Forrester v. Apex Remington, Inc.

Filing 47

OPINION AND ORDER by Judge Claire V Eagan ; granting 16 Motion for Summary Judgment; finding as moot 18 Motion in Limine; finding as moot 19 Motion in Limine (Re: State Court Petition/Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

ANGELA FORRESTER,

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Plaintiff,
v.
APEX REMINGTON, INC., d/b/a Apex
Remington Pipe & Supply Co.,
Defendant.

Case No. 14-CV-0306-CVE-PJC

OPINION AND ORDER
Before the Court is the motion for summary judgment (Dkt. # 16) of defendant Apex
Remington, Inc. (Remington). Pursuant to Fed. R. Civ. P. 56, Remington argues that summary
judgment is appropriate because plaintiff’s claims for gender discrimination under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Oklahoma AntiDiscrimination Act (OADA), OKLA. STAT. tit. 25, § 1301 et seq., are not supported by evidence and
because plaintiff cannot prove all essential elements of her claim for intentional infliction of
emotional distress. Dkt. # 16. Plaintiff responds that genuine disputes as to material facts exist to
preclude summary judgment on her gender discrimination claims, but she agrees that summary
judgment is appropriate on her intentional infliction of emotional distress claim. Dkt. # 24.
Remington has filed a reply. Dkt. # 30. The Court grants summary judgment in favor of Remington
on plaintiff’s intentional infliction of emotional distress claim.
I.
In 2008, Colby Forrester (Forrester), who is plaintiff’s husband, and Calvin Cannon founded
Remington, which supplies products used in oil fields. Dkt. # 16-1, at 2. The enterprise grew
quickly, and later that year plaintiff began working at Remington. Dkt. # 16-2, at 4. Prior to working

at Remington, plaintiff had been a stay-at-home mother, a clerical worker at a law firm, a
correctional officer, an optometry assistant, and a retail employee. Id. at 4-7. She had a GED and
had taken some college classes, but she did not earn a degree. Id. at 3. Initially, plaintiff served as
Remington’s receptionist, but she gradually took on greater responsibilities, including office
manager, corporate secretary, and finally director of the human resources and accounting
departments. Dkt. # 16-1, at 7-8, 11. While at Remington, plaintiff attended several seminars on
topics related to human resources. Dkt. # 16-2, at 3.
In October 2009, Apex Distribution purchased Remington, but it left the management
structure unchanged. Dkt. # 16-1, at 5. Remington continued to grow, opening more than fifty stores
and warehouses in numerous states and employing more than eighty people. Id. at 11, 26. Forrester
determined the pay and bonuses due to most Remington employees, including plaintiff, Cannon, and
himself. Id. at 15. Although plaintiff was initially unpaid, she quickly became a salaried employee;
in 2011, plaintiff received a $66,980 salary, and her salary increased to $90,884.54 in 2012. Id. at
15-16, 19. During this time, some Remington employees, whom plaintiff identifies as predominantly
but not exclusively male, began to perceive plaintiff as having extra privileges as a result of her
relationship with Forrester.1 Dkt. # 16-2, at 13-14. Cannon, having heard similar complaints from
employees, spoke with Forrester about the perception of favoritism concerning plaintiff. Dkt. # 16-3,
at 2-3.
In August 2012, Russel Metals, Inc. (Russel) announced that it intended to purchase Apex
Distribution and, by extension, Remington. Dkt. # 16-1, at 25. As part of the acquisition, Russel

