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Date: 01-30-2018

Case Style:

Proctor Andrew Young v. City of Idabel; Mayor Tina Foshee-Thomas

Eastern District of Oklahoma Federal Courthouse - Muskogee Oklahoma

Case Number: 16-7018

Judge: Jerome A. Holmes

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Eastern District of Oklahoma (Muskogee County)

Plaintiff's Attorney: Dan Smolen, Lauren Lambright, David Bross

Defendant's Attorney: Clark W. Crapster, Mark E. Fields, Sean McKelvey

Description: Proctor Andrew Young was the fire chief of Idabel, Oklahoma for five
years. In 2013, he was fired for allegedly breaking municipal personnel policies.
Mr. Young sued the City of Idabel and Mayor Tina Foshee-Thomas, arguing that
they ignored a hostile work environment and fired him because of his race. He
also claimed that Ms. Foshee-Thomas withheld exculpatory information during a
related criminal investigation.
* This order and judgment is not binding precedent except under the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.
The district court granted summary judgment to the defendants. We
affirm.
I
A
Mr. Young joined the Idabel Fire Department (“IFD”) as a volunteer
firefighter in 1995. In 2008, he was appointed fire chief, a position that he held
until he was fired in February 2013. Mr. Young is African American. Most of
the IFD firefighters are white.
A few years after he became the fire chief, Mr. Young began to notice that
some of the white firefighters were rude, poorly behaved, and openly
insubordinate whenever he spoke with them. Though none of the white
firefighters mentioned his race at work—as Mr. Young put it, “they knew how to
push it without saying the ‘N word’”—Mr. Young heard rumors that they were
openly referring to him by racial slurs outside of the firehouse. Aplt.’s App., Vol.
IV, at 327 (Pl.’s Ex. 1, Dep. of Proctor Andrew Young, dated Jan. 7, 2016)
(emphasis added). One employee told him that the white firefighters were “not
doing what [he was] asking them to do” because “they’re not going to do what an
‘N’ is telling them to do.” Id. at 326–27. And he also heard—secondhand—that
a firefighter named Kurt Stevenson referred to him as a “nigger” during a 2012
conversation with Kevin Sain, another firefighter, at Mr. Sain’s home. See id.,
Vol. V, at 454–59 (Pl.’s Ex. 13, Dep. of Kevin Sain, dated Jan. 20, 2016).
2
Mr. Young first raised his concerns with Ms. Foshee-Thomas in 2011. She
allegedly was initially dismissive, simply telling Mr. Young that he should
discipline the other firefighters and “write them up” if they were “not doing what
their daily chores are supposed to be.” Id. at 366 (Pl.’s Ex. 4, Dep. of Tina
Foshee-Thomas, dated Jan. 6, 2016).
Ms. Foshee-Thomas never followed up with Mr. Young after their 2011
conversation. From Mr. Young’s perspective, this showed that she was
uninterested in his complaints or, worse, irritated that he had sought to discuss
them with her. Mr. Young felt that Ms. Foshee-Thomas did “not [have] time for
[him],” id., Vol. I, at 106–07 (Ex. B, Dep. of Proctor Andrew Young, dated Jan.
7, 2016), and grew concerned when he “started being eliminated from [contractnegotiation]
meetings” after he first raised the issue, id. at 89.
B
Before Mr. Young got the job, the IFD fire chief had worked conventional
business hours, reporting to the station at 8 a.m. and leaving at 4 p.m. However,
Mr. Young chose to keep a different schedule when he became chief. Instead of
working for eight hours each day, five days a week, he worked shifts of twentyfour
hours on duty, followed by forty-eight hours off. He testified that the mayor
at the time, Jerry Shinn, approved of his work schedule, but that arrangement was
never reduced to writing.
3
Throughout his time with the IFD, Mr. Young also worked part-time as a
referee in local football games. He testified that, on the days that he worked as a
referee, he often left work early or came in late for his shift. He further testified
that Idabel’s two previous mayors—Mr. Shinn and James Mills—had allowed him
to alter his schedule on game days. Again, Mr. Young never put this agreement
into writing.
Municipal employees have to comply with certain requirements whenever
they want to change their schedules. A form signed by Mr. Young,
acknowledging receipt of the City’s Handbook of Personnel Policies
(“Handbook”), states that “no individual is authorized to alter or modify the terms
and conditions of employment without authorization of the [Idabel] City
Council.” Id. at 83 (Ex. A, Employee Acknowledgment Form, dated Dec. 17,
2007). The Handbook also includes a specific provision concerning secondary
employment; it states that “[s]econdary employment is permissible provided it
does not interfere, in any manner, with an employee’s ability to perform assigned
duties as a City employee.” Id., Vol. II, at 134 (Ex. C, City of Idabel Employee
Handbook of Personnel Policies, dated Nov. 2007). The provision also requires
employees to “obtain the prior approval of the Department Head for secondary
employment.” Id. The City gives all of its employees a copy of the Handbook.
Mr. Young received one in 2007, the year before he became chief. In December
4
of that year, he signed an acknowledgment form stating that he had read the
Handbook and understood its terms.
Mr. Young never got Ms. Foshee-Thomas’s approval to alter his work
schedule after she became mayor. He later explained that he had assumed that
she knew about the arrangement when she was elected, pointing out that she was
the city clerk when Mr. Shinn and Mr. Mills were mayors. But Mr. Young
conceded that, after Ms. Foshee-Thomas became mayor, she never gave him any
indication that she had known about his altered work schedule before assuming
the mayoral position.
C
In 2012, a volunteer firefighter approached Ms. Foshee-Thomas and told
her that a few firefighters had funneled municipal funds into an unauthorized
bank account. Ms. Foshee-Thomas hired Margaret McMorrow-Love, an attorney,
to conduct an internal investigation into the IFD’s finances. As part of that
investigation, Ms. McMorrow-Love interviewed nearly every full-time IFD
employee. She also reviewed hundreds of internal documents, including payroll
records, time sheets, and IFD shift logs.
Ms. McMorrow-Love eventually found that Mr. Young had misdirected
City funds into the unauthorized account; she also discovered that Mr. Young had
sole control over that bank account. Mr. Young admitted that he had transferred
City funds into the bank account and did not recall getting the City Council’s
5
permission for this action. After reading Ms. McMorrow-Love’s findings, Ms.
