Tilmon v. Polo Ralph Lauren Factory Store

Filing 64

MEMORANDUM AND ORDER granting 56 Defendant's Motion for Summary Judgment. Signed by Chief District Judge Julie A. Robinson on 05/14/2019. Mailed to pro se party Melba A. Tilmon by regular mail. (tvn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELBA A. TILMON,
Plaintiff,
Case No. 17-2383-JAR

v.
RALPH LAUREN RETAIL, INC.,
Defendant.

MELBA A. TILMON,
Case No. 17-2396-JAR

Plaintiff,
v.
RALPH LAUREN RETAIL, INC.,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Melba Tilmon, proceeding pro se, filed these actions alleging discrimination and
retaliation against her employer, Ralph Lauren Retail, Inc., under Title VII of the Civil Rights
Act of 1964,1 and the Age Discrimination in Employment Act of 1967 (“ADEA”).2 The cases
were consolidated on June 4, 2018, because Plaintiff’s claims stemmed from a common nucleus
of operative facts.3 The consolidated action is before the Court on Defendant’s Motion for
Summary Judgment (Doc. 56). The motion is fully briefed, and the Court is prepared to rule. As
explained more fully below, the Court grants Defendant’s motion for summary judgment.

1

42 U.S.C. §§ 2000e–2000e-17.

2

29 U.S.C. §§ 621–634.

3

Doc. 32.

I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is no

genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.4 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.5 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”6 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”7 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”8
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.9 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.10

4

Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

5

City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

6

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

7

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
8

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
9

Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
10
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at
671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010).

2

Once the movant has met this initial burden, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.”11 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.12 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”13 To accomplish this, the facts “must be
identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated
therein.”14 Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge
and shall set forth such facts as would be admissible in evidence.15 The non-moving party
cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by
specific facts, or speculation.16
Where the defendant seeks summary judgment on an affirmative defense:
The defendant . . . must demonstrate that no disputed material fact
exists regarding the affirmative defense asserted. If the defendant
meets this initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact. If the plaintiff
fails to make such a showing, the affirmative defense bars his
claim, and the defendant is then entitled to summary judgment as a
matter of law.17

11

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
12

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

13

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at
671); see Kannady, 590 F.3d at 1169.
14

Adams, 233 F.3d at 1246.

15

Fed. R. Civ. P. 56(c)(4).

16

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
17
Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quoting Hutchinson v. Pfeil, 105 F.3d 562,
564 (10th Cir. 1997)) (citations omitted).

3

Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”18 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”19
Because Plaintiff is a pro se litigant, the court must construe her pleadings liberally and
apply a less stringent standard than that which is applicable to attorneys.20 However, the court
may not provide additional factual allegations “to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.”21 The court need only accept as true the plaintiff’s “wellpleaded factual contentions, not h[er] conclusory allegations.”22 Additionally, a pro se litigant is
not excused from complying with the rules of the court and is subject to the consequences of
noncompliance.23
II.

Uncontroverted Facts
Most of the material facts in this matter are stipulated in the Pretrial Order. To the extent

the following facts are not stipulated, they are either uncontroverted or viewed in the light most
favorable to Plaintiff as the nonmoving party.

18

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

19

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

20

Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

21

Id.

22

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citation omitted).

23

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994) (insisting that pro se litigants follow procedural rules and citing various cases dismissing pro se
cases for failure to comply with the rules)). Defendant properly filed and served on Plaintiff a Notice to Pro Se
Litigant Who Opposes a Motion for Summary Judgment (Doc. 58) at the time it filed its motion for summary
judgment, apprising Plaintiff of the governing federal and local rules.