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Plaintiff states that she did not in fact have any extra privileges, but she agrees that she was
perceived as having such privileges by other Remington employees. Dkt. # 16-2, at 14.
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president Brian Hedges sent subordinates to Remington’s Tulsa office to determine what, if any,
changes would need to be made. Dkt. # 16-4, at 16. The subordinates reported complaints from
employees, leading Hedges to characterize the office as “a command and control culture led by both
[plaintiff] and [Forrester]” and a “culture . . . [that] wasn’t a healthy culture.” Id. at 10, 16. Hedges
arranged to meet with Forrester and the president of Apex Distribution in October 2012 to discuss
the terms of the acquisition. Id. at 5. At that meeting, Hedges told Forrester that plaintiff must be
terminated. Id. at 6. He specifically cited the “concentration of power” between plaintiff and
Forrester as a problem, noting that plaintiff ran several departments and answered only to Forrester.
Id.; see also Dkt. # 16-1, at 29. In his deposition, Hedges identified other bases for his decision that
he did not disclose in the meeting, including plaintiff’s lack of formal education or experience in
either human resources or accounting as well as her presence contributing to the Tulsa office’s
unhealthy culture. Dkt. # 16-4, at 6, 16. However, he stated that “[i]f the positions had been reversed
. . . we would have been requiring [Forrester] to leave the company, and [plaintiff] would have been
asked to continue with the company.” Id. at 18. In November 2012, Russel acquired Apex
Distribution and Remington. Dkt. # 16-1, at 25.
Plaintiff never spoke to Hedges. Dkt. # 16-2, at 9. She learned that she would be terminated
through conversations with Forrester, who told her that Hedges “didn’t like the fact that [she] had
the same last name as [Forrester].” Id. at 10. Plaintiff continued working at Remington for several
months after the purchase.2 Dkt. # 16-2, at 15. Plaintiff was directly involved in the hiring of Lucy
Cravens to be her replacement as the director of human resources. Dkt. # 24-4, at 9-10. Following

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The petition states that plaintiff’s employment was terminated on December 12, 2012. Dkt.
# 2-3, at 2. However, in her deposition, plaintiff admits to working for some time beyond
that date. Dkt. # 16-2, at 15. Exactly when plaintiff ceased to work at Remington is unclear.
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her termination, plaintiff applied for sales positions at area retail stores, but she has not sought any
human resources or corporate positions. Dkt. # 16-2, at 8.
At the time of plaintiff’s termination, Russel had an anti-nepotism policy in place.3 Dkt. #
24-5. The policy states that “[a]n employee’s family member may not be placed under the direct
supervision of another family member or be appraised, evaluated or have their [sic] remuneration
determined or processed by a family member.” Id. To Hedges’s knowledge, no executive at one of
Russel’s companies, other than plaintiff, has been affected by the policy. Dkt. # 16-4, at 12-13. At
least five other familial groups, one of which includes Cravens, exist that could be affected by the
policy, Dkt. # 24-7, but thus far no one within those groups, male or female, has been terminated for
violating the anti-nepotism policy.
Subsequent to her termination, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission, which issued her a notice of right to sue. Dkt. # 2-3, at 1-2.
On May 20, 2014, Plaintiff filed her petition in the district court for Tulsa County, Oklahoma. Id.
at 1. Remington timely removed to this Court, Dkt. # 2, and it now moves for summary judgment.
Dkt. # 16.
II.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

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Remington argues that the application of Russel’s anti-nepotism policy is irrelevant because
plaintiff was terminated prior to the Russel’s purchase of Remington. Dkt. # 30, at 7.
Although the decision to terminate plaintiff was made prior to the purchase, see Dkt. # 16-4,
at 5, plaintiff was not actually terminated until at least one month after the purchase was
complete. Dkt. # 16-2, at 15.
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242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
III.
Plaintiff alleges that Remington terminated her employment because she is female. Dkt. #
24, at 5. Title VII states that it is “an unlawful employment practice for an employer . . . to discharge
any individual . . . because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a). A plaintiff

