Petition for Writ of Certiorari — Haynes v. Level 3 Communications, LLC, 127 S. Ct. 1372 (2007) (No. 06-638)
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Supreme Court, U.S.
No.
—— 96-63 8NOV 3 - 2006
OFFICE OF THE GLERK
In the
Supreme Court of the United States
October Term, 2006
LINDA HAYNES.
Petitioner.
Vv.
LEVEL 3 COMMUNICATIONS. LLC,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
Diane MacArthur Brown*
John R. Olsen*
Olsen & Brown, LLC
8362 Greenwood Drive
Niwot, Colorado 80503
(303) 652-1133
Counsel for Petitioner
*Counsel of Record
QUESTIONS PRESENTED
Since this Court's decision in Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002), eliminating the
continuing violation doctrine in most discrimination
cases, said decision has been honed to razor sharpness in
the circuit courts to dismiss cases contrary to the
remedial nature of discrimination laws and the intent of
Congress.
In doing so, certain courts of appeals have ruled that
even the most petty of workplace slights requires the
filing of a charge of discrimination with the EEOC or
said slight cannot become the basis of a claim of
discrimination more than 300 days into the future. This
has led to the unintended result that an employee whose
sales accounts are being slowly removed, one by one,
must file an EEOC charge for each and every removed
sales account or be forever barred from citing each
individual removal in any future discrimination action.
That is what happened in the instant case.
Moreover, certain courts of appeal -- including the
instant one -- have gone one step further to rule that
evidence originating more than 300 days before the
current adverse employment action cannot be used for
any purpose, including to prove discriminatory intent
regarding a later adverse action. This is as a matter of
law and amounts to a special statute of limitations for
use of evidence in discrimination cases. Certain courts
of appeals, including this one, have also ruled that said
301-day-old evidence is ipso facto irrelevant to prove
pretext and, in a retaliation case, causation.
il
Such rulings fairly should be addressed by this Court,
as they limit evidence unlike in any other cases in the
federal courts and whipsaw discrimination plaintiffs in a
way never intended by Congress.
In Ledbetter v. Goodyear Tire and Rubber Company,
Inc., No. 05-1072 [Petitioner's Brief filed September 7,
2006] the identical issue of limiting evidence of
discriminatory intent to the prior 180 (or 300) days is
already before this Court.
Thus, the questions presented are:
Whether removal of individual sales accounts and
similar petty actions in the workplace that do not have a
significant financial or other impact on the employee's
status should trigger a requirement of filing with the
EEOC each time they occur.
Whether personnel actions older than 300 days which
were not adverse employment actions at the time and did
not trigger the requirement of reporting to the EEOC
may be used to prove discriminatory and retaliatory
intent regarding a later employment action that otherwise
appears to be neutral on its face.
Whether such personnel actions older than 300 days
that were not adverse employment actions and did not
trigger the requirement of reporting to the EEOC at the
time may be used to prove pretext, and, in a retaliation
case, causation.
li
Whether there is or should be a 300-day statute of
limitations on use of evidence showing discriminatory
intent, pretext, or, in a retaliation case, causation.
iV
PARTIES 7O THE PROCEEDING
There are no parents or subsidiaries known to
petitioner.
TABLE OF CONTENTS
Page
CPCI FOOROIIIG 5 oc os 65s civ cons cds deed ewr 1-ill
RE IN G0 bs ha eveedivceensnaeen V-Viil
POON OL CHOG AMIIOVIIES oko cbc cce retinue iX-Xi
Se re Pare om
PL ib ad hd eae eee Foe ie |
Relevant Statutory Provisions ................0.. l
Statement of the Case 6... eee ee eee eee 2
Mg ee 2
B. Proceedings in the District Court .......... 5
C. Decision of the Court of Appeals........... 8
vi
TABLE OF CONTENTS--Continued
Reasons for Granting the Petition................. 10
REMOVAL OF INDIVIDUAL SALES
ACCOUNTS AND SIMILAR PETTY ACTIONS
IN THE WORKPLACE THAT DO NOT HAVE A
SIGNIFICANT FINANCIAL OR OTHER
IMPACT ON THE EMPLOYEE'S STATUS
SHOULD NOT TRIGGER A REQUIREMENT
OF FILING WITH THE EEOC EACH TIME
EE SOA 6 0 5 oN hoe dds utd daadevieees 10
THE COURT OF APPEALS DECISION TO THE
CONTRARY WILL CREATE HAVOC IN THE
WORK PLACE AND AT THE EEOC........ 10
PERSONNEL ACTIONS OLDER THAN 300
‘DAYS WHICH WERE NOT ADVERSE
EMPLOYMENT ACTIONS AT THE TIME AND
DID NOT TRIGGER THE REQUIREMENT OF
REPORTING TO THE EEOC MAY BE USED TO
PROVE THE DISCRIMINATORY AND
RETALIATORY INTENT REGARDING A
LATER EMPLOYMENT ACTION — THAT
OTHERWISE APPEARS TO BE NEUTRAL ON
SEER oS CNN oo sc ewes COlEC ea esee ene ks 15
Vii
SUCH PERSONNEL ACTIONS OLDER THAN
300 DAYS THAT WERE NOT ADVERSE
EMPLOYMENT ACTIONS AND DID NOT
TRIGGER THE REQUIREMENT OF
REPORTING TO THE EEOC AT THE TIME
MAY BE USED TO PROVE PRETEXT, AND, IN
A RETALIATION CASE, CAUSATION. ..... 15
THERE IS NO 300-DAY STATUTE OF
LIMITATIONS ON USE OF EVIDENCE
SHOWING ~~ DISCRIMINATORY INTENT,
PRETEXT, OR, IN A RETALIATION CASE,
Nt eee errr ee Or reo rr eT 15
EVIDENCE OF SUCH PERSONNEL ACTIONS
OLDER THAN 300 DAYS SHOULD BE
ADMISSIBLE TO PROVE DISCRIMINATORY
ANIMUS AND PRETEXT PRECISELY
BECAUSE IT WAS NOT FORESEEABLE THAT
THEY WOULD RESULT SOME DAY IN AN
ADVERSE PERSONNEL DECISION; AND THE
EMPLOYEE HAD NO REASON TO FILE AN
EEOC CHARGE Al THE TIME ............ 24
MORGAN EXPRESSLY DID NOT RESOLVE
THIS ISSUE; THE COURTS OF APPEALS ARE
DOING IT ON THEIR OWN, AND
ERRONEOUSLY SO, GIVEN THE REMEDIAL
PURPOSES OF THE ANTI-DISCRIMINATION
FS eer ee ee Pr er eee rT ee er eee 26
Vill
THE ISSUE OF A 180-DAY LIMITATION ON
EVIDEN’ ~ OF DISCRIMINATORY INTENT IS
PRESEN 7’ BEFORE THE COURT IN
FPF CO IS 4 9 8 6A ee 27
MPTP ECO Teer rere my 30
Appendix
Haynes v. Level 3 Communications, Inc.
(456:F 36 £213 (CARD BO) cv dcvcctnensdeuws la
Haynes v. Level 3 Communications, Inc.
(CATG, FRY 21, BOONE + 0 ces 0as bieanseaceeern 28a
ix
TABLE OF CITED AUTHORITIES
Page
Cases:
Arlington Heights v. Metropolitan. ............... 23
Housing Development Corp.,
429 U.S. 252 (1977)
i ee tek beer eceeccereervess 24
478 U.S. 385 (1986)
Brown vy. Board of Education, ..........000.00005 29
347 U.S. 483 (1954)
Brown v. Unified School District 501,............. 25
___F.3d___, (CA10, October 12, 2006)
Carpinteria Valley Farms. Lid... ........0.000000 23
v. County of Santa Barbara,
334 F.3d 796 (CA9 2003)
County of Washington v. Gunther, .........00.0065 30
452 U.S. 161, 178 (1981)
EE SS 28
251 F.3d 345 (CA2 2001)
CS eee 24
401 U.S. 75 (1998).
Haynes v. Level 3 Communications, LLC, ......... la
456 F.3d 1215 (CA10 2006)
Er 29
471 U.S. 222 (1985)
Hysten v. Burlington N. & Santa Fe Ry. Co.,........ 7
296 F.3d 1177 (CA10 2002)
EC ews e eet yecesscessees 2]
404 F.3d 556 (CA1 2005)
TABLE OF CONTENTS--Continued
Law v. Continental Airlines a eee eee 20
399 F.3d 330, (CADC 2005)
Ledbetter v. Goodyear Tire .......cccceccecvees 27
and Rubber Company, Inc.,
No. 05-1072
Bera v, COVE EEO, To cc cecntavtvvesedes: 21
27 F.3d 746 (CAI 1994)
Nat'l R.R. Passenger Corp. v. Morgan,............ 13
536 U.S. 101 (2002)
Reeves v. Sanderson Plumbing Prods., Inc.,........ 21
530 U.S. 133 (2000)
Rennard v. Woodworker's Supply, Inc.,.........464. 7
No. 03-8031, 2004 WL 1260309
(CA10 June 9, 2004)
RK Ventures, Inc. v. City of Seattle,.............. 23
307 F.3d 1045 (9th Cir. 2002)
Roberts v. Hoaibnay DIP., Tlic. ov cc cc ces cvesvvcns 7
149 F.3d 1098 (CA10 1998)
TU Rs hk 4 kee ae eee 7
350 F.3d 1286 1293 (CADC 2003)
United Air Lines, Inc. v. Evans,...........-00000: 25
431 U.S. 553 (1977)
Bf ee ee ee 28
509 F.2d 793 (CAS 1975)
Cela ans Us Gs ooo 5h oo 60 oe Cen eet kas 28
235 F.3d 466 (CA9 2000)
xi
Statutes and Rules:
pi ef. | ae ae |
os bs weve des 8
42 U.S. § 20000-SleK 1)... 6... cece cece cece l
CE SRE Ra eae peer en eee ar 22
. . & SSR a netenaecne crn, 30
Ph GGT a Sia tees eons ce oneaso hee Ress 29
Other Authorities:
52 Am. Jur. 2d LIMITATION OF ACTIONS...... 28
§ 24 (2006)
1
Petitioner Linda Haynes (“Haynes”) respectfully
requests that a writ of certiorari be issued to review the
judgment of the United States Court of Appeals for the
Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals was reported at
456 F.3d 1215 (CA10 2006), and is set forth at App. la-
27a. The underlying opinion of the district court was not
reported and is set forth at App. 28a-50a.
JURISDICTION
The judgment of the court of appeals was entered on
August 8, 2006. App. la. The jurisdiction of this Court
is invoked pursuant to 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5(e)(1), provides in relevant part:
"A charge under this section shall be filed
within one hundred and eighty days after the
alleged unlawful employment practice occurred
* * * except that in a case of an unlawful
employment practice with respect to which the
person aggrieved has _ initially instituted
proceedings with a State or local agency * * *
such charge shall be filed by or on behalf of the
person aggrieved within three hundred days
after the alleged unlawful employment practice
occurred* * *.
STATEMENT OF THE CASE
A. Factual Background
Petitioner Linda Haynes, a female with birth date of
April 6, 1954, had an extensive prior career in
communications sales. App. 4a-Sa. At her prior
company, she had been first in sales for all eight and
one-half years of her employment there. She was hired
into the respondent corporation ["Level 3"] as an
account manager, with an initial title of “carrier sales
manager” in the San Francisco office. She began in
March 1999. /d. Her tithe was changed to senior
account manager August 25, 2000.
In the year 2000, in a gradual process, Haynes' sales
accounts at Level 3 were taken away from her and given
to a new male employee in his 20s with comparatively
lesser experience and skills. App. 4a-5a, 30a. Over
time, Haynes complained about this gradual process to
her supervisor. The removal of Haynes’ sales accounts
was chronicled in e-mails and memoranda. /d. At the
same time, her work was shifted more toward the
clerical. Soon the younger male newcomer had ninety
accounts to Haynes' twenty or so. App. 31a.
But the removal of Haynes’ accounts, one at a time,
did not significantly affect her compensation or even her
annual performance evaluations. She was consistently
promoted at the corporation. She started at $75,000 and
was given raises up to $80,000 in base salary, the latest
raise on February 3, 2001, which was well after her
accounts were removed and given to the young male
comparator. The respondent corporation awarded stock
3
options (OSOs) to employees based upon the company’s
performance and the employee’s performance (employee
must be “at or above target” to receive OSOs). Haynes
was awarded liberal OSOs and provided with multiple
award letters and master award agreements. The very
supervisor who was removing Haynes’ sales accounts
also signed a performance evaluation for her in which he
endorsed her own self-rating a” 4.5 out of 5 (excellent
performer). The manager in charge of all of North
America told Haynes, “You’re very good; you’re exactly
what the company wants.” The above facts in this
paragraph were presented in Haynes’ briefing materials,
with evidentiary support, and never addressed by either
the trial court or the court of appeals. For summary
judgment purposes, they had to be taken as true.
In sum, even as sales accounts were being gradually
taken away from Haynes, her compensation was not
significantly affected and she did not file a formal
complaint with the EEOC. She certainly did not file a
formal complaint each time a single sales account was
taken away from her, which is what the Tenth Circuit
ruled she had to have done to preserve her rights, as will
be discussed infra.
But while she did not go to the EEOC as yet, Haynes
did not sit idly by. On September 19, 2000, Haynes
complained internally that her supervisor favored men
and disfavored women, including in the manner in which
he removed Haynes’ accounts and gave them to the
younger male. App. 6a.-7a. Upon hearing Haynes’
complaint about her supervisor, the human resources
department was contacted by management with a request
to speak with Haynes. /d. After a period of silence from
human resources, Haynes pressed the issue, asking for a
4
time to speak with human resources. /d. She finally got
to speak with the human resources representative on
November 1, 2000. /d. The human _ resources
representative accepted her comments as a complaint
pursuant to the company's "open door" policy and said
he would conduct an investigation.
However, the human resources department also (and
immediately) warned Haynes' chain of command of what
she had done, i.e. coming to the human resources
department to register a complaint. Within one day, on
November 2, 2000, one of Haynes’ superiors sent out a
threatening e-mail warning that going above his head
was forbidden. App. 8a. This e-mail directly violated
the corporation’s “open door” policy, which expressly
permitted such complaints as Haynes had taken to the
human resources department. And, of course,
complaints of discrimination are protected by the anti-
retaliation provision of Title VII.
Nonetheless, the human resources department did not
further investigate Haynes’ complaint of discrimination.
App. 7a.
However, eleven days after her superior's threatening
e-mail, on November 13, 2000, Haynes was placed on a
performance improvement plan (PIP) by the very
supervisor whose discrimination she had _ recently
complained about to the human resources department.
App. 8a.
A PIP is a form of discipline. In the PIP, Haynes was
criticized for not making certain quotas.