4

Defendant Ralph Lauren Retail, Inc. (“Ralph Lauren”) opened a Kansas City, Kansas
retail factory store in 2011. On September 11, 2011, Defendant hired Plaintiff Melba Tilmon as
a Store Supervisor; she was one of the original employees of that store. Plaintiff is an African
American female, born in 1960. Prior to joining Ralph Lauren, she had more than twenty years’
experience working in retail. Plaintiff received an overall “Achieves Expectations” performance
rating in April 2013. In April 2014, Plaintiff again received an overall “Achieves Expectations”
performance rating, but a “Below Expectations” rating in “Building Relationships.” Jill Jones
completed this performance evaluation of Plaintiff. Plaintiff does not claim that Jones
discriminated against her.
Assistant Manager Opportunities
Plaintiff applied to be an Assistant Manager at Defendant’s Kansas City, Kansas store
twice between June and November 2014. Plaintiff first applied on June 1, 2014. She
interviewed on June 17, 2014 with then-General Manager Janet Haller. Plaintiff was not hired
for the position. Ms. Haller instead hired Rebecca Perkins—a Caucasian woman under the age
of forty. Ms. Perkins was qualified for the position and had prior experience as an Assistant
Manager that Plaintiff did not have.
Plaintiff next applied for an Assistant Manager position on August 10, 2014. This time,
however, Plaintiff did not interview for the position. Ms. Haller hired Kimberly Harland—an
African American woman over the age of forty. On August 22, after learning she was not
granted an interview, Plaintiff sent an email to District Manager Winston Mays and Senior
Director of Human Resources Patricia Moffett, alleging “unfair differential treatment in a hostile
work environment.”24 She complained that her “desire to advance within the Company has been

24

Doc. 62-2 at 2.

5

met with negativity each time I have applied internally for an open position,” and that she is the
“victim of . . . bias and discrimination.”25
One month later, on October 14, Plaintiff called Defendant’s Fair Employment Practice
(“FEP”) hotline to complain about Ms. Haller’s management style and failure to promote her.
Plaintiff also submitted a written complaint. The Senior Director of the FEP Department, Ty
Ragland, investigated Plaintiff’s complaints about Ms. Haller—complaints that were similar to
complaints Plaintiff had made about Ms. Haller’s predecessor, Brian Weiss. Plaintiff claimed
that Mr. Weiss: (a) treated her differently, (b) never talked to her, (c) demonstrated inappropriate
behavior in bringing up her prior lawsuits, (d) discouraged her from applying for Assistant
Manager positions, and (e) had not spent time with her or spoke with her as he did with others.
Plaintiff does not allege, however, that Mr. Weiss discriminated against her based on any
protected status. Mr. Ragland sent Plaintiff the results of the FEP investigation on November 19,
2014, and informed her that his office was “unable to substantiate [the] allegations of unlawful
discrimination and inappropriate management behavior.”26
Another Assistant Manager position opened in November 2014. Due to the quickly
approaching holidays, Defendant did not post or interview for this position. Ms. Haller instead
hired the “runner-up” for the August Assistant Manager position—April Shea, a Caucasian
woman who was under forty years old. Plaintiff was not interested in this position because it
was for an Assistant Manager of Human Resources, whereas Plaintiff wanted to be an Assistant
Manager of Merchandising.

25

Id.

26

Doc. 57-13 at 2.

6

Performance Issues
Ms. Haller described Ms. Tilmon as “unresponsive to coaching and dismissive of
anything she has to say,”27 and her performance as “below average because she does not execute
efficiently, communicate well with others, or take feedback/coaching without getting
defensive.”28 Plaintiff’s direct supervisor April Degraffenreid stated, “[c]ommunication is the
biggest challenge that Ms. Tilmon faces” and that
Ms. Tilmon comes to work and does not communicate with the
store management team, rather she will come in and just to a
particular spot in the store and begin working in that area. When
managers try to communicat[e] with her there is a lot of resistance
or she will just blatantly ignore. She will keep herself busy
completing tasks that need to be completed, but will not check in
to see what the agenda for the day may be.29
On February 5, 2015, Defendant placed Plaintiff on a Performance Improvement Plan
(“PIP”), which was signed by Ms. Haller, Ms. Degraffenreid, and Plaintiff. The PIP required
Plaintiff to improve in three areas: (1) nurturing customer relationship and partnerships; (2)
fostering open communications with others in the company; and (3) building relationships.
Among the problems listed under item 2 are: “Melba has a difficult time taking direction from
the leadership team and being redirected in her focus,” and “Melba struggles with change and
isn’t open to feedback to improve her performance.”30 Plaintiff disagreed with the substance of
the PIP and sent Ms. Haller a letter rebutting the alleged performance issues. She explicitly
refused to make any adjustments to her behavior and how she handled her supervisor role,
especially as to Ms. Haller.

