60 F.3d 837

Plaintiff Mary C. Dratz appeals the district court’s order entering summary judgment in favor of defendant Glen D. Johnson on plaintiff’s discrimination claims against him under 504 of the Rehabilitation Act, 29 U.S.C. 504, and 42 U.S.C.1983.2 We have jurisdiction under 28 U.S.C. 1291.

Plaintiff, an attorney employed by the Oklahoma House of Representatives, alleged that she was discriminated against on the basis of her physical handicap in that, following a decision made in August 1988, she was paid less than Kathy Muckala, a nondisabled attorney who had less seniority than plaintiff and who, plaintiff contended, was no better qualified for the position than she was. The only claims at issue on appeal are those against defendant in his official capacity as Speaker of the House, in which capacity he apparently was responsible for approving legal staff salaries. The district court ruled against plaintiff on both her claims, after determining that she had failed to produce evidence to show that defendant’s proffered legitimate reasons for his action were untrue and, therefore, no reasonable juror could conclude, based on the evidence, that the salary differential about which plaintiff complained resulted from handicap discrimination.

We review the district court’s grant of summary judgment de novo. Johns v. Stewart, (No. 94-4161), 1995 WL 365142, at * 8 (10th Cir. Jun. 20, 1995). Based upon our review, we affirm the entry of summary judgment in favor of defendant.

To state a claim under 504 of the Rehabilitation Act, ” ‘plaintiff must prove (1) that [s]he is a “handicapped individual” under the Act, (2) that [s]he is “otherwise qualified” for the [benefit] sought, (3) that [s]he was [discriminated against] solely by reason of [her] handicap, and (4) that the program or activity in question receives federal financial assistance.’ ” Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir.1992)(quoting Strathie v. Department of Transp., 716 F.2d 227, 230 (3d Cir.1983) (citation omitted))(alteration in original), cert. denied, 113 S.Ct. 1255 (1993). To establish a 1983 claim for violation of her right to equal protection, plaintiff had to show that the relevant decisionmakers were motivated, at least in part, by a discriminatory intent or purpose. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).

The evidence showed that the salary discrepancy about which plaintiff complains began in 1988, when the then Director of Research for the House of Representatives, George Moser, received authorization from the then Speaker of the House, Jim Baker, to give raises to the legal staff. At that time, plaintiff and Ms. Muckala were both in an Attorney II position and were earning the same salary.

Mr. Moser and Scott Emerson, the Director of the House Legal Division, determined how large a raise each legal staff member should receive based on both the last formal performance evaluations, conducted in 1986, and their informal opinions of each employee’s subsequent performance. Plaintiff does not dispute that her 1986 overall performance rating was not as high as Ms. Muckala’s rating for the same time period. The Speaker ultimately approved a raise of $256.16 a month for plaintiff and a raise of $461.66 a month for Ms. Muckala. Although plaintiff later received performance evaluations as high as Ms. Muckala’s, the salary differential that began in 1988 continued thereafter because all future raises the two attorneys received–whether authorized by the Speaker or by the full legislature–were either in an identical dollar amount or represented approximately the same percentage of their respective salaries.

In his motion for summary judgment, defendant disclaimed any reliance on plaintiff’s handicap in the salary decisions at issue. Defendant submitted affidavits showing that the decision to give Ms. Muckala a larger raise than plaintiff in 1988 was based on the quality of the attorneys’ respective job performances and was not influenced by plaintiff’s handicap. Defendant’s evidence also showed that plaintiff’s handicap was not considered in determining any future raises. Plaintiff, in turn, presented evidence that she contended showed that the reason defendant advanced for the difference in salaries between her and Ms. Muckala was not true. She argued that the reason for the salaries given by defendant was merely a pretext for handicap discrimination.

Because 504 of the Rehabilitation Act does not prohibit an employer from considering an employee’s handicap when making an employment decision, many 504 cases do not lend themselves to the type of burden-shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), for discrimination suits under Title VII of the Civil Rights Act of 1964. In cases where the employer admits that it relied, in whole or in part, on the plaintiff’s handicap, and instead contends that it cannot reasonably accommodate the handicap, the purpose of the McDonnell Douglas burden-shifting analysis, which is to determine the employer’s subjective intent in making the challenged employment decision, will have been met from the outset. See, e.g., White v. York Int’l Corp., 45 F.3d 357, 361 n. 6 (10th Cir.1995).