5
The human resources department helped Haynes’
supervisor prepare the PIP to give to her. App. 8a. The
human resources representative testified, “[W]Je did
create a document subsequent to that [her compiaint of
discrimination] regarding some performance issues that
they were having with her in the form of a performance
improvement plan.”
Then, on June 21, 2001 Haynes was informed that
she was laid off, effective three days before. App. 9a.
One of the criteria used by the company to select
employees to be laid off was whether the employee was
on a PIP. /d. The human resources representative
testified, “And someone who’s on a corrective action for
performance [PIP] would be one of those that would be
first to be reduced.” The human resources representative
testified, ““That’s how she got on the list."
Haynes filed her charge of discrimination with the
U.S. Equal Employment Opportunity Commission
[EEOC] on October 11, 2001. App. 9a.
B. Proceedings in the District Court
Haynes brought claims of discrimination and
retaliation and, after a period of discovery, the
respondent corporation filed a motion for summary
judgment, which the district court granted in its entirety,
dismissing the entire case. App. 9a.
The claims were dismissed notwithstanding the
district court's findings that plaintiff was discriminated
against in events prior to the end of November 2000
(removal of her sales accounts and placement on the
6
PIP), and retaliated against (imposition of the PIP on
November 14, 2000 for complaining about
discrimination to her management and the human
resources department). App. 43a. The trial court ruled
that, "Once defendant placed plaintiff on the PIP, the
PIP automatically resulted in her termination seven
months later." /d.
In proceeding to dismiss Haynes' claims for Title VII
and ADEA discrimination and retaliation, the district
court adopted an argument presented by the defense in a
footnote, that Haynes' EEOC charge was untimely. App.
39a
The district court ruled that Haynes was required to
file her EEOC charge within 300 days of the unlawful
employment practice, that her EEOC charge was filed
October 11, 2001, that therefore "the basis for plaintiff's
claims must have occurred no earlier than December 15,
2000," that Haynes' termination in the layoff was the
result of her PIP, but that Haynes’ PIP was prior to 300
days before the filing of her EEOC charge. App. 4la-
45a.
There was no evidence in this case and no finding by
the district court that the respondent corporation made its
layoff criteria known to its employees or that Haynes
could have been aware that her PIP caused her to be
placed at the top of any layoff list, or that Haynes even
knew there might be a layoff. No one could have
predicted the downturn that caused the layoff, the trial
court ruled. App. 17A.
The trial court noted that this fact pattern presented
Haynes with a "Catch-22," because certain legal
precedent established that written warnings, such as her
7
PIP, did not constitute an adverse employment action.
App. 43a. The district court cited Rennard v.
Woodworker's Supply, Inc., No. 03-8031, 2004 WL
1260309, at *10 (CAI0O June 9, 2004) (unpublished)
[written reprimands without "any immediate or practical
effect" on plaintiff's job do not constitute an adverse
employment action]; Zaylor v. Small, 350 F.3d 1286
1293 (CADC 2003) [placement of employee on a PIP
that does not affect his grade or salary does not
constitute an adverse employment action]. In sum, upon
being placed on the PIP, Haynes did not have a basis to
file an EEOC charge. Jd.
The district court went on to rule, however, that there
was contrary case law that "each act of discrimination
must fall within the 300 day period prior to the
employee's EEOC filing or be barred by the statute of
limitations." App. 43a-45a. Therefore the district court
decided that it was bound to obey Tenth Circuit law as
set forth in Hysten v. Burlington N. & Santa Fe Ry. Co.,
296 F.3d 1177, 1183 (CA10 2002) [holding that a
written reprimand can constitute an adverse employment
action], and Roberts v. Roadway Exp., Inc., 149 F.3d
1098, 1104 (CAI10 1998) [holding that an employer's
written warnings are an adverse employment action if
they make it more likely that the employee will be
terminated if there are further infractions]. /d.
Thus, on mixed legal precedent from the same court
of appeals, Haynes’ claims of age and sex discrimination
were dismissed because her termination was caused
solely by her old PIP, about which she had not
complained to the EEOC until more than 300 days had
passed.
8
Haynes then appealed to the Court of Appeals for the
Tenth Circuit, which had jurisdiction pursuant to 28
U.S.C. § 1291.
C. Decision of the Court of Appeals
The court of appeals upheld the summary judgment
in its entirety, ruling that Haynes' claims relating to the
sales accounts that were removed before December 15,
2000 (more than 300 days prior to filing of her EEOC
charge) were time-barred. App. 14-1Sa.
Thus, the court of appeals ruled that each time
Haynes’ supervisor removed a sales account from her,
such conduct constituted an individual adverse action
that triggered the running of the clock for Haynes to
bring an EEOC charge. App. 15a.
The court of appeals ruled at App. 1 Sa:
"Because each removal of an account
constituted an actionable adverse employment
action, Haynes was required to file an
administrative charge within 300 days of each
removal. She did not do so. Thus, any claim
based on the removal of her accounts is time-
barred."
The court of appeals elaborated on its new rule,
reiterating that each time an account was removed, that
constituted a discrete adverse employment action.
Because Haynes did not file a complaint of
discrimination with the EEOC each time a sale account
was removed from her, i.e. each single removal -- and all
9
of them -- were time-barred and could not support a
claim of discrimination. Jd.
The court of appeals ruled that this result was
because Haynes knew that each removal of an account
changed her employment status, i.e. contributed to her
failure to meet sales quotas, and she knew that said
accounts were being given to a younger male. App. 15a.
Paradoxically, the court of appeals then ruled that
Haynes' PIP did not constitute an adverse employment
action because it did not result in any significant change
in her employment status and benefits. App. 15a-18a.
However, the court of appeals reiterated that while the
removal of sales accounts led to the PIP, which in turn
led to the termination, the removal of the sales accounts
could not be relied upon to prove the required
discriminatory intent. Once 300 days had passed, those
actions -- the removal of the sales accounts -- were time
barred from forming any basis of a complaint of
discrimination, including as to proof of intent relating to
actions that occurred within the 300-day window. It did
not matter that removal of Haynes' sales accounts led to
the PIP, which itself was not time-barred since the PIP
did not constitute a discrete adverse act against Haynes.
App. 16a-23a.
Wrote the court of appeals: Since the removal of
sales accounts could not be considered, "the plaintiff's
loss of employment was merely an_ ‘inevitable
consequence’ of an earlier (time-barred) * * * decision,
and could not constitute a separately actionable event
* * * | App. 20a. In short, the critical datum is the point
in time at which the discriminatory act occurred, not the
point at which its effects became most injurious* * * .
The mere continuity of the employment relationship, in
10
and of itself, is not enough to prolong the life of a cause
of action."
In sum, the court of appeals ruled that evidence of
discriminatory intent would be admissible only if that
evidence was adducible from acts falling within the 300-
day window. Prior acts were irrelevant no matter what
intent they proved.
Moreover, the court of appeals ruled that pre-300-day
acts by the employer could not be used to prove either
pretext or, on a retaliation claim, causation. Once 300
days had passed, such telltale acts were valueless in a
federal court as_a matter of law, regardless of their
logical relevance.
REASONS FOR GRANTING THE PETITION
I.
REMOVAL OF INDIVIDUAL SALES ACCOUNTS
AND SIMILAR PETTY ACTIONS IN’ THE
WORKPLACE THAT DO NOT HAVE A
SIGNIFICANT FINANCIAL OR OTHER IMPACT
ON THE EMPLOYEE'S STATUS SHOULD NOT
TRIGGER A REQUIREMENT OF FILING WITH
THE EEOC EACH TIME THEY OCCUR.
Il,
THE COURT OF APPEALS DECISION TO THE
CONTRARY WILL CREATE HAVOC IN THE
WORK PLACE AND AT THE EEOC.
This petition secks to overturn a_ far-reaching
decision of the court of appeals that will render the
workplace a battle scene of employees versus employers.
11
The court of appeals decision has creatively declared
that, from now on, actions as petty as having a single
sales account removed must be complained about in a
timely fashion to the EEOC, or they can never thereafter
form the basis of a claim of discrimination, either
directly or indirectly, or even be used as evidence to
prove intent or pretext as to a later adverse action (or in a
retaliation case, to prove causation).
In the instant case, Haynes’ sales accounts were
reduced in number to twenty-something, and her
younger male comparators sales accounts were
increased to ninety (via an infusion of Haynes’ sales
accounts). Thus, Haynes would have been required to
file as many as seventy EEOC charges (or amended
EEOC charges) in order to preserve her anti-
discrimination rights and to demonstrate the pattern
against her. Any single sales account removal that she
omitted would become a non est factum against her
employer -- unusable for any purpose in the proof of
discrimination and discriminatory intent pursuant to the
court of appeals’ new ruling.
The application of such legal precedent to American
discrimination law is portentous. It will create havoc in
the workplace, and it demonstrates a trend in which
some federal courts have distanced themselves from the
real world of ordinary people. The suggestion -- now a
requirement within the Tenth Circuit -- that an employee
file an EEOC charge at each perceived discriminatory
slight in the office -- such as removing a single sales
account among ninety sales accounts -- will destroy
working relationships, obviate open communications in
businesses, and make the day-to-day working world a
12
series of administrative attacks and counterattacks -- all
with the oversight responsibility of the federal
government through the auspices of the EEOC.
Example: An elderly waitress in a restaurant notices
that her best table (for tips) has been assigned to a young
new waiter. And then another table and another over the
ensuring year. In order to thereafter be able to cite the
pattern against her, the court of appeals decision would
have required her to file a separate EEOC charge for the
first table removed from her waitressing area, and cach
one thereafter.
One can envision scores of such examples where an
employee would have to immediately go on_ the
offensive with an employer at each petty action, filing a
formal charge with the EEOC. All manner of work
changes would have to be complained about
immediately, or the victim would be forever time-barred
from bringing them up again.
The new court of appeals rule is_ particularly
portentous when carried to its logical conclusion. Once
the EEOC issues its "right to sue" letter on the first
discrimination claim -- relating to a single sales account
removed from Haynes' workload -- she would be
required to sue within 90 days or be forever barred from
doing so. The ensuing litigation would comprise either a
series of seventy federal lawsuits (in Haynes’ situation)
or a series of seventy amended complaints each time
another sales account is removed, presuming the trial
court would await the series of removals to run its
course.
13
This development in the Tenth Circuit, and
elsewhere, as shall be discussed infra, is the natural
consequence of this Court's abolition of the continuing
violation theory. See, Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002). Such decision, now
being honed to razor sharpness in the circuit courts, has
placed employees in a "damned if you do, damned if you
don't" straitjacket that ignores the real world of the
American workplace and undermines the remedial
purposes of Title VIL.
The immediate dilemma for an employee will be
whether to file an EEOC charge when a sales account is
removed or some other lesser affront occurs, or forever
hold one's peace. Of course, to file with the EEOC over
such a petty matter that does not affect one's wallet in a
significant way would ipso facto risk an end to one's
career at that company. Even the most level-headed
observer would wonder why the employee acted so
precipitously, instead of trying to work it out with the
employer, or merely by keeping one's head down.
Please recall that Haynes' compensation was not
significantly affected by the removal of any single sales
account or even all of them. She continued to get
promotions, raises and stock options (OSOs), not to
mention compliments for her performance at various
levels of management.
The court of appeals did not quantify a single
personal compensation loss that Haynes _ suffered
because of the removal of her sales accounts. ‘The
closest it came was noting that Haynes said that someone
else was getting paid on her accounts, which means he
was getting credit for them. Nonetheless, without any
14
reference to evidence of actual financial loss, the court
of appeals ruled that the removal of Haynes’ accounts
altered her "status and benefits" in some unexplained
way. The court of appeals inferred that Haynes "clearly
knew the discriminatory nature of [her supervisor's
removal of her sales accounts] and the resulting
detrimental effect on her income." This reference is
unsupported by any citation to financial evidence
regarding impact on Haynes’ income. Apparently a loss
of incoine of one dollar now requires a complaint to the
EEOC within the Tenth Circuit.
Thus, the new rule of the court of appeals is that if
the employee should recognize that the petty action
against her today may eventually impact her income in a
significant way down the road, then the time to complain
to the EEOC is now -- or be forever barred.
From common sense and business standpoints, why
should Haynes have gone to the EEOC every time a
single sales account was removed if there was no
immediate and significant impact upon her income?
According to the court of appeals, she should have
gone anyway, on pain of never being able to cite such
instances in the future.
Congress could not have intended such a result as is
embodied in the court of appeals decision.
15
iil.
PERSONNEL ACTIONS OLDER THAN 300 DAYS
WHICH WERE NOT ADVERSE EMPLOYMENT
ACTIONS AT THE TIME AND DID NOT
TRIGGER THE REQUIREMENT OF
REPORTING TO THE EEOC MAY BE USED TO
PROVE THE DISCRIMINATORY AND
RETALIATORY INTENT REGARDING A LATER
EMPLOYMENT ACTION THAT OTHERWISE
APPEARS TO BE NEUTRAL ON ITS FACE.
IV.
SUCH PERSONNEL ACTIONS OLDER THAN 300
DAYS THAT WERE NOT ADVERSE
EMPLOYMENT ACTIONS AND DID NOT
TRIGGER THE REQUIREMENT OF
REPORTING TO THE EEOC AT THE TIME MAY
BE USED TO PROVE PRETEXT, AND, IN A
RETALIATION CASE, CAUSATION.
V.
THERE IS NO 300-DAY STATUTE OF
LIMITATIONS ON USE OF EVIDENCE
SHOWING DISCRIMINATORY INTENT,
PRETEXT, OR, IN A RETALIATION CASE,
CAUSATION.
Please recall that Haynes was placed on the PIP on
November 13, 2000 at a time when no layoffs were
anticipated. The court of appeals found that, "* * * no
one at Level 3 anticipated the economic downturn that
would result in the RIF seven months later." App. 17a.
Moreover, the respondent company did not disclose to
its employees that in the event of a future layoff, being
16
on a PIP would place an employee at the top of the
layoff list.
Thus, Haynes had no way of knowing that placement
on the PIP would eventually result in a change in her
employment status. The court of appeals adopted that
logic. App. 17a. Since the PIP did not present a change
in employment status, the court of appeals ruled that the
PIP did not trigger a requirement of filing with the
EEOC. In so ruling, the court of appeals reversed the
district court. The court of appeals ruled at App. 1! 7a:
"Therefore, her placement on the PIP had no
apparent tangible effects other than the
requirement she meet her sales quota and a plan
to assist her in her efforts. Consequently,
Haynes' placement on a PIP was not an adverse
employment action."
Paradoxically, the court of the appeals then ruled that
placement on the PIP could not be used to prove
discriminatory or retaliatory intent in a personnel action
-- Haynes' selection for layoff -- that occurred more than
300 days later. App. 18a-24a.
