CLAIRE V. EAGAN, District Judge.
Now before the Court is defendant's motion for summary judgment (Dkt. # 94). Defendant asks the Court to grant summary judgment in its favor, arguing that plaintiff's retaliatory failure to promote claim is time barred, that plaintiff has failed to make a prima facie showing of retaliation or discrimination, and that plaintiff has failed to demonstrate pretext. Dkt. # 94, at 20-30. Plaintiff responds that she has established a prima facie case of retaliation, and that she has presented sufficient evidence of pretext. Dkt. # 112,
In August 2007, defendant hired plaintiff, a white female, as a realtor sales representative to work in its Tulsa office. Dkt. # 94, at 8; Dkt. # 112, at 1. In 2008, plaintiff became an acquisition sales representative, and in February 2009 she became an account executive for defendant's retention team. Dkt. # 94, at 8; Dkt. # 112, at 1. While she worked as an account executive, plaintiff reported to sales manager Tom McPherson, who reported to director of sales Tim Jenney until March 9, 2013, when Jenney resigned. Dkt. # 94, at 8; Dkt. # 112, at 1. After Jenney's resignation, McPherson reported to Jenney's replacement, Christopher Shipman. Dkt. # 94, at 8-9; Dkt. # 112, at 1.
In June 2012, the sales team took a business trip to Oklahoma City. Dkt. # 94-1, at 22. Defendant provided a charter bus from Tulsa for its employees.
The next day, plaintiff went to the office of Melissa Cruts, a human resources business partner, to discuss the bus incident.
In August 2012, defendant issued new corporate policies that stated all accounts funded by the Oklahoma Universal Services Fund (OUSF) must be handled by the designated account representative. Dkt. # 94-1, at 57, 132. Plaintiff had a large account at the time that used OUSF funds, and McPherson and Jenney told plaintiff that an exception to the new rule had been made so that she could continue to work on the account.
In December 2012, plaintiff applied for the position of strategic service manager. Dkt. # 94, at 10; Dkt. # 112, at 1. The position reported to Darren Holland, the director of operations for Oklahoma. Dkt. # 94, at 10; Dkt. # 112, at 1. A human resources employee determined that three of the four applicants were qualified for the position, and the three remaining applicants, including plaintiff, were interviewed by Holland and Jenney in early February 2013. Dkt. # 94, at 10; Dkt. # 112, at 1. On March 14, 2013, Holland hired Stephanie Schultze, a white female, for the position. Dkt. # 116-30, at 22.
On February 25, 2013, plaintiff submitted her resignation to McPherson to open her own transportation business. Dkt. # 94-1, at 46-47. The next day, plaintiff wrote an email to Randy Chandler, vice president of Cox Business, informing him of her resignation and asking to meet with him that week to talk about the strategic service manager position and her future at the company.
On June 10, 2013, defendant terminated Palzer. Dkt. # 94-2, at 2. Defendant's proffered reason for firing Palzer was "poor performance."
On October 4, 2013, defendant terminated Steven Fulps for violating its conflict of interest policy. Dkt. # 94, at 13-14; Dkt. # 112, at 1. Human resources business partner Erin Vierthaler conducted the conflict of interest investigation, during which she discovered that Fulps owned a company that provided services offered by defendant and that Fulps had used his position with defendant to solicit business for his personally-owned company. Dkt. # 116-3, at 12-17. During his interview with Vierthaler, Fulps "complained that there were other employees who ran their own businesses." Dkt. # 94-4, at 3. Fulps asserts that he did not specifically identify any employees who ran other businesses, Dkt. # 116-7, at 1, but Vierthaler asserts that Fulps named plaintiff, Dkt. # 94-4, at 3.