27

Doc. 54 at 4 ¶ 32.

28

Id. ¶ 33.

29

Id. ¶ 34.

30

Doc. 57-8 at 2.

7

On March 9, 2015, Plaintiff received a follow-up Written Performance Discussion from
Ms. Degraffenreid, indicating that Plaintiff’s performance had not adequately improved since the
PIP was issued. Plaintiff again disagreed with the substance of the document, and again sent Ms.
Haller a letter rebutting the alleged performance issues.
On April 9, 2015, Defendant’s Kansas City store received an email from the manager of
Sales Audit/Finance, stating there had been a shortage error on March 28. Ms. Haller responded
to the email that Plaintiff did not follow procedure. It was Ms. Haller’s task to investigate the
shortage, and as part of the investigation Ms. Haller spoke with Plaintiff and Ms. Perkins,
because they were the two members of management who closed the store on March 28. In April
2015, Ms. Tilmon received an overall rating of “Below Expectations” on her annual appraisal.
Plaintiff indicated below her signature that she did not agree with the assessment.
On April 10, 2015, Plaintiff received a Final Written Warning on her PIP. This document
again indicated that Plaintiff had not made adequate progress since the PIP’s issuance, and that
the next step would be termination. Again, Plaintiff disagreed with the substance of the
document, and again she sent Ms. Haller a letter rebutting the alleged performance issues.
On June 15, 2015, Ms. Haller took a picture with the store iPad of merchandise Plaintiff
had brought out. Ms. Haller captioned the photo “Leftover product” and sent it to her personal
email. Ms. Haller often took pictures with the store iPad to help coach employees, including
both Caucasian and minority employees. As the General Manager of Defendant’s Kansas City
store, Ms. Haller was responsible for the overall operations of the store, including ensuring that
all employees were doing their jobs and complying with Defendant’s policies.
On July 7, 2015, the Regional Manager, the Senior Director of Human Resources, and the
District Manager all visited the store to conduct interviews with the staff about the atmosphere of

8

the store. Plaintiff was called to the office and questioned about a May 20, 2015 shoplifting
incident. On that day, two suspected shoplifters left Defendant’s Kansas City store. Defendant’s
Suspected Shoplifter Response Policy states: “NEVER leave the building to follow a suspected
shoplifter; do NOT chase or attempt to run after a suspected shoplifter; stay in the building.”31
Despite this policy, Plaintiff exited the store after two suspected shoplifters had left. Plaintiff,
however, stated that she was not following the shoplifters, but instead going to retrieve the
merchandise.
The Senior Director of Human Resources told Plaintiff that leaving the building during a
shoplifting incident was against company policy. Plaintiff explained that she had not pursued the
shoplifters but had simply “reacted to a customer stating that the merchandise was dropped
outside the store.”32 Plaintiff was asked to write a statement regarding the incident. On July 30,
Plaintiff was called back to the office. There, the Senior Director of Human Resources informed
her that the company had concluded that she had indeed violated company policy by stepping
outside the store. The Senior Director also informed Plaintiff that if it happened again it would
be grounds for termination.
On July 31, 2015, Ms. Haller called Plaintiff to the office and questioned her about a July
11 employee transaction. During Plaintiff’s shift that day, an employee had worn a shirt before
purchasing it. Employees are required to pay for items before using them, including before
wearing any clothing. Plaintiff explained that she knew the employee had not purchased the shirt
before putting it on, but that she took the tag from the item and placed it on her register. Because
a line of customers had formed, Plaintiff first checked out the customers and then proceeded to

31

Doc. 54 at 5.

32

Doc. 57-2 at 3.