Moreover, the court of appeals ruled that such
300-day-old evidence could not be used to establish
pretext either. App. 23a.
In sum, the court of appeals established a new statute
of limitations for use of evidence of intent and pretext
(and, in retaliation cases, causation as well). Such
evidence is ipso facto obviated and cannot be used for
any purpose once 300 days have passed, according to the
new rule of the court of appeals.
17
This is so even if the evidence relates to events that
never required filing with the EEOC in the first place
because those events did not comprise adverse
employment actions at all.
This is also so even if the discrimination victim had
no way of knowing that the earlier evidence would lead
to adverse actions beyond 300 days down the road.
The court of appeals ruled at App. 23a:
"These cases instruct, and we agree, that
Haynes cannot use [her supervisor's] alleged
intent in performing time-barred discrete actions
resulting in the PIP, to attach discriminatory
intent or pretext to the termination decision
based on a neutral policy.”
The court of appeals’ logic for this ruling was that, at
App. 23a,
"[T]he PIP was an inevitable consequence of
the alleged prior adverse employment actions,
for which she did not file a timely charge."
Again, this is a new rule banning use of evidence to
show discriminatory intent (and pretext, and, in
retaliation cases, causation) when that evidence relates to
events more than 300 days old -- even if there was no
requirement of filing with the EEOC at the time.
Such a new rule of law means that an employer can
take actions against an employee that are not so adverse
18
as to trigger the requirement of filing a charge with the
EEOC and then secretly use those actions more than 300
days later to put an employee on a list to be terminated.
The employee is then forbidden to cite those earlier
actions precisely because she did not complain about
them to the EEOC at the time. This is so even though
the intent to discriminate was kept secret by the
employer for 300 or more days.
Note: {ft was only through discovery that Haynes
learned that her placement on the PIP was the reason
why she was placed at the top of the layoff list seven
months later. °
Again, the court of appeals has whipsawed
employees and created a new rule of law that requires
them to file a claim of discrimination at the EEOC even
when there is no adverse action sufficient to file a claim
at the EEOC. If the employee does not do so -- when
she should have guessed about future secret events --
then the evidence is rendered valueless in exactly 300
days, when those future secret events unfold.
Thus, an employee must now be constrained to file a
charge of discrimination with the EEOC even when there
is no adverse action to base the charge upon. The law
should not involve such a conundrum. The law should
not be a guessing game for employees.
The court of appeals recognized that it was sailing
close to uncharted waters, because it wrote in a footnote,
at App. 21a, that,
"We need not and do not express an opinion
on the court's determination that an action may
19
accrue even though no adverse employment
action has occurred."
Nonetheless, this is indeed the effect of the court of
appeals decision -- and worse. Now once 300 days have
passed, not only does the employee lose her fully
accrued cause of action, which is appropriate under the
statute, but she loses the right to present those prior acts
as evidence of mental state or pretext as to later adverse
actions falling within the 300-day window. Likewise the
court of appeals decision erroneously denies a victim of
retaliation the use of such evidence older than 300 days
to prove causation (which is also what happened in the
instant case).
The logical and practical flaws in such a rule of law
are self-evident. Pursuant to the court of appeals
decision, an employer could secretly decide that women
can no longer work at the company because of their
gender, or Jews because of their religion, or blacks
because of their race, and wait 301 days to terminate
them without fear of anyone proving discriminatory
animus using the earlier evidence. Or using that
evidence to prove pretext, or, in a retaliation case,
causation.
It is one thing to rule that discrete acts more than 300
days older are not fair game for charges of
discrimination pursuant to Morgan, supra. It is entirely
another to rule that such acts can not be used to prove
discriminatory animus, pretext, or, in a retaliation case,
causation.
This is where certain courts of appeals have carried
this Court's decision in Morgan, supra -- to a new
20
extreme. As the court of appeals rationalized in the
instant case, at App. 22a,
"[A]llowance of a claim based solely on a
time-barred discrete employment decision
would ‘'undo' Morgan's insistence that each
discrete act start a new clock."
But the ruling by the court of appeals in the instant
case ipso facto means that both the mens rea and the
actus reus (together) must have occurred within 300
days, or it is as if the mental intent and the act never
occurred in the first place. As the court of appeals ruled,
such a happening is "merely an unfortunate event in
history which has no present legal consequences * * * ."
The Tenth Circuit is following a line of cases from
the First Circuit and the D.C. Circuit, spawned by
Morgan, supra. In Law v. Continental Airlines Corp.,
Inc., 399 F.3d 330, 334 (CADC 2005), the court of
appeals acknowledged that pursuant to Morgan, supra, a
prior act "may constitute relevant background evidence
in a proceeding in which the status of a current practice
is at issue." However, the court appeals expressed the
view that, "The exact scope of this caveat is unclear.”
The scope of said evidence and its use in proving
discriminatory animus is the very issue embodied herein,
and Petitioner seeks a commonsensical decision that
such evidence is no less relevant than a threat to murder
someone in January that is not carried out until
December, more than 300 days later.
It is incongruous to think that Congress intended a
limitation on such evidence of discriminatory animus
21
just because it was more than 300 days old. It also
undercuts the use of pretext pursuant to this Court's
unanimous decision in Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000).
Nonetheless, in Law, supra, the court of appeals for
the D.C. Circuit further discussed the cloudy "caveat" of
how such evidence could be used after Morgan, supra,
and severely limited its use, as follows:
"Whatever the caveat's precise reach, such
background evidence cannot suffice where
plaintiffs have offered no evidence of
discriminatory purpose other than (at most) [a]
discrete time-barred decision * * * ."
See, Jorge v. Rumsfeld, 404 F.3d 556, 563 (CAI
2005) ["[T]he critical datum is the point in time at which
the discriminatory act occurred,’ not the point at which
its effects became most injurious." Citing, Morris v.
Gov't Dev. Bank, 27 F.3d 746, 749 (CAI 1994)].
It *s these several courts of appeals that are simply
declaring as_a matter of law that such discrete prior
actions are "time-barred" even for use as evidence of
discriminatory intent, pretext or, in a retaliation case,
causation. The pertinent anti-discrimination statutes say
nothing of the sort.
Petitioner herein is not arguing that if she had waited
300 days after her layoff to file with the EEOC, then she
should still have been permitted to bring a claim in court.
This would cut against the express language of the
pertinent anti-discrimination statutes. But Petitioner is
arguing that when the actus reus occurs within the 300-
22
day window, then she can pull evidence of
discriminatory mens rea or animus from any logically
relevant period in the employment relationship, no
matter how far back in time it might be. Ordinary
analyses of relevance should apply, not some artificial,
ad hoc 300-day cutoff designed to eliminate as many of
such cases from the federal court system as possible.
To so artificially limit such evidence, without a
legislative mandate, would be as if the court of appeals
created a new rule of relevance in all criminal and civil
cases that only such evidence of intent that was
developed within the last 300 days will be admissible.
This is precisely what the new line of cases is doing,
but only in one area of the law --
discrimination/retaliation. The equal protection
provision of the Constitution requires that all
participants in the federal court system enjoy the same
rules of evidence absent some compelling reason to
exempt them out or treat them more severely.
F.R.E. 401 defines relevant evidence as evidence
"having any tendency to make the existence of any fact
that is of consequence to the determination of the action
more probable or less probable than it would be without
the evidence." There is no 300-day "caveat" or
limitation. Such a limited evidentiary window does not
exist anywhere but in the discrimination law of the First
Tenth, and D.C. circuits (and the Eleventh Circuit, as
shall be discussed infra).
No compelling showing to change the application of
the Federal Rules of Evidence has been made herein.
Indeed, given the remedial purposes of the anti-
23
discrimination laws, the opposite is true. All relevant
evidence should be admissible, just as in any other case.
Indeed, this Court has stated that a court should
undertake "a sensitive inquiry into such circumstantial
and direct evidence of intent as may be available."
Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 266 (1977).
Other courts of appeals have differed from the First,
Tenth and D.C. Circuits and ruled that time-barred
actions are relevant to both establish motive and put the
timely-filed discrimination claims in context. See,
Carpinteria Valley Farms. Ltd. v. County of Santa
Barbara, 334 F.3d 796, 800 (CA9 2003) ["[T]he district
court reached the correct result when it determined that
the time-barred acts could not be used to support claims
of constitutional violations under 42 U.S.C. § 1983.
[Plaintiff] may use these time-barred acts, however, as
evidence to establish motive and to put his timely filed
claims in context] [citing RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1062 (9th Cir. 2002)] [emphasis
added].
Likewise incidents that the court of appeals labeled
as time-barred in the instant case (removal of sales
accounts and placement on the PIP) should have been
available for use as evidence of the discriminatory
motive that resulted in Haynes being laid off at a later
time.
Congress never said that the 300-day limit also
limited the availability of relevant evidence from outside
that window of time. Indeed, this Court has long
proceeded on the premise that intentional discrimination
gives rise to new violations of the civil rights laws each
24
time said intent is implemented to_cause_new_ injury,
regardless of when that intent manifested itself. See,
Bazemore v. Friday, 478 U.S. 385 (1986). Congress
directed "the thrust of the Act to the consequences of
employment practices, not simply the motivation."
Griggs v. Duke Power Co., 401 U.S. 75, 80 (1998).
Vi.
EVIDENCE OF SUCH PERSONNEL ACTIONS
OLDER THAN 300 DAYS SHOULD BE
ADMISSIBLE TO PROVE DISCRIMINATORY
ANIMUS AND PRETEXT PRECISELY BECAUSE
IT WAS NOT FORESEEABLE THAT THEY
WOULD RESULT SOME DAY IN AN ADVERSE
PERSONNEL DECISION; AND THE EMPLOYEE
HAD NO REASON TO FILE AN EEOC CHARGE
AT THE TIME.
Please recall that the court of appeals ruled herein
that at the time Haynes was placed on the PIP no one
could have "anticipated the economic downturn that
would result in the RIF [reduction in force] seven
months later. Further no one could have predicted that
Haynes would be unable to meet the PIP * * *."
Thus, there was no reason for Haynes to have
identified, highlighted, or complained about the
possibility that the PIP would become the foundation for
an adverse employment action later. This is no different
than a company developing a secret reason to terminate
someone 300 days before effecting the termination. As a
matter of policy, such circumstances should not ipso
facto cleanse al] relevance from the fabric of the actions
25
that were perpetrated upon the employee more than 300
days before.
Indeed, the court of appeals expressly ruled that
Haynes' placement on the PIP did not even comprise an
adverse employment action under the law.
Such a finding that there was not even an adverse
employment action for the victim to proceed upon at the
EEOC undermines the court of appeals’ reliance for its
new rule of law on an even older case, United Air Lines,
Inc. v. Evans, 431 U.S. 553 (1977). In the instant case
and a more recent one with the same ratio decidendi,
Brown v. Unified School District 501, = ~F.3d so,
(CA10, October 12, 2006), the court of appeals pointed
to United Air Lines, Inc., supra, for the proposition that a
discrete act that was not complained about to the EEOC
in a timely fashion can not be cited to support an ensuing
claim of discrimination no matter how pertinent as a
matter of logical relevance.
However, the court of appeals failed to note that the
prior discrete act suffered by the plaintiff in United Air
Lines, Inc., supra -- a resignation forced by a no-
marriage rule -- was on its face an adverse employment
action (constructive discharge) that would and should
have triggered anyone to go to the EEOC. Thus, it
makes good sense to find that the victim should have
complained at the time. But such circumstances do not
mean that the prior acts should lose their relevance for
proof of discriminatory intent as to later acts that are not
time-barred.
In the instant case, however, Haynes had no reason to
go to the EEOC when she received the PIP, and the court
26
of appeals implicitly so ruled in determining that no
adverse employment action had occurred and thus the
clock did not even begin to tick.
Finally, fear of further retaliation is another factor.
Haynes had already been retaliated against once, for
merely complaining to the human resources department.
No one can blame her for not proceeding to the EEOC
regarding the PIP, especially when there was no adverse
employment action to complain to the EEOC about, as
the court of appeals ruled. Ifa "right to sue" letter had
been issued and Haynes had gone into federal court
regarding her PIP, her case would have been thrown out
because there was no adverse employment action in the
first place.
Congress could not have intended its cnactments to
whipsaw discrimination victims like this.
Vil.
MORGAN EXPRESSLY DID NOT RESOLVE THIS
ISSUE; THE COURTS OF APPEALS ARE DOING
IT ON THEIR OWN, AND ERRONEOUSLY SO,
GIVEN THE REMEDIAL PURPOSES OF THE
ANTI-DISCRIMINATION LAWS.
This Court in Morgan, supra, recognized that the
issue of the 300-day window (or 180-day window when
resort has not been taken to a state agency first) was not
completely resolved in Morgan. ‘This Court noted, 536
U.S. at 115, fn. 7:
27
"There may be circumstances where it will
be difficult to determine when the time period
should begin to run. One issue that may arise in
such circumstances is whether the time begins
to run when the injury occurs as opposed to
when the injury reasonably should have been
discovered. But this case presents no occasion
to resolve that issue."
Thus, this Court recognized that the date an injury
should have been discovered was a pertinent factor in
determining when the 300-day window begins to run. In
the instant case, Haynes had no reason to discover her
adverse employment action (the layoff) because (a) it
had not occurred yet, and (b) it could not have been
predicted. That is precisely why the court of appeals
determined that placing Haynes on a PIP did not
constitute an adverse employment action requiring her to
go to the EEOC.
VIII.
THE ISSUE OF A 180-DAY LIMITATION ON
EVIDENCE OF DISCRIMINATORY INTENT IS
PRESENTLY BEFORE THE COURT IN
ANOTHER CASE.
In Ledbetter v. Goodyear Tire and Rubber Company,
Inc., No. 05-1072 [Petitioner's Brief filed September 7,
2006] the issue of limiting evidence of discriminatory
intent to the prior 180 (or 300) days is squarely before
this Court. The issue therein is identical to the
evidentiary issue in the instant case, and the reasons for
granting the instant Petition are equally compelling. In
sum, several courts of appeals, including the Eleventh
28
Circuit in Ledbetter, as well as the First, Tenth and D.C.
Circuits, have decided to put on blinders and artificially
limit such evidence of intent to the past 300 days. This
Court is respectfully asked to take those blinders off and
deal with relevance and mens rea _ issues in
discrimination cases just as in any other cases in the
federal courts.
Indeed, the petitioner in Ledbetter has presented
cogent legal points proving that various courts of appeals
are straying far from congressional intent, and the
Petitioner herein wishes to fairly adopt those points with
credit to the Ledbetter litigants, as follows:
--An artificial limit on "how far back in time"
relevant evidence may be found conflicts with the basic
rationale of Bazemore, supra.