After Fulps was fired, McPherson, at Vierthaler's request, asked plaintiff to review defendant's conflict of interest policy to determine whether she needed to file a disclosure form. Dkt. # 94, at 16; Dkt. # 112, at 1, 5-6. Plaintiff completed a disclosure form stating that her domestic partner and two uncles owned "telcom-related" businesses used by some of defendant's customers. Dkt. # 94-1, at 86, 240. At the request of human resources manager Heather Romeike, Vierthaler conducted an investigation into Tulsa Telesolutions, the company managed by plaintiff's domestic partner. Dkt. # 94-4, at 3. Vierthaler interviewed plaintiff in November 2013 about her potential conflict of interest. Dkt. # 94, at 17; Dkt. # 112, at 1. Based on her investigation, Vierthaler determined that plaintiff had been the owner/operator of Tulsa Telesolutions frm August 2011 to sometime in 2012, and that her partner ran the company after 2012. Dkt. # 94-4, at 43. Vierthaler also concluded that plaintiff financially benefitted from the business and that the company competed with defendant.
In early December 2013, Vierthaler sent a summary of her investigation to vice president of human resources Becky Ordoyne.
On December 3, 2015, plaintiff filed this suit in the Tulsa County District Court, State of Oklahoma. Dkt. # 2-3, at 1. Defendant removed the case to this Court. Dkt. # 2. Plaintiff alleges claims of retaliatory discharge, retaliatory failure to promote, and sex discrimination, all under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
Summary judgment pursuant to Federal Rule of Civil Procedure 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.
"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.'"
A plaintiff may prove violation of Title VII either by direct evidence of discrimination or retaliation, or by following the burden-shifting framework of
Defendant argues that it is entitled to summary judgment on plaintiff's retaliatory discharge claim because plaintiff has failed to state a prima facie case of retaliation and plaintiff has failed to show defendant's proffered, non-retaliatory reason for firing her was pretext. Dkt. # 94, at 23-26. To establish a prima facie case of retaliation, plaintiff must show: "(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that the a causal connection existed between the protected activity and the materially adverse action."
It is undisputed that plaintiff's termination is an adverse employment action. Plaintiff asserts that her complaints regarding Stauffer's treatment of Palzer constitute protected activity. Dkt. # 112, 24-25. However, even if plaintiff engaged in protected activity, she has failed to show a causal connection between her protected activity and her termination. Plaintiff's only argument supporting a causal connection is that approximately three months separates plaintiff's last complaint about Palzer in July or August 2013
Plaintiff first complained about Stauffer in June 2012, and plaintiff asserts that defendant knew that she was listed as witness on Palzer's first EEOC complaint in December 2012. In March 2013, McPherson and Chandler, two of the people who eventually approved her termination, encouraged plaintiff not to resign from the company. Plaintiff states that she continued to complain to "management" after the June 2012 bus incident, but plaintiff fails to provide evidence of how often she complained, to whom she complained, or what plaintiff was specifically complaining about.
Regardless, even if plaintiff had produced clear evidence that she had been consistently complaining about what she reasonably believed was Stauffer's discriminatory behavior, and ignoring the fact that two of the people who eventually had a hand in firing her encouraged her to stay at the company after they knew about her complaints, plaintiff has failed to establish a temporal connection between plaintiff's alleged protected activity in July or August 2013 and her termination. The Tenth Circuit has not established a precise temporal line to determine whether an adverse employment action is close enough to the protected activity to satisfy the prima facie causation requirement.
Defendant argues that plaintiff has abandoned her claims of retaliatory failure to promote and sex discrimination by failing to address defendant's arguments for summary judgment regarding those claims in her response. Dkt. # 127, at 1-2. The Court need not address this argument because plaintiff's retaliatory failure to promote and sex discrimination claims fail for the same reason as her retaliatory discharge claim: plaintiff has failed to establish a prima facie case of retaliation or discrimination.
Plaintiff has failed to state a prima facie case of retaliatory failure to promote because she has offered no evidence of a causal connection between her alleged protected activities and defendant's failure to promote her to the position of strategic service manager. Defendant has presented undisputed evidence that Holland made the decision to hire Schultze for the position and that Holland did not know about plaintiff's complaints about Stauffer's treatment of Palzer when he made the promotion decision.
Plaintiff has also failed to state a prima facie case of sex discrimination. To state a prima facie case of discrimination under Title VII, a plaintiff must allege: (1) that the victim belongs to a protected class; (2) that the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination.