Filed: Dec. 07, 2009
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit December 7, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT MARY BARONE, Plaintiff-Appellant, v. No. 08-1348 UNITED AIRLINES, INC., (D.C. No. 07-cv-01277-LTB-KMT) (D. Colo.) Defendant-Appellee. ORDER AND JUDGMENT * Before BRISCOE, TYMKOVICH, and HOLMES, Circuit Judges. Plaintiff-Appellant Mary Barone appeals the district court’s grant of summary judgment to Defendant-Appellee United Airlines, Inc. (“United”
Summary: FILED United States Court of Appeals Tenth Circuit December 7, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT MARY BARONE, Plaintiff-Appellant, v. No. 08-1348 UNITED AIRLINES, INC., (D.C. No. 07-cv-01277-LTB-KMT) (D. Colo.) Defendant-Appellee. ORDER AND JUDGMENT * Before BRISCOE, TYMKOVICH, and HOLMES, Circuit Judges. Plaintiff-Appellant Mary Barone appeals the district court’s grant of summary judgment to Defendant-Appellee United Airlines, Inc. (“United”)..
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FILED
United States Court of Appeals
Tenth Circuit
December 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARY BARONE,
Plaintiff-Appellant,
v. No. 08-1348
UNITED AIRLINES, INC., (D.C. No. 07-cv-01277-LTB-KMT)
(D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, TYMKOVICH, and HOLMES, Circuit Judges.
Plaintiff-Appellant Mary Barone appeals the district court’s grant of
summary judgment to Defendant-Appellee United Airlines, Inc. (“United”) on her
Title VII claims of gender discrimination and retaliation. The district court
concluded that Barone could not demonstrate a prima facie case under either
theory of discrimination. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
we reverse the district court’s ruling and remand for further proceedings.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I
United employed Barone in February 1995. App. at 736. In October 2005,
Todd Sprague promoted Barone to Manager of Business Administration at
United’s Denver station; he supervised Barone until her employment ended. Id. at
105. Sprague reported to Jim Kyte, General Manager of Customer Service.
Id. at
546.
Barone has submitted a declaration stating that it was her job “to
continually check and conduct investigations to correct pay and other systematic
problems that were costing the company dollars[,] . . . . [and] to go into the
records and develop reports,” id. at 494, and she has testified that in executing
these duties associated with her new position, she initiated several investigations
that uncovered payroll irregularities, especially within the “ramp organization”
(employees that worked with aircraft on the runway). Barone discovered that
United was improperly paying male ramp organization managers shift differential.
Id. at 112. Sprague told her “to look the other way,”
id. at 111, but when Barone
completed a formal investigation and threatened to report her findings to the code
of business conduct, Sprague said that “he would look into it,”
id. at 112. Kevin
Mortimer, the Ramp Manager, eventually corrected the problem.
Id. at 164.
Barone also discovered that United was improperly paying ramp
servicemen “EZ Hours,” that is, a full overtime hour for a few minutes that an
employee worked beyond a normal shift. Id. at 112. Sprague first told her “to
2
stop the investigation, get rid of it, throw it away, delete it,” id., but as the
problem continued to surface, he told Barone to work with Carolyn Forrest on the
issue,
id. at 112-13.
In April 2006, United promoted Scott Hildebrand to the newly created
Business Analyst position. Id. at 167. Barone never applied for this position, but
when she learned that Hildebrand received a larger raise with his promotion than
she did, she asked Sprague about the difference.
Id. at 107-08. Sprague said that
the difference was “[b]ecause he’s a man.”
Id. at 108. Barone told him that she
considered this discrimination.
Id.
According to Barone, her working relationship with Sprague “spiraled out
of control” after this conversation.
Id. at 114. Sprague began telling her about
Mortimer’s impression of her investigations: specifically, Sprague told her that
Mortimer thought the spreadsheets Barone was providing the ramp organization
were not useful, and Sprague told her that Mortimer said she “needed to grow
some kahones, that [she] need[ed] to work on the ramp to be put in [her] place
because [she didn’t] get it.”
Id. at 113-14. Sprague himself “was demeaning with
his words,”
id. at 114, and would “talk down” to two other female employees “in
front of their peers to the point where they would be crying,”
id. at 393-94. He
told Barone “not to cooperate with world headquarters” with her EZ hours
investigation, and not to provide those reports to Mortimer.
Id. at 114. He also
3
criticized Barone’s performance, even after she followed his directions. 1 Id. at
115. When Barone’s responsibilities were adjusted in June 2006 to include
scheduling manpower for customer service and the ramp organization, she was
worried because she believed the previous manager had been forced out of that
position. She contacted Jeanne Nelli, Senior Human Resources Generalist, to
verify she would be supported.
Id. at 115-16, 843.
Despite Barone’s reservations, her email communications after the June
2006 adjustment of her responsibilities revealed an initial positive relationship
with her superiors. Sprague emailed Barone on June 29, 2006 that he “was so
happy that [she was] a part of [his] team and appreciate[d] [her] willingness to
adapt to a changing organization. Scheduling is already a better place because of
[her] leadership.” Id. at 173. Barone replied with “[j]ust so you know I LOVE IT
down here- there is so much to do.”
Id. On July 26, 2008, Kyte praised her prior
work: “[n]ice job. Have I told you lately how much I appreciate you?”
Id. at
120, 180. On August 1, 2006, Sprague praised her leadership: “[t]ruly,
performance management is one of your strong suits! I embrace your enthusiasm
1
Barone also claims that in 2000, Sprague “took [her] in a van and drove
[her] around the concourse and threatened” Barone that if she “were to ever go
over his head again there would be serious consequences.” App. at 433-34.
Barone explained that when she was on leave Sprague’s supervisor asked her to
perform a “book move,” and after Sprague called her house several times “yelling
at [her] because [she] did it incorrectly,” she called Sprague’s supervisor to
complain about his conduct. Id. at 433, 442.