--It is not unusual for elements of a claim to arise at
different times. Example: price-fixing conspiracies may
involve agreements regarding intent years before such
intent manifests itself in illegal actions. Nonetheless,
such evidence is classically relevant. Another example:
Evidence of the intent to evade taxes may pre-date the
limitations period and be classically relevant to the
mental state needed to convict. United States v. Carlson,
235 F.3d 466, 470 (CA9 2000). As the court of appeals
ruled in United States v. Ashdown, 509 F.2d 793, 798
(CA5 1975), "It would be a bizarre result indeed if a
crime properly prosecuted within the limitations period
could not be proven because an essential element, such
as intent, could only be established by proof of incidents
occurring outside the period."
29
--A statute of limitations does not bar evidence that
pre-dates the beginning of the limitations so long as that
evidence is "relevant to events during the period."
Fitzgerald v. Henderson, 251 F.3d 345, 365 (CA2 2001)
(citing other cases); 52 Am. Jur. 2d LIMITATION OF
ACTIONS § 24 (2006). Any "suggestion that an item of
evidence relates to a period that is too remote goes to
both the item's relevance and its weight* * *."
Fitzgerald, at 365.
--In Reeves, supra, the Court considered evidence of
intent, or lack thereof, going back long before the
beginning of the limitations period.
--A contrary rule would have obviated this Court's
decision in Hunter v. Underwood, 471 U.S. 222, 233
(1985), merely because the action evincing the intent to
discriminate was the Alabama Constitution of 1901.
Such evidence of intent fell outside the limitations
period by more than 70 years, and in such a fact pattern,
the First, Tenth, Eleventh and D.C. courts of appeals
would have thrown the case out.
--Likewise, such a rule would have obviated Brown
v. Board of Education, 347 U.S. 483 (1954), because the
evidence of discriminatory intent fell outside the
limitations period, going back decades.
--If there is a fear that somehow the trial courts will
be deluged with stale claims, the doctrines of waiver and
laches remain integral parts of the federal legal system.
Nothing stopped the respondent corporation in the
instant case from asserting defenses of waiver and
laches.
30
--In addition, the traditional analysis of the probative
value of evidence versus its unfair prejudice, risk of
confusion or delay and cumulative nature is always
available to the trial courts. See, F.R.E. 403.
There is no need for an artificial 300-day limit on the
acquisition of evidence of (a) intent to discriminate, (b)
pretext, and (c) in retaliation cases, causation. Pursuant
to F.R.E. 402, all relevant evidence is admissible on
those issues unless otherwise proscribed by logical
irrelevance or express enactments, of which there are
none applicable to the instant case. This Court has noted
that, "We must therefore avoid interpretations of Title
VII that deprive victims of discrimination of a remedy,
without clear congressional mandate." County of
Washington v. Gunther, 452 U.S. 161, 178 (1981).
CONCLUSION
For the reasons set forth above, it is respectfully
submitted that the petition for a writ of certiorari should
be granted.
Respectfully submitted,
Diane MacArthur Brown
John R. Olsen
Counsel of Record
OLSEN & BROWN L.L.C.
8362 Greenwood Drive
Niwot, Colorado 80503
(303) 652-1133
Attorneys for Petitioner
November 3, 2006
APPENDIX
la
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LINDA HAYNES, FILED
United States Court of
Plaintiff-Appellant, Appeals, Tenth Circuit
August 8, 2006
V. Elisabeth A. Shumaker
Clerk of the Court
LEVEL 3
COMMUNICATIONS, No. 04-1307
LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 02-N-1694 (MJW))
2a
Submitted on the briefs:
John R. Olsen of Olsen & Brown, L.L.C., Niwot,
Colorado, for Plaintiff-Appellant.
Lisa Hogan, Richard P. Barkley, Meghan W. Martinez
of Brownstein Hyatt & Farber, P.C., Denver, Colorado,
for Defendant-Appellee.
Before TACHA, Chief Judge, BALDOCK and
O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
Linda Haynes filed suit against her employer,
Level 3 Communications (Level 3), following the
termination of her employment as part of a reduction in
force (RIF). She alleged violations of the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101-
12213, Title VII of the Civil Rights Act (sex
discrimination), 42 U.S.C. § 2000e, and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621. She also asserted a breach of contract claim. The
district court granted summary judgment in favor of
Level 3, concluding Haynes failed to timely file her
ADA, Title VII and ADEA claims and declined to
exercise supplemental jurisdiction over her breach of
contract claim. We exercise jurisdiction under 28
U.S.C. § 1291 and AFFIRM.
3a
Standard of Review
“We review the district court’s grant of summary
judgment de novo, applying the same legal standard
used by the district court.” Davidson v. Am. Online,
Inc., 337 F.3d 1179, 1182 (10th Cir. 2003) (quotation
omitted). Summary judgment is appropriate if the
evidence presented by the parties demonstrates “there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Fep. R. Civ. P. 56(c). An issue of fact is
“genuine” if the evidence allows a reasonable jury to
resolve the issue either way and is “material” when “‘it is
essential to the proper disposition of the claim.” Bennett
v. Quark, Inc., 258 F.3d 1220, 1224 (10th Cir. 2001).
“The party moving for summary judgment bears
the initial burden of demonstrating the absence of a
genuine issue of material fact.” /d. (citations omitted).
If the movant does not bear the burden of persuasion at
trial, it “may make its prima facie demonstration simply
by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” /d. (citations omitted). If the moving party
properly supports its motion for summary judgment,
“the burden shifts to the nonmoving party to go beyond
the pleadings and set forth specific facts from which a
reasonable jury could find in favor of the nonmoving
party.” /d. At all times, the record, and all reasonable
inferences drawn from it, are considered in the light
most favorable to the party opposing the motion. /d.
4a
With these standards in mind, we set forth the facts in
the light most favorable to Haynes.
Background
‘
After eight and a half years as a top sales person
at her former employer [XC, Haynes followed her boss,
David Weigand, to work at Level 3 in March 1999. Her
title was “carrier sales manager” in the San Francisco
office.' Initially, she worked directly for Weigand, but
following his promotion, Paul Larson became _ her
supervisor. At various times during Haynes’ tenure at
Level 3, Larson also supervised two other saleswomen,
Mary Vargo and Cari Burich (located in the Los Angeles
office), and two salesmen, Steve Stone and Shane
Quivey.
Shortly after Larson became the carrier products
unit supervisor, he began to recruit Quivey, a thirty-one-
year-old male working in the internet products unit.
When Quivey came to work in the carrier products unit,
Larson treated Quivey and Stone with a marked
preference compared with the saleswomen.’ Haynes
alleges Quivey acted inappropriately and did not follow
' During the relevant time period, Level 3 was divided into
three product sales groups — carrier, corporate and internet.
* Unfortunately, the exact dates of many of the allegations are
not in the record. It appears Larson became Haynes’
supervisor in June or July 1999 and Quivey joined the carrier
products unit in August or September 1999.
Sa
company procedures, yet Larson protected him. Haynes
also observed that Larson was gradually taking customer
accounts away from Vargo and giving them to Quivey.
As a result, Vargo was unable to meet her sales quota.
Vargo complained about the situation to Larson and
Wiegand, pursuant to Level 3's “open door policy.”
Shortly thereafter, Larson gave Vargo a _ poor
performance evaluation and placed her on a
“performance [improvement] plan (PIP).” (R. Vol. III at
413.) In February 2000, Vargo resigned.
While these events were taking place, Larson also
began taking accounts away from Haynes and giving
them to Quivey. Although Quivey was to give some of
his accounts to Haynes in trade, he never did. Haynes
claims Quivey also received favored treatment in the
form of assignments to the best leads and better pricing
for his clients.
Beginning in early 2000, Haynes’ health began to
decline. Sometime in May 2000, Larson demanded she
come to work against her doctor’s advice, only to have
her attend a meeting at which she was directed to give
Quivey one of her most lucrative accounts. According
to Haynes, this was a “watershed” moment. Haynes
confronted Larson and accused him of discriminating
against her on the basis of her age and sex. As Haynes
testified, “I realized that it was going to be a turning
point, that [Larson] knew that I knew what he was
’ Level 3 had a written “open door policy” whereby any
employee could speak about any topic without fear of
retaliation.
6a
doing.” (R. Vol. III at 239.) Thereafter, Larson began
to criticize Haynes to customers and management,
harming her relationships with her customers and Mike
Lanza, Larson’s direct supervisor. On May 18 or 19,
2000, Haynes complained to Lanza that Larson was
discriminating against her by giving the benefits of her
work to someone else.
Eventually, due to Larson’s alleged
discriminatory management, Haynes was unable to meet
her sales quota. Larson informally counseled Haynes
several times regarding her sales performance
throughout 2000. By August 2000, Haynes met only a
small percentage of her sales quota.‘ In early to mid-
September, Larson met with Haynes and again
informally counseled her on her performance.
On September 18, 2000, Haynes e-mailed Scott
Roberts, Senior Vice-President of Sales and Marketing,
and asked to exercise the open door policy.’ In the e-
mail, Haynes complained of Larson’s management style
and his failure to support her. On September 19, 2000,
Haynes sent a second e-mail to Roberts explaining her
position regarding Larson’s lack of management skills in
more detail and requesting help in resolving the
* While Level 3 contends she met only seven percent of her
sales quota, Haynes disputes this number, alleging the actual
percentage was approximately thirteen.
> Haynes testified she had spoken to Roberts frequently
regarding Larson’s treatment of older women prior to the
September e-mail.
7a
problem. She complained Larson’s lack of support
caused customers to get angry with her and, in turn,
caused Larson to reassign her accounts to Quivey. She
also alleged Larson had been unavailable to help close
deals, fell asleep during customer calls and had told her
not to discuss her problems with upper management.
Several e-mails indicate Haynes continued to ask
Roberts to assist her in receiving support and it appears
Roberts responded appropriately.
On October 3, 2000, Larson issued Haynes a
formal, written warning noting she had reached only
fifty percent of her year-to-date quota. On October 24,
2000, Roberts e-mailed Haynes to inform her he had
asked Randy Hester, Director of Human Resources, to
contact her regarding her request for an open door
meeting. On October 26, 2000, Haynes responded with
another request for a meeting. On November 1, 2000,
Haynes and Hester talked via telephone. In preparation
for the meeting, Haynes forwarded the September 19,
2000 e-mail she had sent to Roberts detailing her
complaints. Following the two-hour call, Hester
telephoned Lanza and Larson to find out why Haynes’
accounts had been moved. He was told some accounts
were moved by upper management and others at the
request of the customers. Hester did not investigate
further.°
* Level 3 vehemently disputes many of the facts alleged by
Haynes. Roberts and Hester testified they were never aware
that Haynes was complaining about sexual discrimination,
rather they understood it as a complaint about her manager
not giving her support and taking away her accounts. Haynes
8a
The next day, Lanza sent an e-mail to his staff,
including Larson. The e-mail stated in relevant part:
[Njo one is to take ANY issue to my
superiors without first bringing it to my
attention. I want to be very clear about this.
Nothing goes over my head unless I have
been made aware of it and AGREE that it
should be escalated. If there is a part of this
message that is unclear call me and I will be
happy to clear up any confusion. I want a
response back from each of you stating you
have read this and understand it.
(Vol. Ill at 361.) Larson forwarded Lanza’s message to
Haynes, Burich and Quivey' with his own
admonishment, “Please make sure everything goes
through Mike and I before it goes any higher.” (/d.)
Eleven days later, on November 13, 2000, Larson
placed Haynes on a PIP he devised with Hester’s
assistance. The PIP listed five objectives, including a
requirement that Haynes “[m]Jeet or exceed 100% of
{her} monthly sales quota . . . for December ’00 and
January ’01.” (R. Vol. III at 363.) It also stated, “[iJt is
crucial you understand how important your required
improvement is, since continued unsatisfactory sales
performance will result in further disciplinary action.”
insists she told them both that the discrimination was based
on her age and sex and informed them two other women had
also been victims of such discrimination.
9a
(Vol. Ill at 363.) Finally, the PIP informed Haynes if
she discussed its terms and conditions with any other
Level 3 employees, she was subject to immediate
termination.
Nine days after Haynes was placed on the PIP,
her physician informed Level 3 she was placing Haynes
on a two week medical disability for consultation with
specialists. Five days later, Haynes took a medical leave
of absence. The first twelve weeks of leave were taken
pursuant to the Family Medical Leave Act. After that
time, Haynes took indefinite leave under Level 3's
medical leave policy. She received short-term disability
payments from Level 3's third-party insurance carrier
through February 26, 2001. However, the third-party
insurance carrier denied her request for long-term
disability payments. It is undisputed Level 3 had no
control or influence over this decision.
Haynes remained on medical leave until Level 3
terminated her employment on June 18, 2001, as part of
a RIF. Larson and Lanza’s employment, among others,
was also terminated in the same RIF. Roberts made the
decisions as to which employees would be terminated.
One of the criteria for termination under the RIF was an
employee’s placement on a PIP.
Haynes filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC)
on October 11, 2001. At her request, the EEOC issued a
Notice of Right to Sue letter on June 27, 2002. On
September 4, 2002, Haynes filed this action against
Level 3 alleging she was terminated in violation of the
10a
ADA, Title VII and the ADEA. She also asserted a
breach of contract claim. Following discovery, Level 3
moved for summary judgment on all of Haynes’ claims.
After supplemental briefing, the district court granted
summary judgment in favor of Level 3. In so doing, it
construed Haynes’ complaint as incorporating two
separate bases for her claims — her termination and her
placement on the PIP. The district court denied relief,
concluding: (1) the termination of Haynes’ employment
was not discriminatory because it was premised on her
status under the PIP and it is uncontested that all
employees under a PIP were placed on the list to be
considered for the RIF, (2) the last action prior to the
RIF was placing her on a PIP, (3) the PIP was an
adverse employment action, (4) but it, and all other
alleged discriminatory acts, were outside of the required
300-day time period for filing an administrative claim.
After disposing of Haynes’ federal claims, the district
court declined to exercise supplemental jurisdiction over
her breach of contract claim.’ This appeal followed.
Discussion
All three of Haynes’ causes of action, Title VII,
ADEA and ADA, require that she file a timely
administrative claim within 300 days of the challenged
discriminatory action. Haynes filed her EEOC charge
on October 11, 2001. Therefore, the discriminatory
actions on which she bases her claims must have
occurred on or after December 15, 2000. 42 U.S.C. §§
” On appeal, Haynes does not challenge the district court’s
refusal to exercise supplemental jurisdiction.
lla
12117(a); 2000e-5; Duncan v. Manager, Dep’t. of
Safety, City & County of Denver, 397 F.3d 1300, 1308
(10th Cir. 2005) (Title VII); Davidson, 337 F.3d at 1183
(ADA); Beaird v. Seagate Tech., Inc., 145 F.3d 1159,
1174 (10th Cir. 1998) (ADEA). Generally, a cause of
action accrues “on the date the employee is notified of
an adverse employment decision by the employer.”
