
    that Mr. Williams set forth a prima facie case. For his part, Mr. Williams appears
    to concede that defendants proffered a legitimate, non-discriminatory reason for
    firing him. Thus, the issue is whether Mr. Williams has met his burden of
    establishing pretext.
    “A plaintiff may show pretext by demonstrating such weaknesses,
    implausibilities, inconsistencies, incoherencies, or contradictions in the
    employer’s proffered legitimate reasons for its actions that a reasonable factfinder
    could rationally find them unworthy of credence and hence infer that the
    employer did not act for the asserted nondiscriminatory reasons.” 
    Id. at *
    6
    (quotation omitted). Because Mr. Williams “bear[s] the burden of proof at trial
    [on the issue of pretext], he must go beyond the pleadings and designate specific
    facts so as to make a showing sufficient to establish the existence of an element
    -4-
    essential to his case in order to survive summary judgment.” Cardoso v. Calbone,
    
    490 F.3d 1194
    , 1197 (10th Cir. 2007) (quotation omitted).
    In his opening brief, Mr. Williams mentions several theories in support of
    his argument that the decision to terminate his employment was a pretext for
    discrimination. Some of these theories are recognized as a means to prove
    pretext. See Crowe, 
    2011 WL 1532536
    at *6 (recognizing that one way to prove
    pretext is by showing “that similarly-situated employees were treated
    differently”). The problem with this reasoning is that Mr. Williams’ opening
    brief does not contain a single cite to any evidence in the two-volume appendix.
    In his reply, Mr. Williams says that the lack of record references is of no
    importance because “[t]he facts set forth in the ‘Statement of Facts’ and
    ‘Argument’ sections are taken from Williams’ Complaint filed in the District
    Court, not spread through a voluminous record.” Aplt. Reply Br. at 2. But the
    unverified complaint is not evidence. See 
    Cardoso, 490 F.3d at 1197
    . Thus, the
    district court properly granted summary judgment in favor of defendants on
    Mr. Williams’ § 1981 claim.
    We turn now to Mr. Williams’ claim under § 1983 for the alleged violation
    of his First Amendment rights. The defendants argue they are entitled to
    qualified immunity because Mr. Williams cannot point to any constitutional
    violation, and thus, the law was not clearly established. “The doctrine of
    qualified immunity protects government officials from liability for civil damages
    -5-
    insofar as their conduct does not violate clearly established statutory or
    constitutional rights of which a reasonable person would have known.” Clark v.
    Wilson, 
    625 F.3d 686
    , 690 (10th Cir. 2010) (quotation omitted). “Ordinarily, in
    order for the law to be clearly established, there must be a Supreme Court or
    Tenth Circuit decision on point, or the clearly established weight of authority
    from other courts must have found the law to be as the plaintiff maintains.”
    
    Id. (quotation omitted).
    “[W]e have discretion to decid[e] which of the two
    prongs of the qualified immunity analysis should be addressed first in light of the
    circumstances in the particular case at hand.” 
    Id. (quotation omitted).
    The theory advanced by Mr. Williams concerning his claim for violation of
    his constitutional rights is as follows: When the project to implement the new
    computer system began to experience problems, Mr. Williams sent some emails to
    Ms. McDonald that “rais[ed] issues that the System did not want to have revealed
    to the public . . . [particularly in light of] an investigation . . . and several
    broadcasts [by a local television station] of problems with the computer system.”
    Aplt. Opening Br. at 9. These emails, however, do not form the basis of the
    claim. “Specifically, Mr. Williams concedes that his speech initially in his emails
    is speech related to his employment and is not necessarily speech that is
    protected.” 
    Id. at 8-9.
    Instead, his claim rests on the theory that when he made it
    “clear to all involved that he was blaming the vendor and that he would make
    truthful statements to the media if he was interviewed,” 
    id. at 9,
    he was
    -6-
    terminated several weeks later. He describes this claim as “an unusual case of the
    public entity making the decision to terminate him not for speech he had made in
    the past but rather for speech it knew he would make in the future.” 
    Id. We are
    unaware of any authority from any court that recognizes such a
    right. The lack of any such decision means, perforce, that the law is not clearly
    established. As such, the district court properly granted summary judgment in
    favor of defendants on Mr. Williams’ § 1983 claim.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Chief Judge
    -7-
    

Document Info

Docket Number: 10-1387

Citation Numbers: 439 F. App'x 707

Judges: Briscoe, Ebel, O'Brien

Filed Date: 9/7/2011

Precedential Status: Precedential

Modified Date: 11/5/2024