4
to raise the bar for our organization.” Id. at 182. “Honey- you have no idea,”
was Barone’s reply.
Id.
Barone continued to report what she perceived to be instances of gender
discrimination. When Barone questioned why her 2005 annual evaluation only
rated her as “successful” (an overall rating of “3”), Sprague explained that anyone
who was recently promoted was not capable of earning a score higher than a “3.”
Id. at 404. After Barone compiled the entire station’s evaluation scores and
learned that only men in her job group and higher job groups received scores
higher than “3”–even men that recently had been promoted like Barone–she told
Sprague that she considered this practice discrimination and told him that she
wanted it reported to Human Resources.
Id. at 404-05, 439. Barone also reported
to Sprague that United was hiring young male ramp organization employees who
were earning significantly more than female management employees in a higher
job grade.
Id. at 141. Sprague told her that United was “bringing in these men at
a higher rate of pay, that it was not something that was set up in Denver.”
Id.
Barone’s final investigation, and the thrust of her Title VII claims,
concerned male management improperly receiving vacation pay.
Id. at 142-43,
439. When she reported her findings to Sprague on July 21, 2006, Sprague
notified Kyte, and emailed Mortimer:
Kevin,
I don’t appreciate your comments to Mary! She is
responsible for payroll for the station. She is getting
5
direction from me. The ORD excellence team is expecting
us to have the entire station in MARS now. We need to
clean this stuff up before outsiders come in and question
our inconsistencies. We need to be consistent as a station.
We don’t allow this for front line employees after several
discussions with labor relations. This could put us in a
difficult position if the union were to find out this was
happening.
As far as Mary is concerned, she is trying to help...and fix
things. If you don’t think you need it, then I’ll take the
drug test with you.
Id. at 142-43, 611 (ellipses in original). Mortimer testified that he determined the
ramp organization was only compensating employees for accrued vacation days,
and he informed Barone about these results.
Id. at 489. Barone claims that he
responded to “the one employee that [she] pointed out.”
Id. at 433. Nonetheless,
Barone continued preparing a final report up until her employment ended.
Barone’s employment ended on August 17, 2006. During that final month
of employment, Sprague met with Barone several times. Although the timing of
these meetings is unclear, and the parties dispute the substance of several
meetings, the record reflects that the following interactions occurred.
On Thursday, August 3, Sprague criticized Barone for poorly handling a
union investigation. Barone had previously discovered an unusually high
percentage of employees who neglected to either “punch in” at the beginning of a
shift, or “punch out” at the end, but who nevertheless claimed that they worked
the entire shift. Id. at 117-18. Sprague wanted Barone to implement a process
6
with the union that would resolve the problem, id., but in that meeting he
criticized her for handling the investigation improperly and for not following
procedure or protocol,
id. at 127. In an email that afternoon, Barone questioned
whether Sprague had discussed “[t]he union’s perception of me or your perception
of me? I AM NOT HAPPY.”
Id. at 193. Barone was absent from work on
Friday,
id. at 127, and when she received Sprague’s reply email and similarly
worded text message–“Mary, you need to come talk with me. I am a Mary
Barone fan and it appears that you don’t think so,”
id. at 128, 193–Barone wrote a
two-page email and sent it to Sprague’s personal account. 2
Id. at 128. In the
email Barone detailed what she believed to be “[f]alse accusations by my boss,”
id. at 189-90. She described how it “[l]ooks like . . . I have a choice here, one
would think with this track record of never doing anything right, they are not the
right person for the job,” told Sprague that he was “the only one who made [her]
average,” and ended with “I am sick to my stomach– I can only work when I
know I am of value– I know now that I am not. You will never be able to change
my mind. THE PICTURE IS VERY CLEAR!”
Id.
Sprague met with Barone the following Monday to discuss this email.
Id.
at 130. Shortly thereafter, Sprague met with Barone and Nelli to discuss the
email again.
Id. Barone testified that she explained to Sprague that her email
2
Barone testified that she sent the email to Sprague, but she did not intend
for him to receive it at his home account. App. at 128.
7
“was a reaction from [Sprague] telling [her] that [she was] not doing anything
right, that [she could not] do anything right, that [she was] providing reports that
[were not] beneficial. And then [Sprague] tells [her], in writing, that he’s a fan.
[She] was confused. [She] didn’t understand.” Id. at 129. She testified that she
never told Sprague she sent him the email because she wanted to “make him
mad.”
Id. at 129, 131.
Sprague also had three discussions with Barone about her mid-year
evaluation. Barone testified that when Sprague first discussed the evaluation with
her over the telephone he told her that she was “not effective, that [she did not]
do good work, that [she was] basically a clerk, [and] that [she did not] follow
directions.” Id. at 124. When they discussed the evaluation in person Sprague
repeated this criticism, told her that she “work[ed] too hard; [she] even work[ed]
on the weekends,” and told her that Mortimer thought that she did not “get it, that
[she] needed a dose of reality; and that’s why they want[ed] to put [her] on the
ramp. He even said that Jim Kyte felt that way . . . .”
Id. at 125.
The third mid-year evaluation discussion occurred on August 14, 2006. Id.
at 724. Barone and Sprague met with Jeanne Nelli. In stark contrast to the
previous two discussions, Barone testified that she received “a very
complimentary evaluation in front of Jeanne Nelli.”
Id. at 129. Sprague testified
that he described her performance as “successful,” but he also noted that Barone
needed to improve “her ability to accept feedback and learn from that as a
8
manager.” Id. at 724. Sprague testified that the conversation then shifted to
Barone’s August 4 email, and when Barone “stated that she was trying to make
[Sprague] mad with that email,” Nelli questioned why Barone would “deliberately
do something to make [her] manager mad.”