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may prove gender discrimination through either direct or circumstantial evidence. See Furr v. AT&T
Techs., Inc., 824 F.2d 1537, 1549 (10th Cir. 1987). As plaintiff presents no direct evidence of
discrimination, see Dkt. # 24, at 18, the Court evaluates plaintiff’s Title VII claim according to the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
Under the McDonnell Douglas framework, the plaintiff “must carry the initial burden
under the statute of establishing a prima facie case of . . . discrimination.” Once the
plaintiff has established a prima facie case, “[t]he burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason” for its
employment action. If the defendant makes this showing, the plaintiff must then
show that the defendant’s justification is pretextual.
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (citations omitted).
Remington argues that summary judgment is appropriate because plaintiff cannot either establish
a prima facie case or show pretext. Dkt. # 16, at 19-26. Plaintiff contends that she has satisfied her
burden of establishing a prima facie case and that she has presented sufficient evidence of pretext
to preclude summary judgment. Dkt. # 24, at 18-26.
A. Prima Facie Case
“[A] plaintiff must first establish a prima facie case of discrimination by showing (1)
membership in a protected class and (2) an adverse employment action (3) that took place under
circumstances giving rise to an inference of discrimination.” Daniels v. UPS, Inc., 701 F.3d 620, 627
(10th Cir. 2012) (citing EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)); see also
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1150 (10th Cir. 2008) (“Generally
stated, a prima facie case of discriminatory discharge under Title VII requires plaintiff to
demonstrate that she (1) belongs to a protected class; (2) was qualified for her position; (3) was
discharged; and (4) her position was not eliminated after her discharge.” (citing Kendrick, 220 F.3d
at 1229)). “The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that
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the adverse employment action occurred ‘under circumstances which give rise to an inference of
unlawful discrimination.’” Kendrick, 220 F.3d at 1227 (quoting Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)). “As the very name ‘prima facie case’ suggests, there must be
at least a logical connection between each element of the prima facie case and the illegal
discrimination for which it establishes a ‘legally mandatory, rebuttable presumption.’” O’Connor
v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (quoting Burdine, 450 U.S. at 254 n.7).
Plaintiff’s burden at this stage is de minimis. Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005).
Remington argues that Adamson controls and that, under Adamson, plaintiff has not raised
even an inference of discrimination. Dkt. # 16, at 19. In that case, Mr. Adamson, who had served
as the defendant’s chief executive officer for several years, hired his wife and daughter as the
business manager and sales representative, respectively, for one of the defendant’s retail
subsidiaries. Adamson, 514 F.3d at 1140-41. All three were terminated simultaneously, with the
stated reasons being Mr. Adamson’s “unilateral management style,” his transfers of money between
the defendant and its subsidiary, and the defendant’s corporate anti-nepotism policy. Id. at 1142. The
plaintiffs brought suit under Title VII, with Mr. Adamson arguing age discrimination and reverse
gender discrimination and Mrs. and Ms. Adamson arguing gender discrimination. Id. at 1143. The
district court, presuming the existence of a prima facie case based on the familial relationship of the
parties, proceeded directly to the pretext inquiry and concluded that plaintiffs failed to demonstrate
pretext. Id. While the Tenth Circuit upheld the district court’s ultimate conclusion regarding pretext,
it found that Mrs. and Ms. Adamson had failed to establish a prima facie case of discrimination. Id.
at 1149. The circuit court stated that “[f]amilial status is not a classification based on sex any more
than is being a sibling or relative generally. It is, by definition, gender neutral.” Id. at 1148 (internal

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punctuation marks omitted). Thus, termination based on familial status “fall[s] outside the scope of
Title VII and its purpose in protecting employees against invidious discrimination on the basis of
sex.” Id. at 1149. The Tenth Circuit then reviewed the record and found that the only other evidence
presented--a single gender-neutral remark and the inconsistent application of the anti-nepotism
policy against the plaintiffs alone--did not support an inference of discrimination. Id. at 1152-53.
The record certainly supports Remington’s contention that plaintiff was terminated in part
because of her familial status and the effect of her relationship on Remington’s power structure.
Plaintiff testified that, after the meeting with Hedges, Forrester informed her that she “was being
terminated because they didn’t like the fact that I had the same last name as him.” Dkt. # 16-2, at
10. Forrester also told plaintiff that Hedges decided to fire her because he “felt there was too great
a concentration of power.” Id. at 11. When asked whether there was any other reason for her
termination, plaintiff said “I don’t know.” Id. at 23. Forrester was asked whether plaintiff’s gender
was a cause for her termination, and he answered: “No. . . . [Hedges] said we can’t have this much
control . . . in an operation, and her especially reporting to you.” Dkt. # 16-1, at 29. In his deposition,
Hedges identified plaintiff’s marital status as one of the many reasons he wanted her terminated.
Dkt. # 16-4, at 6. And in the petition’s recitation of facts, it alleges that “Defendant then terminated
Plaintiff’s employment on December 12, 2012 informing her that she was being fired because she
was married to the company’s president . . . which allegedly violated the Defendant’s anti-nepotism
policy.” Dkt. # 2-3, at 2.
Plaintiff argues that other evidence in the record, separate from her marriage, is sufficient
to give rise to an inference of discrimination, “including inherently gender biased assessments of
her leadership style and personality, disparate application of the Defendant’s nepotism policy, and

