# Jenkins v. CACI Inc - Federal

> District Court, W.D. Oklahoma · October 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10390519

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** October 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10390519

## How later opinions describe it (automated extraction)

- affirming summary judgment because plaintiff failed to show that there was a genuine dispute of material fact as to whether the employer’s reasons for termination were pretextual or unworthy of belief
- describing instances where the Tenth Circuit has found the severity element met, including assault and the physical groping of body parts
- affirming summary judgment on retaliation claim for failure to create triable issue that employer’s reasons for any adverse employment actions were pretextual for retaliation
- affirming summary judgment on retaliation claim for failure to establish a prima facie case of retaliation

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

CARLEEN JENKINS, CINDY )
SHAFFER, KIMBERLY COX, and )
KARIS MYER, )
)
Plaintiffs, )
) Case No. CIV-21-501-F
-vs- )
)
CACI, INC. – FEDERAL, )
)
Defendant. )

ORDER
Plaintiffs Carleen Jenkins, Cindy Shaffer, Kimberly Cox, and Karis Myer
(Myer) are former employees of defendant, CACI, Inc. – Federal (CACI). They
allege claims of gender discrimination, hostile work environment based on gender,
retaliation, and failure to pay overtime wages, under both federal and state law. With
leave of court, defendant has filed separate motions for summary judgment as to
each individual plaintiff’s claims. This order addresses defendant’s motion as to the
claims by Myer.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Rule 56(a), Fed. R. Civ. P. A genuine dispute of material fact
exists “if a rational jury could find in favor of the nonmoving party on the evidence
presented.” Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 882 (10th Cir.
2018). In deciding CACI’s motion, the court “view[s] the evidence in the light most
favorable to, and draw[s] all reasonable inferences in favor of, the nonmoving
party.” Id.
Myer’s Response Brief
Myer’s initial response brief to CACI’s summary judgment motion was
stricken by the court because of various deficiencies. See, doc. no. 136. Myer was
directed to re-file her response brief correcting the deficiencies by August 30, 2023.
Id. The court advised that if Myer failed to re-file by that date, the court may take
action that is just, including dismissal without prejudice of Myer’s action. Id.
In its reply brief, CACI asserts that Myer’s response brief was not filed by
August 30, 2023. It also asserts that the response brief fails to remedy all the
deficiencies specified by the court. As a result, CACI urges the court to exercise its
inherent authority to control its docket and dismiss Myer’s claims.
The court initially notes that Myer filed two response briefs of record although
one is designated as the response, filed August 31, 2023, and one is designated a
sealed exhibit, also filed August 31, 2023. See, doc. nos. 143 and 144. Each
response attaches a different set of exhibits, exhibits that are not sealed, doc. no. 143,
exhibits 1-2 and 5-12, and an exhibit that is sealed, doc. no. 144, exhibit 3. The
response briefs at doc. no. 143 and doc. no. 144 are the same document. As the court
was given a courtesy copy of the response brief at doc. no. 144, with all exhibits
attached, the court treats the response brief at doc. no. 144 as Myer’s response brief.
Although Myer’s response brief still contains deficiencies, the court declines
to dismiss Myer’s action. However, all facts which Myer disputes without citations
to the record, Responses to Defendants Undisputed Material Facts (RDUMF) nos.
4, 8, 14, 15, 21-26, 38, 44, 47, 52, 54, 56, 58, 61, 65, 67-69, 71, are deemed admitted.
See, Rule 56(e), Fed. R. Civ. P. (“If a party . . . fails to properly address another
party’s assertion of fact as required by Rule 56(c), the court may . . . consider the
fact undisputed for purposes of the motion[.]”). All facts which Myer disputes with
citation to the record but for which the cited material is not in the record or otherwise
shown to be admissible, RDUMF nos. 3, 7, 9, 10, 12, 19, and 30, are also deemed
admitted. Id. The additional material facts cited by Myer, doc. no. 143, A-G, are
disregarded as they are not supported by a citation to the record. See, Rule 56(e) (“if
a party fails to properly support an assertion of fact . . . as required by Rule 56(c),
the court may issue any other appropriate order.”).
Factual Background
On July 16, 2018, Myer was employed by CACI to work in the Human
Resources (HR) department at its Shared Services Center in Oklahoma City in the
position of HR Administration S1. On April 1, 2019, Myer was promoted to HR
Administration S2. In that position, she was a part of the New Hire Administration
(NHA) team providing Tier-2 employee services, supporting new hires, onboarding
administration, processes related to background checks, internet background checks,
I-9, E-verify, and other related activities.