Id. According to Sprague’s
testimony, Barone then began expressing her “frustrations with her work
environment under” Sprague, during which she said that she was “not a 3” and
that if she was a “3,” she could not work for Sprague.
Id. Barone does not
remember these conversations, but she testified that she remembered “saying
[she] was not of value.”
Id. at 129.
At some point during her last week of employment, Barone remembers
telling Sprague about the findings on the vacation pay discrimination report that
she was finishing. 3 Also, at some point in August, Barone remembers that
Sprague “put it in [her] head to leave United.” Id. at 136. Barone telephoned
Sprague on August 15, 2006 to tell him that she wanted to remain with United,
and to demonstrate how she was “trying to improve on all the feedback
[Mortimer] was giving [her],” Barone requested that Mortimer write her year-end
3
It is hard to determine the precise date when Barone made this report.
Although Barone testified that she made her final complaint of vacation pay
discrimination to Sprague three days before her employment ended, App. at 434,
she later testified her final oral complaint occurred during “the last week that
[she] was working at United,” id. at 435. Additionally, Barone clarified that after
she made the July 21, 2006 report of discrimination to Sprague, she “believe[d]
that [she] continued to talk about this particular situation into August, because
[she] never got to finish the investigation.”
Id. at 437.
9
evaluation. Id. Sprague complimented her, but was unwilling to grant this
request.
Id.
Despite this conciliation, Barone’s employment essentially ended two days
later on August 17, 2006. According to Barone, Sprague held a “very short”
meeting that day:
[H]e requested that I come and meet him in his
office. When I got there, [Senior Human Resources
Generalist] Jeanne Nelli was there.
And he said to me that he had thought long and hard
about his decision, and it was the hardest decision he ever
had to make. He said: Here are your two choices: You can
either move to Orange County as a part-time customer
service agent, or you can resign from the company.
Id. at 130-31. In response to this ultimatum, Barone told Sprague that she could
not move to California because of her three children, and she asked Sprague why
he was making her choose between these options. Sprague “said it was because
he could not get over the fact that [she] wanted to make him mad.”
Id. at 131.
Barone did not understand what Sprague meant, and asked to speak privately with
Nelli. 4
Id. Before leaving, Sprague “slid a blank piece of paper [Barone’s] way
and said to write out [her] resignation.”
Id. She wrote her resignation, but tore it
up when Sprague left the room. When Barone asked Nelli for help, the Senior
4
Barone also remembers that she asked if the ultimatum had “anything to
do with Kevin Mortimer,” and Sprague said that it did not. Id. at 131. Barone
also asked if the ultimatum had anything to do with the behavior that Mortimer
and Sprague exhibited toward Barone.
Id. She remembers that Sprague only
acknowledged that Sprague had previously used foul language.
Id.
10
Human Resources Generalist repeated that Barone could either resign from the
company or go to Orange County,
id. at 424, and further confirmed that “[t]here’s
nothing I can do; they contacted me first, and the station made up their mind,”
id.
at 132. Barone again wrote her resignation letter, and received two weeks of
administrative leave compensation.
Id. at 728.
Sprague offered a different version of that meeting. He testified that “Mary
was a person that [he] trusted and believed was capable of continuing as a leader
at United Airlines; albeit, she made some mistakes.” Sprague Depo. 36; Aple.’s
Br. Ex. 10. His thought process going into that meeting was the following:
If she accepts accountability for feedback and
accepts the fact that I, as her manager, am going to give
her constructive feedback and takes ownership of the fact
and apologizes for what I felt was an inappropriate email
. . ., I was willing to let her continue her employment. I
was going to wait and see what the tone of the discussion
was.
If she was adamant that she was not going to accept
accountability, I was prepared to discharge her. And that’s
why I had pre-established that she had rights back to
Orange County.
...
[I]f the conversation did not result in her taking
accountability for her actions and apologizing for some of
her actions, that I would fire her.
And it did not go that way. . . . [S]he said: Maybe I
should resign. And my words were: At this point, I would
accept that.
Id. at 36-38. Sprague testified that employees that resign or are removed from
management have the right to resume their last union position with the
company.
11
Ohio App. at 726. He also testified that prior to the meeting, he did not consider
demoting Barone to a leadership position because if “she wasn’t going to take
accountability for her actions as a leader, [he] did not want her to continue in a
leadership position . . . .”
Id. at 727. At that time, he did not consider demoting
her to a non-leadership position in Denver.
Id. Sprague also testified that he
believed Barone improperly accessed her mid-year evaluation. Mid-year
evaluations contain a confidential score that superiors do not disclose to
subordinates, and Sprague believed that Barone accessed her evaluation “and
found out she was going to be rated a 3 before [he] ever had an opportunity to
discuss it with her.”
Id. at 729.
Certain aspects of Sprague’s testimony contradict the version of events he
told Jim Kyte. For example, although Sprague testified that he consulted Kyte
about possibly terminating Barone, id. at 727, Kyte testified that Sprague never
consulted him about removing Barone from management, and he also testified
that he had no information about whether Barone was involuntarily removed from
management,
id. at 547. Additionally, although Sprague testified that his actions
during the August 17, 2006 meeting were not based on his suspicion that Barone
improperly accessed her mid-year evaluation,
id. at 730, Kyte, in contrast,
testified that Sprague told him that Barone resigned because she was unhappy
with her evaluation and because she “had a breach of trust by accessing her
evaluation prior to it being released to her.”
Id. at 547.
12
Following Barone’s resignation, Sprague, Nelli, Kyte, and another United
employee all decided that in the event Barone reapplied, she would not receive a
management position. Id. at 733, 843. Sprague testified that while he did not
believe that Barone “was fit for a leadership position in Denver,” he also did not
believe she was fit for a non-leadership salaried position in Denver because it
would not “be a good thing for somebody who wasn’t taking accountability for
their actions to be demoted and continue working with the same people that she
was just managing . . . .”