Foshee-Thomas concluded that Mr. Young’s conduct was “not authorized by law
or by City policy” and was “totally unacceptable . . . [for] a Department Head.”
Id., Vol. III, at 173 (Ex. J, Letter from Tina Foshee-Thomas, dated Nov. 26,
2012). She felt that, based on that offense alone, he should face “substantive
disciplinary action.” Id.
But there was more. During her investigation, Ms. McMorrow-Love also
noticed numerous discrepancies in Mr. Young’s time sheets. Those time sheets
showed that Mr. Young “routinely recorded [having worked] 234 hours” in a
month, even though he was approved to work only 212 hours each month. Id. at
170. On one sheet, Mr. Young had asked for compensation for an additional
twelve hours without providing explanatory documentation to support the request
(e.g., regarding the date the additional hours were worked). When confronted
with the time sheets, Mr. Young “freely admitted” to Ms. McMorrow-Love and
Ms. Foshee-Thomas that, “for many years,” he had added undocumented work
hours to his time sheets. Id. He explained that he had recorded the extra time in
order to become eligible for a raise, and said that Mr. Shinn and Mr. Mills had
both approved of the time-sheet adjustments. He explained that, based on those
prior agreements, he had thought that he did not need the City Council to approve
his time records, so he had never asked for its approval.
6
On November 26, 2012, Ms. Foshee-Thomas formally notified Mr. Young
that he could face discipline for working a second job without permission,
misdirecting City funds, and falsifying his time sheets. The notice also
mentioned other conduct that Ms. Foshee-Thomas found “[u]nbecoming [of] a
Department Head,” such as painting the firehouse’s sleeping quarters pink,
confiscating the remote control to the firehouse television, and taking a thermalimaging
camera, fire extinguishers, and a fish fryer from the firehouse. Id. at
173–75. The notice explained that, because the misconduct had violated several
City personnel policies, Mr. Young would be suspended without pay. After
giving Mr. Young his notice, Ms. Foshee-Thomas held a disciplinary hearing on
December 10, 2012. Mr. Young attended the hearing, but provided no new
information about his alleged misconduct.
After the hearing, Ms. Foshee-Thomas recommended that Mr. Young be
fired. Mr. Young appealed her decision to the City Council; however, it upheld
the decision. Mr. Young’s firing was effective on February 9, 2013.
D
Shortly after Mr. Young was fired, he was criminally charged with two
counts of making a false, fictitious, or fraudulent claim against the state, based on
Mr. Young’s incorrect timesheet entries that he submitted while working for IFD.
A state court held a preliminary hearing, where witnesses testified that Mr. Young
7
was free to set his own shifts and that, as fire chief, he was excluded from the
IFD’s union-negotiated shift requirements with the City.
The court eventually quashed the charges against Mr. Young. Its order
stated that “[t]he evidence presented by the State failed to prove that the
Defendant failed to work the hours that he turned in claims for.” Id., Vol. V, at
398 (Pl.’s Ex. 6, Order, dated July 31, 2015). It also laid out seven factual
findings, including a determination that Mr. Young “had authority to modify his
own [work] schedule,” and had “permission . . . to work as [a] referee.” Id. at
397–98.
E
Mr. Young then filed a five-count complaint in federal district court.
Against both defendants, he brought claims for (1) racial discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and 42 U.S.C. § 1981, (2) hostile work environment in violation of Title VII, (3)
racial discrimination in violation of the Equal Protection Clause under 42 U.S.C.
§ 1983, and (4) malicious prosecution. Against Ms. Foshee-Thomas alone, he
brought a claim for intentional infliction of emotional distress (“IIED”) under
Oklahoma law.
The City and Ms. Foshee-Thomas each moved for summary judgment on all
of Mr. Young’s claims. The district court granted the defendants’ summaryjudgment
motions. Mr. Young has appealed that ruling.
8
II
We review the district court’s summary-judgment order de novo.
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007).
Summary judgment is appropriate when 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 draw all reasonable inferences in favor of
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).1 But the nonmoving party may not rely on conclusory
assertions to support its position; instead, the record must show “evidence on
which [a] jury could reasonably find for the [nonmoving party].” Berry v. TMobile
USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (quoting Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)). “We have long said that
we may affirm on any basis supported by the record, even if it requires ruling on
arguments not reached by the district court or even presented to us on appeal.”
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).
1 Because we review summary-judgment decisions de novo, we need
not separately address arguments—like those Mr. Young advances—that the
district court erred by viewing the evidence in the light most favorable to the
defendants. Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004).
9
A
Mr. Young argues that the district court erred in granting defendants’
summary-judgment motions on his Title VII discrimination claim.2 We disagree.
Title VII makes it unlawful “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race.” 42
U.S.C. § 2000e-2(a)(1). A plaintiff can show a Title VII violation through either
direct or indirect evidence. Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). Unlike direct evidence, indirect evidence requires some kind of
logical inference. Cf. Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th
Cir. 2002) (“Direct evidence demonstrates on its face that the employment
decision was reached for discriminatory reasons.”). Mr. Young’s discrimination
claim relies only on indirect evidence, so we use the burden-shifting analysis set
2 Though Mr. Young sought relief before the district court for
defendants’ alleged racial discrimination under 42 U.S.C. § 1981, in addition to
Title VII, he frames his issues on appeal solely in terms of the latter. We need
not pause to consider whether this amounts to an instance of waiver, because the
substantive standards under Title VII are the same as those applicable under
§ 1981. See Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir.
2011) (“A plaintiff may prove violation of Title VII or 42 U.S.C. § 1981—the
standards are the same—either by direct evidence of discrimination, or by
adhering to the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” (citations omitted)); accord Aramburu v. Boeing Co., 112
F.3d 1398, 1403 n.3 (10th Cir. 1997). Therefore, our ultimate conclusion, infra,
that Mr. Young cannot prevail on his discrimination claim under Title VII would
apply equally to any § 1981 claim.
10
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Under
this framework, a plaintiff must first make out a prima facie case for the
violation; next, the burden shifts to the defendant to articulate a
nondiscriminatory reason for the adverse action. See id. at 802–04. The burden
then shifts back to the plaintiff to prove that the defendant’s explanations are a
pretext for an unlawful discriminatory motive. Id.
