Bennett v. Windstream Communication
Filing
[10285168] Affirmed; Terminated on the merits after oral hearing; Written, signed, published; Judges Kelly, authoring, Ebel and Lucero. Mandate to issue. [14-5091]
FILED
Appellate Case: 14-5091
Document: 01019456769
United States Court of Appeals
Date Filed: 07/09/2015 Circuit 1
Tenth Page:
July 9, 2015
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SUSAN G. BENNETT,
Plaintiff - Appellant,
v.
No. 14-5091
WINDSTREAM
COMMUNICATIONS, INC., a
Delaware corporation,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:13-CV-00222-GKF-TLW)
Courtney D. Powell (and Shannon F. Davies, with her on the brief), Lester,
Loving & Davies, P.C., Edmond, Oklahoma, for Plaintiff - Appellant.
Michael R. Pacewicz (and Christina F. Cupp, with him on the brief), Crowe &
Dunlevy, Tulsa, Oklahoma, for Defendant - Appellee.
Before KELLY, EBEL, and LUCERO, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant Susan Bennett appeals from the district court’s grant of
summary judgment in favor of her employer, Defendant-Appellee Windstream
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Communications, Inc. (Windstream). Bennett v. Windstream Commc’ns, Inc., 30
F. Supp. 3d 1243, 1260 (N.D. Okla. 2014). Ms. Bennett brought several claims
alleging gender discrimination and retaliation under Title VII of the Civil Rights
Act of 1964 (Title VII), age discrimination under the Age Discrimination in
Employment Act (ADEA), violation of the Oklahoma Antidiscrimination Act
(OADA), and constructive discharge in violation of Oklahoma public policy and
federal law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
In 2011, Windstream acquired the company that had employed Ms. Bennett
for twelve years, Paetec Communications, Inc. (Paetec). At the time of the
acquisition, Ms. Bennett was a Fiber Optic Tech III (FOT-III), responsible for
locating fiber optic cable, repairing, splicing, and testing it, and performing
routine weekly and monthly maintenance at various sites. II App. 360, 367. Her
service area generally covered Stroud, Kiefer, Tulsa, Muskogee, and Vian in
Oklahoma, and Ozark and Van Buren in Arkansas. Id. at 362.
After the acquisition, Ms. Bennett’s pay and benefits remained the same. I
App. 212. Windstream employed written policies against workplace
discrimination, and its “People Practices” manual stated it “will not tolerate any
type of harassment or discrimination against any employee by coworkers,
management, customers or vendors.” Id. at 78.
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A few months after Windstream assumed Paetec’s operations, Todd Moore
became Ms. Bennett’s supervisor. Mr. Moore also supervised other former Paetec
technicians located in Oklahoma and Missouri. Id. at 202–03. In April 2012, Mr.
Moore instituted a policy requiring all technicians, including Ms. Bennett, to
check in to an assigned manned office each morning at 8 a.m. unless they had
tasks to perform at other worksites. Id. at 203, 224–25. Ms. Bennett was
assigned to check in at the Tulsa office, which was the closest manned office to
her home in Gore, Oklahoma. Id. at 231–32. Given the distance between Gore
and Tulsa, Ms. Bennett was required to commute a total of almost four hours each
day. Prior to the acquisition, Ms. Bennett had worked out of a small office in a
regeneration site in Vian, Oklahoma, substantially closer to her home in Gore. II
App. 364–65.
Ginine Stover, a Human Resources specialist, testified that the check-in
policy, though not written, was standard Windstream practice. I App. 213.
Windstream provided several reasons for the policy, including the volume of
work and number of customers located in the Tulsa and northeastern Oklahoma
area. Id. at 203. Also, the check-in requirement enabled the integration of Paetec
into Windstream through employee cross-training. Id. at 203–04. Windstream
generally required technicians to store company vehicles on secured company
premises; technicians drove privately-owned vehicles to and from the office each
day. See id. at 234–35. The check-in policy was consistent with this procedure.
