The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BRYNNA SCHELBAR PHILLIPS, )
)
Plaintiff, )
)
v. )
) Case No. 21-CV-195-TCK-JFJ
BOKF, NA, d/b/a BANK OF )
OKLAHOMA, )
)
Defendant. )
OPINION AND ORDER
The Court has for its consideration defendant BOKF, NA, d/b/a Bank of Oklahoma’s
(BOKF or Defendant) motion for summary judgment (Doc. 37). Plaintiff Brynna Schelbar Phillips
(Plaintiff) filed a response, (Doc. 58), and Defendant filed a reply, (Doc. 64).
This case arises from the termination of Plaintiff’s employment as a Special Assets
Manager III in Defendant’s Special Assets Division (SAD). On January 15, 2019, Plaintiff
received notice that her position was being eliminated due to reorganization of Defendant’s credit
administration department, following its June 2018 merger with CoBiz Financial (CoBiz). Plaintiff
maintains that the reduction in force was merely pretext, alleging that Defendant was in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). To that end,
Plaintiff asserts claims against Defendant for disparate treatment based on gender under Title VII,
for retaliation, and for intentional infliction of emotional distress (IIED).
In moving for summary judgment, Defendant counters that Plaintiff has failed to support
her disparate treatment claim with evidence of gender discrimination; that Plaintiff has failed to
show that a causal connection between her termination and a gender based protected activity; and
that Plaintiff’s IIED claim is barred by the statute of limitations. For reasons discussed below,
Defendant’s Motion for Summary Judgment is GRANTED.
I. FACTUAL BACKGROUND1
A. Plaintiff’s Employment at BOKF
On March 16, 2017, Defendant hired Plaintiff—a female with a law degree and more than
ten years of experience in banking litigation—for the Special Assets Manager III position in its
Special Assets Division (SAD), which is a branch of Defendant’s credit administration department.
(Docs. 37 at 7-8, ¶¶ 2-3; 58 at 2). Plaintiff was recruited for the position by BOKF human resources
(HR), and her supervisor, Eric Ernst (Ernst), ultimately made the decision to hire Plaintiff. (Docs.
37 at 8, ¶ 7; 58 at 2). At the time of Plaintiff’s employment and prior to the CoBiz merger, BOKF’s
SAD had six employees. (Docs. 37 at 8, ¶ 5; 58 at 2; 37-7). Of those employees, Plaintiff was the
most recently hired SAD Manager III; the only other SAD employee hired after Plaintiff was Ross
Pelton (Pelton), who was hired as a SAD Manager I. (Erst Dep. 207:17-210:24).
B. Conflict Between Plaintiff and Ernst
The record reflects that the first year of Plaintiff’s employment was relatively positive, if
unremarkable. That appears to have changed, however, around February 2018, when Ernst had
become angered after a disagreement with Plaintiff regarding a “loan workout” that Plaintiff was
attempting to complete. (Doc. 37-16 at 4). Matters escalated even further in April 2018, when
BOKF Chief Credit Officer (CCO) and Ernst’s supervisor, Marc Maun (Maun), spoke directly to
Plaintiff about a work matter, rather than going through Ernst—as would be the customary chain
1 The following material facts are not genuinely in dispute, as set forth in Defendant’s
motion for summary judgment, Plaintiff’s response in opposition to Defendant’s motion, or in
documentary evidence before the Court.
2
of communication. (Id.) Plaintiff states that Ernst construed Plaintiff’s conversation with Maun to
be evidence of Plaintiff going behind Ernst’s back. (Id.) From that point on, Plaintiff alleges that
Ernst began excluding her from vital meetings and failed to communicate with her about important
work topics. (Id.)
The conflict between Plaintiff and Ernst eventually came to the attention of HR. In late
May/early June 2018, Ernst exchanged several emails with Defendant’s HR representatives, Ali
Ferguson (Ferguson) and Scott Robin (Robin), concerning Plaintiff’s inconsistent work hours and
sporadic attendance at the office. (Doc. 58-7 at 4-18). Despite Ernst’s request to send a written
reprimand email to Plaintiff, HR instructed Ernst to have a verbal conversation with Plaintiff about
her alleged absenteeism because Plaintiff was an exempt level employee. (Id. at 6).