In such accommodation cases, “[t]he pivotal issue is not whether the handicap was considered but whether under all of the circumstances it provides a reasonable basis for finding the plaintiff not to be qualified or not as well qualified as other applicants.” Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir.1981); see also Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1385-86 (10th Cir.1981)(“[T]he issue is not merely whether the handicap played a prominent part in [the plaintiff’s] rejection, as in cases dealing with alleged discrimination on the basis of race, for example (where race is never expressly mentioned as a consideration), the issue is whether rejecting [the plaintiff] after expressly weighing the implication of his handicap was justified.”).

Rehabilitation Act cases may, however, fall into a second category, which consists of straightforward discrimination cases that are virtually identical to Title VII cases. In this second category of cases, the employer disclaims any reliance on the plaintiff’s protected status in making the challenged employment decision. The plaintiff, in turn, contends that the reasons advanced by the employer for the employment decision are not true and are merely a cover-up for the true reason, which is illegal discrimination.

Several circuits have acknowledged that the burden-shifting analysis of McDonnell Douglas and its progeny is quite suitable for this second category of discrimination cases. See, e.g., Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993)(noting that category two Rehabilitation Act cases “involve[ ] the sort of inquiry into subjective facts–the [employer’s] true motivation–that the Burdine three-step approach was designed to address”), cert. denied, 114 S.Ct. 1538 (1994); Teahan v. Metro-North Commuter R.R., 951 F.2d 511, 514 (2d Cir.1991)(holding that McDonnell Douglas analysis is appropriate for Rehabilitation Act cases that fall into the second category), cert. denied, 113 S.Ct. 54 (1992); Prewitt v. United States Postal Serv., 662 F.2d 292, 305 n. 19 (5th Cir.1981)(concluding that Title VII jurisprudence applies to cases involving either “intentional social-bias discrimination against handicapped persons” or “disparate impact handicap discrimination”).

In the past, we have rejected application of the McDonnell Douglas burden-shifting analysis in a Rehabilitation Act case that combined elements of both the first and second categories of cases. See Pushkin, 658 F.2d at 1385, 1386, 1387-89 (rejecting use of McDonnell Douglas analysis in case where university, while not expressly relying on plaintiff’s handicap, articulated reasons for plaintiff’s rejection that actually encompassed consideration of plaintiff’s handicap). We have not, however, addressed its use in a Rehabilitation Act case, such as the present one, that falls squarely within the second category of straightforward discrimination cases. We take the opportunity to do so now, and join our sister circuits in holding that the burden-shifting analysis used in Title VII cases is appropriate in Rehabilitation Act cases in which the defendant disclaims all reliance on the plaintiff’s handicap in taking the challenged action and the plaintiff alleges that the defendant’s proffered reason for the action is merely a pretext for handicap discrimination.

Pursuant to this burden-shifting analysis, even “[i]f a plaintiff successfully proves that the defendant’s reasons are not worthy of credence, the plaintiff must [ultimately] still prove that the true motive for the employment decision violates [the statute].” Sanchez v. Philip Morris Inc., 992 F.2d 244, 247 (10th Cir.1993)(reviewing district court’s finding of intentional discrimination on Title VII claims after bench trial). It clearly follows that a plaintiff cannot survive a motion for summary judgment if he or she cannot even show that the defendant’s proffered legitimate reason is untrue.

While the evidence showed that plaintiff is generally an excellent employee, her evidence did not relate specifically to the period between 1986 and 1988, when the allegedly discriminatory decisions were made. Therefore, plaintiff’s evidence, even if credited, fails to demonstrate that defendant was motivated to give plaintiff a smaller raise than Ms. Muckala for any reason other than the nondiscriminatory reason he suggested–i.e., plaintiff’s lower performance appraisal.

To prevail on her Rehabilitation Act claim, plaintiff had to establish that the challenged employment action “result[ed] from the handicap and from the handicap alone,” Johnson ex rel. Johnson, 971 F.2d at 1493. To prevail on her 1983 claim, plaintiff had to establish that handicap discrimination was at least a motivating factor in the challenged decisions. The evidence, however, failed to create a material issue of fact as to whether the challenged decisions were even motivated in part by handicap discrimination. The district court, therefore, properly entered summary judgment against plaintiff on both her Rehabilitation Act and 1983 claims.

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

Before BRORBY and EBEL, Circuit Judges, and BRATTON**, District Judge.

On June 2, 1993, Jerry Grist was indicted for one count of conspiracy to distribute cocaine and methamphetamine in violation of 21 U.S.C. Sec. 846, seven counts of using a telephone to facilitate a drug transaction in violation of 21 U.S.C. Sec. 843(b) and one count of conspiracy to conduct a financial transaction with proceeds of an unlawful activity in violation of 18 U.S.C. Sec. 371.

