F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 VALERIE ALETTEA VANN,

               Plaintiff - Appellant,                   No. 05-5034
          v.                                          (N.D. Oklahoma)
 SOUTHWESTERN BELL                            (D.C. No. 03-CV-288-JOE-SAJ)
 TELEPHONE COMPANY,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before McCONNELL, ANDERSON, and TYMKOVICH, Circuit Judges.




      Valerie Vann, an African-American, resigned her position at Southwestern

Bell Telephone Co. after an unsuccessful attempt to transfer to a different

position in another city. She subsequently filed a claim against Southwestern Bell

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, alleging

that the company’s decision that she must return to her former position was based



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
on race discrimination and resulted in her constructive discharge. The district

court entered summary judgment on behalf of Southwestern Bell, and Vann

appealed. For the reasons set forth below, we affirm.



                                 BACKGROUND

      Vann began working in Southwestern Bell’s Wichita, Kansas, call center in

April 1997 as a residential sales service representative. As a new hire, she was

required to pass a four-month training program for the residential sales position.

After two or three years in that position, Vann transferred to a business billing

position, also in Wichita, and again went through a three- or four-month training

program. Less than a year later, Vann transferred again to a business sales

position and was required to pass a third training program focusing on business

sales. Vann passed that training program and began working in business sales in

the Wichita office in late 2000. However, after Vann had been in that position for

two or three months, Southwestern Bell merged its Wichita business sales office

into its business billing office, and Vann returned to handling primarily billing

inquiries.

      In April 2002, Vann submitted a Job Vacancy Request, asking to transfer to

Southwestern Bell’s Tulsa office for personal reasons. Specifically, Vann sought

the transfer so that she could better take care of her mother, who lived in Tulsa


                                         -2-
and had become ill. Under Southwestern Bell’s personnel policies, employees

may seek transfers for personal reasons but “may request only lateral and/or

downgraded jobs,” and, if transferred, they may not ask to return, or “retreat,” to

their former position, as would be allowed for other types of transfers.

Appellant’s App. Vol. I at 193. The policies also state that, in the case of such

transfers, “[r]elocation expenses are not applicable.” 

all transfers,

however, the company may initiate a retreat of a transferred employee “on the

basis of unsatisfactory performance in the new job” within six months of the

transfer. 

According to Southwestern Bell managers, this retreat policy

also applies to transferred employees who fail initial training requirements.

      The Job Vacancy Request form, signed by Vann, stated that she “must meet

all qualifications as indicated on the applicable job brief to be considered for

possible placement.” 

After Vann’s Request was approved, she was

informed that the Tulsa Select Business Accounts (“SBA”) department had an

open service representative position, with the same pay and benefits as the

position Vann currently held in Wichita but primarily involving sales to business

customers. The general job description for service representative indicates that

“[c]ompletion and satisfactory performance in job-related training” is a

qualification requirement and that “[i]nitial extensive classroom training” is

conducted. 

In addition, the Job Offer that Vann received indicated


                                          -3-
that the applicable training hours would be 8 a.m. to 5 p.m., Monday through

Friday. Vann agreed to accept this position and reported to work in Tulsa on

April 28, 2002.

      On her first day at the Tulsa call center, Vann was put into a training room

with other transferees, some of whom had also previously held service

representative positions, though in residential rather than business sales. Because

Vann had prior training in business sales, she had a separate discussion with the

managers, during which Vann indicated that she was not yet comfortable

explaining some of the more complex business products to customers. It was

decided that Vann would attend the same training program that the other

transferees were attending.

      In general, as had been the case with the previous training programs Vann

had attended, the transferees were required to pass the Tulsa training program,

including a number of skills demonstration tests conducted during the course of

the program, as a condition of continuing in the business sales position.

However, Vann disputes that she understood at this point that she would be

required to pass the training program. In her view, because she had already

passed a training program in business sales, she was merely sitting in on the Tulsa

training as a refresher course. The record indicates that at some point after the

skills demonstration tests began, Vann questioned why she was required to


                                         -4-
participate in the tests. At that time, Vann was told that she would be required to

pass the training program, including its series of tests.