Davidson, 337 F.3d at 1187. However, not every
perceived indignity will rise to the level of an adverse
employment action triggering the 300-day limitations
period. A “mere inconvenience or alteration of job
responsibilities” will not do. Dick v. Phone Directories
Co., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005)
(quotation omitted). Only “acts that constitute a
significant 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” will rise to the
level of an adverse employment action. /d. (quotation
omitted). Nonetheless, “we liberally interpret” whether
an adverse employment action exists “and take a
case-by-case approach, examining the unique factors
relevant to the situation at hand.” /d. (quotation
omitted.)
We begin by identifying the allegations that
constitute an adverse employment action because such
“discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act
starts a new [300-day] clock for filing charges alleging
that act.” Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002).
12a
The very precision of this requirement —
not a year, not six months, not the state law
statute of limitations for comparable causes
of action — bespeaks Congress’s concern.
Title VII is not intended to allow employees
to dredge up old grievances; they must
promptly report and take action § on
discriminatory acts when they occur.
Unlitigated bygones are bygones.
Duncan, 397 F.3d at 1308.
The crux of Haynes’ argument on appeal is that
the district court erred in concluding the PIP was an
adverse employment action that occurred outside the
time limitation. She maintains the only adverse
employment action triggering the 300-day statutory
limitations period occurred on the date of her
termination. In any event, Haynes argues that under
Morgan, even if the PIP is an adverse employment
action, her allegations surrounding the PIP and all other
previous discriminatory actions are relevant as a
backdrop for the ultimate determination as to whether
the termination of her employment was discriminatory
and the RIF merely a pretext.’
* Haynes raises numerous. arguments on appeal that were not
presented to the district court. A significant portion of her
Opening Brief and Reply Brief is directed to her claim that
her PIP was limited to a two-month period (i.e., until January
2001). She reasons that, because the PIP was limited to two
months, she was subject to additional adverse employment
13a
Haynes is correct that the statute docs not “bar an
employee from using prior acts as background evidence
in support of a timely claim.” Morgan, 536 U.S. at 113
(emphasis added). Nonetheless,
such background evidence cannot suffice [to
establish a timely claim] where [there is] no
evidence of discriminatory purpose other
actions by (1) either being placed on a new PIP after January
2001, (2) extending the time frame for the PIP without her
knowledge or (3) being terminated when she was not actually
on a PIP. Haynes also insists the district court erroneously
characterized the PIP as automatically causing her
termination. She now insists it was only one reason she was
included in the RIF. None of these arguments were raised
below. Indeed, Haynes’ theory below was simply and
repeatedly based on a simple sequence of events:
In sum, plaintiff was laid off because she was put at
the top of the layoff list Which, in turn, was because
she had been placed on a corrective action plan, which,
in turn, was because she complained to human
resources about discrimination and mistreatment under
the ‘open door’ policy.
(R. Vol. II at 193). While Haynes’ new theories may seem
more attractive at this stage of the proceedings, we will not
consider them on appeal. Davidson, 337 F.3d 1179, 1188
(10th Cir. 2003); Gorman v. Carpenters’ & Millwrights’
Health Benefit Trust, 410 F.3d 1194, 1202 (10th Cir. 2005).
l4a
than (at most) [a] discrete time-barred
decision.... To decide otherwise would
completely undo Morgan’s insistence that
each discrete discriminatory act starts a new
clock for filing charges alleging that act.
Law v. Continental Airlines, Corp., Inc., 399 F.3d 330,
334 (D.C. Cir. 2005). Therefore, as our first step, we
will examine Level 3’s discriminatory acts as alleged by
Haynes prior to her termination to determine whether
any constitute time-barred discrete adverse employment
actions.
A. Discriminatory Acts Prior to Placement on the
PIP
Haynes’ allegations of Larson’s actions prior to
placement on the PIP may be parsed into three
categories: (1) a request to come to work while ill; (2)
lack of managerial support as compared with that
provided to the male employees; and (3) reassignment of
her accounts. As to the first two categories, we agree
with Haynes that they are not the type of actions that
would begin the statutory limitations period since she
has not alleged, and the record does not reflect, these
actions were anything but an inconvenience.
Larson’s repeated removal of Haynes’ accounts,
however, paint a different picture. As Haynes
repeatedly stated, these actions directly caused a
significant change in her employment status and
benefits. According to Haynes, Larson’s discriminatory
actions caused Quivey to receive the rewards of her
15a
work and, conversely, she was unable to meet her sales
quotas. Although she did not identify the precise
accounts unfairly removed, the dates they were
transferred to Quivey or the amount of income she lost
as a result of the transfers, Haynes clearly knew the
discriminatory nature of Larson’s actions and the
resulting detrimental effect to her income.’ Indeed, in a
November 7, 2000 e-mail to Larson, Haynes stated, “this
has impacted my sales output tremendously, as the work
I’ve done is not reflected in my base and someone else is
now getting paid on much of my work.” (R. Vol. III at
333.) Because each removal of an account constituted
an actionable adverse employment action, Haynes was
required to file an administrative charge within 300 days
of each removal. She did not do so. Thus, any claim
based on the removal of her accounts is time-barred.
B. Placement on the PIP
In essence, the district court concluded Haynes’
placement on a PIP was per se an adverse employment
action because it constituted a disciplinary action in the
form of a written warning. Most courts that have
* The record includes several e-mails dated August 13, 2000,
November 7, 2000, and September 17, 2000, in which
Haynes’ complains of the transfer of her accounts to Quivey.
In addition, Haynes’ also testified that the removal of an
account in May, 2000 was a “watershed” moment. Therefore,
while it is not clear exactly when her accounts were
transferred, the record indicates such transfers began, at the
latest, in May 2000 and ceased in November, 2000.
l6a
considered whether a PIP, standing alone, is an adverse
employment action have found it is not. Givens v.
Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005)
(“[Pjlacing [an employee] on a _ ‘performance
improvement plan,’ without more, did not constitute an
adverse employment action.”); Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003) (“[F]ormal criticism or poor
performance evaluations are not necessarily adverse
actions and they should not be considered such if they
did not affect the employee's grade or salary.”); Agnew
v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002) (the
possibility of termination mentioned in the plaintiff's
PIP “was contingent on future developments, rather than
being a present plan or decision” and therefore did not
constitute an adverse employment action supporting a
constructive discharge claim.).
Although the district court recognized the
existence of this non-binding precedent, it determined
the Tenth Circuit had reached the opposite conclusion.
Relying on Hysten v. Burlington N. & Santa Fe Railway
Company, 296 F.3d 1177, 1183 (10th Cir. 2002), and
Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104
(10th Cir. 1998), it held “[Haynes] could have filed a
charge of discrimination immediately after being placed
on the PIP because a written warning in the Tenth
Circuit constitutes an adverse employment action.” (R.
Vol. IV at 61.) We disagree with the district court’s
interpretation of our precedent and expressly join our
sister circuits in holding a PIP, standing alone, is not an
adverse employment action.
A written warning may be an_ adverse
17a
employment action only if it effects a significant change
in the plaintiff's employment status. For example, in
Roberts, the defendant had peppered plaintiff's file with
“twenty warning letters,” and the record demonstrated
“that the more warnings an employee received, the more
likely he or she was to be terminated for a further
infraction.” 149 F.3d at 1104."° Thus, the effect on the
plaintiffs employment status was an immediate
placement in an at-risk status. The facts in this case do
not demonstrate that Haynes’ placement on the PIP in
November had any immediate effect on her employment
status. She was not demoted, her pay did not change
and her responsibilities were not significantly modified.
Instead, she was presented with clear goals to achieve
her continued employment.
She also concedes no one at Level 3 anticipated
the economic downturn that would result in the RIF
seven months later. Further, no one could have
predicted that Haynes would be unable to meet the PIP
due to her subsequent unforeseen medical leave.
Therefore, her placement on the PIP had no apparent
tangible effects other than the requirement she meet her
sales quota and a plan to assist her in her efforts.
Consequently, Haynes’ placement on a PIP was not an
adverse employment action. See Dick, 397 F.3d at 1270
'° The facts in Hysten are not as clear. It appears the
plaintiffs retaliation claim relied on a written Level |
reprimand issued approximately two weeks after he filed a
discrimination suit. The effect of the reprimand is not,
however, set forth in the opinion. We can assume the record
indicated an immediate adverse consequence as a result.
18a
(holding a “single write-up is not an _ adverse
employment action.”).
oe Discriminatory Discharge
There is no question that Haynes’ termination
from Level 3 is an adverse employment action that
occurred within the 300-day statutory time period.
However, the district court determined Haynes failed to
present evidence of a discriminatory intent," .e., that her
inclusion in the RIF was based on her age, disability or
'' To prevail on a claim of age discrimination in the RIF
context, a claimant must show: “(1) the claimant is within the
protected age group; (2) he or she was doing satisfactory
work; (3) the claimant was discharged despite the adequacy
of his or her work; and (4) there is some evidence the
employer intended to discriminate against the claimant in
reaching its RIF decision.” Stone v. Autoliv ASP, Inc., 210
F.3d 1132, 1137 (10th Cir. 2000). “Under the ADA, a
plaintiff must show (1) that he is disabled within the meaning
of the ADA; (2) that he is qualified, with or without
reasonable accommodation, to perform the essential functions
of the job held or desired; and (3) that he was discriminated
against because of his disability.” Davidson, 373 F.3d at
1188 (quotations omitted). To prevail on a claim alleging
termination under Title VII, the plaintiff “must first establish
a prima facie case, demonstrating that: (1) he was a member
of a protected class; (2) he was qualified and satisfactorily
performing his job; and (3) he was terminated under
circumstances giving rise to an inference of discrimination.”
Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.
2004).
19a
sex, respectively, because her termination was pursuant
to a neutral policy. We agree.
In United Air Lines, Inc. v. Evans, Evans, a flight
attendant, was forced to resign in 1968 due to United’s
policy of prohibiting married flight attendants. 431 U.S.
553, 554 (1997). In 1971, United’s policy was found to
be unlawful. /d. In 1972, Evans was rehired but was
denied seniority credit for her past service. /d. at 554.
She filed suit alleging the discriminatory policy forcing
her to resign was the direct cause of her inability receive
the benefits attendant to her seniority in her current
position. /d. The question before the Court was whether
her failure to file a charge within 90 days of her 1968
separation caused her claim to be time barred and
foreclosed Title VII relief. Jd. at 556.
Evans argued, inter alia, that “the seniority
system [gave] present effect to the past illegal [policy|
and therefore perpetuate[d] the consequences of
forbidden discrimination.” /d. at 557. The Court
rejected this argument because the policy to refuse
seniority to rehired employees applied equally to those
who had terminated their employment because of
discriminatory and non-discriminatory practices,
notwithstanding their sex. /d. at 558. The Court
recognized “the seniority system [gave] present effect to
a past act of discrimination.” /d. Nonetheless, “United
was entitled to treat that past act as lawful” when Evans
failed to file a timely charge of discrimination. /d. The
Court explained that the past act “may constitute
relevaiit background evidence in a proceeding in which
the status of a current practice is at issue, but separately
considered, it is merely an unfortunate event in history
which has no present legal consequences.” /d. Because
the present (timely) employment decision was “neutral
in its operation,” the past discriminatory policy could
not be the basis of her claim. /d.; see also Delaware
State College v. Ricks, 449 U.S. 250, 258 (1980)
(Plaintiff neither alleged nor proved “that the manner in
which his employment was terminated differed
discriminatorily from the manner in which the College
terminated other professors who also had been denied
tenure.’ >).
Similarly, in Jorge v. Rumsfeld, the plaintiff,
Jorge, was employed by the Army and Air Force
Exchange Services in the commissary program for
military personnel. 404 F.3d 556, 559 (1st Cir. 2005).
In 1979, she became the retail manager of a Base store,
Toyland, and remained there for almost twenty years.
At the age of fifty-one, she elected to make a lateral
transfer to another store on the Base, where she was a
model employee until 1998. However, the assignment
of a new supervisor caused Jorge to complain about the
Supervisor's practices, to which the supervisor allegedly
responded with derogatory comments about her age.
While Jorge was on vacation, the supervisor unilaterally
transferred her back to Toyland, filled her position with
a younger, less experienced male and did not offer an
explanation upon her return. /d. Jorge refused to report
to Toyland, using all her leave and sick time resisting
the transfer. /d. at 560. Eventually, she was given the
option of either reporting to Toyiand or taking early
retirement. She submitted a notice of involuntary early
retirement and filed suit alleging constructive discharge
in violation of the ADEA and Title VII. /d.
The court determined Jorge’s claim accrued at the
time she was transferred, not at her resignation, even
though her transfer was not an adverse employment
action.'* /d. at 562. The court reasoned:
Jorge’s troubles evidently stemmed from the
sequence of events exemplifying the
harassing behavior of her new supervisor.
That sequence of events began in 1998 and
culminated in the order transferring her to
Toyland. Jorge refused to accept that
transfer, even though it entailed no loss of
pay, benefits, status, or the like.... By all
accounts, it was the refusal to report for
work and the passage of time that led to
[the] ultimatum, and Jorge does not suggest
that this action was anything other than
standard operating procedure.
Id. “Absent such an allegation, the plaintiff's loss of
employment was merely an ‘inevitable consequence’ of
the earlier (time-barred) . . . decision, and could not
constitute a separately actionable event.” /d. at 563.
(quoting Ricks, 449 U.S. at 257-58). “In short, the
criticai datum is the point in time at which the
" We need not and do not express an opinion on the court’s
determination that an action may accrue even though no
adverse employment action has occurred.
22a
discriminatory act occurred, not the point at which its
effects became most injurious . . . . The mere continuity
of the employment relationship, in and of itself, is not
enough to prolong the life of a cause of action.” /d.
(quotation omitted)."
Again, in Law, employees’ claimed a
discriminatory failure to promote occurring outside the
appropriate time limitations was the cause of their lower
pay checks, each a discrete discriminatory action. 399
F.3d at 332-33. The court rejected the claim because the
determination of the amount of the paychecks was made
pursuant to a neutral policy. /d. at 333. While the couri
recognized the earlier failure to promote could be used
as background under Morgan, it concluded the
allowance of a claim based solely on a time-barred
discrete employment decision would “undo” Morgan's
insistence that each discrete act start a new clock. /d. at
° The Supreme Court has noted, “[t]here may be
circumstances where it will be difficult to determine when the
time period should begin to run. One issue that may arise in
such circumstances is whether the time begins to run when
the injury occurs as opposed to when the injury reasonably
should have been discovered.” Morgan, 536 U.S. at 114 n.7.