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gender-based assessments of her job qualifications.” Dkt. # 24, at 18. During his testimony, Hedges
described one of the other reasons, beyond plaintiff’s marriage, that he chose to terminate her: “They
were performance issues and other personal relationships in the company that were not seen as being
positive, that the culture there seemed to be a command and control culture led by both [plaintiff]
and [Forrester].” Dkt. # 16-4, at 10. Plaintiff argues that the use of the phrase “command and
control” to characterize her leadership style is “inherently gender biased, and clearly infer[s] a
discriminatory reason for the Plaintiff’s termination.” Dkt. # 24, at 10; see also id. at 19-20.
However, the Court finds no gender bias in the phrase. In Adamson, the defendant fired the plaintiffs
in part because they felt Mr. Adamson might “exert undue influence” over his wife and daughter,
and the plaintiffs argued that the defendant’s use of that phrase was biased and suggested a
discriminatory motive. Adamson, 514 F.3d at 1151. The Tenth Circuit “note[d] the remark is
gender-neutral on its face and will not, without more, support an inference of discriminatory intent.
. . . [A]n employee’s subjective belief in a comment’s invidious nature . . . does not support an
inference of discriminatory intent.” Id. (citations omitted). Like the phrase in Adamson, Hedges’s
use of “command and control” to describe plaintiff’s leadership style is facially gender-neutral-indeed, Hedges used the phrase to describe both plaintiff and Forrester--and plaintiff has presented
no evidence that it carries any gender-biased implication. Thus, it does not create an inference of
discriminatory intent.
Plaintiff also argues that the disparate application of Russel’s anti-nepotism policy gives rise
to an inference of gender discrimination. In Adamson, the Tenth Circuit opined: “[E]vidence that
a gender neutral anti-nepotism policy is applied in a manner that disproportionately impacts women
may give rise to an inference of sex-based discrimination without proof of discriminatory intent.”

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Id. at 1152 (citing Thomas v. Metroflight, Inc., 814 F.2d 1506, 109-10 (10th Cir. 1987)). However,
the court described a plaintiff’s burden of proof under such a theory as “onerous,” stating that “a
plaintiff must show that the ‘facially neutral standards in question selects applicants . . . in a
significantly discriminatory pattern.’” Id. (quoting Thomas, 814 F.2s at 1509). The plaintiffs in
Adamson argued that application of the policy to them, but not to either a father and son or mother
and daughter also employed by the defendant, was evidence of gender-based discrimination. Id. The
Tenth Circuit disagreed, finding that the plaintiffs’ argument “falls far short of establishing any
‘significant’ or statistically supported inference of discrimination.” Id. Here, plaintiff has identified
five other family groups among Remington’s employees to which the anti-nepotism policy could
have been but was not applied: two sisters in Tulsa;4 a father, mother, and two sons in North Dakota;
a father and son in Pennsylvania; a father and two sons in Texas; and a husband and wife in Texas.
Dkt. # 24-7. As in Adamson, plaintiff has provided no evidence that the anti-nepotism policy has
been applied in a manner that is “significantly discriminatory.” Id. The application of the antinepotism policy does not support an inference of discrimination.
Finally, plaintiff argues that she has met her burden of establishing a prima facie case
because she has presented evidence that Remington engaged in “gender-based assessments of her
job qualifications.” Dkt. # 24, at 18. Plaintiff’s confusing argument appears to be rooted in the belief
that, had plaintiff been male, she would have been offered another position within the company or
been given a different supervisor, as opposed to being terminated. See id. at 19, 21. When asked,
Hedges stated that he “had no intention” of moving plaintiff to another position, citing “the