The tensions reached a new pitch in August 2018 during an argument between Ernst and
Plaintiff about a customer loan that was in trouble. (Phillips Dep. 62:24-63:21). Ernst came into
Plaintiff’s office at 4:00 p.m. on Friday, August 3, 2018, and proceeded to argue with Plaintiff in
an “unprofessional and unreasonably aggressive manner” within earshot of two other SAD
employees who were outside of Plaintiff’s office. (Doc. 37-16 at 4). Ernst had become so agitated
that he shut the door to Plaintiff’s office, shoved his fist in Plaintiff’s face, and said that they were
going to do things “his way” in a threatening manner. (Id.) Plaintiff later described Ernst’s tone
during the confrontation as “yelling, like under his breath, like parents do to children,” and Plaintiff
further elaborated that Ernst closed her door with one hand while clenching his other hand in a fist
over Plaintiff’s desk and instructed Plaintiff to resolve the customer issue in the manner he saw fit.
(Phillips Dep. 64-65). At 4:24 p.m. on August 3, 2018, Plaintiff called Defendant’s employee
resource center (ERC) to report the incident and held a brief phone interview, wherein Plaintiff
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confirmed that her office had a window next to the door and that she did not call for help during
the encounter. (Doc. 37-21).
Ultimately, HR did not substantiate Plaintiff’s complaint regarding the August 3 incident,
calling it a “he said/she said situation.” (Doc. 23 at 1). Although it was not substantiated, Ernst
agreed to refrain from future closed-door meetings with Plaintiff, and Plaintiff does not recall
having met with Ernst alone after the August 3 incident. (Docs. 37 at 15; 58 at 7). During a follow-
up of the incident, Plaintiff told the HR representative that she was disappointed by the fact that
her complaint was found unsubstantiated, especially given that a credibility determination
regarding the incident was made without having met with Plaintiff in person. (Doc. 37-23).
However, in that same correspondence, Plaintiff declined HR’s offer to interview other SAD
employees about the incident because, as Plaintiff stated, “it was a small thing[,] and it would put
everyone in an uncomfortable situation.” (Id.; Phillips Dep. 159:21-22).
C. CoBiz Merger
On June 18, 2018—around the time that Plaintiff’s conflicts with Ernst were escalating—
Defendant announced that it had entered into an Agreement and Plan of Merger with CoBiz
Financial. (Doc. 37-8). Maun testified that, after the merger, the credit administration department
had been tasked with achieving a specific target for expense reduction; and given that personnel-
related expenses comprise over eighty percent of his budget, this likely required a reduction in
force (RIF) for his department. (Maun Dep. 19:4-21). To that end, shortly after the merger
announcement, Maun held a meeting with credit administration managers—including Ernst—and
tasked the managers with submitting a recommendation regarding post-acquisition personnel for
their respective divisions. (Maun Dep. 42:14-20). In preparing their proposals, Maun directed the
managers to review the roster of employees and salaries within their division and develop a plan
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that maximized efficiency in relation to their division’s portfolio size. (Id. at 21:15-20, 71:1-17).
Maun testified that he was responsible for final approval of the managers’ recommendations,
though he would have reviewed the recommendations with his HR “business partner,” Jeff Reid,
before approving any recommendation. (Id. at 44:14-20). While “reduction in force” may not have
been the term used to describe this process, Maun stated that “it was certainly intended to be a
reduction in force.” (Id. at 47:2).
Ernst testified that he understood SAD to be a prime target for reduction in force because
CoBiz had its own special assets division and, thus, there would be considerable duplication within
the division post-merger. (Ernst Dep. 109:1-13). Ernst undertook the process for developing a
recommendation for his division in early July 2018, and he testified that the process took
approximately six weeks to complete. (Id. at 114:10-115:6). Ernst maintains that tenure and
banking experience were among the primary factors that he took into consideration when making
his recommendations, though he stated that he also considered an employee’s skillset
specialization, workout capacity, and caliber of work. (Id. at 115:6-14, 132:3-16).
The combined number of CoBiz and BOKF SAD employees at the time of the merger was
thirteen, and Ernst endeavored to reduce the post-merger department personnel to eight. (Docs.
37-9; 37-12; 58-3). The following is a summary of the SAD employees from both BOKF and
CoBiz, and Ernst’s final personnel recommendations for the integration of CoBiz and BOKF
special assets divisions:
1. Eric Ernst: Remain as Manager of SAD (BOKF employee with 25 years of banking tenure);
2. Mike Leatherland: Remain as SAD Manager III (BOKF employee with seven years of
banking experience);
3. Julie Chase: Transfer to Tulsa as SAD Manager IV (17-year CoBiz tenure and was the head
of the CoBiz special assets group);
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4. Brian Bowden: Remain in Denver, Colorado as SAD Manger III (15 years of banking
experience and earned top 10% grade on his last performance appraisal as CoBiz special
assets portfolio manager);
5. Nancy Snyder: Remain in Denver, Colorado as SAD Manager III (30 years of banking
experience and earned a top 10% grade on her last performance appraisal as CoBiz special
assets portfolio manager);
6. Ross Pelton: SAD II (4 years of banking experience, was hired by BOKF as SAD Manager
I shortly after Plaintiff, and he was the only person in the combined SAD, aside from Ernst,
capable of preparing “spreads”2);
7. Nancy Berardi: Create new position to remain in Denver, Colorado as a non-administrative
assistant role for SAD (5 years of workout experience);
8. Kathy Norrid: SAD Administrative Assistant III;
9. Andy Jamrozy: SAD Manager III (planning to retire in 2019);
10. Laurie Laudeman3: RIF candidate (20 years of banking experience, and though Ernst stated
that his preference was to have her remain with SAD after integration, she had received a
lower performance appraisal score than Snyder and Bowden);
11. Brynna Schelbar Phillips (Plaintiff): RIF candidate (18 months BOKF tenure);
12. Julie Smolar: Resigning; and
13. Barbara Grant: RIF candidate (Arizona Business Bank administrative assistant, no need for
that resource without an Arizona office).
(Docs. 58-3; 37-9; 37-7; 37-12; 37-26). Although Ernst testified that his decision to include
Plaintiff in his RIF recommendation was based on tenure and experience, (Ernst Dep. 250:10-21),
2 According to Maun, “spreading” is when a series of financial statements are placed “into
a financial spread that allows you to analyze them across time.” (Maun Dep. 53:13-25). This
apparently eases the process for calculating “appropriate financial ratios” and to “evaluate cash
flow.” (Id.) Plaintiff testified that the only other person in the SAD group that was capable of
preparing spreads was Ernst. (Phillips Dep. 116:7-20).
3 Although Laurie Laudeman was listed as an RIF candidate in Ernst’s final
recommendation to Maun, she was ultimately not terminated, and she remained with BOKF until
her retirement in approximately 2021. (Maun Dep. 99:5-12). Laudeman’s title post CoBiz
integration appears to have been SAD Manager III. (Doc. 37-26).
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his RIF memo to Maun justified his recommendation by stating: “[Plaintiff] essentially acted the
part until about six months into employment and then the genuine issues occurred. She has
provided some value since hire, but the value is being heavily outweighed by negative factors
impacting the rest of the staff.” (Doc. 58-3 at 4). Ernst’s changing explanations aside, Plaintiff
does not present any evidence that there was a SAD Manager III with less tenure than her that was
not terminated from employment. The evidence also establishes that the only employee among the
integrated group with less seniority than Plaintiff was Ross Pelton, who was a SAD Manager II
with spreading capabilities and primarily filled a support role for the team. (Doc. 58 at 2, ¶ 8; Maun
Dep. 83:20-84:6; Ernst Dep. 207:17-210:24).
D. Plaintiff’s Termination and Final Months of Employment
On October 1, 2018, BOKF finalized the CoBiz merger. (Docs. 37 at 5, ¶ 14; 58 at 4, ¶ 14).
Ernst’s recommendation to include Plaintiff in the RIF was approved by Maun, and the decision
was finalized by October 2018. (Maun Dep. 81:24-82:4). Maun held a meeting with his HR
business partner, Jeff Reid, on October 19, 2018, and it was determined that Plaintiff would be
included in the integration’s “second wave” of RIF, meaning that termination of Plaintiff’s position
would occur within the “January [2019] time frame.” (Id. at 82:14-17; Doc. 37-14).
On November 9, 2018—after Defendant decided to terminate Plaintiff’s position, but
before Plaintiff received notice of the termination—Plaintiff had another confrontation with Ernst
during her annual performance review. (Phillips Dep. 79:16-24; Doc. 58-5). Plaintiff maintains
that, in advance of the meeting, she was provided a copy of her yearly goals that were different
than the goals that she had previously been provided, and consequently, her performance review
reflected that Plaintiff had not met her annual goals. (Phillips Dep. 80:3-24). All of this came to a
head during the November 9 meeting attended by Plaintiff, Ernst, and Robin. (Doc. 58-5 at 3).
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Plaintiff became upset at one point during the meeting because Ernst apparently called Plaintiff a
liar on three separate occasions, and Plaintiff claimed that “Ernst had his hands clenched into fists,
berated her[,] and exhibited aggressive body language.” (Id.) Compounding Plaintiff’s frustration
was the fact that Robin passively observed the confrontation without attempting to intervene or
deescalate the situation. (Id.) It was also during this meeting that Plaintiff revealed to Ernst and
Robin that she was pregnant. (Phillips Dep. 82:20-23). Aside from the statements documented in
Plaintiff’s subsequent HR complaint, Plaintiff could not recall any specific statements made during
the November 9 meeting. (Id. at 82:1-23). Plaintiff also acknowledges that Defendant had paid her
a discretionary bonus for 2018, despite the adversarial nature of the November 9 performance
review. (Docs. 37 at 11, ¶ 18; 58 at 5, ¶ 18).
Plaintiff eventually received her notice of termination from Defendant on January 15, 2019.
(Doc. 37-15). The notice provided that Plaintiff’s last day of work would be January 15, 2019, and
that Plaintiff’s effective termination date would be July 31, 2019. (Id.) Defendant had changed
Plaintiff’s effective termination date from the standard 30 days of notice pay and severance, which
is equivalent to eight weeks base pay. (Doc. 37-13). Maun testified that the purpose of deviating
from the standard effective termination date was because Defendant learned Plaintiff was pregnant
and would become eligible for FLMA leave. (Maun Dep. 107:20-111:5). The practical effect of
extending Plaintiff’s termination date was that Plaintiff would continue to receive full salary and
health benefits through July 31, 2019—in addition to her 30-day notice pay, unused prorated
vacation leave, and severance (equivalent to eight weeks base pay)—though not requiring Plaintiff
to come to work. (Doc 37-6; Phillips Dep. 124, 139-40, 141). Thus, the record reflects that
Defendant deposited payroll and severance into Plaintiff’s Bank of America account through
8
September 13, 2019, and all told Plaintiff received $107,811.05 from Defendant between January
15 and September 13, 2019.4
E. EEOC Charge and Subsequent Litigation
On November 7, 2019, the Equal Employment Opportunity Commission (EEOC) received
Plaintiff’s signed Charge of Discrimination against Defendant, which alleged retaliation and
discrimination on the basis of gender, sex, and pregnancy in violation of Title VII. (Doc. 37-16).
In light of Plaintiff’s EEOC charge filing date, the only adverse employment event that is not
barred by the 300-day limitation period is the notice of termination that Plaintiff received on
January 15, 2019. Thus, to the extent that the August and November 2018 confrontations with
Ernst are actionable under Title VII, any such claim would be barred by the 300-day limitation
period for filing a charge with the EEOC. Plaintiff concedes as much, but she maintains that those
events should nevertheless be considered as circumstantial evidence for the discrimination claim.
(Doc. 58 at 9, 16-18).
Plaintiff filed suit against Defendant in the District Court of Tulsa County, Oklahoma on
April 8, 2021. (Doc. 2-1). The complaint5 raises three claims against Defendant, namely: 1)
discriminatory disparate treatment based on gender in violation of Title VII ; 2) retaliation in
violation of Title VII; and 3) IIED. (Id.at 6-7). Defendant timely removed the case to this Court
based on federal question jurisdiction over Plaintiff’s Title VII claims and supplemental
4 Plaintiff’s September 13, 2019, paystub reflected a total gross pay for 2018 in the amount
of $112,978.05. (Doc. 37-6 at 30). Plaintiff received her normal payroll check for the January 1
through January 15 pay period on January 15, 2019, which was in the amount of $5,167. (Id. at
12). Thus, $107,811.05 is the total amount Defendant paid to Plaintiff after the notice of
termination.
5 Although Plaintiff’s initial pleading filed in state court was originally styled as the
petition, (Doc. 2-1), the Court will refer to that document as the complaint, in keeping with the
title given to initial pleadings in federal court.
9
jurisdiction over Plaintiff’s state-law IIED claim. (Doc. 2). Defendant now moves for summary
judgment, arguing in relevant part that Plaintiff has failed to establish the requisite elements of her
discrimination and retaliation claims and that Plaintiff’s IIED claim is barred by the statute of
limitations.
Plaintiff does not respond to Defendant’s argument that her IIED claim was filed more than
two years after the operative events giving rise to her claim occurred. (Docs. 37 at 27-28; 58; 64
at 9). Given that Oklahoma’s statute of limitations on IIED claims is two years and that the
complaint was filed more than two years after Plaintiff’s alleged conflict with Ernst and Defendant,
Plaintiff’s IIED claim must be dismissed. Plaintiff does, however, respond to Defendant’s
arguments regarding her Title VII claims. The Court now turns to address Plaintiff’s Title VII
claims against Defendant.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if “there is no genuine issue as to any material fact, and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the burden of showing that no genuine issue of material fact exists. See Zamora v. Elite
Logistics, Inc., 449 F.3d 1106, 1112 (10th Cir. 2006). In its summary judgment analysis, the Court
resolves all factual disputes and draws all reasonable inferences in favor of the non-moving party.
Id. However, the party seeking to overcome a motion for summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A movant that “will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim,” but may “simply . . . point[] out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc.,
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144 F.3d 664, 671 (10th Cir. 1998) (internal citations omitted). If the movant makes this prima
facie showing, “the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth
specific facts’ that would be admissible in evidence in the event of trial from which a rational trier
of fact could find for the nonmovant.” Id. (citing Fed. R. Civ. P. 56(e)). To meet this burden, the
nonmovant must set forth facts “by reference to affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Id. (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013 (1992)). “In response to a motion for summary
judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion, and may not
escape summary judgment in the mere hope that something will turn up at trial. The mere
possibility that a factual dispute may exist, without more, is not sufficient to overcome convincing
presentation by the moving party.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (internal
citations omitted).
III. DISCUSSION
A. Title VII Disparate Treatment Claim
The Court notes at the outset that the complaint premises Plaintiff’s gender discrimination
claim on disparate treatment with respect to discipline, promotions, and progress reviews. (Doc.
2-1 at 6). However, Plaintiff’s response to summary judgment appears to reroute that claim, citing
only Plaintiff’s termination as the adverse employment event giving rise to gender discrimination
under Title VII. (Doc. 58 at 18). It is well established that an employee alleging discrimination and
retaliation must file a Charge within 300 days of the alleged unlawful act. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002). Given that “each discrete incident of [discriminatory]
treatment constitutes its own ‘unlawful employment practice’ for which administrative remedies
must be exhausted,” Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003), Plaintiff’s
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termination is the only adverse employment event that is not barred by the 300-day limitation
period for filing a charge with the EEOC. As the Supreme Court has held, however, the 300-day
limitation period does not “bar an employee from using prior acts as background evidence in
support of a timely claim.” Morgan, 536 U.S. at 113. Therefore, the Court analyzes only Plaintiff’s
termination, though Plaintiff’s allegations that predate the 300-day limitation period are considered
only to the extent that they provide background evidence in support of Plaintiff’s timely claim.
Title VII prohibits an employer from discharging “any individual . . . because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). To prevail, “a plaintiff must show, through either
direct or indirect evidence, that the discrimination was intentional.” EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000). “When a plaintiff asserts a sex or age
discrimination claim but cannot produce any direct evidence of discrimination, as here, the burden-
shifting framework announced in McDonnel Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1972), applies.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620,
627 (10th Cir. 2012). Pursuant to this framework, a Title VII plaintiff has the “burden of proving
by the preponderance of the evidence a prima facie case of discrimination.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510 (2002); Neal v. Roche, 349 F.3d 1246, 1248 (10th Cir. 2003).