On September 7, 1993, Mr. Grist entered a conditional plea of guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. Sec. 846. Mr. Grist appeals the denial of his suppression motions pursuant to Fed.R.Crim.P. 11(a)(2). Specifically, Mr. Grist appeals the denial of the following motions to suppress: (1) motion to suppress evidence obtained pursuant to a wiretap order; (2) motion to suppress evidence obtained pursuant to a search warrant regarding his premises; and (3) motion to suppress evidence obtained from the warrantless search of his vehicle. For the reasons below, we affirm the district court’s denial of Mr. Grist’s motions to suppress.

On April 19, 1993, the district attorney for Oklahoma Judicial District 21, through the attorney general, submitted an Application for Order Authorizing the Interception of Wire Communications (the “application”) and an Order Authorizing the Interception of Wire Communications (the “order”), authorizing the wiretap of two telephone numbers with the same address in Atoka County, Oklahoma. The two telephone numbers targeted for interception were Mr. Grist’s residence and business telephone numbers. The presiding judge of the Oklahoma Court of Criminal Appeals signed the order. As a result of the wiretaps, the government obtained evidence against Mr. Grist that led to his arrest on May 9, 1993.

Mr. Grist contends that both the application and order were facially invalid, and thus all evidence obtained pursuant to the order should be suppressed. First, Mr. Grist argues the application and order were facially invalid because the district attorney requesting the application lacked jurisdiction to do so. Second, Mr. Grist, argues both the application and the order were facially invalid because neither included a particular description of the nature and location of the facilities from which the wire communications were to be intercepted.

The district attorney obtained the order pursuant to the Oklahoma Security of Communications Act (the “Oklahoma Act”), Okla. Stat. Ann. tit. 13, Secs. 176.1 through .14 (West 1994). The Oklahoma Act establishes a two-step application process for wiretap orders. See Okla. Stat. Ann. tit. 13, Sec. 176.7 (West 1994). First, the district attorney for the jurisdiction in which the interception will take place must file an application with the state’s attorney general. The attorney general then applies for an order from the presiding judge of the Oklahoma Court of Criminal Appeals. Id. The presiding judge may then issue an order “authorizing interception of wire … communications within the territorial jurisdiction of the judicial district of the district attorney requesting the order.” See Sec. 176.9(C).

In this case, the application sought authorization to intercept the communications from Mr. Grist’s residence and business telephone numbers, both located at the same Atoka County, Oklahoma address. Atoka County is within the territorial jurisdiction of Oklahoma Judicial District 19. The district attorney for Oklahoma Judicial District 21 applied for the order. However, District 21 includes Cleveland County, the county in which law enforcement officers listened to the conversations. Because the tapped telephones were physically located in District 19, Mr. Grist argues that the district attorney for District 21 did not have authority to apply for the order. Without such authority, Mr. Grist argues, the wiretap order was invalid, and the district court should have suppressed all evidence obtained from the wiretaps.

The federal wiretap statute, 18 U.S.C. Sec. 2516(2), requires federal courts to defer to state law “on the question of the validity of [a] wiretap order obtained in state court under state law.” United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994)(citing United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)). We review a district court’s determination of state law de novo. Id.

In Tavarez, Mr. Grist’s co-defendant, Balbino DeJesus Tavarez, advanced the same argument before this Court. We rejected Mr. Tavarez’ argument and held that “the location of an ‘interception’ for purposes of section 176.9(C) includes the place where the intercepted communication is heard.” Id. at 1138. Therefore, Mr. Grist’s argument, that the district attorney requesting the application lacked jurisdiction to do so, also fails. Because the intercepted communications were heard in District 21, the district attorney for District 21 had authority to apply for the order.

Additionally, in Tavarez, co-defendant Balbino DeJesus Tavarez challenged the same application and order, raising the same arguments as Mr. Grist. In response to Tavarez’ arguments, we concluded that under section 176.9(A)(2)(b) of the Oklahoma Act the application needed to specify the location of either “the facilities from which” or “the place where” the communications would be intercepted. Id. at 1138-39 (citing Okla. Stat. Ann. tit. 13, Sec. 176.9(A)(2)(b)). We also interpreted “facilities” to mean the target phones. Id.

Based on these findings, we held that the Atoka, Oklahoma address provided in the application was a “sufficiently particular description of the nature and location of the target telephones, thereby fulfilling the requirements of section 176.9(A)(2)(b).” Id. at 1139. For the same reasons given in Tavarez, Mr. Grist’s argument, that the application is facially invalid because it failed to include a particular description of the nature and location of the facilities from which the wire communications were to be interpreted, fails.