      Vann passed the first two skills demonstration tests, which were conducted

as role plays. However, during the second of these tests, the students were given

the option of avoiding a formal test if they performed well enough in informal

role plays in class. While the formal test was accordingly waived for a majority

of the students, Vann and two others (one Caucasian and one Hispanic) were

required to take the formal test. The third test, which took place on July 2, 2002,

approximately ten weeks into the training program, involved handling live calls

from actual customers. According to Vann, the training class was surprised to be

given live calls on that day, and the students were not told that this was a test;

rather, they were told that the managers simply wanted to observe how they

handled customers. However, Vann acknowledges that, after the second live call

she handled that day, she had a meeting with managers, with a union

representative present, at which she received negative feedback on her handling

of the call, and she then “realized that this was actually a skill demo [test]” and

that if she was not “able to come back and demonstrate proper call flow, then

[she] would have been considered to have failed the training course.” 

at 346.




                                          -5-
      Following the second call, Vann was given an hour with her union

representative, who was also an experienced sales representative, to practice her

interview technique, including her use of the call flow procedure that had been

taught in the training program. This procedure involved going through a series of

steps with customers in order to reassure them that their needs could be met, to

identify those needs, and to make sales of the corresponding Southwestern Bell

products. Vann then handled a third call, in which the customer began by asking

for a specific person. That call was considered unusual, so Vann was given

another call for testing purposes. During this final call, according to the Tulsa

managers, Vann again failed to follow the proper call flow procedure and was

frustrating the customer. Another representative was told to take over the call.

Vann was then told that she had failed this test and would be retreated to her

former position in the Wichita billing office.

      Vann took a vacation day on July 3. Following the July 4 holiday, she took

an approved disability leave from July 5 through September 1, 2002. On

September 2, Vann left a voice mail message for her manager in Wichita, stating

that she was resigning from Southwestern Bell.




                                         -6-
      Thereafter, on May 1, 2003, Vann filed suit against Southwestern Bell. 1

Her complaint alleged that she had been constructively discharged on the basis of

race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2, and 42 U.S.C. § 1981, and that she had been unlawfully induced to

accept the transfer to the Tulsa position as a result of misrepresentations

concerning the conditions of employment in that position, in violation of Okla.

Stat. Ann. tit. 40, § 167. Following discovery, Southwestern Bell filed a motion

for summary judgment. In opposing summary judgment, Vann offered as

statistical evidence of discrimination the fact that, in her training course, two out

of three African-Americans failed while two out of seven Caucasians failed, and

that, in the following class, two out of two African-Americans failed while two

out of eight Caucasians failed. She also argued that Southwestern Bell had

violated EEOC regulations by destroying handwritten notes that managers had

taken during the live call demonstration tests.

      Following a hearing, the district court granted Southwestern Bell’s

summary judgment motion. In regard to Vann’s Title VII claim, the court

concluded that Vann’s resignation did not qualify as a constructive discharge, that



      1
        The record indicates that Vann filed her complaint after she had failed to
prevail in Southwestern Bell’s internal grievance process, and after she had filed
the required discrimination charge with the EEOC and received a Notice of Right
to Sue.

                                          -7-
Vann had failed to show that she had otherwise suffered an adverse employment

action, and that even assuming that Vann could prove a prima facie case of race

discrimination, Southwestern Bell had offered a legitimate nondiscriminatory

reason for its decision to retreat Vann, and Vann had “failed to offer any evidence

that would lead a reasonable person to find that the . . . reason offered by

[Southwestern Bell] was nothing more than a pretext for discrimination.” Order

at 16, Appellant’s App. Vol. II at 630. In so holding, the court ruled that

Southwestern Bell’s destruction of the notes did not violate EEOC regulations and

that Vann’s statistical evidence was not reliable. In regard to Vann’s state law

claim, the court concluded that, although Vann assumed she would not have to

pass the training program in Tulsa because of her previous training, this

assumption “w[as] not based on [Southwestern Bell]’s false representations.”