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One of these sisters is Lucy Cravens, who now serves as Remington’s director of human
resources, the position plaintiff formerly held. Dkt. # 24-7.
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performance issues that had been identified and her overbearing mannerisms that were reported to
us. We just didn’t think she’d be healthy in the culture we wanted to create in the company.” Dkt.
# 24-3, at 3. Hedges later said that “[i]f the positions had been reversed, yes, we would have been
requiring [Forrester] to leave the company, and [plaintiff] would have been asked to continue with
the company.” Dkt. # 16-4, at 18. Plaintiff argues that Hedges’s statements show an “inherent”
gender bias, Dkt. # 24, at 19, but she presents no evidence to support her assertion. The Court sees
no gender bias in the description of plaintiff as having “overbearing mannerisms” or as being part
of an unhealthy corporate culture. Moreover, Hedges’s testimony that he would have terminated
Forrester if the roles had been reversed cuts against plaintiff’s conclusion. Absent additional
evidence, the description of plaintiff’s abilities and plaintiff’s belief that Remington would have
acted differently toward a male do not raise an inference of discrimination. See Adamson, 514 F.3d
at 1152 (“Without more, moreover, an employee’s subjective belief in a comment’s invidious nature
also does not support an inference of discriminatory intent.” (citations omitted)).
To establish a prima facie case for unlawful termination, a plaintiff must show that the
termination “took place under circumstances giving rise to an inference of discrimination.” Daniels,
701 F.3d at 627. Plaintiff has failed to show such circumstances, as her proffered arguments are
either unprotected under Title VII or show no signs of gender bias. As plaintiff cannot satisfy her
initial burden under the McDonnell Douglas framework, her Title VII claim must fail.
B. Pretext
However, even if plaintiff had met her initial burden under McDonnell Douglas, summary
judgment would remain appropriate because she has in no way demonstrated that Remington’s

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stated reasons for terminating her were pretextual.5 See Kendrick, 220 F.3d at 1226. “A plaintiff can
show pretext by revealing ‘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 . . . .’” Plotke, 405 F.3d at 1102 (quoting
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).
A plaintiff typically makes a showing of pretext in one of three ways: (1) with
evidence that the defendant’s stated reason for the adverse employment action was
false; (2) with evidence that the defendant acted contrary to a written company
policy prescribing the action to be taken by the defendant under the circumstances,
or (3) with evidence that the defendant acted contrary to an unwritten policy or
contrary to company practice when making the adverse employment decision
affecting the plaintiff.
Kendrick, 220 F.3d at 1230 (citations omitted). Evidence of pretext is not limited to these three
methods but “may also take a variety of other forms.” Swackhammer v. Sprint/United Mgmt. Co.,
493 F.3d 1160, 1168 (10th Cir. 2007). The Court must “examine the facts as they appear[ed] to the
person making the decision.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1044 (10th Cir. 2011)
(emphasis in original) (quoting Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir.
2007)).
Plaintiff first argues that she has presented evidence that Remington’s stated reason for
terminating her was false. Dkt. # 24, at 25. In Cole v. Ruidoso Municipal Schools, 43 F.3d 1373,

