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Ford v. Jackson National Life Insurance Co.

No. 21-1126. 8/23/2022. D.Colo. Judge Phillips. Title VII Employment Action—Race Discrimination—Sex Discrimination—Retaliation—Hostile Work Environment—Constructive Discharge—Motion for Summary Judgment.

August 23, 2022

Plaintiff is an African American woman who worked at defendant National Life Insurance’s office in Denver from 2007 until 2010, when she took a job with another company. In 2016, the EEOC sued defendant, alleging that the company engaged in unlawful discrimination on the basis of race and sex. The district court entered a consent decree in January 2020 whereby defendant agreed to pay monetary compensation to intervenors and other employees. Plaintiff was the only intervenor who did not join the consent decree. She instead sued defendant for discrimination, retaliation, a hostile work environment, and constructive discharge. Specifically, she alleged that a pattern of statements and actions by coworkers and supervisors evidenced racial and sex discrimination, and that she was passed over for promotion many times on the basis of her race and sex. Defendant moved for summary judgment. The district court granted the motion in its entirety, and plaintiff appealed.

The Tenth Circuit held that the district court properly granted summary judgment as to plaintiff’s discrimination claims. The evidence was insufficient to establish direct evidence of discrimination. Plaintiff did not identify any evidence that defendant refused to promote her because of race or gender. Even if the derogatory comments were made, no connection existed between the comments and the adverse employment action. As to indirect evidence of discrimination, plaintiff did not meet her burden to show that defendant’s reasons for not promoting plaintiff were pretextual. Plaintiff also failed to meet her burden to make a prima facie case that she was discriminated against based on the terms and conditions of her employment.

However, the district court erred in dismissing plaintiff’s retaliation claim based on failure to promote. The failure of a discrimination claim is not necessarily fatal to a retaliation claim. Here, plaintiff presented an email that, on its face, demonstrated that a supervisor didn’t want to promote her because she would use the opportunity to further her EEOC complaint. Based on this email and other evidence, a reasonable jury could view the evidence and find that defendant’s reasons for not promoting plaintiff were pretext for retaliation. In contrast, plaintiff’s retaliation claim based on receipt of a performance improvement plan (PIP) was properly dismissed. Without more, issuing a PIP is not an adverse employment action in the Tenth Circuit. Additionally, the district court properly dismissed plaintiff’s retaliation claim based on realignment of her work territory.

The district court also erred in dismissing plaintiff’s hostile work environment claims. Based on the evidence presented, a reasonable jury could find that defendant maintained a sex-based hostile work environment. Specifically, the district court erred in disregarding a January 2008 incident of sex discrimination because it was more than 300 days before the EEOC filing. Hostile work environment claims often involve a series of incidents that span longer than 300 days, and what matters is that an act contributing to the claim occurs within the filing period. Plaintiff alleged a pattern of hostile work environment, and therefore, the January 2008 incident was improperly disregarded. Additionally, proof of either severity or pervasiveness can independently sustain a hostile work environment claim. In contrast, the district court properly disregarded an incident that occurred during plaintiff’s last week on the job because defendant promptly terminated the employees who engaged in the hostile behavior.

Plaintiff’s constructive discharge claim was also improperly dismissed. Constructive discharge occurs when a reasonable person in the employee’s position would view the working conditions as intolerable and would feel that quitting was the only choice. Because the district court based its dismissal of this claim on its dismissal of the hostile work environment claim, the Tenth Circuit reversed and remanded for the district court to consider whether plaintiff submitted sufficient evidence on this claim.

The dismissal of plaintiff’s discrimination claim was affirmed. The dismissal of the retaliation claim (as to failure to promote theory), the hostile work environment claim, and the constructive discharge claim was reversed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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