Order at 17, 

      Vann appeals the district court’s grant of summary judgment in regard to

her Title VII claim, 2 arguing that the district court erred (1) in concluding Vann

had failed to establish an adverse employment action, (2) in concluding Vann had

failed to establish constructive discharge, (3) in concluding Vann had failed to put


      2
       Vann does not specify whether her appeal also encompasses her claim
under 42 U.S.C. § 1981. Because the elements of a race discrimination claim are
the same whether the claim is brought under § 1981 or Title VII, Vann’s § 1981
claim would fail for the same reasons set forth here. Baca v. Sklar, 

, 1218 n.3 (10th Cir. 2005).

                                          -8-
forth evidence that Southwestern Bell’s proffered reasons for its actions were

pretextual, (4) in concluding that Southwestern Bell’s destruction of the notes had

not violated EEOC regulations, and (5) in failing to credit Vann’s statistical

evidence. In her briefs, Vann did not renew her arguments in regard to her state

law claim, and we therefore deem that claim waived. Douglas v. Dobbs, 

, 1100 n.2 (10th Cir. 2005) (noting appellant’s failure to raise an issue in

opening brief waives the issue), cert. denied, 

(2006).



                                    DISCUSSION

      “On appeal, we review the district court’s grant of summary judgment de

novo,” applying the same legal standard, as set forth in Fed. R. Civ. P. 56(c). Orr

v. City of Albuquerque, 

, 1148 (10th Cir. 2005). Accordingly, we

will affirm “only if the record, considered in the light most favorable to the

plaintiff, establishes no genuine issue of material fact,” and the defendant is

entitled to a judgment as a matter of law. Bastible v. Weyerhaeuser Co., 

, 1004 (10th Cir. 2006) (internal quotation omitted).

      As noted, Vann’s appeal focuses on the district court’s disposal of her Title

VII race discrimination claim. Title VII prohibits an employer from “fail[ing] or

refus[ing] to hire or . . . discharg[ing] any individual, or otherwise . . .

discriminat[ing] against any individual with respect to his compensation, terms,


                                           -9-
conditions, or privileges of employment, because of such individual’s race.” 42

U.S.C. § 2000e-2(a)(1).

      Where, as here, a plaintiff employee relies on circumstantial, rather than

direct, evidence to prove an employer has engaged in discrimination in violation

of Title VII, we evaluate the claim following the burden shifting framework of

McDonnell Douglas Corp. v. Green, 

(1973). Bryant v. Farmers Ins.

Exch., 

, 1124 (10th Cir. 2005); 

. Under

McDonnell Douglas, the plaintiff bears the initial burden of “‘establishing a

prima facie case of racial discrimination.’” Amro v. Boeing Co., 

,

796 (10th Cir. 2000) (quoting McDonnell Douglas 

). Once

a prima facie case is established, the burden “then shifts to the employer to

articulate some legitimate, nondiscriminatory reason for the adverse employment

action.” 

. If the employer succeeds in doing so, the

burden shifts back to the plaintiff to show that the employer’s proffered reason is

pretextual. Sanchez v. Denver Pub. Schs., 

, 531 (10th Cir. 1998).

      To make out a prima facie case of discrimination, a plaintiff must

demonstrate “(1) membership in a protected class, (2) adverse employment action,

and (3) disparate treatment among similarly situated employees.” 

. Here, it is undisputed that Vann is a member of a protected class.

However, as indicated above, the district court concluded that she failed to meet


                                         -10-
the second requirement of the prima facie case because she had not suffered an

adverse employment action.