9

sell the employee the shirt. Plaintiff then told Ms. Haller that she was upset about the monitoring
of her actions, and that she believed her persecution was unacceptable and would no longer be
tolerated. Plaintiff also told Ms. Haller that if the Defendant continued to ignore Ms. Haller’s
behavior and differential treatment of Plaintiff, then she would take her concerns outside of the
company.
Plaintiff understood that failing to complete the PIP successfully would result in the
termination of her employment. Nonetheless, despite the written warning in April 2015,
Defendant did not terminate Plaintiff once the PIP was “complete.” Plaintiff continues to work
for Ralph Lauren at the Kansas City, Kansas store.
Scheduling
On April 11, 2015, Plaintiff requested to take four hours of Family and Medical Leave
Act (“FMLA”) leave. Plaintiff followed proper procedure but was not paid for those hours until
inquiring about it to corporate payroll and Ms. Haller. Ms. Haller said the failure to pay for the
time was an oversight and that she would correct the error. The missing pay indeed came in the
next pay period.
Ms. Tilmon’s schedule reflects regular days off.
Administrative Charges
Plaintiff filed three administrative charges with the Kansas Human Rights Commission
against Defendant on April 3, 2015, February 3, 2016, and June 27, 2016. She has received right
to sue letters on the charges contained therein.

10

III.

Discussion
Plaintiff asserts discrimination and retaliation claims under Title VII and the ADEA.33 In

the Pretrial Order, Plaintiff alleges three discrete acts of discrimination based on race and age:
(1) failure to promote; (2) placement on the PIP; and (3) unsatisfactory ratings. Plaintiff alleges
retaliation “for filing a Charge of Discrimination” . . . including “non equity in scheduling, work
ethics and tasks were inconsistently scrutinized,” and “lack of communication or refusal to
resolve concerns.”34 The Court first considers Defendant’s affirmative defense that Plaintiff
failed to exhaust administrative remedies on all failure-to-promote claims, except for the
Assistant Manager position in November 2014. The Court next considers the merits of
Plaintiff’s exhausted claims.
A.

Administrative Exhaustion

Title VII and the ADEA both require exhaustion of administrative remedies.35 Failure to
exhaust administrative remedies is an affirmative defense.36 To exhaust administrative remedies,
a plaintiff must file an administrative charge with either the EEOC or an authorized state agency
and receive a right-to-sue letter based on that charge.37 The Court must liberally construe the
administrative charge to determine whether a particular claim has been exhausted.38 The inquiry
“is limited to the scope of the administrative investigation that can reasonably be expected to

33

Doc. 54 at 10.

34

Id. at 9.

35
42 U.S.C. § 2000e-5; Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 n.1 (10th Cir. 2004) (noting
administrative exhaustion requirement is the same for ADEA cases as Title VII cases).
36

See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018).

37

See 42 U.S.C. § 2000e(5)(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

38
Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018); Jones v. UPS, 502 F.3d 1176,
1186 (10th Cir. 2007).

11

follow from the discriminatory acts alleged in the administrative charge.”39 Potential claims are
limited in that “each discrete incident of [discriminatory or retaliatory treatment] constitutes its
own ‘unlawful employment practice’ for which administrative remedies must be exhausted.”40
Defendant argues that Plaintiff failed to exhaust her failure-to-promote claim except with
respect to the November 2014 position discussed in her first charge. Plaintiff’s April 3, 2015
Charge alleges discrimination between May 22, 2014 to March 9, 2015. The only reference to a
promotion in that charge states: “On November 17, 2014, I was denied the opportunity to apply
for an Assistant Manager position.”41 Neither the second nor the third charge contain allegations
related to promotions. The Court finds that Defendant has met its burden of demonstrating as a
matter of law that Plaintiff failed to administratively exhaust all non-promotion claims except for
the Assistant Manager position that became available in November 2014. Plaintiff does not
address this issue in her response to summary judgment. The Court therefore grants Defendant’s
motion for summary judgment on its affirmative defense that Plaintiff’s failure-to-promote
claims, except for the claim arising out of the November 2014 Assistant Manager position, were
not administratively exhausted.
B.

Merits of Exhausted Claims

Plaintiff’s remaining discrimination and retaliation claims must be decided under the
familiar McDonnell Douglas Corp. v. Green42 burden-shifting framework because Plaintiff relies
on circumstantial evidence.43 Under McDonnell Douglas, plaintiff initially bears the burden of

39

UPS, 502 F.3d at 1186 (emphasis in original); Jones v. Wichita State Univ., 528 F. Supp. 2d 1222, 1237
(D. Kan. 2007).
40

Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Morgan, 536 U.S. at 110–13).

41

Doc. 57-1 at 3.

42

411 U.S. 792, 802–05 (1973).

43

See, e.g., Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).