CACI had an electronic HR information system, called Workday, which was
accessible through CACI’s internet-based application. The Workday system
contained personal, sensitive, and confidential information relating to CACI
employees. It was used by employees to update their own personal and resume
information, benefits enrollment, manage their career, and search for positions
within CACI. It was used by CACI managers for recruiting, personnel transactions,
performance management, and reporting.
To perform her job duties, Myer had elevated access to Workday. Myer was
aware she was not to use her elevated Workday access privileges to access employee
information for reasons other than legitimate business reasons.
On June 8, 2020, an anonymous hotline complaint was received by CACI
stating that (i) Senior HR manager, Holly Dailey (Dailey), had “asked her friend
[Tesa Jackson (Jackson)] to apply to another manager position within HR that will
be directly under her,” (ii) Jackson was “offered sign on bonus,” (iii) Jackson was
“[n]ot in the position that was being hired for,” and (iv) Dailey and Jackson had
“[l]ied about knowing each other but they are friends on social networks.” Doc. no.
119-7.
On June 17, 2020, Jeana Plews (Plews), HR Director in CACI’s corporate HR
department, sent an email to Myer’s direct supervisor Becky Estes (Estes), advising
of receipt of the hotline complaint and that it appeared to be regarding the
NHA-Assistant Manager position which was recently filled by Jackson. Plews also
spoke with Dailey about it. Dailey was also one of Myer’s supervisors.
It appeared to CACI leadership that the information in the hotline complaint
would only have been available to an employee within HR with elevated access to
Workday. At the request of Bryan Jester (Jester), Senior Vice President of SSC,
Estes identified, in an email dated June 17, 2020, seven individuals within the NHA
team who played a role in the onboarding process of Jackson. Estes also identified
information which would have been appropriate for each of the individuals to access
in Workday to perform their job role. One of the seven individuals was Myer. Estes
also identified Jackson’s recruiter as someone who would have had knowledge of
the sign-on bonus, but Estes stated the recruiter’s last day was the next day, June 18,
2020.
Jenya Golubeva (Golubeva), CACI’s Workday consultant, was asked by
CACI to review these seven employees’ Workday access.
On June 19, 2020, Jester, Dailey, Estes, and Plews discussed the initial review
conducted by Golubeva and determined that there were team members who were
reviewing information outside the scope of their work-related duties. That same day,
CACI requested Golubeva to prepare an audit report of the Workday keystroke
activity for all ten NHA team members, consisting of nine females and one male.
Information was available from Workday for a period of roughly 30 days.
In the morning of June 22, 2020, Golubeva circulated full audit trail reports
for the team members, along with a summary of her review of the data contained in
the reports. A summary of the findings for each worker that identified areas of
concern was also circulated. Myer’s report showed she accessed confidential
information in Workday, relating to co-workers and supervisors.
Myer’s access included looking at highly confidential information and
sensitive employee information, including review of the compensation of her first
and second in line supervisors, Jackson and Estes, and former supervisor, Tiffany
Isennock.
Shortly thereafter, CACI met with Myer. She was questioned concerning
inappropriate access to Workday information. Jester, Estes, Dailey, and Heather
Dolezal (Dolezal), Human Resources business partner in CACI’s corporate HR
department, attended the meeting.
After the meeting, Jester, Dailey, and Estes collectively made the decision to
terminate Myer. Brian Churchey (Churchey), Vice President of Workplace
Relations, Dolezal, and Plews participated in those conversations and agreed with
the decision to terminate Myer. All believed that Myer had been accessing personnel
information in Workday without a legitimate business purpose.
On June 23, 2020, Estes and Dailey issued a Notice of Termination to Myer,
informing that she was terminated for unprofessional behavior in violation of
CACI’s Standards of Ethics and Business Conduct (Standards). The Standards
prohibit employees from using confidential or proprietary information in an
unauthorized manner. They also require that CACI assets be used for legitimate
business purposes. CACI considered its personnel files to be confidential
information that may only be accessed or used for a legitimate business purpose.
Three other NHA team members were terminated as part of the same
investigation—plaintiff Kimberly Cox (female), Sheila Vaughn (female), and Leigh
Jacobs (male). Plaintiff Carleen Jenkins, who was on vacation at the time, resigned
her employment prior to her return to work.