The parties agree that Mr. Young has established a prima facie case for his
discrimination claim. The only remaining questions are (1) whether the
defendants offered legitimate reasons for Mr. Young’s firing and, if so, (2)
whether Mr. Young showed that those reasons were pretextual.
The answer to the first question is straightforward because the defendants
pointed to plenty of nondiscriminatory reasons for firing Mr. Young. He worked
a second job without approval, altered his work schedule without approval,
routinely misrepresented his work hours, and improperly transferred City funds
into a bank account under his control. On top of this, Mr. Young took home IFD
firehouse equipment for his personal use, restricted employees’ access to the IFD
television, and painted the firehouse’s sleeping quarters pink—using City funds
without permission—simply because he preferred that color. Any of these acts
would have arguably violated the Handbook and been grounds for termination.3
3 Mr. Young admitted committing the lion’s share (if not all of) the
(continued...)
11
See Aplt.’s App., Vol. III, at 175–76 (noting that the Handbook forbids
“[i]nsubordination,” “[m]isuse and/or misappropriation of City property,”
“[o]ffensive conduct on duty,” and “[f]alsification of city records,” and
authorizing termination for such offenses).
Mr. Young maintains, however, that the defendants’ proffered nondiscriminatory
reasons were a mere pretext for racial discrimination. He focuses
on one violation in particular—his failure to obtain approval for his second job—
and argues that white city employees were not fired for working two jobs without
permission. For support, he points to a white employee named Steven Surratt,
who was mentioned in Ms. Foshee-Thomas’s deposition testimony.4 Mr. Surratt
was “the Department Head for the City’s water department” and “was earning
money from the City as a volunteer firefighter at the same time.” Aplt.’s Opening
3(...continued)
violations. Aplt.’s App., Vol. I, at 102 (testifying that he never sought Ms.
Foshee-Thomas’s approval for his second job); id. at 98–99 (testifying that he
altered his work schedule without Council approval); id., Vol. IV, at 318–19
(testifying that he transferred City funds into his account without permission).
4 In his “Summary of Argument” portion of his opening brief, Mr.
Young summarily refers to “Rusty Sullivan,” whom he describes as “[a]nother
city employee . . . caught not working while he was supposed to be on the clock
numerous times and was not disciplined.” Aplt.’s Opening Br. at 10. He offers
no further information about Mr. Sullivan, including his race, and never mentions
him again in his opening brief. Consequently, we deem any argument related to
the comparative treatment of Mr. Sullivan to be waived. See, e.g., Water Pik, Inc.
v. Med-Sys., Inc., 726 F.3d 1136, 1160 (10th Cir. 2013).
12
Br. at 17. Instead of firing Mr. Surratt, Mr. Young argues, the City “simply told
[him] to stop” working as a volunteer firefighter. Id.
Mr. Young contends that Mr. Surratt’s situation is evidence of disparate
treatment based on race, and therefore shows pretext. Id. at 16–17 (citing
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000)).
Not so. Mr. Young could have shown pretext with “evidence that . . . he was
treated differently from other similarly-situated employees who violated work
rules of comparable seriousness.” Salguero v. City of Clovis, 366 F.3d 1168,
1176 (10th Cir. 2004) (omission in original) (quoting Kendrick, 220 F.3d at
1230). But that would require him to show that Mr. Surratt was “similarly
situated in relevant respects,” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 366 n.4 (2001)—namely, that he and Mr. Surratt were “subject to the same
standards governing performance evaluation and discipline,” Aramburu v. Boeing
Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (quoting Wilson v. Utica Park Clinic,
Inc., No. 95-5060, 76 F.3d 394, 1996 WL 50462, at *1 (10th Cir. 1996)
(unpublished)), and were “disciplined for conduct of ‘comparable seriousness.’”
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (quoting
Kendrick, 220 F.3d at 1230).
Mr. Young has not made this showing.5 For one thing, Mr. Young had been
5 In his brief, Mr. Young seems to argue that the defendants had the
(continued...)
13
working part-time as a referee for at least four years when Ms. Foshee-Thomas
became mayor, but the record never indicates how long Mr. Surratt had been
working his second job when the City discovered it. This makes it difficult to
determine whether Mr. Surratt’s violation was of “comparable seriousness” to Mr.
Young’s. See Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1121–22 (10th Cir.
2007); McGowan, 472 F.3d at 745–46. Mr. Young also fails to show that he and
Mr. Surratt were “subject to the same standards” for discipline, Aramburu, 112
F.3d at 1404 (quoting Wilson, 1996 WL 50462, at *1), other than by conclusorily
pointing out that, as department heads, “their employment was controlled by the
City Council,” Aplt.’s Opening Br. at 18.
Moreover, the record shows that Mr. Surratt’s misconduct occurred years
before Mr. Young’s. And, as we have pointed out in the past, an employer’s
“disciplinary practices [may] change over time,” so “it would be inappropriate for
courts to penalize [an] employer[]” who takes a different approach to similar
disciplinary violations occurring years apart. Kendrick, 220 F.3d at 1234; see
5(...continued)
burden of disproving his allegations of disparate treatment with respect to Mr.
Surratt. Aplt.’s Opening Br. at 17–18 (“There was no evidence presented by
Defendants that the Plaintiff and Mr. Surratt were not similarly situated in any
other regard.” (emphasis added)). This misstates the law: Under the McDonnell
Douglas burden-shifting framework, Mr. Young has the burden of proving that
Mr. Surratt was similarly situated. See McDonnell Douglas Corp., 411 U.S. at
802–04; see also Kendrick, 220 F.3d at 1230, 1232–33 (explaining that a plaintiff
has the burden of showing pretext through evidence of disparate treatment relative
to similarly situated employees who are not in the protected class).
14
also Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1082–83 (10th Cir. 1999)
(declining to find pretext when record showed that company decided to “t[ake] a
more serious stance” against misconduct after the comparator’s violation, which
had occurred before the plaintiff’s own violation).
Mr. Young also argues that the district court should have found pretext
based on Ms. Foshee-Thomas’s testimony in the February 2014 preliminary
hearing in state court. He points out that, in the hearing, Ms. Foshee-Thomas
testified that she had no evidence to show that Mr. Young was required to work a
set shift as fire chief. Mr. Young then compares Ms. Foshee-Thomas’s hearing
testimony with Ms. McMorrow-Love’s January 2016 deposition testimony; there,
Ms. McMorrow-Love testified that Ms. Foshee-Thomas never told her that Mr.