12

production to establish a prima facie case of discrimination or retaliation.44 The burden of
establishing the prima facie case is “not onerous.”45 If plaintiff establishes a prima facie case,
the burden shifts to defendant to articulate a facially nondiscriminatory reason for its actions.46
If defendant articulates a legitimate, nondiscriminatory reason for its decision, the burden shifts
back to plaintiff to present evidence from which a jury might conclude that defendant’s proffered
reason is pretextual, that is, “unworthy of belief.”47 Typically, a plaintiff attempts to demonstrate
pretext in one or more of three ways:
(1) “evidence that the defendant’s stated reason for the adverse
employment action was false”; (2) “evidence that the defendant
acted contrary to a written . . . policy prescribing the action to be
taken by the defendant under the circumstances”; or (3) “evidence
that the defendant acted contrary to an unwritten policy or contrary
to [the employer’s] practice when making the adverse employment
decision affecting the plaintiff.” Regardless of which methods the
plaintiff uses, “[t]he relevant inquiry is not whether the employer’s
proffered reasons were wise, fair or correct, but whether it honestly
believed those reasons and acted in good faith upon those
beliefs.”48
Despite the shifting framework, the ultimate burden of persuasion remains with the plaintiff.49

44

McDonnell Douglas Corp., 411 U.S. at 802.

45

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 238, 253 (1981).

46

Id.; Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007).

47

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting Randle v. City of Aurora, 69
F.3d 441, 451 (10th Cir. 1995)).
48

Macon v. United Parcel Serv., Inc., 743 F.3d 708, 714 (10th Cir. 2014) (quoting Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000); Rivera v. City & Cty. of Denver, 365 F.3d 912, 925 (10th
Cir. 2004)) (citations omitted).
49

Richardson v. Blue Cross/Blue Shield of Kan., Inc., 196 F. Supp. 2d 1174, 1181 (D. Kan. 2002).

13

1.

Discrimination
a.

Failure-to-Promote

As discussed above, Plaintiff only exhausted her failure-to-promote claim as to the
November 2014 Assistant Manager position, therefore, the Court confines its analysis to that
promotion. To establish a prima facie case of discrimination based on failure-to-promote,
Plaintiff must demonstrate “(1) she was a member of a protected class; (2) she applied for and
was qualified for the position; (3) despite being qualified she was rejected; and (4) after she was
rejected, the position was filled.”50
Defendant argues that Plaintiff neither applied for nor was rejected from the November
2014 position. Defendant did not post or interview for the position due to the quickly
approaching holiday season, therefore, its hiring decision affected all employees equally.
Moreover, Defendant points out that Plaintiff did not want the November position because it was
in Human Resources, rather than Merchandising. Although the stipulated facts demonstrate that
Plaintiff did not want to fill the November 2014 Assistant Manager position, she did apply for
the previous Assistant Manager position, and it was from that pool of applicants that Ms. Haller
made her hiring decision. Because the prima face stage of the McDonnell-Douglas framework is
not onerous, the Court finds that Plaintiff has met her burden of production that she applied for
and was rejected from this promotion opportunity. There is no dispute that she is a member of a
protected class, and that the position was filled.
Defendant articulates a nondiscriminatory reason for not promoting Plaintiff in
November 2014: it opted not to post or interview for the position, and instead hired the runner-up

50
Salemi v. Colo. Pub. Emps. Ret. Ass’n, 747 F. App’x 675, 690 (10th Cir. 2018) (quoting Jones v.
Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003)).

14

for the August 2014 position due to the holiday season quickly approaching. Therefore, the
burden shifts to Plaintiff to show that this proffered reason for Defendant’s decision was pretext
for discrimination. Plaintiff argues that Defendant’s reasons for not promoting her are varied
and inconsistent. But Defendant only offers one explanation for failing to promote Plaintiff in
November 2014—that it did not post the position or conduct separate interviews due to the
impending holidays. Defendant’s explanation as to this promotion decision is consistent
throughout the record. Moreover, the decision to not post the job affected all employees,
regardless of whether they did or did not belong to Plaintiff’s protected classes. Finally, it is
uncontroverted that Plaintiff was uninterested in this particular promotion. Therefore, Plaintiff
has not created a genuine issue of fact that Defendant’s explanation for not promoting her in
November 2014 was pretext for race or age discrimination and summary judgment is granted in
favor of Defendant on this claim.
b.

PIP and Unsatisfactory Ratings

Plaintiff may establish a prima facie case on her remaining discrimination claims by
demonstrating (1) membership in protected class; (2) an adverse employment action; and (3) the
adverse employment action occurred under circumstances giving rise to an inference of
discrimination.51
The Court assumes for purposes of its summary judgment analysis that Plaintiff can
establish a prima facie case of discrimination under both theories. Defendant offers a legitimate,
nondiscriminatory reason for placing Plaintiff on a PIP in 2015—that she needed to improve in
the three areas identified in the PIP: (1) nurturing customer relationship and partnerships; (2)

51
EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 & n.5 (10th Cir. 2007) (discussing how elements of prima
facie case in discrimination cases vary depending on context).

15

fostering open communications with others in the company; and (3) building relationships. As to
the “Below Expectations” rating for the 2015 fiscal year, Defendant asserts that this rating was
the result of Plaintiff’s communication problems during 2015, and her failure to adequately
improve while on the PIP. Defendant asserts that Plaintiff’s difficulty with communication
persisted into 2015, and that the two decisionmakers responsible for enacting Plaintiff’s PIP—
Ms. Haller and Ms. Degraffenreid—believed that Plaintiff needed improvement in her
communication with management.
Plaintiff argues that Defendant’s proffered reasons for the PIP and negative appraisals are
pretextual. First, Plaintiff asserts that the stated reasons for the negative performance documents
are false because they followed a string of positive annual appraisals by Defendant. But Plaintiff
received a rating of “Below Expectations” in the “Building Relationships” category for her 2014
appraisal—a rating that Plaintiff does not attribute to discriminatory motive. Moreover, the
comments about Plaintiff’s struggle to build relationships in the 2014 appraisal are consistent
with the relationship building criticisms in the 2015 documents. Finally, even if the reviews
were inconsistent, it would not demonstrate pretext because “successful past performance does
not support the conclusion that subsequent negative evaluations are pretextual.”52
Next, Plaintiff points to statements made by her prior supervisor and some of her
coworkers that they never had difficulties communicating with Plaintiff.53 Assuming these
statements are admissible, they do not show that the decisionmakers responsible for the PIP and
2015 appraisal did not have an honest belief that Plaintiff struggled to communicate with
management. Ms. Haller and Ms. Degraffenreid both stated that Plaintiff did not communicate

52

Drury v. BNSF Ry. Co., 657 F. App’x 785, 791 (10th Cir. 2016).

53
The Court notes the stipulated fact that Plaintiff lodged similar complaints against her prior supervisor,
Mr. Weiss, that she lodges in this case against Ms. Haller.

16

well with management, and that she resisted feedback and coaching. Plaintiff has offered no
evidence that suggests these statements were not honestly held by Ms. Haller and Ms.
Degraffenreid. In considering pretext, the Court must “examine the facts as they appear to the
person making the decision[,] not the plaintiff’s subjective evaluation of the situation.”54
Plaintiff has failed to demonstrate that either the PIP or the 2015 yearly appraisal were motivated
by anything other than a sincerely held belief that she was underachieving in her work.
Without any evidence that would allow an inference that Defendant’s proffered reasons
for placing Plaintiff on a PIP and giving her a negative performance appraisal were pretextual,
these discrimination claims do not survive summary judgment.
2.

Retaliation
a.

Waiver

Plaintiff alleged in the Pretrial Order that Defendant retaliated against her for filing a
charge of discrimination by “non equity in scheduling, work ethics and tasks [that] were
inconsistently scrutinized,” and “lack of communication or refusal to resolve concerns.”55 In the
response to summary judgment, Plaintiff claims that she was retaliated against for sending her
August 22, 2014 email complaint to Human Resources and the District Manager in the following
ways:
(1) bullying, (2) false accusations of sales auditor errors, (3)
monitoring transactions, (4) scrutiny of work photos, (5) shoplifter
apprehension policy, (6) unfavorable job reviews, (7) adverse work
scheduling, (8) papering her files, (9) no pay raise in four years,
(10) a failure to promote, (11) negative appraisals, and (12) a
performance improvement plan.56

54

Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (quoting Luster v. Vilsack, 667 F.3d
1089, 1092 (10th Cir. 2011)).
55

Doc. 54 at 9.