      We have stated that, “[b]ecause of the remedial nature of Title VII lawsuits,

we broadly define adverse employment action.” Id.; see Stinnett v. Safeway, Inc.,

, 1217 (10th Cir. 2003) (noting that the phrase “adverse

employment action” is to be “liberally” construed). The language of Title VII

indicates that such actions involve an employer’s “fail[ure] or refus[al] to hire or

. . . discharge [of]” an individual, as well as other actions that negatively impact

an employee “with respect to his compensation, terms, conditions, or privileges of

employment.” 42 U.S.C. § 2000e-2(a)(1); see 

;

; see also White v. Burlington N. & Santa Fe Ry. Co.,

, 795 (6th Cir. 2004) (en banc), cert. granted, 

(2005).

While actions resulting in “monetary losses in the form of wages or benefits” are

most easily recognized as adverse, our analysis is not limited to financial criteria.

(internal quotation omitted). “Instead, we take a case-

by-case approach, examining the unique factors relevant to the situation at hand.”

omitted); see also Hillig v. Rumsfeld, 

, 1033

(10th Cir. 2004). However, “[a]ctions presenting nothing beyond a ‘mere

inconvenience or [an] [insignificant] alteration of responsibilities,’ . . . do not




                                          -11-
constitute adverse employment action.” 

(quoting

).

      Here, Vann argues that Southwestern Bell’s requirement that she “retreat”

to her former position in Wichita after having transferred to Tulsa, qualifies as an

adverse employment action. In the alternative, she argues that she was

constructively discharged, which, as indicated, would also qualify as an adverse

employment action for purposes of Title VII. 3




      3
        We note that Vann’s complaint failed to allege any adverse employment
action as a basis for her Title VII claim other than constructive discharge.
However, in her memo opposing summary judgment, she did raise the argument
“that a compelled relocation at the employee’s expense [was] a tangibly adverse
job action,” Appellant’s App. Vol. II at 294, and she repeated this argument at the
summary judgment hearing. In its reply memo, Southwestern Bell noted that even
if Vann “successfully proves a discriminatory retreat,” she would not be entitled
to backpay damages following her resignation unless she could prove constructive
discharge. 

n.1 (citing Derr v. Gulf Oil Corp., 

, 342 (10th
Cir. 1986)). In its order granting summary judgment, the district court ruled that
the retreat did “not qualify as an adverse employment action.” Order at 15, 

Southwestern Bell has not suggested on appeal that the argument is waived,
and has addressed the argument in its brief. In any case, because the issue of
whether Vann’s retreat qualifies as an adverse employment action was raised and
ruled on below, we will address it. Shoels v. Klebold, 

, 1062 (10th
Cir. 2004); Perington Wholesale, Inc. v. Burger King Corp., 

, 1373
(10th Cir. 1979). In her opening brief on appeal, Vann also refers to the district
court’s failure to address her “claim that she was denied a transfer to a desired
position.” Appellant’s Op. Br. at 12. Vann does not cite to anyplace in the
record where she raised this issue below, and we have been unable to locate any
mention of it. We therefore deem that argument waived. 

.

                                         -12-
1.    Was Vann’s Involuntary “Retreat” Back to Wichita an Adverse
      Employment Action?

      Vann points to our decision in Schuler v. City of Boulder, 

,

1310 (10th Cir. 1999), as setting forth the rule that any involuntary transfer may

constitute an adverse employment action. However, our analysis in Schuler was

in the context of a First Amendment retaliation claim. See 

explained

that “repercussions that would not be actionable under Title VII” may form the

basis for a First Amendment violation. 

(citing 

).

      In the Title VII context, we have held that an involuntary transfer did not

qualify as an adverse employment action where the transfer was “purely lateral,”

in that the employee’s pay, benefits, and job responsibilities remained the same,

and where the new position increased the employee’s commute “from between

five and seven minutes to between thirty and forty minutes.” 

; see also Wells v. Colo. Dep’t of Transp., 

, 1213-14 (10th

Cir. 2003) (holding plaintiff’s reassignment, where “[h]er job classification and

rate of pay remained the same, and her position was similar to those she had

occupied in prior years,” was not an adverse employment action). However, we

have reversed summary judgment where an employee submitted evidence that her

transfer “result[ed] in a significant change in responsibilities.” Stinnett, 337




                                        -13-
F.3d at 1217 (addressing transfer from a temporary data processing position back

to permanent meat packing position).