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Ms. Bennett understood that she was required to report to the Tulsa office
each morning at 8 a.m. Id. at 226–27. Yet, she often arrived at the Tulsa office
more than two hours late. Id. at 204. On a number of occasions, she did not
report to the Tulsa office at all or left several hours early to drive home, rather
than working until 5 p.m. as required. Id. She informed Windstream she was
unable to make the long commute due to personal responsibilities. II App. 290.
But, as Ms. Bennett conceded during oral argument, she never directly requested
an accommodation from the check-in requirement. Regardless, although
Windstream apparently does make certain workplace accommodations for its
employees, no such accommodations were available for this situation. Id. at
327–30.
Donald Rogers, Area Manager of Operations for Windstream and Mr.
Moore’s direct supervisor, stated that Ms. Bennett’s time and attendance issues
made it impossible to implement a complete cross-training program for her. I
App. 204. Often, the Windstream technician with whom she was scheduled to
train had left the office to begin field work by the time she arrived in Tulsa midmorning. “Had Ms. Bennett complied with the requirement to report to the office
at 8:00 a.m., she would have received the same cross-training opportunities as all
other technicians.” Id. Ms. Bennett testified she was not aware of any employees
who were offered training opportunities not offered to her. Doc. 36-3 at 117.
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Ms. Bennett received a “final coaching” session—the first disciplinary step
under Windstream’s progressive discipline policy—regarding her tardiness and
absences from Mr. Moore and Ms. Stover on May 22, 2012. I App. 217, 247. On
the same day, during a phone call, Ms. Bennett reported she was experiencing
chest and shoulder pain due to work-related stress. She stated she had an
appointment to visit a doctor the following day. II App. 411–13. Mr. Rogers
directed Mr. Moore to complete a workers’ compensation claim regarding her
potential injury pursuant to Windstream policy. I App. 249; II App. 411–12.
Windstream’s short term disability carrier, MetLife, requires an employee
to initiate a short term disability claim if the employee is out for more than three
consecutive days or several intermittent days. Ms. Bennett began a leave of
absence on May 28, 2012. I App. 254–55. Her last day of work was May 25,
2012, and MetLife issued short term disability benefits to her through June 27,
2012. Id. Windstream then paid out Ms. Bennett’s remaining vacation days and
other paid leave through July 27, 2012. Id. at 266; II App. 394–95.
On June 15, 2012, Windstream retrieved a company vehicle and tools that
had been assigned to Ms. Bennett. I App. 260. Ms. Stover and Mr. Moore
testified that, since Ms. Bennett was not using the vehicle and tools during her
leave, Windstream needed them to allow other technicians to perform their duties.
Id. at 220, 236.
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On July 26, 2012, Windstream sent Ms. Bennett a letter giving her three
options: (1) return to work, (2) provide medical documentation supporting
continued short term disability leave, or (3) resign. She was required to elect one
of these options by 5 p.m. on August 3, 2012, or Windstream would “treat [her]
absence as job abandonment and terminate [her] employment effective that day.”
Id. at 264. Ms. Stover testified that this “three options letter” is routinely sent to
Windstream employees who have taken a leave of absence and who have not
received an extension of short-term disability benefits from MetLife. Id. at
221–22. Ms. Bennett understood she would be deemed to have abandoned her job
if she did not elect one of the three listed options. Yet, instead of electing an
option, on the deadline she sent an email to Mr. Moore and Mr. Rogers, copying
Ms. Stover, stating that “[t]he discriminating conditions you have placed on me
have made it impossible to work for Windstream. . . . I have no choice but [to]
petition severance pay to support myself and health needs and get out from under
the constant state of distress.” Id. at 274.
On August 8, 2012, Ms. Stover sent Ms. Bennett a letter informing her that
her employment with Windstream had been “separated,” based on her failure to
return from the leave of absence. Id. at 266.