As a preliminary matter related to the elements of Plaintiff’s prima facie case, the Court
notes that Plaintiff disputes the characterization of her termination as a reduction in force, arguing
that the phrase “reduction in force” was never used to describe the CoBiz/BOKF integration and
that the RIF label was unique to her termination. (Doc. 58 at 4, 12-13). To her point, Maun testified
that the Defendant referred to the reduction of expenses from integration as “synergies,” as
opposed to reductions in force, and he was not certain that the term “reduction in force” was ever
officially used. (Maun Dep. 18:5-24; 46:12-47:2). The Court, however, finds that the semantic
12
incongruency highlighted by Plaintiff is a distinction without a difference. That Defendant
replaced the term RIF with a nebulous euphemism does not create a triable issue of fact. To the
contrary, the evidence in the record uniformly pulls in the same direction. Specifically, Maun was
unequivocal that his instruction to credit administration managers had the practical effect of
reducing the total department personnel among the two companies after the merger. (Id. at 46:12-
17). Additionally, Ernst clearly understood Maun’s orders to the managers as proposing
recommendations for a reduction in force, as is evidenced by his emails consistently referring to
reductions in force and appearing to reach a 40% reduction in personnel. (Docs. 37-9; 37-12; 58-
3). Given that Plaintiff herself cited “Position Elimination” as the reason for ending her
employment with BOKF, the Court is not persuaded that her apparent about-face on the RIF issue
presents a genuine issue of fact. (Doc. 58-6 at 4). In light of the foregoing, the Court finds that
there is no genuine issue of material fact that Defendant undertook a reduction in force following
its acquisition of CoBiz, and thus, the Court analyzes Plaintiff’s prima facie case under the RIF
framework.
To establish a prima facie case of discrimination in the RIF context, courts in this Circuit
have required Title VII plaintiffs to show: (1) that she is within the protected gender group; (2)
that she was doing satisfactory work; (3) that she was discharged despite the adequacy of her work;
and (4) that there is some evidence the employer intended to discriminate against her in reaching
its RIF decision. Brainard v. Topeka, 597 Fed. App’x. 974, 978 (10th Cir. 2015); Beaird v. Seagate
Tech., Inc., 145 F.3d 1159, 1167, n. 4 (10th Cir.1998) (noting that the prima facie case for gender
discrimination in RIF context is the same framework for age claims); Morrow v. Oklahoma Dep’t
of Rehab. Servs., 2016 WL 9022591, at *3 (W.D. Okla. Nov. 3, 2016) (applying RIF framework
to termination as part of restructuring job duties). Here, the parties do not dispute that Plaintiff is
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a member of a protected class, and the Court assumes for the purposes of summary judgment that
Plaintiff has carried her burden with respect to the second and third elements. Thus, the Court turns
to the fourth element of Plaintiff’s claim, that is, whether there is evidence that Defendant intended
to discriminate against Plaintiff in reaching its RIF decision.
“The fourth element may be established through circumstantial evidence that the plaintiff
was treated less favorably than . . . male employees during the RIF.” Brainard, 597 Fed. App’x. at
978 (alterations and internal quotations omitted). To that end, there is a rebuttable presumption of
discriminatory intent when a plaintiff presents evidence that the defendant terminated qualified
female employees but retained similarly situated male employees. (quoting Beaird, 145 F.3d at
1165). In analyzing similarly situated employees, “[a] court should . . . compare the relevant
employment circumstances, such as work history and company policies, applicable to the plaintiff
and the intended comparable employees in determining whether they are similarly situated.”
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (quoting Aramburu
v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997)). Here, Plaintiff presents two comparators,
namely, Mike Leatherland and Ross Pelton. Specifically, Plaintiff argues that Mike Leatherland,
a SAD Manager III, retained his position after the CoBiz acquisition, received more respect from
Ernst, and was not berated by Ernst in front of Plaintiff. (Doc. 58 at 9-10). Plaintiff also asserts
that Ross Pelton—who was less experienced than Plaintiff—was not merely retained after the
integration, he was promoted and trained to take over Andy Jamrozy’s portfolio. (Id. at 10, 13,
19).