Id. at 728. He never considered placing her in a non-
leadership position in Denver that did not require her to interact with previous co-
workers.
Id. Barone requested reinstatement after she resigned, and United
denied the request.
Id. at 136. United temporarily filled her position with a male
employee until it selected a permanent female replacement.
Id. at 579.
Mortimer testified that Sprague never spoke to him about removing Barone
from management, and Mortimer learned of Barone’s resignation from an
interoffice note. Id. at 490. Mortimer also testified that he complained to
Sprague about some of Barone’s reports because he was frustrated with “her style
of discovering perceived deficiencies . . . and how she handled that . . . . [S]he
would gather information and then give it to [him] with the expectation that [he]
would fix it.”
Id. at 882. Mortimer was “looking for support administratively.”
Id. Barone, however, believed that Mortimer played a role in ending her
employment with United. She testified that Sprague told her many times that “he
13
was doing something because Kevin [Mortimer] asked him to . . . . Sprague told
[her] of things that Kevin [Mortimer] said for treatment for [her] . . . . [T]here
were things that [] Sprague made decisions on that Kevin told him to do.” Id. at
429. Barone also claims that Mortimer was “demeaning and disrespectful”
toward women,
id. at 434, that he made sexually derogatory comments about
women,
id. at 534, and that Mortimer often inappropriately commented on her
appearance and made a vulgar sexual remark to her in the spring of 2006,
id. at
534, 840.
Barone brought suit against United in the District Court of Colorado. She
invoked federal question jurisdiction to assert claims of age discrimination and
retaliation in violation of the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 621-634 (“ADEA”), and claims of gender discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 (“Title VII”). She invoked supplemental jurisdiction to assert a
discrimination claim pursuant to Colorado’s Anti-Discrimination Act, Colo. Rev.
Stat. §§ 24-34-401 to -406 (“CADA”), and state law claims for breach of contract
and estoppel. Barone agreed to dismiss her ADEA claims, App. at 36, 48, 99, and
United moved for summary judgment on all other claims. The district court
granted United summary judgment on the Title VII claims, declined to exercise
supplemental jurisdiction over state law claims and dismissed them without
prejudice, and dismissed the ADEA claims without prejudice pursuant to Federal
14
Rule of Civil Procedure 41. Barone v. United Air Lines, Inc., No. 07-cv-01277,
2008 WL 4372674, at *9 (D. Colo. Sept. 19, 2008).
After Barone filed her notice of appeal in this case, she reasserted her state
law claims against United in Colorado state court. United invoked diversity
jurisdiction to remove that action, 5 and then moved for summary judgment. The
district court, relying on our Title VII precedent, denied summary judgment on
the CADA claim, concluding that genuine issues of material fact existed as to the
constructive discharge issue. Barone v. United Air Lines, Inc., No. 08-cv-02487,
2009 WL 2710150 at *1 & n.3 (D. Colo. Aug. 26, 2009).
II
Before reviewing the merits of this appeal, we first address United’s
concern that we lack appellate jurisdiction. United contends that the district
court’s disposition of Barone’s first action was not a final decision under 28
U.S.C. § 1291 because the district court dismissed Barone’s ADEA claims
without prejudice pursuant to Federal Rule of Civil Procedure 41, and dismissed
her supplemental state law claims without prejudice pursuant to 28 U.S.C. §
1367(c). We disagree; neither dismissal without prejudice prevents us from
exercising appellate jurisdiction.
We have jurisdiction over “appeals from all final decisions of the district
5
United is incorporated in Delaware and maintains its principal place of
business in Illinois. Barone is a citizen of Colorado.
15
courts of the United States . . . .” 28 U.S.C. § 1291. “Although a dismissal
without prejudice is usually not a final decision, where the dismissal finally
disposes of the case so that it is not subject to further proceedings in federal
court, the dismissal is final and appealable.” Amazon, Inc. v. Dirt Camp, Inc.,
273 F.3d 1271, 1275 (10th Cir. 2001). “The critical determination as to whether
an order is final is whether plaintiff has been effectively excluded from federal
court under the present circumstances.”
Id. (quoting Facteau v. Sullivan,
843
F.2d 1318, 1319 (10th Cir. 1988)) (alteration omitted).
United claims that Barone has not been effectively excluded from federal
court because diversity jurisdiction existed over Barone’s state law claims and
“[a]s a result, [those] state law claims are, once again, pending in federal district
court, albeit in a new case before a different judge.” Aple.’s Br. at 25. But the
possibility that diversity jurisdiction existed over Barone’s state law claims does
not mean that the district court’s disposition was not a final appealable decision.
In Amazon, the plaintiff’s complaint asserted federal and state law claims against
multiple defendants, and claimed that both supplemental and diversity jurisdiction
existed over the state law claims. 273 F.3d at 1273. The parties disagreed
whether one defendant’s citizenship destroyed complete diversity. When the
district court granted the defendants summary judgment on the federal claims, it
then declined to exercise supplemental jurisdiction over the state law claims,
dismissing them without prejudice.
Id. at 1274. One of the prevailing defendants
16
appealed, arguing that because diversity jurisdiction existed, the district court
should have addressed the merits of the state law claims. Id. While the appeal
was pending, the plaintiff then filed its state law claims in state court against the
defendant that had appealed, and that defendant removed that case to federal
court.
Id. at 1274 n.3.
Despite the possibility that complete diversity existed, we held that the
district court’s disposition was a final decision because the “district court
dismissed the entire action, effectively excluding Amazon’s suit from federal
court.” Id. at 1275. United attempts to distinguish Amazon by arguing that
appellate jurisdiction in that case depended on the “hotly disputed” issue of
diversity of citizenship, whereas in this case diversity is undisputed. This is an
immaterial distinction: we placed no emphasis on the underlying citizenship
dispute when we concluded that we had appellate jurisdiction in Amazon. Only
after concluding that we had appellate jurisdiction did we then turn to the
prevailing defendant’s appeal regarding the existence of diversity jurisdiction.