      Here, it is undisputed that the Wichita and Tulsa positions provided the

same pay and benefits and that transfers between the two positions were lateral

transfers. Moreover, Vann does not argue that the responsibilities of the Tulsa

and Wichita positions were significantly different, even though the former

involved high-end business sales and the latter involved billing queries. As Vann

did not specifically seek the business sales position in Tulsa, but had sought to

transfer to any open position in Tulsa, it is reasonable that the two lateral

positions be compared based primarily on their different locations. In keeping

with such logic, Vann focuses solely on the fact that her relocation from Tulsa to

Wichita, 177 miles away, would have been at her own expense.

      However, at the time of her retreat, Vann had been in Tulsa for only ten

weeks, and her transfer was back to a position she had previously held, at a

location where she had already lived for approximately five years. Moreover, the

record indicates that Vann had been renting in Wichita and living in her mother’s

house in Tulsa, suggesting that her relocation would not require either selling or

purchasing a house. While relocating to a city 177 miles away would no doubt

entail some cost, that cost appears minimal under these circumstances, and Vann

has not offered any evidence to the contrary.


                                          -14-
      Furthermore, as indicated above, Southwestern Bell’s personnel policies

had given notice that the relocation expenses of employees who initiate transfers

for personal reasons would not be covered. Although Vann maintains that she

had initially been unaware that she would be required to pass a new training

course in Tulsa, the personnel policies provide that, even in the absence of a

training requirement, any transferred employee could be retreated during the first

six months if job performance was unsatisfactory. Under this framework, the

possibility of incurring relocation expenses in the case of a retreat would seem to

be a known risk of initiating a transfer for personal reasons. Taking all of these

factors into account in the unique circumstances of this case, we conclude that

Vann has failed to establish that her retreat qualifies as an adverse employment

action for purposes of Title VII.



2.    Does Vann’s Resignation Qualify as a Constructive Discharge?

      As indicated, Vann alternatively bases her Title VII prima facie case on the

theory of constructive discharge. A plaintiff employee who wishes to establish

that a resignation in effect constitutes a constructive discharge for purposes of a

Title VII claim must show that the “employer [has] deliberately ma[d]e[] or

allow[ed] the employee’s working conditions to become so intolerable that the




                                         -15-
employee has no other choice but to quit.” MacKenzie v. City & County of

Denver, 

, 1281 (10th Cir. 2005).

      Vann argues that the Supreme Court’s decision in Pa. State Police v.

Suders, 

(2004), has changed this “no other choice” standard. In so

arguing, Vann relies on the Court’s articulation of the standard, in a case where

the plaintiff claimed constructive termination based on hostile work environment,

as requiring a claimant to “show that the abusive working environment became so

intolerable that her resignation qualified as a fitting response.” 

(emphasis added). Later in Suders, the Court articulated the same standard as

requiring a claimant to “show working conditions so intolerable that a reasonable

person would have felt compelled to resign.” 

(emphasis added). Vann

asserts that “[i]t should be self-evident that a reasonable person may feel

‘compelled to resign’ even though there are other choices.” Appellant’s Reply

Br. at 7. We disagree. In our view, there is no meaningful distinction between

the Court’s language and ours. Our continued use of the “no other choice”

standard in MacKenzie, quoted above, which followed Suders, supports this

conclusion. 4


      4
       Vann also argues that Suders changed the requirement that a constructive
discharge cannot be based on a discriminatory act alone, in the absence of
“aggravating factors that make staying on the job intolerable.” James v. Sears,
Roebuck & Co., 

, 992 (10th Cir. 1994). We disagree. In any case,
                                                                     (continued...)