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Discussion
We review a grant of summary judgment de novo, applying the same legal
standard as the district court. Adamson v. Multi Cmty. Diversified Servs., Inc.,
514 F.3d 1136, 1145 (10th Cir. 2008). Summary judgment is appropriate only if
“the movant shows that 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). A fact
is “material” only if it might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute
over a material fact is “genuine” only if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. The moving party bears
the burden of showing that no genuine dispute of material fact exists. Adler v.
Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). In considering a
motion for summary judgment, we draw all reasonable inferences in favor of the
nonmoving party. See Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d
1200, 1214 (10th Cir. 1998).
I.
Title VII and ADEA Gender and Age Discrimination Claims
First, Ms. Bennett asserts claims of gender discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and age discrimination
under the Age Discrimination in Employment Act, 29 U.S.C. § 623. Under both
Title VII and the ADEA, a plaintiff bears the ultimate burden of proving her
employer intentionally discriminated against her. Riser v. QEP Energy, 776 F.3d
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1191, 1199 (10th Cir. 2015); Adamson, 514 F.3d at 1145. A plaintiff can prove
intentional discrimination through either direct evidence or circumstantial
evidence that creates an inference of intentional discrimination. Riser, 776 F.3d
at 1199.
Where, as here, a plaintiff seeks to use circumstantial evidence to show her
employer’s discriminatory intent, we employ the three-step burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Adamson, 514 F.3d at 1145. Under the McDonnell Douglas framework, a
plaintiff first must establish a prima facie case of gender or age discrimination. A
prima facie case generally requires a plaintiff to show, by a preponderance of the
evidence, that she is a member of a protected class, she suffered an adverse
employment action, and the challenged action occurred under circumstances
giving rise to an inference of discrimination. 1 E.E.O.C. v. PVNF, L.L.C., 487
1
The district court analyzed Ms. Bennett’s prima facie case of
discrimination using a similar four-part articulation of the test. Bennett, 30 F.
Supp. 3d at 1253 (stating a plaintiff must show she is a member of a protected
class, she suffered an adverse employment action, she is qualified for the position
at issue, and she was treated less favorably than others not in the protected class).
In McDonnell Douglas, the Supreme Court noted that the elements required for a
plaintiff’s prima facie case may vary depending on the context of the claim and
the nature of the alleged conduct. 411 U.S. at 802 n.13; accord Young v. United
Parcel Serv., Inc., 135 S. Ct. 1338, 1353–54 (2015). The Tenth Circuit has
utilized a number of similar versions of the test, expressing a preference for more
concise formulations. See, e.g., Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 n.4
(10th Cir. 2013) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981)); Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005).
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F.3d 790, 800 (10th Cir. 2007). While the elements of a prima facie case “are
neither rigid nor mechanistic, their purpose is the establishment of an initial
inference of unlawful discrimination warranting a presumption of liability in
plaintiff’s favor.” Adamson, 514 F.3d at 1146.
Once the plaintiff has established her prima facie case, the burden of
production shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its actions. Id. at 1145. Then, the burden of production shifts again to
the plaintiff to show that the defendant’s explanation was merely pretextual. “[A]
plaintiff’s prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000). The plaintiff may establish pretext by
showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted non-discriminatory reasons.”
Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1280 (10th Cir. 2010).
A.
Ms. Bennett Has Not Established a Prima Facie Case
Ms. Bennett maintains that, for purposes of Title VII and ADEA liability,
the only adverse employment action about which she complains is her
termination. The other employment actions she describes in detail serve to
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bolster her assertion of discriminatory animus. Aplt. Br. 15. We agree with the
district court that Ms. Bennett has not established a prima facie case of either
gender or age discrimination.
Both Title VII and the ADEA expressly prohibit discriminatory discharge
as an adverse employment action. 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C.
§ 623(a)(1). As noted, Ms. Bennett was given three options upon the conclusion
of her short-term disability leave, consistent with Windstream’s routine practice:
return to work, provide the documentation necessary for additional disability
leave, or resign. Windstream informed her that failure to elect an option would
be treated as job abandonment. App. 264. The parties contest whether these facts
can support a claim of involuntary termination. We need not resolve this question
here because, in any event, Ms. Bennett has not produced evidence showing that
the alleged discharge occurred under circumstances giving rise to an inference of
discrimination.
Ms. Bennett asserts a number of Windstream’s actions suggest
discriminatory animus, including requiring Ms. Bennett to check in each morning
at the Tulsa office, instituting disciplinary proceedings against her when she
failed to do so, submitting a workers’ compensation claim form when Ms. Bennett
reported chest and shoulder pain, filing a short term disability claim on her
behalf, retrieving its vehicle and tools during her leave of absence, and denying
her cross-training opportunities. Although her burden of production at the prima
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facie stage is “not onerous,” Burdine, 450 U.S. at 253, Ms. Bennett points to no
evidence in the record, either direct or circumstantial, supporting a claim of
animus.
For example, Ms. Bennett asserts that Windstream’s motive in
implementing the daily check-in requirement was to enable the transfer of her
duties to preferred younger, male employees. She states that Mr. Moore’s policy
required “only Bennett—the only female FOT-III in the region—to ‘check in’
each morning in Tulsa.” Aplt. Br. 19. To the contrary, the record shows the
policy requiring check-in at a manned office applied uniformly to a number of
employees supervised by Mr. Moore. Ms. Bennett may have had the most
burdensome daily commute as a result of the new company policy, but she cites
no authority for the position that employers must account for their employees’
commutes when designing uniform attendance policies.
Ms. Bennett also asserts that “Windstream refused to consider [her]
eligibility for any of its flexible work schedule policies.” Id. But she conceded
she did not request any such accommodation, and the record shows Windstream
did not have any accommodation policy that would have assisted Ms. Bennett in
accomplishing her desired working arrangement.
Additionally, Ms. Bennett argues that Windstream refused to offer her
equivalent training opportunities. “Instead of being trained like the male
employees,” upon check-in she was “shuffled to a cubicle to fill out her expense
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reports.” Aplt. Br. 19. Yet, the record does not show Windstream denied Ms.
Bennett equal opportunities; instead, it shows Ms. Bennett was unable to
participate in the cross-training program Windstream openly offered to her
because of her attendance issues. Further, she has not identified evidence
showing that other technicians—of any age or gender—received training
opportunities she was not offered.
For these reasons, Ms. Bennett has failed to establish a prima facie case of
gender or age discrimination.
B.
Ms. Bennett Has Not Shown Pretext
Even if Ms. Bennett could establish a prima facie case of gender or age
discrimination under the McDonnell Douglas framework, Windstream has
articulated several legitimate non-discriminatory reasons for the employment
actions about which Ms. Bennett complains. Most importantly, since Ms. Bennett
asserts her purported termination is the sole adverse employment action forming
the basis of her complaint, her separation from the company occurred only after
she declined to return to work or submit the documentation required for an
extended leave. Additionally, Windstream demonstrated that its check-in policy
was a standard practice intended to facilitate efficient work assignments and
enable integrative cross-training. Windstream stated Ms. Bennett’s training
opportunities were limited only because her own time and attendance problems
created logistical difficulties. Had she arrived for daily check-in at the required
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time, she would have received the same training opportunities as all other
technicians. Windstream reported Ms. Bennett’s alleged injury to its workers’
compensation carrier and the Oklahoma Workers’ Compensation Court because it
was required to do so by Oklahoma law. And Windstream’s short-term disability
policy applies equally to all employees and serves to ensure that injured
employees do not return to work prematurely.
Ms. Bennett has failed to produce evidence that these—or any other—
explanations proffered by Windstream for its actions were merely pretextual.