Young was not required to record his time worked on times sheets. Mr. Young
contends that the “inconsistenc[ies] between [Ms. Foshee-Thomas’s statements
and] the information [she] provided to [Ms. McMorrow-]Love” create an
inference of discriminatory motive in Mr. Young’s firing. Aplt.’s Opening Br. at
20–21.
This argument misses the mark. It is true, as Mr. Young notes, that pretext
can be “shown by . . . ‘inconsistencies . . . in [an] employer’s proffered legitimate
reasons.’” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting
Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951–52 (3d Cir. 1996)). But such
“inconsistencies” show pretext only when they render an employer’s justifications
15
so “unworthy of credence” that a jury could reasonably “infer that the employer
did not act for the asserted non-discriminatory reasons.” Id. (quoting Olson, 101
F.3d at 951–52). At the outset, it is not clear to us that Mr. Young has
demonstrated any inconsistency in Ms. Forshee-Thomas’s testimony. Even
assuming that he has, it certainly is not the kind of inconsistency that would give
rise to a triable inference of pretext.
Instead, Mr. Young simply points out that Ms. Foshee-Thomas had no
evidence to support her belief that he was working a second job when he should
have been working as fire chief. If anything, this suggests only that Ms. Foshee-
Thomas was mistaken in her belief that he violated City personnel policies. And
that mistake does not necessarily show pretext; after all, an employer’s mistaken
belief can still be a legitimate, nondiscriminatory reason under Title VII. See,
e.g., Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (“Even a mistaken
belief can be a legitimate, non-pretextual reason for an employment decision.”);
Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1268–69 (10th Cir. 2004)
(employer’s good faith belief “would not be pretextual even if the belief was later
found to be erroneous” (quoting McKnight v. Kimberly Clark Corp., 149 F.3d
1125, 1129 (10th Cir. 1998))); see also Finney v. Lockheed Martin Corp., 654 F.
App’x 943, 947 (10th Cir. 2016) (unpublished) (“Even a mistaken understanding
can be a legitimate, nondiscriminatory reason for discharge, so long as the
decision maker honestly believed in his mistaken understanding.”).
16
Moreover, Mr. Young fails to show that Ms. Foshee-Thomas knew that he
had no set work hours when she fired him. If he had shown this, this could have
advanced his cause because this evidence would have supported an inference that
Ms. Foshee-Thomas acted in bad faith, which in turn could have supported a
finding of pretext. Cf. Rivera v. City & Cty. of Denver, 365 F.3d 912, 924–25
(10th Cir. 2004) (noting that “[t]he relevant inquiry is not whether [the
employer’s] proffered reasons were wise, fair or correct,” but whether the
employer “acted in good faith upon those beliefs” (second alteration in original)
(quoting Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.
1999), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002))). But Mr. Young has not shown that. At best, he has
demonstrated that Ms. Foshee-Thomas made an unwise, ill-informed employment
decision—and not, as he argues, a discriminatory one. See Young v. Dillon Cos.,
468 F.3d 1243, 1250 (10th Cir. 2006) (“[O]ur role is to prevent intentional
discriminatory [employment] practices, not to . . . second guess[] employers’
honestly held (even if erroneous) business judgments.”).
Mr. Young has not shown that the defendants’ proffered reasons for firing
him were pretextual. Consequently, Mr. Young has not carried his burden under
the McDonnell Douglas rubric. We therefore uphold the district court’s ruling
17
against him regarding his Title VII claim.6
B
Next, we consider Mr. Young’s hostile-work-environment claim under Title
VII. To prevail on that claim, he must “show that a rational jury could find that
the workplace [was] permeated with discriminatory intimidation, ridicule, and
insult, that [was] sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.” Herrera v. Lufkin
6 In making his argument regarding the purported “inconsistencies” in
Ms. Foshee-Thomas’s testimony, Mr. Young suggests that the district court
should have considered the state court’s order dismissing the criminal charges
against him. Aplt.’s Opening Br. at 18–19. That order listed seven “factual
findings” that the judge reached after hearing testimony from Ms. Foshee-Thomas
and other City employees. Aplt.’s App., Vol. V, at 397–98. The judge found that
Mr. Young:
(1) [was] in charge of the [IFD],
(2) had authority to modify his own schedule,
(3) [was] excluded from strict 24 hour shifts,
(4) . . . was not required to record actual times on time sheets,
(5) [had] permission . . . to work as referee[,]
(6) [had] time sheets [that] . . . show . . . only total hours worked[,]
(7) . . . set his own work schedule.
Id. But, as the district court noted, the state court made these findings in July
2015, more than two years after Mr. Young was fired. So, even if we were to
give the findings consideration and weight in our analysis, they would have
limited probative value regarding whether Ms. Foshee-Thomas actually knew the
particulars of Mr. Young’s work requirements at the time that she fired him. See,
e.g., Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1092 (10th Cir. 2007)
(concluding, in Title VII context, that the pretext inquiry depends on “whether the
employer’s stated reasons were held in good faith at the time” that the adverse
action was taken (quoting Young, 468 F.3d at 1250)).
18
Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (quoting Sandoval v. City of
Boulder, 388 F.3d 1312, 1326–27 (10th Cir. 2004)). He must also show that he
was “targeted for harassment because of [his] . . . race.” Sandoval, 388 F.3d at
1326–27.
The standard for a hostile-work-environment claim has both objective and
subjective components. See Allstate Sweeping, LLC v. Black, 706 F.3d 1261,
1268 (10th Cir. 2013); Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957
(10th Cir. 2012); Morris v. City of Colo. Springs, 666 F.3d 654, 663–64 (10th Cir.
2012). This “dual standard” asks “whether [Mr. Young] was offended by the
work environment and whether a reasonable person would likewise be offended.”
Morris, 666 F.3d at 664 (quoting 3 Lex K. Larson, EMPLOYMENT DISCRIMINATION
§ 46.05(3)(e), at 46–93 (2d ed. 2011)). Mr. Young must satisfy both prongs to
succeed on his claim. Id.
