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    This order summarizes two appeals from a district court case. In the first appeal, the district court granted summary judgment to defendants in a retaliation case brought under the ADA by a former student. The appeals court affirmed, finding that while the plaintiff established a prima facie case of retaliation, she did not provide sufficient evidence to show that the legitimate reasons provided by defendants for their actions were pretextual. In the second appeal, the district court awarded costs to the prevailing defendants. The appeals court also affirmed this ruling, finding that awarding costs to prevailing defendants, even against an indigent plaintiff, was not an abuse of the district court's discretion under the applicable rules and statutes.

    Original Description:

    Filed: 2000-08-07 Precedential Status: Non-Precedential Docket: 99-6322

    Original Title

    Johnson v. University of Okla, 10th Cir. (2000)

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    This order summarizes two appeals from a district court case. In the first appeal, the district court granted summary judgment to defendants in a retaliation case brought under the ADA by a former student. The appeals court affirmed, finding that while the plaintiff established a prima facie case of retaliation, she did not provide sufficient evidence to show that the legitimate reasons provided by defendants for their actions were pretextual. In the second appeal, the district court awarded costs to the prevailing defendants. The appeals court also affirmed this ruling, finding that awarding costs to prevailing defendants, even against an indigent plaintiff, was not an abuse of the district court's discretion under the applicable rules and statutes.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    22 views9 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This order summarizes two appeals from a district court case. In the first appeal, the district court granted summary judgment to defendants in a retaliation case brought under the ADA by a former student. The appeals court affirmed, finding that while the plaintiff established a prima facie case of retaliation, she did not provide sufficient evidence to show that the legitimate reasons provided by defendants for their actions were pretextual. In the second appeal, the district court awarded costs to the prevailing defendants. The appeals court also affirmed this ruling, finding that awarding costs to prevailing defendants, even against an indigent plaintiff, was not an abuse of the district court's discretion under the applicable rules and statutes.

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    of 9

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    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,

    Nos. 99-6322, 99-6427


    (D.C. No. 98-CV-123-T)
    (W.D. Okla.)

    Defendants-Appellees.
    ORDER AND JUDGMENT

    Before TACHA , PORFILIO , and EBEL , Circuit Judges.

    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

    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. 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.

    Ms. Johnson, who has multiple sclerosis,

    was a student in

    the University of Oklahomas Physician Associate Program. She filed


    a discrimination complaint after she was denied an emergency medicine clinical
    rotation.

    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

    Multiple sclerosis does not automatically qualify as a disability under


    the ADA. See Sorensen v. University of Utah Hosp. , 194 F.3d 1084, 1086-88
    (10th Cir. 1999). However, the parties and the district court agreed that
    Ms. Johnson was disabled within the terms of the ADA. We accept that
    characterization.

    The rotation was scheduled in the Universitys emergency room. The


    (continued...)
    -2-

    filing that compliant citing nine specific incidents of retaliation,

    see App. Vol. I

    at 13-14, including receiving Fs in various rotations, being charged with


    academic misconduct, and being discharged from the program.
    The district court, presuming that Ms. Johnson had established a prima
    facie case, held that she had not sufficiently rebutted defendants stated
    legitimate non-discriminatory reasons for their actions. The court therefore
    granted defendants motion for summary judgment and awarded costs to
    defendants .

    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

    she presented sufficient facts to show that

    defendants stated reasons for their actions were pretextual.


    We review the entry of summary judgment de novo, drawing all
    reasonable inferences in favor of the nonmovants. Hulsey v. Kmart, Inc.,
    (...continued)
    supervising physicians felt that rotation would be too strenuous for her and told
    her she could take the emergency medicine rotation later in a less stressful and
    busy emergency room.
    3

    -3-

    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.

    See Morgan v. Hilti, Inc. , 108 F.3d 1319,

    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.

    See Pastran v. K-Mart Corp. ,

    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.

    Ms. Johnson could demonstrate pretext by showing such weaknesses,


    implausibilities, inconsistencies, incoherencies, or contradictions in [defendants]
    proffered legitimate reasons for [their] action that a reasonable factfinder could

    Id. (quotation omitted). While

    rationally find them unworthy of credence.

    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.

    -4-

    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 Ramirez v. Oklahoma Dept of Mental Health

    41 F.3d 584, 596 (10th Cir. 1994)

    . In contrast, we have held that a three-month

    period, standing alone, is insufficient to 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.
    -5-

    Ms. Johnson argued that a jury could disbelieve defendants proffered


    explanations. Ms. Johnsons statements are insufficient to show that a reasonable
    factfinder could find defendants proffered reasons unworthy of credence. The
    district court did not apply a pretext-plus standard in reaching this conclusion.
    No. 99-6427
    In this appeal, Ms. Johnson argues that the district court erred in awarding
    costs to defendants. She maintains that

    her evidence of indigency rebutted the

    presumption of awarding costs to the prevailing defendant. She appears to


    suggest that public policy counsels against awarding costs to a prevailing
    defendant in civil rights cases. Ms. Johnson also contends that the published
    opinion of another court in the same district is binding precedent on other courts
    in that district. She concludes that the district court was bound to follow
    v. Frontier Federal Savings & Loan Association

    Martin

    , 510 F. Supp. 1062, 1069

    (W.D. Okla. 1981), and not award costs.


    Federal Rule of Civil Procedure 54(d) provides that [e]xcept when
    express provision therefor is made either in a statute of the United States or in
    these rules, costs other than attorneys fees

    shall be allowed as of course

    to the

    prevailing party unless the court otherwise directs . . . . (Emphasis added.) We


    review the district courts ruling on awarding costs under Rule 54(d) for abuse of
    discretion. See AeroTech, Inc. v. Estes , 110 F.3d 1523, 1526 (10th Cir. 1997).
    -6-

    Courts have held that it was not an abuse of discretion for district courts to
    award costs when the nonprevailing party was indigent.

    See McGill v. Faulkner ,

    18 F.3d 456, 460 (7th Cir. 1994) (district court may award costs against indigent
    losing party under Rule 54);

    Flint v. Haynes , 651 F.2d 970, 972-73 (4th Cir.

    1981) (noting then 28 U.S.C. 1915(e) (now 1915(f)) language permitting


    imposition of costs against indigent civil rights litigants as in other cases).
    But see Stanley v. University of S. Cal.

    , 178 F.3d 1069, 1079-80 (9th Cir.)

    (district court abused discretion by awarding

    especially high costs without

    considering whether award would cause civil rights plaintiff to become indigent),

    cert. denied , 120 S. Ct. 533 (1999).

    Further, Congress has provided that an

    award of costs may be entered against plaintiffs who have been permitted to
    proceed in forma pauperis.

    See 28 U.S.C. 1915(f).

    Certainly, considering this

    factor would not be an abuse of discretion by the district court. However, we


    cannot hold that it is the controlling factor.
    Ms. Johnsons public policy argument is unpersuasive. She argues that
    public policy counsels against awarding costs to a prevailing defendant in civil
    rights cases because such an award would chill future plaintiffs from bringing
    similar actions. We have upheld the traditional presumption of awarding costs
    to prevailing defendants in civil rights case.

    -7-

    Mitchell v. City of Moore ,

    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.

    , 186 F.3d 442, 448 (4th Cir. 1999).

    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.

    See Appellants Br. at 13 n.2. We further note that the district

    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.

    510 F. Supp. at 1069. The court set forth no rule of law.

    -8-

    The judgments of the United States District Court for the Western District
    of Oklahoma are AFFIRMED.

    Entered for the Court

    Deanell Reece Tacha


    Circuit Judge

    -9-

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