Although we must construe all facts favorably to Ms. Bennett, Curtis, 147 F.3d at
1214, in evaluating alleged pretext we must consider the facts as they appeared to
the decision-makers, Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th
Cir. 2007). We will not second-guess an employer’s business judgment or replace
its opinion of best practices with either an employee’s opinion or our own.
Garrison v. Gambro, Inc., 428 F.3d 933, 938 (10th Cir. 2005). Thus, we do not
ask whether an employer’s decisions were wise or fair; we ask only “whether the
employer honestly believed its reasons and acted in good faith upon them.”
Riggs, 497 F.3d at 1118–19.
The Supreme Court has advised that, in determining whether evidence of
pretext can permit an inference of discrimination and avoid summary judgment,
relevant factors include “the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false, and any
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other evidence that supports the employer’s case and that properly may be
considered.” Reeves, 530 U.S. at 148–49. As discussed above, Ms. Bennett has
failed to establish a prima facie case, and she has presented no evidence that the
reasons underlying Windstream’s policies and decisions are false. She highlights
that pretext can be shown by evidence of differential treatment of similarly
situated employees or procedural irregularities, Aplt. Br. 22, but she points to
evidence of neither.
In short, Ms. Bennett has demonstrated that Windstream’s new policies led
to a difficult employment situation for her, in stark contrast to the favorable
conditions she had enjoyed under different supervision for the previous twelve
years. Yet, she has failed to produce any evidence, either direct or circumstantial,
that these policies reflect discrimination on the basis of gender or age.
II.
Title VII Retaliation Claim
Ms. Bennett next asserts a claim of retaliation in violation of Title VII.
Title VII prohibits retaliation against an employee who has “opposed” any
practice made unlawful by Title VII, or who has “participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). Title VII retaliation claims require an employee to demonstrate that, but for
her protected activity, she would not have faced the alleged adverse employment
action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). In
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accordance with our analysis above, we conclude that Ms. Bennett cannot meet
this burden.
III.
OADA Claim
Ms. Bennett also asserts a claim of gender and age discrimination under the
Oklahoma Antidiscrimination Act (OADA). Okla. Stat. Ann. tit. 25, § 1302. The
OADA makes it unlawful for an employer to “fail or refuse to hire, to discharge,
or otherwise to discriminate against an individual with respect to compensation or
the terms, conditions, privileges or responsibilities of employment” because of
sex or age. Id. § 1302(A)(1). The statute allows a defending party to “allege any
defense that is available under Title VII of the Civil Rights Act of 1964 [or] the
Age Discrimination in Employment Act.” Id. § 1350(F). Along with her Title
VII and ADEA discrimination claims, Ms. Bennett’s OADA claim fails for the
reasons outlined above.
IV.
Constructive Discharge Claim
Finally, Ms. Bennett asserts a separate claim of constructive discharge in
violation of Title VII and the public policy of Oklahoma. We agree with the
district court that, to the extent her claim is based on a violation of Oklahoma
public policy, such claims are no longer viable. Id. § 1101(A) (stating the OADA
provides exclusive remedies under Oklahoma law for individuals alleging sex or
age discrimination in employment). Under federal law, “[c]onstructive discharge
occurs when the employer by its illegal discriminatory acts has made working
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conditions so difficult that a reasonable person in the employee’s position would
feel compelled to resign.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th
Cir. 1998) (quoting Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986)).
To establish constructive discharge, a plaintiff must show that “she had no other
choice but to quit.” Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1325
(10th Cir. 2004). We apply an objective standard: “The conditions of
employment must be objectively intolerable; the plaintiff’s subjective views of
the situation are irrelevant.” Sanchez, 164 F.3d at 534.
Ms. Bennett’s constructive discharge claim fails. For the reasons outlined
in the preceding sections, Ms. Bennett has shown neither that Windstream
engaged in any illegal discriminatory conduct, nor that such conduct was so
extreme that she had no realistic option but to resign.
AFFIRMED.
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