Mr. Young argues that there was an atmosphere of “racial tension in the
fire department,” Aplt.’s Opening Br. at 23, and points to several events to
support this assertion. First, he claims that Ms. Foshee-Thomas’s and Ms.
McMorrow-Love’s investigation “directly affected [his] employment” and
“contributed to a hostile work environment.” Id. at 26–27. Second, he claims
that white employees were “constantly . . . insubordinat[e],” and “file[d] petty
grievances with the firefighter’s union” whenever they “disagreed with something
he did.” Id. at 23. And third, he points out that Mr. Stevenson called him a
19
“nigger” during a conversation with another employee. Id. at 25–26.
None of this shows that the firehouse was an objectively hostile work
environment. See Herrera, 474 F.3d at 680. First, Mr. Young never explains
how Ms. Foshee-Thomas’s investigation was “motivated by bias against [him] on
the grounds of . . . race.” Sandoval, 388 F.3d at 1327. And the mere fact of an
investigation into Mr. Young’s behavior, without some evidence that the
investigation was racially motivated, is not enough to show a hostile work
environment. See, e.g., Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 565
(7th Cir. 2009) (rejecting hostile-work-environment claim and finding that
plaintiff had not “adduce[d] evidence that she was targeted for scrutiny on
account of her sex”); O’Brien v. Dep’t of Agric., 532 F.3d 805, 810 (8th Cir.
2008) (noting that “increased scrutiny might, at some point, amount to a hostile
work environment,” but rejecting hostile-work-environment claim for lack of
evidence of a discriminatory purpose on part of supervisor); cf. Flood v. Bank of
Am. Corp., 780 F.3d 1, 12–13 (1st Cir. 2015) (finding that plaintiff showed a
hostile work environment by showing connection between increased scrutiny and
supervisor’s clear discomfort with plaintiff’s sexual orientation).
For similar reasons, Mr. Young’s second argument—that white firefighters’
insubordination and disrespect created a hostile work environment—does not fare
better. Mere insubordination—even an outright refusal to do one’s job—does not
amount to a Title VII violation. See, e.g., Somoza v. Univ. of Denver, 513 F.3d
20
1206, 1217–18 (10th Cir. 2008) (junior colleague’s criticism, rudeness, and
failure “to interact . . . at meetings” did not amount to severe and pervasive
harassment). And, though Mr. Young suggests that the insubordination was a
product of racism among the white firefighters, his evidence is mostly
speculative. For example, another firefighter told Mr. Young that the white
firefighters supposedly were “not doing what [he was] asking them to do” because
“they’re not going to do what an ‘N’ is telling them to do.” Aplt.’s App., Vol.
IV, at 326–27. But Mr. Young has no first-hand knowledge that this was true;
their alleged insubordination could just as well have been motivated by other
factors. Similarly, Mr. Young also testified that he felt “harassed . . . when
[firefighters] [we]re not doing what [Mr. Young was] asking,” and presumed that
this was because of his race. Id., Vol. I, at 109–10 (“[T]hey knew how to push it
without saying the ‘N word.’”). Yet, Mr. Young could not recall any instances in
which the white firefighters had used racially derogatory language, told racially
tinged jokes, or did “anything else that . . . [he] felt was racially discriminatory.”
Id. at 117–18.
Though facially race-neutral workplace misconduct can play a role in
engendering a racially hostile work environment, it is not sufficient standing
alone; there actually must be race-based discriminatory conduct polluting the
environment, and Mr. Young offers us little non-speculative evidence of it, and
certainly not enough to establish his Title VII claim of hostile work environment.
21
See Lounds v. Lincare, Inc., 812 F.3d 1208, 1224 n.6 (10th Cir. 2015); Chavez v.
New Mexico, 397 F.3d 826, 833 (10th Cir. 2005); Dick v. Phone Directories Co.,
397 F.3d 1256, 1263 (10th Cir. 2005) (“Indeed, Title VII is not ‘a general civility
code for the American workplace.’” (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998))). In fact, he points to only one concrete
incident in which another employee displayed overt racial animus—specifically,
when Mr. Stevenson called Mr. Young a “nigger” outside of his presence during a
2012 conversation in Mr. Sain’s home. See Aplt.’s App., Vol. V, at 454–59.
We do not question that Mr. Stevenson’s comment is objectively offensive.
See Lounds, 812 F.3d at 1229 (discussing “the potentially strong polluting power
of this the time-worn word, ‘nigger’”); Freeman v. Dal-Tile Corp., 750 F.3d 413,
422 (4th Cir. 2014) (“‘[T]he word “[nigger]” is pure anathema to African-
Americans,’ as it should be to everyone.” (quoting Spriggs v. Diamond Auto
Glass, 242 F.3d 179, 185 (4th Cir. 2001))). But Mr. Stevenson made the
comment during a private conversation in Mr. Sain’s home. See Aplt.’s App.,
Vol. V, at 454–59. Even assuming arguendo that the contents of a conversation
that takes place outside of the workplace (or someplace functionally equivalent to
the workplace) may be fully considered in the hostile-work-environment
analysis,7 the polluting power of Mr. Stevenson’s “nigger” comment was minimal
7 Mr. Young argues that events outside of the workplace should be
(continued...)
22
at best. We have repeatedly held that, in establishing a hostile-work-environment
claim, plaintiffs must do more than point to “sporadic racial slurs”; they must
present evidence of “a steady barrage of opprobrious racial comments.” Bolden v.
PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994); accord Lounds, 812 F.3d at 1223
(collecting cases). It follows a fortiori that Mr. Stevenson’s singular racial
epithet could have no more than minimal polluting effect, and it certainly falls
“far short” of establishing Mr. Young’s hostile-work-environment claim. Chavez,
397 F.3d at 832.
To reprise, aside from Mr. Stevenson’s isolated comment, Mr. Young has
pointed to no concrete, non-speculative instances of racially discriminatory
conduct by other IFD employees. Consequently, he has not demonstrated that the
firehouse was an objectively hostile work environment on the basis of race. Mr.
