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Filed: Patrick Fisher
Filed: Patrick Fisher
AUG 7 2000
PATRICK FISHER
Clerk
THERESA JOHNSON,
Plaintiff-Appellant,
v.
THE STATE OF OKLAHOMA,
ex rel., UNIVERSITY OF
OKLAHOMA BOARD OF REGENTS,
a constitutional agency; DANIEL L.
MCNEILL, in his individual capacity,
Defendants-Appellees.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Theresa Johnson appeals from two orders of the district court,
one granting summary judgment to defendants and the other awarding costs to
defendants. We affirm.
Ms. Johnson commenced this action in district court pursuant to Title II
of the Americans with Disabilities Act (ADA), 42 U.S.C. 12203(a), alleging
retaliation.
was a student in
She later filed this action in district court alleging retaliation for
Ms. Johnson sued both the State of Oklahoma and the University of
Oklahoma Board of Regents, an arm of the state.
See Hensel v. Office of Chief
Admin. Hearing Officer , 38 F.3d 505, 508 (10th Cir. 1994). We have previously
held that the ADA is a valid abrogation of the States Eleventh Amendment
immunity, see Martin v. Kansas , 190 F.3d 1120, 1125-28 (10th Cir. 1999).
However, since the Supreme Court decided
Kimel v. Florida Board of Regents ,
120 S. Ct. 631, 649-50 (2000), courts have split on the issue of whether Congress
validly abrogated the States immunity from suit under the ADA. The Supreme
Court has accepted certiorari on this issue.
See University of Ala. at Birmingham
Bd. of Trustees v. Garrett , 120 S. Ct. 1669 (U.S. Apr. 17, 2000) (No. 99-1240).
Because we determine that Ms. Johnson cannot establish a valid claim under the
ADA, we need neither address this issue nor abate this case pending the Supreme
Courts determination.
1
No. 99-6322
In this appeal, Ms. Johnson argues that the issue of retaliatory intent is one
for a jury and that the district court misapplied the substantive law. Ms. Johnson
contends that the district court erroneously applied the pretext-plus rule which
this court rejected in Randle v. City of Aurora , 69 F.3d 441, 451-53 & 452 n.16
(10th Cir. 19 95). She maintains that
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43 F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no
genuine issue as to any material fact and it is entitled to judgment as a matter
of law. See id. To avoid summary judgment, the nonmovant must establish, at
a minimum, an inference of the presence of each element essential to the case.
See id.
For purposes of this appeal, we accept that Ms. Johnson has established
a prima facie case of ADA retaliation.
1324 (10th Cir. 1997) (setting forth required elements). Having established
a prima facie case, defendants had to come forward with a legitimate
non-discriminatory reason for their actions.
210 F.3d 1201, 1206 (10th Cir. 2000). Ms. Johnson then bore the burden of
showing that the defendants proffered reason was pretextual.
See id.
close temporal proximity between Ms. Johnsons filing of her complaint and
defendants adverse action is a factor in determining pretext, that alone is not
sufficient to raise a triable issue of fact.
See id.
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Ms. Johnson points out that the first alleged retaliatory act occurred
approximately two months after she filed her complaint. We have held that a one
and one-half month period between protected activity and adverse action may,
by itself, establish causation.
See Richmond v.
ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir. 1997). We need not decide where the
line should be drawn, however, because Ms. Johnson cannot prove that
defendants proffered reasons for their actions were pretextual.
Defendants stated that Ms. Johnson was given an F on one clinical
rotation because of her excessive absences. The F in the other rotation resulted
from her dismissal from the rotation by her preceptor based on her lack of
medical knowledge and inability to perform at an appropriate level. She was
dismissed from the program because she received a failing grade while on
probation. Defendants supported these reasons with copies of the programs
policies. After her dismissal, defendants learned of Ms. Johnsons participation
in a cheating scheme and filed an academic misconduct charge.
Ms. Johnson presented no evidence to contest defendants proffered reasons
for their actions. She stated that she had not missed as much of the rotation as
defendants stated and that she did not participate in the cheating scheme.
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Martin
to the
Courts have held that it was not an abuse of discretion for district courts to
award costs when the nonprevailing party was indigent.
18 F.3d 456, 460 (7th Cir. 1994) (district court may award costs against indigent
losing party under Rule 54);
considering whether award would cause civil rights plaintiff to become indigent),
award of costs may be entered against plaintiffs who have been permitted to
proceed in forma pauperis.
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Nos. 98-6446, 99-6101, 99-6121, 99-6177, 2000 WL 954930, at *11 (10th Cir.
July 11, 2000). Further, relying on the
parties comparative economic power . . . would almost always favor
an individual plaintiff . . . over [the] employer defendant . . . . [T]he
plain language of Rule 54(d) does not contemplate a court basing
awards on a comparison of the parties financial strengths. To do so
would not only undermine the presumption that Rule 54(d)(1) creates
in prevailing parties favor, but it would also undermine the
foundation of the legal system that justice is administered to all
equally, regardless of wealth or status.
Cherry v. Champion Intl Corp.
Ms. Johnson cites no law holding that one district court is bound by the
decision of a sister district court. Further, such a holding would imply that this
court is bound by a district courts decision. Ms. Johnson herself has disavowed
this position.
court in Martin did not hold that costs could not be awarded when the defendant
has significantly larger financial resources than an individual plaintiff, but
merely decided to exercise its discretion and not award costs in view of all other
circumstances.
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The judgments of the United States District Court for the Western District
of Oklahoma are AFFIRMED.
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