Similarly, we rejected Mr. Tavarez’ argument that the order lacked particularity, and concluded that like section 176.9(A)(2)(b), section 176.9(D)(2)’s requirements were worded disjunctively. The “order must specify ‘[t]he nature and location of the communications facilities as to which, or the place where, authority to intercept is granted.” Id. (citing Okla. Stat. Ann. tit. 13, Sec. 176.9(D)(2)). Again, we found “facilities” to mean the targeted phones. Id. Because the targeted telephones were specified in the order, we found the order in compliance with section 176.9(D)(2). Id. We also reject Mr. Grist’s argument and find the order in compliance with section 176.9(D)(2). Therefore, we affirm the district court’s denial of Mr. Grist’s motion to suppress the evidence obtained from the wiretaps.

On May 5, 1993, a United States magistrate judge for the Eastern District of Oklahoma issued a search warrant to search Mr. Grist’s premises. On July 20, 1993, Mr. Grist filed a motion to suppress all evidence obtained pursuant to the search warrant, challenging the integrity and the sufficiency of the affidavit in support of the warrant. The district court denied Mr. Grist’s motion to suppress without an evidentiary hearing.

On appeal, Mr. Grist argues the affidavit (1) was not supported by probable cause; (2) contained false and irrelevant information based upon hearsay and furnished by an unidentified informant whose reliability was not established in the affidavit; and 3) was based upon information obtained from an illegal wiretap.

As a reviewing court, we pay great deference to the magistrate’s determination of probable cause. United States v. Martinez, 764 F.2d 744, 746 (10th Cir.1985). Our duty as a reviewing court “is simply to ensure that the magistrate had a ‘substantial basis … for conclud[ing]’ that probable cause existed.” Id. A magistrate should consider the totality of the circumstances when determining whether probable cause exists to issue a search warrant. Id.

Having reviewed the record, we agree with the district court that Mr. Grist did not meet the standard to impeach the integrity of the affidavit in support of the search warrant. Consequently, Mr. Grist was not entitled to an evidentiary hearing to examine the integrity of the affidavit. We also find that the affidavit submitted by Special Agent Larry G. Morgan to the magistrate judge, when viewed in light of the totality of circumstances, was supported by sufficient reliable facts to provide probable cause to issue a search warrant. We reject Mr. Grist’s arguments for essentially the same reasons the district court rejected them, and affirm the district court’s denial of Mr. Grist’s motion to suppress the evidence obtained pursuant to the search warrant regarding his premises.

On May 9, 1993, an Oklahoma Highway Patrol trooper arrested Mr. Grist several miles away from his residence in the Caney Community of Atoka County, Oklahoma as he was returning from Houston, Texas. The trooper arrested Mr. Grist on a federal arrest warrant. An officer of the Oklahoma Highway Patrol removed Mr. Grist from his 1992 Chevrolet truck and transported him to his residence. Another officer transported Mr. Grist’s truck from the point where Mr. Grist was stopped and arrested to his residence, where the truck was searched.

Mr. Grist contends that the officers transported his truck to his residence so the truck would be within the scope of the search warrant issued to search his premises. For this reason, Mr. Grist contends the search of his vehicle was unreasonable, and thus the district court should have suppressed the evidence found in the truck.

The district court rejected Mr. Grist’s construction of the facts, ruling that the truck was properly seized and searched under a number of exceptions to the warrant requirement. Specifically, the district court found that the truck was impounded and transported to the premises where officers conducted a warrantless inventory search incident to the arrest. The district court further found that the government had independent grounds to search the vehicle based on probable cause due to the intercepted telephone communications indicating the truck was utilized to transport drug money.

When we review a denial of a motion to suppress, we accept the district court’s factual findings unless clearly erroneous and view the evidence in the light most favorable to the district court’s findings. United States v. Chatman, 994 F.2d 1510, 1514 (10th Cir.), cert. denied, — U.S. —-, 114 S.Ct. 230, 126 L.Ed.2d 185 (1993). The determination regarding the reasonableness of the search under the Fourth Amendment is a question of law which we review de novo. Id.

The Fourth Amendment to the Constitution protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. As a general rule, to be reasonable a search or seizure must be conducted pursuant to a validly issued warrant. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989). Nonetheless, fourth amendment jurisprudence carves out several exceptions to the warrant requirement. Id.

We need not decide whether the search of Mr. Grist’s truck after its impoundment was a valid inventory search because we hold that the search was valid based on findings of probable cause. If police officers have probable cause to search a car, they need not get a search warrant even if they have time and opportunity. United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir.1993). Based on the intercepted conversations between Mr. Grist and co-defendant Tavarez, the officers had probable cause to believe that contraband would be found inside Mr. Grist’s truck. Accordingly, we affirm the district court’s denial of Mr. Grist’s motion to suppress evidence obtained from the warrantless search of his vehicle.

AFFIRMED.