7(...continued)
considered in the hostile-work-environment analysis. In particular, he contends
that Mr. Stevenson’s comment “transcended to the workplace” because “[a] jury
could easily infer that the racial epithets used by a Caucasian employee referring
to not wanting to work for the Plaintiff translated to insubordination, petty
grievances and indignation with respect to taking orders from the Plaintiff in the
workplace.” Aplt.’s Opening Br. at 26–27. Our precedent suggests that we
accord less weight in the hostile-work-environment analysis, in certain
circumstances, to discriminatory comments uttered outside of the workplace (or
someplace functionally equivalent to the workplace). See Sprague v. Thorn Ams.,
Inc., 129 F.3d 1355, 1366 (10th Cir. 1997). However, in light of our assumption
supra, we need not opine on the nature of any limitations that might be properly
placed on the consideration in the hostile-work-environment analysis of
discriminatory conduct that takes place outside of the workplace (or someplace
functionally equivalent to the workplace).
23
Young’s hostile-work-environment claim must fail. See Chavez, 397 F.3d at 833.
C
Mr. Young also appeals from the district court’s ruling on his § 1983 claim
alleging a violation of the Equal Protection Clause. That claim asserted that Ms.
“Foshee-Thomas promulgated, created, implemented and/or possessed
responsibility for” the “policies, practices and/or customs” that led to Mr.
Young’s termination. Aplt.’s App., Vol. I, at 16 (Compl., dated Oct. 22, 2014).
Those “policies,” he alleged, included her failure to respond to Mr. Young’s
complaints about racism in the firehouse, her decision to fire Mr. Young over
conduct for which white employees had never faced consequences, and her
decision to bring criminal charges against Mr. Young.
Originally, Mr. Young brought his § 1983 equal-protection claim against
both the City and Ms. Foshee-Thomas in her official and individual capacities.
But his brief does not develop an argument with respect to his § 1983 individualcapacity
claim against Ms. Foshee-Thomas; instead, he discusses only whether
her official duties could establish the City’s municipal liability. It is axiomatic
that a § 1983 claim against a municipal employee in his or her official capacity is
“the equivalent” of a suit against the municipality. Lopez v. LeMaster, 172 F.3d
756, 762 (10th Cir. 1999). Consequently, we deem Mr. Young’s § 1983
individual-capacity claim against Ms. Foshee-Thomas to be waived. See, e.g.,
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting that an
24
appellant’s brief must contain the “appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the
appellant relies” (quoting FED. R. APP. P. 28(a)(8)(A))); Wyoming v. Livingston,
443 F.3d 1211, 1216 (10th Cir. 2006) (“[The appellant] did not address this issue
in its opening appellate brief. The issue is therefore waived.”).
Without the individual-capacity claims, Mr. Young’s § 1983 appeal raises
only one issue: whether he has shown that the City engaged in a policy of
discrimination sufficient to establish municipal liability. To meet this standard,
Mr. Young must show that an “employee’s discriminatory actions are
representative of an official policy or custom of the [City],” or that those actions
were “taken by an official with final policy making authority.” Murrell v. Sch.
Dist. No. 1, 186 F.3d 1238, 1249 (10th Cir. 1999); see City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988). Mr. Young argues that Ms. Foshee-
Thomas had final policymaking authority, and that her decision to fire him was
effectively a decision by the City itself.
Whether an official has final policymaking authority is a question of state
and local law. See, e.g., Praprotnik, 485 U.S. at 124. In deciding whether an
official is a final policymaker, “we are interested only in delegations of legal
power.” Milligan-Hitt v. Bd. of Trs. of Sheridan Cty. Sch. Dist. No. 2, 523 F.3d
1219, 1227 (10th Cir. 2008). That requires us to assess “where statutory
policymaking authority lies, rather than where de facto authority may reside.”
25
Wulf v. City of Wichita, 883 F.2d 842, 869 (10th Cir. 1989) (first emphasis
added). We look to three factors in making that determination: “(1) whether the
official is meaningfully constrained ‘by policies not of that official’s own
making[’;] (2) whether the official’s decision[s] are final—i.e., are they subject to
any meaningful review; and (3) whether the policy decision purportedly made by
the official is within the realm of the official’s grant of authority.” Randle v. City
of Aurora, 69 F.3d 441, 448 (10th Cir. 1995) (quoting Praprotnik, 485 U.S. at
127).
We apply that framework here and conclude that Ms. Foshee-Thomas did
not have final policymaking authority. The City of Idabel has a statutory
aldermanic form of government pursuant to Oklahoma state law. See OKLA.
STAT. TIT. 11, § 9-101, et seq.; Aplt.’s App., Vol. III, at 178 (Ex. K, Letter from
Tina Foshee-Thomas, dated Dec. 14, 2012) (“As you and your legal counsel have
been advised, the City of Idabel has adopted a statutory aldermanic form of
government.”). Under that arrangement, a city’s “governing body . . . consist[s]
of the mayor, who is elected at large, and one or two councilmembers from each
ward of the city.” OKLA. STAT. TIT. 11, § 9-102. And though a mayor has the
power to “remove or suspend city officers,” OKLA. STAT. TIT. 11, § 9-105(3), that
removal power is not final. Instead, any “remov[al]” is effective only
“until . . . the [city] council shall take action on the charges.” Id. Thus, any
firing decision made by Ms. Foshee-Thomas needed to be approved by the City
26
Council before it could become final.
Given the statutory constraints on her power, Ms. Foshee-Thomas’s
decision to fire Mr. Young cannot “fairly be said to be [the decision] of [Idabel]
itself.” Carney v. City & Cty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008)
(quoting Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1177 (10th Cir.
2003)). Accordingly, she was not the “final policymaker” for the City.8 See, e.g.,
8 On appeal, Mr. Young appears to present another theory of municipal
liability—that the City should be liable because the “City Council is necessarily
part of the City as it is tasked with approval of the Mayor’s decisions.” Aplt.’s
Opening Br. at 28. In this regard, Mr. Young claims that the district court erred
in focusing only on the official actions of Ms. Foshee-Thomas in resolving this
claim, noting that he had “submitted evidence that established racial animus on
behalf of the City Council by demonstrating the disparate treatment between [Mr.