In exceptional circumstances, “the 300-day period of
limitations for filing a charge with the EEOC may be adjusted
by cquitable doctrines such as waiver, estoppel and equitable
tolling.” Davidson, 337 F.3d at 1188. Haynes wisely did not
raise equitable tolling before the district court or on appeal.
The record reveals she clearly believed Larson’s actions were
discriminatory as early as May 2000, well over a year before
she brought her claims.
334.
These cases instruct, and we agree, that Haynes
cannot use Larson’s alleged intent in performing time-
barred discrete actions resulting in the PIP,"* to attach
discriminatory intent or pretext to the termination
decision based on a neutral policy. Haynes has failed
to allege any discriminatory act on or after December
15, 2000."" She does not claim that a PIP was outside
'* Haynes argues that, because the PIP was not an adverse
employment action, she had no opportunity to bring a claim
until her claim ripened at the time of her termination in June.
As discussed above, Haynes could have brought he claim as
early as May 2000 and as late as 300 days from November
2000. We note Haynes concedes that, at the time she was
placed on the PIP, she had failed to make her sales quotas, but
places the cause for her poor performance solely upon
Larson’s previous discrete acts of discrimination. Thus, her
allegations only underscore the fact that the PIP was an
inevitable consequence of the alleged prior adverse
employment actions, for which she did not file a timely
charge. See Ricks, 449 U.S. at 257-58 (“It appears that
termination of employment at Delaware State is a delayed,
but inevitable, consequence of the denial of tenure.”’).
' In her opening brief, Haynes alleges five discrete adverse
employment actions (other than being placed on the PIP)
occurring within the time limitations. First, she alleges the
PIP was extended or Level 3 imposed a new PIP. These
arguments were not presented to the district court. Therefore,
we will not consider them here. Second, she contends she
was fired while on approved sick leave. While it is true Level
3's policy does not allow someone to be terminated because
24a
standard operating procedure to address a failure to meet
her sales quota. Neither has she alleged that Level 3 did
not even-handedly include all employees currently on a
PIP in the RIF. Finally, Haynes presented no evidence
that any other employees on a PIP were spared in the
RIF. As a result, she fails to demonstrate any timely
inference of discrimination in her inclusion in the RIF.
Accordingly, we affirm summary judgment in favor of
Level 3 on her claims of unlawful
discharge."
he or she is on sick leave, Level 3 consistently stated Haynes
was terminated during the RIF because of the PIP, a fact
admitted by Haynes. Haynes’ third allegation centers on the
failure to approve long-term medical leave. However, it is
uncontested that Level 3 was not involved in this decision.
Haynes’ fourth and fifth alleged adverse employment acts are
her placement on the list to be included in the RIF and her
termination. As stated above, Haynes fails to show these acts
to be discriminatory, as all employees in her situation were
treated similarly.
'’e Given our determination that summary judgment is
appropriate on this basis, we need not address whether the
district court erred in determining Haynes was not “disabled”
under the ADA or whether she waived this issue on appeal.
tv
an
on)
D. Retaliation
Haynes also claims her inclusion in the RIF was
in retaliation for her complaints of discrimination under
Level 3's open-door policy. To succeed on a claim of
retaliation a plaintiff must show: “(1) that he engaged in
protected opposition to discrimination, (2) that a
reasonable employee would have found the challenged
action materially adverse, and (3) that a _ causal
connection existed between the protected activity and
the materially adverse action.” Argo v. Blue Cross &
Blue Shield of Kan., Inc., 2006 WL 1806605 at *7 (10th
Cir. 2006) (10th Cir. 2006) (citing Burlington N. &
Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006))
(footnote omitted). Here, Haynes’ meeting with Hester
occurred on November, 1, 2000. She was placed on the
performance improvement plan on November 13, 2000
and terminated June, 2001, over seven months later.
“A causal connection may be shown by evidence
of circumstances that justify an inference of retaliatory
motive, such as protected conduct closely followed by
adverse action.” O'Neal v. Ferguson Constr. Co., 237
F.3d 1248, 1253 (10th Cir. 2001) (quotation omitted).
Standing alone, temporal proximity between the
protected activity and the retaliatory conduct must be
very close in time. Otherwise, “the plaintiff must offer
additional evidence to establish causation.” /d. A
seven-month period between protected activity and
adverse action will not, by itself, establish causation.
See Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999) (“[A] three-month period,
standing alone, is insufficient to establish causation.”).
26a
Haynes argues the temporal proximity is
sufficient here because Level 3 could not “immediately”
terminate her while she was on medical leave, and
therefore, “[t]he company’s opportunity to camouflage
plaintiff's termination within an innocent-looking RIF
did not present itself until a RIF was scheduled.”
(Appellant’s Br. at 33.) Such speculative argument is
not only insufficient, it defies logic.
Assuming Larson’s decision to place Haynes on
the PIP was because she had spoken out, such
assumption does not establish an inference that Larson’s
motive carried over to Roberts’ decision, seven months
later, to include her in the RIF. “An employer's refusal
to undo a discriminatory decision is not a fresh act of
discrimination.” Croy v. Cobe Labs, Inc., 345 F.3d
1199, 1203 (10th Cir. 2003) (quotation omitted); see
Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 240
(7th Cir. 2004); Stewart v. Booker T. Washington, Ins.,
232 F.3d 844, 853 (llth Cir. 2000); Lever v.
Northwestern Univ., 979 F.2d 552, 556 (7th Cir.1992).
Indeed, the facts indicate no causal connection between
Larson’s alleged retaliatory decision and Roberts’
neutral application of policy.
Haynes admits that, at the time Larson acted.
neither he nor anyone else at Level 3 anticipated the
future RIF or was aware the PIP would expose Haynes
to collateral vulnerability regarding her employment.
(Appellant’s Br. at 20.) (She concedes “[N]ot even the
manager who placed plaintiff on the original PIP could
predict that it was a precursor to plaintiffs
27a
termination.”) Two weeks later, Haynes left work on
medical leave. Haynes’ assertion that her medical leave
prevented her immediate termination is refuted by the
fact she was on medical leave at the time she was
included in the RIF. Haynes does not dispute Level 3's
policy whereby persons under a corrective action plan
were chosen to be placed on the list for inclusion in the
RIF. Haynes does not aver there were employees
exempted from this policy or that some employees under
a corrective action plan were not fired. In short, Haynes
has not shown any connection between Larson’s
motivation placing Haynes on the PIP and Level 3's
decision to include all employees on a corrective action
plan as primary candidates and their ultimate inclusion
in the RIF. See Manning v. Chevron Chemical Co.,
LLC., 332 F.3d 874, 884 (Sth Cir. 2003) (applying a
general policy to an employee is not retaliation), cert.
denied, 540 U.S. 1107 (2004). Thus, she has failed to
establish the causation element of her retaliation claim.
Conclusion
In sum, to the extent Haynes’ claims rely on her
discharge, she fails to establish the discriminatory intent
necessary for a prima facie case. To the extent Haynes’
claims are based on Larson’s actions, her claims are
untimely. Accordingly, we AFFIRM summary
judgment in favor of Level 3.
28a
IN THE UNITED STATES DISTRICT COURT .
FOR THE DISTRICT OF COLORADO
Judge Edward W. Nottingham
Civil Action No.
02-N-1694
LINDA HAYNES, FILED
United States District Court
Plaintiff, Denver, Colorado
July 27, 2004
V. Gregory C. Langham
Clerk
LEVEL 3 ni Ae oe
COMMUNICATIONS,
LLC,
Defendant.
ORDER AND MEMORANDUM OF DECISION
This is an employment discrimination case. Plaintiff
Linda Haynes alleges that her employer, Defendant Level 3
Communications. LLC, discriminated against her in
violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C.A. §§ 12101-213 (West 1995 & Supp. 2004), Title
VII, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1995 & Supp.
2004), and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C.A. §§ 621-34 (West 1999 & Supp.
29a
2004). She also claims that Level 3 breached her
employment contract. This matter is before the court on
“Defendant’s Motion For Summary Judgment,” filed May 5,
2003, and “Defendant’s Uncontested Motion to Submit
Supplemental Declarations in Support of Reply Brief,” filed
July 16, 2003. Jurisdiction is based upon 28 U.S.C.A. §
1331 (West 1993 & Supp. 2003).
FACTS
} Factual Background
Prior to working for defendant, plaintiff worked in
sales at IXC Communications where she excelled in her job.
(Pl.’s Opp’n to Def.’s Mot. for Summ. J., Statement of
Additional Facts 4] 2 [filed June 16, 2003] [hereinafter “PI.’s
Resp.” |; admitted in pertinent part at Reply in Supp. of Mot.
for Summ. J., Resp. to Additional Facts 4 2 [filed July 15,
2003] [hereinafter “Def.’s Reply”].) When her boss at [XC
Communications transferred to work for defendant, plaintiff
also switched jobs to work for defendant. (PI.’s Resp.,
Statement of Additional Facts { 3; admitted in pertinent part
at Def.’s Reply, Resp. to Additional Facts { 3.) Thus,
plaintiff began working for defendant in early 1999 as a sales
manager. (Mem. Br. in Supp. of Mot. for Summ. J.,
Statement of Undisputed Facts ¢ 1 [filed May 5, 2003]
(hereinafter “Def.’s Br.”]; admitted at P\.’s Resp., Resp. to
Statement of Undisputed Facts 4 1; Pl.’s Resp., Statement of
Additional Facts 4 4: asstted in pertinent part at Def.’s
Reply. Resp. to Additiomai Facts § 4.)
Defendant has an “open door” policy that permits an
employee to complain internally. (Pl.’s Resp., Statement of
Additional Facts © 4-5 admitted in pertinent part at Def.’s
Reply, Resp. to Additional Facts §§ 4-5.) This policy
provides that defendant “will not tolerate retali.aon or
30a
unequal treatment directed at employee-owners who utilize
this Open Door Policy to raise workplace problems.” (Def.’s
Br., Ex. A-8 [Open Door Policy].) According to plaintiff,
this open door policy was one of the reasons why she wanted
to work for defendant. (PIl.’s Resp., Statement of Additional
Facts | 4, 7; admitted in pertinent part at Def.’s Reply,
Resp. to Additional Facts {¥ 4, 7.)
Plaintiff's boss at defendant’s San Francisco office
was Paul Larson, who also managed Shane Quivey. (Def.’s
Br., Statement of Undisputed Facts 4 3-4; admitted at P1.’s
Resp., Resp. to Statement of Undisputed Facts %§ 3-4.)
Quivey is a male, who at the relevant time period was in his
twenties. (Pl.’s Resp., Statement of Additional Facts 4 35;
admitted in. pertinent part at Def.’s Reply, Resp. to
Additional Facts { 35.) The parties vigorously dispute (1)
whether he was qualified for his position in sales, and (2)
whether he performed his sales job well. (/d., Statement of
Additional Facts {| 9-11; denied at Def.’s Reply, Resp. to
Additional Facts 4] 9-11; Pl.’s Resp., Ex 37 [Vargo Aff.].)
According to plaintiff's deposition testimony, Quivey would
come in late to meetings, argue inappropriately with
customers, give incorrect information to customers, show up
to meetings hung over, not keep corsistent work hours, and
not wear the proper attire. (/d, Statement of Additional
Facts 4 9; denied at Def.’s Reply, Resp. to Additional Facts
© 9.)' Defendant adamantly denies plaintiffs allegations
Plaintiff also alleges that Quivey viewed pornography at
work and would scream at people in the office. (P1.’s Resp.,
Statement of Additional Facts 4 9; denied at Def.’s Reply. Resp. to
Additional Facts ¥ 9; Pl.’s Resp., Ex. | at 38 [PI.’s Depo. Tr.].)
Plaintiff sets forth this averment based upon the statements of
other employees of defendant who worked with Quivey. (PI.’s
Resp., Ex. | at 38 [Pl.’s Depo. Tr.].) Plaintiff's testimony as to
this point is hearsay. “[T]he court may consider only admissible
evidence when ruling on a summary judgment motion.” Nobody
3la
regarding Quivey and provides numerous affidavits that
conflict with plaintiffs allegations. (Def.’s Reply, Resp. to
Additional Facts §j 9.)
Plaintiff alleges, and defendant disputes, that Larson
also gave plaintiff's better accounts to Quivey and gave
Quivey favorable treatment with regards to the accounts.
(Pl.’s Resp., Statement of Additional Facts § 16; denied at
Def.’s Reply. Resp. to Additional Facts 7 16.) Although the
timing is unclear, Larson reduced plaintiff's accounts so
Quivey had ninety accounts to plaintiff's twenty or twenty-
five. (/d. Statement of Additional Facts 4] 25; admitted in
pertinent part at Def.’s Reply, Resp. to Additional Facts
4 25.) According to plaintiff, defendant was also reducing
the accounts of another female employee. Plaintiff and her
fellow employee Mary Vargo claim’ that Larson
discriminated against Vargo in favor of Quivey, handing
Vargo’s accounts over to Quivey. (/d, Statement of
Additional Facts 4] 12-13; denied at Def.’s Reply, Resp. to
Additional Facts {| 12-13.) According to plaintiff and
Vargo, but disputed by defendant, when Vargo complained
to Larson’s superiors, he retaliated against her. (Jd,
Statement of Additional Facts § 14; denied at Def.’s Reply,
Resp. to Additional Facts 4] 14).
As a general matter, plaintiff testified in her
deposition that Larson treated men and women differently,
giving men all of the business advantages and repeatedly
discriminating against women. (/d., Statement of Additional
in Particular Presents, Inc. v. Clear Channel Communications,
Inc., — F. Supp.2d —, 2004 WL 725464, at *43 (D. Colo 2004),
These hearsay statements do not fall under the party-opponent
exception because plaintiff has not shown that the deciarants were
authorized by defendant “to engage in the type of correspondence
at issue,” Jd. I therefore do not consider these averments.
32a
Facts {| 26-28, 62; denied in pertinent part at Def’s Reply,
Resp. to Additional Facts 4§ 26-28, 62.) For example,
Larson would cover up men’s mistakes, set higher standards
for women, lie about women’s performance, bad mouth
women to the customers, and give better leads to the men.
(Id.) Defendant disputes these claims. (Def.’s Reply, Resp.
to Additional Facts {4 26-28.)
On August 13, 2000, plaintiff sent an electronic mail
message to Larson regarding her concerns about how Larson
was giving Quivey her lucrative accounts. (PI.’s Resp.,
Statement of Additional Facts 4 8; admitted in pertinent part
at Def.’s Reply, Resp. to Additional Facts 4 8; Pl.’s Resp.,
Ex. 10 [8/13/00 electronic mail message from plaintiff to
Larson].) Also, according to plaintiff, she orally complained
to Larson that he ‘vas discriminating against her because she
was a woman and because she was older. (/d., Statement of
Additional Facts § 63; denied at Def.’s Reply, Resp. to
Additional Facts § 63.) The record does not provide the
temporal context of this alleged oral complaint. (/d.,
Statement of Additional Facts 4 63; denied at Def.’s Reply,
Resp. to Additional Facts 4 63; Pl.’s Resp., Ex. 1 at 104
[plaintiff's depo.].)
In response to the aforementioned issues, on
September 18, 2000, plaintiff wrote an electronic mail
message complaining about Larson’s management style to
defendant’s senior vice president of sales, Scott Roberts,
who was two management levels above Larson. (Def.’s Br.,
Statement of Undisputed Facts 44 9, 29; admitted at Pl.’s
Resp., Resp. to Statement of Undisputed Facts 4 9, 29; Pl.’s
Resp., Statement of Additional Facts 22; admitted at Def.’s
Reply, Resp. to Additional Facts § 22.) Plaintiff wrote this
electronic mail messaye under defendant’s open door policy,
and Roberts believed this complaint fell within the scope of
the policy. (/d., Statement of Undisputed Facts 4 9, 11-12,
33a
37-38; admitted in pertinent part at Pl.’s Resp., Resp. to
Statement of Undisputed Facts 4 9. 11-12, 37-38.) Roberts
contacted defendant’s director of human resources, Randall
Hester, about plaintiff's complaint and requested that he
contact plaintiff. (Pl.’s Resp., Statement of Additional Facts
€ 30; admitted at Def.’s Reply, Resp. to Additional Facts 4
30.) The following day plaintiff wrote a more detailed
electronic mail message to Roberts about her issues with
Larson and her critiques of his handling of his job. (Def.’s
Br., Statement of Undisputed Facts § 10; admitted at Pl.’s
Resp., Resp. to Statement of Undisputed Facts 4 10; Pl.’s
Resp., Statement of Additional Facts | 23; admitted at Def.’s
Reply, Resp. to Additional Facts 423.) This electronic mail
message alleged, inter alia, that Larson showed “favoritism”
towards Quivey. (/d., Statement of Undisputed Facts 4 10;
admitted in pertinent part at P|.’s Resp., Resp. to Statement
of Undisputed Facts § 10.) According to plaintiffs
testimoriy, and disputed by Roberts, plaintiff told Roberts
that Larson favored men over women and worked to hurt his
women employees. (PI.’s Resp., Statement of Additional
Facts § 25; denied at Def.’s Reply, Resp. to Additional Facts
{| 25.) She also told him that Larson discriminated on the
basis of age. (/d., Statement of Additional Facts 4 25; denied
at Def.’s Reply, Resp. to Additional Facts § 25.)
On October 3, 2000, Larson told plaintiff that her
sales performance was poor and that she needed to improve
immediately. (Def.’s Br., Statement of Undisputed Facts € 5;
admitted in pertinent part at Pl.’s Resp., Resp. to Statement
of Undisputed Facts 4 5.) Then, on October 24, 2000,
Roberts replied to plaintiff regarding her September 18, 2000
complaint and told her that he had asked Hester to get
involved. (PI.’s Resp., Statement of Additional Facts ¥ 31;
admitted at Def.’s Reply, Resp. to Additional Facts §] 31.)
Plaintiff spoke with Hester on November 1, 2000. (/d,
Statement of Additional Facts | 32; admitted at Del’s Reply,
34a
Resp. to Additional Facts 432.) Plaintiff claims that she told
Hester in this meeting that Larson was discriminating against
her because she was a woman and because she was older.
(Id., Statement of Additional Facts § 33; denied at Def.’s
Reply, Resp. to Additional Facts § 33.) Conversely, Hester
claims that the issue of gender and age discrimination never
arose, and plaintiff merely complained about Larson’s poor
management style. (/d) Hester did consider plaintiff's
complaints to fall within the purview of defendant’s open
door policy. (/d, Statement of Additional Facts 4 36;
admitted at Def.’s Reply, Resp. to Additional Facts § 36.)
Hester, thereafter, contacted Mike Lanza, Larson’s
supervisor, and Larson to discuss plaintiff's complaints.
(Def’s Br., Statement of Undisputed Facts 4 28; admitted in
pertinent part at Pl.’s Resp., Resp. to Statement of
Undisputed Facts 4 28; Pl.’s Resp., Statement of Additional
Facts § 39; admitted in pertinent part at Def.’s Reply, Resp.
to Additional Facts { 39.) The following day, Lanza and
Larson sent out electronic mail messages to their sales group,
including plaintiff, explaining that “no one is to take ANY
issue to [Lanza’s] superiors without first bringing it to
[Lanza’s] attention.” (PI.’s Resp., Statement of Additional
Facts (40; admitted in pertinent part at Def.’s Reply, Resp.
to Additional Facts §{ 40; Pl.’s Resp., Ex. 24 [11/02/00
electronic mail message from Haynes to Larson with
electronic mail history].) According to plaintiff, this
electronic mail message was in response to her discussion
with Hester, which is demonstrated by the temporal
proximity between her discussion with Hester and the
electronic mail message. (/d., Statement of Additional Facts
{ 40; denied in pertinent part at Def.’s Reply, Resp. to
Additional Facts | 40) Defendant, on the other hand,
contends that this electronic mail message was in response to
plaintiffs actions earlier that day of discussing a client
meeting with Roberts without contacting either Larson or
35a
Lanza first. (Def.’s Reply, Resp. to Additional Facts € 40,
Ex. A-23 [11/02/00 electronic mail message from Haynes to
Larson with electronic mail history].)
On November 7, 2000, plaintiff sent another
electronic mail message to Larson regarding her concerns
about how Larson was giving Quivey her lucrative accounts.
(Pl.’s Resp., Statement of Additional Facts ¥ 8; admitted in
pertinent part at Def.’s Reply, Resp. to Additional Facts 4 8;
Pl.’s Resp., Ex. 11 [11/7/00 electronic mail message from
plaintiff to Larson].) Plaintiff claimed in her deposition that
by around this time, she only had three viable accounts. (/d.,
Statement of Additional Facts 4 21; admitted in pertinent
part at Def.’s Reply, Resp. to Additional Facts € 21.)
On November 13, 2000. Larson placed plaintiff on a
performance improvement plan (hereinafter “PIP”), which
Larson and Hester drafted. (Def.’s Br., Statement of
Undisputed Facts § 6; admitted in pertinent part at P\.’s
Resp., Resp. to Statement of Undisputed Facts { 6; PI.’s
Resp., Statement of Additional Facts 4 44, 60; admitted in
pertinent part at Def.’s Reply, Resp. to Additional Facts
{1 44, 60.) The parties agree that the PIP was a form of
discipline. (PI.’s Resp., Statement of Additional Facts © 48;
admitted at Def.’s Reply, Resp. to Additional Facts 4 48.)
The PIP required that plaintiff meet or exceed 100% of her
monthly sales quota in the following two months and meet
other objective criteria to increase her sales. (Def.’s Br.,
Statement of Undisputed Facts 4 7; admitted at P\.’s Resp.,
Resp. to Statement of Undisputed Facts £ 7.) The parties
dispute whether plaintiff's performance was poor enough to
necessitate defendant placing her on the PIP. (PI.’s Resp.,
Statement of Additional Facts § 50; denied at Def.’s Reply,
Resp. to Additional Facts © 50.) Plaintiff contends that her
performance was excellent, but Larson’s numerous improper
actions led her to have bad sales numbers. (/d., Statement of
36a
Additional Facts § 50; denied at Def.’s Reply, Resp. to
Additional Facts § 50.) Defendant contends that plaintiff
was underperforming because of her own faults. (/d.)
According to plaintiff, she developed an anxiety
disorder and aggravation of her colitis’ in 2000, and these
conditions rose to the level of a disability. (Def.’s Br.,
Statement of Undisputed Facts { 13; admitted at P|.’s Resp.,
Resp. to Statement of Undisputed Facts 4 13; Pl.’s Resp.,
Statement of Additional Facts § 72; admitted in pertinent
part at Def.’s Reply, Resp. to Additional Facts 4 72.) On
November 22, 2000, plaintiffs primary care physician
recommended that plaintiff go on a two week medical
disability leave while she consulted with specialists who
could determine how long her recuperation would take. (/d.,
Statement of Undisputed Facts { 16; admitted in pertinent
part at P\.’s Resp., Resp. to Statement of Undisputed Facts
4 16.) Thus, starting in late November 2000, plaintiff began
a medical leave of absence from defendant. (/d., Statement
of Undisputed Facts 4 17; admitted in pertinent part at P\.’s
Resp., Resp. to Statement of Undisputed Facts 4 17.)
Plaintiff's leave of absence continued far longer than two
weeks. Plaintiff took twelve weeks of leave under the
Family Medical Leave Act and then took an indefinite leave
under defendant’s medical leave policy. (/d, Statement of
Undisputed Facts § 18; admitted in pertinent part at P\.’s
Resp., Resp. to Statement of Undisputed Facts § 18.)
Plaintiff reports that she was disabled from late
November 2000 until well after defendant terminated her
employment, discussed below. (Id, Statement of
Undisputed Facts § 32; admitted at P\.’s Resp., Resp. to
? Colitis is an inflammation of the colon. Merriam-
Webster’s Medical Dictionary (2004).
37a
Statement of Undisputed Facts { 32.) Specifically, she
claims that during this time she couldn’t leave her house and
just “stayed under the covers up to her neck,” while her
mother took care of her. (/d., Statement of Undisputed Facts
§ 32; admitted at Pl.’s Resp., Resp. to Statement of
Undisputed Facts 4 32.) Her primary care physician told
plaintiff that she could not work during this period of time.
(Id, Statement of Undisputed Facts 4 33; admitted in
pertinent part at Pl.’s Resp., Resp. to Statement of
Undisputed Facts 4 33.) According to plaintiff, there was
nothing defendant could have done (i.e. modify her work
schedule or make other accommodations) to enable her to
return to work. (/d., Statement of Undisputed Facts 4 15;
admitted in pertinent part at P\.’s Resp., Resp. to Statement
of Undisputed Facts 4 15.)
In June, 2001 defendant underwent one of several
Reductions in Force (hereinafter “RIF”). (/d., Statement of
Undisputed Facts | 24; admitted at Pl.’s Resp., Resp. to
Statement of Undisputed Facts § 24.) Defendant developed a
list of criteria that would trigger an employce’s selection for
the RIF, which included an employee’s placement on a PIP.
(Id., Statement of Undisputed Facts § 25-26; (admitted at
Pl.’s Resp., Resp. to Statement of Undisputed Facts 4] 25-
26; Pl.’s Resp., Statement of Additional Facts | 65;
admitted in pertinent part at Def.’s Reply, Resp. to
Additional Facts 4 65.) When Larson placed plaintiff on the
PIP, he was unaware that (1) there would be an RIF in June
2001, and (2) placement on a PIP would be a criteria for
being selected for the lay-offs. (/d., Statement of Undisputed
Facts §| 27; admitted in pertinent part at P\.’s Resp., Resp. to
Statement of Undisputed Facts 4 27.) Hester, however, was
aware that a PIP was one of defendant’s main criteria in
determining who to lay off during an RIF. (PI.’s Resp.,
Statement of Additional Facts %§ 65-66; admitted in
pertinent part at Def.’s Reply, Resp. to Additional Facts "4
38a
65-66.) On June 21, 2000, defendant laid off plaintiff,
Larson, and Lanza as part of defendant’s RIF. (Def.’s Br.,
Statement of Undisputed Facts {| 28; admitted in pertinent
part at P|.’s Resp., Resp. to Statement of Undisputed Facts 4
28; Pl.’s Resp., Statement of Additional Facts 4] 71; admitted
in pertinent part at Def.’s Reply, Resp. to Additional Facts 4
71.) Roberts was ultimately responsible for the decision to
lay off plaintiff, Larson, and Lanza. (Jd, Statement of
Undisputed Facts {| 29; admitted in pertinent part at P\.’s
Resp., Resp. to Statement of Undisputed Facts 4 29.)
Plaintiff was forty-six years old when defendant terminated
her employment. (PI.’s Resp., Statement of Additional Facts
4 1; admitied at Def.’s Reply, Resp. to Additional Facts 4] 1.)
Defendant did not lay off Quivey. (/d, Statement of
Additional Facts {| 35; admitted in pertinent part at Def.’s
Reply, Resp. to Additional Facts § 35.)
yi Procedural History
On October 11, 2001, plaintiff filed a charge of
discrimination with the EEOC. (Def.’s Br., Statement of
Undisputed Facts § 36; admitted at Pl.’s Resp., Resp. to
Statement of Undisputed Facts 4 36.) The EEOC issued a
right to sue letter on June 27, 2002. (Compl., Ex. 1 [Notice
of Right to Sue] [filed Sept. 4, 2002].)
Plaintiff filed her original complaint in this court on
September 4, 2002. (Compl.) Plaintiff amended her
complaint on February 24, 2003. (Am. Compl. [filed Feb. 4,
2004].) Plaintiff sets forth four claims for relief in her
amended complaint. First, she alleges that defendant
violated the ADA by its discriminatory acts (Am. Compl. 4
41.) Second, she alleges that defendant violated Title VII by
its discriminatory and retaliatory acts. (/d. 42.) Third, she
alleges that defendant violated the ADEA through its
discriminatory and retaliatory acts. (/d. § 43.) Fourth, she
39a
alleges that defendant breached its contracts with plaintiff.
(Id. 4 44.)
Defendant moved for summary judgment on all of
plaintiff's claims on May 5, 2003. (Def.’s Mot. for Summ. J.
{filed May 5, 2003].) In a footnote, defendant argues that
plaintiffs claims are time barred for failure to file an EEOC
complaint within 300 days from the date of the allegedly
unlawful employment practice. (Def.’s Br. at 10 n. 1.)
Neither plaintiffs response nor defendant’s reply address
this issue. Since this issue is dispositive, I gave the parties
an opportunity to argue this specific issue at a hearing on
July 16, 2004. (Courtroom Mins. {dated July 16, 2004].) On
July 19, 2004, regarding a sub-issue discussed at the hearing,
plaintiff filed a supplement citing cases where courts found
that an employee’s placement on a PIP did not constitute an
adverse employment action. (PI.’s Supplemental Auth. in
Opp’n to Def.’s Mot. for Summ. J. [filed July 19, 2004]
[hereinafter “P1.’s Supplement”].)
ANALYSIS
1, Standard of Review
Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, the court may grant summary judgment where
“the pleadings, depositions. answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the
. .. MOving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c) (2003); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986);
Concrete Works, Inc. v. City & County of Denver, 36 F.3d
513, 1517 (10th Cir. 1994). The moving party bears the
initial burden of showing an absence of evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477
40a
U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). “Once the
moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on
a material matter.” Concrete Works, Inc., 36 F.3d at 1518
(citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554).