The Court is not persuaded that Plaintiff’s proposed comparators are sufficiently similar to
establish the fourth element of her prima facie case. Specifically, Mike Leatherland was more
tenured than Plaintiff. (Phillips Dep. 117:16-19). Aside from Plaintiff’s perception that
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Leatherland received more respect from Ernst, Plaintiff does nothing to address the fact that
Leatherland was more tenured than Plaintiff, nor does Plaintiff present evidence to suggest that
any differences in treatment were attributable to gender. (Phillips Dep. 114:2-115:11). With
respect to Pelton, the record reflects that Pelton’s position was SAD II and that he possessed
spreading capabilities. The SAD II position is primarily a support role, as opposed to the SAD
Manager III position that Plaintiff held, and though Pelton was trained to take over Andy Jamrozy’s
portfolio, Andy Jamrozy was a SAD II after the integration. (Maun Dep. 53:27; Doc. 37-26).
Further, the evidence reflects that Pelton was particularly critical for SAD because he was the only
support personnel in the group capable of doing spreads, and SAD managers—including Plaintiff
during her tenure as SAD Manager III—relied on spreads for their black book reports on “large,
complex, troubled loans.” (Phillips Dep. 68:11-22, 116:5-20). Given that Plaintiff does not account
for differences in title, responsibilities, or tenure, the Court must conclude that Plaintiff has failed
to establish that Pelton and Leatherland are sufficient comparators for purposes of the fourth
element of Plaintiff’s prima facie case. See Brainard, 597 F. App’x at 979 (holding that male
employee was not similarly situated when he had the same title but different responsibilities and
more experience).
In addition, Plaintiff does not dispute that the majority of retained CoBiz employees in the
integrated SAD group were female, nor does Plaintiff dispute that she was the least tenured among
the BOKF/CoBiz SAD managers. (See Docs. 37 at 9, ¶ 9; 58 at 3, ¶ 9).6 At most, Plaintiff’s
6 Although Plaintiff partly disputed Defendant’s statement of fact regarding the female
CoBiz employees, Plaintiff provided only two reasons for her dispute: 1) “The evidence to which
Defendant cites indicates that Nancy Berardi was “NOT RETAINED/RIF”; and 2) “nothing to
which Defendant cites indicates that Ms. Berardi had 14 years’ experience with CoBiz.” (Doc. 58
at 3, ¶ 9). However, Plaintiff’s disputes do not create a genuine issue of fact because Plaintiff later
15
evidence establishes that she had a contentious relationship with Ernst, which clearly influenced
his RIF recommendation. (See Doc. 58-3 at 4) (“Brynna essentially acted the part until about six
months into employment and then the genuine issues occurred. . . . the value [she provides] is
being heavily outweighed by negative factors.”). By Plaintiff’s own account, the conflict with
Ernst first began during a disagreement regarding a loan workout, when Plaintiff refused to
concede her position. (Doc. 37-16 at 4). The problem escalated when Plaintiff spoke directly with
Maun without first going through Ernst. (Id.) Although Plaintiff maintains that Ernst treated her
with less respect than her male counterparts, that belief is based purely on inarticulable perceptions.
(Phillips Dep. 114:4-19). On its face, the fact that Ernst did not berate male employees in front of
Plaintiff is no more attributable to gender than it is to a personality conflict with Plaintiff. Yet,
there is ample evidence in the record that tends to show a personality conflict between Ernst and
Plaintiff, while the only support for gender discrimination is Plaintiff’s subjective belief. Simply
stated, “[t]he evidence suggest[s] that [Plaintiff] was treated differently from other employees due
to a personality conflict with [Ernst],” which is not sufficient to create an inference of
discrimination. Anderson v. Acad. Sch. Dist. 20, 122 F. App’x 912, 916 (10th Cir. 2004).
Because Plaintiff has failed to show by a preponderance of evidence that Defendant
intended to discriminate against Plaintiff’s gender in reaching its RIF decision, Plaintiff has not
carried the burden of establishing her prima facie discrimination case. Accordingly, Defendant is
entitled to summary judgment with respect to Plaintiff’s Title VII discrimination claim.
B. Retaliation
admits that Nancy Berardi was retained after the integration, and the evidence establishes that
Berardi had greater tenure than Plaintiff. (See Docs. 37-10; 37-12; 58 at 13, ¶ B3).
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Title VII makes it an unlawful employment practice for an employer “to discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Like her discrimination claim,
Plaintiff’s retaliation claim is subject to the McDonnell Douglass burden-shifting framework. See
Zokari v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009). In order to establish a prima facie case of
retaliation, Plaintiff must show that: (1) she was engaged in protected opposition to discrimination;
(2) a reasonable employee would have found the challenged employment action to be materially
adverse; and (3) a causal connection exists between the protected activity and the materially
adverse employment action. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,
1202 (10th Cir. 2006).
In order to meet the first element of her prima facie case, Plaintiff must demonstrate that
she opposed a “practice made an unlawful employment practice by Title VII.” Zokari, 561 F.3d at
1081. “Opposition” can be protected even if a plaintiff is wrong about whether her employer had,
in fact, engaged in a violation of Title VII; instead, it is enough that a plaintiff had a “good faith
belief that Title VII ha[d] been violated.” Peterson v. Utah Dept. of Corrections, 301 F.3d 1182,
1188 (10th Cir. 2002). “But a vague reference to discrimination and harassment without any
indication that this misconduct was motivated by [a] category protected by Title VII[] does not
constitute protected activity and will not support a retaliation claim.” Anderson, 122 F. App’x at
916. “To oppose plain vanilla rude and unfair conduct by [a supervisor] is not oppose conduct
‘made an unlawful practice by [Title VII].’” Petersen, 301 F.3d at 1188 (second alteration
original). In this case, Plaintiff argues that she engaged in protected opposition when she filed
complaints with Defendant’s ERC and HR departments “on an ongoing basis between August and
November 2018.” (Doc. 58 at 22).
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The Court disagrees that Plaintiff’s ERC and HR complaints qualify as protected
opposition to discrimination because neither of Plaintiff’s complaints “convey[ed] a concern that
her employer engaged in a discriminatory practice made unlawful under Title VII.” Bowers v.
Medical Park Center Pharmacy, 2009 WL 2916893, *5 (N.D. Okla., Sept. 4, 2009). Rather,
Plaintiff contacted Defendant’s ERC in August 2018 “regarding [a] manager conflict [with] Eric
Ernst,” with Plaintiff stating that “Ernst showed threatening behavior towards [her].” (Doc. 58-8
at 2). In fact, Plaintiff told Defendant’s HR that her August 2018 confrontation with Ernst “was a
small thing[,] and it would put everyone in an uncomfortable situation” to interview other SAD
employees about the situation. (Phillips Dep. 159:21-22). Plaintiff’s second complaint in
November 2018 was also categorized as a “manager conflict [with] Eric Ernst.” (Doc. 58-5 at 3).
Plaintiff’s correspondence with Defendant’s ERC reflects that Plaintiff took particular exception
to Ernst “personally attacking [her] character and calling [her] a liar.” (Id. at 4-5). While Plaintiff
did note that she was pregnant in her November email to ERC, there was no suggestion that her
complaint was related to her pregnancy or gender. (Id.) Furthermore, the decision to terminate
Plaintiff had already been made in October 2018. (Id.; Maun Dep. 81:24-82:4).
Aside from a passing reference to pregnancy—after the decision to terminate Plaintiff had
been made—Plaintiff does not even make so much as a vague reference to gender-based
discrimination in her communications with ERC. Although it is clear that Plaintiff was frustrated
by Ernst’s behavior, her complaint had no relation to gender-based discriminatory conduct that
would implicate Title VII. Further, even if Ernst decided to include Plaintiff in the RIF after being
notified of Plaintiff’s ERC complaint in August 2018, Ernst’s retaliation is not unlawful under
Title VII because Plaintiff’s complaint was not a protected activity. Anderson, 122 F. App’x at
916. Based on the undisputed material facts, no reasonable juror would find that Plaintiff’s ERC
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complaints constitute protected opposition to discrimination under Title VII. Because Plaintiff has
not established her prima facie case of retaliation, the Court must grant Defendant’s motion for
summary judgment on Plaintiff’s retaliation claim.
IV. CONCLUSION
Plaintiff has conceded that her ITED claim is barred by the statute of limitations, and thus,
that claim must be dismissed. Additionally, because Plaintiff has failed to establish her prima facie
case with respect to her Title VII claims of discrimination and retaliation, those claims must also
be dismissed. Accordingly, Defendant’s motion for summary judgment (Doc. 37) is GRANTED,
and final judgment terminating the case shall be entered.
IT IS SO ORDERED this Ist day of May, 2023.
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“hice. CAC
TERENCE C, KERN
United States District Judge
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