The other five female NHA team members whose Workday access had been
reviewed by CACI leadership were not interviewed or terminated. CACI determined
that they did not engage in egregious conduct based on the information accessed and
their job roles at CACI.
In 2019, Myer had raised concerns to Estes, related to Estes’ decision not to
promote her from the HR Administration S1 position to the HR Administration S2
position (same duties, different pay scale) because of attendance issues. After Myer
set out the reasons for her attendance issues, Estes moved forward with the
promotion. However, Myer believes this confrontation with Estes led to her
termination. Myer never made a complaint to Jester, Dailey, Estes, Churchey,
Plews, or Dolezal that she was being discriminated against or was being subjected
to differential treatment because of her gender.
Myers had been hired as an hourly non-exempt employee. By the end of her
employment, she was compensated at the regularly hourly rate of $15.41. As an
hourly non-exempt employee, Myer was eligible for overtime compensation for all
hours worked over 40 in a workweek. Myers was paid for all hours of work
recorded, including for all overtime hours recorded. Myer claims that she worked
hours in excess of 40 hours that was not compensated. Although she does not have
the exact number of times this happened, she testified that it occurred at least once.
She did not keep track of any of the overtime hours she worked.
Discussion
Myer claims CACI discriminated against her based on her gender, subjected
her to a hostile work environment based on her gender, and retaliated against her for
engaging in protected activity. The claims are brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Oklahoma
Anti-Discrimination Act (OADA), 25 O.S. § 1101, et seq. Because “[t]he OADA is
analyzed similarly to the Title VII claims,” Jones v. Needham, 856 F.3d 1284, 1292
(10th Cir. 2017), the court’s analysis of the Title VII claims applies equally to Myer’s
OADA claims.
In addition to the Title VII and OADA claims, Myer alleges an overtime wage
claim under the Fair Labor Standards Act (FLSA) of 1938, 29 U.S.C. § 201, et seq.
CACI seeks summary judgment on each of Myer’s claims.
Gender Discrimination
Title VII makes it unlawful for an employer “to discharge any individual, or
otherwise to discriminate against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of such individual’s . . .
sex[.]” 42 U.S.C. § 2000e-2(a)(1). Myer claims she was discharged because of her
sex. “A plaintiff proves a violation of Title VII either by direct evidence of
discrimination or by following the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 [] (1973).” Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012). In her papers, Myer maintains that her claim is
based upon direct evidence of gender discrimination.
Direct Evidence
“Direct evidence demonstrates on its face that the employment decision was
reached for discriminatory reasons.” Ford v. Jackson National Life Insurance
Company, 45 F.4th 1202, 1213 (10th Cir. 2022) (quotation marks and citation
omitted). “But evidence is direct only if it proves the existence of a fact in issue
without inference or presumption.” Id. “[I]n the employment context, this type of
evidence is usually impossible to obtain.” Id.
“Generally, comments in the workplace that reflect personal bias do not
qualify as direct evidence of discrimination unless the plaintiff shows the speaker
had decisionmaking authority and acted on his or her discriminatory beliefs.” Ford,
45 F.4th at 1213 (quotation marks, citation and alteration omitted). “And
discriminatory statements do not qualify as direct evidence if the context or timing
of the statements is not closely linked to the adverse decision.” Id. at 1213-14.
As evidence of direct discrimination, Myer relies upon an anonymous hotline
complaint relating to Jester and a payroll manager, John Loudermill (Loudermill).
Doc. no. 144-1, ECF p. 4. The complaint, dated October 4, 2019, states that Jester
and Loudermill have “bullied and degraded the women on staff” and have
“insinuated to them that they ‘find their place.’” It also states that the “affected staff
members are all fearful that if they speak up about their treatment they will be
retaliated against and terminated.” Id.
Although Jester had decisionmaking authority over her, Myer has not
presented any evidence that he acted on his alleged discriminatory beliefs. There is
no connection between the alleged comments/actions referenced in the complaint
and Myer’s termination. As stated, the hotline complaint is dated October 4, 2019,
and Myer’s termination occurred on June 23, 2020. There is “no temporal
proximity” between the comments/actions and the termination. See, Ford, 45 F.4th
at 1214 (comments about a month before termination not sufficient to show temporal
proximity). Nor do the alleged comments/actions “demonstrate on their face” that
Jester, in terminating Myer, did so based on his animosity toward females. Id. at
1213 (quotation marks, citation and alterations omitted). The alleged
comments/actions don’t “directly reflect the forbidden animus needed for direct
evidence of discrimination.” Id. at 1215 (quotation marks, citation and alteration
omitted).