Young] and Steve Surratt . . . . [and] also supplied evidence of past treatment of
another African American employee, Billy Mack, wherein he was terminated and
criminal charges were brought against him as well.” Id. at 12–13 (emphasis
added). However, in his summary-judgment briefing, Mr. Young seemed to
premise his argument for municipal liability regarding this claim on the
contention that Ms. Foshee-Thomas, as mayor, had “final policymaking authority”
for § 1983 purposes. See Aplt.’s App., Vol. IV, at 303–07 (Pl.’s Resp. in Opp’n
to Def. City of Idabel’s Mot. for Summ. J., dated Jan. 25, 2016) (quoting Bryson
v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)). Consequently, a
cogent case could be made that this additional theory was forfeited below and that
Mr. Young has effectively waived it before us by failing to argue under the plainerror
rubric. See, e.g., Richison, 634 F.3d at 1128, 1130–31. Even assuming
arguendo this theory was preserved, it would not alter the result that we reach
here. As noted supra in Part II.A, Mr. Young has failed to demonstrate that Mr.
Surratt was similarly situated to him; therefore, no triable inference of racial
discrimination could arise from the allegedly different treatment that he received
at the hands of the City (or City Council). With regard to Mr. Mack, it is
apparently undisputed that, prior to Mr. Young’s dismissal, the City (or City
Council) terminated his employment for using prisoners of the State’s Department
of Corrections to perform “personal yard work” for him. Aplt.’s Opening Br. at
(continued...)
27
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1190 (10th Cir.
2010) (“[The school board] was the sole final policymaker on school matters and
all of [an administrator’s] decisions were legally constrained by Board policies.
Thus, [the administrator] was not a final policymaker for the Academy.”);
Milligan-Hitt, 523 F.3d at 1228–29 (“[U]nder the board’s policies at issue in this
case, the superintendent’s hiring decisions ‘are reviewable by others.’ . . . This
review prevents the superintendent from being a final policymaker.” (quoting Dill
v. City of Edmond, 155 F.3d 1193, 1211 (10th Cir. 1998))).
D
Mr. Young also challenges the district court’s ruling on his malicious-
8(...continued)
30; accord Aplee.’s Br. at 22. Mr. Young does not argue that such conduct could
not appropriately be the subject of criminal charges; he just alleges that “the only
employees who faced criminal prosecution as a result of employment-related
matters [were] African American.” Aplt.’s Opening Br. at 31. Mr. Young,
however, does not establish that the articulated reasons of the City (or City
Council) regarding the decision to fire—and allegedly support the prosecution
of—Mr. Mack were pretextual. In that regard, he offers neither further examples
of racial-minority City employees facing criminal prosecution for work-related
conduct nor, importantly, details regarding non-racial-minority City employees
whose workplace conduct might have—but did not—subject them to criminal
charges, so that such employees might qualify as possible comparators. Thus, we
would be hard-pressed—based on Mr. Young’s limited argument—to discern from
this one other prior instance of an African American City employee facing
criminal charges “a [discriminatory] pattern with respect to . . . treatment of
African American city employees,” id. at 30, that could be attributed to the City
Council—and, as a consequence, the City. See Coffey v. McKinley Cty., 504 F.
App’x 715, 719 (10th Cir. 2012) (unpublished) (“One prior incident, even if it
was a constitutional violation sufficiently similar to put officials on notice of a
problem, does not describe a pattern of violations.”).
28
prosecution claim. In bringing that claim, he alleged that Ms. Foshee-Thomas
had withheld potentially exculpatory information when the Oklahoma State
Bureau of Investigation (“OSBI”) was considering whether to charge him with
making false statements.9
We have repeatedly recognized a cause of action under § 1983 for
malicious prosecution under the Fourth Amendment. See Sanchez v. Hartley, 810
F.3d 750, 755 (10th Cir. 2016), cert. denied, 137 S. Ct. 1372 (2017). To show
malicious prosecution, a plaintiff must show that (1) the defendant caused the
plaintiff’s prosecution; (2) the original action terminated in the plaintiff’s favor;
(3) no probable cause supported the original prosecution; (4) the defendant acted
with malice; and (5) the plaintiff sustained damages. See Fletcher v. Burkhalter,
605 F.3d 1091, 1095 (10th Cir. 2010); Wilkins v. DeReyes, 528 F.3d 790, 799
(10th Cir. 2008).
Mr. Young argues that Ms. Foshee-Thomas deliberately withheld from the
9 The district court noted that Mr. Young’s amended complaint
asserted his malicious-prosecution claim against both the City and Ms. Foshee-
Thomas, but pointed out that “the parties’ briefing seems to assume the claim is
only against [Ms. Foshee-Thomas] in her individual capacity.” Aplt.’s App., Vol.
VIII, at 662 (Order, dated Feb. 23, 2016). See also id., Vol. IV, at 280–310
(omitting malicious-prosecution argument from brief in response to City’s
summary-judgment motion). The court therefore dismissed that claim against the
City. On appeal, Mr. Young does not mention whether he brings his claim
against both defendants or Ms. Foshee-Thomas alone. Through his actions before
the district court and before us, Mr. Young has failed to preserve a maliciousprosecution
claim against the City for review.
29
OSBI during its investigation exculpatory information about Mr. Young’s work
schedule—specifically, that he was not required to work set shifts, that he had the
power to set his own working hours, and that he had no obligation to log his time
on City time sheets. Had Ms. Foshee-Thomas disclosed that information, Mr.
Young argues, “it certainly would have affected whether the State had probable
cause” to prosecute him for making false statements. Aplt.’s Opening Br. at 33.
Mr. Young’s argument here is essentially the same as the one that he
presented in attempting to show pretext with respect to his Title VII claim.
Specifically, Mr. Young points to Ms. Foshee-Thomas’s February 2014
preliminary-hearing testimony. There, she testified that she had no evidence to
show that Mr. Young was required to work a set shift as fire chief. Mr. Young
then compares Ms. Foshee-Thomas’s hearing testimony with Ms. McMorrow-
Love’s January 2016 deposition testimony, during which Ms. McMorrow-Love
testified that Ms. Foshee-Thomas never told her that Mr. Young was not required
to record his time worked on times sheets. Mr. Young argues that “[t]he fact that
[Ms. Foshee-Thomas] did not relay this information [about circumstances related
to Mr. Young’s work schedule] to [Ms. McMorrow-Love] . . . demonstrates an
issue of fact as to whether [Ms. Foshee-Thomas] withheld exculpatory evidence
with respect to [Mr. Young].” Id. at 33.