The nonmoving party may not rest solely on the allegations
in the pleadings, but must instead designate “specific facts
showing that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 324, 106 S. Ct. at 2553; see Fed. R. Civ.
P. 56(e). “‘Only disputes over facts that might affect the
outcome of the suit under governing law will preclude the
entry of summary judgment.’” Sanchez v. Denver Pub.
Schs., 164 F.3d 527, 531 (10th Cir. 1998) (quoting Anderson,
477 U.S. at 248, 106 S. Ct. at 2505). The court may consider
only admissible evidence when ruling on a summary
judgment motion. See World of Sleep. Inc. v. La-Z-Boy
Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The
factual record must be viewed in the light most favorable to
the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518
(citing Applied Genetics Int'l, Inc. v. First Affiliated Sec.,
Inc., 912 F.2d 1238, 1241 [10th Cir. 1990}).
2. Plaintiff's ADA claim
Plaintiffs ADA claim fails for two reasons. The
first reason is set forth in this section and the second reason
is set forth in the following section with regards to plaintiff's
Title VII and ADEA claims. Defendant contends that
plaintiffs first claim for relief, violation of the ADA, must
be dismissed because plaintiff cannot establish that she was
(1) disabled under the ADA or (2) qualified under the ADA.
(Def.’s Br. at 8-10.) Since I resolve this issue regarding the
latter argument, I do not address the former.
To establish a prima facie case under the ADA,
plaintiff must demonstrate “(1) that he is ‘disabled’ within
4la
the meaning of the ADA; (2) that he is qualified -- with or
without reasonable accommodation; and (3) that he was
discriminated against because of his disability.” Aldrich y.
Boeing Co., 146 F.3d 1265, 1269 (10th Cir. 1998) (quoting
Siemon v. AT&T Corp., 117 F.3d 1173, 1175 [10th Cir.
1997]). A person is qualified if she can “with or without
reasonable accommodation, [] perform the essential
functions of the employment position that [she] holds or
desires.” 42 U.S.C.A. § 12111(8) (West 1995 & Supp.
2003). The relevant time for determining whether the
plaintiff is a qualified individual with a disability under the
ADA is at the time of discharge. Griffith v. Wal-Mart
Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998). Here,
plaintiff concedes that she could not work at all when she
was terminated. (Def.’s Br., Statement of Undisputed Facts
94 15, 32-33; admitted at Pl.’s Resp., Resp. to Statement of
Undisputed Facts 15, 32-33.) Accordingly, plaintiff was not
a qualified individual under the ADA. 42 US.C.A. §
12111(8); Duckett v. Dunlop Tire Corp., 120 F.3d 1222,
1225 (llth Cir. 1997) (holding that employee was not
“otherwise qualified” as required to establish prima facie
case under ADA because he conceded that he was unable to
return to work in any capacity and required indefinite
medical leave when he was terminated). Plaintiff, therefore,
cannot establish a prima facie case under the ADA and her
first claim for relief fails.
RS Plaintiff's Title VII and ADEA Claims
Plaintiffs Title VII and ADEA claims likewise fail,
but for a different reason. Defendant contends, in a footnote,
that plaintiff's claims are time barred for failure to file an
EEOC complaint within 300 days from the date of the
allegedly unlawful employment practice. (Def.’s Br. at 10 n.
1.) A plaintiff must file a complaint with the EEOC within
300 days from the date of the unlawful employment practice
42a
in order to avoid summary judgment. Croy y. Cobe Labs.,
Inc., 345 F.3d 1199, 1202 (10th Cir. 2003); Herrera v. Int'l
Bhd. of Elec. Workers Union, 228 F. Supp.2d 1233, 1240 (D.
Colo. 2002). Here, plaintiff filed a charge of discrimination
with the EEOC on October 11, 2001. (Def.’s Br., Statement
of Undisputed Facts § 36; admitted at P|.’s Resp., Resp. to
Statement of Undisputed Facts § 36.) Thus, the basis for
plaintiffs claims must have occurred no earlier than
December 15, 2000.
As of December 15, 2000, plaintiff was on medical
leave from defendant, but had not been terminated as part of
the RIF. (Def.’s Br., Statement of Undisputed Facts §§ 17,
28; admitted in pertinent part at P\.’s Resp., Resp. to
Statement of Undisputed Facts 4§ 17, 28; Pl.’s Resp.,
Statement of Additional Facts 71; admitted in pertinent
part at Def.’s Reply, Resp. to Additional Facts § 71.)
Plaintiffs termination as part of the RIF was not
discriminatory or retaliatory, in and of itself, rather it was a
result of, inter alia,. plaintiff's PIP disciplinary action. (/d.,
Statement of Undisputed Facts {| 25-26; admitted at P.’s
Resp., Resp. to Statement of Undisputed Facts 99 25-26;
PI.’s Resp., Statement of Additional Facts 4 65; admitted in
pertinent part at Def.’s Reply, Resp. to Additional Facts,
65.) Plaintiff alleges numerous discriminatory and
retaliatory actions taken by defendant, including the PIP, all
of which occurred prior to defendant’s medical leave of
absence that began in November 2000. (Pl.’s Resp.,
Statement of Additional Facts ¥§ 12-13, 16, 26-28, 32, 40,
44, 60, 62; admitted in part, denied in part at Def.’s Reply,
Resp. to Additional Facts §{ 12-13, 16, 26-28, 32, 40, 44, 60,
62.) As plaintiff explains, “plaintiff was laid off because she
was put at the top of the layoff list which, in turn, was
because she had been placed on a corrective action plan,
which, in turn, was because she complained to human
resources about discrimination and mistreatment under the
43a
‘open door’ policy.” (/d., Statement of Additional Facts 4 68;
denied at Def.’s Reply, Resp. to Additional Facts { 68.) The
facts, taken in a light most favorable to plaintiff, show that
plaintiff suffered (1) discriminatory acts up through
November 2000, and (2) an act in retaliation for protected
opposition in the form of the PIP on November 14, 2000.
Once defendant placed plaintiff on the PIP, the PIP
automatically resulted in her termination seven months later.
(Def.’s Br., Statement of Undisputed Facts {] 25-26;
admitted at P\.’s Resp., Resp. to Statement of Undisputed
Facts 49 25-26; Pl.’s Resp., Statement of Additional Facts {J
65-68; admitted in part, denied in part at Def.’s Reply, Resp.
to Additional Facts {§ 65-68.) The question, therefore, is
whether plaintiffs selection for the RIF within the
limitations period can bring in her claims for discriminatory
and retaliatory acts, all of which occurred outside of the
limitations period.
This question, at first glance, presents a Catch-22 for
plaintiff. One line of cases, as set forth in plaintiffs
supplemental authority, finds that an ecmployer’s written
warnings to an employee do not constitute an adverse
employment action. (Pl.’s Supplement at 1-2 [citing
Rennard v. Woodworker’s Supply, Inc., No. 03-8031, 2004
WL 1260309, at *10 (10th Cir. June 9, 2004) (unpublished);
Taylor Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)].)
Accordingly, under these cases plaintiff did not have the
basis, as of the time that she was placed on the PIP, to file an
EEOC complaint.
However, in a different set of cases, courts have
concluded that each act of discrimination must fall within the
300 day period prior to the employee’s EEOC filing or be
barred by the statute of limitations. This circuit used to
follow a rule permitting suit on “claims of discrimination
alleging incidenis [} occurr[ing] outside the time limitations
44a
. . if the various acts constitute[d] a continuing pattern of
discrimination.” Croy, 345 F.3d at 1202. This rule was
modified by the United States Supreme Court in National
Railroad Passenger Corp. v. Morgan. Id. (citing Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061
(2002]).* Morgan held, with regards to Title VII claims of
discrimination, that “since discrete acts [of discrimination]
are easily identifiable and individually actionable, acts that
occur[] outside of the limitations period, even though related
to those occurring within the period, are not actionable.” /d.
Morgan’s reasoning applies with equal force to ADA and
ADEA cases. Davidson v. Am. Online, Inc., 337 F.3d 1179,
1184 (10th Cir. 2003) (holding that Morgan applis to ADA
cases); Sharpe v. Cureton, 319 F.3d 259, 268 n. » (6th Cir.
2003) (holding that Morgan applies to ADEA cases). The
“proper focus is upon the time of the discriminatory acts, not
upon the time at which the consequences of the acts became
most painful.” Del. State Coll. v. Ricks, 449 U.S. 250, 258,
101 S.Ct. 498, 504 (1980) (emphasis removed) (quoting
Abramson v. Univ. of Haw., 594 F.2d 202, 209 [9th Cir.
1979]). Moreover, “[a]n employer’s refusal to undo a
discriminatory decision is not a fresh act of discrimination.”
Croy, 345 F.3d at 1203 (alteration in original) (quoting Lever
v. Northwestern Univ., 979 F.2d 552, 556 [7th Cir. 1992]}).
Here, assuming that the first line of cases is correct, then
plaintiff finds herself in the Catch-22, for her placement on
the PIP is not an adverse employment action sufficient to set
forth a complaint with the EEOC, but it is a discriminatory
act that begins the clock running on her requirement to file
* Defendant cites to Martin v. Nannie and the Newborns,
Inc. in its footnote regarding the continuing pattern of
discrimination rule. (Def.’s Br. at 10 n. | [citing Martin v. Nannie
and the Newborns, Inc., 3 F.3d 1410 (10th Cir. 1993)].) Martin
was abrogated by Morgan.
45a
with the EEOC.
Fortunately, I do not need to resolve this conflict.
Although plaintiff notes several non-binding authorities that
state that written warnings do not constitute an adverse
employment action, the only binding authorities to address
this issue have reached the opposite conclusion. See Hysten
v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1183
(10th Cir. 2002) (holding that a written reprimand can
constitute an adverse employment action); Roberts vy.
Roadway Exp., Inc., 149 F.3d 1098, 1104 (10th Cir. 1998)
(holding that employer’s written warnings to an employee,
which make it more likely that the employee will be
terminated for further infractions, constitutes an adverse
employment action); see also Woolery v. Brady, 741 F.
Supp. 667, 669 (E.D. Mich. 1990) (“the obligation to
challenge a performance appraisal that is allegedly
discriminatory arises at the time that the evaluation is issued
to the employee, and a discrimination complaint is untimely
if the allegation is later raised outside the limitations period
upon the evaluation’s use in a promotion proceeding”); but
see Rennard, 2004 WL 1260309, at *10 (holding that written
reprimands without “any immediate or practical effect” on
plaintiff's job do not constitute an adverse employment
action); Zaylor, 350 F.3d at 1293 (defendant’s placement of
plaintiff on a PIP that did not affect plaintiff's grade or salary
was not an adverse employment action). Therefore, plaintiff
could have filed a charge of discrimination immediately after
being placed on the PIP because a written warning in the
Tenth Circuit constitutes an adverse employment action.
Plaintiff did not file with the EEOC within 300 days of the
alleged discriminatory actions, and plaintiff therefore did not
timely file her complaints of discrimination and retaliation
with the EEOC. Because of her untimely filing, her ADA,
ADEA, and Title VII claims are barred.
46a
4. Plaintiff's Contract and Promissory Estoppel Claim
Plaintiffs fourth claim for relief is for breach of
contract and promissory estoppel premised upon state law.
(Am. Compl. {J 4, 44.) This court has jurisdiction over the
ADA, ADEA, and Title VII claims under 28 U.S.C.A.
§ 1331, federal question jurisdiction. Plaintiff does not
assert diversity jurisdiction as a basis for her fourth claim for
relief. The record before this court does not reveal whether
the parties are diverse, or if the amount in controversy is
greater than $75,000. My only jurisdiction over plaintiff's
state law claim, therefore, is supplemental jurisdiction
pursuant to 28 U.S.C.A. § 1367(a) (West 1993 & Supp.
2003).
Since the three claims under federal law have been
dismissed, and these claims provided the sole basis for this
court’s original jurisdiction, I decline to exercise
supplemental jurisdiction over plaintiff's fourth claim and
dismiss it without prejudice to refiling in state court. 28
U.S.C.A. § 1367(c)(3) (“[t]he district courts may decline to
exercise supplemental jurisdiction over'a claim... if... the
district court has dismissed all claims over which it has
original jurisdiction”); United Mine Workers of Am. V.
Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139 (U.S. 1966)
(“if the federal claims are dismissed before trial . . . the state
claims should be dismissed as well’’).
5. Conclusions
Based on the foregoing it is therefore
ORDERED as follows:
1. Defendant's Uncontested Motion to Submit
47a
Supplemental Declarations in Support of Reply Brief (# 49)
is GRANTED.
2. Defendant’s motion for summary judgment (# 36)
is GRANTED.
3. The clerk shall forthwith enter final judgment in
favor of defendants and against plaintiff, dismissing all of
plaintiff's federal claims with prejudice and dismissing the
state law claim without prejudice, for lack of subject matter
jurisdiction. Defendants may recover their costs by filing a
bill of costs within eleven days of today’s date.
Dated this 27 day of July, 2004.
BY THE COURT:
EDWARD W. NOTTINGHAM
United States District Judge
EOD
UNITED STATES DISTRICT COURT
DENVER, COLORADO
JUL 27 2004
GREGORY C. LANGHAM
CLERK
48a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Edward W. Nottingham
Civil Action No.
02-N-1694
LINDA HAYNES, FILED
United States District Court
Plaintiff, Denver, Colorado
July 29, 2004
V. Gregory C. Langham
Clerk
LEVEL 3
COMMUNICATIONS,
BF 6d
Defendant.
FINAL JUDGMENT
In accordance with orders filed during the pendency
of this case, and pursuant to Fed. R. Civ. P. 58(a)(1), the
following FINAL JUDGMENT is hereby entered.
1. Pursuant to the written Order and
Memorandum of Decision filed by Judge Edward W.
Nottingham on July 27, 2004:
a. Defendant’s motion for summary
49a
judgment (#36) is GRANTED.
b. Judgment is entered in favor of
defendant Level 3 Communications,
LLC and against plaintiff Linda
Haynes; all of plaintiffs federal
claims are dismissed with prejudice
and plaintiffs state law claim is
dismissed without prejudice for lack
of subject matter jurisdiction.
pA Defendant may recover its costs by filing a
bill of costs within eleven days of the date of the filing of the
court’s Order and Memorandum of Decision.
Dated this 29 day of July, 2004.
50a
Final Judgment
Civil Action No. 02—N—1694 (MJW)
Page 2
APPROVED BY ENTERED FOR THE COURT:
THE COURT: GREGORY C,. LANGHAM, CLERK
EDWARD W. NOTTINGHAM By Stephen P. Ehrlich
United States District Judge Chief Deputy Clerk
EOD
UNITED STATES DISTRICT COURT
DENVER, COLORADO
JUL 29 2004
GREGORY C. LANGHAM
CLERK
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