Because the court concludes Myer has not adduced direct evidence of
discrimination, the court concludes that it should analyze her gender discrimination
claim under the McDonnell Douglas framework.1
McDonnell Douglas Framework
“Under the McDonnell Douglas framework, a plaintiff must first raise a
genuine issue of material fact on each element of the prima facie case, as modified
to relate to differing fact situations.” Bekkem v. Wilkie, 915 F.3d 1258, 1267 (10th
Cir. 2019) (quotation marks and citation omitted). “The burden then shifts to the
employer to offer a legitimate nondiscriminatory reason for its employment
decision.” Id. “If the employer does so, the burden then reverts to the plaintiff to
show that there is a genuine dispute of material fact as to whether the employer’s
proffered reason for the challenged action is pretextual—i.e., unworthy of belief.”
Id.
Generally, a prima facie case requires a plaintiff to show that (1) she is a
member of a protected class; (2) she suffered an adverse employment action; and (3)
the challenged action occurred under circumstances giving rise to an inference of
discrimination. See, Bennett v. Windstream Communications, Inc., 792 F.3d 1261,
1266 (10th Cir. 2015). There is no dispute that Myer can show that she is a member
of a protected class—female, and she suffered an adverse employment action—
termination. Instead, CACI challenges whether Myer can show that her termination
occurred under circumstances giving rise to an inference of discrimination.

1 In her briefing, Myer relies solely on the purported direct evidence of gender discrimination to
establish her gender discrimination claim. She makes no effort to analyze her claim using the
McDonnell Douglas framework. CACI has advocated the use of the framework in analyzing
Myer’s claim. To determine whether summary judgment on the claim, as requested by CACI, is
appropriate, the court proceeds with analyzing the claim under the McDonnell Douglas
framework.
Myer can establish the third prong of the McDonnell Douglas framework in
various ways, such as “[she] was qualified for [her] job . . . and [] the job was not
eliminated after [her] discharge,” “actions or remarks made by decisionmakers that
could be viewed as reflecting a discriminatory animus,” “preferential treatment
given to employees outside the protected class,” or “more generally, upon the timing
or sequence of events leading to [her] termination.” Singh v. Cordle, 936 F.3d 1022,
1037 (10th Cir. 2019) (quoting Kendrick v. Penske Transp. Services, Inc., 220 F.3d
1220, 1229 (10th Cir. 2000)); Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005).
In her briefing, Myer relies solely on the hotline complaint that accused Jester
of bullying and degrading women and insinuating that they should find their place.
Myer, however, has failed to establish any nexus between Jester’s alleged actions
and her termination. Although not argued by Myer, the court notes the record
contains evidence sufficient to reasonably infer that she was qualified for the
position of HR Administration S2, see, doc. no. 119-29, ECF p. 31, ll. 5-23, and it
also contains evidence sufficient to reasonably infer that the HR Administration S2
position was not eliminated. See, doc. no. 119-14, ECF p. 5.
The court concludes that CACI has proffered a legitimate nondiscriminatory
reason for Myer’s termination—that she was terminated for unprofessional behavior
in violation of CACI’s Standards of Ethics and Business Conduct. See, doc. no. 119-
23. CACI’s Standards prohibit employees from using confidential or proprietary
information in an unauthorized manner and require that CACI assets be used for
legitimate business purposes. See, doc. no. 119-28, ECF pp. 3-4. The court therefore
turns to the third prong of the McDonnell Douglas framework—whether CACI’s
proffered reason for Myer’s termination is pretextual or unworthy of belief. Upon
review, the court finds that Myer has failed to raise a genuine issue of material fact
that the proffered reason is pretextual or unworthy of belief.
“A plaintiff may show pretext by demonstrating the ‘proffered reason is
factually false,’ or that ‘discrimination was a primary factor in the employer’s
decision.’” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017)
(quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013)). A plaintiff may
accomplish this “by revealing weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer’s proffered reason, such that a
reasonable fact finder could deem the employer’s reason unworthy of credence.” Id.