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Plaintiff does not contest that Remington satisfied its burden to present a legitimate,
nondiscriminatory reason for terminating her employment. See Dkt. # 24, at 23. Remington
asserts that it fired plaintiff “because of her familial relationship to the President of the
company, the improper concentration of power between the two of them, Plaintiff’s
disruptive presence in the workforce, and her lack of qualifications for the jobs assigned to
her by her husband.” Dkt. # 16, at 23. In his deposition, Hedges cited each of these issues
as part of the calculus that led to plaintiff’s termination. Dkt. # 16-4, at 6-7, 10. The Court
finds that Remington has met its burden of providing a nondiscriminatory reason for
terminating plaintiff.
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1378 (10th Cir. 1994), the defendant school district chose not to renew the plaintiff’s appointment
as middle school principal for the stated reasons that the plaintiff had been unable to resolve faculty
conflicts, which in turn had begun affecting the quality of education. However, the evidence told a
different story: previous male administrators had been unable to quell the faculty conflicts; the
plaintiff had received glowing performance reviews even while the conflicts continued; and
students’ test scores increased dramatically during the plaintiff’s tenure, despite the issues with the
school’s faculty. Id. at 1380-81. The Tenth Circuit found that this evidence raised “substantial
questions of fact whether disbelief of the proffered reason for [the plaintiff’s] nonrenewal may,
together with the elements of [the plaintiff’s] prima facie case, show intentional discrimination.” Id.
at 1381. Accordingly, the Tenth Circuit remanded the case to the district court for further
proceedings on the plaintiff’s gender discrimination claim. Id. at 1387.
Bearing in mind that the facts must be examined from the point of view of Hedges, the
decision-maker, the Court finds that plaintiff has presented no contradiction between the evidence
here and Remington’s stated reasons for terminating plaintiff. Remington asserts the following
reasons for termination: plaintiff’s marriage to Forrester, and the ensuing concentration of executive
authority; plaintiff being a “disruptive presence” within the company; and plaintiff’s lack of formal
qualifications for her positions. Dkt. # 16, at 23. It is undisputed that plaintiff and Forrester were
married and that, as president and director of human resources, they were two of Remington’s
executives. Dkt. # 24, at 5. Both Forrester and Hedges testified that, at the meeting between Hedges
and Forrester, Hedges told Forrester that the reason for plaintiff’s termination was the amount of
control over Remington that the two held. Dkt. # 16-1, at 28-29; Dkt. # 16-4, at 6-7. Hedges also
testified that he had received reports from his subordinates that plaintiff was one of the sources of

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what he considered an unhealthy corporate culture at Remington’s Tulsa office. Dkt. # 16-4, at 10,
14, 16. Hedges specifically identified plaintiff’s lack of formal education and prior experience as
being among his reasons for wanting plaintiff removed from her position. Dkt. # 16-4, at 6. It is
uncontested that plaintiff’s education was limited to a GED, a few college courses, and some
seminars on topics in the human resources field. Dkt. # 16-2, at 5-6. It is also uncontested that
plaintiff had no prior experience in human resources or accounting prior to working at Remington.
Id. at 4-7. Thus, unlike in Cole, the evidence in the record conforms to Remington’s stated reasons
for termination.
Plaintiff argues that Hedges did not “uncover[] complaints regarding the Plaintiff’s actual
job performance” and “considered the Plaintiff to be under-qualified for the job she had successfully
executed for over three years because she had previously chosen to be a stay-at-home mother.” Dkt.
# 24, at 24. However, these arguments do not show that Remington’s stated reasons for terminating
plaintiff were false. First, plaintiff points to no requirement, and the Court can find none, that would
require the decision-maker to have personally investigated the basis for terminating an employee,
rather than allowing the decision-maker to rely on the opinions of unbiased subordinates.6 Cf.
E.E.O.C. v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006) (describing the
“cat’s paw” theory of Title VII liability, where a biased subordinate deceives a decision-maker into
committing a discriminatory action). Second, Hedges specifically stated that he found plaintiff