56

Doc. 62 at 8–9.

17

Defendant argues that Plaintiff is bound by the claim as alleged in the Pretrial Order, and
therefore may not expand her claim in response to summary judgment to include actions taken in
response to her August 22, 2014 email. The Court agrees. The Pretrial Order “controls the
course of the action unless the court modifies it.”57 “Claims, issues, defenses, or theories of
damages not included in the pretrial order are waived.”58 It is true that the Pretrial Order should
be “‘liberally construed to cover any of the legal or factual theories that might be embraced by
their language.’ But the primary purpose of pretrial orders is to avoid surprise by requiring
parties to ‘fully and fairly disclose their views as to what the real issues of the trial will be.’”59
Plaintiff may not change her retaliation claim in her response to summary judgment,
therefore, the Court considers the claim as it was alleged in the Pretrial Order: that Defendant
retaliated against her for filing a charge of discrimination by imposing inequitable scheduling
and work ethics, by inconsistently scrutinizing her work, and by failing to communicate with her
to resolve concerns. Several of the following actions can be liberally construed as contained
within Pretrial Order allegations: bullying, false accusations of sales auditor errors, monitoring
transactions, scrutiny of work photos, shoplifter apprehension policy, adverse work scheduling,
and papering her files. But Plaintiff waived the claims she asserts for the first time in her
response to summary judgment that the retaliation was in response to her email, and that the
following materially adverse actions were caused by her protected activity: unfavorable job
reviews and appraisals, lack of a pay raise, failure to promote, and placement on the PIP.

57

Fed. R. Civ. P. 16(d).

58

Zenith Petroleum Corp. v. Steerman, 656 F. App’x 885, 887 (10th Cir. 2016) (quoting Cortez v. Wal-Mart
Stores, Inc., 460 F.3d 1268, 1276–77 (10th Cir. 2006)).
59

Id. (quoting Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir. 1979), and Cortez, 460 F.3d at

1276).

18

b.

Prima Facie Case

Plaintiff may establish a prima facie case of retaliation on the claims she has not waived
by demonstrating that “(1) . . . she engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action materially
adverse, and (3) a causal connection existed between the protected activity and the materially
adverse action.”60
Defendant does not contest that Plaintiff engaged in protected opposition to
discrimination by filing her administrative charge. Instead, Defendant argues that Plaintiff did
not suffer a materially adverse employment action. “To qualify as an adverse employment
action . . . an ‘employer’s actions must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.’”61 “Such actions are
not simply limited to monetary losses in the form of wages or benefits. Instead, [courts] take a
case-by-case approach, examining the unique factors relevant to the situation at hand.”62
“[W]hile the standard is sensitive to the particular circumstances of each case, it prescribes an
objective inquiry that does not turn on a plaintiff's personal feelings about those
circumstances.”63 “Each case is ‘judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.’”64

60

Payan v. UPS, 905 F.3d 1162, 1172 (10th Cir. 2018) (quoting Hinds v. Sprint/United Mgmt. Co., 523
F.3d 1187, 1202 (10th Cir. 2008)).
61

Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).

62

Id. (Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004)).

63

Turrentine v. UPS, 645 F. Supp. 2d 976, 989 (D. Kan. 2009) (quoting Semsroth v. City of Wichita, 555
F.3d 1182, 1184 (10th Cir. 2009)).
64

Id. (quoting Semsroth, 555 F.3d at 1184).