Id.
at 1276.
Additionally, the voluntary dismissal of Barone’s ADEA claims does not
divest this court of appellate jurisdiction. It is true that “when a plaintiff
voluntarily requests dismissal of her remaining claims without prejudice in order
to appeal from an order that dismisses another claim with prejudice, we conclude
that the order is not ‘final’ for purposes of § 1291.” Cook v. Rocky Mtn. Bank
17
Note Co., 974 F.2d 147, 148 (10th Cir. 1992); see also Heimann v. Snead,
133
F.3d 767, 769 (10th Cir. 1998). But Barone agreed to abandon her ADEA claims
before the district court ruled on United’s summary judgment motion. Moreover,
it is important to note that the voluntary dismissal of Barone’s ADEA claims is
essentially with prejudice because the statute of limitations prevents her from
refiling them. 6 Thus, the voluntary dismissal of Barone’s ADEA claims, though
without prejudice, effectively excluded those claims from federal court. See
Jackson v. Volvo Trucks N. Am., Inc.,
462 F.3d 1234, 1238 (10th Cir. 2008)
(holding that the dismissal of a state civil conspiracy claim without prejudice to
refiling was a final decision because the underlying tort claims were dismissed
with prejudice).
III
“We review a district court’s grant of summary judgment de novo, applying
6
Under the ADEA, a complainant has ninety days to bring suit after
receiving notice of the EEOC’s final determination. 29 U.S.C. § 626(e). Barone
alleged that she filed suit within this period, App. at 17, but her Rule 41 voluntary
dismissal did not toll this limitations period because, “as a general rule, a
voluntary dismissal without prejudice leaves the parties as though the action had
never been brought,” Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961
(10th Cir. 1991) (holding that a voluntary dismissal under Rule 41(a)(1) did not
toll Title VII’s limitations period, which requires claimants to bring suit ninety
days after receiving a right-to-sue letter from the EEOC), abrogated on other
grounds as stated in Keeler v. Cereal Food Processors, 250 F. App’x 857, 860-61
(10th Cir. 2007); see also Garfield v. J.C. Nichols Real Estate,
57 F.3d 662, 664,
666-67 (8th Cir. 1995) (holding that § 626(e) barred an age discrimination suit
when the original action was filed within the ninety day period, but after the
parties agreed to a dismissal without prejudice, the plaintiffs again filed suit
seven months later).
18
the same standards as the district court.” Timmerman v. U.S. Bank, N.A., 483
F.3d 1106, 1112 (10th Cir. 2007). Summary judgment is only appropriate if “the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). In resolving this
question, “[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in h[er] favor.” Anderson v. Liberty Lobby, Inc.,
477
U.S. 242, 255 (1986). Because “[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge,”
id., our role in this procedural posture is “simply
to determine whether the evidence proffered by [the] plaintiff would be sufficient,
if believed by the ultimate factfinder, to sustain her claim,” Jones v. Barnhart,
349 F.3d 1260, 1265-66 (10th Cir. 2003) (quotations and citations omitted).
The district court granted United summary judgment because it concluded
that under either theory of employment discrimination Barone could not establish
that her employer subjected her to a cognizable adverse action. It thus ended its
inquiry at the prima facie stage of the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), without considering the
remaining stages. We conclude Barone has presented sufficient evidence to
establish a prima facie case of gender discrimination and retaliation. We also
reject United’s invitation to affirm the district court’s judgment on alternative
19
grounds not addressed by the district court, i.e. that United’s proffered reasons for
the constructive discharge were not pretextual. Accordingly, we reverse the
district court’s grant of summary judgment and remand this case to the district
court for further proceedings.
A
Barone relied on circumstantial evidence to prove her claims of
employment discrimination in the district court; accordingly, we analyze her
claims of gender discrimination and retaliation under the burden-shifting
framework that the Supreme Court established in McDonnell Douglas. Plotke v.
White, 405 F.3d 1092, 1099 (10th Cir. 2005) (gender discrimination); Stover v.
Martinez,
382 F.3d 1064, 1070-71 (10th Cir. 2004) (retaliation). Under this
framework, the plaintiff has the burden of establishing a prima facie case of
prohibited employment action by a preponderance of the evidence.
Plotke, 405
F.3d at 1099. Once the employee demonstrates a prima facie case, the burden of
production shifts to the employer to articulate “some nondiscriminatory reason for
its behavior.” Exum v. U.S. Olympic Comm.,
389 F.3d 1130, 1135 (10th Cir.
2004). Once the employer satisfies this burden of production, in order to prevail
the employee must show the employer’s reasons are pretextual.
Id.
We emphasize that the burden of establishing a prima facie case is “not
onerous.” See Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981);
see also Wiley v. Glassman,
511 F.3d 151, 155-56 (D.C. Cir. 2007) (“In either
20
situation [discrimination or retaliation], as the Supreme Court has made clear, the
burden of establishing a prima face case is not onerous.” (quotations and
alterations omitted)); Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.
2005) (describing the burden of establishing a prima facie case as “slight”). The
McDonnell Douglas framework, “intended progressively to sharpen the inquiry
into the elusive factual question of intentional discrimination,”
Burdine, 450 U.S.
at 255 n.8, functions as an analytical tool that “serves to bring the litigants and
the court expeditiously and fairly to th[e] ultimate question” of whether the
employee was the victim of intentional gender discrimination, or whether the
employer’s adverse actions were motivated by a retaliatory intent,
id. at 253; see
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 153 (2000); Wallace v.
DTG Operations, Inc.,
442 F.3d 1112, 1119 (8th Cir. 2006). As such, we have
described the prima facie showing as “relatively lax.” Annett v. Univ. of Kan.,
371 F.3d 1233, 1241 (10th Cir. 2004).
Bearing these descriptions of plaintiff’s burden in mind, we now turn to the
individual prima facie showings required for Barone’s claims of disparate
treatment and retaliation.
1
Barone claims that United’s actions on August 17, 2006 constituted
unlawful gender discrimination. Title VII prohibits an employer from
“discriminat[ing] against any individual with respect to h[er] compensation,
21
terms, conditions, or privileges of employment, because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). Although the precise articulation of the prima
facie case “depend[s] on the context of the claim and the nature of the adverse
employment action alleged,” Plotke, 405 F.3d at 1099, a prima facie case of
disparate treatment has three essential elements: Barone must show that (1) she
“belongs to a protected class;” (2) she “suffered an adverse employment action;”
and (3) “the challenged action took place under circumstances giving rise to an
inference of discrimination.” E.E.O.C. v. PVNF, Inc.,
487 F.3d 790, 800 (10th
Cir. 2007). Within the “sensible, orderly way [that McDonnell-Douglas]
evaluate[s] the evidence in light of common experience,” Furnco Constr. Corp. v.
Waters,
438 U.S. 567, 577 (1978), the analytical function of the prima facie case
is to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s”
challenged adverse action,
Burdine, 450 U.S. at 254. Establishing a prima facie
case narrows the “inquiry into the elusive factual question of intentional
discrimination” by “in effect creat[ing] a presumption that the employer
unlawfully discriminated against the employee,” which thereby compels the
employer to respond with a nondiscriminatory explanation for its decision.
Burdine, 450 U.S. at 254, 255 n.8.
We broadly construe what qualifies as an adverse employment action in
light of Title VII’s remedial nature. Orr, 417 F.3d at 1150. An adverse
employment action occurs under circumstances that “constitute[] a significant
22
change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217
(10th Cir. 2003) (quotations and citations omitted). We employ a “case-by-case
approach, examining the unique factors relevant to the situation at hand.”
Id.
(quotations and citations omitted).
Thus, the operative question with respect to Barone’s gender discrimination
claim is whether the limited options United presented to Barone during the
August 17, 2006 meeting “constitute[d] a significant change in employment
status.” Id. (quotations and citations omitted). Despite Barone’s allegations that
she was removed from management, demoted, transferred, and reduced to part-
time status, the district court concluded that she could not prove that any such
adverse employment action occurred, especially because she subsequently
resigned as a full-time management employee. We disagree with this analysis
because it fails to view the evidence in the light most favorable to Barone, and it
fails to assess the immediate impact United’s ultimatum had upon Barone’s
employment.
In the light most favorable to Barone, United presented her with two
definite and clear options on August 17, 2006: she could “either move to Orange
County as a part-time customer service agent, or [she could] resign from the
company.” App. 130-31. We conclude that forcing a management employee with
23
a successful performance record to “choose” between resigning and relocating
across several states to continue her employment in a part-time and non-
management capacity effectively changed Barone’s employment status. United
compelled Barone to choose between two undesirable options. Whichever option
Barone chose, it would significantly, and immediately, alter her “compensation,
terms, conditions, [and] privileges of employment.” 42 U.S.C. § 2000e-2(a)(1).
Because a reasonable jury could find that these consequences amounted to an
adverse employment action, we reverse the district court’s grant of summary
judgment on her gender discrimination claim. See Nance v. Maxwell Fed. Credit
Union, 186 F.3d 1338, 1340-41 (11th Cir. 1999) (concluding that the choice
between a demotion with a salary reduction or a resignation with severance pay
was an adverse employment action under the ADEA because either option
“constituted a change in respect to [the employee’s] terms of employment”).
United characterizes these options as “threats [that] never materialized and
thus were unfulfilled at the time [Barone] quit.” Aple.’s Br. at 37. As such,
United contends a third option existed: Barone could have “refused either to
resign or to accept a demotion, and continued to work in the Manager Position
until Sprague took–as opposed to threatened to take–an adverse employment
action against her either by discharging her or demoting her.” Id. We reject this
argument because it ignores our standard of review. In viewing the August 17,
2006 meeting under the summary judgment standard, we look at only those
24
options that United actually presented to Barone. According to Barone’s
testimony, Sprague gave her only two alternatives, without contingencies, and
without any opportunity for Barone to avoid these options by somehow improving
her performance, or even by continuing in her present employment. Sprague
stressed the urgency of Barone’s response to this ultimatum by “slid[ing] a piece
of paper [her] way and [telling her] to write out [her] resignation” after Barone
insisted she could not move to Southern California. App. at 131. And Senior
Human Resources Generalist Jeanne Nelli confirmed that Sprague’s decision was
United’s decision by repeating these options after Sprague left and emphasizing
that she could offer Barone no help: “There’s nothing I can do; they contacted me
first, and the station made up their mind.” Id. at 132. Thus, in the light most
favorable to Barone, it is clear that Barone’s demotion and transfer to Southern
California was not a mere threat but a final decision of her employer, to take
effect immediately should Barone refuse to resign. 7
7
United relies on Seventh Circuit precedent for the proposition that “[a]n
unfulfilled threat, which results in no material harm, is not materially adverse,”
Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520, 531 (7th Cir. 2003), but the
facts of that case are presently distinguishable. In Ajayi, an employer gave its
employee “a memorandum stating that her position was being eliminated and that
she would be demoted two weeks later.”
Id. That demotion never materialized,
and when the employee later filed suit, the Seventh Circuit concluded that she
could not establish a prima case of discriminatory demotion because “she, in fact,
never was demoted.”
Id.
As just discussed, the factual circumstances in this case, viewed in the light
most favorable to Barone, stand in stark contrast to the facts of Ajayi. Barone’s
employment consequences had fully materialized as a result of the August 17
(continued...)
25
United does not dispute the remaining elements of Barone’s prima facie
case of disparate treatment on appeal, and we conclude that she has presented
sufficient evidence for a reasonable jury to conclude that she belonged to a
protected class and that the circumstances of her adverse employment action give
rise to an inference of discrimination. Generally the most common
nondiscriminatory reasons for an adverse employment action, such as a
termination, demotion, or failure to hire, are a plaintiff’s lack of qualification or
the elimination of the position at issue. Beaird v. Seagate Tech., Inc., 145 F.3d
1159, 1166-67 (10th Cir. 1998); see also Jones v. Denver Post Corp.,
203 F.3d
748, 753 (10th Cir. 2000) (requiring the plaintiff to prove, in a prima facie case of
discriminatory demotion, that he was “qualified for the position at issue” and that
“the job from which he was demoted was not eliminated”). Here, Barone has
presented sufficient evidence to dispel both explanations because United rated her
as successful three days before her employment ended and United temporarily
filled her position with a male until selecting a permanent female replacement.
This evidence, combined with her testimony concerning Sprague’s and
Mortimer’s demeaning and derogatory behavior toward her and other female
employees, sufficiently establishes the necessary “logical connection between
each element of the prima facie case and the inference of discrimination.” Plotke,
7
(...continued)
ultimatum: if Barone did not resign, she would be immediately demoted and
transferred.
26
405 F.3d at 1100. Accordingly, we conclude Barone has “made the de minimus
showing required for a prima facie case of gender discrimination.”
Id. at 1102.
2
Barone also claims that United unlawfully retaliated against her for the
discriminatory payroll practices that she was uncovering. “Title VII’s
antiretaliation provision forbids employer actions that ‘discriminate against’ an
employee (or job applicant) because he has ‘opposed’ a practice that Title VII
forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII
‘investigation, proceeding, or hearing.’” Burlington N.& Santa Fe Ry. Co. v.
White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). To establish a
prima facie case of retaliation, Barone must show “(1) that she engaged in
protected opposition to discrimination, (2) that a reasonable employee would have
found the challenged action materially adverse–that is, that the action might
‘dissuade[] a reasonable worker from making or supporting a charge of
discrimination,’ and (3) that a causal connection exists between the protected
activity and the materially adverse action.”
PVNF, 487 F.3d at 803 (10th Cir.
2007) (quoting
White, 548 U.S. at 68).
In White, the Supreme Court determined that Title VII’s substantive
provision, which governs claims of disparate treatment, was not “coterminous”
with its antiretaliation provision. White, 548 U.S. at 67. Concluding that “[t]he
scope of the antiretaliation provision extends beyond workplace-related or
27
employment-related retaliatory acts and harm,” the Court adopted a different
standard to describe “the level of seriousness to which [retaliatory] harm must
rise before it becomes actionable.” Id. “[A] plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in
this context means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.”
Id. at 68 (quotations and citations
omitted). The standard is objective, but it is phrased in “general terms because
the significance of any given act of retaliation will often depend upon the
particular circumstances.”
Id. at 69. “Context matters” in analyzing this
question; for example, “[a] schedule change in an employee’s work schedule may
make little difference to many workers, but may matter enormously to a young
mother with school-age children.”
Id.
Thus, the operative question with respect to Barone’s retaliation claim is
whether a “reasonable employee in [Barone’s] shoes would have found the
defendant’s conduct sufficiently adverse that he or she well might have been
dissuaded by such conduct from making or supporting a charge of
discrimination.” Williams v. W.D. Sports, N.M., Inc.,
497 F.3d 1079, 1090 (10th
Cir. 2007). The adverse employment action analysis set forth above applies here
with equal force, but given that material adversity is a broader standard, we
expand our view to consider more thoroughly the “‘constellation of surrounding
circumstances, expectations, and relationships’” that culminated in the August 17,
28
2006 consequences. White, 548 U.S. at 69 (quoting Oncale v. Sundowner
Offshore Servs., Inc.,
523 U.S. 75, 82 (1998)). In the light most favorable to
Barone, she encountered considerable friction in carrying out her job
responsibilities, which entailed “continually check[ing] and conduct[ing]
investigations to correct pay and other systematic problems that were costing the
company dollars[,] . . . . [and] go[ing] into the records and develop[ing] reports.”
App. at 494. According to Barone’s testimony, Sprague initially rebuffed her
findings on improper shift differential, Sprague prohibited her from working with
World Headquarters on her “EZ Hours” investigation, and as Barone became
more vocal about her investigations which unearthed discriminatory practices,
Sprague became more vocal about Mortimer’s perceptions of her investigations as
useless and unhelpful, as well as Mortimer’s suggestion that Barone should be
demoted to the ramp to experience reality. Given this opposition to her
investigations, and given that Barone informed Sprague about the vacation pay
discrimination report she was finishing during the final week of her employment,
a reasonable employee in Barone’s shoes could well conclude that the August 17,
2006 ultimatum was more than mere discouragement of her investigations, but
was instead an effort to silence the investigator herself. Because a reasonable
jury could conclude that a reasonable employee in such circumstances might well
have been dissuaded from making or supporting a charge of discrimination, we
reverse the district court’s grant of summary judgment on her retaliation claim.
29
As with Barone’s gender discrimination claim, United does not dispute the
remaining elements of Barone’s prima facie case of retaliation on appeal, and we
conclude that she has presented sufficient evidence for a reasonable jury to
conclude that she satisfied the remaining two elements. “Protected opposition can
range from filing formal charges to voicing informal complaints to superiors,”
Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004), and Barone’s
oral reports to Sprague about the discriminatory payroll practices she was
discovering certainly fall within this definition. Finally, Barone first reported her
findings of vacation pay discrimination on July 21, 2006, less than one month
before her employment ended, and she again informed Sprague about her findings
during her final week of employment. The close temporal proximity between her
challenged action (United’s August 17 ultimatum) and her last instances of
opposition activity (her reports of discrimination) is itself sufficient to infer a
causal connection. See
PVNF, 487 F.3d at 804 (concluding that a temporal
proximity of less than one month is sufficient to establish a causal connection).