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Plaintiff characterizes the subordinates’ opinions as being based on “inherently genderbiased water-cooler gossip and rumors.” Dkt. # 24, at 24. However, plaintiff provides no
substantiation to her assertion the “gossip and rumors” on which the subordinates allegedly
relied were biased. Merely stating that the basis for the opinions was biased is not sufficient
to preclude summary judgment. FED. R. CIV. P. 56(c)(1) (requiring factual assertions to be
supported by evidence in the record).
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lacking in formal education and prior experience, not that she was under-qualified because she had
been a stay-at-home mother. Although plaintiff argues that she has presented evidence showing that
Remington’s stated reasons for termination were false, the evidence is consistent with, rather than
contradicts, Remington’s stated reasons, and as such plaintiff’s argument does not show pretext.
Plaintiff also argues that she has made a showing of pretext sufficient to preclude summary
judgment by presenting evidence that Remington applied the anti-nepotism policy inconsistently.
Dkt. # 24, at 24. The policy states that “[a]n employee’s family member may not be placed under
the direct supervision of another family member or be appraised, evaluated or have their
remuneration determined . . . by a family member.” Dkt. # 24-5. Evidence that a defendant acted
contrary to an existing policy is one of the ways in which a plaintiff may show that a defendant’s
stated reasons for termination were a pretext for unlawful discrimination. Kendrick, 220 F.3d at
1230. It is uncontested that Forrester was plaintiff’s supervisor and that he determined her yearly
salary and bonuses. See Dkt. # 16-1, at 15-17; Dkt. # 16-2, at 16. Plaintiff points to “three other sets
of employees who were related and reporting to one another” yet who were unaffected by the policy.
Dkt. # 24, at 25. However, the sets of employees that plaintiff identified consist of two sisters, an
aunt and niece, and a father and son. See Dkt. # 24-2, at 17; Dkt. # 24-7. Such evidence does not
show that Remington has applied the policy in a manner that discriminates against women; rather,
it shows that Remington applied the policy to plaintiff alone, not to women generally. Application
of the policy is not sufficient to show that Remington’s stated reasons for terminating plaintiff were
pretextual.
Under the McDonnell Douglas framework, the burden rests with the plaintiff to show that
the defendant’s otherwise-legitimate justifications for termination were pretexts for unlawful

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discrimination. Plaintiff has failed to show that Remington’s stated reasons for termination were
false because the evidence conforms to the stated explanations, and plaintiff’s argument that
Remington applied a policy inconsistently is unavailing because nothing about the application of
the policy reveals discrimination on the basis of gender. Plaintiff has not carried her burden to
demonstrate that Remington’s stated justifications were pretextual. Because plaintiff can neither
establish a prima facie case nor show pretext, summary judgment is warranted. The Court grants
summary judgment in favor of Remington as to plaintiff’s claim for gender discrimination under
Title VII.
IV.
Plaintiff’s petition also sets forth a claim of gender discrimination under the OADA.7 Dkt.
# 2-3, at 4. Like Title VII, the OADA makes it “a discriminatory practice for an employer . . . to
discharge . . . an individual . . . because of . . . sex . . . .” OKLA. STAT. tit. 25, § 1302(A). “The Tenth
Circuit has determined that a plaintiff’s OADA claim fails if his federal discrimination claims fail.”
Broyles v. Howard-DCIII, LLC, No. 13-CV-0102-CVE-TLW, 2014 WL 347043, at *13 (N.D. Okla.
Jan. 30, 2014) (collecting cases); see also McCully v. Am. Airlines, Inc., 695 F. Supp. 2d 1225,
1246-47 (N.D. Okla. 2010) (same). Because plaintiff’s claim under Title VII fails, plaintiff’s claim
under the OADA must also fail. The Court grants summary judgment in favor of Remington on this
claim.

7

Remington addresses this claim only in footnotes in its motion for summary judgment and
reply. Dkt. # 16, at 26 n.2 (citing Hohenstein v. City of Glenpool, No. 11-CV-0559-CVEFHM, 2012 WL 1886510, at *7 (N.D. Okla. May 23, 2012)); see also Dkt. # 30, at 10 n.2.
Plaintiff does not discuss this claim at all.
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IT IS THEREFORE ORDERED that Remington’s motion for summary judgment (Dkt.
# 16) is hereby granted. A separate judgment is entered herewith.
IT IS FURTHER ORDERED that Remington’s motion in limine to exclude evidence of
certain damages (Dkt. # 18) and motion in limine to exclude evidence of emotion distress (Dkt. #
19) are hereby moot.
DATED this 1st day of April, 2015.

17