19

The employment actions Plaintiff identifies in the Pretrial Order are not materially
adverse under this objective standard. Plaintiff alleges inequitable treatment but does not specify
how the scrutiny over her work, “work ethics,” or her hours compared with other similarly
situated employees. Nor does Plaintiff explain when or about what issues Defendant failed to
communicate with her. Without evidence describing the circumstances of the alleged adverse
employment actions, it is impossible for the Court to determine whether they were materially
adverse under the governing standards.
Plaintiff identifies more specific adverse employment actions in her response to summary
judgment: false accusations of sales auditor errors, monitoring her transactions, scrutiny of work
photos, applying the shoplifter apprehension policy, adverse work scheduling, and “papering her
files.” But Plaintiff does not submit evidence to create a genuine issue of material fact that these
actions would dissuade a reasonable worker from making or supporting a charge of
discrimination. The stipulated facts add important context to each of these complaints. As to
the cash shortage issue, the parties stipulated that Ms. Haller addressed the issue with both
Plaintiff and the other management employee present at the time of closing. As to Ms. Haller
taking photos of Plaintiff’s work, the parties stipulated that Ms. Haller used iPad photos to coach
other employees too. Defendant followed its written shoplifting and employee purchase policies
after Plaintiff violated them. And there was no evidence of disciplinary action taken, even
though Plaintiff was subject to the PIP at the time she was counseled on these issues. The Court
finds that under the circumstances of this case none of these actions were materially adverse.65

65

See Winston v. Ross, 725 F. App’x 659, 666 (10th Cir. 2018) (finding Plaintiff did not show that
additional scrutiny of work performance was materially adverse); Keller v. Crown Cork & Seal USA, Inc., 491 F.
App’x 908, 914 (10th Cir. 2012) (finding general complaints “about strict application of policies, increased
supervision, write-ups, means and methods of communication with her supervisors, and restrictions on her
employment relationships . . . are in the nature of ordinary workplace tribulations; they do not rise to materially
adverse actions sufficient to support a claim of retaliation”).

20

The Supreme Court has held that schedule changes can sometimes amount to a materially
adverse action depending on the context.66 Where an employer seeks to “‘exploit a known
vulnerability’ . . . in a way that causes an actionable loss,” it may dissuade a reasonable worker
from pursing a charge of discrimination.67 For example, where the employer is aware that an
employee, as a single parent, must get children to work in the morning yet schedules a start time
that would be a hardship given that fact, a reasonable jury could conclude that the action was
materially adverse.68 Here, Plaintiff fails to provide any context for her claim that Defendant
engaged in “adverse” or “inequitable” scheduling. She provides no information about how her
schedule compared to other, similarly-situated employees. Nor does she provide any information
that would allow the Court to infer that Defendant “exploited a known vulnerability” that caused
Plaintiff to suffer a loss associated with her scheduled hours. It was stipulated that Plaintiff was
given regular days off, and that when there was a pay issue tied to her FMLA leave, it was
corrected on the following paycheck.69 Under the circumstances of this case, Defendant’s
adverse and inequitable scheduling decisions would not have dissuaded a reasonable employee
from pursuing a charge of discrimination. Thus, Plaintiff has not met her initial burden under
McDonnell Douglas of demonstrating a prima face case of retaliation.

66

Burlington N., 548 U.S. at 69.

67

Turrentine, 645 F. Supp. 2d at 990 (quoting Washington v. Ill. Dep’t of Rev., 420 F.3d 658, 662–63 (7th
Cir. 2005)).
68

Id.

69

In her administrative charge, Plaintiff alleged the loss of vacation time after her requested dates were
denied. Plaintiff does not mention this grievance in either the Pretrial Order or the response to summary judgment.
It is therefore waived. See Zenith Petroleum Corp. v. Steerman, 656 F. App’x 885, 887 (10th Cir. 2016) (quoting
Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1276–77 (10th Cir. 2006)); Coffey v. Healthtrust, Inc., 955 F.2d
1388, 1393 (10th Cir. 1992).

21

c.

Pretext

Assuming Plaintiff could demonstrate a prima facie case of retaliation, the burden would
shift to Defendant to articulate a legitimate nonretaliatory reason for those materially adverse
actions. Defendant has articulated nonretaliatory reasons for the adverse employment actions, as
described above. Plaintiff therefore must show that these reasons are pretext for retaliation on
the basis of her age or race. She offers the same arguments to support pretext on her retaliation
claims as she offers on the discrimination claims—that Defendant’s explanations for its decisions
keep changing, and that her former coworkers disagree with Defendant’s treatment of Plaintiff.
For the same reasons explained on the discrimination claims, Plaintiff does not meet her burden
to show that Defendant’s stated reasons for the retaliation are a pretext for retaliation.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion for
Summary Judgment (Doc. 56) is granted.
IT IS SO ORDERED.
Dated: May 14, 2019
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

22