“‘In determining whether the proffered reason for a decision was pretextual, [the
court examines] the facts as they appear to the person making the decision,’ and
‘[does] not look to the plaintiff’s subjective evaluation of the situation.’” Id. at 971
(quoting EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1044 (10th Cir. 2011)) (emphasis
in original). “Instead of asking whether the employer’s reasons ‘were wise, fair or
correct,’ the relevant inquiry is whether the employer ‘honestly believed those
reasons and acted in good faith upon those beliefs.’” Id. (quoting Swackhammer v.
Sprint/United Mgmt. Co., 493 F.3d 1160, 1170 (10th Cir. 2007)).
In her briefing, Myer suggests that CACI’s reason for her termination is
factually false because her use of Workday to access confidential information about
CACI employees was for a legitimate business purpose. However, Myer admitted
in her discovery responses that she looked at confidential information of CACI
employees without a legitimate business purpose. See, doc. no. 119-4, Response to
Request for Admission No. 13 at ECF p. 3; doc. no. 119-30, Interrogatory Response
No. 7 at ECF p. 5. And while she asserts that she had a legitimate business purpose
for accessing Jackson’s compensation, Myer did so without having been assigned
any task or having any job role that would have warranted the review. See, doc. no.
119-29; ECF pp. 8-11; 12-15. “[A] challenge of pretext requires [the court] to look
at the facts as they appear to the person making the decision to terminate plaintiff.”
Kendrick, 220 F.3d at 1231. Here, the record indicates that CACI leadership
determined that Myer accessed the confidential information about CACI employees
without a legitimate business purpose.
In her briefing, Myer asserts that other NHA employees accessed co-workers
and supervisors’ confidential information in Workday and were not terminated by
CACI. A plaintiff may show pretext on a theory of disparate treatment by “evidence
that [she] was treated differently from other similarly-situated, nonprotected
employees who violated work rules of comparable seriousness.” Kendrick, at 1232.
But Myer has not shown that the other employees who accessed the information
were nonprotected employees. The other five employees, who were investigated but
not terminated, were all female.
Myer additionally points out that there were other hotline complaints, filed in
August and December of 2019, which CACI leadership concluded contained
confidential information that was obtained by someone with elevated access to
Workday, but no audit of NHA team members was then conducted by CACI.
However, the record reveals, as to the August complaint, that HR corporate
recommended no investigation but rather counseling of employees on the
responsibility of having access to sensitive data such as salary information, and this
was done by CACI leadership. See, doc. no. 144-1, ECF p. 3. As to two December
complaints, no audit was necessary because Estes was already investigating the
issue, and she knew the two employees involved in accessing the confidential
information, and the two employees were disciplined by issuance of written
warnings. See, doc. no. 144-1, ECF p. 24. After the investigation relating to the
June 2020 complaint was performed, HR corporate employees agreed with CACI
leadership’s decision to terminate Myer. The court concludes that the fact that the
August and December 2019 hotline complaints did not result in an audit of the NHA
team members’ Workday access does not raise a genuine issue of material fact that
the reason for Myer’s termination is unworthy of credence.
In addition, Myer contends that other SSC employees had elevated access to
the Workday system, but they were not audited by CACI leadership. Despite that
other SSC employees may have had elevated access to Workday, Myer does not
dispute that CACI limited its investigation to the NHA team members because it
appeared to them that the knowledge of confidential information regarding Jackson
likely originated from the NHA department where her hire had been announced the
day before the hotline complaint was filed. And although Jackson’s recruiter would
have also had information relating to the sign-on bonus and was not audited, the
record indicates that the recruiter’s last day of work was on June 18, 2020. See, doc.
no. 119-11, ECF p. 2. There was no need to audit the recruiter, along with the NHA
team members. The court concludes that the failure of the CACI leadership to audit
other SSC employees or Jackson’s recruiter does not raise a genuine issue of material
fact that the reason for her termination is pretextual.2
Further, Myer maintains that Golubeva, in conducting the audit of Workday
access activity, was only provided criteria by CACI leadership consisting of the
NHA team members’ names and a date range to search. Myer asserts that Golubeva
did not know what jobs the NHA team members performed and was not qualified to
determine what they should or should not have been reviewing in Workday. But
Myer does not dispute that CACI leadership independently reviewed the data that
was provided by Golubeva and, from that review, determined that Myer and other
NHA team members accessed confidential information relating to co-workers and
supervisors.