Accordingly, we conclude that Barone has presented sufficient evidence to
establish a prima facie case of retaliation.
3
In granting United summary judgment on Barone’s Title VII claims of
disparate treatment and retaliation, the district court ultimately framed the limited
options that United presented to Barone during the August 17, 2006 meeting as a
30
case of constructive discharge, and concluded that Barone’s evidence did not meet
this substantial showing. Although we have already concluded that Barone can
establish a prima facie case of disparate treatment and retaliation, we also
conclude that Barone has presented sufficient evidence to establish a prima facie
case of constructive discharge.
As previously outlined, for each claim Barone has raised she must establish
as a part of her prima facie showing that her employer subjected her to a
cognizable adverse action. In the district court, Barone also attempted to
establish that the limited options United presented her during the August 17, 2006
meeting constituted a constructive discharge. As regards the prima facie showing
for either disparate treatment or retaliation, constructive discharge is a cognizable
employment action. Fischer v. Forestwood Co., Inc., 525 F.3d 972, 979 (10th
Cir. 2008). To establish a constructive discharge, Barone must meet the
substantial burden of showing that her employer’s “illegal discriminatory acts
ha[ve] made working conditions so difficult that a reasonable person in [her]
position would feel compelled to resign.”
PVNF, 487 F.3d at 805 (quotations and
citations omitted). This is an objective standard: “the employer’s subjective
intent and the employee’s subjective views on the situation are irrelevant.”
Strickland v. United Parcel Serv., Inc.,
555 F.3d 1224, 1228 (10th Cir. 2009).
“We evaluate the voluntariness of an employee’s resignation under an objective,
totality of the circumstances standard.”
Fischer, 525 F.3d at 980.
31
In determining whether the factual circumstances presented also amount to
a constructive discharge, the question in this case becomes whether Barone’s
working conditions became so intolerable after the August 17, 2006 meeting that
a reasonable person in her position would feel compelled to resign. In concluding
that her working conditions did not meet this standard, the district court
emphasized how Barone’s own testimony described her options as a “choice,”
how her request for reinstatement was inconsistent with her claim of intolerable
working conditions, and how Sprague’s and Mortimer’s offensive behavior did
not meet this standard. We disagree with this analysis because it improperly
considered Barone’s subjective views, which we have held are irrelevant to the
constructive discharge inquiry, see PVNF, 487 F.3d at 806 n.10 (“This [objective]
standard cuts both ways–just as an employee’s subjective feelings that her
working conditions were intolerable is not controlling . . ., neither is an
employee’s desire to continue working despite conditions so intolerable any
reasonable employee would have long since quit.”), and it failed to assess how the
options United presented Barone impacted her working conditions.
Again, viewing the August 17, 2006 meeting in the light most favorable to
Barone, United presented Barone with two definite and clear options: “move to
Orange County as a part-time customer service agent, or . . . resign from the
company.” App. 130-31. In light of the totality of circumstances, we conclude
that the “choice” between resignation and a compound removal from
32
management, demotion to part-time status, and transfer to a distant state was
effectively no choice at all. Given the drastic employment and personal
consequences Barone would have to endure were she to continue her employment
with United, a reasonable jury could conclude that Barone’s working conditions
became so difficult as a result of the August 17, 2006 meeting that a reasonable
person in her position would feel compelled to resign.
We cannot accept United’s argument that these options were mere threats,
and that Barone should have essentially called United’s bluff by declining either
option, and remaining in her management position until United took more
decisive action. The factual circumstances in this case significantly differ from
those we faced in Exum, where a director with the United States Olympic
Committee (“USOC”) resigned shortly after his supervisor, in response to the
director’s refusal to obey an order, called the director “insubordinate, repeated his
order, and stated that [the director] could leave the USOC sooner rather than
later.” Exum, 389 F.3d at 1132-33 (internal quotations omitted). There, we
decided that the plaintiff was not constructively discharged because “[i]nstead of
resigning, [the director] could have chosen to comply with his superior’s order or,
alternatively, refused to comply and faced the possible consequences of that
choice.”
Id. at 1136 (emphasis added). Further foreclosing his contention that he
was constructively discharged was his decision to remain obstinate even though
the USOC “suggested alternatives to resignation” and offered to investigate his
33
allegations that the USOC encouraged doping and was hostile toward racial
minorities. Id. at 1133, 1136.
Here, in stark contrast to the director in Exum, Barone faced more than the
mere possibility of employment consequences. Barone’s supervisor and a senior
human resources officer made it completely apparent that should she not
immediately resign from her position, she faced a definite and immediate
demotion and transfer. In further contrast, United was unwilling to compromise
post-resignation: Sprague testified that he would not place her in either a
management or non-management position in Denver that required her to interact
with prior co-workers, and he did not consider her for any other non-management
positions in Denver.
B.
Notwithstanding our conclusion that Barone can establish a prima facie
case of disparate treatment and retaliation, United urges us to affirm the district
court’s grant of summary judgment on the alternative ground that it has offered
legitimate non-discriminatory reasons for its employment action that Barone
cannot prove are pretextual. Aple.’s Br. at 40-41. We agree that as an appellate
court “[w]e may affirm the grant of summary judgment for reasons other than
those used by the district court as long as they are adequately supported by the
record.” Aramburu v. Boeing Co., 112 F.3d 1398, 1402-03 (10th Cir. 1997). We
decline this invitation, however, because the district court never reached the issue
34
of pretext, and given the somewhat conflicting evidence in the record, it will
likely prove to be a highly fact intensive inquiry.
IV.
For the reasons stated, we REVERSE the district court’s grant of summary
judgment to United and REMAND this case for further proceedings.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
35