                                         -16-
      Vann’s constructive discharge argument again focuses on her forced

relocation, at her own expense, back to Wichita, and on the allegation that she

would have had to make this relocation in a single day. As Vann points out, a

number of courts have recognized that an involuntary “transfer over a great

distance can amount to a constructive discharge.” Darnell v. Campbell County

Fiscal Court, 

, 1313 (E.D. Ky. 1990), aff’d, 

(6th

Cir. 1991); see Christensen v. Equitable Life Assur. Soc. of U.S., 

,

343 (7th Cir. 1985) (holding transfer from Indianapolis to Chicago was

constructive discharge where new position might be eliminated if there was

insufficient work and cost of living in new location was substantially higher).

However, it is necessary to consider the question based on the facts of the

particular case, using an objective standard. See 

(“When

examining a constructive discharge claim, we disregard both the employee’s

subjective view of the workplace environment and the employer’s subjective

intentions regarding the employee.”).

      Here, as the district court concluded, Vann’s assertion that she had only one

day’s notice before she would have had to relocate to Wichita is contradicted by

evidence in the record that Vann “could have returned to Wichita during the


      4
       (...continued)
however, because Vann does not claim to have any direct evidence of a
discriminatory act, this argument is inapposite.

                                        -17-
period when she was on disability leave” and that she did not resign until after

nearly two months of such leave. Order at 15, Appellant’s App. Vol. II at 629.

      Otherwise, Vann rests her constructive discharge claim solely on the

personal hardship that, she alleges, her return to Wichita would have caused her.

While, as indicated above, an employee’s subjective feelings about her working

conditions are not relevant to an objective analysis, Vann argues that her personal

circumstances constitute objective factors that the district court should have taken

into account. The few cases that have addressed the relevance of an employee’s

personal circumstances are conflicting. Compare Piantanida v. Wyman Ctr., Inc.,

, 1243 (E.D. Mo. 1996) (recognizing that “an employee’s

personal circumstances may ‘conceivably be relevant to a determination of

constructive discharge’” (quoting Bradford v. Norfolk S. Corp., 

,

1417 (8th Cir. 1995))), aff’d 

(8th Cir. 1997), and Schwarz v. Nw.

Iowa Cmty. Coll., 

, 1339 (N.D. Iowa 1995) (considering

personal circumstances relevant where the plaintiff was arguing “that the College

knew of and intentionally exploited her personal circumstances, her vision

problems, to force her to quit”), with Cherchi v. Mobil Oil Corp., 

, 163 (D.N.J. 1988) (holding that the employer “cannot be held responsible for

the health problems of [the employee’s] mother”). However, to the extent

personal circumstances might make certain working conditions intolerable, it is


                                        -18-
clear, given the requirement that an employer’s actions must be deliberate in order

to effect a constructive discharge, that the employer would have to be aware of

those circumstances. See 

(requiring employee to

“produce evidence that the employer was aware of those personal

circumstances”).

      In this case, while Southwestern Bell knew that Vann had requested a

transfer to Tulsa for personal reasons, Vann has not presented any evidence, or

otherwise indicated, that Southwestern Bell knew her circumstances would

prevent her from returning to Wichita if the Tulsa position did not work out.

Moreover, the fact that Vann’s employer provided an opportunity for her to

transfer for personal reasons could as easily be viewed as contradicting the idea

that it was trying to exploit her personal circumstances in order to force her to

resign. We conclude that Vann has failed to establish that a reasonable person in

her circumstances would have felt compelled to resign.

      Vann has failed to raise a genuine issue of material fact in regard to her

ability to establish a prima facie case. We therefore agree with the district court

that Southwestern Bell is entitled to a judgment as a matter of law on that issue.




                                         -19-
Accordingly, we need not address the remaining prongs of the McDonnell

Douglas analysis. 5




                                 CONCLUSION

      For the foregoing reasons, the district court’s entry of summary judgment in

favor of the appellee is AFFIRMED.



                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      5
        Because Vann’s arguments in regard to Southwestern Bell’s destruction of
the managers’ notes concerning her live calls and the district court’s rejection of
her statistical evidence relate only to the third prong of McDonnell Douglas, we
also need not address those arguments.

                                        -20-