2 In briefing, Myer asserts that the same confidential information in Workday was also available
in the SharePoint file. However, Myer has not demonstrated that anyone other than Estes and the
NHA team members had access to that file. The court concludes that the existence of the
SharePoint file does not raise a genuine issue of material fact as to whether the reason for her
termination was pretextual.
Lastly, Myer asserts that the way the Workday system was set up (in terms of
ability to access confidential information) was determined by CACI, and if CACI
leadership did not want NHA team members to access the confidential information,
including compensation, it could have placed “hard stops” in the system to prevent
the NHA employees from accessing such information. See, doc. no. 144, ECF p. 6.
However, while CACI, at the relevant time, did not have “hard stops” placed in the
Workday system to prevent the NHA employees, like Myer, from accessing
confidential information, Myer acknowledged that she knew she was not supposed
to access confidential information in Workday without a legitimate business
purpose.
Upon review of the record, the court concludes that Myer has failed to proffer
evidence sufficient to raise a genuine issue of material fact that CACI’s proffered
legitimate nondiscriminatory reason for its termination decision is pretextual or
unworthy of belief for gender discrimination. The court therefore concludes that
CACI is entitled to summary judgment on Myer’s Title VII and OADA gender
discrimination claims. See, DePaula, 859 F.3d at 977-978 (affirming summary
judgment because plaintiff failed to show that there was a genuine dispute of material
fact as to whether the employer’s reasons for termination were pretextual or
unworthy of belief).
Retaliation
Title VII also makes it unlawful for an employer to retaliate against an
employee “because she has opposed any practice made an unlawful employment
practice by this subchapter.” Khalik, 671 F.3d at 1192 (quotation marks, citation
and alteration omitted). “A claim of Title VII retaliation can likewise be proven
either by direct evidence or by reliance on the McDonnell Douglas framework.”
Bekkem, 915 F.3d at 1267. Myer does not point to any direct evidence of retaliation
to support her claim. The court therefore concludes that it should analyze Myer’s
retaliation claim under the McDonnell Douglas framework.3
To state a prima facie case of retaliation, a plaintiff must show (1) she engaged
in protected opposition to discrimination; (2) she suffered an adverse employment
action; and (3) there exists a causal connection between the protected activity and
the adverse action. See, Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).
Upon review, the court concludes that Myer has failed to proffer evidence
sufficient to raise a genuine issue of material fact that there exists a causal connection
between the alleged protected activity and the alleged adverse action. To establish
a causal connection, Myer must show that the individuals who took adverse action
against her knew of her protected opposition. Zokari v. Gates, 561 F.3d 1076, 1081
(10th Cir. 2009). “The employer must know not only that the employee has opposed
an action of the employer [], but that the opposition was based on a belief that the
employer’s action constituted discrimination prohibited by Title VII (here, [gender]
discrimination).” Id. Myer does not dispute that she never made any complaints to
Jester, Dailey, Estes, Churchey, Plews, or Dolezal that she was discriminated against
or was subjected to differential treatment because of her gender and does not dispute
that at the time of her termination, they were unaware of any complaints by her to
anyone in CACI management or human resources claiming that she was
discriminated against because of her gender. Myer testified that she raised concerns
to Estes related to Estes’ decision not to promote her from the HR Administration
S1 position to the HR Administration S2 because of attendance issues. See, doc. no.
119-29, ECF p. 31, ll. 13-25; ECF p. 32, ll. 1-25; ECF p. 33, ll.1-4. Myer believes

3 Again, Myer makes no effort to analyze her retaliation claim using the McDonnell Douglas
framework. CACI has advocated the use of the framework in analyzing the claim. To determine
whether summary judgment on Myer’s claim, as requested by CACI, is appropriate, the court
proceeds with analyzing the retaliation claim under the McDonnell Douglas framework.
that confrontation led to her being included with the group that was terminated. Id.,
ECF p. 32, ll. 3-5. However, there is nothing in Myer’s testimony or any other
supporting evidence to show that Myer informed Estes that she believed the actions
were based on her protected status. Myer has failed to show that her complaint to
Estes put her on notice that she was concerned about gender discrimination.