But Mr. Young fails to show that Ms. Foshee-Thomas acted with the
requisite malice. Specifically, he needed to demonstrate that she either knew that
30
he could set his own work schedule, or that she recklessly disregarded that
possibility. See, e.g., Sanchez, 810 F.3d at 758 (holding that detectives would
incur liability for malicious prosecution if they “knowingly or recklessly used
false information to institute legal process”); Pierce v. Gilchrist, 359 F.3d 1279,
1295 (10th Cir. 2004) (“The consensus of the common law extends liability [for
malicious prosecution] to those who continue prosecutions against criminal
suspects upon knowledge that there is no probable cause to proceed against the
accused.” (emphasis added)); Taylor v. Meacham, 82 F.3d 1556, 1563 (10th Cir.
1996) (rejecting a plaintiff’s § 1983 malicious-prosecution claim, which alleged
that a sheriff had made false statements in the arrest warrant, when there was “no
evidence . . . [that the sheriff] knowingly” lied in the affidavit (emphasis
omitted)); cf. Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (“It is a
violation of the Fourth Amendment for an arrest warrant affiant to ‘knowingly
. . . , or with reckless disregard for the truth,’ include false statements in [an]
affidavit, or to knowingly or recklessly omit from the affidavit information which,
if included, would have vitiated probable cause.” (citations omitted) (quoting
Franks v. Delaware, 438 U.S. 154, 155–56 (1978))). But Mr. Young fails to
make this showing.
First, nothing in the record indicates that Ms. Foshee-Thomas ever knew
about Mr. Young’s work schedule during the OSBI’s investigation. The
“inconsistencies” that he points to demonstrate only that she had no evidence to
31
support her belief that Mr. Young was working unauthorized hours or was
required to submit accurate time sheets. Aplt.’s Opening Br. at 13; see Aplt.’s
App., Vol. V, at 392–94 (Pl.’s Ex. 5, Tr. Prelim. Hr’g, dated Feb. 5, 2014). In
this regard, Ms. Foshee-Thomas testified that her understanding was that only
elected officials “[we]ren’t required to . . . keep time sheets,” which she believed
“had always been done [in] the [C]ity of Idabel” but she did not have “any
evidence” to validate her understanding. Id. at 391–92.
Second, Mr. Young never explains how Ms. Foshee-Thomas would have
had access to any information that would have cast doubt on whether there was
probable cause to arrest Mr. Young. His brief asserts that he “had previously
been given permission to referee [football] games in the past,” but fails to note
that he had gotten permission from the previous mayors, not from Ms. Foshee-
Thomas. Aplt.’s Opening Br. at 35. The record shows only that Ms. Foshee-
Thomas thought—apparently incorrectly—that Mr. Young was required to record
his time during the course of the OSBI’s investigation. Mr. Young never shows
otherwise, so he fails to satisfy the fourth prong of his malicious-prosecution
claim (i.e., as to malice). We therefore uphold the district court’s ruling on this
claim.
32
E
Finally, we turn to Mr. Young’s IIED claim, brought under Oklahoma law.
Oklahoma has adopted the IIED standard set out in the RESTATEMENT (SECOND)
OF TORTS. See Miller v. Miller, 956 P.2d 887, 901 (Okla. 1998) (citing
RESTATEMENT (SECOND) OF TORTS § 46 (1977)). Under that standard, an IIED
claim requires extreme and outrageous conduct, coupled with severe emotional
distress. Id. The conduct must be considered “in the setting in which it
occurred.” Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986).
This is a high bar to clear. Indeed, we have noted that, for an IIED claim to
succeed, “the distress must be of such a character that ‘no reasonable person
could be expected to endure it.’” Daemi v. Church’s Fried Chicken, Inc., 931
F.2d 1379, 1389 (10th Cir. 1991) (quoting RESTATEMENT (SECOND) OF TORTS
§ 46 cmt. j (1965)) (applying Oklahoma law).
Mr. Young argues that Ms. Foshee-Thomas’s “terminating [of his]
employment and participat[ion] in his continued prosecution” amounted to IIED.
Aplt.’s Opening Br. at 36. For support, he argues that Ms. Foshee-Thomas
“cost[] [him] his employment” and “with[held] exculpatory evidence” during the
OSBI’s investigation. Id.
But, as the district court noted, this is not enough. We have repeatedly
rejected arguments that termination itself can amount to IIED. See Roberts v.
Int’l Bus. Machs. Corp., 733 F.3d 1306, 1311 (10th Cir. 2013) (rejecting
33
employee’s IIED claim that “characterizes his termination as intentional infliction
of emotional distress”); see Montgomery v. City of Ardmore, 365 F.3d 926, 942
(10th Cir. 2004); Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1176 (10th
Cir. 1996). Moreover, a superior’s rude or hostile treatment of an employee,
without more, is not enough to meet the IIED standard. See Starr v. Pearle
Vision, Inc., 54 F.3d 1548, 1559 (10th Cir. 1995) (an employer’s hostile
questioning of an employee “in the context of [the] employer’s investigation of
embezzlement,” did not “cross the bounds between what is merely rude and
objectionable and what is actionable”); Daemi, 931 F.2d at 1388 (rejecting an
employee’s claim that his superior inflicted severe emotional distress by
“impugning [the plaintiff’s] integrity,” “accusing him of criminal acts, and
requiring him to take a polygraph”); Merrick v. N. Nat. Gas Co., 911 F.2d 426,
432–33 (10th Cir. 1990) (holding that a superior’s conduct was not “extreme or
outrageous” when the superior “harshly criticiz[ed]” the employee, “yell[ed] at
him, curs[ed] at him,” and humiliated him in front of co-workers).
Furthermore, Mr. Young offered nothing to show that he suffered severe
distress. In Daemi, we rejected a plaintiff’s IIED claim, even though he presented
evidence that his employer’s behavior made him “literally sick to his stomach”
and caused him to seek treatment from a physician. 931 F.2d at 1388–89. We
came to a similar conclusion in Zeran v. Diamond Broadcasting, Inc., 203 F.3d
714, 721 (10th Cir. 2000), concluding that a plaintiff’s IIED claim failed due to
34
“the lack of evidence showing that the distress interfered with [his] ability to
conduct his daily life affairs.” Mr. Young has never even attempted to show how
Ms. Foshee-Thomas’s actions caused him the level of severe distress that our
caselaw has demanded. Without that showing, his claim fails.

Outcome: For the foregoing reasons, we affirm the district court’s judgment.

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