Because Myer has failed to proffer evidence sufficient to raise a genuine issue
of material fact as to the causal connection element, the court concludes that Myer
cannot establish a prima facie case of retaliation. The court therefore finds that
CACI is entitled to summary judgment on Myer’s Title VII and OADA retaliation
claims. See, Zokari, 561 F.3d at 1082 (affirming summary judgment on retaliation
claim for failure to establish a prima facie case of retaliation).4
Hostile Work Environment
In addition, “a plaintiff may establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or abusive work environment.”
Delsa Brooke Sanderson v. Wyoming Highway Patrol, 976 F.3d 1164, 1174 (10th
Cir. 2020) (quotation marks and citation omitted). “A hostile work environment
claim is composed of a series of separate acts that collectively constitute one
unlawful employment practice.” Throupe v. University of Denver, 988 F.3d 1243,
1251 (10th Cir. 2021) (quotations marks and citation omitted). To establish a hostile
work environment claim, the plaintiff must show (1) she was discriminated against
because of her sex, and (2) the discrimination was sufficiently severe or pervasive

4 Even if Myer presented evidence sufficient to raise a genuine issue of material fact as to each of
the elements of a prima case of retaliation, including causal connection, the court concludes that
Myer could not establish that CACI’s reason to terminate her is pretextual or unworthy of belief
for the reasons previously discussed with respect to her gender discrimination claim. Hiatt v.
Colorado Seminary, 858 F.3d 1307, 1323 (10th Cir. 2017) (affirming summary judgment on
retaliation claim for failure to create triable issue that employer’s reasons for any adverse
employment actions were pretextual for retaliation).
such that it altered the terms or conditions of her employment. Throupe, 988 F.3d
at 1251.
To support her claim, Myer testified that (i) she was under-used; (ii) NHA
team members would get in trouble if they messed up; (iii) she did not receive
training or support in her role; (iv) she was pressured to get work done; (v) Estes
informed her that she was not going to promote her because of attendance issues;
(vi) Estes told her to “just get it done” when there was an issue about changing
addresses for overseas employees and Myer questioned the process; and (vii) former
supervisor, Tiffany Isennock, counseled Myer to “stop this mean girl behavior”
without explaining what Myer had done. See, doc. no. 119-29, ECF p. 21, ll. 1-20;
ECF p. 28, ll. 22-25; ECF p. 37, ll. 1-12.
CACI argues that there is an absence of evidence that the conduct experienced
by Myer was based on her gender. In Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 79-80 (1998), the Supreme Court held that both opposite-sex and same-
sex sexual harassment is actionable under Title VII, but that such harassment
violates Title VII only when it is “because of sex.” “The term ‘sex’ under Title VII
refers to class delineated by gender.” Dick v. Phone Directories Co., Inc., 397 F.3d
1256, 1263 (10th Cir. 2005) (citation omitted). Thus, even for same-sex sexual
harassment claims, “[if] the nature of an employee’s environment, however
unpleasant, is not due to her gender, she has not been the victim of sex discrimination
as a result of that environment.” Id. (quotation marks and citation omitted).
The Supreme Court in Oncale established three ways a plaintiff can establish
same-sex harassment: (1) if the harasser was homosexual and motivated by sexual
desire; (2) if the harassment was motivated by a general hostility to the presence of
a particular gender in the workplace; and (3) if the harasser treated men and women
differently in the workplace. Oncale, 523 U.S. at 80-81. Myer has failed to produce
evidence sufficient to establish any of three ways with respect to the alleged
harassing conduct of Estes or Isennock. The court concludes that Myer has failed to
raise a genuine dispute of material fact that she was discriminated against because
of her sex.
“To prove severity or pervasiveness, a plaintiff must subjectively and
objectively perceive the harassment.” Ford, 45 F.4th at 1227. “This means the
plaintiff must: (1) subjectively perceive ‘the conduct to be severe or pervasive,’ and
(2) ‘show that a rational jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult.’” Id. (quoting Throupe, 988 F.3d
at 1252). Severity and pervasiveness are analyzed by looking at the totality of the
circumstances and considering “‘such factors as the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th
Cir. 2012)). “A few isolated incidents of discriminatory conduct and run-of-the-mill
boorish, juvenile, or annoying behavior that is not uncommon in American
workplaces are insufficient to support a claim for hostile work environment.” Id.
(quotations marks and citations omitted). Whether the alleged harassing conduct
was severe or pervasive is typically a question for the jury, but if the plaintiff fails
to make this showing, summary judgment is appropriate. See, Throupe, 988 F.3d at
1252.
Viewing the evidence and drawing all reasonable inferences in a light most
favorable to Myer, the court concludes that the alleged harassing conduct of Estes
and Isennock was neither severe nor pervasive. None of the identified conduct rises
to the level of severity required for a hostile work environment claim. See, e.g.,
Morris, 666 F.3d at 667 (describing instances where the Tenth Circuit has found the
severity element met, including assault and the physical groping of body parts). And
the court concludes that no reasonable employee would have perceived Estes and
Isennock’s conduct, viewed in the aggregate, as pervasive.
As stated by the Tenth Circuit, “Title VII does not establish ‘a general civility
code.’” Morris, 666 F.3d at 663 (quoting Oncale, 523 U.S. at 81. Here, on the record
before the court, viewed in Myer’s favor, the court concludes that Myer has failed
to proffer evidence sufficient to raise a genuine issue of material fact that her
“workplace [was] permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of [her] employment
and create an abusive working environment.” Id. at 78. Thus, the court concludes
that CACI is entitled to summary judgment on Myer’s hostile work environment
claim.
Overtime Pay5
The FLSA provides that “no employer shall employ any of his employees . . .
for a workweek longer than forty hours unless such employee receives compensation
for his employment in excess of the hours above specified at a rate not less than one
and one-half times the regular rate at which [she] is employed.” 29 U.S.C.
§ 207(a)(1). “To succeed on an FLSA claim for unpaid overtime, the plaintiff has
the burden of proving that [she] performed work for which [she] was not properly
compensated.” Brown v. ScriptPro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012).
Myer has the burden to produce “sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference.” Id. At summary
judgment, Myer must set forth specific facts showing that there is a genuine issue
for trial.” Id.

5 In the amended complaint, Jenkins asserts that she seeks relief under the Oklahoma Minimum
Wage Act (OMWA), 40 O.S. § 197.1, et seq. However, none of the counts of the amended
pleading seeks relief under the OMWA. Count III only sets forth allegations of a violation of the
FLSA. The court concludes that Jenkins is not pursuing an overtime pay claim under the OMWA.
Upon review, the court finds that Myer has failed to proffer testimony and
supporting evidence adequate to show the amount of overtime worked by a just and
reasonable inference. Myer testified that she did not keep track of the overtime hours
she worked. Doc. no. 119-29, ECF p. 45, ll. 17-21. The only evidence is her
testimony. And Myer testified that she did not know the exact number of times that
she worked overtime, but said it occurred at least once. Id., ll. 22-25. But she
provides no specifics as to her claim. The court concludes that the evidence in the
record is insufficient to allow the court (or a rational jury) to reasonably infer the
amount or the extent of hours Myer worked in excess of 40 hours in a workweek
without proper compensation from CACI.
The court finds that Myer has failed to set forth specific facts showing that
there is a genuine issue of material fact for trial with respect to her FLSA claim.
Consequently, the court concludes that CACI is entitled to summary judgment on
Myer’s FLSA overtime pay claim.
Discovery
In her papers, Myer complains that she has been unable to state her case more
forcibly due to CACI’s unilateral constraints on discovery. Specifically, Myer
asserts that she requested Skype messages, which CACI denied having, although
examples of Skype messages exist in the summary judgment record. Additionally,
Myer asserts that she received limited emails from CACI, because of its filtered
keyword search, and the emails she did receive did not contain the entire email
strings. Myer believes the missing emails would have supported her claims.
To the extent that Myer believed she did not have an opportunity to discover
necessary evidence to support her claims, Rule 56(d), Fed. R. Civ. P., provided her
a remedy. Rule 56(d) authorizes the court to (1) defer considering a motion for
summary judgment or deny it; (2) allow time to obtain affidavits or declarations or
to take discovery; or (3) issue any other appropriate order, “[i]f a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition.” However, Myer has never invoked Rule 56(d). And
neither she nor her counsel has submitted any affidavit or declaration in compliance
with Rule 56(d). Thus, the court finds no justification for granting Myer any relief
under Rule 56(d), including deferral or denial of CACI’s summary judgment motion
because of the referenced discovery issue.
Conclusion
For the reasons stated, CACTI, Inc. — Federal’s Motion for Summary Judgment
as to Claims by Plaintiff Karis Myer (doc. no. 117) is GRANTED.
DATED this 23 day of October, 2023.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10390519. Public record. Not legal advice.